December 11, 2000

John Marshall died in 1835, convinced he had been a professional failure. Today, many legal scholars consider Marshall, chief justice of the U.S. Supreme Court from 1801 until his death, to be our greatest justice and the representative figure of American law.

In a recently completed biography of Marshall, Kent Newmyer, a professor of law and professor emeritus of history, explains why this is so. The book, John Marshall and the Heroic Age of the Constitution, will be published in Louisiana State University Press' Southern Biography Series in 2001.

Marshall is one of American constitutional history's most written-about figures, which presents a problem for biographers, Newmyer says. By using the newly published definitive edition of Marshall's papers, Newmyer sought to avoid rehashing material other authors had already written about.

"The challenge was to present a nuanced treatment of Marshall's jurisprudence using these new source materials and to connect his legal career with his personal life and with the history of his own times," Newmyer says.

Throughout his tenure as chief justice, Marshall's critics assailed him for destroying the states by consolidating power in the national government. Newmyer argues that Marshall was actually a federalist who believed power should be divided between the federal government and states. To buoy his theory, Newmyer points to Marshall's treatment of slavery: he owned slaves, whom records indicate he treated humanely. As chief justice, Marshall left the issue of slavery to the individual states, where he believed the founding fathers wanted it to remain.

"The connection I try to make is between the Marshall who participated in slavery and the chief justice who ruled on slavery,"

Newmyer says.

Marshall is perhaps most famous for his opinion in Marbury v. Madison, which established the doctrine of judicial review. However, Newmyer avoided simply listing and explaining Marshall's great cases.

"Lawyers tend to emphasize these cases as if they settled history in a single flash," Newmyer says. "I argue instead that Marbury was not a once-and-for-all victory but was part of a developing doctrine, which can be understood only in light of subsequent decisions of the Marshall court."

Viewed as a whole, Marshall's jurisprudence enhanced the power of the Court and helped establish a stronger central government. But this development needs to be understood in the context of early national history, Newmyer insists.

"Marshall's opinions continue to have real influence, in part because he had the great good fortune to set precedents rather than follow them," Newmyer says. "But his opinions also carry weight because of his reputation as a republican statesman."

Despite his high-profile position, Marshall lived a simple life, Newmyer says. Unlike many of the founding fathers, Marshall made no effort to collect his papers, doubting that future generations would be interested in his professional life.

Because of his gentle but charismatic personality, Marshall was able to bring about a fundamental change in the Supreme Court. Before he was appointed chief justice, each justice wrote his own opinion.

"Marshall persuaded his colleagues to abandon the old way in favor of a majority opinion written by one justice, most often Marshall himself," Newmyer says. "This was perhaps Marshall's greatest accomplishment, because it's the institutional foundation of judicial review."

Despite all that he accomplished, Marshall's last years on the Court were sad ones because of the resurgent states' rights movement, Newmyer says. Marshall thought the movement caused the Court to abandon the Constitution, without which there could be no federal union.

"He thought the Court was no longer doing its republican duty, so to speak," Newmyer says.

Newmyer, who has spent more than 30 years studying the early Supreme Court, recently received an award for his work. Last year, the Supreme Court Historical Society gave him the Hughes-Gossett Prize for Historical Excellence for an article he wrote in the Journal of Supreme Court History. Justice Clarence Thomas presented the award to Newmyer in the Supreme Court chambers.

Newmyer and Hugh Macgill, professor and former dean of the law school, are currently writing a chapter on legal education in 19th-century America that will appear in Cambridge University's three-volume history on American law.

When that is completed, Newmyer plans to revise his 1968 book, The Supreme Court under Marshall and Taney, and start a new book on Aaron Burr's treason trial.

Allison Thompson