Monday, September 2, 2013

The Original Judicial Lawmaker


It is said that this country has been governed since 1787 by three constitutions: the limited one drawn up at Philadelphia; the one formulated by the judicial decisions of John Marshall; and the Constitution as modified by the radical Reconstruction Amendments. John Marshall's political and judicial activism lives on today as the Supreme Court freely makes law as the legislative branch stands idly by.

Bernhard Thuersam

The Original Judicial Lawmaker

"As a Supreme Court judge, Marshall was dominated by his Federalist principles. He was never learned in the law, he knew little concerning the principles of economics, and he was very indolent.  His five-volume biography of Washington was lifeless and full of plagiarisms.  Nevertheless, he was a man of powerful intelligence and reasoning ability.

His judicial decisions were based largely on his splendid common sense his strong Federalist bias. Many of his opinions ranged far outside of the strict limits of the case and would be regarded as obiter dicta from the standpoint of a narrow definition of the judicial function.

His Federalist prejudices, however, happened to correspond with . . . strengthen[ing] the central government.  These prejudices, or principles if you will, were a decided leaning in favor of property rights and an equally strong feeling of nationalism.  During the long period when he was Chief Justice, his decisions were usually at variance with the prevailing views and the economic interests of his native section, the South.

Indeed, he bitterly disliked and distrusted his cousin, Thomas Jefferson, and the latter's political principles, which became the faith of the Southern States.  Marshall showed a deep distrust of the extension of political democracy.  In this prejudice, he represented the Hamilton view of government. 

[In his famous] decisions, such as the Marbury versus Madison Case (1803) . . . he established the power of the Supreme Court to declare a law of Congress unconstitutional. [In] Fletcher versus Peck (1810), [Marshall] greatly curtailed the powers of State governments [and] set a precedent of the Supreme Court declaring a State law unconstitutional. In McCulloch versus Maryland (1819), Marshall definitely rejected . . . the strict interpretation of [the United States Constitution].

Rather, he put the imprint of judicial powers upon the implied powers doctrine of Hamilton and thus tremendously expanded the Federal power.

[In] Cohens versus Virginia (1821) . . . Marshall ruled that the Supreme Court could review and reverse decisions of the highest State courts and that, despite the Eleventh Amendment, the Supreme Court could hear cases on appeal from individuals against States if the latter had originally instituted the suit.  [Virginians criticized] Marshall's decision as overthrowing the rightful balance between the Federal and the State governments.

Marshall dominated the Supreme Court almost as an autocrat.  When [President] Madison appointed a Republican, Joseph Story, as associate justice, Story was converted by Marshall to his nationalist views.  Marshall was a judicial lawmaker rather than a learned and objective judge." 

 (A History of the Old South, Clement Eaton, Macmillan Company, 1949, pp. 154-157)