A Champion of Pragmatic Compromise

John Marshall became one of the most influential chief justices of the United States Supreme Court, even though he had completed just one year of grammar school and six weeks of law school. How this cousin and rival of Thomas Jefferson helped establish the court’s authority and promote a strong federal government, despite his humble beginnings and many political adversaries, is the story that Joel Richard Paul, F82, tells in his new book, Without Precedent: Chief Justice John Marshall and His Times.

Paul is a professor of constitutional and international law at the University of California Hastings Law School in San Francisco. His first book, Unlikely Allies: How a Merchant, a Playwright, and a Spy Saved the American Revolution, which was named one of the best books of 2009 by the Washington Post, exposed the role of deception in the success of the American Revolution.

Similarly, in Without Precedent, Paul shows that politics in the time of the Founding Fathers was no less dirty than it is today. Yet he also demonstrates how a pragmatic leader like Marshall, who fought in the Continental Army as a teenager and served as secretary of state before becoming the nation’s fourth chief justice in 1801, was able to forge compromises that defended the Constitution against populists and preserved the Supreme Court’s independence from and authority over a powerful president and legislative branch.

Kirkus Reviews calls the book “a well-informed, perceptive, and absorbing biography of a titan of American history.”

To learn more about Marshall’s achievements and how he continues to affect American law and diplomacy, we talked with Paul, who will be coming to the Boston area to promote his book in early March.

Tufts Now: Why did you decide to write a biography of John Marshall?

Joel Richard Paul:

Teaching constitutional law, as I have now for thirty-plus years, you can’t help but be interested in the man. He came from nothing, he had no education, and he plucked legal doctrines out of thin air and created the whole framework for the way we interpret the Constitution, for the relationship between branches of our government, and for international law. He was a self-made man who invented not just himself, but also the law. I wanted to find out how he did that.

When Marshall became chief justice, it was not a highly regarded position. The Supreme Court had a small docket and little authority. How did Marshall help change that in his 34 years on the court?

First of all, he rejected the existing system of deciding cases. Normally each judge would issue his own opinion. But Marshall insisted that they have one opinion of the court. Of the more than 1,100 decisions he participated in, nearly all were unanimous decisions, and Marshall personally wrote about half of all the court’s opinions. By speaking with one voice, the court was transformed from a loose collection of judges with differing opinions to the authoritative interpreter of the Constitution.

Secondly, he was very strategic in the decisions that he authored, to avoid direct confrontation with the political branches. He leveraged the court’s position in Marbury vs. Madison by establishing the court’s authority to review the actions of both Congress and the president. In these ways, he elevated the court and single-handedly established it as a co-equal branch of government.

Speaking of Marbury vs. Madison, according to your research, Marshall’s brother probably made up his testimony in that case, and Marshall may have even asked his brother to lie. How does that affect your judgment of him?

There are a number of points in the book where Marshall was less than virtuous. In that case he suborned perjury from his brother, who was himself a federal judge, but he did it to allow Marbury to introduce into evidence a fact that everybody in the whole country knew to be true, but that could not otherwise be proven.  At that time Jefferson and the Republicans were trying to impeach all the Federalist judges and politicize the judicial branch. In that context, Marshall was trying to defend the rule of law. Without his brother’s perjured testimony Marshall could not have asserted judicial review and defended the independence of the judiciary. Perhaps then this artifice was justifiable.

That’s one of several points in his career when Marshall seemed to be trying to hold the country together, while not forcing a direct confrontation that could lead to a constitutional crisis. How do you think the U.S. would have fared with a different justice leading the Supreme Court in those years?

In fact, we know the answer to that. The actions of the chief justice who followed him, Roger Taney, ultimately led to the Civil War, because of Taney’s ham-fisted way of leading the court. He wrote the Dred Scott decision [declaring that people of African descent could not be American citizens] that made the Civil War almost inevitable. I think if Marshall had lived longer, he would have reached a different conclusion in the Dred Scott case.

It’s true that Marshall opposed the slave trade, represented slaves pro bono in some cases, and wanted to outlaw discrimination against African-Americans. Yet he owned slaves himself, he upheld the right to own slaves in the slave states, and in a case involving slave ships that were seized at sea, he said that the U.S. could not free the slaves outright. What do you make of Marshall’s record on slavery?

It’s definitely a divided record. Given that he did own slaves, he tried to find a path toward emancipation. Marshall feared that freed slaves would never be fully accepted by white southerners, and he thought the best solution was to re-settle them in Africa. He was one of the leaders of the American Colonization Society to create a free state for African-Americans. As a Virginia legislator he fought to make it easier for slave owners to emancipate their slaves. Most importantly, Marshall supported a strong federal government that he hoped could eventually regulate slavery out of existence.

You write that in his conduct of the 1807 treason trial of Aaron Burr, Marshall “did more to secure free expression and prevent tyranny than any other court in our history.” How did he do that?

Jefferson prosecuted Burr based in part on the ancient common law doctrine of constructive treason that made it a crime punishable by death to criticize the king. If Jefferson had succeeded in obtaining a guilty verdict against Burr, the president could shut down any dissent. Jefferson was furious that Marshall rejected the theory of constructive treason. The irony of that case was that it was Marshall who saved Jefferson’s reputation from Jefferson’s own folly. If Aaron Burr had been hung, we would remember Jefferson today as a bloodthirsty tyrant.

That case is one of the reasons you judge Jefferson rather harshly in the book. Why do you take Marshall’s side in the rivalry between him and his cousin?

Jefferson grew up surrounded by privilege and wealth, yet he presented himself as the champion of the common man. Marshall, by contrast, was a conservative who defended wealth and property, but he himself grew up dirt-poor on the frontier of Virginia with fourteen siblings in a two-room log cabin. Marshall had a close relationship with common people and never forgot who he was. He believed in a kind of progressive conservatism, in the mold of Edmund Burke. He recognized that the country needed to build a modern national economy, which Jefferson and the Republicans opposed. Jefferson could not see beyond a local agrarian slave economy.

Jefferson was deeply jealous of Marshall. He felt that Marshall was undeserving, that he had risen too far too fast, that he wasn’t really one of the elite. Jefferson was also somewhat paranoid, secretive, and conspiratorial. The most dramatic example of that in the book is when Jefferson, as secretary of state, secretly plots with the French ambassador, Citizen Genêt, to start a war against Spain at a time when that was contrary to U.S. policy. Ironically, Jefferson later prosecuted Aaron Burr for essentially the same crime—plotting war against Spain.

Marshall wasn’t always able to prevail in important debates of his day. For example, in a case involving the Cherokee Nation, he decided that Europeans’ “discovery” of the region did not give them the right to dispossess American Indians. Yet President Andrew Jackson refused to enforce that decision, and the Cherokee were later forcibly removed from their lands, with 4,000 dying on the Trail of Tears. Did this case show the limits of Marshall’s power?

Well, in fairness, he was dead by the time the Trail of Tears happened, so he couldn’t have stopped Jackson. While Marshall was still alive Jackson refused to enforce the court’s decision, and there was little he could do. But Marshall’s three great opinions on the rights of tribal nations remain the foundation of Indian law in U.S. court today. They defined the rights of Indians and their relationship to the federal government. That was one of the hardest chapters for me to write. I felt that despite his best efforts Marshall failed to accomplish a good result.

As a law professor, you might be expected to focus exclusively on the legal cases Marshall decided. But you also describe Marshall the politician, diplomat, and family man. Why was it important to you to consider his full career?

Originally the book was going to be about his life as a diplomat, largely focused on his role in the XYZ Affair. Here was this unsophisticated American, a frontiersman and small-town lawyer, sent abroad on to somehow persuade the French revolutionary government to stop interfering with American shipping. Marshall arrives, and he’s so far out of his element. He’s surrounded by French spies and agents who try to threaten and cajole him into paying a million-dollar bribe to the amoral foreign minister Talleyrand. But Marshall stood his ground and wrote some of the most thoughtful diplomatic papers in our history, defending American Exceptionalism and international law. The XYZ affair both launched his political career and shaped his jurisprudence.  My editor loved it, but he felt that readers would be hungry for the full story of Marshall’s remarkable life, so I just kept writing about Marshall as a husband, a statesman, and a jurist.

Marshall and his colleagues don’t come across as saints in your book. How does that connect with our current political climate?

If we recognize that the great figures in American history were as flawed and as human as our politicians are today, we would see the possibility of reaching political compromises and finding pragmatic solutions. If we think that George Washington, Thomas Jefferson, and John Adams were demi-gods, then we resign ourselves to the present dysfunction of our government. I believe that it is always possible for people of good will to find reasonable solutions to lead the country in a better direction.

Joel Richard Paul will be talking about his new book on Monday, March 5, at noon at the Boston Athenaeum and at 7 p.m. the same day at the Harvard Club of Boston.

Heather Stephenson can be reached at heather.stephenson@tufts.edu.