THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, November 3, 1996 TAG: 9611040168
SECTION: COMMENTARY PAGE: J2 EDITION: FINAL
TYPE: Book Review
SOURCE: BY TOM ROBOTHAM
LENGTH: 92 lines
THE GREAT CHIEF JUSTICE
John Marshall and the Rule of Law
CHARLES F. HOBSON
University Press of Kansas. 256 pp. $35.
John Marshall was, by any standards, an extraordinary man. As chief justice of the Supreme Court between 1801 and 1835, he transformed the nation's highest tribunal from a secondary federal institution into a body on par with the executive and legislative branches of government. But like all extraordinary men, his reputation is based on a combination of fact and myth.
Many of the myths about Marshall stem from Albert J. Beveridge's classic biography of him, first published in 1916. The four-volume work remains invaluable. But even ardent admirers of Marshall now admit that Beveridge's depiction of the great jurist as an almost mythological hero is somewhat distorted.
Charles F. Hobson is one of those admirers. As editor of The Papers of John Marshall at William and Mary's Institute for Early American History and Culture, he has developed a thorough knowledge of the chief justice's life and a keen understanding of his thought. Now Hobson has decided to share his insights with a broader audience.
The Great Chief Justice is not a biography. It is, primarily, a study of Marshall's jurisprudence. Nevertheless, in an opening biographical sketch, Hobson manages to shed light on aspects of Marshall's non-professional life. In the first chapter, for example, we learn that Marshall loved literature and looked forward to a retirement during which he would read nothing but novels and poetry. (He was especially fond of Jane Austen.)
This is no trivial point. It underscores the fact that Marshall was, at heart, a home-loving man who embraced simple pleasures. He never shunned civic duty. During the Revolutionary War he distinguished himself as a captain and shortly thereafter he became a member of the Virginia House of Delegates. But until the late 1790s, he resisted the call of national politics in order to concentrate on earning a living to support his large family.
In 1797, he did agree to serve as a special envoy to France, and two years later he was elected to Congress. During his term in the House, Marshall proved to be a strong supporter of President John Adams, and Adams later rewarded Marshall by appointing him secretary of state. Then, in 1801, he convinced Marshall to accept the chief justiceship of the Supreme Court.
As chief justice, Hobson notes, Marshall fully embraced the idea that the Constitution is the supreme law of the land. In Marbury v. Madison, his first major decision, he established the right of the judiciary to void acts of Congress if they were found to be at odds with the Constitution. And in many subsequent cases, he reiterated this federalist view.
In the South, Hobson notes, this nationalist reading of the Constitution ``provoked impassioned denunciations.'' Some of the most virulent criticism of Marshall came from fellow Virginians, most of whom were vehement supporters of states' rights. But Marshall stood firm in his beliefs for the next three decades.
One of Hobson's most interesting chapters deals with Marshall's decisions concerning the rights of Native Americans. In Johnson v. McIntosh (1823), Marshall asserted that Indians had a legal right to their lands, and nine years later, in Worcester v. Georgia, he ruled that the laws of Georgia could ``have no force'' inside Cherokee Territory. These decisions reflected his personal convictions that European-American oppression of Indians left a ``deep stain on the American character.''
But Hobson demonstrates that these rulings were exceptional: In most cases, including those dealing with slavery, Marshall would not let his sympathies enter into his decisions. ``The Court,'' Marshall wrote, ``must not yield to feelings which might seduce it from its path of duty . . . '' To do so in any individual case, he added, ``would set a dangerous precedent'' that could ultimately undermine the rule of law.
Laypeople often find it difficult to understand such strict adherence to the law - especially when it results in injustice. But Marshall understood that the alternative to the rule of law is the rule of men - and that the latter usually results in tyranny.
Hobson grasps this as well, and he is thus able to explain - in layperson's terms - the wisdom of Marshall's balanced approach. For this reason, The Great Chief Justice is an important book. It is not for everyone. Much of it, in fact, is rather dry. But for anyone who is interested in understanding our nation's legal foundations, the book is well worth the effort. MEMO: Tom Robotham is a historian and writer who lives in Norfolk. ILLUSTRATION: Drawing
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ALSO...
JOHN MARSHALL: DEFINER OF A NATION
[For complete graphic, please see microfilm] by CNB