John Marshall: life, ideas and books

Life

John Marshall was born in 1755 in Germantown, in the Virginia colony. He served as a captain in the Continental Army from 1775 to 1780, practised law in Virginia, and sat in the Virginia House of Delegates and Council of State. In 1797 he was one of the American envoys to France in the XYZ Affair, and he served in the U.S. House of Representatives from 1799 to 1800 and as Secretary of State from 1800 to 1801.

President John Adams appointed him the fourth Chief Justice of the United States in 1801. He held the office until his death in 1835, the longest tenure of any chief justice.

Ideas

Marshall made the Supreme Court a co-equal branch of government. In Marbury v. Madison (1803) he established judicial review, writing that it is emphatically the province and duty of the judicial department to say what the law is. In McCulloch v. Maryland (1819) he upheld Congress's power to charter a national bank under the doctrine of implied powers and held that states may not tax federal institutions. In Gibbons v. Ogden (1824) he gave a broad reading to the commerce power and struck down a New York steamboat monopoly.

He favoured a strong national government, federal supremacy over the states and the independence of the judiciary. He also changed the practice of the Court by replacing separate opinions of the justices with a single opinion of the Court, usually his own, which gave its decisions greater authority.

Major works

• Marbury v. Madison (1803).
• Fletcher v. Peck (1810).
• McCulloch v. Maryland (1819).
• Cohens v. Virginia (1821).
• Gibbons v. Ogden (1824).
• Worcester v. Georgia (1832).

Why conservatives read him

Marshall is the origin of the American tradition of judicial review that conservative lawyers invoke when they ask courts to enforce the written Constitution as law. His opinions in Marbury and McCulloch are the first stops in any account of how the Court came to its role, and originalists and their critics both cite him. He was a Federalist of the founding generation and a political ally of Alexander Hamilton and John Adams, and his decisions often favoured national over state power, which separates him from states'-rights conservatives and from Thomas Jefferson, his distant cousin and frequent opponent.

His record includes painful episodes. Marshall owned a number of enslaved people and wrote seven of the Marshall Court's fourteen slavery decisions, siding against the enslaved person in each. Worcester v. Georgia (1832) upheld Cherokee rights, but Georgia ignored the ruling, and the president declined to enforce it. Readers who admire his constitutional craft should read his record on those questions too.