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Cancelling John Marshall

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Various institutions are in the process of either removing Supreme Court justice John Marshall’s name from their own, or are considering doing so.

The reason for this is that a recent book by Paul Finkelman has revealed something that was previously pretty much ignored if not actively covered up by Marshall’s many previous biographers: The most important judge in American history owned hundreds of slaves. And, unlike some other founding figures, Marshall’s involvement in the slave trade wasn’t marginal or ambivalent. Marshall didn’t inherit any of his slaves: he bought and sold them enthusiastically, trading them like cattle, and breaking up families in the process.

But, per Finkelman, the historical situation is even worse than this. Not only did Marshall — an immensely wealthy man who freed none of his slaves during his lifetime or even at his death — support the slave trade in the most direct and self-enriching way: he also veered drastically from his strongly anti-formalist jurisprudential tendencies to rule against slaves in every Supreme Court case in which he had an opportunity to address the question of America’s peculiar institution:

Marshall’s greatness stemmed from his creativity and courage. He challenged presidents, popular feelings, and powerful state politicians. He infuriated Thomas Jefferson by derailing his attempt to have Aaron Burr hanged for treason. He withstood vicious attacks from states’ rights politicians in his home state for his nationalist opinions in M’Culloch v. Maryland and Cohens v. Virginia. Neither his supporters nor his opponents ever accused Marshall of being timid or narrow in his jurisprudence. He was the “Great Chief Justice” because he was bold, fearless, forceful, and often brilliant.

But Marshall’s opinions in slave cases were narrow, cramped, timid, and consistently hostile to freedom.9 Justices bring to the Court political, social, economic, and personal interests. Marshall’s nationalist jurisprudence emerged from his experiences as a Revolutionary War officer, diplomat, and Federalist politician. His commercial and economic jurisprudence reflected his vast landholdings and investments in banks, canals, and railroads.

His jurisprudence on slavery and race similarly reflected Marshall’s life as slave owner and his deep hostility to the very presence of free blacks. Marshall’s massive personal investment in human bondage and his nonjudicial public life inform his slavery jurisprudence.

Here are just a few details regarding that massive personal investment. Finkelman addresses the standard historical narrative that Marshall owned no more than a dozen household slaves, i.e., he was no more than a typical urban slaveowner in early 19th century Virginia:

If Marshall had possessed only a dozen slaves while living in Richmond, as his biographers claim, this would have been an enormous commitment to human bondage. But Marshall was far more than an urban master with a “modest number of slaves” taking care of his family’s daily needs.18 By 1830 he owned more than one hundred and fifty slaves, and this was even after giving about seventy slaves to his sons Jaquelin and Edward in the 1820s and probably also giving slaves to his other sons and relatives. In the Virginia constitutional convention, he vigorously supported counting slaves for representation in the state legislature, to preserve the power of the planter aristocracy. When he died, he did not free the dozen or so personal slaves who had loyally served him throughout his life, much less any of those toiling on his plantations.“19 Marshall bought and sold slaves throughout his life, which meant many of his slaves were exiled from family and friends. This is a kind of cruelty that exceeds physical punishment. For example, in 1787 Marshall recorded buying a woman and her child without commenting on whether the purchase forced her to leave her husband and perhaps other children.20

Marshall’s early account books, although sometimes vague and incomplete, show his aggressive accumulation of slaves. In October 1783 Marshall bought Moses for £74. On July 1, 1784, he paid just over £90 for Ben. Three days later, on the Fourth of July—ironically, the first anniversary of the signing of the Declaration of Independence since the Revolution ended—he bought two slaves for £30, probably children named Edey and Harry. He also paid £20 “in part for two servants.” In September he paid another £25 for unnamed and uncounted “servants.” In November he bought Kate and Esau.21 Thus from October 1783 to November 1784 Marshall bought nine named slaves plus various unnamed and uncounted “servants.” These were in addition to a few slaves he already owned in Richmond, nine slaves in Henrico County, and “other slaves . . . on his Fauquier County plantation.”22 In April 1787 he bought Israel for £55 and in May paid another £55 for “a Woman bought in Gloster.” On June 3 he made a down payment of just under £11 for two more slaves and paid for the burial of Sam; there is no record of when he acquired Sam. As he had in 1784, Marshall spent July 4, 1787 buying slaves—this time a woman and her child, both of whom he passed on to his father-in-law Jaquelin Ambler. That day he also paid money he owed on another slave he had purchased. In August he paid another £30 on slaves he had bought in Gloucester and he also bought an unnamed “negroe man” for £47.23

His account books show he purchased fifteen enumerated slaves for himself, and a few for others, over a four-year period. But there are also purchases with no specific number of slaves attached. Initially he recorded the names of slaves he purchased, but he gradually abandoned this practice. He bought a “woman,” a “negroe man,” and “two slaves.”  In October 1789 he paid £38 for “a negroe woman.”24 Occasionally he still noted names, such as the purchase of Hannibal for £70 in March 1789 and the purchase of “Negro Bob” for £50 in January 1790. Emblematic of his inconsistent use of names for the human being he bought, was the expenditure of £130 in June 1790 “for Dick and others.”25

Marshall’s account books and the Richmond property records, incomplete as they are, illustrate his relentless investment in slaves. In the 1780s, just married and with no children, he bought far more slaves than he needed to run his household. By the 1790s with many more slaves purchased for his estates in Henrico and Fauquier counties, Marshall on his way to becoming a wealthy southern planter, owning hundreds of slaves.

Note that Marshall was the Supreme Court’s chief justice until his death in 1835, by which point slavery was well on its way to becoming the central issue in American law and politics. Although Marshall was tactful enough to keep any encomia to the practice out of his numerous functionally pro-slavery opinions, the immense personal profit he very intentionally pursued from buying and selling slaves, and his massive moral failure to resist the institution as a judge, are both gigantic blots on his record, that are only now beginning to be acknowledged.

But of course on the American right wing even mentioning this topic is nothing but Cancel Culture ™. Here’s law professor Josh Blackman at the Volokh Conspiracy:

In 2015, I queried whether a movement would form to take down statues of Chief Justice John Marshall. After all, he was an ardent slaveholder. Fast forward five years. In August 2020, I wrote a post titled “Cancelling John Marshall?” I questioned how long it would take for the purges to reach the Great Chief Justice. I’m sure some readers rolled their eyes. By now, you should recognize my predictions have a bad tendency to come true.

Blackman then catalogs some of the current attempts to remove Marshall’s name from various institutions. He then continues:

In any event, I told you so. And the purges will not stop with John Marshall.

He then goes on to make a careful and nuanced argument that engages with the difficult moral and practical questions raised by the necessary re-evaluation of revered historical figures in American life . . . Just kidding folks!

Blackman has absolutely nothing to say on that subject, because this is all just Cancel Culture, and therefore requires no further analysis or discussion.

“Cancel culture” is just another handy right wing phrase to help people avoid the Thoughtcrime of engaging in thought of any kind, which in the conservative world is always the original intellectual sin.

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