Founders’ Son and Federalist Father

Review: 'John Marshall: The Man Who Made the Supreme Court' by Richard Brookhiser

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It's ridiculous that Richard Brookhiser hasn't received more acclaim for work on the Founding Fathers. Oh, he's received plenty. The New York Times and the Wall Street Journal, for example, have both recently reviewed his latest book, John Marshall: The Man Who Made the Supreme Court. He has authored PBS biographies on the Founders, appeared on countless radio shows, and contributed to dozens of panel discussions of the early republic. But none of it seems enough. In 1996, Brookhiser published a volume on George Washington, and in the years since, he has made the Founding era his own.

There's the 1999 book on Alexander Hamilton, for example, demonstrating the pull toward the Federalists that Brookhiser feels. And the 2002 book on John Adams, extended into a discussion of the whole family of Adamses, America's first dynasty. A 2003 volume on the little discussed Gouverneur Morris, "the rake who wrote the Constitution," soon followed, and then a 2011 look at the much discussed James Madison—and a 2014 book on the even more discussed Abraham Lincoln, whom Brookhiser read as the "Founders' son."

Curiously, that title might have been reserved for Brookhiser's latest subject, John Marshall, the fourth chief justice of the Supreme Court. The temptation is to see Marshall primarily as one of the younger Founders, of an age with Hamilton. After all, Marshall fought with the Continental Army during the Revolution. He was Thomas Jefferson's cousin. As a member of the Virginia House of Delegates, he helped push through Virginia's ratification of the Constitution. He served as a congressman, an American minister to France during the 1797 XYZ Affair, and then secretary of state in 1800. Adams nominated him to the Supreme Court before leaving office in 1801.

It's not clear what else one would need to call Marshall a Founding Father. But Brookhiser reads Marshall's career in conjunction with his personality, and the modern author sees that the Founder did not picture himself as a creator of the nation. He saw his role more as interpreter of the nation's creation—the Founders' son and the foremost disciple of George Washington. He served in the Revolutionary war, and "for the rest of his life," Brookhiser writes, he "saw Washington as his commander and himself as one of his troops."

It should not be a surprise that in 1803 Marshall began publishing his five-volume life of Washington, the first biography of an American president. He followed Alexander Hamilton primarily because he thought of Hamilton as another true disciple of  "the greatest Man on earth." Idolizing Washington, Marshall set himself to ensure the continuation of the Federalist principles he thought of as distinctly Washingtonian. And since he would go on to serve 34 years on the Supreme Court (still the longest tenure of any chief justice), he would have plenty of opportunities to lend his Federalist views to the country.

Marshall seized those opportunities with both hands. Hamilton had named the Supreme Court "the least dangerous branch" of American constitutional government, but in his time as chief justice Marshall would prove not only to be the last Federalist but in many ways the most dangerous, laying down what Brookhiser calls "principles of laws and politics that still apply."

Partly, as the book notes, that was due to his disposition. A genius of cordiality, Marshall was one of those rare people who could be amiable while not compromising his principles. Oliver Ellsworth, the chief justice before Marshall, had disapproved of the practice of seriatim decisions, each justice issuing an opinion on each case, but Ellsworth lacked the energy to bring something resembling unanimity to the Court during his four-year tenure. One thing Marshall rarely lacked was energy, and he badgered and jollied his colleagues into the practices that continue to define the Supreme Court—chief among them, the modern system of majority decisions, concurrences, and dissents. Primarily, in Brookhiser's view, Marshall used his amiability, the respect he held as one of the last of the Founders, and his talent for legal reasoning to give dignity to the Supreme Court—a dignity he used in turn to advance his Federalist understanding of the Constitution.

Marshall oversaw dozens of cases that would set the path of later jurisprudence. In the 1807 United States v. Burr, he helped define the concepts of treason and the power of the courts to compel the executive branch. In the 1810 Fletcher v. Peck, the Supreme Court overruled a state law for the first time. In the 1819 McCulloch v. Maryland, Marshall defended the Bank of the United States by giving the broad reading of the Constitution's "Necessary and Proper" clause that would in later years allow expansion of federal power. The 1819 Dartmouth College case upheld the inviolability of contracts. The 1821 Cohens v. Virginia decision put the national Supreme Court above the states' supreme courts.

And then there was the 1824 Gibbons v. Ogden, on navigation and interstate commerce, the 1825 Antelope case that touched on slavery, the 1831 Cherokee Nation v. Georgia and the 1832 Worcester v. Georgia, which touched on relations with Native Americans. The 1833 Barron v. Baltimore, the pro-state complement to McCulloch v. Maryland, set in place Marshall's view of state sovereignty in a federalist system so strongly that the 14th Amendment was required to overturn it.

The era's most famous case receives illuminating treatment in Brookhiser's John Marshall. The 1803 Marbury v. Madison remains the most consequential decision ever issued by the Supreme Court—although it is also a case filled with ironies. The case began when the outgoing President Adams issued appointments that the incoming President Jefferson refused to have delivered. One of those whipsawed appointees, William Marbury, sued, and Marshall leapt at the chance to define the role of the Supreme Court.

He ruled against the Jefferson administration in one sense, insisting that withholding Marbury's appointment was illegal. But then he turned to argue that the Judiciary Act of 1789, under which Marbury had brought his suit to the Supreme Court for original hearing, reached too far beyond the Constitution, and so the Court had no jurisdiction over the case. The twist is that, in ruling for the executive branch, Marshall declared a federal law unconstitutional, concluding that the executive and legislative branches must give way to the Court's decisions. Marshall's high rhetoric, asserting that the United States was "a government of laws, and not of men," came with an unabashed grab of institutional power: the Supreme Court declaring itself supreme in interpreting the Constitution.

Richard Brookhiser is a treasure. His books on the Founding are aimed at a general audience while not sacrificing exactness. They are informative without being dull, thesis-driven without being argumentative, and quick-reading without being superficial. John Marshall: The Man Who Made the Supreme Court proves exactly what you'd expect: another good entry in the good series of works on the Founders that Brookhiser has been giving us all these years.