Thursday, February 18, 2010

They don't make justices like John Marshall anymore ...

Marshall: Writings by John Marshall (Library of America, $40)

Journalists (and all other kinds of writers) would do well to heed the advice of Supreme Court Chief Justice John Marshall, who believed that in both speaking and writing "clearness and precision are most essential qualities. The man who by seeking embellishment hazards confusion, is greatly mistaken in what constitutes good writing . . . The writer should always express himself so clearly as to make it impossible to misunderstand him. He should be comprehended without an effort."
That dictum was the guiding principle behind all of Marshall's prose and the reason that contemporary readers of Marshall: Writings can easily traverse the two-hundred-year gulf between his time and ours.

Marshall collects more than 200 of the essays, judicial opions, legal agruments, letters, speeches, resolutions and reports penned by John Marshall between 1779 and 1835, as well as selections from his Life of George Washington.

The Book Serf asked historian and Marshall editor Charles F. Hobson, author of The Great Chief Justice: John Marshall and the Rule of Law, the following questions:

Book Serf: It has been said that, eventually, a biographer must come to loathe his subject. You lived with John Marshall for quite some time. Do you think that's true?

Charles Hobson. Not at all. Who said this? As I said somewhere, Marshall, like fine wine, got better with age. I count myself extremely fortunate to have been associated with him (through his papers) for more than 30 years of my life. I never got tired of spending my days with him.

BS: Imagine John Marshall as a contemporary. (Not difficult, given how forward-thinking he was!) A friend asks you, So what's he like?

CH: In a nutshell, charming, delightful company, full of good cheer and bonhomie, treating high and low with equal attention. He had a knack for putting others at ease, particularly young lawyers appearing in his court for the first time. He took great pleasure in the company of close friends, perhaps most memorably as a member of the Barbecue Club in Richmond, where that town’s elite gathered on Saturday mornings in good weather to pitch quoits, feast on good food, and imbibe punch. He possessed the common touch, a plain and simple manner that endeared him to all except for Thomas Jefferson.

BS: I love Marshall's description of great writing having to do with clarity and precision. Describe his strengths (and weaknesses?) as a writer.

CH: Well, his strengths were just that, clarity and precision. As he told his grandson, never let the reader mistake your meaning or even struggle to comprehend it. Like any writer, he fell into sloppiness when he was in a hurry to meet deadlines — as in composing the draft of the first edition of the Life of George Washington. Another example, perhaps, was his opinion in the treason trial of Aaron Burr, which concluded on a Saturday and the opinion delivered on the following Monday. In such instances, Marshall tended to excessive verbiage and repetition.

BS: William Faulkner once said, The past is not dead. In fact, it is not even past. In what ways do we take for granted our United States of America that wouldn't be so had Marshall not exerted such influence on our founding in the early 1800s? What might America look like had Marshall not been Chief Justice for 34 years?

CH: This is a “counterfactual” question, not particularly congenial to my tastes and training as a historian. I caution against attributing too much to a single person — the “great man” theory of history. All I can say with any confidence is that Marshall was in the right place at the right time — that is, he had the opportunity to be creative, to some extent write on a clean slate, map uncharted territory, etc., and that he made the most of his opportunity. More than anyone else, he contributed to the emergence of the judiciary — and the Supreme Court in particular — as a major player in our tripartite scheme of government.

The judiciary — the third and “least dangerous” branch — had acquired significantly greater power and authority by 1835 than it had when Marshall became chief justice in 1801. Now, this might have happened without Marshall. It is also possible that the judiciary, without Marshall at the helm, could have receded into relative insignificance.

BS: Why should the contemporary reader care about John Marshall? What can we learn from him, not only in his role of longest-termed Chief Justice in our nation's history but also as a husband, a father, a friend?

CH: Marshall, indeed, seems to be the very embodiment of judicial wisdom, just the sort of person who should preside over the highest court in the land. In a sense, he created and defined the office, and all subsequent Chiefs have looked to him as the model.

With the robes of office removed, Marshall was a flesh and blood human being — a devoted husband to his wife “Polly,” who was often in precarious physical and emotional health. He was a kind and understanding father to five sons and one daughter. His children were born over a period of 21 years. When he was 60 in 1815, Marshall had sons still in their teens, all of whom had a penchant for getting into trouble. John, Jr., for example, managed to get himself expelled from Harvard for unspecified “immoral and dissolute” behavior. Polly Marshall’s fragile health evidently had its origins in a difficult birth while Marshall was absent in France on a diplomatic mission. She became reclusive, confined to a small circle of family and close friends. She could not stand noise of any kind, so Marshall admonished all visitors to remove their boots or shoes when entering the house. Whenever there was to be a big celebration in town with fireworks — Fourth of July, Christmas, Washington’s Birthday — Marshall made sure that Polly was taken to their farm on the Chickahominy River a few miles east of Richmond. At times her condition became so bad that Marshall felt isolated from society — a difficult situation for the decidedly convivial Chief Justice. When he was away in Washington, he wrote tender and amusing letters to Polly.

Marshall also enjoyed warm friendships, none deeper than that with Joseph Story, his younger brother on the Supreme Court. The venerable Virginian and the New England Yankee had genuine affection for each other, which comes through wonderfully in the letters they exchanged. It was Story who in 1827 prompted Marshall to write an autobiographical account of his life before becoming Chief Justice.

BS:Is there a recent (last 10 years or so?) Supreme Court ruling that would have Marshall rolling over in his grave?

CH: This is the sort of question I tend to shy away from. As a historian, I can only speak of Marshall in his own time and place. Without naming any cases, I will venture to say that Marshall attempted so far as possible to separate law and politics. There are perhaps some recent decisions in which he would be concerned that the Supreme Court had ventured too far into the political sphere.

Marshall is best known, of course, for invoking judicial review in the famous case of Marbury v. Madison (1803). However, I think a more characteristic opinion is McCulloch v. Maryland (1819), in which Marshall and the Court upheld the constitutionality of an act of Congress. Marshall allowed great deference to Congress to define the limits of its own powers.

BS: Can you relate to us your favorite anecdote about Marshall , something that reveals his character or intelligence or wit?

CH: There are many anecdotes, which I think says a lot about his character. Marshall’s simple and unpretentious manner, as well as his sense of humor and delight in a good joke, come through in the story of Marshall at the Richmond market.

It was not unusual for gentlemen to do the family marketing, though they were usually accompanied by a servant who would carry the various purchases back home. Marshall shopped by himself, stuffing a chicken, turkey, or whatever in his coat pocket. One day a young man all dressed up in aristocratic finery happened to be at market without his servant. Having purchased a chicken, he was much distressed that he had no one to carry the fowl home for him. He was obviously a recent arrival in Richmond, for he turned to a plainly dressed older man and asked him if he would carry his chicken. The man obliged him and on arriving at the young dandy’s house he was rewarded with a small coin for his trouble. The Chief Justice removed his hat and did a slow bow before returning to do his own shopping.

BS: Guess I have to ask this "required" Library of America question! What single piece of writing did you most regret leaving out of the collection?

CH: There is no single piece that I regret omitting because I think what is included is both representative and comprehensive. In other words, nothing was left out that would have added to our knowledge and understanding of the man.

BS: The subtitle of one of your books is John Marshall and the Rule of Law. Can you discuss Marshall 's contribution to our country's understanding of the "rule of law"?

CH: Marshall’s whole career was the embodiment of this concept. He spoke of it explicitly in the famous early case of Marbury v. Madison (1803), when he said the U.S. government “has been emphatically termed a government of laws, & not of men.” In that context, he was thinking in terms of legal rights and remedies — that is when our individual rights are violated we can seek redress in the courts.

But I think he had a broader understanding of the “rule of law” as an attitude or habit of mind ingrained in the American people that democracy and majority rule must be bounded and limited by law — of which the most fundamental is the Constitution. The phrase “rule of law” is often used in contrast to the “will of the people.” Marshall’s idea was that the two work in tandem to produce what he called a “well regulated democracy.”

In other words the American people, by their Constitution, agree that it is their “will” to be limited and bounded by law. Marshall did more than anyone to carve out a large role for the Supreme Court to enforce the “rule of law,” but he never asserted that this could be achieved exclusively or even primarily by the Court. To be a reality, the “rule of law” had to be the duty and responsibility of all departments of government and ultimately of the people at large.

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