The Myth of John Marshall
posted by Gerard Magliocca
One theme of the book that I’m working on about constitutional law during the Populist and Progressive period (1890-1910) is the way that Chief Justice Marshall’s landmark opinions were viewed at that time. I’m going to talk about this in two posts, as I think one would be too long.
So John Marshall is one of the greatest judges in our history, right? Thus, his famous decisions have always commanded the respect of the legal community, right? Well, not exactly.
Let’s start with Marbury v. Madison. A few years ago, Davidson Douglas wrote an article pointing out that Marbury was not considered especially important in the nineteenth century. Dred Scott did not cite Marbury even though Chief Justice Taney’s opinion was the first since 1803 to invalidate an act of Congress. Moreover, courts and treatise writers referred to Marbury as a case about mandamus writs or original jurisdiction, not as a decision about judicial review.
This changed in 1895 with the Pollock case, where the Court struck down a federal income tax and quoted Marbury for the proposition that courts had a constitutional duty to review acts of Congress. The lawyers arguing against the income tax referred to Marbury and cleverly built up its importance because their case was so weak. When Pollock became an issue in the 1896 campaign between William Jennings Bryan and William McKinley, both campaigns attacked or defended Marbury (and Marshall) as part of that debate. After McKinley won, a concerted campaign was undertaken to canonize Marbury. Indeed, the ABA and the members of the Court who joined Pollock sponsored “John Marshall Day” in 1901 as part of their effort to defend property rights against legislative action. Thus, Marbury’s constitutional significance is primarily a byproduct of Bryan’s defeat.
How about Gibbons v. Ogden? Well, nobody in the nineteenth century thought that this was important either. The Populists were the first to emphasize the Commerce Clause (in the 1880s and 1890s) because they needed some textual basis for their goal of nationalizing industry. President Cleveland (and the Court in Debs) used the Clause as a justification for breaking the Pullman Strike. None of these folks, however, paid attention to Gibbons. Only Justice Harlan’s dissent in E.C. Knight did, but that was an innovation. It wasn’t until the New Deal that Gibbons became the touchstone for the exercise of federal power.
Surely M’Culloch v. Maryland was always important? Nope. Jacksonian Democrats thought this opinion was an example of sloppy reasoning and refused to apply its discussion of implied federal power. The Taney Court never cited that part of the decision (they did refer to Marshall’s discussion of state taxation of federal instrumentalities). After the Civil War, M’Culloch was cited in the Legal Tender Cases (related to the constitutionality of paper money), but was given a narrow reading. In fact, the Attorney General (who was asking the Court to uphold paper money) urged the Justices not to use M’Culloch as the standard for judging congressional power because of its “narrow” view of the Constitution. Once again, the New Deal was when M’Culloch was finally read broadly.
What does this history tell us about constitutional development? And why isn’t this taught to law students? Tune in tomorrow to find out.
May 6, 2009 at 3:45 pm
Posted in: Constitutional Law
Print This Post
Responses (1)
Vladimir - May 7, 2009 at 4:42 pm
I’m not going to be able to sleep tonight, Gerard. The anticipation!
Leave a Reply