Inverarity (inverarity) wrote,

Book Review: John Marshall: The Chief Justice Who Saved the Nation, by Harlow Giles Unger

The man who made the Supreme Court.

John Marshall: The Chief Justice Who Saved the Nation

Da Capo Press, 2014, 384 pages

A soul-stirring biography of John Marshall, the young Republic's great chief justice who led the Supreme Court to power and brought law and order to the nation.

In the political turmoil that convulsed America after George Washington's death, the surviving Founding Fathers went mad - literally pummeling each other in Congress and challenging one another to deadly duels in their quest for power. Out of the political intrigue, one man emerged to restore calm and dignity to the government: John Marshall. The longest-serving chief justice in American history, Marshall transformed the Supreme Court from an irrelevant appeals court into the powerful and controversial branch of government that Americans today either revere or despise.

Drawing on rare documents, Harlow Giles Unger shows how, with nine key decisions, Marshall rewrote the Constitution, reshaped government, and prevented Thomas Jefferson from turning tyrant. John Adams called his appointment of Marshall to chief justice his greatest gift to the nation and "the pride of my life".

The other biographies I've read by Harlow Giles Unger were all clearly biased favorably towards his subjects, but this biography of John Marshall practically attaches a halo to Marshall's head. Unger also casts a clear villain in the story: Thomas Jefferson.

Ron Chernow's biography of Alexander Hamilton was not particularly flattering to Jefferson, and Lin-Manuel Miranda's musical cast Jefferson as Hamilton's antagonist, but Harlow Giles Unger frequently strips away objectivity in flatly describing Jefferson as cowardly, disingenuous, treasonous, meddling, and generally representing everything he did as self-serving and malicious, especially when it was in opposition to John Marshall.

And I am broadly sympathetic to Unger's POV here. John Marshall was a Federalist who established the independence and equal stature of the Supreme Court, at a time when Jefferson wanted the United States to be no more than a confederation, and the judiciary to be completely subordinate to executive power. From reading previous Founding Father histories, I was already predisposed to dislike Jefferson. Nonetheless, it was notable in this book that everything John Marshall did was wise and principled and patriotic (oh yeah and he owned slaves *cough* *cough*) and everyone who disagreed with him was either Thomas Jefferson or a puppet of Jefferson.

Unger really pulls out all the stops in vilifying Jefferson. When our old muckraking friend James T. Callender shows up (he was the guy who exposed Alexander Hamilton's infidelity and Thomas Jefferson's affair with Sally Hemmings), Unger all but accuses Jefferson of having him killed. (Callender, a known drunkard, was found drowned in the James River, and while the timing of his death was convenient and he had no shortage of enemies, there does not seem to have been any actual evidence that he was murdered.)

Other than owning slaves and banging a teenager, he was a saint

John Marshall's father surveyed the colonial frontier with a young George Washington. John Marshall became a surveyor himself, which was a profitable career at that time, before he became a lawyer. When the Revolutionary War rolled around, Marshall served in the Continental Army, rising to the rank of Colonel.

The story of John Marshall meeting his wife, Polly Ambler, who would be the love of his life for the next fifty years, is a sweet and charming love story with an asterisk. He was a young officer who had been invited with several others to attend a ball being thrown by the wealthy Jaquelin Ambler, who had several eligible daughters to show off. They were all very excited to meet the dashing officer, until Marshall stumbled in, haggard, badly dressed, unwashed, unshaven, his uniform much the worse for wear... in other words, he looked like a soldier just coming in from the field. The Ambler sisters were unimpressed... except for fourteen-year-old Polly, who wasn't supposed to be there because she was too young. But she snuck into the ball, met John Marshall, and they fell in love...

Polly Ambler

Yup, 26-year-old John Marshall wooed a fourteen-year-old. This was, of course, not so eyebrow-raising back then, but it certainly got a raised eyebrow from me as Unger waxed on about the saintly Marshall.

Polly would prove to be an anxious, fragile woman. Like many women of her time, she spent much of her life pregnant, and suffered multiple miscarriages. This took a severe toll on her physical and mental health, and though John was a devoted husband (even Polly's sisters eventually came to like him), she seemed to live much of her life either recovering from illness or difficult pregnancies, or being terrified for her husband's safety.

France is lovely, wish you were here, with my hottie landlady

John Marshall's political career began in the Virginia state legislature, where he defended the ratification of the Constitution, even standing up to the venerable Patrick Henry and calling him a hypocrite.

Under President Adams, Marshall was asked to go to France to try to negotiate peace during the "Quasi-War" with Revolutionary France. He was one of the American envoys who was solicited for a bribe by agents of French Minister Tallyrand in what became known as the XYZ Affair. Marshall was one of the few people who came out looking good to the American public.

Not so much to his wife, though. While in France, Marshall and his fellow American envoys were put up in the luxurious estate of a wealthy French lady who they thought was just the nicest mademoiselle ever, until they found out she was more of a madam — literally a courtesan in Tallyrand's employ. John Marshall, so far as is known, never succumbed to the little fille's advances, but he made the mistake of writing home about how gay Paris was and the lovely house and the nice lady he was staying with, while Polly was suffering from another failed pregnancy and separation anxiety. It did not go over well. Polly became convinced her husband was being seduced by a fancy French hussy, which did nothing for her mental health.

When he returned home, he reunited with his wife, convinced her he had not been out on the town with French courtesans, and ran for Congress. In 1800, John Adams made Marshall Secretary of State, and Marshall was widely considered a future contender for President. Then came the split in the Federalist Party, precipitated by Alexander Hamilton's dislike of both Adams and Jefferson. Realizing that he had probably lost reelection, in the waning days of his administration, John Adams appointed John Marshall to the Supreme Court. (Marshall was not, in fact, Adams' first choice, but John Jay, his first pick, turned it down.)

For the man who would later become a stalwart defender of the Constitution, Unger does point out that under Adams, John Marshall was given a vast amount of power that the Constitution does not delegate to the Secretary of State. Adams literally made Marshall his proxy. Along with Marshall, Adams also filled the federal courts with Federalists, who would become known as "midnight judges," and be a source of contention and some of the Supreme Court's biggest legal battles under the Jefferson administration.

Marbury vs. Madison and "Judicial Activism"

John Marshall basically created the Supreme Court as we know it today. The Supreme Court is defined in Article III of the Constitution, but it was left to Congress to organize it, and initially, it wasn't a significant part of the government. In the 11 years before John Marshall took the bench, the Supreme Court had decided 11 cases, none of them particularly significant to the country overall.

Then came Thomas Jefferson, who as Unger describes it, went about trying to strip all power from anyone who opposed him. He started by trying to undo everything the Federalists had done, including John Adams' "midnight judges." He didn't have the Constitutional power to revoke judicial nominations that had been confirmed by the Senate, so instead, he simply refused to deliver their commissions. One of the judges who had effectively been prevented from taking the bench he'd been appointed to, William Marbury, filed suit against Secretary of State James Madison (who was technically the one withholding commissions).

The court ruled against Madison, and moreover, ruled that a federal law that was tangential to the case was unconstitutional and thus invalid.

Many legal scholars consider Marbury vs. Madison the most important case the U.S. Supreme Court ever decided, because it basically established the Court's power to strike down laws passed by the legislature, or executive orders, as unconstitutional. While arguably this power was implicit in the Constitution (obviously, because that's the argument John Marshall made), it came as a surprise to many of the signers of the Constitution, including President Jefferson. It made the Supreme Court an independent and coequal branch of the government. It was the beginning of "judicial activism."

An outraged Thomas Jefferson would spend the rest of his presidency trying to get rid of John Marshall.

Here, again, Unger takes an extremely partisan view, one that I am partial to, but it would have been a better book if the author had acknowledged that Marbury vs. Madison was controversial, and that Jefferson's concerns were not solely pique at being foiled. All the complaints we hear today about "activist judges" stem from Marbury vs. Madison, and indeed, most of the Founding Fathers didn't envision the Supreme Court as a body that could effectively write new law. For better or for worse, this was an unanticipated evolution of the court as defined in the Constitution, and the Marshall court unquestionably changed the course of history.

Supreme Court nominations have always been political

Thomas Jefferson began his campaign against the Marshall court by trying to have Associate Justice Samuel Chase impeached on charges of judicial bias. Chase was apparently prone to making scornful and rude comments from the bench, a practice that Marshall convinced him was unbecoming of a judge, but the real reason Jefferson wanted to get rid of him was that he was a Federalist and a friend of John Marshall. It was widely perceived as an attempt to purge Federalists from the bench and send a message to other judges. Jefferson made many attempts to bring the Supreme Court to heel and dismiss judges he didn't like. He "packed" the court by increasing it to seven judges, and experienced another phenomenon that would plague many later presidents: the discovery that putting someone you think is ideologically aligned on the bench does not guarantee they're going to rule the way you'd like. Jefferson repeatedly appointed anti-Federalists to the Supreme Court, only for them to become friends with John Marshall, and also to decide that they liked being independent and able to rule according to what they actually believed the Constitution said.

Aaron Burr, Sir

Aaron Burr

Good old Aaron Burr, the other arch-villain of Hamilton, and most Founding Father biographies. I've noted that most biographers cast Burr in an extremely negative light, not just for killing Alexander Hamilton, but for a career of political shenanigans aimed at advancing his own interests... like every other politician then and now. I wondered if his frequent depiction as an unprincipled gigolo was doing the man justice.

Unger is very sympathetic to Aaron Burr, but mostly because Burr was one of Jefferson's enemies. He represents Burr as being a politician, yes, but emphasizes his better qualities, and how fair he was in his role as President of the Senate... again, because he was voting against Jefferson.

When Burr went off to (allegedly) try to create an empire in Spanish territory, Jefferson had him charged with treason. His case came before the Supreme Court, and John Marshall dismissed the treason charge as having no foundation, but held Burr over for trial on the misdemeanor charge of trying to start shit with Spain, a charge of which he was eventually acquitted. Other biographers have heavily implied that Burr really was trying to start his own empire, while Unger takes Burr's claims — that he was just trying to acquire real estate and become a farmer — at face value.

(According to Unger, Burr also literally became a gigolo when he went off to Europe following his legal troubles.)

Jefferson was furious, and stirred up so much hatred of John Marshall that people were burning him in effigy in Baltimore, something that nearly caused Marshall's wife Polly to have another breakdown.

Most of the rest of the book covers the Marshall court's significant rulings, of which there were many. Most every power of the Supreme Court today was created in the Marshall court.

McCulloch v. Maryland was probably the most far-reaching case, next to Marbury vs. Madison, as it gave Congress the authority to charter a national bank, and established that states could not tax the federal government. It all but settled the question of the federal government vs. states' rights in favor of the federal government... and essentially made the Civil War inevitable.

"John Marshall has made his decision; now let him enforce it."

Cherokee vs. Georgia

Cherokee Nation vs. Georgia was probably the most infamous and tragic case of John Marshall's career. The state of Georgia had essentially stripped the Cherokee of all rights and ordered them removed from their lands. Marshall was sympathetic, but unable to help them because, under U.S. law, the Cherokee literally had no legal standing. But when a group of white missionaries brought suit, the Marshall court was able to rule against Georgia. Georgia's response was to flat-out ignore the Supreme Court's judgment, and President Andrew Jackson, refusing to do anything about it, uttered his famous rebuke to the court: "John Marshall has made his decision; now let him enforce it."

The Supreme Court has always had to perform a delicate balancing act, well aware that it has the responsibility of defending the Constitution against politicians who would love to just do whatever they want, but also aware that they have no enforcement powers, and that Congress and the President have a lot of power to strip the court of the powers it does have. The idea that Supreme Court justices act in a vacuum and never take political considerations into account is false; they have to take political considerations into account, not just for their own ideological reasons, but to preserve their own legitimacy. I didn't learn that from this book, but from other books on the history of the court, but this book described a lot of the early foundations of the court and how it came to be, and just how pivotal a figure John Marshall was.

Like all of Harlow Unger's biographies, I found this well-written and informative, but it was definitely more biased than his previous works. Here, his subject is almost saintly, his enemies dastardly enemies of the Constitution. John Marshall was a great and brilliant man, but he certainly had personal and political flaws. I wish we'd seen them through a slightly less adoring lens.

Also by Harlow Giles Unger: My reviews of John Quincy Adams, Lion of Liberty: Patrick Henry and the Call to a New Nation, and Henry Clay: America's Greatest Statesman.

My complete list of book reviews.
Tags: books, harlow giles unger, history, non-fiction, reviews

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