With­out Prece­dent: John Mar­shall and His Times by Joel Richard Paul

The New York Review of Books - - Contents - Jed S. Rakoff

With­out Prece­dent:

John Mar­shall and His Times by Joel Richard Paul. River­head, 502 pp., $30.00

Ge­orge Wash­ing­ton was an in­spir­ing leader, and Thomas Jef­fer­son could turn a phrase; but to fed­eral judges, the great­est of the Found­ing Fa­thers was un­doubt­edly John Mar­shall, chief jus­tice of the US Supreme Court from 1801 to 1835, who forged the rule of fed­eral law in Amer­i­can life. In his four-vol­ume Life of John Mar­shall (1916), Al­bert J. Bev­eridge writes, “The work of John Mar­shall has been of supreme im­por­tance in the de­vel­op­ment of the Amer­i­can Na­tion, and its in­flu­ence grows as time passes.” But Bev­eridge then cau­tions that “such ex­alted, if vague, en­comium has been paid him, that, even to the le­gal pro­fes­sion, he has be­come a kind of myth­i­cal be­ing, en­dowed with virtues and wis­dom not of this earth.” None­the­less, Bev­eridge’s bi­og­ra­phy is largely a pan­e­gyric to Mar­shall, and the ti­tles of more re­cent bi­ogra­phies, such as Jean Ed­ward Smith’s John Mar­shall: De­finer of a Na­tion (1996) and Howard Giles Unger’s John Mar­shall: The Chief Jus­tice Who Saved the Na­tion (2014), in­di­cate how much Mar­shall is still viewed with an awe that may in­hibit crit­i­cal think­ing.

Some­thing of a cor­rec­tion, how­ever, is pro­vided by a fine new bi­og­ra­phy of Mar­shall by Joel Richard Paul of Hast­ings Law School. While Paul greatly ad­mires Mar­shall, he con­sci­en­tiously pro­vides the ev­i­dence on which a more nu­anced as­sess­ment of Mar­shall may be made. In par­tic­u­lar, it may be sug­gested that Mar­shall, while hugely in­stru­men­tal in as­sur­ing for the fed­eral ju­di­ciary its lim­ited su­per­vi­sory role over the leg­isla­tive branch, ex­hib­ited a sub­servience to the ex­ec­u­tive branch that con­tin­ues to haunt us.

Cer­tainly there was a heroic as­pect to Mar­shall’s rise to promi­nence. While it is com­mon­place to think of him as a mem­ber of the colo­nial Vir­ginia aris­toc­racy, in fact he was the prover­bial “poor cousin.” Although his ma­ter­nal grand­mother had been born a Ran­dolph (a fa­bled “First Fam­ily of Vir­ginia”), she was dis­in­her­ited af­ter be­ing caught in fla­grante delicto with a Scot­tish min­is­ter, James Keith. Ban­ished to the barely de­vel­oped wilds of western Vir­ginia, the two even­tu­ally mar­ried, but the taint of scan­dal con­tin­ued to hang over their chil­dren, in­clud­ing Mar­shall’s mother, Mary Keith, who, bereft of money and con­nec­tions, wound up mar­ry­ing a farmer of mod­est means. In fron­tier fash­ion, they lived in a two-room log cabin in Ger­man­town, Vir­ginia, while rais­ing fif­teen chil­dren, of whom John Mar­shall, born in 1755, was the el­dest.

Un­like his sec­ond cousin Thomas Jef­fer­son, who was born on a large plan­ta­tion and re­ceived years of pri­vate tu­tor­ing be­fore en­ter­ing the Col­lege of Wil­liam and Mary at age six­teen, Mar­shall was largely self-taught and had no more than one year of for­mal school­ing. His first job of any con­se­quence was as a sol­dier in the Rev­o­lu­tion­ary War, in which, dur­ing the win­ter at Val­ley Forge, he met Ge­orge Wash­ing­ton, who there­after served as one of his men­tors. (Years later, Mar­shall wrote a five-vol­ume bi­og­ra­phy of Wash­ing­ton that, as Paul puts it, “was the first of many pres­i­den­tial bi­ogra­phies to flop.”)

Fol­low­ing the Rev­o­lu­tion­ary War, Mar­shall en­rolled in the law cur­ricu­lum at the Col­lege of Wil­liam and Mary, but again un­like Jef­fer­son (who grad­u­ated from the col­lege with high­est honors), he lasted only six weeks be­fore drop­ping out. Nev­er­the­less, he passed the bar ex­am­i­na­tion and be­came li­censed to prac­tice law in Vir­ginia.

On these lim­ited foun­da­tions, Mar­shall built a com­mand of the law and a skill in oral and writ­ten ad­vo­cacy that quickly made him a leader of the Vir­ginia bar. In the man­ner of the day, his law prac­tice was ex­tremely var­ied, in­volv­ing ev­ery­thing from draw­ing up sim­ple wills, deeds, and con­tracts to ne­go­ti­at­ing and, where nec­es­sary, lit­i­gat­ing com­plex com­mer­cial mat­ters, with the oc­ca­sional crim­i­nal case thrown in for good mea­sure. But in a bar that also fea­tured Jef­fer­son, Ed­mund Ran­dolph, Pa­trick Henry, and James Mon­roe, Mar­shall quickly es­tab­lished a rep­u­ta­tion as one of the best. Whether this be­speaks ge­nius or sim­ply per­se­ver­ance, there can be no doubt that he was an early ex­am­ple of that ide­al­ized Amer­i­can pro­to­type, the “self-made man.” It also did not hurt that, by all ac­counts, he was con­vivial, hon­est, de­pend­able, good­look­ing, self-ef­fac­ing, well con­nected, and ca­pa­ble of in­spir­ing con­fi­dence. Like many lawyers, Mar­shall had a pen­chant for pol­i­tics, and in the turmoil that even­tu­ally led to the draft­ing of the Con­sti­tu­tion in 1787 and the sub­se­quent bat­tle over its rat­i­fi­ca­tion, he sided with the Fed­er­al­ists in fa­vor­ing a stronger cen­tral govern­ment, while many prom­i­nent Vir­gini­ans—cog­nizant of Vir­ginia’s sta­tus as the largest and wealth­i­est of the for­mer thir­teen colonies—backed the anti-Fed­er­al­ists in want­ing the states to re­tain nearto­tal sovereignty. When the Fed­er­al­ists pre­vailed and the Con­sti­tu­tion was rat­i­fied, Mar­shall be­came, in ef­fect, the Vir­ginian to whom the Fed­er­al­ists (whose pri­mary base was in New Eng­land) would turn when they needed a lo­cal man to ar­tic­u­late their cause. Even­tu­ally, how­ever, Mar­shall rose to na­tional promi­nence, largely as a re­sult of the so-called XYZ Af­fair. In 1797, newly elected pres­i­dent John Adams sent Mar­shall and two other en­voys, Charles Pinck­ney and El­bridge Gerry, to Paris to try to ne­go­ti­ate an end to French depre­da­tions of US ship­ping that were a side ef­fect of the on­go­ing war be­tween Bri­tain and France. But when the Amer­i­cans reached Paris, they were ap­proached in turn by three emis­saries—X, Y, and Z—of the French for­eign min­is­ter, Charles Mau­rice de Tal­leyrand-Périg­ord, who de­manded a per­sonal bribe as the price of an au­di­ence.

When it sub­se­quently be­came known that the Amer­i­cans had stoutly re­fused to pay any bribe, even at the cost of their mis­sion, they be­came na­tional he­roes. Af­ter Mar­shall re­turned from France in June 1798, pa­rades were held in his honor and, as Paul de­scribes it, “church bells rang for hours, can­nons roared, and crowds lined the streets.” Less than a year later, Mar­shall, an avowed Fed­er­al­ist, was elected to Con­gress from a Vir­ginia dis­trict that was oth­er­wise staunchly Repub­li­can (the Repub­li­cans, or Jef­fer­so­ni­ans, be­ing the suc­ces­sors to the anti-Fed­er­al­ists). And just a year af­ter that, in May 1800, Adams ap­pointed Mar­shall sec­re­tary of state.

Not long af­ter Mar­shall took of­fice, how­ever, the Repub­li­cans swamped the Fed­er­al­ists in the na­tional elec­tions of No­vem­ber 1800, win­ning ma­jori­ties in both houses of Con­gress. In the sub­se­quent vot­ing in the Elec­toral Col­lege, Jef­fer­son, af­ter ini­tially be­ing tied with Aaron Burr, was elected pres­i­dent. (A few years later, Mar­shall, as chief jus­tice, would pre­side over the trial of Burr for trea­son, which ended when Mar­shall, to the dis­may of Jef­fer­son, di­rected the jury to ac­quit Burr.) In re­sponse to these Repub­li­can vic­to­ries, the lame-duck Fed­er­al­ists de­cided to pack the fed­eral courts with as many of their own as they could in­duce to take on ju­di­cial ap­point­ments. First in line was Mar­shall, who on Jan­uary 27, 1801, was con­firmed by the de­part­ing Fed­er­al­ist Se­nate as the fourth chief jus­tice of the United States. Mar­shall, like many other no­table lawyers, had pre­vi­ously re­fused nom­i­na­tion to the Supreme Court. In­deed, it was no great thing to be a Supreme Court jus­tice in those days, for the Court’s docket was largely lim­ited to mar­itime cases; the real ac­tion was in the state courts. The jus­tices also had to live to­gether in board­ing­houses and “ride cir­cuit” over muddy roads and dif­fi­cult ter­rain to hear cases in var­i­ous lo­ca­tions far from Wash­ing­ton.

Paul spec­u­lates that Mar­shall ac­cepted the ap­point­ment as chief jus­tice “out of a sense of duty.” Specif­i­cally, Mar­shall viewed Jef­fer­son as a hyp­ocrite and a dem­a­gogue:

For Mar­shall’s whole life, from the poverty of his boyhood to his ser­vice in the Con­ti­nen­tal Army to his po­lit­i­cal fights in Vir­ginia, he had been locked in a bit­ter ri­valry with the cousin who was born with all the ad­van­tages that Mar­shall’s fam­ily had been de­nied .... [In Mar­shall’s view] Jef­fer­son was a rad­i­cal ide­o­logue, and Mar­shall had wit­nessed how French ide­o­logues had un­der­mined the rule of law. Jef­fer­son lacked gen­uine em­pa­thy and em­bod­ied pre­cisely the kind of elitism that he at­tacked in the­ory.

In these cir­cum­stances, ac­cord­ing to Paul, Mar­shall, in ac­cept­ing ap­point­ment as chief jus­tice, “saw him­self as de­fend­ing the Con­sti­tu­tion against the on­slaught of the Jef­fer­so­ni­ans.”


But as Paul also men­tions, Mar­shall’s po­lit­i­cal ca­reer was likely fin­ished, as his dis­trict in Vir­ginia had re­turned to be­ing solidly Repub­li­can. More­over, the Supreme Court po­si­tion

would pro­vide fi­nan­cial se­cu­rity, since Mar­shall’s law prac­tice, largely placed in abeyance dur­ing his so­journ in Wash­ing­ton, was un­likely to earn him as much as the chief jus­tice’s salary of $4,000. Per­haps too he was not as em­bar­rassed as he pro­fessed to be about be­com­ing a na­tional celebrity, and was not im­mune to what is now known as “Po­tomac fever.”

In any event, Mar­shall had plenty of com­pany among Fed­er­al­ists who ac­cepted these lame-duck ap­point­ments. The out­go­ing Fed­er­al­ist Con­gress cre­ated six­teen fed­eral cir­cuit judge­ships and forty-two new po­si­tions for fed­eral jus­tices of the peace (low-level ju­di­cial func­tionar­ies). All these po­si­tions were filled by Fed­er­al­ists nom­i­nated and con­firmed in Adams’s last days in of­fice, giv­ing rise to the satiric ti­tle of “mid­night judges.” In Jef­fer­son’s view, “The Fed­er­al­ists have re­tired into the ju­di­ciary as a strong­hold, and from that bat­tery all the works of re­pub­li­can­ism are to be beaten down and erased.” Both Jef­fer­son and Mar­shall thus viewed Mar­shall’s as­cent to the Supreme Court as part of a bat­tle for the soul of Amer­ica, how­ever much it might also ap­pear as part of a fam­ily feud. But what­ever his mo­ti­va­tions, Mar­shall’s tim­ing in ac­cept­ing the po­si­tion was im­pec­ca­ble, for dur­ing his ten­ure the size and scope of the Court’s work ex­panded greatly, with a con­comi­tant rise in its power and im­por­tance. For ex­am­ple, as the na­tion’s econ­omy be­gan to grow and be­come more in­ter­con­nected, great ques­tions arose about whether con­trol over in­ter­state com­merce was to be rel­e­gated to the states, to the fed­eral govern­ment, or to some com­bi­na­tion of the two—ques­tions the Mar­shall Court defini­tively an­swered in fa­vor of fed­eral con­trol in cases such as Gib­bons v. Og­den (1824).

Sim­i­larly, as the fed­eral trea­sury, un­der Alexan­der Hamil­ton’s lead­er­ship, played an ever-larger part in bank­ing, ques­tions arose as to whether the fed­eral power to tax and to is­sue cur­rency in­di­rectly con­ferred a power to cre­ate a fed­eral bank, a ques­tion the Court again defini­tively an­swered in fa­vor of a broad ap­pli­ca­tion of fed­eral power in McCul­loch v. Mary­land (1819). In these and many other ways, the Mar­shall Court greatly en­hanced the power of the fed­eral govern­ment over the states, but in the process also en­hanced the power of the ex­ec­u­tive. Over the thirty-four years that Mar­shall was chief jus­tice, the Supreme Court is­sued no fewer than 1,129 de­ci­sions. Re­mark­ably, all but 87 of them (and all but 36 of the 547 opin­ions au­thored by Mar­shall) were unan­i­mous, even though the Court was deeply di­vided through­out most of these years be­tween Fed­er­al­ists and Repub­li­cans (who later evolved into Whigs and Democrats, re­spec­tively).

Paul at­tributes this una­nim­ity not only to Mar­shall’s force of per­son­al­ity and char­ac­ter but also to his zeal for achiev­ing con­sen­sus. And as a prac­ti­cal mat­ter, the seven jus­tices hav­ing to bunk to­gether in the same board­ing­house must have put a pre­mium on get­ting along with one an­other. But per­haps achiev­ing una­nim­ity was made eas­ier by the fact that in so many of these early cases, they were writ­ing on a rel­a­tively blank slate, largely un­ham­pered by bind­ing prece­dents (though they would look to English law for guid­ance)—hence the ti­tle of Paul’s book, With­out Prece­dent. Con­scious that they were lit­er­ally cre­at­ing the prece­dents that would bind fu­ture gen­er­a­tions, the jus­tices as a group may have been pre­dis­posed to­ward com­pro­mise and con­sen­sus.

This ten­dency was fur­ther en­hanced by an im­por­tant change Mar­shall in­tro­duced early in his ten­ure. Prior to his ar­rival, each jus­tice ren­dered a sep­a­rate oral opin­ion in each case, this be­ing the style in English courts. But Mar­shall de­cided that the Court’s au­thor­ity would be in­creased if it acted as a whole and is­sued a sin­gle opin­ion (or, if di­vided, a sin­gle ma­jor­ity opin­ion), de­liv­ered orally but then put in writ­ing.

Too much com­pro­mise can, how­ever, cre­ate its own prob­lems. As a gen­eral mat­ter, the An­glo-Amer­i­can le­gal sys­tem val­ues con­sis­tency and pre­dictabil­ity, while ju­di­cial de­ci­sions that lean to­ward com­pro­mise are of­ten am­bigu­ous and un­cer­tain in their fu­ture ap­pli­ca­tion. The com­pro­mises forged by Mar­shall on the Supreme Court, although worded in the lan­guage of strong ju­di­cial over­sight, some­times en­tailed a barely con­cealed def­er­ence to un­law­ful ex­ec­u­tive ac­tion. Con­sider two of the most fa­mous cases from Mar­shall’s ten­ure: Mar­bury v. Madi­son (1803) and Chero­kee Na­tion v. Ge­or­gia (1831).

Mar­bury v. Madi­son is typ­i­cally cited as the first case in which the Supreme Court, af­ter flatly as­sert­ing its power to be the fi­nal ar­biter of the mean­ing of the Con­sti­tu­tion, im­ple­mented that power of ju­di­cial re­view by declar­ing an act of Con­gress un­con­sti­tu­tional. (The Court would not do so again for an­other fifty-four years, with the Dred Scott de­ci­sion.) But per­haps Mar­bury v. Madi­son de­serves a closer look, specif­i­cally for how it de­ferred to the power of the pres­i­dent.

The facts of the case were pe­cu­liar, and to­day would al­most cer­tainly have led Mar­shall to re­cuse him­self. The ap­point­ments of the six­teen cir­cuit judges (in­clud­ing Mar­shall’s brother James) and forty-two jus­tices of the peace con­firmed by the Fed­er­al­ists in the very last days of the Adams ad­min­is­tra­tion would not take ef­fect un­til their for­mal com­mis­sions were signed by the pres­i­dent and the sec­re­tary of state (who also had to af­fix the Great Seal of the United States) and then de­liv­ered to the ap­pointees. On Adams’s last day in of­fice, March 3, 1801, the out­go­ing sec­re­tary of state—Mar­shall—duly cosigned all the com­mis­sions (they had al­ready been signed by the pres­i­dent) and de­liv­ered them to the six­teen cir­cuit judges (in­clud­ing James Mar­shall), but some­how ne­glected to ar­range for the de­liv­ery of the com­mis­sions of the forty-two jus­tices of the peace, which were found the next day on his va­cated desk at the State Depart­ment. In due course the new pres­i­dent, Jef­fer­son, still fu­ri­ous at the Fed­er­al­ist takeover of the ju­di­ciary, di­rected Levi Lin­coln Sr., an in­terim sec­re­tary of state, not to de­liver sev­en­teen of these com­mis­sions, in­clud­ing that of Wil­liam Mar­bury, who, joined by sev­eral of the other pu­ta­tive jus­tices of the peace, then brought suit.

Mar­bury and his coplain­tiffs filed with the Supreme Court an emer­gency ap­pli­ca­tion fa­mil­iar to lawyers to­day: an “or­der to show cause” de­mand­ing that James Madi­son (who had now taken up his post as sec­re­tary of state) give rea­sons why he should not be “man­damused,” that is, forced to de­liver the com­mis­sions. In re­sponse, Madi­son, declining to ac­knowl­edge the Court’s ju­ris­dic­tion, chose not to ap­pear, though he did send a lawyer. Pres­i­dent Jef­fer­son let it be known in ad­vance that if the Court or­dered him or Madi­son to de­liver the com­mis­sions, the re­sponse would be a re­fusal.

The Court none­the­less held a four­day ev­i­den­tiary hear­ing, dur­ing which it had to be proved that the plain­tiffs had been con­firmed as jus­tices of the peace and that their com­mis­sions had been prop­erly signed and sealed. But the ac­tual sig­na­tory, John Mar­shall, could not be called as a wit­ness, since he was pre­sid­ing over the case as chief jus­tice. There­fore, plain­tiffs’ coun­sel in­tro­duced an af­fi­davit from James Mar­shall, aver­ring that the com­mis­sions had been signed and sealed. Although Paul ar­gues per­sua­sively that the af­fi­davit was “most likely a com­plete fab­ri­ca­tion” and that James Mar­shall prob­a­bly had no per­sonal knowl­edge of whether his brother had signed the com­mis­sions for the jus­tices of the peace, John Mar­shall, sit­ting as the pre­sid­ing judge, ac­cepted his brother’s af­fi­davit in ev­i­dence.

A few days af­ter the hear­ing, the Supreme Court is­sued its de­ci­sion. On the one hand, the Court held that the plain­tiffs had a right to their com­mis­sions and that Madi­son’s re­fusal to de­liver them or rec­og­nize the plain­tiffs as jus­tices of the peace was flatly un­law­ful: “To with­hold the com­mis­sion, there­fore, is an act deemed by the Court not war­ranted by law, but vi­ola­tive of a vested le­gal right.” Fur­ther­more, the Court stated, “the Govern­ment of the United States has been em­phat­i­cally termed a govern­ment of laws, and 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.”

Ac­cord­ing to the Court, the ap­pro­pri­ate way to rem­edy the vi­o­la­tion was to or­der the ex­ec­u­tive to de­liver the com­mis­sions, i.e., grant man­damus. And the Ju­di­ciary Act of 1789 (the very first ju­di­ciary act passed by Con­gress) ex­pressly gave the Supreme Court that power. But un­der the Con­sti­tu­tion, the ju­ris­dic­tion of the Supreme Court was lim­ited, with ex­cep­tions not here rel­e­vant, to ap­pel­late ju­ris­dic­tion; and while it could there­fore is­sue man­damus to en­force its ap­pel­late de­ci­sions, to the ex­tent that the Ju­di­ciary Act pur­ported to give the Court the power to grant man­damus in a non­ap­pel­late pro­ceed­ing, the act was un­con­sti­tu­tional. Too bad for Mar­bury.


Paul points out, if the Court lacked the power to is­sue man­damus in this mat­ter, why did it not sim­ply dis­miss the pe­ti­tion at the out­set? Why un­der­take a four-day hear­ing (with all its doubt­ful shenani­gans) and why, in any event, de­clare the fail­ure to grant the com­mis­sions un­law­ful, when the Court should not be even hear­ing the case? Paul as­serts that Mar­shall glossed over all this be­cause he wanted a ve­hi­cle for as­sert­ing the power of the Court. In Mar­shall’s mem­o­rable words, it “is em­phat­i­cally the province and duty of the ju­di­cial depart­ment to say what the

law is,” even if it means declar­ing an act of Con­gress un­con­sti­tu­tional. But this bold as­ser­tion should not wholly blind us to the fact that Mar­shall is here try­ing to have it both ways. He first de­clares that the ex­ec­u­tive has acted un­law­fully and that the Supreme Court has the fi­nal word. But he winds up men­tion­ing that the Court has no power in this case to do any­thing about the clear vi­o­la­tion of law it has de­ter­mined the ex­ec­u­tive to have com­mit­ted.

Paul none­the­less con­cludes, as have vir­tu­ally all prior bi­og­ra­phers:

Mar­bury v. Madi­son demon­strated Mar­shall’s po­lit­i­cal ge­nius. He struck a prag­matic com­pro­mise that avoided a direct con­flict with the pres­i­dent while he as­serted the Court’s au­thor­ity to hold both Con­gress and the ex­ec­u­tive ac­count­able to the Con­sti­tu­tion.

I think this is only partly true. By hold­ing an act of Con­gress un­con­sti­tu­tional, the Court def­i­nitely as­serted its power to serve as a check on leg­isla­tive ex­cess, even if, some­what iron­i­cally, the ex­cess con­sisted in giv­ing too much power to the ju­di­ciary. But how can it be said that the Court held the ex­ec­u­tive ac­count­able to the Con­sti­tu­tion when the opin­ion, hav­ing flatly de­ter­mined that Madi­son had acted un­law­fully when he re­fused to de­liver the com­mis­sions, de­clined to en­force the law or vin­di­cate the plain­tiffs’ ac­knowl­edged rights? Mar­shall had al­ready stated in the very same opin­ion that if the law is to mean any­thing, there must be a rem­edy for a vi­o­la­tion of rights; and yet the opin­ion nowhere in­di­cates what rem­edy Mar­bury might avail him­self of. Looked at in this way, Mar­bury can be viewed as ju­di­cial pos­tur­ing that barely con­ceals a sub­mis­sion to ex­ec­u­tive power.

In fair­ness, it must be noted that Mar­shall was writ­ing at a time when the power of the Court to ac­tu­ally en­force its de­ci­sions was in doubt, and this re­mained true through­out his ten­ure. In the face of is­sues like slav­ery that were in­creas­ingly tear­ing the na­tion apart, it took courage for him to con­tin­u­ally re­assert the re­spon­si­bil­ity of the Court as the fi­nal ar­biter of the law of the land. He did so, more­over, in a long se­ries of mon­u­men­tal de­ci­sions, writ­ten in his in­spir­ing and ma­jes­tic prose, that in the end left no doubt that that was the Court’s view.

Among much else, the Mar­shall Court also rat­i­fied the supremacy of the fed­eral govern­ment over state gov­ern­ments in those sit­u­a­tions where their pow­ers over­lapped, de­fended the prop­erty rights of in­di­vid­u­als against in­tru­sions by both state and fed­eral au­thor­i­ties (this ap­proach very much re­flect­ing Mar­shall’s Fed­er­al­ist views), made in­ter­na­tional law part of the law of the United States, and took an evo­lu­tion­ary view of the Con­sti­tu­tion that would not be se­ri­ously ques­tioned un­til the as­cen­dancy of Jus­tice An­tonin Scalia. But few of these mar­velous de­ci­sions dealt with chal­lenges to the ex­er­cise of power by the fed­eral ex­ec­u­tive branch.

One area where the ex­er­cise of ex­ec­u­tive power fre­quently did seem to run afoul of the law was in deal­ings with Na­tive Amer­i­can tribes. Late in Mar­shall’s ten­ure, this con­flict came to a head in the case of Chero­kee Na­tion v. Ge­or­gia. The Chero­kee oc­cu­pied a good deal of land in the western part of Ge­or­gia, but when gold was dis­cov­ered there in 1828, Ge­or­gia seized con­trol of their gold mines and re­asserted ju­ris­dic­tion over their ter­ri­tory. Pres­i­dent An­drew Jack­son, the for­mer In­dian fighter, an­nounced a fed­eral plan to forcibly re­move the Chero­kee to lands fur­ther west and pushed through Con­gress the In­dian Re­moval Act of 1830, which autho­rized him to im­ple­ment his plan.

The Chero­kee Na­tion fought back and filed a de­mand for in­junc­tive re­lief in the Supreme Court, not­ing that a pro­vi­sion of Ar­ti­cle III of the Con­sti­tu­tion pro­vides orig­i­nal (non­ap­pel­late) fed­eral ju­ris­dic­tion over dis­putes be­tween a US state and “for­eign States, Cit­i­zens, or Sub­jects,” which, the Chero­kee ar­gued, in­cluded them. Like Madi­son in the Mar­bury case, Ge­or­gia chose not even to ap­pear, ar­gu­ing that the Court lacked ju­ris­dic­tion; and Jack­son, like Jef­fer­son be­fore him, let it be known that he would not en­force the Court’s de­ci­sion if it fa­vored the In­di­ans. Mar­shall’s opin­ion for the Court be­gins in stir­ring fash­ion:

This bill is brought by the Chero­kee Na­tion, pray­ing an in­junc­tion to re­strain the state of Ge­or­gia from the ex­e­cu­tion of cer­tain laws of that state, which, as is al­leged, go di­rectly to an­ni­hi­late the Chero­kees as a po­lit­i­cal so­ci­ety, and to seize, for the use of Ge­or­gia, the lands of the na­tion which have been as­sured to them by the United States in solemn treaties re­peat­edly made and still in force. If courts were per­mit­ted to in­dulge their sym­pa­thies, a case bet­ter cal­cu­lated to ex­cite them can scarcely be imag­ined.

But once again, as in Mar­bury, there is a catch. Even though the treaties to which Mar­shall makes ref­er­ence clearly treat the Chero­kee as an in­de­pen­dent na­tion, the Chero­kee are still not “a for­eign state in the sense in which that term is used in the Con­sti­tu­tion.” Rather, they and other In­dian tribes are “do­mes­tic de­pen­dent na­tions.” In words that even ad­mir­ers of Mar­shall should cringe to re­peat, he ex­plains that the tribes ex­ist in a

state of pupi­lage. Their re­la­tion to the United States re­sem­bles that of a ward to his guardian. They look to our govern­ment for pro­tec­tion; rely upon its kind­ness and power; ap­peal to it for re­lief to their wants; and ad­dress the Pres­i­dent as their great fa­ther.

So for­get about re­lief from a fed­eral court.

Paul is quite cer­tain that this re­sult was in­flu­enced by Mar­shall’s recog­ni­tion that Pres­i­dent Jack­son would not en­force any de­ci­sion fa­vor­able to the Chero­kee: “Just as he had done in Mar­bury, Mar­shall ducked a direct con­fronta­tion with the pres­i­dent.” But an­other way to look at it is that once again, Mar­shall, for all his talk of ju­di­cial power, sac­ri­ficed the rights of in­no­cent vic­tims to Jack­son’s raw ex­er­cise of ex­ec­u­tive power, hyp­o­crit­i­cally sug­gest­ing that the In­di­ans, as wards of the fed­eral govern­ment, should look to it, and not the fed­eral courts, for re­lief from in­tru­sions by the states, when he had all but ac­knowl­edged that this re­lief was a vain hope. In light of this de­ci­sion, it is hardly sur­pris­ing that a few years later the fed­eral govern­ment ex­er­cised its “kind­ness and power” by forc­ing the Chero­kee to march west over the Trail of Tears, thou­sands of them dy­ing along the way.

I do not wish to be mis­un­der­stood. In hind­sight, even the great­est he­roes have some clay in their feet, and it is hard to think of an­other Supreme Court jus­tice—not Oliver Wen­dell Holmes, not Louis Bran­deis, not Wil­liam Bren­nan—who so com­pletely laid the foun­da­tions for a fed­eral sys­tem of jus­tice wor­thy of re­spect as Mar­shall did. As Paul’s fine vol­ume re­peat­edly notes, Mar­shall not only em­pow­ered the fed­eral ju­di­ciary but guided it to safety dur­ing some of the most per­ilous years in our na­tion’s his­tory. Nor do I mean to sug­gest that ev­ery time a fed­eral court dares to rein in the pres­i­dent, it seeks to serve the pub­lic in­ter­est, as op­posed to the ide­ol­ogy of its mo­men­tary ma­jor­ity. But I do sug­gest that, for what­ever rea­son, the Supreme Court has fre­quently been far more def­er­en­tial to the pres­i­dent than to Con­gress— and that this im­bal­ance took root in the early days of the Court.

Supreme Court Chief Jus­tice John Mar­shall; paint­ing by Henry In­man, 1832

‘Kiowa Chiefs on a Visit to the Agent’; draw­ing at­trib­uted to Ju­lian Scott Ledger Artist B (Kiowa), Ok­la­homa, circa 1880. It is on view in ‘Art of Na­tive Amer­ica,’ at the Metropoli­tan Mu­seum of Art, New York City, un­til Oc­to­ber 6, 2019.

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