John Marshall, the Sedition Act, and Free Speech in the Early Republic

By Costa, Gregg | Texas Law Review, March 1999 | Go to article overview

John Marshall, the Sedition Act, and Free Speech in the Early Republic


Costa, Gregg, Texas Law Review


John Marshall, the Sedition Act, and Free Speech in the Early Republic^

I. Introduction

Oliver Wendell Holmes once observed, "[I]f American law were to be represented by a single figure, s[k]eptic and worshipper alike would agree without dispute that the figure could be but one alone, and that one John Marshall. "1 Recent Marshall biographer Jean Edward Smith credits Marshall with defining the entire American constitutional system.2 And Joseph Story succinctly captured Marshall's impact: "His proudest epitaph may be written in a single line-`Here lies the expounder of the Constitution. "'3

In the twentieth century, the Constitution that Marshall expounded has been the source of frequent controversies regarding judicial enforcement of the First Amendment's free speech guarantee.4 Although free speech issues have become a central focus of the document that Marshall helped define, surprisingly little attention has been paid to the former Chief Justice's views on free speech. This is likely a result of the prevailing perception that early American leaders had little concern for free speech issues.5 Perhaps another reason why Marshall's free speech views have been neglected is that there were no free speech cases during his tenure on the Supreme Court.6

Marshall's views are of particular import because of the increasing academic, judicial, and political focus on original intent.7 Although Marshall did not attend the Constitutional Convention, he is recognized as a Founder due to his involvement in the early development of American political thought.8 Furthermore, Marshall was a constitutional ratifier in Virginia and thus his views are relevant to the inquiry of ratifiers' intent, which is often seen as a more relevant concern than Framers' intent.9 In its brief for the seminal case of Debs v. United States,10 the Justice Department demonstrated the importance of Marshall's free speech views when it cited Marshall's supposed position on the constitutionality of the Sedition Act11-the one episode involving Marshall's free speech views that has generated attention.12

The minimal amount of scholarship that has focused on Marshall's First Amendment views falls into two camps. There are "law office history"'3 accounts that fail to even discuss the controversy surrounding Marshall's alleged authorship of the Report of the Minority on the Virginia Resolutions'4 (hereinafter Minority Report)-a legislative defense of the constitutionality of the Sedition Act in an attempt to defeat adoption of the Virginia Resolutions.15 While they acknowledged the controversy, the editors of the Marshall Papers refused to attribute authorship of the Minority Report to Marshall, with the result that the most notable compilation of Marshall's writings fails to include what many consider to be this unflattering piece.16 After thoroughly discussing Marshall's policy opposition as a congressional candidate to the Sedition Act, the recent biography, John Marshall: Definer of a Nation, fails to even mention the Minority Report and states that "Marshall held his fire" in the aftermath of the Virginia Resolutions's attack on the constitutionality of the Sedition Act.17 Still another Marshall biographer attributes partial authorship of the Minority Report to Marshall, but then argues that Marshall did not write those portions of the Minority Report that have been subject to the most criticism.18 By ignoring the Minority Report, these accounts reach the oversimplified conclusion that Marshall was an unwavering supporter of individual liberties.19

On the other hand, those historians that do attribute to Marshall authorship of the Minority Report view that document as conclusive and final evidence of Marshall's free speech views. For example, Leonard Levy, one of the most prominent free speech historians, concludes: "Marshall . . . believed not only in a Blackstonian understanding of the freedom of the press but even in the constitutionality of the Sedition Act of 1798. …

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