Marshall’s Voice

Why have judicial opinions? One obvious answer is to help legitimize the Court and its work by providing rational justifications for its decisions. Courts, as Hamilton reminds us,

ALEXANDER HAMILTON, JAMES MADISON, & JOHN JAY, THE FEDERALIST PAPERS (Clinton Rossiter ed. 1961).

But what is voice? Literally, it refers to the sound, rhythm, timbre, and intonation of a speaker, and it is sufficiently identifiable on an individual basis to accommodate voice recognition software. But when used metaphorically, voice seems to recall Augustine’s famous riposte on time.

“If no one asks me, I know what it is. If I wish to explain it to him who asks, I do not know.” Confessions 162 (Albert C. Outler ed. & trans., n.d.).

To begin, it is Marshall’s voice that we are discussing. The clerks who today research and virtually ghost write many judicial opinions were unknown in his day. What we read is what Marshall wrote. At the same time, however, if it was his voice, it was not entirely under his sole control but was forced to follow certain long accepted conventions. He well understood, for example, that opinions are exercises in justification and persuasion. The author does not relate how he came to decide as he did – were childhood experiences determinative or perhaps his daughter passed on an anecdote that focused his mind? Instead, venerable established unspoken rules compel the judge to defend his conclusion on the basis of evidence and reason, and to do so in the form of an argument. And he must, too, take into account his audience, most proximately, his fellow justices. As Justice Ginsburg observed, “In writing for the Court, one must be sensitive to the sensibilities and mindsets of one’s colleagues, which may mean avoiding certain arguments and authorities, even certain words.”

Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1194 (1992).

Marshall’s is also a voice that is time bound to the early nineteenth century. It naturally reflects the values and attitudes of the day and the generally accepted style of judicial writing that prevailed at the time.

In contrast, Justice Kagan’s voice is “remarkably conversational.” Laura Kiugman Ray, Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions, 89 IND. L.J. SUPP. 1, 2 (2013).

Perhaps most obviously, Marshall’s voice, like all voices, was intertextual,

George Kamberelis & Karla Danette Scott, Other People’s Voices: The Coarticulation of Texts and Subjectivities, 4 LINGUISTICS & EDUC. 359 (1992).

Marshall brought considerable credibility to his efforts. Unpretentious and with simple tastes, he first “gained national fame”

Timothy S. Huebner, Lawyer, Litigant, Leader: John Marshall and His Papers, 48 AM. J. LEG. HIST. 314, 317 (2006).

This essay will examine Marshall’s voice in the context of four of his most famous opinions, Marbury v. Madison (1803),

1 Cranch 137.

Consider, first, Marbury v. Madison, his renowned opinion establishing the right of the Supreme Court to review the constitutionality of acts of Congress. William Marbury, a financier who had “elbowed his way to wealth and power [and] moved easily into the highest circles of the Federalist elite,” sought the position of justice of the peace in Washington, D.C., “the most powerful public office in the lives of the common people.”

David Forte, Marbury’s Travail: Federalist Politics and William Marbury’s Appointment as Justice of the Peace, 45 CATH. U. L. REV. 349, 352, 388, 354. (1996).

What to do? Marbury, relying on section thirteen of the Judiciary Act of 1789 (“the Supreme Court . . . shall have power to issue . . . . writs of mandamus, in cases warranted by the principles and usages of law”),

1 Stat. 73.

Speaking for a unanimous Court, Marshall declared Marbury entitled to his commission, pillorying Madison for not doing his duty. He demonstrates that the power to appoint is distinct from the duty to deliver the commission.

Supra note 12, 156-62.

Only after nineteen pages does Marshall consider the jurisdictional question, which normally is addressed first. At this point, he announces that the question was not whether Marbury was entitled to his commission, but instead whether he could seek a writ of mandamus from the Supreme Court. Article III, the brief and cryptic portion of the Constitution bearing on courts, reads in part: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.”

U.S. CONST. art. III, §2.

Though his classic biographer calls the idea “absolutely new,” “daring,” and “novel,”

ALBERT J. BEVERIDGE, 3 THE LIFE OF JOHN MARSHALL 128 (1929).

Thus, we can imagine Marshall asking a pair of questions. Is this a constitution we are discussing? Yes, of course, we reply. That is what the document is called. Well, then, is a constitution different from a statute? Yes, it must be, for it may be defined as “a superior law, unchangeable by ordinary means.” If superior, must it not prevail over a conflicting statute? Yes, for that is what “superior” means. Otherwise, constitutions would be “absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

Supra note 12, at 177.

Marshall’s second question is: is this a court? Why, yes, that is what it is called. What, then, is the first and irreducible function of courts? To decide disputes, we answer weakly. No, he replies, “It is emphatically the province and duty of the judicial department to say what the law is.”

Id.

First, the facts of the Marbury case seem so clear-cut that Marshall feels able to argue that the Court was really not exercising discretion, but merely pointing out what anyone could see. But suppose the conflict is not obvious – and presumably the obvious conflicts are conflicts Congress would be most likely to notice and avoid, and thus be quite rare. What then? In those cases where the law/Constitution conflict is debatable, would the Court be seen to be exercising discretion? If so, it would be harder to argue in these numerous cases that the conflict was between the Constitution and a statute than between the Court and Congress. Should judicial review, then, be confined to rare, clear-cut cases?

It is this point that advocates of judicial self restraint have repeatedly emphasized, and it is central because it is tied to the famous counter-majoritarian difficulty.

ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS, 16-17 (1962).

What gives the omission of problematic cases special force were contemporary experiences with judges. In the colonial times that Marshall knew, judges, who sometimes were also legislators, tended to be members of local power structures, with a wide range of petty responsibilities, and courts tended to be viewed as arms of the executive branch. Appointed by the crown via the governor and relying on the common law, judges were so widely distrusted that they were cited in the Declaration of Independence as a grievance contributing to the revolution, being “dependent on [the king’s] will alone.” Nor did this suspicion end with the creation of the republic, for judges were then viewed as favoring creditors and persons of property in their relations with the great mass of debtors. Too, federal courts had earned a reputation as eager enforcers of the notorious Sedition Act, and were seen as given to sermonizing on the citizens’ duty to obey established authority. Accordingly, the opposition, which captured the presidency and Congress in 1801, viewed federal judges as allies of the executive. A judiciary independent of political influence was by no means well established by 1803, in short, and yet to it Marshall would assign the immense potential power of validating laws.

Even the Supreme Court on which he sat lacked stature. The first chief justice, John Jay, had written President Adams that he “left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which was essential” to its performance,

GEORGE PELLEW, THE LIFE OF JOHN JAY, 337, 338 (1890).

Second, on judicial review, Marshall finds “no middle ground,”

Supra note 12, at 177.

A middle ground option may also involve implementation. Marshall’s decision, of course, was self implementing; if the Court cannot decide the case, it cannot decide the case, and that is the end of it. Typically, a Supreme Court ruling is either immediately implemented or remanded to a lower court for implementation. One of the few exceptions to this procedure was Brown v. Board of Education

Brown v. Bd. of Educ. I, 347 U.S. 483 (1954).

Third, given the importance of judicial review that Marshall announced, why is there no explicit reference to it in the Constitution? That Article III made no explicit mention of mandamus, after all, is central to his argument;

Supra note 12, at 176.

Hamilton in Federalist 78 believed that judicial review was implicit in the constitutional structure, and his arguments are often quoted. But as he took no part in the constitutional debates on the judiciary, and as The Federalist was an effort to persuade New York voters and not a record of the Framers’ intentions, Hamilton’s argument is not determinative. Madison’s notes tell us that the Framers considered creating a council of revision, as found in New York. The council would not exercise exactly what we would consider judicial review: it would be composed of judges and members of the executive branch, it would rule on the merits and not the constitutionality of laws, and it would act before the laws were put into effect.

MAX FARRAND, 1 RECORDS OF THE FEDERAL CONVENTION 21 (1911).

Fourth, Marshall nowhere so much as hints at the identity of the Secretary of State initially responsible for delivering the commission – himself! – nor the person who failed to carry out the commission delivery assignment – his brother! Today, of course, these facts would compel a recusal. But there is no hint of any embarrassment in his opinion concerning the roles he and his brother played in the narrative nor any defensiveness or excuses or explanations offered. At one point, Marshall, speaking of Madison, avers that “It is the duty of the Secretary of State to conform to the law,”

Supra note 12 at 158.

Politically, Marshall’s opinion was a marvel. The Jeffersonians had believed that he would be impaled on the horns of a dilemma: the Court could decide in favor of Marbury, compelling Marshall to risk an impeachment that would permit Jefferson to replace him with his favorite, Spencer Roane.

In 1804 Jeffersonians impeached and removed a Federalist district court judge, John Pickering, and impeached but failed to remove a Supreme Court Justice, Samuel Chase. See Lynn W. Turner, The Impeachment of John Pickering, 54 AM. HIST. REV. 485; Adam A. Perlin, The Impeachment of Samuel Chase, 62 RUTGERS L. REV. 725 (2010).

Throughout his opinion, Marshall’s approach is consistently abstract. When authorities are mentioned, they are always peripheral and ornamental. He utilizes four British references (three to Blackstone and one to Mansfield

Supra note 15, at 163, 165, 168.

Consider next McCulloch v. Maryland,

Supra note 13.

The War of 1812, however, produced economic hardship and an unstable currency, and demands began to be made for a second bank. Finally, in 1816 a second bank was established, and like the first, it was chartered for twenty years. Ineptly managed, it exacerbated the nation’s economic problems, especially by contributing to the failure of many state banks and worsening what was known as the Panic of 1819, and became even more unpopular than the first bank. “Almost the whole country,” as Beveridge observed, “was in grievous turmoil.”

Supra note 26, at 4:169.

On instructions from Washington, James William McCulloh (the case misspells his name), the cashier of the Baltimore branch of the bank, refused to pay the tax and was convicted for his failure to pay. The Supreme Court heard the case on appeal, hearing arguments presented by six lawyers over nine days. “The hall was full almost to suffocation,” wrote Justice Story, “and many went away for want of room.”

JOSEPH STORY, 1 LIFE AND LETTERS 325 (William Wetmore Story ed., 1851).

Marshall announced that the case posed two questions. First, can Congress create a bank? The bank, he notes, “did not steal upon an unsuspecting legislature and pass unobserved,”

Id. at 402.

The second question was whether Maryland can tax the bank. Maryland insisted that the issue was one of “confidence.” Different governmental units routinely assume that they are confident that, in working with other units, these units will not abuse the trust placed in them. The bank should be confident that Maryland will not misuse its taxing power. To which Marshall replies icily, “All inconsistencies are to be reconciled by the magic of the word CONFIDENCE.”

Id. at 431.

As with Marbury, we can imagine Marshall posing two questions. Again, is this a constitution? Of course, he answers. “We must never forget that this is a Constitution we are expounding . . . a Constitution designed to endure for ages to come.”

Id. at 407, 415.

Consider how Marshall massages “necessary,” extracting meaning after meaning in no fewer than eighteen pages, while never bothering to consult a dictionary or any other source. Jefferson, in arguing against the first bank, had seen “necessary” as meaning “The One Thing We Must Do or the Sky Will Fall.”

THOMAS JEFFERSON, PAPERS 275 (Julian P Boyd ed., 1974).

All these difficulties are dismissed by announcing that “this is a Constitution we are expounding,” which Marshall believes requires flexibility. But if flexibility is the trump card, why even have a constitution? Why not have only ordinary statutes, which may be altered or reversed without recourse to the extraordinarily cumbersome process of amendment? This, in turn, suggests a competing view: suppose the point of a constitution is not to be flexible, but rather to set down fixed principles. This would explain why it cannot easily be changed, and it would also imply that courts should not be so free to rewrite it. For the clause says that Congress can “make all laws that shall be necessary and proper,” not all laws that it considers necessary and proper. On the other hand, though the Constitution is silent as to who should enforce the necessary and proper standard, the courts would seem to have a better claim than Congress, which would be tasked with policing itself.

James Wilson, the Framer responsible for the phrase, was a strong proponent of judicial review. MARK DAVID HALL, THE POLITICAL AND LEGAL PHILOSOPHY OF JAMES WILSON, 1742-1798 134-38 (1997).

Marshall assumes that the necessary and proper clause “purports to enlarge” Congress’ powers,

Supra note 13, at 418-19.

The larger problem with the elastic clause assumption is that Marshall in truth has demonstrated something very different, namely, that the power to create a bank could be inferred from the listed economic powers, even without the final clause. For if it is the nature of constitutions that they be interpreted broadly, they would grant legislatures the power to implement powers, even if implementation were unmentioned. Underlining this, it was established at common law that an express power carries with it incidental powers, a fact that Marshall even refers to in passing.

Id. at 416.

Maryland had contended that the necessary and proper clause merely gave Congress the power to legislate in pursuance of the expressed goals. Marshall thought that reading it as giving a legislature the power to legislate was so obvious that it would add nothing to the Constitution. “Would it have entered into the mind . . . of the convention,” he asked, “that an express power to make laws was necessary to enable the legislature to make them? That a legislature endowed with legislative powers, can legislate is a proposition too self-evident to have been questioned.”

Supra note 13, at 413.

The reach of what constitutes “incidental powers,” however, may be contested, partly because they apply to an uncertain future, as Madison noted in Federalist 44, but also because the Constitution was not straight forward on the question. For example, as Luther Martin pointed out, the Constitution not only granted Congress the power to declare war, but also to raise an army, even though that would seem to be incidental to the war power.

This, however, ignores that an army may have other rationales, such as helping in cases of natural disasters or other public emergencies.

Jefferson, in arguing against the first Bank of the United States had contended that creating a bank was not an incidental power, that the Framers rejected giving Congress the power to create a bank for fear of an “adverse . . . reception [from] the great cities,” and that construing “necessary” to mean “convenient” “would swallow up all the delegated powers. As he remarked in 1800 about a bill providing for congressional incorporation of a New Jersey copper mine, “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ’This Is the House that Jack Built’?“

CHARLES WARREN, 1 THE SUPREME COURT IN UNITED STATES HISTORY 501 (1926).

Yet it was not the necessary clause. It was the necessary and proper clause. How to parse the phrase? Should it be construed to hold that “necessary” refers to the end sought by the legislation and “proper” to the means; or, conversely, “proper” to the end and “necessary” to the means? Either way, the statute would have to surmount two hurdles. Thus, in the Affordable Care Act case, Chief Justice Roberts held that the individual mandate might be “necessary” to the statute’s purpose, but was “not a ‘proper’ means for making these reforms effective.”

NFIB v. Sebelius, 132 S. Ct. 2566, 2592 (2012).

Marshall, however, touches on “proper” only in a single paragraph, declining even to mention the word

Supra note 13, at 418-19.

That Maryland cannot tax the bank seemed to Marshall a question that required a much briefer response. Of course, Congress was empowered to bar states from taxing the bank, leaving Marshall free to pass the burden of deciding onto the political process. But even in the absence of this legislation, he found the states barred by the Constitution itself. The central government, he said, “represents all, and acts for all [and] must necessarily bind its component parts,” a fact made explicit by the supremacy clause that makes “the Constitution, and the laws of the United States, which shall be made in pursuance thereof . . . the supreme law of the land.”

Supra note 25, art. VI, sec. 2.

As with Marbury, McCulloch presented a clear and obvious case. There could be no question that the congressional and Maryland laws were in conflict. But what if the conflict were not beyond dispute? In Pennsylvania v. Nelson (1957),

350 U.S. 497.

Maryland had contended that the national government was created by the states, as was true under the Articles of Confederation. The members of the convention were elected by state legislatures, and ratification took place on a state-by-state basis. But Marshall replies that, instead, it “proceeds directly from the people,”

Supra note 13, at 403.

McCulloch not only established implied powers and national supremacy, but the very act of deciding cemented the principle that the Court shall serve as the umpire deciding disputes between the different levels of government. As a court, whose first task must be to say what the law is, it can determine when an act of Congress conflicts with a state law, and declare it unconstitutional. Years earlier during the ratification process, Anti-Federalists had predicted that the “judicial power will operate to effect . . . an entire subversion of the legislative, executive and judicial powers of the individual states”

HERBERT STORING, 2 THE COMPLETE ANTI-FEDERALIST 420 (1981).

The third great case decided by Marshall, Gibbons v. Ogden,

Supra note 14.

In this context, Robert Livingston and Robert Fulton were granted an exclusive right by New York to steamboat navigation within its waters, and they assigned the right to Aaron Ogden and Thomas Gibbons. Their arrangement, however, dissolved, and an angry Gibbons obtained a license from Congress to operate his steamboat between New York and New Jersey on the Hudson River. Ogden won an injunction from a New York court that would restrain Gibbons from navigating New York waters; the order was upheld on appeal. Ogden successfully argued that the Constitution did not explicitly grant Congress exclusive control over commerce; states historically, on the other hand, enjoyed exclusive power to regulate commerce within their borders; commerce, in any event, did not include navigation.

17 Johns. 488 (NY 1820).

In the larger context, a number of other states were at the time asserting the power to regulate navigation, and the question as to whether Congress could appropriate funds for transportation infrastructure (“internal improvements,” in the language of the day) was a topic attracting great public attention. The principle of national supremacy announced five years earlier in McCulloch would seem to guarantee that Gibbons would prevail, but this, in turn, required that the congressional license be valid. The entire case pivots on that question, which brings Marshall to an inquiry as to the meaning of the commerce clause: “The Congress shall have the power . . . to regulate commerce . . . among the several states.”

Supra note 25, art. I, sec. 8, cl. 3.

The deteriorating commercial state of the nation had been perhaps the key factor in replacing the dysfunctional Articles of Confederation with the Constitution. Commercial dissatisfaction had led to the failed Annapolis Convention in 1786 and then to the Philadelphia convention the year after. Oddly, however, this topic of immense importance received only cryptic treatment in Article I. Marshall in Gibbons took it upon himself to add flesh to the bones.

Marshall begins by admitting that New York’s position “is supported by great names,” whose opinions are entitled to “a just and real respect.”

Supra note 14, at 186.

Marshall then considers the meaning of “among the several states,” finding that “among” means “intermingled with” and the entire phrase “commerce which concerns more states than one.”

Id. at 194.

Next Marshall defines “regulate” as “the power . . . to prescribe a rule by which commerce is to be governed.” What kind of rule? Any kind, for “the power . . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”

Id.

Did New York run afoul of the Constitution or merely an act of Congress? Marshall addresses the question with diplomatic ambivalence. “There is great force to this argument,”

Id. at 209.

The opinion is long on historical assertions, but short on historical evidence, and, oddly, repeatedly refers to “express” constitutional powers, when in McCulloch he had emphasized how important it was that the Framers after much deliberation had discarded that word, which had so severely limited the central government under the Articles of Confederation.

Again, we can easily imagine Marshall asking, Is this a constitution we are discussing? We must answer, yes, and here he pounces: a “narrow construction . . . would cripple the government and render it unequal to the object for which it is declared to be instituted.”

Id. at 189.

Yet did his prescient interpretation of the commerce clause follow from the meaning the words then carried? The most thorough originalist investigation suggests that the answer is no.

Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001).

Consider, finally, Fletcher v. Peck, which involved one of the greatest corruption scandals in early American history, the Yazoo land scandal. In 1795 Georgia sold a vast tract of public land known as the Yazoo lands, nearly as large as the states of Alabama and Mississippi, to land speculators for five hundred thousand dollars, about three cents an acre. Why such a bargain price? Almost the entire Georgia legislature had been bribed by the speculators in what Marshall’s biographer called “a saturnalia of corruption.”

Supra note 28, at III:548.

Marshall deplores the apparent corruption, but then quickly dismisses it as irrelevant, for it would be “indecent in the extreme” for courts to inquire as to the “impure motives” of legislatures. In this, he followed the standard practice of ignoring motivation and focusing on intent. The Georgia constitution did not bar the sale of land to the speculators, and Georgia cannot undo the sale by declaring the operative law never to have been valid because the original 1795 law can be considered a contract, and the Constitution denies states the power to impair the obligation of contracts.

Supra note 25, art. I, sec. 10, cl. 1.

Again, we can imagine Marshall posing simple questions. What is a contract, he asks? It is a compact that binds the participants to do a particular thing. When Georgia sold the Yazoo lands, it bound buyer and sellers, and thus was a contract, and as such, it came under the authority of the contract clause. Well, then, is this a court? Yes, he replies, and so it is up to us to say what the law is. Legislatures may change their mind and repeal laws, but they cannot declare laws null and void, as if they never had been enacted. This power belongs to the courts. Finally, is this a constitution? It is, and so it represents the entire union, and must prevail over a single state that is merely a member of the union. The Georgia legislature, then, by impairing the obligation of contract, exceeded its authority.

Interestingly, Marshall emphasized the intent of the Framers as to the contract clause. The impairment of contract, he wrote, was common under the Articles of Confederation, contributing to a climate of uncertainty about property rights that helped to bring about the Constitution itself. A robust interpretation of the clause was exactly what the Framers’ Constitution called for.

He could not draw on Madison’s records of the debates to support this contention because they would not be published until 1819.

What did Marshall omit? He never addresses the notion that the contract clause might apply only to private parties, though the imperfect legislative history reveals that the Framers spoke of the contract clause only in this sense. The implication of extending its application to states is that their range of future action would be limited by property rights asserted by private parties. Marshall discusses the practical imperative of protecting these rights, but never acknowledges the cost, preventing democratically elected officials from undoing certain kinds of past actions in the name of the public interest. Today, abrogating public contracts is harder than private contracts.

United States Trust Co. v. New Jersey, 431 U.S. 1 (1977).

Citing “certain great principles of justice,”

Supra note 15, at 133.

Also, though Fletcher and Peck in truth had identical interests, Marshall fails to rule that the case was collusive, and thus did not meet the constitutional requirement of legitimate “case or controversy” and should not have been heard by the Court.

Supra note 25, art. III, sec.2, cl.1.

What can we infer from these four major cases? Marshall, though his formal legal education consisted only of six weeks of lectures at the College of William and Mary, developed a supremely effective voice, confident (“The answer to this question seems an obvious one,” “perfectly clear,” “a proposition too plain to be contested,” “too apparent for controversy”), straight forward (“Has the applicant a right to the commission he demands”? “The plain import of the words”, “It is emphatically the province and duty of the judicial department to say what the law is”), and unequivocal (“The doctrine would subvert the very foundation of all written constitutions,” “it thus reduces to nothing what we have deemed the greatest improvement on political institutions,” “it thus must have been the intention”). He was not above bluster and bullying (“he would be charged with insanity,” “an extraordinary departure from the usual course of the human mind,” “no reason has been or can be assigned,” “If any one proposition could command the universal assent of mankind”). He used strong, active verbs (“requires,” “denies,” “directed”), disdained qualifiers (“emphatically”, “absolutely incapable,” “no reason to suppose,” “truths which have never been denied”), and often refuted counter arguments by ignoring their existence.

Judge Posner counts Marshall as a “notable example “of the impure style,”

Richard A. Posner, Judges Writing Styles (And Do They Matter?), 62 UNIV. CHI. L. REV. 1421, 1430 (1995).

At the same time, however, Marshall’s voice could be oracular like the voice of God, intimidating and conversational only in the sense of a superior dressing down a subordinate. For the overpowering sense in the reader is inevitability. Marshall presents himself as compelled by logic, history, and common sense, as if an automaton in thrall to these forces. “Certitude,” Holmes warns, “is not the test of certainty,”

OLIVER WENDELL HOLMES, JR., COLLECTED LEGAL PAPERS 311 (1920).

A persistent theme is Marshall’s use of the rhetorical device known as redescription or reframing, which is employed to change the meaning of key terms or concepts. Plato and Aristotle used this technique to attack the rhetoric of their predecessors, as Marshall doubtlessly knew from his early reading in the classics. In the Meno, for example, Plato has Socrates redescribe “fine things” as “good things,” perhaps to avoid the upper class implications.

PLATO’S MENO, 77b2-78b6 (R.S. Buck trans. 1961).

Marshall also makes use of paradiastole, which was also found in ancient and Renaissance rhetoric. An example might be to use “courageous,” when others might use “foolhardy.” Thus, Marshall repeatedly insists that the national government must be strong in order to do all that it is charged with doing. That his “strength” is Jefferson’s “overbearing dominance” is barely mentioned, for the device enables him to beg the question. Which suggests that redescription and paradiastole were employed both by Marshall and his adversaries.

Whereas today, months pass between oral argument and written opinion, in Marshall’s time the gap was often astonishingly short. Of sixty-six constitutional cases generating full opinions from 1815-1835, seventeen were handed down within five days.

G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 181 (1988).

Marshall, then, understood the power of the word. But he also understood its limitations. After Marbury, he did not use judicial review to attack the Jeffersonians. Nor in Gibbons did he deny the states’ power to regulate commerce. He did not, in other words, ignore the kind of prudent calculations that his confident tone would appear to override. This broad streak of prudence perhaps helps to explain his extraordinarily long record of influence. At the beginning, his colleagues on the Court were fellow Federalists and, to be blunt, mostly mediocrities. Justice Johnson, for instance, complained to Jefferson that “Cushing was incompetent,” Chase “could not be made to think or write,” Patterson was “a slow man,” and “the other two judges . . . are commonly estimated as one judge.”

Donald G. Morgan, Mr. Justice Johnson and the Constitution, 57 HARV. L. REV. 328

During his tenure, Marshall wrote 547 opinions for the Court, nearly half of the 1106 cases it decided, and many of these opinions were of considerable significance. At the same time, he wrote only eight dissents. On the surface, this would seem to point to near dictatorial dominance. But there is less here than meets the eye, for Marshall admitted that rather than dissent, he ordinarily chose to “acquiesce silently in [the Court’s] opinion.”

Bank of the United States v. Dandridge, 12 Wheaton 64 (1827).

All this suggests that Marshall to an unusual degree was able to combine two kinds of leadership, task and social,

Robert F. Bales, Task Roles and Social Roles in Problem-Solving Groups, in READINGS IN SOCIAL PSYCHOLOGY 437, 441 (Eleanor E. Maccoby et al. eds., 3d ed. 1958).

Marshall’s prudent, calculating leadership co-exists uneasily with his barreling forcefulness and its hint of uninhibited delight in verbal combat. It contrasts, too, with his universal reputation for amiability, for his judicial language was not at all inoffensive or soft spoken, but instead aggressive and unyielding, at times even pugnacious and partisan, as in his attacks on Jefferson’s administration in Marbury or on Maryland in McCulloch. Yet on the other hand, the style comported perfectly with one of whom a contemporary remarked, “In his whole appearance and demeanor, dress, attitudes, gesture, sitting, standing, or walking [Marshall] is as far removed from the idealized graces of Lord Chesterfield, as any other gentleman on earth.”

WILLIAM WIRT, THE WRITINGS OF A BRITISH SPY 110 (1836).

There was, too, a certain ambivalence about Marshall’s views of the role of the people in political affairs. He celebrated the Constitution as representing the deliberate voice of the people – and hence, superior to conflicting statutes from Congress or states. And yet, like many other leaders of the time, he distrusted ordinary citizens en mass, thinking them “selfish, violent, capricious, vindictive, and dangerous,”

Supra note 26, at I: 253.

Perhaps because he was unassuming, “a genuinely modest man,”

Supra note 126, at 1467.

Which raises the question of how modest he truly was. Marshall, as Story put it, was not lacking in a sense of self worth. “No one,” he said, “ever possessed a more entire sense of his extraordinary talents.”

JOHN M. DILLON, JOHN MARSHALL, COMPLETE CONSTITUTIONAL DECISIONS 363 (1903).

From the outset, Marshall was a result-oriented judge. If America were to fulfill its great promise, he believed, it must have a strong national government, strong property rights, and a strong Supreme Court to defend them. All this came to him not from abstract speculation but from practical experience. In this regard, his days as a soldier in the War for Independence carried considerable weight, for he saw at Valley Forge and elsewhere how the states could not be trusted to meet their obligations and how only a strong national government could protect the fledgling nation from internal divisions and rapacious imperial powers. Courts, he hoped, could impose a rule of law and safeguard the society from self interested politics. “The judges of the Supreme Court,” he wrote, “separated from the people . . . are viewed with respect, unmingled with affection, or interest. They possess neither power nor patronage.”

GERALD GUNTHER, JOHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND 78-79 (1969).

As a young man, “Pope was the lad’s especial textbook,”

Id. at 27.

In this, Marshall’s approach, in common with the general practice of the day, was foundational, in the sense of explaining political and legal arrangements in terms of givens. God, human nature, society – these imperishable, unalterable forces governed human affairs, and it would be folly to challenge them. The people, driven by their emotions, might fail to grasp this, but judges, working within a common law tradition, would naturally take the long view. The relentless interrogation of conventional wisdom, taken for granted today, was in his day never considered.

Speaking on the hundredth anniversary of Marshall’s taking the seat as chief justice, Holmes was characteristically ungenerous. “If I were to think of John Marshall simply by number and measure in the abstract, I might hesitate in my superlatives . . . A great man represents a great ganglion in the nerves of society, or, to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

OLIVER WENDELL HOLMES, SPEECHES (1913).