John Marshall

Vice President John Adams, a member of the Federalist Party, defeated Jefferson in the 1796 presidential election and sought to continue Washington's policy of neutrality in the French Revolutionary Wars. After Adams took office, France refused to meet with American envoys and began attacking American ships.[31] In 1797, Marshall accepted appointment to a three-member commission to France that also included Charles Cotesworth Pinckney and Elbridge Gerry.[32] The three envoys arrived in France in October 1797, but were granted only a fifteen-minute meeting with French Foreign Minister Talleyrand. After that meeting, the diplomats were met by three of Talleyrand's agents who refused to conduct diplomatic negotiations unless the United States paid enormous bribes to Talleyrand and to the Republic of France.[33] The Americans refused to negotiate on such terms, and Marshall and Pinckney eventually decided to return to the United States.[34] Marshall left France in April 1798 and arrived in the United States two months later, receiving a warm welcome by Federalist members of Congress.[35]

During his time in France, Marshall and the other commissioners had sent secret correspondence to Adams and Secretary of State Timothy Pickering. In April 1798, Congress passed a resolution demanding that the administration reveal the contents of the correspondence. A public outcry ensued when the Adams administration revealed that Talleyrand's agents had demanded bribes; the incident became known as the XYZ Affair.[36] In July 1798, shortly after Marshall's return, Congress imposed an embargo in France, marking the start of an undeclared naval war known as the Quasi-War.[37] Marshall supported most of the measures Congress adopted in the struggle against France, but he disapproved of the Alien and Sedition Acts, four separate laws designed to suppress dissent during the Quasi-War. Marshall published a letter to a local newspaper stating his belief that the laws would likely "create, unnecessarily, discontents and jealousies at a time when our very existence as a nation may depend on our union."[38]

After his return from France, Marshall wanted to resume his private practice of law, but in September 1798 former President Washington convinced him to challenge incumbent Democratic-Republican Congressman John Clopton of Virginia's 13th congressional district.[39] Although the Richmond area district favored the Democratic-Republican Party, Marshall won the race, in part due to his conduct during the XYZ Affair and in part due to the support of Patrick Henry.[40] During the campaign, Marshall declined appointment as an associate justice of the Supreme Court, and President Adams instead appointed Marshall's friend, Bushrod Washington.[41] After winning the election, Marshall was sworn into office when the 6th Congress convened in December 1799. He quickly emerged as a leader of the moderate faction of Federalists in Congress.[42] His most notable speech in Congress was related to the case of Thomas Nash (alias Jonathan Robbins), whom the government had extradited to Great Britain on charges of murder. Marshall defended the government's actions, arguing that nothing in the Constitution prevents the United States from extraditing one of its citizens.[40] His speech helped defeat a motion to censure President Adams for the extradition.[43]

In May 1800, President Adams nominated Marshall as Secretary of War, but the president quickly withdrew that nomination and instead nominated Marshall as Secretary of State. Marshall was confirmed by the Senate on May 13 and took office on June 6, 1800.[44] Marshall's appointment as Secretary of State was preceded by a split between Adams and Hamilton, the latter of whom led a faction of Federalists who favored declaring war on France. Adams fired Secretary of State Timothy Pickering, a Hamilton supporter, after Pickering tried to undermine peace negotiations with France.[45] Adams directed Marshall to bring an end to the Quasi-War and settle ongoing disputes with Britain, Spain, and the Barbary States. The position of Secretary of State also held a wide array of domestic responsibilities, including the deliverance of commissions of federal appointments and supervision of the construction of Washington, D.C.[46] In October 1800, the United States and France agreed to the Convention of 1800, which ended the Quasi-War and reestablished commercial relations with France.[47]

Marshall's Chief Justice nomination

With the Federalists divided between Hamilton and Adams, the Democratic-Republicans emerged victorious in the presidential election of 1800.[48] However, Thomas Jefferson and Aaron Burr both received 73 electoral votes, throwing the election to the Federalist-controlled House of Representatives.[lower-alpha 2] Hamilton asked Marshall to support Jefferson, but Marshall declined to support either candidate.[49]

In the contingent election held to decide whether Jefferson or Burr would become president, each state delegation had a single vote. Under this rule, it turned out that neither party had a majority because some states had split delegations. Over the course of seven days, February 11–17, 1801, the House cast a total of 35 ballots, with Jefferson receiving the votes of eight state delegations each time, one short of the necessary majority of nine. On February 17, on the 36th ballot, Jefferson was elected as president. Burr became vice president.[50] Had the deadlock lasted a couple weeks longer (through March 4 or beyond), Marshall, as Secretary of State, would have become acting president until a choice was made.[51]

After the election, Adams and the lame duck Congress passed what came to be known as the Midnight Judges Act. This legislation made sweeping changes to the federal judiciary, including a reduction in Supreme Court justices from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred.[52]

In late 1800, Chief Justice Oliver Ellsworth resigned due to poor health. Adams nominated former Chief Justice John Jay to once again lead the Supreme Court, but Jay rejected the appointment, partly due to his frustration at the relative lack of power possessed by the judicial branch of the federal government.[53] Jay's letter of rejection arrived on January 20, 1801, less than two months before Jefferson would take office.[54] Upon learning of Jay's rejection, Marshall suggested that Adams elevate Associate Justice William Paterson to chief justice, but Adams rejected the suggestion, instead saying to Marshall, "I believe I must nominate you."[55]

The Senate at first delayed confirming Marshall, as many senators hoped that Adams would choose a different individual to serve as chief justice. According to New Jersey Senator Jonathan Dayton, the Senate finally relented "lest another not so qualified, and more disgusting to the bench, should be substituted, and because it appeared that this gentleman [Marshall] was not privy to his own nomination".[56] Marshall was confirmed by the Senate on January 27, 1801, and took office on February 4. At the request of the president, he continued to serve as Secretary of State until Adams' term expired on March 4.[57] Consequently, Marshall was charged with delivering judicial commissions to the individuals who had been appointed to the positions created by the Midnight Judges Act.[58] Adams would later state that "my gift of John Marshall to the people of the United States was the proudest act of my life."[59]

Soon after becoming chief justice, Marshall changed the manner in which the Supreme Court announced its decisions. Previously, each Justice would author a separate opinion (known as a seriatim opinion) as was done in the Virginia Supreme Court of his day and is still done today in the United Kingdom and Australia. Under Marshall, however, the Supreme Court adopted the practice of handing down a single majority opinion of the Court, allowing it to present a clear rule.[64] The Court met in Washington only two months a year, from the first Monday in February through the second or third week in March. Six months of the year the justices were doing circuit duty in the various states. When the Court was in session in Washington, the justices boarded together in the same rooming house, avoided outside socializing, and discussed each case intently among themselves. Decisions were quickly made, usually in a matter of days. The justices did not have clerks, so they listened closely to the oral arguments, and decided among themselves what the decision should be.[65]

Marshall's opinions were workmanlike and not especially eloquent or subtle. His influence on learned men of the law came from the charismatic force of his personality and his ability to seize upon the key elements of a case and make highly persuasive arguments.[66][67][68] As Oliver Wolcott observed when both he and Marshall served in the Adams administration, Marshall had the knack of "putting his own ideas into the minds of others, unconsciously to them".[69] By 1811, Justices appointed by a Democratic-Republican president had a 5-to-2 majority on the Court, but Marshall retained ideological and personal leadership of the Court.[70] Marshall regularly curbed his own viewpoints, preferring to arrive at decisions by consensus.[71] Only once did he find himself on the losing side in a constitutional case. In that case—Ogden v. Saunders in 1827—Marshall set forth his general principles of constitutional interpretation:[72]

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers—is to repeat what has been already said more at large, and is all that can be necessary.[72]

While Marshall was attentive when listening to oral arguments and often persuaded other justices to adopt his interpretation of the law, he was not widely read in the law, and seldom cited precedents. After the Court came to a decision, he would usually write it up himself. Often he asked Justice Joseph Story, a renowned legal scholar, to do the chores of locating the precedents, saying, "There, Story; that is the law of this case; now go and find the authorities."[73]

In his role as Secretary of State in the Adams administration, Marshall had failed to deliver commissions to 42 federal justices of the peace before the end of Adams's term. After coming to power, the Jefferson administration refused to deliver about half of these outstanding commissions, effectively preventing those individuals from receiving their appointments even though the Senate had confirmed their nominations. Though the position of justice of the peace was a relatively powerless and low-paying office, one individual whose commission was not delivered, William Marbury, decided to mount a legal challenge against the Jefferson administration. Seeking to have his judicial commission delivered, Marbury filed suit against the sitting Secretary of State, James Madison. The Supreme Court agreed to hear the case of Marbury v. Madison in its 1803 term. Meanwhile, the Democratic-Republicans passed the Judiciary Act of 1802, which effectively repealed the Midnight Judges Act and canceled the Supreme Court's 1802 term.[74][lower-alpha 3] They also began impeachment proceedings against federal judge John Pickering, a prominent Federalist; in response, Federalist members of Congress accused the Democratic-Republicans of trying to infringe on the independence of the federal judiciary.[76]

In early February 1803, the Supreme Court held a four-day trial for the case of Marbury v. Madison, though the defendant, James Madison, refused to appear.[77] On February 24, the Supreme Court announced its decision, which biographer Joel Richard Paul describes as "the single most significant constitutional decision issued by any court in American history." The Court held that Madison was legally bound to deliver Marbury's commission, and that Marbury had the right to sue Madison. Yet the Court also held that it could not order Madison to deliver the commission because the Judiciary Act of 1789 had unconstitutionally expanded the Court's original jurisdiction to include writs of mandamus, a type of court order that commands a government official to perform an act they are legally required to perform. Because that portion of the Judiciary Act of 1789 was unconstitutional, the Court held that it did not have original jurisdiction over the case even while simultaneously holding that Madison had violated the law.[78]

Marbury v. Madison was the first case in which the Supreme Court struck down a federal law as unconstitutional and it is most significant for its role in establishing the Supreme Court's power of judicial review, or the power to invalidate laws as unconstitutional. As Marshall put it, "it is emphatically the province and duty of the judicial department to say what the law is."[79] By asserting the power of judicial review in a holding that did not require the Jefferson administration to take action, the Court upheld its own powers without coming into direct conflict with a hostile executive branch that likely would not have complied with a court order.[80] Historians mostly agree that the framers of the Constitution did plan for the Supreme Court to have some sort of judicial review, but Marshall made their goals operational.[81] Though many Democratic-Republicans expected a constitutional crisis to arise after the Supreme Court asserted its power of judicial review, the Court upheld the repeal of the Midnight Judges Act in the 1803 case of Stuart v. Laird.[82][lower-alpha 4]

In 1804, the House of Representatives impeached Associate Justice Samuel Chase, alleging that he had shown political bias in his judicial conduct. Many Democratic-Republicans saw the impeachment as a way to intimidate federal judges, many of whom were members of the Federalist Party.[83] As a witness in the Senate's impeachment trial, Marshall defended Chase's actions.[84] In March 1805, the Senate voted to acquit Chase, as several Democratic-Republican senators joined with their Federalist colleagues in refusing to remove Chase.[85] The acquittal helped further establish the independence of the federal judiciary.[86][85] Relations between the Supreme Court and the executive branch improved after 1805, and several proposals to alter the Supreme Court or strip it of jurisdiction were defeated in Congress.[87]

Marshall engraving by Saint-Mémin, 1808

Vice President Aaron Burr was not renominated by his party in the 1804 presidential election and his term as vice president ended in 1805. After leaving office, Burr traveled to the western United States, where he may have entertained plans to establish an independent republic from Mexican or American territories.[88] In 1807, Burr was arrested and charged for treason, and Marshall presided over the subsequent trial. Marshall required Jefferson to turn over his correspondence with General James Wilkinson; Jefferson decided to release the documents, but argued that he was not compelled to do so under the doctrine of executive privilege.[89] During the trial, Marshall ruled that much of the evidence that the government had amassed against Burr was inadmissible; biographer Joel Richard Paul states that Marshall effectively "directed the jury to acquit Burr." After Burr was acquitted, Democratic-Republicans, including President Jefferson, attacked Marshall for his role in the trial.[90]

In 1795, the state of Georgia had sold much of its western lands to a speculative land company, which then resold much of that land to other speculators, termed "New Yazooists." After a public outcry over the sale, which was achieved through bribery, Georgia rescinded the sale and offered to refund the original purchase price to the New Yazooists. Many of the New Yazooists had paid far more than the original purchase price, and they rejected Georgia's revocation of the sale. Jefferson tried to arrange a compromise by having the federal government purchase the land from Georgia and compensate the New Yazooists, but Congressman John Randolph defeated the compensation bill. The issue remained unresolved, and a case involving the land finally reached the Supreme Court through the 1810 case of Fletcher v. Peck.[91] In March 1810, the Court handed down its unanimous holding, which voided Georgia's repeal of the purchase on the basis of the Constitution's Contract Clause. The Court's ruling held that the original sale of land constituted a contract with the purchasers, and the Contract Clause prohibits states from "impairing the obligations of contracts."[92] Fletcher v. Peck was the first case in which the Supreme Court ruled a state law unconstitutional, though in 1796 the Court had voided a state law as conflicting with the combination of the Constitution together with a treaty.[93]

The text of the McCulloch v. Maryland decision, handed down March 6, 1819, as recorded in the minutes of the US Supreme Court

In 1816, Congress established the Second Bank of the United States ("national bank") in order to regulate the country's money supply and provide loans to the federal government and businesses. The state of Maryland imposed a tax on the national bank, but James McCulloch, the manager of the national bank's branch in Baltimore, refused to pay the tax. After he was convicted by Maryland's court system, McCulloch appealed to the Supreme Court, and the Court heard the case of McCulloch v. Maryland in 1819. In that case, the state of Maryland challenged the constitutionality of the national bank and asserted that it had the right to tax the national bank.[94] Writing for the Court, Marshall held that Congress had the power to charter the national bank.[95] He laid down the basic theory of implied powers under a written Constitution; intended, as he said "to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs ...." Marshall envisaged a federal government which, although governed by timeless principles, possessed the powers "on which the welfare of a nation essentially depends."[96] "Let the end be legitimate," Marshall wrote, "let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and the spirit of the Constitution, are constitutional."[97]

The Court also held that Maryland could not tax the national bank, asserting that the power to tax is equivalent to "the power to destroy." The Court's decision in McCulloch was, according to Joel Richard Paul, "probably the most controversial decision" handed down by the Marshall Court. Southerners, including Virginia judge Spencer Roane, attacked the decision as an overreach of federal power.[98] In a subsequent case, Osborn v. Bank of the United States, the Court ordered a state official to return seized funds to the national bank. The Osborn case established that the Eleventh Amendment does not grant state officials sovereign immunity when they resist a federal court order.[99]

Congress established a lottery in the District of Columbia in 1812, and in 1820 two individuals were convicted in Virginia for violating a state law that prohibited selling out-of-state lottery tickets. The defendants, Philip and Mendes Cohen, appealed to the Supreme Court. The Court's subsequent decision in the 1821 case of Cohens v. Virginia established that the Supreme Court could hear appeals from state courts in criminal lawsuits.[lower-alpha 5] The Court held that, because Virginia had brought the suit against the defendants, the Eleventh Amendment did not prohibit the case from appearing in federal court.[100]

In 1808, Robert R. Livingston and Robert Fulton secured a monopoly from the state of New York for the navigation of steamboats in state waters. Fulton granted a license to Aaron Ogden and Thomas Gibbons to operate steamboats in New York, but the partnership between Ogden and Gibbons collapsed. Gibbons continued to operate steamboats in New York after receiving a federal license to operate steamboats in the waters of any state. In response, Ogden won a judgment in state court that ordered Gibbons to cease operations in the state. Gibbons appealed to the Supreme Court, which heard the case of Gibbons v. Ogden in 1824. Representing Gibbons, Congressman Daniel Webster and Attorney General William Wirt (acting in a non-governmental capacity) argued that Congress had the exclusive power to regulate commerce, while Ogden's attorneys contended that the Constitution did not prohibit states from restricting navigation.[101]

Writing for the Court, Marshall held that navigation constituted a form of commerce and thus could be regulated by Congress. Because New York's monopoly conflicted with a properly issued federal license, the Court struck down the monopoly. However, Marshall did not adopt Webster's argument that Congress had the sole power to regulate commerce.[102] Newspapers in both the Northern states and the Southern states hailed the decision as a blow against monopolies and the restraint of trade.[103]

Marshall personally opposed the presidential candidacy of Andrew Jackson, whom the Chief Justice saw as a dangerous demagogue, and he caused a minor incident during the 1828 presidential campaign when he criticized Jackson's attacks on President John Quincy Adams.[104] After the death of Associate Justice Washington in 1829, Marshall was the last remaining original member of the Marshall Court, and his influence declined as new justices joined the Court.[105] After Jackson took office in 1829, he clashed with the Supreme Court, especially with regards to his administration's policy of Indian removal.[106]

In the 1823 case of Johnson v. McIntosh, the Marshall Court had established the supremacy of the federal government in dealing with Native American tribes.[107] In the late 1820s, the state of Georgia stepped up efforts to assert its control over the Cherokee within state borders, with the ultimate goal of removing the Cherokee from the state. After Georgia passed a law that voided Cherokee laws and denied several rights to the Native Americans, former Attorney General William Wirt sought an injunction to prevent Georgia from exercising sovereignty over the Cherokee. The Supreme Court heard the resulting case of Cherokee Nation v. Georgia in 1831.[108] Writing for the Court, Marshall held that Native American tribes constituted "domestic dependent nations," a new legal status, but he dismissed the case on the basis of standing.[109]

At roughly the same time that the Supreme Court issued its decision in Cherokee Nation v. Georgia, a group of white missionaries living with the Cherokee were arrested by the state of Georgia. The State did so on the basis of an 1830 state law that prohibited white men from living on Native American land without a state license. Among those arrested was Samuel Worcester, who, after being convicted of violating the state law, challenged the constitutionality of the law in federal court. The arrest of the missionaries became a key issue in the 1832 presidential election, and one of the presidential candidates, William Wirt, served as the attorney for the missionaries.[110] On March 3, 1832, Marshall delivered the opinion of the Court in the case of Worcester v. Georgia. The Court's holding overturned the conviction and the state law, holding that the state of Georgia had improperly exercised control over the Cherokee.[111] It is often reported that in response to the Worcester decision President Andrew Jackson declared "John Marshall has made his decision; now let him enforce it!" More reputable sources recognize this as a false quotation.[112] Regardless, Jackson refused to enforce the decision, and Georgia refused to release the missionaries. The situation was finally resolved when the Jackson administration privately convinced Governor Wilson Lumpkin to pardon the missionaries.[113]

Marshall established the Charming Betsy principle, a rule of statutory interpretation, in the 1804 case of Murray v. The Charming Betsy. The Charming Betsy principle holds that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."[114] In Martin v. Hunter's Lessee, the Supreme Court held that it had the power to hear appeals from state supreme courts when a federal issue was involved. Marshall recused himself from the case because it stemmed from a dispute over Lord Fairfax's former lands, which Marshall had a financial interest in.[115] In Dartmouth College v. Woodward, the Court held that the protections of the Contract Clause apply to private corporations.[116] In Ogden v. Saunders, Marshall dissented in part and "assented" in part, and the Court upheld a state law that allowed individuals to file bankruptcy. In his separate opinion, Marshall argued that the state bankruptcy law violated the Contract Clause.[117] In Barron v. Baltimore, the Court held that the Bill of Rights was intended to apply only to the federal government, and not to the states.[118] The courts have since incorporated most of the Bill of Rights with respect to the states through the Fourteenth Amendment, which was ratified decades after Marshall's death.

External video
Q&A interview with Joel Richard Paul on Without Precedent, October 21, 2018, C-SPAN
Presentation by Richard Brookhiser on John Marshall: The Man Who Made the Supreme Court, November 27, 2018, C-SPAN

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