John Marshall at 250
deb...@comcast.net
By GEORGE F. WILL
A NATION'S IDENTITY consists of braided memories, which are nourished
by diligence at civic commemorations. It is, therefore, disappointing
that at this moment of keen interest in the Supreme Court and the
office of chief justice, scant attention has been paid to the 250th
anniversary of the birth of the nation's greatest jurist, Chief
Justice John Marshall.
The oldest of the family's 15 children, he was born Sept. 24, 1755,
into Virginia rusticity where women pinned their blouses with thorns.
Yet he developed the most urbane and subtle mind of that era of
remarkable state craft. He was a member of Virginia's ratifying
convention, and in nearly 35 years as chief justice, he founded
American constitutional law.
That kind of legal reasoning by Supreme Court justices is a continuous
exegesis of the Constitution and is sometimes not easily distinguished
from a continuing writing of the document. Marshall is the most
important American never to have been President.
Because of his shaping effect on the soft wax of the young republic,
his historic importance is greater than that of all but two Presidents
- Washington and Lincoln.
Without Marshall's landmark opinions defining the national
government's powers, the government Washington founded might not have
acquired competencies - and society might not have developed the
economic sinews - sufficient to enable Lincoln to preserve the Union.
Article I, Section 8, enumerates Congress' powers, and then empowers
Congress "to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers."
Marshall's capacious construction of the "necessary and proper"
clause shaped the law, and the nation's consciousness of itself.
Did Congress have the power - unenumerated but implied - to charter
a national bank? In 1819, 42 years before Lincoln grappled with
unprecedented exigencies, Marshall ruled:
"Throughout this vast republic, from the St. Croix to the Gulph of
Mexico, from the Atlantic to the Pacific, revenue is to be collected
and expended, armies are to be marched and supported. The exigencies of
the nation may require that the treasure raised in the north should be
transported to the south. . . . Is that construction of the
constitution to be preferred which would render these operations
difficult, hazardous, and expensive?"
Two years later he held that "we are one people" in war, in making
peace and - third, but not of tertiary importance - in "all
commercial regulations."
The Framers' fundamental task was to create a federal government with
powers impervious to encroachments by the states. The Framers had been
frightened by the states' excesses in using political power on behalf
of debtors against creditors and to limit competition by mercantilistic
practices such as granting monopolies.
Marshall made constitutional law a bulwark of the sanctity of
contracts, the bedrock of America's enterprise culture. And by
protecting the private rights essential to aspirational individualism,
Marshall's court legitimized an inequality - not of opportunity but
of outcomes - compatible with a republic's values.
When in 1801 Marshall was nominated to be chief justice - one of the
last things, and much the best thing, President John Adams did - the
nation still largely had an Articles of Confederation mentality.
Formally, it was a nation; emotionally - hence, actually - it was
still in many ways many countries, most states being older than and
more warmly embraced than the nation.
Marshall's jurisprudence built the bridge to 1862, the year it became
clear that many men would have to die in a protracted conflict to
preserve the Union and that many would be willing to do so.
Marshall had been willing to die to help midwife the nation's birth,
seeing much hard action during the Revolutionary War.
Amiably sociable and broadly tolerant, he had friends of vastly
different political persuasions, and the only adversary he seems to
have steadily disliked was a second cousin named Thomas Jefferson, in
part because of Jefferson's partisan criticisms of Washington, who
Marshall celebrated, in an immense biography, as the symbol of a
national identity transcending state loyalties.
Among the many recent fine biographies of America's Founders, none is
finer than Jean Edward Smith's "John Marshall: Definer of a
Nation" (1996).
Smith locates Marshall's greatness in this fact: Unlike Britain's
constitutional documents, which are political documents that it is
Parliament's prerogative to construe, the U.S. Constitution is a
legal document construed by courts, not Congress.
When judicial supervision of our democracy seems tiresome, consider the
alternative. Marshall's life of strong, consequential prose had,
Smith writes, a poetic coda.
Marshall died in Philadelphia, birthplace of the Constitution into
which he breathed so much strength and meaning. The Liberty Bell, while
tolling his death, cracked. It never rang again.
Barbara Sherrill
<deb...@comcast.net> wrote in message
news:1127754603.9...@g47g2000cwa.googlegroups.com...
> Time to remember our greatest jurist
> By GEORGE F. WILL
>
>
>
>
> A NATION'S IDENTITY consists of braided memories, which are nourished
> by diligence at civic commemorations. It is, therefore, disappointing
> that at this moment of keen interest in the Supreme Court and the
> office of chief justice, scant attention has been paid to the 250th
> anniversary of the birth of the nation's greatest jurist, Chief
> Justice John Marshall.
>
>
This is interesting. Thank you for sharing this....
Now a bit of his family history...
His name sake, who is also a distant cousin; is burried at the Greathouse
Cementary in Belton Texas. This name sake drove a wagon with women and
children out of the Alamo before it fell. Along with one other man. They had
returned afterwards, then they found General Sam Houston and told him what
had happened at the Alamo.
This distant cousin fought at the Battle of San Jacinto when Santa Ana, was
captured. He went from there to what is now known as Bell County and set up
housekeeping with wife number 3. Lucendia Greathouse Marshall. How do I know
all of this about SCCJ Marshall's, name sake?? His namesake is my (4) Great
Grandfather.
On my recent trip to Temple, Texas for my Grandmother's funeral we were
able to pay our respects to Grandpa Marshall.... Mam Maw is burried about 50
feet away from him. Thanks to my grandfather; Grandpa Marshall has a
historical marker at his grave site. Paw Paw wanted to make sure that was
taken care of before he had passed away.
*** Grandpa Marshall's; Uncle died at the Alamo
**SCCJ Marshall is distant cousin of Thomas Jefferson.