The Great John Marshall: Part 1

Some claim that Marshall’s views represented an early model for a big federal government and liberal judicial activism. The claim is untrue, as I'll explain.

A portrait of Chief Justice John Marshall, 1834, by Rembrandt Peale. Oil on canvas. Virginia Museum of Fine Arts. Public Domain

Commentary

My Epoch Times series “The Founders and the Constitution” covered the lives and contributions of 14 leading American Founders.

This new series reviews the life and contributions of yet another: John Marshall of Virginia. Marshall served as a state lawmaker, a delegate to the Virginia ratifying convention, a diplomat, a member of Congress, secretary of state, and—for 34 years—chief justice of the U.S. Supreme Court.

Some claim that Marshall’s views represented an early model for a big federal government and for liberal judicial activism. The claim is untrue, and this series explains why.

What Is a Founder?

In my book “The Original Constitution: What It Actually Said and Meant,” I defined Founder to mean a person who played an active role in the Constitution’s adoption. The Founders include (1) the 55 framers who drafted the document at the 1787 Philadelphia convention, (2) the 1,648 ratifiers who converted it into law at the state ratifying conventions, and (3) the men and women who played central roles in the public constitutional debates of 1787–1790. Marshall qualified as a Founder on both the second and third grounds.

When the Constitution was proposed, Virginia was the most populous and powerful of the 13 states. That fact, as well as her central geographic position, meant that the Constitution probably would not be viable unless Virginia ratified it and joined the new Union. Thus, the Virginia ratifying convention was seen as the most important of the 13. And of all the delegates to the convention, John Marshall proved to be one of the most crucial.

Marshall’s convention speeches are masterpieces of argumentation, and they provide valuable insight into how the Constitution’s ratifiers understood the document.

This first part summarizes Marshall’s early life and then examines his ratification speeches.

From Birth to 1788

John Marshall was born on Sept. 24, 1755, in Prince William County (now Fauquier County), Virginia. He was the eldest of 15 children. He was homeschooled, except for one year in a formal school and another attending lectures at William and Mary College. His father was his primary instructor, although the family employed a local parish priest as a tutor for a year.

Like other Founders, Marshall studied the Latin language and the Greek and Roman classics. He also studied law and followed his father’s wide-ranging activities as a planter, sheriff, justice of the peace, church officer, surveyor, militia leader, and Virginia legislator.

When the Revolutionary War broke out in 1775, the young man enlisted—first in the state militia and later in the Continental Army. He participated in the battles of Brandywine, Germantown, Monmouth, and Stony Point. (Stony Point, New York, was the town in which I was raised; however, Marshall’s and my paths did not cross.)

Hostilities essentially ended with the Battle of Yorktown in 1781. The following year, Marshall won an election to the Virginia House of Delegates, where he served several terms. In 1783, he married Mary Willis Ambler, his “dearest Polly.” The marriage was highly successful, and not merely because it produced 10 children.

In 1784, the couple moved to Richmond, the new state capital. John opened what became a very successful law practice.

On Sept. 17, 1787, the Philadelphia federal convention proposed its new Constitution. Under Article VII, the document was to be ratified or rejected by conventions in each state. Each state legislature would have to decide whether to call a convention and how convention delegates would be chosen.

In early 1788, as a member of the Virginia Legislature, Marshall drafted the resolution calling a convention. On March 3, 1788, the voters of Henrico County (Richmond) elected him, along with Gov. Edmund Randolph, as their two delegates.

The assembly met from June 2 through June 17, 1788. The chief spokesmen for the Constitution included Gov. Randolph, James Madison, Edmund Pendleton, and Marshall. The opposition was led by Patrick Henry, George Mason, and William Grayson. (Grayson later became one of his state’s first two U.S. senators.)

Marshall delivered major speeches on June 10, 16, and 20. He delivered a shorter address on June 23. He served on the committee that drafted the convention’s formal ratification document.

Marshall as an Advocate

Marshall’s convention speeches show that he was an expert at turning opponents’ arguments against them.

For example, one of the opponents’ talking points was the need to preserve democracy. Contrary to a widespread modern belief, the Founders drew no sharp line between democracies and republics, and Marshall agreed on the value of democracy:

“We, sir, idolize democracy ... We prefer this system to any monarchy, because we are convinced that it has a greater tendency to secure our liberty and promote our happiness. We admire it, because we think it a well-regulated democracy ... What are the favorite maxims of democracy? A strict observance of justice and public faith, and a steady adherence to virtue.”

Marshall then proceeded to show, however, that democracy under the Articles of Confederation was not of the “well regulated” kind. On the contrary, the states had repeatedly undermined the freedoms central to democracy. Marshall pointed to the decision of the Virginia Legislature to pass a bill of attainder against one Josiah Philips, convicting and executing him without trial. The Constitution would prevent further abuses of this kind because it forbade bills of attainder at both the federal level (Article I, Section 9, Clause 3 ) and the state level (Article I, Section 10, Clause 1).

Patrick Henry and other opponents further argued that the Constitution needed to be amended but that amendments would be difficult to obtain once the document had been ratified. Marshall turned this around. He showed that Henry’s arguments only proved that amendments would be more difficult to obtain before ratification. Ultimately, of course, 10 amendments were approved after ratification: the Bill of Rights.

Marshall responded to opponents’ claims in other ways as well. They pointed out that the powers delegated to federal lawmakers and officials might be abused. He responded by noting that the Constitution contained many useful checks on official abuse. He admitted that abuse was still possible but added that this risk was inherent in all government. The alternative was anarchy.

Some of the opponents—particularly Patrick Henry—failed to do their homework before making assertions. Henry and others, for example, sought to denigrate the Constitution by praising instead the governments of Britain and the Netherlands. But they did not fully understand the structure of those governments, and Marshall corrected their errors in ways that were devastating.

Similarly devastating was Marshall’s takedown of George Mason’s attack on the proposed federal court system.

Marshall’s Explanations of the Constitution

Even more important than the rhetorical value of Marshall’s convention speeches is their guidance on the real meaning of the Constitution.

In recent months, several law professors have made news by claiming that the Constitution does not authorize states to respond to invasion—particularly invasion by illegal immigration. Part of their argument is that only the federal government may wield military power.

They should read the proceedings of the Virginia ratifying convention. The Constitution’s opponents make the same claim, but here is how Marshall replied:

“Gentlemen have said that the states cannot defend themselves without an application to Congress ... Does not every man feel a refutation of the argument in his own breast? ... All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article. This power is not included in the restrictions in that section.

“But what excludes every possibility of doubt, is the last part of it—that ‘no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.’ When invaded, they can engage in war, as also when in imminent danger. This clearly proves that the states can use the militia when they find it necessary.”

(For a more complete treatment of the topic, see my Epoch Times essay “The Myth That States Can’t Defend Against Illegal Immigration.")

Marshall clarified the Constitution in other ways as well. He told the convention that:

• The Constitution created a government of only enumerated (listed) powers. Whatever was not listed was reserved to the states. He made this point well before the 10th Amendment was adopted.
• The Constitution left most subjects to be regulated by the states. By way of illustration, he mentioned “the mode of transferring property, or contracts, or claims, between citizens of the same state.” Marshall would not approve of modern federal laws governing mortgages and real estate.
• If the federal government passed a law exceeding its powers, the courts “would not consider such a law as coming under their jurisdiction.” “They would declare it void,” he said. Later in this series, we’ll say more about this concept of “judicial review.”
• Contrary to a modern belief (reflected in some Supreme Court decisions) that the Founders did not grasp fully the Constitution’s line between direct and indirect taxes, Marshall affirmed that “the objects of direct taxes are well understood.” I verified the truth of this in a 2015 research article.

Next Part: Marshall as a Congressman and as a diplomat.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.