John Marshall: Presidential Power and Foreign Intelligence

Article excerpt

John Marshall Foundation Medal in Law

Richmond, Virginia

September 27, 2008

A Speech Given on Behalf of Griffin B. Bell by his Grandson, Griffin B. Bell, III*

I am gready honored to be recognized by the John Marshall Foundation as worthy of the medal in the name of our nation's Great Chief Justice, John Marshall. I wish I could be present to share this day with you. As I think of the contributions of great Americans who were present at the creation of our country, Jefferson, Hamilton, Madison, Franklin, and Adams, none - save Washington - ranks higher in my estimation than John Marshall.

We all accept today that John Marshall deserves the enduring gratitude of our nation for his constitutional decisions that helped to mold a strong federal government with a respected judiciary as a co-equal branch of government. I don't plan to talk to you today about his precedent-setting decisions. You are well aware of them, I am sure, and there are too many to discuss in any event. Marshall wrote over 500 of the Court's 1,100 decisions during his thirty-five years on the Court, and many were groundbreaking. He dissented only eight times.

Instead, I would like to discuss today an aspect of Marshall's views that is perhaps less well known but nonetheless as relevant to current events today as it was to his times. I am referring to his belief, both on the Court and beforehand, in the preeminence of the Executive Branch in the conduct of foreign affairs and the importance of making room for die President to conduct those affairs without excessive interference from Congress or the Judiciary.

Marshall reached these views not purely as a matter of legal reasoning and constitutional doctrine. He brought to bear his own practical experience informed by his varied background as a soldier, lawyer, diplomat, state legislator, Congressman, and cabinet member. Taken in combination, those experiences led him to believe diat a federal system guided by a strong executive arm was essential to preserve a young democracy confronted with external tiireats from foreign nations and internal tensions from advocates espousing a decentralized form of government.

The context in which Marshall spoke and wrote makes his views all the more noteworthy. When ratified by die states, the Constitution was little more than an untested blueprint for what was then considered by European monarchs to be a radical form of government. There were no models and few precedents to follow. Even the Constitution's authors and advocates like Jefferson, Washington, Hamilton, Madison, and others disagreed, often strongly, about the exact meaning of its provisions and die powers of die different branches of government. The Constitution was a compromise among its proponents and the states' regional interests, and its ratification by the states was hard fought and in doubt until the last moment. Popular and eloquent advocates, like Patrick Henry of Virginia, spoke out against its adoption. And on a broader level, the nation's continued existence was uncertain for many of Marshall's years on the Court. Our finances were in shambles, and we were threatened and mistreated on all sides by major foreign powers that held little respect for our experiment in democracy. Think back on the years following the ratification of the Constitution in 1789 through Marshall's death in 1835 and contemplate the threats to our nation's existence from foreign powers. Europe was in flames as the Napoleonic Wars raged. Great Britain was the bully of the seas, capable of bombarding and laying waste to our capital, and seizing our sailors on the high seas. You will remember that the British even burned the White House in 1814. We should read Marshall's decisions and understand die views he advanced from this practical, real-world context. He did not think or write in an Ivory Tower.

From this perspective, Marshall's views on executive prerogatives in the conduct of our affairs with foreign nations are all the more worthy of consideration today. …