Archives for January 2017

How “The Great Chief Justice” Conceived of Greatness

Someone—it may have been his fellow Virginian, John Randolph—called John Marshall “that great master of the human heart.” [1] It is an unusual thing to say about a Supreme Court justice, but one of the best things that could be said about any judge. Properly to judge requires mastery of the human heart in two senses: the judge must know human nature in its multifariousness; and, in order to do justice, the judge must master his own heart, rise above personal interest and passion in order to apply the law to the case. He must know himself, and govern himself according to that knowledge. When, at the age of seventy-one, Marshall read Jane Austen’s novels, he saluted that other great master of the human heart, his contemporary: “Her flights are not lofty, she does not soar on eagle’s wings, but she is pleasing, interesting, equable, and yet amusing.” [2] Equable: Miss Austen has received no more accurate assessment from anyone more worthy to bestow it—from one Chief Justice to another.

As a young man and then a historian in his later years, Marshall always had before him an example of self-government who did soar on eagle’s wings, a man not only great but conspicuously great: George Washington. As a politician Marshall was, as his friend Joseph Story wrote, a “federalist of the Washington School.” [3] So he had been, before and after the career of the Federalist Party, as a young soldier in Washington’s army at Valley Forge and the Battle of Monmouth and a Supreme Court justice at the height of his powers, years after Washington’s death, writing a history of the Revolutionary War seen through the prism of Washington’s life and character. By contrast, the traitor Benedict Arnold, far from a master of his own heart, was “the slave of his rage,” a man of character on the battlefield who lacked the self-knowledge to see that he lacked the ability to engage in successful financial investing. This “false pride,” this failure of just self-assessment, led him into the indebtedness which made him vulnerable to the blandishments of the enemy. [4] Washington, “the example of virtuous moderation,” displayed an “unyielding firmness of mind,” a “perfect self-possession under the most desperate circumstances,” which “struggled against adverse fortune” and won self-government for his country. [5] These moral qualities made Washington a  great ‘judge’ in his own way. “In his civil administration, as in his military career, ample and repeated proofs were exhibited of that practical good sense, of that sound judgment, which is perhaps the most rare, and is certainly the mot valuable quality of the human mind…. Taught to distrust first impressions, he sought to acquire all the information which was attainable, and to hear, without prejudice, all the reasons which could be urged for or against a particular measure. His own judgment was suspended until it became necessary to determine; and his decisions, thus maturely made, were seldom if ever beshaken.” [6] In drawing Washington’s portrait, Marshall draws his own.

Given Washington’s judicious (and judicial) temperament, “No man has ever appeared upon the theatre of public action, whose integrity was more incorruptible, or whose principles were more perfectly free from the contamination of those selfish and unworthy passions, which find their nourishment in the conflicts of party.” Washington was a utterly without duplicity, exhibiting “the rare example of a politician to whom wiles were absolutely unknown.” He was both a man of “magnanimity”—Marshall means this in the classical sense, a man of greatness of soul, a soul comprehending the virtues of justice, courage, wisdom, and moderation—and “a real republican”—living proof that the  philosopher who denies the congruence of magnanimity and democracy is wrong. [7] In Washington we see self-government in an executive—a military commander and president; in Marshall we see self-government in a judge, a guardian of the rule of law. Both dedicated themselves to the defense of self-government in politics, upholding a republican, constitutional union.

Great-souled or not, the republican citizen governs himself. When his old comrade-in-arms the Marquis de Lafayette toured the United States in the mid-1820s, Marshall offered a toast: “To rational liberty—the cause of mankind. Its friends cannot despair when they behold its champions.” [8] Rational liberty is what self-government is: without liberty, no self-government; without reason, no self-government. In public life, Marshall exhibited such liberty throughout the partisan battles of the 1780s and 1790s: “I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly.” [9] In private life, he exhibited self-government no less. After what must have been an excruciating surgery in old age, Marshall was sitting up in bed writing to his wife the next day; his physician recalled, “I consider it but an act of justice, due to the memory of that great and good man, to state that in my opinion, his recovery was in great degree owing to his extraordinary self-possession and to the calm and philosophical views which he took of his case, and the various circumstances attending it.” [10] On his deathbed, Marshall “met his fate with the fortitude of a Philosopher, and the resignation of a Christian.” [11]

Supreme Court Justice Felix Frankfurter was moved to observe that the great chief justice’s written opinions embodied both his ‘self’ and his ‘government.’ “Marshall spoke for the Court. But he spoke.” In so speaking, Marshall never lost his sense of balanced self-government: “Marshall’s boldness was wary.” [12] Marshall’s writing is as well-governed in its way, for his purposes, as Jane Austen’s writing is well-governed in its way, for hers. The prolixity of Marshall can be “seen as a clue to Marshall’s basic strategy as an interpreter of the Constitution,” as “characteristic of a judge who has determined to use constitutional cases as so many opportunities for disseminating ideas, and a way of thinking about them, which would help to propagate his conception of the governmental system ordained by the Constitution. His method, admittedly verbose and repetitious, was part and parcel of a larger design.” [13] The man of greatness of soul designed greatly, mastering his heart and essaying to teach his countrymen better to govern themselves.

 

Self-Government and American Republicanism

In calling Washington “a real republican,” Marshall referred to his mentor’s devotion to the United States Constitution “and to that system of equal political rights upon which it is founded.” “But between a balanced republic and a democracy, the difference is like that between order and chaos.” Democracy breeds demagogues, men who overturn the laws and disperse governmental energy in factional wrangling. Republicanism breeds patriots, men who “preserv[e] the authority of the laws and maintain… the energy of the government.” [14] This language echoes the tenth Federalist, in which Publius contrasts democracy—”a society consisting of a small number of citizens, who assemble and administer the government in person”—with republicanism or representative government—whereby more citizens and territory may be governed, rendering factional passions less powerful and thereby giving rational, disinterested government the chance to take effect. [15]

Marshall scarcely fit the standard image of the wealthy American federalist. As Albert J. Beveridge explains, Virginians from the rich tidewater section were ruled by landed oligarchs. The upland counties—poorer, more rural, quite unfashionable in dress and deportment—sought but often did not receive funding for “roads, bridges, and other indispensable requisites of social and industrial life.” The Marshalls came from that region, and Marshall’s lifelong carelessness of attire and awkwardness of carriage fit the type. [16] In his personal style, Marshall resembled a democrat even as the rather democratic Thomas Jefferson more resembled an aristocrat. But federalist republican he was, citing the state governments framed after the Declaration of Independence as “exhibiting the novel spectacle of matured and enlightened societies, uninfluenced by external or internal force, devising, according to their own judgments, political systems for their own government.” Only Connecticut and Rhode Island, “whose systems had ever been in a high degree democratic,” failed to adopt written constitutions that “prescribe[ed] bounds not to be transcended by the legislature itself.” Legislative dominance comported with democratic leanings before 1787: “popular government” that was republican set limits on passionate majorities. [17]

During the Virginia Ratifying Convention of 1788 Marshall referred to republicanism as “well-regulated Democracy.” Well-regulated democracy consists of “a strict observance of justice and public faith and a steady adherence to virtue.” Marshall had seen lax observance of justice in  legislatures that tried defendants (even in capital cases, as in the trial of Josiah Philips in Virginia) without allowing them to face their accusers or to cross-examine witnesses. By strict observance of public faith Marshall meant a government that does not allow demagogues to force it to forgive legally contracted debt, a practice endemic in many state legislatures under the Articles of Confederation. [18]

Virtue also suffered in the atmosphere of violent rebellion which ill-regulated democracy fostered. Under the quasi-government of the Articles, Shays’ Rebellion in Massachusetts (“a state I had thought inferior in wisdom and virtue to no one in the nation”) had raised questions worldwide whether the American revolution and the free governments established thereafter could long endure. “I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself,” Marshall worried in a letter to a friend. [19] Much different was the stronger federal government during the Washington Administration, which moved rapidly to suppress a rebellion in western Pennsylvania. Even “under a government emanating directly from the people, and with an administration whose sole object was their happiness, the public mind was violently agitated with apprehensions of a powerful and secret combination against liberty.” Such factionalism, fanned by demagogues, tending “to abolish all distinction between virtue and vice,” and “to prostrate those barriers which the wise and the good have erected for the protection of morals… which are defended solely by opinion,” could only be countered by a strong federal government controlled by representatives of all Americans, not those swayed by local passions. [20]

Marshall consistently sought to moderate the radical-Whiggish or Jeffersonian inclination to link democracy and distrust. “Remember, my countrymen, that the government of the United States is created by yourselves, that those who fill its great departments are chosen by yourselves, that they are your friends, and not your enemies, that their measures must be intended to benefit, and not to injure you,” he wrote in 1793. While “a blind approbation of every governmental act” must “not be countenanced,” citizens should view governmental measures “with a scrutinizing, but not a hostile, eye.” As for control of the federal government itself, each republican citizen is a kind of judge: “If the conduct of the government be arraigned, (and arraigned it shall be, so long as various minds shall be variously constructed) let us not condemn because an accusation I made, but let us look temperately into the charge, and exercise our best judgment upon it.” [21]

The radical democracy of revolutionary France provided Marshall with an object lesson in the malign effects of political passion. Marshall blamed the genocidal slave rebellion in Santo Domingo on the French ideology, but Exhibit A was of course the Terror in France itself. The exile of his friend Lafayette; the retraction of even the radical Thomas Paine (“I now despair of seeing the great object of European liberty accomplished,” Paine wrote, given “the tumultuous misconduct” of the Jacobin revolutionaries); and Marshall’s experiences as an ambassador to a corrupt French government in the aftermath of the revolution: all these convinced him of the dangers of unregulated democracy and the folly of that most eminent American partisan of the French revolutionaries, Thomas Jefferson. In Marshall’s estimation, Jefferson lacked any sense of the harshness of political life, owing to his too-benign view of the human soul. Decades later, Andrew seemed to Marshall a vulgar, late echo of the unsagacious Monticellian. [22]

In one respect, however, Marshall and Jefferson thought alike on democracy. “In democracies, which all the world confesses to be the most perfect work of political wisdom, equality is the pivot on which the grand machine turns, & equality demands that he who has a surplus of any thing in general demand should parcel it out among his needy fellow citizens.” As one might imagine, Marshall did not therefore advocate socialism. Instead, like Jefferson, Marshall advocated the use of tax monies for education, particularly in the agricultural sciences. Dispersion of agricultural knowledge would enhance economic self-sufficiency among the people, and thus strengthen self-government. Otherwise, agrarian societies would fall under the rule of plantation oligarchs. [23]

 

Self-Government and Political Economy: The Defense of Property

Robert K. Faulkner observes that for Marshall property is more than tangible possessions; as does Locke, as do the principal American founders, Marshall conceives of property as the product of human labor. To have property rights is to have “the right to possess what one has worked for.” [24] The right to property is one foundation of self-government. Slavery, the opposite of self-government, consists of the denial of the natural right to the fruits of one’s own labor.

Like many Virginia landowners, Marshall owned slaves. There is no evidence that he traded in slaves or sold them for income. He served as president of the Richmond chapter of the American Colonization Society while on the Supreme Court; the Society advocated the (very) gradual abolition of slavery. [25] Edward S. Corwin argues that Marshall’s court decisions favoring a strong national government and a commercial-industrial economy encouraged the formation before the Civil War of “a property interest almost as extensive as that which supported the doctrine of State Rights”; corporate power in effect countered the power of the slaveowners. [26] As Beveridge puts it, Southerners “began to see that the power that could enact a protective tariff [such as the “Tariff of Abominations” of 1828], control commerce [via the Bank of the United States], and make internal improvements, could also control slavery—perhaps even abolish it. [27] In the 1829 case Boyce v. Anderson Marshall held (to the dismay of many slaveowners”) that a slave is a person. [28] On the bench he needed to be circumspect; the Constitution recognized (off-handedly, to be sure) the legal right to own slaves. In his private correspondence he could be more frank: “Nothing portends more calamity and mischief to the southern states than their slave population; yet they seem to cherish the evil and to view with immovable prejudice and dislike every thing which may tend to diminish it.” [29] He had no practicable, near-term solution; neither did anyone else.

There was only a long-term national solution. As Frankfurter observed with respect to Marshall’s commerce clause decisions, “in so far as he struck down state legislation he did so as a means of releasing energies of national life,” energies which might have ended slavery peacefully, and did end it bloodily. [30]

Marshall began his longtime advocacy of a commercial-industrial political economy at the Virginia Ratifying Convention, where he criticized the Articles of Confederation system for “tak[ing] away the incitements to industry, by rendering property insecure and unprotected.” [31] Under the Articles the federal structure lacked the power to regulate interstate commerce. As early as 1781, several representatives urged the adoption of such powers, “but stat influences prevailed.” “Notwithstanding the greatness of the exigency, and the pressure of the national wants, never, during the existence of the confederation, did all the states unite in assenting to this recommendation; so unwilling are men possessed of power, to place it in the hands of others.” [32] Worse, even as the states resisted increased federal power they preferred to avoid responsibility themselves, many balking at the payment of war debts. Despite the “Herculean” efforts of Robert Morris during the Revolutionary War—including the institution of the first national bank—the Articles system was financially unworkable. [33]

A commercial economy is precisely what was needed to increase national cohesion. As Marshall stated in Gibbons v. Ogden, “commerce” means “intercourse,” which includes not only the exchange of goods but navigation—that is, transportation. [34] In giving Congress the power to regulate interstate commerce, the 1787 Constitution bestows a very broad power indeed, one that would facilitate the gradual but deep transformation of American life, undermining the economic power of landed gentry—the nearest thing in America to an aristocratic class. Commerce will complete the American revolution. Gibbons v. Ogden limits state sovereignty to import and export taxes, denying states the power to regulate interstate commerce, broadly conceived. This means that the states are not permitted to act as if they were entirely sovereign because, as United States envoy John Marshall had reminded Talleyrand a quarter century before, the right to form commercial treaties is “the inseparable attribute of sovereignty… to be questioned only by those, who question the right of a nation to govern itself.” [35] The American states will not make commercial treaties amongst themselves; Congress shall regulate commerce among them.

In the tenth Federalist Publius argues that the natural faculties of human beings provide the origin of property rights. Property rights themselves, Marshall contends, are civil not natural, “subject, in all respects, to the disposition and control of civil institutions.” [36] These civil rights nonetheless deserve firm protection, in Marshall’s view, as his opinion in Fletcher v. Peck confirms.

As Marshall construes it, Article I, Section 10 restricts state interference with property rights. States may not pass ex post facto laws, nor may they impair a contractual obligation—even if the state is a party to the contract and even if the state government consisted of corrupts men at the time the contract was signed. Motives, whether pure or impure, are in this instance legally irrelevant; the purchasers of the Yazoo lands from the allegedly corrupt state legislators were in any event not impure, and they were entitled to their purchase. Even if the people of the state of Georgia were the real losers, their former representatives, however corrupt, were nonetheless theirs; the people may punish their representatives by declining to reelect them (among other things). But the people may not deprive an innocent contracting purchaser of his property rights. The people’s new representatives may not rescind the contract, however corrupt they say their predecessors were.

May a legislature “by its own act, divest the vested interest of any man whatever, for reasons which shall, by itself, be deemed sufficient”? It may not, Marshall answers, for even “the most absolute power” cannot “recall the past.” The civil rights of contract are “absolute,” not the power of legislators. Such are the “limits of legislative power.” These would be the proper limits of legislative power were Georgia a sovereign state; the limitations are even more obvious under U. S. constitutional law. “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment, and that the people of the U[nited] States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.” Thus the United States Constitution “contains what may be deemed a bill of rights for the people of each state,” not only in the Bill of Rights itself but in the body of the document. [37] If property is the essential matter, contract is the essential form of self-government respecting political economy. Contract is the very definition of economic and political voluntarism. A fundamental principle of self government must be to keep good faith. If the intentions of the ‘self’—individual or legislative—change from one day to the next, other selves cannot reasonably contract with it. No government is possible.

States cannot violate property rights guaranteed by valid contracts. Do states have the right to pass bankruptcy laws, despite Article I, Section 8, which empowers Congress to establish nationally uniform bankruptcy laws? Marshall agrees with plaintiff in Sturgis v. Crowninshield that a constitutional provision must override any contradictory state law. However, Congress had not, in 1819, passed a uniform bankruptcy law; therefore, there could be no contradiction. But the states could not therefore enact any bankruptcy law. A law that “discharges the obligations the bankrupt has entered into” would be constitutionally invalid under the contract clause. So, for example, a state may prohibit debtors’ prisons but it cannot absolve debtors from their debts. States can say how debtors shall repay their debts but cannot absolve debtors of those debts. Another fundamental principle of economic self-government must always be to pay your debts. [38]

In his dissent in another bankruptcy case, Ogden v. Saunders, Marshall elaborates on his argument concerning contracts. The American constitutional union, itself contractual, “is intended to make us, in a great measure, one people, as to commercial objects”—commercial in the broad sense laid down in Fletcher v. Peck. The right to enter into any contract, political or commercial, is a natural right, “original and pre-existing” in man as man; such rights can be “controlled” by “human legislation”—else why legislate?—but not given by it. In the state of nature “man governs himself and labors for his own purposes,” bartering with others who by nature enjoy equal rights. Such obligations as arise in bartering are real obligations, enforceable by the parties. “Superior strength may give the power” to violate a barter agreement in the state of nature “but cannot give the right.” The same is true among independent nations. The purpose of government is not to establish a natural right that already exists but to make its protection, the enforcement of the agreements entered in accordance with it, more secure. Individuals find coercion difficult; they submit to government in order to make enforcement of their natural rights more likely. “The whole subject of contracts is under the control of society”—specifically, its government. But government control cannot rightly contradict the very essence of the natural right to contract that men enter civil society in order to secure. If government, civil society, could overturn contract rights, civil government will no longer be self-government. The security of contract rights is one of the objects of civil government. “Contracts have, consequently, an intrinsic obligation,” no longer to be enforced by individuals but rather by government. For governments to excuse debtors would be a violation of the very purpose of government. “[T]he right to contract is not surrendered with the right to coerce performance.” The first is a natural and moral obligation; the second is a civil remedy. The states must not pass any law impairing the obligation of contracts, but they have considerable authority to control remedies available to contracting citizens. [39]

Self-government cannot survive if any considerable body of citizens is reduced to abject economic dependence upon another. To prevent pauperism, Marshall looked not to redistribution of wealth but to education. In addition to being a contract case, Dartmouth College v. Woodward is also an education case. [40] Article I, Section 8 specifically mentions patent and copyright laws as means of promoting “the Progress of Science and the useful Arts,” but the contract clause can also be pressed into this worthwhile service when a state government interferes with the self-government of a private, charitable institution. A public institution, a state college, would of course be a different matter. This ruling impedes the establishment of a state monopoly on educational institutions.

Marshall distinguishes private from public contracts. The framers could not mean that states cannot pass laws impairing the obligation of the social contracts that are the constitutional and statutory laws of the states themselves. This would mean that states could not amend their own laws. Rather, the framers sought to restrict the enactment of certain state laws that violate property rights, thereby “weaken[ing] the confidence of man and man” by “dispensing with a faithful performance of obligations,” such as debt repayment. [41]

Dartmouth College is a private school. Although “education is an object of national concern, and a proper subject of legislation,” education is not “altogether in the hands of the government.” Teachers are not public officers unless they teach in public schools. A private “corporation,” being a product of the natural rights and obligations of a contract, must enjoy a degree of self-government within the civil society ordained for the protection of that right and those obligations. Such a private corporation—as the etymology of the word implies—enjoys a certain identity and integrity over time, even as a living human body enjoys the right to life. A corporation, an artificial body, lacks political power and authority, but it is also in some measure free from political power and authority. “Because the government has given it the power to take and to hold property in a particular form, and or particular purposes, to which the property applies?” No: unlike the British parliament, New Hampshire’s legislature is not sovereign. It cannot “annul corporate rights,” the rights of a freely contracted artificial body. A state cannot arrogate control of private corporations for itself. [42]

Marshall thus conceives of property rights—those of individuals and of ‘collective’ or ‘artificial’ individuals called corporations—as integral to self-government. Freedom of contract is the essence of self-government, or government by consent, in the sphere of political economy.

 

Self-Government in Military and Foreign Affairs

His experiences as a soldier taught Marshall one Machiavellian lesson: use your own troops. [43] At Valley Forge foreign soldiers were more likely to desert than the Americans. “Through this severe experiment in fortitude, the native Americans persevered steadily in the performance of their duty; but the conduct of the Europeans, who constituted a large part of the army, was to a considerable extent, less laudable; and at no period of the war was desertion so frequent as during this winter.” The necessity of living off the land compounded these problems, eliciting licentiousness among the soldiers, which caused resentment among civilians. Congress failed to remedy the provisions system until the following spring—another example of that body’s limitations under the Articles. Congress displayed moral firmness throughout the war—giving members “a just claim to the admiration of the world, and to the gratitude of their fellow citizens—but this firmness did not yield vigorous and timely action. [44] Only executive dispatch can prevent military indiscipline. Soldiers under the Articles government could look for such energy only from their general, not from their representatives.

The war also convinced Marshall of the imbecility of the militia system. The claim “that a nation can be defended against a permanent force, by temporary armies, by occasional calls of the husbandman from his plough to the field, was completely disproved; and, in demonstrating its fallacy, the independence of America had nearly perished in its cradle.” [45] During the Virginia Ratifying Convention Marshall reassure anti-federalists that the states would retain control of their militias under the new constitution. “[T]he States can use the militia when they find it necessary,” without need of Congressional approval. [46] But Marshall never regarded the militia to be sufficient for national defense.

There was a problem to be faced, beyond radical-Whig handwringing. A commercial republic will tend to view the military as a burden. Commercial republicanism justifies itself in large measure as a regime of civil and international peace in a world of religious strife and empire building. Americans have hoped that “the people of this favored land might in peace pursue their own happiness though war and violence should desolate the European world, or drench it in human blood.” Marshall turns this ‘exceptionalism’ in a new direction. War is even more dreadful to Americans than to other nations, peace still more beneficial. [47] All the more reason to expand America’s standing army. “The question now is—whether self-government and national liberty be worth the money which must be expended to preserve them.” “[T]he true economy did not content itself with inquiring into the mere saving of the present moment” but instead calculated “present saving” against “a much more considerable future expenditure.” War with France—in Marshall’s opinion America’s most likely rival in 1800, when he made this argument—would bring “immense waste of blood as well as treasure,” an expense military preparedness might well obviate. Alluding to his celebrated mission to France a few years earlier, culminating in his triumphant return home after refusing Talleyrand’s demand for American payment in exchange for a promise of peace from the French government, Marshall reminded Congress: “It must… be particularly observed, that while prayers for peace were returned for indignities of every sort, while American was humbly supplicating for peace, and that her complaints might be heard, France spurned her contemptuously and refused to enter on a discussion of differences, unless that discussion was preceded by a substantial surrender of the essential attributes of independence.” [48] Military preparedness is indispensable to national self-government; in a commercial republic, where dreams of military conquest and empire will not enjoy much scope, the argument for preparedness must rest on the right to life (“blood”) and the need for “true economy” (“treasure”).

National self-government or independence served as the lodestar of American military and foreign policy throughout the founding era and beyond. Marshall consistently endorsed the Washingtonian policy of neutral political relations with foreign countries. “We ought to have commercial ties with all, but political ties with none,” he wrote, paraphrasing Washington’s Farewell Address. Of his tenure as a Virginia legislator during he first Washington Administration, Marshall wrote, “My constant effort was to show that the conduct of our government respecting its foreign relations was such a just self-respect and regard for our rights as a sovereign nation rendered indispensable, and that our independence was wrought into real danger by the overgrown and inordinate influence of France.” In the aftermath of the Genêt controversy, Marshall affirmed that “our own safety made it necessary to manifest a firm determination to be guided only by ourselves…. We will govern ourselves, we will preserve our faith with all nations, and we will be at peace with the world.” [49]

French envoy Edmond Genêt’s attempts to rouse Americans to ally with France against Britain raised the issue of whether a foreigner’s appeal from the Washington Administration to the people should be countenanced by the people. “Foreign influence to be exerted on the people, in a republican government, can only be repelled by the people themselves,” Marshall observed. In his appeal to his fellow citizens of Virginia, Marshall argued that sympathy for the republicanism of France should not overturn Washington’s neutrality policy. Admit foreign influence in this and Americans must admit it at any time. “Our country, instead of pointing its united effort to the promotion of its own happiness, might be found divided into parties struggling under the direction, and for the views of foreigners.” For Americans to ally themselves habitually with France, or with any country, would be to “relinquish the rights of self-government.” “Americans ought to view all foreign nations with an equal eye,” shifting alliances as their interests shift. [50]

Marshall again and characteristically sought to increase Americans’ trust in their federal government two years later, when the Jeffersonians attacked Jay’s Treaty. “Great umbrage was taken at the mysterious secrecy in which the negotiation had been involved.” According to the Jeffersonians—anticipating the Wilsonian formula of early 1900s—”republics ought to have no secrets.” Marshall dismissed the claim: “This doctrine was not too absurd for the extravagance of the moment.” The extravagance of the moment is precisely the problem with an excessively ‘democratized’ foreign policy. Marshall could not prevent his legislative colleagues from condemning the treaty. [51]

Marshall practiced his preachments of independence on those occasions when he had responsibility for the conduct of American foreign policy. Commenting on his aforementioned 1797 mission to France, wherein Marshall and his colleagues rejected Talleyrand’s offer of peace in exchange for a cash payment, he wrote, “Still dearer to us than the friendship of France”—our ally in the Revolutionary War and partner in the 1778 Treaty of Amity and Commerce—”was our national independence.” Americans would “make at least one manly struggle” before surrendering it. Americans should neither seek nor avoid war; to “launch… into the boundless ocean of European Politics” would risk “contracting habits of national conduct, and forming close political connections, which must… compromis[e] the future peace of the nation,” a nation inclined to “self-defense” but only self-defense. That policy alone coincides with both the nation’s “genius” and finances as a fledgling commercial republic. Marshall had seen firsthand the consequences of French domination of a foreign country, the Netherlands, and this further strengthened his determination to resist French influence over America. [52]

In his 1812 opinion in Schooner Exchange v. McFaden and Greetham, Marshall lent judicial authority to these long-held principles. International law does not abridge national sovereignty, he asserted; it rests on it. The “perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.” It is therefore reasonable to distinguish between foreigners on American soil in a private capacity and foreigners visiting in a public capacity. Private citizens from “a friendly power” must be fully subject to the laws of the country they visit. Public officials of a foreign power enjoy more leeway. In the incident under litigation, a “public armed ship” of a friendly foreign power entered an American port; no American “interference” with that ship or its crew could “take place without affecting [the foreign state’s] power and his dignity.” The traditional “rites of hospitality” according to international law (which is really international usage or custom) must be respected. Such usage derives its authority not from tradition but, in Marshall’s contractarian view, from consent: “the unanimous consent of nations.” [53]

Treaties obviously add further contractarian weight to unwritten international law or contract. In his opinion in United States v. Schooner Betty, Marshall defined a treaty as “a contract between nations,” a contract that is, under the American constitution, “the supreme law of the land.” The American states cannot unilaterally override treaties. [55]

 

Self-Government and the Fact of Conquest

Edward G. White criticizes the Marshall Court for “tolerating the obvious contradictions between natural rights theory and social discrimination” with respect to Americans’ “treatment of blacks and Indians,” a toleration that “contributed to the practical erosion of the natural law argument.” Faulkner, by contrast, regards Marshall’s Indian land claims opinions as “a fine illustration of Marshall’s stern but humane judicial statesmanship,” whereby the Chief Justice “reduced the justification for depriving the Indians of their property to the most minimal of which liberal jurisprudence is capable—the right of providing for the colonists’ self-preservation.” [55] Faulkner is closer to the truth. Marshall’s opinions in these cases clearly move toward protecting the right to self-government of Amerindian tribes, without any sentimental esteem for certain Amerindian customs.

Marshall uses Johnson and Graham’s Lessee v. M’Intosh as an opportunity to outline an American theory of conquest. The issue: Can a title from a purchase from Amerindian tribes be recognized in the courts of the United States? Marshall says no, but as much as concedes that his answer does not rest “singly”—and perhaps not much at all—”on those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man.” [56]

European “potentates” had claimed a right to conquer the Amerindians on the grounds that the latter thereby exchanged “unlimited independence” for “civilization and Christianity.” Marshall frankly characterizes these claims as “pompous”; his very association of the claims with Old-World monarchy is enough to taint them in American eyes, as Marshall knows. Nor does Marshall countenance any extensive claims for the ‘right of discovery’—which, he gently notes, could exist only among European nations, inasmuch as the Amerindians had already discovered and occupied the territories in question. When Americans declared independence from Britain they took over these intra-European rights—rights against any French or Spanish claims of conquest or purchase. That is, ‘discovery’ of Amerindian-held territories gave the European nation an “exclusive right” vis-à-vis other European nations to purchase or conquer, and then rule, those territories. Such a right is silent with respect to international rights between the ‘discovering’ European nation and the native peoples. [57]

Vis-à-vis the Amerindians, Americans have title by conquest “acquired and maintained by force,” not a right. The conquered “shall not be wantonly oppressed.” Ordinarily, a conquered people are “incorporated into the victorious nation,” which over time is “mingled with” them; “the distinction between them [is] gradually lost.” where this does not occur he conquered retain property rights. But in North America the native tribes presented a serious problem. They were “fierce savages whos occupation was war, and whose subsistence was drawn chiefly from the forest.” They could be neither incorporated nor governed as a separate people because “they were as brave and high spirited as they were fierce.” Unless the Europeans had been willing to return home, there could have been no good outcome. Wars “unavoidable ensued.” The Europeans won. Legally, Amerindians must be regarded as occupants of land no longer truly owned by them; they are no longer sovereigns over the lands they once ruled. They cannot convey rights to lands lost to their conquerors, “however this restriction may be opposed to natural right, and to the usages of civilized nations.” The restriction is “indispensable to that system under which the country has been settled,” and that is that. [58] Marshall could have argued that to derange the system at this time would worsen rather than improve matters, but if he thought so he left the argument unstated.

If Marshall had left matters there, White would be correct. But Marshall evidently wanted to press the case for Amerindian rights further. In Cherokee Nation v. State of Georgia he argues that the Cherokee constitute “a distinct political society, separated from others, capable of managing its own affairs and governing itself.” Unlike some of the other Amerindian tribes or nations, the Cherokee are civilized, not savage. The United States government has enacted treaties with them, thereby admitting Cherokee status as a state. [59]

But do the Cherokee have a foreign state? No: The Cherokee state is a U. S. protectorate. “They acknowledge themselves in their treaties to be under the protection of the United States” and they can send a (non-voting) deputy to Congress, if they so choose. They cannot legally be removed from their lands except “by a voluntary cession to our government” (but not, as per Johnson and Graham’s Lessee, to any private purchaser). [60]

Marshall extended his argument still further in Worcester v. Georgia. Within boundaries set by treaty in 1802, the “Indian nations” possessed “rights with which no state could interfere.” The government of the United States, not the government of any state, enjoys “the whole power of regulating he intercourse with them.” Georgia has “abandoned” this system, and is therefore acting illegally in moving to evict the Cherokee from their ancestral lands. The assertion of exclusive federal jurisdiction over Amerindian relations was, White admits, “a bold step,” resting as it did on very nebulous constitutional evidence. The natural rights argument seems to have disappeared into a federal authority argument, White maintains. But Marshall makes no such concession. “The settled doctrine of the law of nations”—intermediate between natural right and local convention—”is, that a weaker power does not surrender its independence, its right to self-government, by associating with a stronger, and taking its protection”; Marshall cites Vattel as his authority. [61] To surrender the right of self-government would be to endanger the very purpose of entering into such a treaty. As Locke argues, “I have no reason to suppose, that he, who would take away my liberty, would not when he had me in his Power, take away every thing else”: the argument solemnized in America by the Declaration of Independence, a document that cannot be said to compromise on matters of natural right. [62] Thus the natural right argument that Marshall seemed to dismiss near the beginning of his Johnson opinion lies very near the surface in Worcester, and self-government is the key to the puzzle.

 

Self-Government and the American Constitutional Union

It must have been difficult for political men of the founding generation to overlook the harsh side of political life. The Revolutionary War, the Pseudo-War with France, the War of 1812, the wars with Amerindians, the Barbary Wars: all of these kept war, conquest, and their consequences before American eyes. The first tactic of any conqueror is to sow divisions in his prey. Marshall’s defense of constitutional union began in the war for independence. As Marshall recalls in his Life of Washington, state governments and their interests dominated the Continental Congress. “The measures for [military] recruiting were founded on the state system.” Delays and inequalities ensued, immeasurably complicating military strategy and thus hindering the war effort. “The few intelligent statesmen who could combine practical good sense with patriotism, perceived the dangerous inefficiency of a system which openly abandoned the national character, and proceeded on the principle that the American confederacy was no more than an alliance of independent nations.” At the end of the war Marshall deplored the “variety of little interests & passions [which] produces such a distracted contrariety of measures that ’tis sometimes difficult to determine whether some other end [than independence] is not nearer the hearts of those who guide our Counsels.” Beveridge (who has his own, quite different, nationalist agenda to promote) is nonetheless right to call “the War for our Independence” the “fountain-head of John Marshall’s National thinking.” [63]

As a Virginia state legislator in the 1780s, working under the Articles of Confederation system, Marshall saw firsthand the causes of American disunity, nearly fatal during the war, as they eroded the bonds of civil society in peacetime. Not only jealousy and state pride but reluctance to pay war debts and partisan administration of justice embittered Virginians.     “[T]he general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better-organized general government.” However, in his argument on behalf of the new federal constitution to the Virginia Ratifying Convention, Marshall restrained himself from criticizing the venality of his legislative colleagues, preferring to dwell on the need for national unity in defending each state from foreign encroachments. National defense “requires a superintending power, in order to call forth the resources of all to protect all. If this be not done, each State will fall a sacrifice.” [64] The first duty of self-government is self-defense. It is also the prerequisite of continued self-government. And union is indispensable for American self-defense.

As Corwin sees, ratification of the 1787 constitution rechanneled the issue of states’ sovereignty into constitutional-interpretation controversies. [65] The question remained one of defining what American self-government meant, what it entailed. The Missouri Compromise and Andrew Jackson’s firm response to the South Carolina nullification ordinance of 1832 deferred civil war for a generation. [66] But Marshall at the end of his life viewed the future of the union with pessimism. “I yield slowly to the conviction that our Constitution cannot last.” Southern opinions are simply “incompatible with a united government.” How long can the union be “prolonged” by such “miracles” as those effected by Clay in 1820 and Jackson in 1832? [67] Faulkner rightly claims that civil society according to Marshall needs not only consent but “public force” to keep it united.[68] But consent to maintain the public force is needed, and that remained weak among many Americans North and South throughout Marshall’s lifetime and beyond.

Marshall unwaveringly attempted to strengthen consent for constitutional union. In the Virginia legislature he had heard the great anti-federalist orator Patrick Henry single out a key phrase in the preamble to the 1787 constitution. “The question turns,” Henry said, “on that poor little thing—the expression ‘We the people‘; instead of the states.” That phrase betokened “a revolution as radical as that which separated us from Great Britain” because it transferred sovereignty from the states to the American people as a whole, thus giving the federal government authority over state governments. Only the latter, in Henry’s opinion, could secure such “human rights and privileges” as the rights of conscience, trial by jury, and liberty of the press. [69] In so arguing, Henry could not know that he had supplied a great federalist with a telling argument for federal union, once the Constitution had been ratified.

The young Marshall already had developed unionist arguments of his own. He denied any parallel between the relationship of the colonial American governments to the British government and that of the state governments to the federal government under the new constitution. The colonists’ arguments had turned on the slogan of self-government, ‘No taxation without representation.’ “We were not represented in Parliament. Here we are represented” in the federal government. “Would you believe that men who had merited your highest confidence”—individuals sufficiently esteemed to have been selected by state legislatures for positions in the United States Senate—”would deceive you? Would you trust them again after one deception? Why then hesitate to trust the General Government?” Further, the federal government must really govern. Without the power to tax, a government cannot obtain the means to govern. “Our inquiry here must be: whether the power of taxation be necessary to perform the objects of the Constitution” outlined in its preamble, and “whether it be safe and as well guarded as human wisdom can do it.” [70] This anticipates Marshall’s argument in the McCulloch v. Maryland opinion, some thirty years later. Representation renders those who tax us trustworthy; it is the guarantor of the ‘self’ in government. Necessity helps to define the means of government, the kinds of taxes to be imposed. It helps to define the ‘government’ side of ‘self-government.’

In McCulloch Marshall defends the power of Congress to incorporate a national bank by denying to the states the power to tax the bank, a power they wanted to use to tax the bank out of existence or, at least, out of Maryland. Marshall’s editor remarks: “The case’s abiding importance lay in its being the occasion of an inquiry concerning the extent of federal power, the limits on state sovereignty, the nature of the federal Union, and the principles of constitutional interpretation.” [71]

Marshall turns Henry’s argument of 1788 against the states’ righters of 1819, whom he regarded as Henry’s direct descendants. [72] “We the People” remarks the fact of the ratification of the Constitution by the people—meeting, to be sure, within the boundaries of the several states. But the governments of those states themselves called the state conventions, “thus submitting that instrument to the people.” The state governments themselves could neither ratify nor veto the new constitution. The state governments could not do so because they are not and never were sovereign; the people of each state were sovereign over their own government. The state governments had formed a league or confederation, its laws contained in the Articles of Confederation. The league was not a government; the Articles were not a constitution but a treaty. “But when ‘in order to form a more perfect union,’ it was deemed necessary to change this alliance into an effective government, acting directly upon the people, the necessity of referring it to the people and of deriving its powers directly from them, was felt and acknowledged.” By contrast, the Articles had been submitted to the state legislatures for approval. The government of the new federal union “is emphatically and truly, a government of the people. In form and substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, for their benefit.” [73] Here is the source of Abraham Lincoln’s lapidary formulation in the Gettysburg Address, that attempt to lay groundwork for the recovery and strengthening of Marshall’s constitutional union.

It is popular self-government that justifies making the Constitution “the supreme law of the land.” The supremacy of federal constitutional law is not unlimited. The lawful powers of the federal government are supreme only “within its sphere of action.” The complexity of the American system comes from this fact. There is no easy solution to the question of the extent of the federal and state spheres of legitimate supremacy. The complexity is enhance by the language of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This “omits the word ‘expressly'”—the Articles had included it—thus requiring interpreters to consider the Constitution in its entirety when determining the limit of federal and state powers. Although there is no formulaic answer to such questions, the fact that it is a question belies the anti-federalists’ claim that a ‘national’ government means a ‘consolidated’ one. Rather it is, as Publius had written, a compound government. [74]

An act of the whole people, taken at one time, but intended to last beyond its own time—”intended to endure for ages to come”—must be stated in general terms. A constitution, a founding or fundamental law, must therefore not include a body of statutory laws, which are specific, detailed, and more easily changed with changing circumstances. A statute influences immediate conduct; a constitution constitutes a way of governing. A constitution tells its readers how and for what purposes a sovereign people shall govern itself. The generality of constitutional language precludes self-explanation; it requires construal. [75]

The self-government of the American people requires a national legislature that really legislates. The sovereign people govern themselves through a representative legislature. The legislature must select the means by which it would secure the stated objects of the Constitution. Those who deny that the means selected are legitimate are free to vote against their representatives in the next election. Or they can proceed with a court case. In such a case the burden of the proof is on the plaintiff; the representatives must be presumed innocent of constitutional wrongdoing unless proof of guilt is produced. Given the generality of constitutional language, such a case will not be easy to make. [76]

Publius links self-government to reason, particularly to practical reason or prudence. This is what is behind Marshall’s interpretation of the “necessary and proper” clause. “Necessary,” he contends, cannot mean physically necessary only, else the federal government will be rendered “incompetent in its great objects.” The states’ righters’ narrow construal of constitutional language is impracticable. Narrow construction of constitutional language would have required a long and detailed document, one that explicitly and exactly spelled out what the federal government could and could not do. Such a detailed legal code, susceptible of strict construction, “would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” That is, such a constitution itself would have been imprudent, and it would have given no scope for the prudence, the self-governance, of future generations. The exercise of the legislative power should be prudent, a just estimate of the necessities of the circumstance. It must also be proper: right, ‘just’ in the larger sense of conforming to natural right and to the ends stated in the preamble. “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and the spirit of the constitution, are constitutional.” [77]

By consent of the people within state boundaries, state governments may tax the people in order to raise revenue for the legitimate ends of those governments. The federal government may also, by consent of the people as a whole, represented in Congress, tax the people in order to raise revue for legitimate national ends. The state cannot tax a federal institution. A state retains “command of all its resources.” But it cannot siphon off the resources of the federal government. If there is any superiority of power, it is on the federal side—again, on exactly the grounds Patrick Henry had feared, namely, the superiority of the whole people to any part of the people. Any other solution to the problem of federalism will lead to confusion and mutual interference between the state governments and the federal government—to ungovernability, which cannot have been the intention of the framers or of any self-governing people. [78]

 

Self-Government and the Supreme Court

At the Virginia Ratifying Convention, Marshall defended the federal courts from anti-federalist ire. Citizens insure the “fairness and impartiality” of judges by choosing them in accordance with an orderly, deliberative process and by guaranteeing the independence of the judges from the other branches of government. Federal judges will be chosen by the same process and shielded from improper influence as much as state judges. “If so, shall we not conclude, that they will decide with equal impartiality and candor?” [79] The concern of anti-federalists centered not so much on process, however, as on the position of the judges. Would federal judges not favor federal power, leading to consolidation and despotism? [80]

Three decades later, states’ righters continued to dislike the federal judiciary. “Certain restless politicians of Virginia”—Spencer Roane and other radical Jeffersonians—had “been for some time making [systematic attempts] to degrade [the federal judiciary] in the estimation of the public,” Marshall charged, pseudonymously, in response to criticisms of the McCulloch ruling. He suspected that the critics were enemies of the federal government tout court, and aimed at the judicial branch as its weakest link. Congressmen and presidents are elected; they are “popular.” Judges are “separated from the people by the tenure of office, by age, by the nature of their duties”; they possess neither power nor patronage, “have no sops to give.” At the same time, the judges are “necessary to the very existence of the government.” Thus they make the perfect target: with low risk, their attacker can seize high rewards. [81]

Marshall fought back with his own weapons, on his own terrain. Corwin remarks that Marshall “refused to regard his office merely as a judicial tribunal; it was a platform from which to promulgate sound constitutional principles, the very cathedra indeed of constitutional orthodoxy.” [82] Marshall’s obiter dicta enunciate the general principles of American constitutionalism and amount to a series of lessons in civic education.

Marshall’s legal education and indeed the way of a life in law in the Virginia of his time encouraged this approach. The “gentleman judges” of Virginia before whom Marshall argued his cases at the beginning of his career were not legal technicians. For winning favorable judgments, logic and common sense counted more than a parade of precedents. Also, law itself “was conceived to be a body of principles that existed independently of cases, which served merely as illustrations and evidence of the law. It followed that piling precedent one upon another did not make law and might even obscure the true principle.” [83] This non-technical approach to the law enhances self-government. The more technical the law, the more the bar must become a sort of priesthood. The more the law consists of understandable general principles, the better citizen-judges can convey its meaning to plaintiffs, defendants, and the general public serving on juries.

In a self-governing—in a modern state, a contractarian—society, citizens must know the terms of the contract and judges must guard and explicate it. “The judiciary was the branch of the state that directly secured to men the place earned by industrious talent exercised in the economy.” [84] The power of judicial review derives rightly from self-government because it is “the very antithesis of arbitrary will,” residing in the prudential choice, the discretion, of judges who “turned to the great body of transcendent principles that ran through and beyond cases,” principles found in law as it had been practice in America for decades before the revolution. [85]

James B. Thayer suggests that the framers deliberately left the power of judicial review unmentioned in the Constitution so as “not to stir up enemies to the new instrument.” Judicial review was “left to be settled by the silent determinations of time [that is, by judges] or by later discussion.” [86] Leonard Baker, however, shows that judicial review was simply not controversial among many framers, or among Marshall’s predecessors on the court. Judicial review may have gone unmentioned because it did not need to be mentioned. [87]

There is truth in both of these claims. Many framers knew the Constitution made federal judicial review necessary, but its exact scope did not need to be predetermined, and had better not be much debated during ratification. In any event, the Constitution, being a novelty, needed to build up its own body of precedents before judicial review could be fully and routinely exercised. Beveridge argues that the earliest Supreme Court justices actually pressed too hard and fast to establish their authority, injudiciously giving Jeffersonians fuel for anti-federalist bonfires. The enforcement of the Sedition Act very nearly gave Jefferson a noose of impeachment with which to hand federalist judges. Not only impeachment but the doctrines of state nullification of federal court decisions and the Jeffersonian claim of “coordinate construction”—whereby the executive and legislative branches enjoy co-equal authority of constitutional judgment—taken together, would have restricted the Supreme Court to a minor role indeed. Legislative supremacy—the power to pass laws and pronounce them constitutional—would have resulted, as Gouverneur Morris charged at the time. [88]

Jefferson’s view was even more radically opposed to judicial power than Beveridge supposes. Jefferson’s reform of the Virginia legal code had minimized judicial discretion in that state. English common law, particularly as (mis)understood by Mansfield and Blackstone, must, in Jefferson’s view, be revolutionized from top to bottom. “Jefferson and other Revolutionary reformers believed that it was possible to maintain a system of laws founded in reason and equity without resorting to judicial discretion.” [89] Their view of self-government was more directly democratic than Marshall’s. To the democratic republicans, judicial discretion and review themselves looked like vestiges of the old regime, to be minimized or, better, expunged.

Under these circumstances, Marshall needed to proceed with every bit of the prudence he had often admired and commended in George Washington. He calls Marbury v. Madison a case of “peculiar delicacy,” then demonstrates in his opinion that he is equal to the peculiarly delicate task of judicial self-government. [90] How shall judges govern themselves? Can they do so in a way that persuades their fellow citizens that they govern themselves in a manner consistent with republicanism?

In Marbury, Marshall asserts the lace of the federal judiciary in the American system of self-government. How can judicial review—the role of the Supreme Court as the authoritative voice respecting the supreme law of the land, at least within the judicial branch—be justified under a new constitution enacted in a political society which had broken with England and thereby (on the federal level, at least) revolutionized the common law tradition? [91] Judicial review is unquestionably consistent with commerce, as England had shown. How could judicial review be made consistent with commercial republicanism? In other words, given judicial review, how are the people nonetheless to remain sovereign?

Marshall first distinguishes between “political” and “legal” matters. “Political” matters involve choice; he who makes the choice rules or governs. “Legal” matters are duties; he who performs them is ruled. A voter votes for a candidate for the presidency or the Congress; that is a choice, a political or governing act. The Senate confirms the nomination, that too is a political or governing act, a free choice. Once the nominee is confirmed or elected, however, he must be commissioned or sworn into office; none of the erstwhile choosers has any choice any longer. The chosen one has the right to his job; it is his, unless he resigns or is removed for cause. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to provide that protection.” A citizen rules and is ruled; a government of laws rules and is ruled by the principle of equal protection. “The government of the United States has been emphatically termed a government of laws, not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right,” if government officials may disregard the laws enacted by the people’s representatives or, worse, disregard the laws enacted by the people—especially the supreme law of the land. [92]

The United States Constitution, being a law, must be obeyed by the president. In his political function he “use[s] his own discretion,” answerable only to the voters and “his own conscience.” But in matters respecting “individual rights” he has no choice, no discretion—only the duty he freely (“politically”) affirmed in taking the oath of office. The president politically swears to be ruled by the Constitution with respect to the constitutional rights of his fellow citizens. This distinguishes him from a despot. He is “an officer of the law,” an executive of it, once the law has been enacted. The courts can judge executive actions with respect to the execution of the law. [93]

In the case at hand, President John Adams had appointed 42 judges to newly-instituted federal courts during the period between his defeat in the election and the inauguration of Thomas Jefferson. Jefferson was not amused, and voided 25 of the commissions, including that of William Marbury. He ordered his Secretary of State, James Madison, not to commission Marbury. In his opinion, Marshall makes it appear that he will rule that Madison must deliver the commission to poor Marbury. But Marshall wants to demarcate the Court’s constitutional territory, to distinguish it not only from that of the executive but also from that of the legislative branch. He reminds his readers that the Constitution gives the Supreme Court original jurisdiction in all cases affecting ambassadors and other public ministers and consuls, and in all cases in which a state shall be a party. In all other cases the Supreme Court has appellate jurisdiction. The Judiciary Act of 1789, under which Marbury sued, gave the Supreme Court the additional power of original jurisdiction in cases concerning writs of mandamus—court orders directing someone (usually a government official) to perform some specific act, such as delivering a commission to a newly-appointed would-be judge. But the Constitution gives Congress no power to shift cases from one category to another. If Congress had this power, it would be mixing political or discretionary power with legal duty. The party must not be the judge. The Judiciary Act of 1789 under which Marbury brought his suit thus unconstitutionally conferred upon the Court original jurisdiction in such cases. In ruling against Marbury, Marshall and his colleagues saved the constitutional separation of powers from an act by its own legislative branch—an act intended not to aggrandize Congress but to strengthen the judiciary—by denying themselves a very minor power (original jurisdiction over cases involving writs of mandamus) to save a major power, judicial review. And in so ruling the Marshall court left democratic republicans no response. Jefferson and Madison could make no great show of ignoring the mandamus; it had evanesced. [94]

What, then, gives the Supreme Court the power to adjudicate such ‘border disputes’ among the three branches of the federal government? Are the other branches no co-equal? Can the legislature and the executive not govern themselves in these matters?

They are co-equal, but not with respect to legal interpretation, any more than judges are co-equal with respect to legislating and executing laws. Legislators legislate; executives execute. Those are their powers. “It is emphatically the province and duty“—not choice or discretion—”of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound, and interpret that rule.” Any law contradicting the fundamental, the supreme law, the Constitution, must be struck down. “This is the essence of judicial duty.” If the legislature can pass an unconstitutional law, if a president can sign it, and then they can pronounce this law constitutional, then the Constitution is a thing of plastic, shaped by elected officials. Genuine rule of law under a written constitution is at an end. Such a practice would be “prescribing limits, and declaring that those limits may be passed at pleasure”—politicized. Congressional power in alliance with presidential power would be despotic; there could be no effective legal check on it at the federal level. [95]

The oath of the judges to uphold the Constitution, identical with that taken by legislative and executive officers, thus means something different for judges than it means for legislators and executives. In legislating, a legislator undertakes the duty to vote for no measure he deems unconstitutional. An executive must not sign any such measure. But once the legislature and the executive have acted, the Supreme Court must, if a relevant case comes before it, say what the law is, including and especially constitutional law. Judges cannot legislate or execute, but they have a sworn duty to judge. They are the ‘third party’—the only one which can legitimately judge because they neither framed nor signed the measure into law. [96] In terms of the regime of republicanism, the judges cannot claim to represent the people in the immediate sense; they are not elected by the people. Marshall affirms their role as spokesmen for the people in the permanent sense; guardians of the one law enacted by the people themselves, the supreme law of the land. Marshall thus converts the apparent weakness of the judiciary, the weakness states’ righters sought to exploit, into a potentially great and abiding strength, a strength that would increase as the Constitution itself became settled in the minds of Americans.

Marshall “endeavor[ed] to build a rule of law that stood apart and was distinct from the vagaries of changing politics and the expediencies of the moment.” [97] This rule of law comports with republicanism if not radical democracy because the constitution it upholds is itself the most direct political act of the sovereign people, ratified by them and not merely enacted by their representatives in government. [98] Constitutionalism is the supreme act of popular self-government. The federal judiciary is the Constitution’s final guardian under the law; its final guardian beyond the law is the people, who can amend or replace it. Constitutionalism saves popular self-government from despotism—towards which, in Marshall’s estimation, the state legislatures had veered under the Articles of Confederation. [99] Marshall in effect replies to Jefferson: ‘In advocating, effectively, legislative sovereignty, you are the ‘Englishman,’ the devotee of parliamentary sovereignty in practice if not in theory. I, John Marshall, am the truer American, defending the rights of the sovereign people according to the plain language of the constitution they ratified.’ Marshall concedes to Jefferson the democracy of the moment. He takes for the Supreme Court the democracy of all time.

 

Conclusion

No man of his generation had more of what might be termed ‘constitutional experience’ than John Marshall. He served in all three branches of the federal government; he had ‘lived’ the issues surrounding balanced, separated powers before he arrived at the Supreme Court. Before entering the federal government he had been a state legislator, ‘living’ the problems of federalism. He lived what one biographer calls a life in law, but he had also lived a life outside law, as a soldier in a revolutionary war. One of the many things he knew about the law, then, was the limits of the law.

The limits of the three branches of government; the limits of state and federal government; the limits of law and the limits of force: Marshall predilection for drawing the fine distinction, for finding the principle of every case, for knowing when not to ‘cross the line’ as a judge into dangerous political territory, all instance his experience in living with and by the American instruments of self-government. Delimitation implies rationality, inasmuch as the principle of non-contradiction itself requires recognizable distinctions among things. Marshall conceived of self-government as precisely this kind of rational liberty, freedom within legal limits but also (in circumstances of just revolution) outside those limits.

Self-government requires a degree of self-knowledge, the philosophic virtue par excellence. Self-government can encompass but does not require greatness of soul, the moral virtue par excellence. Washington, the man of magnanimity, of self-possession or mastery of the heart, can never be the typical citizens among a self-governing people (who are even less like to be a nation of philosophers, as Publius notes), but he can vindicate the rights of such a people, even as a Burr will betray them.

The regime of rational liberty in modernity is commercial republicanism. Self-government in commerce means the right to enjoy the fruits of one’s own labor and the duty to pay one’s debts. A commercial economy conduces to political union and to the end of slavery. Self-government in politics means republicanism or representative government with balanced and separated powers, as distinguished from democracy, where the people legislate without checks, and despotism, where one man does. Democracy and despotism bend law to the desires of the sovereign; they are passionate regimes, ungoverned by rational limits. ‘Democracy and distrust’ must be replaced by ‘republicanism and trust.’ Self-government cannot work in a condition of constant doubt, of ‘self-faction.’ Self-government legislates, executes, judges for itself; if not, will finally look to some external human authority, some priesthood or ruling class, to guide it. Self-government looks not to received opinion but to contract, central both to commerce and to modern republicanism. Contract means that we, the contractors, set the terms of our way of life. We deliberate, reason; we decide; we agree; we enforce our agreement.

For a people, self-government means independence. This requires self-defense, using your own arms, your own troops. when in a condition of relative weakness—a world where there are no other fully republican regimes—an independent people will build its military and economic strength and try to maintain an honorable neutrality. They will thus respect the contract that is ‘the law of nations’ and perhaps avoid conquest, the loss of self-government.

Divide-and-conquer tactics threaten a republican regime as they do any other. Therefore, maintain the political union of the states in the federation. In the United States, union rests on the federal constitution as the supreme law of the land, the expression of the sovereignty of the people as a whole. This law is supreme because it alone embodies the lawmaking authority of the people, beyond the transitory statute laws and the partiality of the states. The constitution must be phrased in general language in order to give scope to prudence, to self-government on the statutory level, where changing circumstances require reforms.

Constitutional union in turns requires a self-governing Supreme Court with power to say what the law is, separated from the legislative power to make law and the executive power to enact and carry out law. As contract, law requires impartial, independent, third-party judges in order to prevent despotic collusion of law makers and law enforcers. Marshall set himself to this task in his lifelong attempt to secure the regime of self-government in America.

 

Notes

1. Faulkner 1968, xix.
2. Letter to Joseph Story, quoted in Beveridge 1919, IV. 79-80. On Jane Austen and self-government, see “The Politics of Self-Knowledge: Mansfield Park and the Re-founding of the English Aristocracy,” in Morrisey 1996, 197-251.
3. Joseph Story and John Quincy Adams, quoted in Faulkner 1968, 166.
4. Marshall 1836, I. 375, 381.
5. Ibid. I. 122; II. 61.
6. Ibid. II. 446.
7. Ibid. II. 447. For the portrait of the great-souled or magnanimous man, the man of megalopsychia, see Aristotle, Nicomachean Ethics 1123b-1125a. For commentary see Faulkner 1968, 127-129. The philosopher who denies the compatibility of greatness of soul and democracy in Bertrand Russell in his A History of Western Philosophy (New York: Simon and Schuster, 1966), 175-176. For a discussion of magnanimity and American politics, see Paul Eidelberg: A Discourse on Statesmanship: The Design and Transformation of the American Polity (Urbana: University of Illinois Press, 1974). Both Washington and Marshall formed themselves on the neo-classical culture of eighteenth-century. Washington’s esteem for Joseph Addison’s play, Cato, is well known. Marshall’s recent biographer, Jean Edward Smith, makes much of the influence of Alexander Pope’s poem, “Essay on Man,” on Marshall specifically and upon the Americans generally. She finds in the poem Marshall’s “political and judicial outlook”: that nature and reason are allied and that a mixed and balanced government is best (Smith 1996, 33-35). One might add that Pope’s famous coda, “WHATEVER IS, IS RIGHT,” refers not only to the rational character of being but to the need for human self-knowledge.
8. Marshall quoted in Smith 1996, 483.
9. Marshall 1937, 18-19.
10. Dr. Randall quoted in Thayer 1967, 118.
11. Dr. Nathaniel Chapman quoted in Beveridge 1919, IV. 587-588. Dr. Chapman probably overestimated the Christianity of his patient. The Episcopal bishop who knew him said Marshall attended church services as “a sincere friend of religion” and to “set an example” (Beveridge 1919, IV. 69-70). Smith 1996 notes that “Throughout his life the chief justice declined to become a member of any congregation, unable to believe in the divinity of Christ” (36). Marshall’s daughter testified that he converted to Christianity during his final illness (Beveridge 1919, 70).
12. Frankfurter 1937, 25, 44.
13. Konefsky 1964, 211.
14. Marshall 1836, II. 447.
15. Publius 1961, 81.
16. Beveridge 1919, I. 59.
17. Marshall 1836, I. 78.
18. Speech before the Virginia Ratifying Convention, June 10, 1788, in Johnson 1974-2006, I. 256-257. See also Beveridge 1919, I. 231.
19. Letter to James Wilkinson, January 5, 1787, Johnson 1974-2006, I. 201.
20. Marshall 1836, II. 348-349.
21. Letter to Augustine Davis, October 16, 1793, Johnson 1974-2006, II. 221-223, 228. See also Marshall: Speech to the Virginia Ratifying Convention, June 16, 1788, Johnson 1974-2006, I. 273. For a treatment of the radical-Whig theme with respect to problems of constitutional interpretation, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980).
22. Marshall 1836, II. 239, 252; Beveridge 1919 II. 27-28, 34, 287-288. On the contrast between Marshall and Jefferson see Corwin 1919, 55 and, more thoughtfully, Faulkner 1968, 55, 173-175. On Jackson, see Faulkner 1968, 189-192.
23. Letter to Richard Peters, July 21, 1815, Johnson 1974-2006, VIII. 99.
24. Faulkner 1968, 18. The philosophic source is Chapter V of John Locke’s Essay on Civil Government. Hobson 1996 offers an interesting supplemental suggestion. The protection of property rights serves “interest,” that is, the “desire for personal security and material well-being.” Interest combines two extremes: reason, which rules only a few men much of the time, and the passions, which rule many men some of the time. Reason combines a ‘low’ r calculating rationality with “controlled passion.” A regime that encourages men to look to their interests will rest on solid and largely peaceful ground (23-24).
25. Baker 1974, 11, 715, 724; Thayer 1967, 101.
26. Corwin 1919, 170-171.
27. Beveridge 1919, IV. 536.
28. Smith 1996, 483.
29. Letter to Timothy Pickering, 1826, quoted in Smith 1996, 489.
30. Frankfurter 1937, 39.
31. Speech to the Virginia Ratifying Convention, June 10, 1788, Johnson 1974-2006, I. 266.
32. Marshall 1836, I. 427.
33. Marshall 1836, I. 441, 444-445.
34. Opinion: Gibbons v. Odgen (1824), Cotton 1969, II. 42, 49-50.
35. Letter to Talleyrand, January 17, 1798, Johnson 1974-2006, III. 300.
36. Argument to the Supreme Court: Ware v. Hylton (1796), Johnson 1974-2006, V (appendix).
37. Opinion: Fletcher v. Peck (1810), Johnson 1974-2006, VII. 231-237. For commentary see McCloskey 1967, 49-53; Smith 1996, 393-394.
38. Opinion: Sturgis v. Crowninshield (1819), Johnson 1974-2006, VIII. 244-250.
39. Opinion: Ogden v. Saunders (1827), Cotton 1969, II. 180-211. For commentary see Konetsky 1964, 142-145.
40. Faulkner 1968, 141.
41. Opinion: Dartmouth College v. Woodward (1819), Johnson 1974-2006, VIII. 225.
42. Opinion: Dartmouth College v. Woodward (1819), Johnson 1974-2006, VIII. 223-238. Hobson 1996 argues that Dartmouth College represents the thorough ‘constitutionalism’ of property rights, that there was now no longer any need, as in Fletcher, to appeal to “vested rights” (90). This ignores Marshall’s dissent in Ogden v. Saunders, more insistence than ever with respect to “vested” or pre-constitutional rights.
43. See Niccolo Machiavelli, The Prince, Chapter XIII.
44. Marshall 1836, I. 133-134, 216, 226.
45. Marshall 1836, I. 133.
46. Speech to the Virginia Ratifying Convention, June 16, 1788, Johnson 1974-2006, I. 273.
47. Address to Washington, August 17, 1793, Johnson 1974-2006, II. 198-199.
48. Speech in Congress, January 7, 1800, Johnson 1974-2006, IV. 56-57.
49. Letter to a Freeholder, September 20, 1798, Johnson 1974-2006, III, 504; Marshall 1937, 14; Letter to Augustine Davis, November 20, 1793, Johnson 1974-2006, II. 241.
50. Letter to Augustine Davis, November 20, 1793, Johnson 1974-2006, II. 246-247; Letter to a Freeholder, September 20, 1798, Johnson 1974-2006, III. 505; Letter to Thomas Posey, January 30, 1799, Johnson 1974-2006, IV. 5-6.
51. Marshall 1836, II. 362; Beveridge 1919, II. 133.
52. Journal entry: September 27, 1797, Johnson 1974-2006, III. 173-174; Letter to Talleyrand, January 12, 1798, Johnson 1974-2006, III. 334-335. On Holland, see Beveridge 1919, II. 230, 235.
53. Opinion: Schooner Exchange v. McFaden, and Greetham (1812), Johnson 1974-2006, VII. 308, 312-313. The same principle may be seen in Marshall opinion in Blane v. Drummond (1803), a U. S. Circuit Course case tried in Virginia. “The proposition that the laws of foreign nations become a part of the law of every civilized nation is true to a certain extent,” Marshall wrote, but the right to sue under bankruptcy laws must be governed by “the principles of jurisprudence established in the country where the suit is brought,” not those of the country where the plaintiff resides. “The laws of one nation” cannot “give a form of action in the courts of another, or authorize a person to maintain an action who could not maintain it by the principles of that forum to which he has applied.” (Johnson 1974-2006, VI. 213-214).
54. Opinion: United States v. Schooner Betty (1801), Johnson 1974-2006, VI. 100. See also Marshall’s opinion in the 1803 United States Circuit Court of North Carolina case, Ogden v. Blackledge, Johnson 1974-2006, VI. 148.
55. White 1988, 681; Faulkner 1968, 52, 55.
56. Opinion: Johnson and Graham’s Lessee v. M’Intosh (1823), Cotton 1969, II. 3.
57. Ibid. 18.
58. Ibid. 20-22.
59. Opinion: Cherokee Nation v. State of Georgia (1831), Cotton 1969, II. 313-314.
60. Ibid. 315.
61. Opinion: Worcester v. Georgia (1832), (1832), Cotton 1969, II. 374-385; White 1988, 734-735.
62. John Locke: An Essay Concerning the True Original, Extent, and End of Civil Government, Chapter II, section 13.
63. Marshall 1836, I. 356; Letter to William Pierce, February 12, 1783, Johnson 1974-2006, I. 95; Beveridge 1919, I. 147.
64. Speech to the Virginia Ratifying Convention, June 16, 1788, Johnson 1974-2006, I. 274. As an envoy in Europe in 1797, Marshall discussed the political divisions in Holland which, he feared, would lead to a replay of the French Revolution on Dutch soil (Letter to George Washington, September 15, 1797, Johnson 1974-2006, III. 140-141). As for the French themselves, he admires them for one thing: “The internal commotions in France produce no external weakness, no diminution of exertion against her enemies. Parties ready to devour each other unite in fighting the battles of their country. In this they display real patriotism.” (Letter to Timothy Pickering, September 9, 1797, Johnson 1974-2006, III. 134). The French are the exception to the general rule.
65. Corwin 1919, 173.
66. For background, see Smith 1996, 453-455, 519.
67. Letter to Joseph Story, September 22, 1832, quoted in Konefsky 1964, 232.
68. Faulkner 1968, 96-98.
69. Patrick Henry quoted in Beveridge 1919, I. 388.
70. Speech to the Virginia Ratifying Convention, June 10, 1788, Johnson 1974-2006, I. 261-262. Emphasis added. In a letter of 1829 Marshall writes that the 1787 constitutional convention established “a real Government, and not a nominal one only” (quoted in Faulkner 1968, 103).
71. Editorial Note, Johnson 1974-2006, VIII. 255.
72. In a newspaper article defending the McCulloch decision against the criticism of the Virginia Junto, Marshall asserted, “The zealous and persevering hostility with which the constitution was originally opposed, cannot be forgotten. The deep rooted and vindictive hate, which grew out of unfounded jealousies, and was aggravated by defeat, though suspended for a time, seems never to have been appeased.” (A Friend of the Constitution, No. 1, June 30, 1919, Johnson 1974-2006, VIII. 318).
73. Opinion: McCulloch v. Maryland (1819), Johnson 1974-2006, VIII. 261-262. See also A Friend to the Union, No. 1, April 24, 1819, Johnson 1974-2006, VII. 293-294. As Marshall himself observes, his position on popular sovereignty is identical to that of James Madison in the Virginia Resolutions of 1798. The Maryland/states’ righters’ innovation was to claim that “states” meant the state governments (ibid. 295-296).
74. Opinion: McCulloch v. Maryland (1819), Johnson 1974-2006, VIII. 262; A Friend of the Constitution, No 6, July 6, 1819, Johnson 1974-2006, VIII. 347. On “compound” government, see The Federalist Nos. 39, 51, 62.
75. Opinion: McCulloch v. Maryland (1819), Johnson 1974-2006, VIII. 263, 267.
76. Ibid. 267-268.
77. Ibid. 267-271. In his contemporaneous polemical essays Marshall cites Vattel and Coke as understanding ‘necessity’ in this broader sense; see A Friend of the Constitution Nos. 2 & 3, Johnson 1974-2006, VIII. 324, 326, 328. See also Konefsky 1964, 180. For further discussion, see Berger 1987, 90-94.
78. Opinion: McCulloch v. Maryland (1819), Johnson 1974-2006, VIII. 273-275. Two of Marshall’s recent commentators emphasize that Marshall’s opinion did not anticipate the much more recent claim that the federal government enjoys constituiona power “to regulate the economy and promote social welfare” (Smith 1996, 445; see also Hobson 1996, 123). Rather, Marshall was fighting a defensive battle against what he took to be anti-Union sentiments. See also Barron v. Baltimore (1833), where Marshall explicitly states that the Bill of Rights applies only to the federal government and not to the states (Smith 1996, 520).
79. Speech to the Virginia Ratifying Convention, June 20, 1788, Johnson 1974-2006, I. 275.
80. White 1988, 118-119.
81. A Friend to the Union No. 1, April 24, 1819, Johnson 1974-2006, VIII. 283; A Friend to the Constitution No. 1, June 30, 1819, Johnson 1974-2006, VIII. 318.
82. Corwin 1919, 122-123.
83. Johnson 1974-2006, V. lviii-lix.
84. Faulkner 1968, 78.
85. Hobson 1996, 34.
86. Thayer 1967, 53-54. In Robert McCloskey’s phrase, the Constitution was “conceived in ambiguity as well as liberty” (McCloskey 1967, 15).
87. Baker 1974, 384-385.
88. Beveridge 1919, III. 23, 28-29, 52, 73-78. For a brief summary of Jefferson’s theory of coordinate construction, see Fisher 1988, 238-239.
89. Hobson 1996, 37.
90. Opinion: Marbury v. Madison (1803), Johnson 1974-2006, VI. 165.
91. Marshall regarded common law as still existing in the states; see Letter to St. George Tucker, November 27, 1800, Johnson 1974-2006, VI. 24.
92. Opinion: Marbury v. Madison (1803), Johnson 1974-2006, VI. 170-172.
93. Ibid. 174.
94. Ibid. 180-181. For further discussion see McCloskey 1967, 40-41 and Fisher 1988, 54-55.
95. Ibid. 183.
96. Ibid. 184-185. This is not to deny that other branches influence constitutional law; for discussion see Fisher 1988, 255.
97. Haskins and Johnson 1981, 286.
98. Konefsky 1964, 83.
99. See Edward S. Corwin: “The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention,” in Loss 1981, I. 58ff. See also Hobson 1996, ix-xii, 59-62.

 

Works Cited

Baker, Leonard. 1974. John Marshall: A Life in Law. New York: Macmillan.

Berger, Raoul. 1987. Federalism: The Founders’ Design. Norman: University of Oklahoma Press.

Beveridge, Albert J. 1919. The Life of John Marshall. 4 vols. Boston: Houghton Mifflin.

Corwin, Edward S. 1919. John Marshall and the Constitution. New Haven: Yale University Press.

Cotton, Joseph P., ed. 1969. The Constitutional Decisions of John Marshall. 2 vols. New York: Da Capo Press.

Faulkner, Robert K. 1968. The Jurisprudence of John Marshall. Princeton: Princeton University Press.

Fisher, Louis. 1988. Constitutional Dialogues: Interpretation as Political Process. Princeton: Princeton University Press.

Frankfurter, Felix. 1937. The Commerce Clause under Marshall, Taney, and White. Chapel Hill: University of North Carolina Press.

_____. 1967. “John Marshall and the Judicial Function.” In Kurland 1967.

Haskins, George Lee and Johnson, Herbert A. 1981. Foundations of Power: John Marshall, 1801-1815.

Hobson, Charles F. 1996. The Great Chief Justice: John Marshall and the Rule of Law. Lawrence: University of Kansas.

Holmes, Oliver Wendell. 1967. “John Marshall.” In Kurland 1967.

Johnson, Herbert A. 1974-2006. The Papers of John Marshall. 12 vols. Chapel Hill: University of North Carolina Press.

Konefsky, Samuel J. 1964. John Marshall and Alexander Hamilton: Architects of the Constitution. New York: Macmillan.

Kurland, Philip B., ed. 1967. James Bradley Thayer, Oliver Wendell Holmes and Felix Frankfurter on John Marshall. Chicago: University of Chicago Press, 1967.

Loss, Richard, ed. 1981. Corwin on the Constitution. 3 vols. Ithaca: Cornell University Press.

Mason, Frances Moore. 1961. My Dearest Polly: Letters of Chief Justice John Marshall to His Wife, with Their Background, Political and Domestic, 1779-1831. Richmond: Garrett and Massie, Inc.

Marshall, John. 1937. An Autobiographical Sketch. Ann Arbor: University of Michigan.

_____. 1836. Life of Washington. 2 vols. Philadelphia: James Crissy.

McCloskey, Robert G. 1967. The American Supreme Court. Chicago: University of Chicago Press.

Morrisey, Will. 1996. Culture in the Commercial Republic. Lanham: University of America Press.

Smith, Jean Edward. 1966. John Marshall: Definer of a Nation. New York: Henry Holt and Company.

Thayer, James Bradley. 1967. “John Marshall.” In Kurland 1967.

White, Edward G. 1988. The Marshall Court and Cultural Change, 1815-1835. New York: Macmillan.

How Democratic Is the Constitution? Edited by Robert A. Goldwin and William A. Schambra. Washington: American Enterprise Institute for Public Policy Research, 1980.

How Capitalistic Is the Constitution? Edited by Robert A. Goldwin and William a Schambra. Washington: American Enterprise Institute for Public Policy Research, 1982.

 

Classifying the American Constitution as democratic provokes as much debate among scholars and polemicists today as it did among polemicists and ordinary citizens at the time of its ratification. Classifying it as capitalistic provokes little debate. Accordingly, Goldwin and Schambra’s first volume debates primarily the nature of the Constitution and secondarily the virtues and defects of democracy, whereas their second volume debates primarily the virtues and defects of capitalism and secondarily the nature of the Constitution. Each volume contains seven essays. As Professor Bernard Lewis has noted, anthologists usually “violate the humane Pentateuchal ban on yoking animals of unequal strength.” But although a philosopher may call scholars oxen, many of us are well instructed by contrasts wrought by editorial inhumanity.

Historian Gordon S. Wood and political scientists Ann Stuart Diamond and Michael Parenti advance arguments for the Constitution’s aristocracy, democracy, and oligarchy, in that order. Wood begins badly, writing that “there was and is no ‘real’ Constitution against which we can measure the conflicting statement of the Federalist and Antifederalists”; a constitution exists only in the minds of its beholders. Wood nonetheless assumes that the contents of those minds can be discerned, thus conveniently rejecting solipsism in historiography even as he asserts it in textual interpretation. Even if one describes the Constitution, in a famous phrase, as a bundle of compromises, this does not suffice to prove the bundle incoherent.

Wood presents a thoughtful account of the Founders’ attempt to give the regime both popular support and what he calls aristocratic rule, by which he means government by capable, virtuous men of some social standing. He suggests that the framers used rhetoric equating democracy with republicanism, in the face of the well-known argument of the tenth Federalist, which he must take as atypical. He claims, over-piously, that they did not do this in such a calculating way  “as here implied”: “Ideas and words are not manipulated or transformed that crudely.” Why “crudely”? The framers’ statesmanship was evidently no less subtle than it needed to be. Indeed, Wood ends by criticizing the Founders for being too thorough, for “further[ing] the American disavowal of any sort of aristocratic conception of politics and encourag[ing] the American belief that the ills of democracy can be cured by more democracy.” He suggests no alternative rhetoric—admittedly a historian’s prerogative. At any rate, the line from even so democratic a republican as Thomas Jefferson to John Dewey and his famous slogan is a bit jagged, inasmuch as Jefferson wanted an agrarian-commercial republic founded upon natural rights and Dewey wanted a socialist society founded upon the supposed laws of historical progress.

Diamond remarks that land is aristocracy’s basis, whereas the Constitution encourages commerce. Therefore, the American regime could not have been intended as an instrument of aristocracy. This ignores both Jefferson’s definition of the natural aristocracy—those of “virtue and talent,” not necessarily landed—and the social positions of the Founders themselves—businessmen and attorneys along with the planters and farmers. She also denies that the claim made by Paul Eidelberg, among others, that this was a mixed regime in the Aristotelian sense, arguing that there were no fixed classes to mix, as rich and poor tended toward the middle. She does not mention that Aristotle would have statesmen encourage a large middle class, although not of course by the ‘modern’ means of commercial acquisition.

Diamond aims her best observation not at Wood’s aristocratic interpretation but at the oligarchic interpretation of Charles Beard and his epigone. The latter characteristically damn the body of the document and worship its appendage, the Bill of Rights. Diamond asserts that “the primary protection for liberty, in all its aspects, lies in [economic activity ‘generated by self-interest’] and in the constitutional institutions themselves, not in the first ten amendments.” She argues less convincingly in claiming that democracy elevates men of “natural merit” to high office, and then observes that such philosophers as Hobbes, Locke, and Smith believed “natural merit” a dubious notion in any case. this merely shows that one does not necessarily exhaust the Founders’ practical wisdom by reference to Hobbes, Locke, and Smith.

Parenti attacks the Constitution from the ‘Left,’ calling it “a legitimating cloak and workable system for the propertied interests at the expense of the ordinary populace.” One is tempted to say that never have so many ordinary people profited so much at their on expense, but Parenti’s essay does serve as a useful qualification of any too-noble sketch of the Founders. Tendentiousness mars his arguments (“the property interests of the slave owners were looked after,” he sneers in passing) but, taken as one voice among seven, he adds a Beardian (Marxist economic-determinist) note that otherwise would be missed.

In the volume’s central essay, Walter Berns refuses to accept the terms of the debate, “The Antifederalists were no more simple majoritarian democrats than the Federalists were aristocrats in any traditional sense.” Modern republicans base their regimes on the liberty justified by natural rights and by which liberty those rights are defended. This liberty is saved from what might call mere idealism by the economic liberty or freedom of commerce which complements political liberty under the Founders’ regime. Economic liberty affords citizens a degree of independence that fortifies citizenship insofar as it sunders the dependence upon aristocrats and oligarchs seen in the ‘Old World.’ One might wonder if the materialism seen in many of the modern political philosophers studied by the Founders might undermine the sense of liberty as easily as it can reinforce it. Can the Founders be said to have had theoretical wisdom in addition to their much-remarked prudence?

Wilson Carey McWilliams concerns himself with a related problem of modern political philosophy. Although Berns contends that the regime has become more democratic since its founding, McWilliams argues that there is less citizen participation today than hitherto. He does not substantiate this claim, using it instead to arrive at the more fundamental point that individualism, particularly self-preservation, cannot comport with genuine political life and that the American regime therefore injures its citizens and undermines itself. He does not say how the small, democratic, communal polities he favors could survive.

The volume’s final two essays speak of what we are, not what we might be Joseph M. Bessette replies to Wood and Parenti by writing that the Founders made a “deliberative democracy” that reconciles moderation and majority rule. “If the citizens possessed the same knowledge and experience as their representatives and if they devoted the same amount of time reasoning about the relevant information and arguments presented in the legislative body, would they reach fundamentally similar conclusions on public policy issues as their representatives? If the answer is yes, then we must conclude that the result is basically democratic.” Obviously true as far as it goes, this assessment fails to reflect the need for the capacity to make good use of knowledge, experience, and leisure. The statesmanship of both Jefferson’s natural aristocrats and Hamilton’s man of ambition fades from view.

Statesmanship concerns Alfred F. Young, who presents an informative historical account of how the Federalists “made democratic concessions to achieve conservative ends,” and how some potential antifederalists came to agree that democracy needed restraint. Of the latter faction, Jefferson in particular came to like the Constitution—”testimony to the powerful pull of the democratic features of the document.” One might add that Jefferson’s conduct as president also testified to the scope the document affords statesmanlike action.

How Democratic Is the Constitution? introduces new students to the principal issues of the founding and invites further reflection by older students. It teaches above all that a comprehensive account of the Constitution would take more than one essay or an anthology of essays. Perhaps the only attempt to describe the Constitution using Aristotle’s regime taxonomy can be found in A Discourse on Statesmanship by Paul Eidelberg. Partisans of the aristocratic, democratic, and oligarchic interpretations will have to surpass Eidelberg before they can claim to have said the best, if not the last, words in the debate.

How Capitalistic Is the Constitution? begins with an able presentation of The Federalist‘s arguments on the political benefits of commerce. Marc F. Plattner describes the practical and theoretical bases for this iew, reminding us that even Jefferson regarded economic redistribution as antisocial, a violation of the right freely to exercise one’s own industry and retain its fruits—”the first principle of association.” Plattner observes that those who “seek to impose on the large republic an economic egalitarianism more appropriate to the small republic” indulge in “a utopian combination of contradictory elements.”

Edward S. Greenberg argues for a neo-Marxist view of “the capitalist state.” He minimizes the importance of the Constitution, believing it primarily a reflection of “the prevailing class relations” in America at the time. Perhaps the most revealing aspect of the essay comes near its end, when he writes that “We have no way of predicting whether [laissez-faire capitalism or corporate capitalism] is capable of successfully taming the emergent crises of the system.” Marx’s proud claim that he had developed the first scientific socialism evidently has lost its plausibility even to his admirers.

Forrest McDonald argues that the Constitutional guarantee of property rights made capitalism possible but not inevitable. Merely owning property is not enough; a capitalist also uses his property “for the purpose of creating more property.” He shows that few Americans, and few of the Founders, were capitalists. Not class relations but statesmanship brought capitalism to America. McDonald credits Alexander Hamilton with shrewdly—indeed surreptitiously—putting the contract clause into the Constitution, with developing the practice of using public debt as the basis of “an institutionalized system of monetized private credit” and, of course, with the establishment of a national bank. “Although most Americans probably would have chosen otherwise, Congress chose the Hamiltonian way.”

Walter Dean Burnham is the volume’s sole ‘liberal.’ He claims that we now have a “zero-sum society” in which the economic growth described by Locke and Smith has, for the most part, ended. He advocates more government control over society in order to distribute what we still produce more equally. He regrets the “feudal,” decentralized institutions of the framers. Nonetheless, “it seems a bit too late in the day for a simple-minded faith in the state as a savior.” “I have no magic formula….”

Neither is magic possessed by Bernard H. Siegman, a ‘conservative’ law professor, or Robert Lekachman, a socialist-democratic economist. Siegman deplores special-interest legislation; whether or not its sponsors’ intentions are egalitarian, the legislation itself almost always gives inequalities the sanction and rigidity of law. The temporary inequalities of commercial flux are more tolerable than the long-lasting inequities of legal inertia. In the volume’s most elegantly-turned and superficial essay, Lekachman complains that the Supreme Court has failed to make “welfare” payment “a Constitutionally-protected right” and dreams of help, if not salvation, from “our own François Mitterand,” an American equivalent of the socialist president of France, who has yet to brighten our national horizon. He does manage some telling criticisms of the ‘small-is-beautiful’ Left, but gives no sign of knowing Plattner’s argument on the problems of pursuing small-republican economics ends in a large republic.

The editors reserve the most original essay for last. Stephen Miller shows how the Founders’ political economy differed from the laissez-faire capitalism of the late nineteenth century. Economic libertarianism offers no place for the statesmanship that transcends commerce. he also argues, perhaps inconsistently, that capitalism has comported with authoritarian and even tyrannical rule. He rejects economic egalitarianism as well. Its partisans do “not realize that it is precisely because most Americans do not think the present distribution of wealth makes any moral sense that they are inclined to accept it”; their economic inferiority reflects no moral judgment on them, feeds no resentment. Having found space for ‘conservatives,’ socialists, and a ‘liberal,’ the editors give the last word to a moderate. They risk being thought inhumane to ideologues.