John Marshall: The Chief Justice Who Saved the Nation

Release Date: 
September 30, 2014
De Capo Press
Reviewed by: 

Unger's biography of John Marshall reveals how he saved the nation, but also democracy's fragility.”

John Marshall was the longest-serving Chief Justice of the United States, on the bench for an astonishing 35 years.

During his tenure, he worked hard to establish an independent judiciary and make the Supreme Court the final arbiter. John Marshall: The Chief Justice Who Saved the Nation by Harlow Giles Unger places Marshall's Supreme Court career within a much larger canvas. Highly readable and rather short within the field of doorstopper political biographies, Unger tells the story of John Marshall's life. Unger is well qualified to tell this story, since he was a former distinguished visiting fellow at Mount Vernon.

With another election cycle approaching, the biography of John Marshall is a welcome salve for those seeking an inspiring story. Raised in a farming family of 15, John Marshall's life had several careers: farmer, surveyor, soldier, legislator, biographer, and Chief Justice of the United States. (Marshall worked on a massive four-volume biography of George Washington.)

Unger's rigorously researched book offers a window into the everyday life of 18th and 19th century North America. His marriage to Mary “Polly” Ambler were filled with love and devotion, but miscarriages and post partum depression plagued her life. Polly's invalid status prevented her from fulfilling her domestic duties, causing Marshall to purchased a couple of slaves to fill in for these tasks. While this was common practice in Southern pro-slavery states, Unger elides over this with nary a comment. Instead the text ladles on the sentiment a bit thick.

Only later during the Constitutional Convention debates does Unger confront the slavery question. No amount of emotional sentiment will erase the fact that Marshall owned another human being as property. Yet he yearned to be free from the shackles of British tyranny.

During his service in the Revolutionary War, Marshall becomes close friends with future notable public figures including Alexander Hamilton, James Monroe, George Washington, and Aaron Burr. A political biography that makes these figures, now carved into mountainsides or engraved onto currency, into realistic human beings is refreshing.

Unger is not immune from making a historical caricature. Thomas Jefferson comes across as the book's villain, seen as a coward, traitor, architectural plagiarist, and power mad tyrant. Gore Vidal did the same thing in his historical novel, Burr, making Jefferson into an 18th century Richard Nixon.

After years as a legislator, John Marshall is appointed Chief Justice by President John Adams. Prior to that, there had been three Chief Justices, one who retired from boredom. In his many years as Chief Justice, John Marshall transformed the judiciary and made it the third coequal branch of the government.

Many issues Americans take for granted became established during Marshall's tenure. Unger relates the often obscure or dull constitutional legalities into exciting narratives. For each groundbreaking achievement by Marshall's Court, Unger paints the picture, giving the appropriate historical and legal context.

Marshall attains a certain procedural genius when he came down with the decision for Marbury v. Madison (1803). In Marbury Marshall establishes the precedent of judicial review and the Supreme Court's power to rule a law unconstitutional. Despite its shaky constitutionality, Marshall gave the President a fait accompli, a decision that could not be avoided. Unger goes into greater detail, but the major points involve the fact that the case went through improper channels. The case could be reheard in the proper state court or the President could appoint a new justice of the peace.

In another case he opined that the federal law supersedes state law. Marshall also ruled that the contracts between individuals and between governments and individuals could not be abrogated. Unger relates how Marshall “handed down 1,180 decisions . . . with Marshall writing 549 of them.” It is astonishing, especially when the first three Chief Justices heard cases that barely cracked the single digits.

With each unanimous decision, Congress and the President balked at such alleged arrogance of power. Marshall worked with diligence to make each decision unanimous, creating the appearance of a united front and a Court devoid of partisan rancor.

The unanimity arose from unique circumstances, both geographical and political. Since transportation was so slow, the Supreme Court Justices ended up living together in a boarding house. Living in close quarters created an atmosphere for compromise and accommodation. They discussed important constitutional matters in comfort while participating in other leisure activities.

Marshall endured the attacks on the judiciary by power-hungry presidents and a cantankerous Congress. As the Virginia Dynasty gave way to Andrew Jackson's rough-hewn frontier-style democracy, Marshall met another challenge. He ruled in Cherokee Nation v. Georgia that the Indian Removal Acts were “repugnant to the Constitution, laws and treaties of the United States.”

Andrew Jackson made his legendary but probably fictional reply, “John Marshall has made his decision, now let him enforce it!” The result was the Trail of Tears. This revealed a fragile flaw in the separation of powers: an unenforced decision makes the Executive tyrannical and the Judiciary impotent. The same pattern would repeat itself in Brown v. Board of Education and remains an open issue with the current controversy of states rejecting Obamacare funding.

Following John Marshall's death, the truly disastrous Roger B. Taney helmed the office of Chief Justice. Marshall and his Court wrestled with the great issues of the time. His legal genius created an independent judiciary and established a robust federalism. As Unger asserts, Marshall really did save the nation. It is not hyperbole, but a legacy proudly enshrined in the legal history of the United States. But Marshall's achievements should not be taken as carved into granite, since democracy or an errant Supreme Court decision could erase these precedents.

Unger's biography of John Marshall reveals how he saved the nation, but also democracy's fragility.