Academic journal article William and Mary Law Review

A Judge for All Seasons

Academic journal article William and Mary Law Review

A Judge for All Seasons

Article excerpt

[Marshall] has done more to establish the Constitution of the United States on sound construction than any other man living.

John Quincy Adams (1)

He would have been deemed a great man in any age, and of all ages.

Joseph Story (2)

[I]f American law were to be represented by a single figure, sceptic [sic] and worshipper alike would agree without dispute that the figure could be but one alone, and that one, John Marshall.

Oliver Wendell Holmes Jr. (3)

Holmes was right--The evidence that John Marshall is the representative figure of American law is overwhelming. What was true in 1901 remains true today. There is a paradox involved, however, the kind Holmes himself loved to ponder as something that "would take the scum off your mind." (4) The paradox is that Marshall's reputation for greatness appears to exceed the scope of his juridical accomplishments. "If I were to think of John Marshall simply by numbers and measure in the abstract," Holmes opined, "I might hesitate in my superlatives." (5) He had a point. Concede that Marshall was a workhorse for the Court, that he spoke for the majority in forty-nine percent of all the cases heard during his tenure, in fifty-nine percent of all the constitutional law decisions, and in almost all of the leading ones. (6) The fact remains that only a handful of these opinions were truly memorable. As Holmes put it, "Remove a square inch of mucous membrane, and the tenor will sing no more." (7) Take away any three of Marshall's great opinions--say Marbury, (8) McCulloch, (9) and Gibbons (10)--and it would be difficult to argue that he was the constitutional lawgiver of all time. Keep in mind, also, that his circuit opinions, though competent, were not notable for pioneering new doctrine, as, for example, were those of Story on the New England circuit. Beyond Marshall's opinions, there is mainly the massive biography of George Washington in its various editions. Although it is better history than once was thought, it is remembered, when it is, more for what it reveals about Marshall than about Washington. In any case, the biography has little bearing on Marshall's legal reputation. Unlike other famous statesmen of the early Republic, Marshall's extant correspondence is decidedly minimalist, more like Lincoln's slender opus than that of Jefferson, Adams, Madison, Hamilton, or Washington. Nor was Marshall a legal educator as was his teacher George Wythe, or David Hoffman of Maryland, or his colleague Story. This leaves only the eleven polemical essays written in defense of McCulloch. Brilliant and revealing of Marshall's legal acuity as they are, they do not warrant comparison in terms of legal learning to St. George Tucker's edition of Blackstone's Commentaries, James Kent's four-volume Commentaries on American Law, or Story's dozen volumes of legal and constitutional commentaries. Even in the area of constitutional law, there was some measure of truth in Holmes's assessment that "after Hamilton and the Constitution itself," Marshall had little truly original to offer and not much beyond "a strong intellect, a good style, personal ascendancy in his court, courage, justice and convictions of his party." (11)

Beyond this grudging concession, Holmes offered little to resolve the paradox of Marshall's greatness, except for one keen heuristic insight: that like other great men, Marshall "represented a great ganglion in the nerves of society" and was "a strategic point in the campaign of history, and part of his greatness consists in his being there." (12) Like others of the founding generation, Marshall was fortunate to have lived in an age that not only permitted but invited bold and creative statesmanship. Like Erick Erickson's young man Luther, however, Marshall was not only energized by the remarkable age in which he lived but modified its rich legacy, and, to steal a phrase from Benjamin Cardozo, he molded it creatively "in the fire of his own intense convictions. …

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