Marshall’s Court: Principle, Not “Issues”

 by Edward Spannaus

 John Marshall: The Man Who Made the Supreme Court, a film written by Richard Brookhiser and Leo Eaton, and directed by Leo Eaton.  Eaton Creative, Inc., 2020. Running time: 2 hours, 26 minutes. Available on Amazon Prime.

Richard Brookhiser, John Marshall: The Man Who Made the Supreme Court.  New York: Basic Books, 2018. 325 pages.

October 26, 2020 – Richard Brookhiser writes popular history and bibliographies – a talent that certainly has its place.  What he has done with John Marshall, as with other subjects of his biographies, is to tell Marshall’s story in a very accessible way for the non-lawyer.  He did this in his book John Marshall: The Man Who Made the Supreme Court, published in late 2018, and has now done it again in a much more effective way, in the documentary film of the same name. (For trailer, click here.)

 Marshall's Court: Principle, Not "Issues"

I say that the film is more effective, because it draws on interviews with more than two dozen historians, legal scholars, and judges, the videos of which are available on the documentary’s website https://johnmarshallfilm.com/

What is presented is a portrait of one of the most important figures in shaping our Nation: a collaborator of George Washington and Alexander Hamilton, the creator of the Supreme Court as we know it today, and a committed nationalist whose deep patriotism was molded by the Revolutionary War.  And above all, as we shall elaborate, a man of principle, who would have looked with disdain upon today’s obsession with partisanship and a checklist of “issues.”

An Unusual Format 

The format of the film is to present short snippets of the interviews, which flesh out each topic.  Usually, a section is composed of a sentence or two – sometimes more – from a number of the interviewees, which then make up what might be considered a “paragraph.” (Can you imagine a lawyer or professor being limited to one or two sentences?)

Nevertheless, it works – although it can occasionally be annoying, in that you want to hear more of what a particular person has to say.  The format is lively, it keeps things moving right along, and you don’t have to worry about getting bored listening to one “expert” drone on and on.

Here’s an example of how it works, during a discussion of the National Bank case:[i]

Prof. Christine Desan: The issue is, who makes money.

Judge Guido Calabresi: Do you have a national economy? Do you have a national bank?  Do you have a national currency?

Prof. Kent Newmyer: The issue was whether Congress could charter a Bank of the United States. I mean, you might say, well, how could it be an issue because Congress had already charted the Bank of United States in 1791, had run for 20 years?

Risa Goluboff: The Bank of the United States was controversial from the very beginning. In the 1790s, when it first comes up, Hamilton raises it and when it first comes up, Jefferson is quite opposed to it.

Jeff Rosen: The Bank of the United States prompted the first major debate in America about the scope of Congress’s power to regulate the national economy.

The Making of the Supreme Court

Into the story of Marshall’s life, the script weaves discussions of half a dozen of Marshall’s most important cases – plus the Aaron Burr trial. The political and social context of Marshall’s great rulings are thankfully given more fulsome treatment than are the legal technicalities.

On Marshall’s most famous rulings – such as Marbury vs. Madison, Dartmouth College, and Gibbons vs. Ogden (the steamboat case) – Brookhiser tells the stories behind them, and usually in a very engaging way.  This is all for the good:  the more American citizens today understand about how Marshall used the Supreme Court to establish the framework for building a unified, economically-powerful nation – what Hamilton called the “commercial republic” —  the better people will have an historical context for understanding today’s political and economic challenges.

Marshall's Court: Principle, Not "Issues"

The Old Supreme Court Chamber where Marshall presided, as preserved today.

The question is: How well do Brookhiser and his collaborators accomplish this task?  Do they succeed in conveying what is most important about John Marshall?

The thesis of Brookhiser’s book – as indicated by its title – is how Marshall transformed the Supreme Court from a weak, un-respected agency, into a powerful, co-equal branch of government, able to pass on the constitutionality of actions of both the Executive and the Legislature. Marshall personally made the Supreme Court into the institution that pronounces what the law is, and what the Constitution means. This role for the Court was by no means self-evident in the early days of the Republic.

But what the film doesn’t always make clear, is that this was not a mere grab for power, as in the way our political leaders toy with the Supreme Court today.  Nor was the Supreme Court intended be a partisan agency; the idea that the Court would become a factional and partisan football led Marshall into despair in his later years.  The corruption of today’s politicians shamelessly abusing the judicial appointment process in blatantly partisan terms – “conservative” versus “liberal,” or “Democrat” versus Republican” – would have been almost unimaginable to a John Marshall, even though he himself was no stranger to political controversy and factionalism.

Indeed, one of John Marshall’s characteristics which most upset Thomas Jefferson and others who regarded themselves as Marshall’s adversaries, was Marshall’s uncanny ability to break down the partisan (Federalist-versus-Jeffersonian) divide, and to co-opt justices appointed by the opposition party into forming a judicial consensus for the good of the Nation.

Brookhiser and his collaborators on the documentary make it very clear that many of Marshall’s rulings not only strengthened the role of the Supreme Court, but that they strengthened the role of the federal government vis-a-vis the states. Some also emphasize that this paved the way for the Nation’s expansion and economic development – which is what I stressed in my six-part series on this blog, John Marshall and the American System.

But the more important point, is that for Marshall, the questions of the Constitution, the Union, and the American System of economics as propounded by Alexander Hamilton, Henry Clay, and others, were inseparable.  This unified vision was a principle, not a series of “issues” to be squabbled over.  There were not separate issues of states’ rights against federalism, or of enslaved versus free labor, or of Union against disunion. (For an incisive history of Hamilton’s American System, see Hamilton Versus Wall Street: The Core Principles of the American System of Economics.)

Marshall the Nationalist

This is the way to look at Marshall’s nationalism. It was a Hamiltonian nationalism, one of expanding and building the Nation into a thriving industrial, agricultural, and commercial republic unlike anything seen in the Old World.

Marshall's Court: Principle, Not "Issues"

Chief Justice John Marshall

In his book, Brookhiser assiduously declined to characterize Marshall as “nationalist” in his rulings, which almost all other writers on Marshall freely do. When Brookhiser was presenting his book at the National Archives in Washington in November of 1918, I asked him about this, and whether he was avoiding the term because of the connotation it has taken on today.  Brookhiser responded that the term is “anachronistic,” that Marshall himself never used the term.

Happily, this problem is overcome in the film. Many of those interviewed had no hesitation in describing Marshall and his court opinions as “nationalist.” Some examples:[ii]

Sen. Hawley: Marshall was a nationalist; I mean, he really believed in the American nation when a lot of other people had trouble conceptualizing America as a nation, not just a collection of individual states but nation. Marshall could see it.

Prof. Randy Barnett: Marshall was a high Federalist, which means he was a nationalist in Alexander Hamilton’s mold. He was a disciple or protégé of Alexander Hamilton at a time when there was political pushback against a strong central government.

Prof. Newmyer (speaking on the Steamboat case):  This is the last great nationalist opinion of Marshall’s, because the forces of states’ rights opposition are gathering in the mid-1820s in a very serious way.

“Nationalist” is not just a label, but a conception, one which expresses Marshall’s commitment to nation-building, and to overcoming the obstacles that the states – especially the slave-holder states – were throwing in the way of developing an economically-unified country.

Another demonstration of Marshall’s nationalism — which I particularly liked – was the depiction of Marshall’s little-known survey of the Virginia’s James and Kanawha Rivers in 1812 (while he is Chief Justice!)  to determine if it were feasible to construct a canal which would link coastal Virginia to Ohio.  In his book, Brookhiser quotes Marshall foreseeing how such a canal would “cement more closely the union of the eastern with the western states,” and thus benefit the entire nation. “By the augmentation of the wealth and population of a part … the whole would be more powerful,” Brookhiser quotes Marshall writing in his report to the Virginia legislature.

In the film, Brookhiser is shown on a reproduction bateau on the James River, a flatboat of the kind that Marshall and his team would have taken up-river in 1812. In the dialogue aboard the boat, the bateau’s captain (a re-enactor) says: “They’re still talking about ‘these United States’ and not The United States. For the health of the Union, it was imperative to cement political and economic ties with the people of the mid-west.” To which Brookhiser responds: “He’s also thinking as a nationalistic Virginian, you know. He wants to benefit Virginia by tying the Union together through Virginia. This connected him with George Washington, who’d dreamed of such a route years before.”

“Originalism”

The film touches, rather gingerly, on a controversy which pervades modern jurisprudence: that of “originalism,” also known as “textualism.”  Here, self-styled “conservatives” maintain, sometimes even with a straight face, that the Constitution must be interpreted literally, or, as they say, in light of what the words of the Constitution meant in 1787, counterposing that to the idea of a “living Constitution.”

The First Bank of the United States in Philadelphia

The film eases into this during a discussion of Marshall’s ruling in the National Bank case, McCulloch vs. Maryland (1819). In that case, the first question was whether the Constitution granted Congress the power to create a bank, since that is not among the explicit powers granted to Congress. Marshall, echoing Alexander Hamilton, says that such a power is implied; the Constitution allows the legislature to utilize whatever means are necessary and appropriate to carry out the great objects of the Constitution, which include acting for the common defense and the general welfare.

In the film, the interviewees are discussing the McCulloch ruling, with one participant noting that what is most interesting is not Marshall’s holding that Congress does have that power, but how he explains it.[iii]

Prof. Kate Stith: Marshall answered the first question. Yes, Congress had the power to charter a bank, even though that is not listed among Congress’s enumerated powers.

Prof. Desan: And therein lies the problem, right? The federal government is supposed to have enumerated powers only, those powers that are listed in the Constitution.

Judge Calabresi: But there’s nothing in the Constitution that says you can do a bank.

Prof. Kevin Walsh: The phrase, “We must never forget it is a Constitution we are expounding,” comes in the case of McCulloch versus Maryland.

Jeff Rosen: What does that mean? It seems to suggest that a Constitution is not a statute, a lawyer’s document, a technical series of rules that have to be applied in the strictest and least forgiving way.

An actor portraying John Marshall then reads an excerpt from the Chief Justice’s opinion:

A Constitution detailing all of the subdivisions of its great powers and all the means by which they may be carried in execution, would take on the weight of an entire legal code and could scarcely be embraced by the human mind. Only its great outline should be marked, its important objects designated. The power of creating a corporation, is but a means by which other powers are exercised.

That seems like a pretty devastating attack on the idea that judges are bound by the exact words of the Constitution and cannot stray beyond them.  Brookhiser points out that Marshall was relying on a clause from Article I, Section 8 of the Constitution, which says that Congress may “make all laws which shall be necessary and proper” for executing its enumerated powers. Or, Brookhiser continues, paraphrasing Marshall, “let the end be within the scope of the Constitution, all means adapted to it, and not prohibited, are constitutional.”

Then, excerpting an interview with Justice Samuel Alito, Brookhiser asks: “Did Marshall think he was interpreting a ‘living Constitution’?”  Alito responds, somewhat dismissively, “It’s a clever metaphor; it’s an attractive metaphor. Who wants a dead Constitution?”[iv]

Marshall's Court: Principle, Not "Issues"

Current Chief Justice John Roberts then responds: “If you mean a document that was malleable and could be shaped to the particular purposes of the people who were interpreting it, the answer is definitely no. On the other hand, if you are talking about a document that would remain relevant despite changes in society, well, very much.”

True, as far as it goes.  But Marshall himself was much more definitive in a declaration (not included in the film) which should put all modern-day “textualists” to shame, and send them scampering into the shadows. Marshall wrote in the McCulloch decision:

This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which a government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly….

Nonetheless, enough of Marshall’s actually thinking comes through in the film, to make the point quite understandable for the viewer.

And again, the crucial point here is that Marshall views the Constitution as a statement of principles, not a pronouncement on the various hot-button “issues” of the day.  Which is why Marshall is famous for having ruled in a number of cases on an “issue” which seemed to be a win for his adversaries (such as in Marbury vs. Madison in which Jefferson won the tactical point), but where Marshall established a principle which endured for the ages  (i.e., the principle of judicial review).

An Enduring Legacy

In terms of defining Marshall’s lasting legacy, the films concludes on a powerful note, by suggesting that Marshall’s legacy is nothing less than the preservation of the Union itself.  This, despite Marshall’s despair in his last years – under the Jackson presidency– that the Constitution and the Republic could not last.

Abraham Lincoln

Here is the penultimate section of the film:

Narrator: But Marshall’s ideas prevail, even in the middle of the Civil War. More than 40 years earlier, he had declared in McCulloch v Maryland that…

Marshall: “The government of the Union is emphatically and truly a government of the people. In form and substance, it emanated from them, it’s powers are granted by them and ought to be exercised directly on them and for their benefit….”

Abraham Lincoln: “…that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.”

Narrator:  Lincoln’s Gettysburg address echoes Marshall’s words and affirms the purpose of his life, defending the United States and the Constitution that holds it together.

*  *  *  *

In the second part of this review, we shall take up one of the most puzzling features of the film: Brookhiser’s featuring of Paul Finkelman, a man who has been disparaged as an “itinerant professor” who has devoted a great deal of time to proclaiming Marshall’s jurisprudence was dominated by the fact that he was a slave-owner who loved slavery and hated Blacks –a provably false claim. We will explore this in depth, the next time.

[i]       Prof. Christine Desan, Harvard University; Judge Guido Calabresi, U.S. Court of Appeals for the Second Circuit; Prof. Kent Newmyer, University of Connecticut; Risa Goluboff, Dean, University of Virginia Law School; Jeff Rosen, President & CEO, National Constitution Center, Philadelphia.

[ii]      U.S. Senator Joshua Hawley (R-MO); Prof. Randy Barnett, Georgetown University; Prof. Kent Newmyer, University of Connecticut.

[iii]     Prof. Kate Stith, Yale University; Prof. Christine Desan, Harvard University; Judge Guido Calabresi, U.S. Court of Appeals for the Second Circuit; Prof. Kevin Walsh, University of Richmond (Virginia); Jeff Rosen, President & CEO, National Constitution Center, Philadelphia.

[iv]    In the background interview, Alito had said that the idea of the “living Constitution” came from Woodrow Wilson and the Progressives. Alito also said – not incorrectly – that Wilson was the U.S. President with the most flawed view of the Constitution, by way of noting that Wilson was the only President with a Ph.D. degree. He also said that in his view the President with the deepest understanding of the Constitution was Abraham Lincoln, who had no formal legal education at all.