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Erik Visits an American Grave, Part 244

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This is the grave of John Marshall.

Born in 1755 in Germantown, Virginia to an upwardly mobile father who continued to move west, eventually to Kentucky after his oldest son (of 15 children) grew up, John Marshall became simply the most important jurist in American history. He didn’t have that much formal education, which wasn’t uncommon for the time period, but showed great promise, went to school for one year with James Monroe, and studied for the law. He served under George Washington during the Revolutionary War and they became close. He became a captain and was in the military from 1776-80. After that, he finished his law studies under the legendary George Wythe and was admitted to the bar later that year. As was hardly uncommon among the Virginia elite, which Marshall was kind of on the margins of initially, the law was simply an entryway into politics. He was first elected to the Virginia House of Delegates in 1782 and was particularly active in defending the Constitution against the anti-Federalists led by Patrick Henry. Foreshadowing his later career, he was particularly vigorous in defending Article III, creating the federal judiciary.

Unlike many of the Virginia elite, but not like his mentor George Washington, Marshall identified with the Federalist Party instead of the Jeffersonians. He would always believe in a more robust central government that could run a growing economy effectively. Soon, he had great power to create much of that vision. A very successful lawyer and friend of Washington meant that he had offers. Washington wanted to name him Attorney General in 1795 and then offered him the ambassador to France in 1796. He declined both. He remained in private practice until the Adams administration. He agreed to represent the nation in its claims against France; Talleyrand demanding a bribe from the weak nation led to the XYZ Affair and growing anti-French sentiment. Yet upon return, Marshall opposed the Alien and Sedition Acts, that black mark against Adams that could easily have ruined the American republic. He remained one of the Federalist Party’s brightest stars, but he kept turning down offers. First, he turned down a 1798 offer for a Supreme Court, recommending Bushrod Washington instead. He briefly served in Congress. Adams then nominated him to be Secretary of War, but instead withdrew it and gave him State in 1800. Interestingly, when Adams nominated him to be Chief Justice in 1801, he held on to his Secretary of State position for the last few months, meaning he was holding both offices.

Marshall defined the Supreme Court. The Constitution is pretty vague on the what the Court was supposed to do and what powers it had. By 1801, these issues really hadn’t been solved. The Court was weak. Marshall changed that. Marshall quickly established the principle of the Court issuing a single deciding decision and he worked over his long career to achieve unanimity in this. He was successful by and large, which is remarkable given that Jeffersonians named nearly every Court justice during his career. In case after case, Marshall made his mark. 1803’s Marbury v. Madison established the principle of judicial review, which greatly angered Jefferson, who thought that should lay with the president. 1810’s Fletcher v. Peck was the first case that ruled a state law unconstitutional, an important precedent that gave the federal government primacy over the states. Dartmouth College v. Woodward, in 1817, protected private corporate charters from state interference, helping to set up the legal structure of capitalism. McCullough v. Maryland, in 1819, established that the states could not tax the federal government and declared the Second Bank of the United States constitutional, creating a critical precedent for a broad interpretation of the Constitution. Cohens v. Virginia in 1821 expanded the Court’s authority to review criminal cases from the states, as well as civil cases. Gibbons v. Ogden in 1824 decided that states could not regulate interstate commerce and had the impact of ending state-run monopolies and promoting the idea that what states do in terms of regulating their own commerce has wide-ranging impact on other states, thus leading to federal supervision.

Marshall also created the framework for Native American relations with the federal government in cases such as Cherokee Nation v. Georgia and Worcester v. Georgia, the last being the case in which Andrew Jackson notoriously made his (possibly apocryphal) “John Marshall has made his decision. Now let him enforce it!” exclamation. Nevertheless, these cases did mean that the federal government had to negotiate treaties with the tribes, as they were “domestic dependent nations.” This is a principle that has always held up, even if largely ignored in terms of the lived experience of federal responsibility toward Native Americans.

Marshall did more to shape the nation than nearly anyone else. This was recognized at the time. Many people wanted him to be president. In the chaotic 1824 election, with the “Era of Good Feelings” collapsing into the Second Party System, there was a serious effort to get Marshall to run for president, but he declined. Marshall also wrote a 5-volume biography of George Washington, his hero and mentor, between 1804 and 1807. Like the rest of the Virginia elite of his generation, he owned many slaves and did nothing to free them, even though he thought slavery was bad. He supported the American Colonization Society efforts to resettle freed slaves in Liberia, not believing that freed slaves could live with whites. In case after case, he defended the rights of slaveholders, although none of those cases were as important as his more landmark decisions. When he died, he gave his manservant the choice of freedom and shipment to Liberia or continued enslavement under Marshall’s children. I am not sure what choice he made.

There is much more to say about Marshall’s legal career and it’s importance to the present. I will leave that to our legally minded commenters to lead that discussion.

Marshall died in 1835, having served as Chief Justice for 34 years. He is buried in Shockoe Hill Cemetery, Richmond, Virginia.

This grave visit was supported by LGM reader contributions, for which I am tremendously grateful. If you would like me to profile more early Founders, you can contribute to offset the necessary expenses here. Patrick Henry is buried in Charlotte County, Virginia and John Jay is in Rye, New York. I would definitely like to profile both of them. Previous posts in this series are archived here.

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