As your agenda indicates, we are here today to tell you about the John Marshall Foundation’s program on Justice in the Classroom. The purpose of the program is to enlighten high school seniors on the life of John Marshall. But we thought that before we tell you about the program we should first tell you something about John Marshall.
In the words of a recent biographer, Marshall was “one of the nation’s greatest statesmen.” Yet, the American people do not realize and, hence, cannot appreciate the magnitude and the importance of his contributions to constitutional government and the cause of freedom at a crucial time in the beginning of this country.
I have often thought that had I been given the choice of a time to live on this Earth, I might well have chosen the period in which our nation was founded. Not that I favor living in the past. But what a wonderful and exciting experience it must have been to live at the time of this country’s birth and fledgling growth.
And what a remarkable group of people took part in the venture. Never before or since in world history have so many political geniuses been gathered in the same place at the same time and engaged in the same noble cause. Surely, a benevolent fate must have smiled kindly upon the American colonist’s hopes for independence and self-government.
How else could we possibly have won the Revolution and produced the Constitution of the United States? Our victory at Yorktown has been termed “unbelievable” and the making of the Constitution has been called “extraordinary.” Both characterizations are undoubtedly accurate, yet neither explains how so much could be achieved by so few in so short a period of time without the aid of some unseen hand.
The making of the Constitution is, by itself, a dramatic story, but it was something that had to happen. When, in 1776, we declared our independence from Great Britain, the burning question then became how we should govern ourselves following our release from a tyrannical monarchy. What resulted in response to that question was the enactment by the Continental Congress of the Articles of Confederation on November 15, 1777.
The Articles represented an agreement of the states, an agreement that was flawed from its inception. Each state retained its independence as a sovereign entity, Congress was granted very limited power, there was no executive or legislative branch, and the power of taxation was grossly inadequate. Jealousy and conflict existed among the states and most Americans perceived themselves as citizens of their chosen states rather than as citizens of a united country. All in all, the Articles produced a very weak government with little sense of purpose or direction.
This deplorable situation existed until a group of men of great vision and wisdom foresaw the need for a rationally designed government. In 1787, Congress convened a meeting in Philadelphia of delegates from the several states for the ostensible purpose of curing the weaknesses of the Articles of Confederation. Instead, in great secrecy, the convention wrote an entirely new constitution which it adopted on September 17, 1787, and which was ratified by the states the following year.
The new document represented not an agreement among the states like the Articles of Confederation but a compact among the people to give the federal government certain limited powers in return for the government’s obligation to protect the liberty and the rights of all the people. The keystone of the new system was its design of a federal government composed of three co-equal branches, executive, legislative, and judicial, with the powers of one separated from the powers of the other two, providing a system of checks and balances unique in governmental structuring.
The Constitution is a remarkable document. Most of the nations of this world live under charters of much more recent origin, yet ours has survived for more than two centuries and gives promise of being around for at least two hundred years more.
To what does the Constitution owe its longevity? Some scholars contend its durability is due to the fact it is rooted in the will of the people. Others argue that it has survived so long because it derives from a higher law and is, in truth, “an institution of nature.”
As I see it, these explanations are much too abstract to explain the endurance of the Constitution. To me, the durability of the Constitution lies in what it says. And what does it say? It says it is ordained and established “to secure the blessings of liberty to ourselves and our posterity.”
Beautiful words, aren’t they? But they are working words, too, meaning that, as Americans, our freedom is assured and our rights are guaranteed forever.
How wonderful is our freedom! How great are our rights! We can assemble, as we do here this morning, without anyone’s leave. Within reason, we can say what we want, write as we wish, and worship the way we please, all without fear of reprisal. We can select our own leaders, petition for the redress of grievances, remain free from unreasonable searches and seizures, stand upon a presumption of innocence, demand trial by jury, and insist upon the aid of counsel, all as a matter of course. And we take for granted that we can travel where we will, work at what we might, and associate with whom we choose. In short, we truly live in freedom.
All this is true because, although born in rebellion, our freedom has matured and flourished under the protection, not of military might, but of a rule of law. And it is the Constitution that, in word and in fact, has made the rule of law “the supreme law of the land.”
And, how did the Constitution achieve this position of preeminence? It was not always an object of reverence and respect. Indeed, in its infancy, it was an object of ridicule, seemingly destined for oblivion.
Now, I know that no one person is responsible for the Constitution’s prestigious position. But, in my opinion, John Marshall, in his role as Chief Justice of the United States, is due much of the credit. While James Madison, with his authorship, may have given the Constitution a body, and George Mason and Patrick Henry, with their insistence upon a bill of rights, may have given it a heart, John Marshall, with the use of his brilliant analytical mind, gave it a soul and made it the greatest political document the world has ever known.
Most Americans think of John Marshall only as a judge. But before he assumed that role, he engaged in a string of activities that helped prepare him to be Chief Justice of the United States. He was a hero of the American Revolution a skilled practitioner of the law, a respected member of the Virginia House of Delegates, a superb member of the Virginia Ratifying Convention of 1788, a successful diplomat, an outstanding member of Congress, and a distinguished Secretary of State in the cabinet of President John Adams.
John Marshall was born in Fauquier County in the northwestern part of Virginia on September 24, 1755, when the county was considered the frontier. When he was eight, his family moved to another part of the county and he, his parents, his nine siblings, and an Episcopal minister occupied a house called The Hollow. It is still standing, and it is hardly the size of a modern two-car garage. He was tutored by the minister for one year, was sent to an academy in another county for one year, and was otherwise self-taught, becoming devoted to the classics.
Marshall’s career in public service began in the spring of 1775, a few weeks after shots were fired across the village green in Lexington, Mass. At age 19, he joined a company of volunteers on the muster field in Fauquier County. He was appointed lieutenant, he instructed the men in the manual of arms, and he encouraged them to follow him in joining the Minute Battalion, which was about to be formed. He later became a captain in the Continental Army.
Marshall’s war experiences carried him from the Battle of Great Bridge near Norfolk in Virginia to the Battles of Brandywine and Germantown in Pennsylvania, through the winter of 1777-78 at Valley Forge, to the Battle of Monmouth in New Jersey on June 28, 1778. But one aspect of his war experiences stands out – while at Valley Forge, he became part of George Washington’s command group and, actually, Washington’s protégé, a fact that would dramatically affect the remaining course of his life and, indeed, the history of this country.
Eleven thousand men had reached Valley Forge but only eight thousand departed. Three thousand died, not from British guns but from freezing, starvation, and diseases that ran rampant through the camps because of lack of sanitary facilities. But Marshall maintained an optimistic attitude, buoyed the spirits of his comrades, and lessened their hardships.
George Washington and John Marshall both came away from Valley Forge convinced that the conditions the army suffered were not because there was a lack of food and supplies in the country but because the Continental Congress, operating under the Articles of Confederation, was too weak to provide them. This convinced these two great men that what this country needed was a strong central government, and they would spend the rest of their lives trying to fulfill that need.
Following the Battle of Monmouth, Marshall did not engage in further fighting but served the next year as deputy judge advocate. Awaiting a command assignment, he decided to visit his father, Colonel Thomas Marshall, who was stationed at Yorktown. There, he met a young woman, Polly Ambler, whose family lived next door to Colonel Marshall. For John and Polly, it was love at first sight, but he felt he could not propose marriage then because she was only thirteen (he was twenty-four), and he had to find a way to make a living to support a wife.
Marshall enrolled at the College of William and Mary, studied law under George Wythe, the country’s first and most distinguished professor of law, and was inducted into Phi Beta Kappa. From Wythe, Marshall learned many of the basic principles of law he later put to use as Chief Justice of the United States.
While in school, Marshall’s mind must have strayed at times for he wrote Polly’s name and other entries concerning her in the margin of his notebook. After a few weeks at William and Mary, Marshall left school and returned to Fauquier, where he was admitted to the practice of law in August 1780.
Marshall soon decided to move to Richmond so, he told his parents, he could practice in the state’s high courts. But, he had also learned that the Ambler family had moved to Richmond, and this was bound to have influenced his decision to move.
When Marshall moved to Richmond, he started his law practice and was reunited with Polly. He would wait until January 3, 1783, however, when she was still only sixteen, to make her his wife.
When Marshall proposed to Polly at her parents’ home, she meant to say “yes,” but for some inexplicable reason she said “no.” He then turned on his heel, announced he was going back to Fauquier to practice law, and strode from the house.
Polly’s cousin, who lived with the Amblers, hearing her sobs, went to her and attempted to console her. Picking up a pair of scissors from a nearby table, he snipped off a lock of her hair, and ran after Marshall with the lock of hair in his hand. Thinking Polly had sent the lock to him, Marshall returned and re-proposed. This time, Polly said “yes.”
The lock of hair was placed in a locket that Polly wore around her neck until she died. Marshall then wore the locket around his neck until he died. It is now on display at the John Marshall House, which Marshall built here in Richmond in 1790 and lived in for 45 years. The locket is a beautiful little thing, surpassed in its beauty only by the story of the romance of the two people who wore it.
Marshall soon became a leader of the Richmond bar. Recognized as a lawyer’s lawyer, he was often employed by other attorneys to argue cases in the state’s high courts. He was once described as the most renowned of all the lawyers in Richmond and another time as one of the most eminent lawyers in the state. He had the uncanny ability to get to the heart of a case, analyze it with clarity, and produce an argument both logical and persuasive.
Marshall soon entered politics. He was elected to the Virginia House of Delegates in 1782 and then chosen to serve on the Privy Council, a powerful advisory body to the governor. He retired from the House in 1785 to run for the office of Attorney General of Virginia and suffered his only political defeat.
He was reelected to the House of Delegates and was instrumental in securing a favorable vote for a convention to consider ratification of the Constitution of the United States. Elected as a delegate to the convention held in June 1788, he was chosen by the proponents of ratification to debate Patrick Henry on the judiciary article, a very important role and also a formidable task for anyone but especially for one so young and inexperienced as Marshall. His success was reflected in a favorable vote for ratification and made him, at age 32, a prominent figure nationally.
Marshall did not seek another term in the House of Delegates. However, his services were constantly in demand. He rejected offers of appointment from President George Washington to be United States Attorney for Virginia, Attorney General of the United States, and Minister to France. Washington would leave the presidency without fulfilling a desire to place Marshall in high office.
However reluctant he might have been to return to public service, Marshall could not long stay aloof. After the French Revolution, relations between France and the United States deteriorated. The excesses of the revolutionaries frightened even France’s warmest friends, and the fears heightened when France began attacking American ships.
John Adams, who was president at the time, sought desperately to avoid war with France and attempted to settle matters through peaceful means. Unsuccessful in the attempt, he asked John Marshall, Charles Cotesworth Pinckney, and Elbridge Gerry in 1797 to go to France as “envoys extraordinary and ministers plenipotentiary” in an effort to smooth matters. Although inclined at first to refuse the appointment, Marshall finally accepted.
The three envoys would spend many frustrating, humiliating, and tiring months in France, ultimately becoming enmeshed in the infamous XYZ affair. X, Y, and Z were the names given to three agents France’s foreign minister, Charles Maurice de Talleyrand, sent to deal with the Americans. The Frenchmen demanded that the Americans pay a $250,000.00 bribe just to get to see Talleyrand and that they commit the United States to make a multi-million dollar loan to France just to get negotiations underway. The Americans responded: “The answer is no! No, not a sixpence!” This response was translated by American newspaper editors as “[M]illions for defense, but not one cent for tribute.”
Leaving Pinckney and Gerry in France, Marshall returned home thinking his diplomatic excursion had been a failure. But war with France was averted and, much to Marshall’s surprise, he was welcomed home as a national hero. In gratitude, President Adams offered to appoint Marshall as an associate justice of the Supreme Court of the United States, but Marshall declined the appointment, believing, as many people believed at the time, that membership on the court lacked prestige.
Instead, he returned to Richmond determined to resume his law practice and a normal life with his family. Soon, however, he was approached to run for Congress. He refused, but George Washington was among those anxious to see Marshall run, and he summoned the reluctant candidate to Mount Vernon. En route, Marshall tore his only pair of trousers and had to borrow a pair from his host.
For three days, Marshall resisted Washington’s entreaty that he run for Congress. He planned to arise early on the fourth morning and to leave Mount Vernon before anyone else was awake. However, as he stepped out onto the portico, there stood his former commander-in-chief in full military regalia. Washington told Marshall that he, too, had wanted to leave public life for good when he returned home after the war, but he responded to the public’s call to duty to serve as president of the United States, and it was Marshall’s duty to make the same response.
Marshall finally succumbed. He was elected and took his seat in the House of Representatives on December 1, 1799. He quickly became a leader in the House. One of his floor speeches was described as “a perfect model of argumentative eloquence” and one that “deserve[d] to be ranked among the most dignified displays of human intellect.” Even more important, Marshall was designated to announce to the House that George Washington had passed away on December 14, 1799.
Shortly before Congress adjourned in May 1800, Marshall stopped by the War Department to inquire about a matter for a constituent. He detected a coolness in the attitude of the Secretary of War, whom he considered a good friend. As he was leaving the office, Marshall asked the Secretary’s clerk what was wrong, and the clerk asked Marshall if he had heard the news. When Marshall said “no,” the clerk, much to Marshall’s consternation, told him that President Adams had on May 7 nominated him to replace the Secretary of War.
Marshall asked Adams to withdraw the nomination, but the president refused, and the Senate confirmed Marshall on May 9. Then, three days later, the Secretary of State resigned, and Adams nominated Marshall for that position. The Senate confirmed Marshall on May 13, he accepted that appointment, and he took office at an annual salary of $3,500.00, with a staff of nine persons, comprising the entire Department of State at the time.
Marshall served as Secretary of State for ten months at the very end of John Adams’ term of office. During his tenure, Marshall initiated a policy, later to be enunciated in the Monroe Doctrine, telling other nations: “Don’t bother us, and we won’t bother you.”
Although nearing the end of his term, Adams decided to make one last appointment before leaving office. Oliver Ellsworth, who had been serving as Chief Justice of the United States, fell ill and resigned in December 1800. Adams offered the post to John Jay, who had been the first Chief Justice but who had resigned to run for Governor of New York, a position he considered more prestigious than that of Chief Justice. When Jay refused reappointment to the Court, Adams called upon Marshall to recommend someone. Marshall said he had no suggestions other than one Adams had rejected previously. Adams then said to Marshall: “I believe I must nominate you.
Adams made the nomination on January 20, 1801, the Senate unanimously confirmed Marshall on January 27, and he was sworn in as Chief Justice of the United States on February 4. At Adams’ request, however, Marshall continued as Secretary of State and also served as Chief Justice for four weeks, and then became Chief Justice full time.
About a month after he assumed office as Chief Justice, Marshall had the duty of swearing in Thomas Jefferson as the new president. Presidential inaugurations were held in March back in those days. This may not have been a joyful occasion for either man. They had become bitter political enemies because of their differing views on what kind of government the nation should have, with Marshall espousing a strong central government and Jefferson advocating a weak central government. Also, the inauguration followed a bruising election fight between Jefferson as a member of the New Republican party and the incumbent president, John Adams, as a member of the Federalist party, which was also the party of John Marshall. Furthermore, Jefferson was furious that Adams had nominated Marshall in the closing days of the Adams administration instead of leaving the nomination to Jefferson.
In any event, the inauguration ceremony and the accompanying transfer of power from one political party to another was made peacefully, a compliment not only to Marshall and Jefferson but also to the members of their respective political parties.
John Marshall’s judicial career is unsurpassed in the history of American jurisprudence. At the time he became Chief Justice, the Constitution did not enjoy the high level of respect it enjoys today. Indeed, one observer described it as “a frail and worthless fabric.” Nor was the Supreme Court held in the high public esteem that it enjoys today. Indeed, it was described by one observer as “an object of derision, even contempt.”
Given this situation, what did John Marshall do? Well, he took a Constitution with a dubious future, transformed it into an enduring charter of fundamental law, and adapted it to “the various crises of human affairs.” He took a court lacking in prestige and converted it into an equal partner in the tripartite arrangement that is so basic to our system of government. He took a federal judiciary that politicians had sought to make the subservient handmaiden of the other two branches of government and gave it the freedom and independence that is so essential to its continued existence.
All this Marshall accomplished with a deep sense of humility, an abiding air of modesty, and a noble character exceptional for its unpretentious simplicity. To these great attributes were added a superb intellect and a superior power of reasoning. Even more, Marshall was a prodigious worker, often turning out a greater number of opinions than all his associates combined. Without aid of legal precedent, but passionately motivated to see the new Constitution work and the infant nation survive, Marshall became the “expounder of the Constitution” and the father of American constitutional law.
With the facility of his fertile mind and the clarity of his bold pen, in one major opinion after another, Marshall established the Constitution as the supreme law of the land and his court as the final arbiter of that law.
Throughout his career on the Supreme Court, Marshall postulated that America had founded a nation of laws and not of men, and he exalted the Constitution to the pinnacle of authority as the ultimate rule governing public affairs.
Above all else, Marshall believed the judiciary should be free and independent. In an 1821 letter to one of his associates, he wrote:
That in a free country with a written constitution any intelligent [person] would wish a dependent judiciary … would astonish me, if I had not learnt from observation that with many [people] the judgment is completely controlled by the passions.
And in a speech before the Virginia Constitutional Convention of 1829-30, he said:
The judicial department comes home in its effects to every man’s fireside; it passes on his property, his reputation, his life, his all. Is it not to the last degree important that [a judge] should be rendered perfectly and completely independent, with nothing to control or influence him but God and his conscience?
In his long career as Chief Justice of the United States, spanning 34 years, John Marshall always strove for excellence; he ever sought to promote respect for the law and the courts; and he continuously endeavored to advance the concept of human dignity. His ideal of government was noble, almost reverent. He once said that “the principles of good government … are … [a] strict observance of justice and public faith, and a steady adherence to virtue.”
Marshall liked people and was well liked in return. He had a most affable and engaging manner and never appeared arrogant or overly impressed with his own importance. The story is told that he was on the way home from the market one day, dressed in nondescript clothing, when he encountered an elderly man carrying a large turkey. The man asked Marshall for help, and Marshall carried the turkey to the man’s door, refusing an offered tip for his assistance. The man was appalled when a bystander asked if he knew his benefactor was the Chief Justice of the United States.
Marshall hoped upon his retirement to return to Fauquier, the county of his birth. Plans were made to build an addition to the home of one of his sons for his use, but his hopes would not be fulfilled. One Sunday afternoon in June 1835, while walking from his home in Richmond to visit Polly’s grave in a nearby cemetery, he collapsed from exhaustion and was carried home by two men who happened to pass by. He was taken to Philadelphia for medical treatment but died there on July 6, 1835.
To gauge the extent of Marshall’s legacy, one need only guess what this country would have become without him. Had John Adams left the choice of the Chief Justice to Thomas Jefferson, the latter would most likely have nominated Spencer Roane, a member of the Court on which I serve. Roane, like his mentor, Jefferson, believed we should have a weak central government, with the primary power vested in the states. Marshall, on the other hand, like his mentor, George Washington, believed in a strong central government, with residuary power vested in the states. I have only one question for you: Where do you think we would be in this complicated world today if Spencer Roane and not John Marshall had become Chief Justice in 1801 and had left this country saddled with a weak central government for two centuries? I think the question answers itself.
A recent biographer has said that Marshall would be the unanimous choice for the title of “the definer of a nation.” And Oliver Wendell Holmes said: “If American law were to be represented by a single figure, sceptic and worshipper alike would agree without dispute that the figure could be but one alone, and that one John Marshall.” Now, if you have any question about where I stand, I don’t mind telling you I am an ardent worshipper, and I say there can be no doubt we are a nation governed by a rule of law because Marshall lived, and for that greatest of all legacies he is entitled to the eternal gratitude of every American.
