The Man Who Made the Supreme Court

A review of John Marshall: The Man Who Made the Supreme Court (Basic Books, 2018) by Richard Brookhiser

John Marshall presents a curious problem for Southern history. How can a man, born and bred in the same State, who breathed the same air and shared the same blood with Thomas Jefferson, have been such an ardent nationalist? The same question could be asked of Washington, and to a lesser extent, Henry Clay and Abraham Lincoln. The answer in Marshall’s case is perhaps best explained by his opposition to Jefferson’s Republican faction. Marshall feared both a French-inspired revolution on American soil and the fragmentation of the Union, and to Marshall “nationalism” provided the only tangible remedy for Jacobin terrorism and Jeffersonian democracy. The center had to hold in order to maintain the legacy of the American War for Independence.

Yet, none of those men were original thinkers. That is to say, they were not Alexander Hamilton. Clay and his political acolyte Lincoln rarely had a novel thought and were little more than political opportunists intent on salvaging their own careers.  The “Union” meant whatever was best for Clay and Lincoln. Washington was the “indispensable man,” the glue that held the federal republic together through his persona and reputation, if not his impeccable cavalier rearing, but he was not interested in the finer points of government or in political and economic philosophy.

John Marshall: The Man... Brookhiser, Richard Best Price: $6.87 Buy New $15.70 (as of 05:05 UTC - Details) Marshall does not compare to any of them. He was a political partisan but more of a statesman than either Clay or Lincoln. He styled himself a Washington Federalist without Washington’s refinement and copied Hamilton nearly (if not literally) verbatim in his major decisions. But the Constitution and the American legal system–if not American history–would not be the same without him.

Richard Brookhiser argues in his newest tome that John Marshall “made the Supreme Court.” This might be an understatement. Marshall, more than any other man, is responsible for the way most Americans think about “checks and balances” and “separation of powers.” Marshall almost single-handily saved the independence of the Supreme Court and made it at times the superior branch of government. As Brookhiser tells it, Marshall “brought order” to the chaos of the early American experience. But at what cost? The Brett Kavanaugh circus would not have been possible without Marshall, nor would our “one size fits all” general government be the focal point for every political question in America. That is Marshall’s ultimate legacy.

Brookhiser’s account shows Marshall to be a fairly consistent defender of “popular government,” meaning Marshall placed the power of the general government at the feet of an amalgamous “American people,” what could more accurately be labeled the “one people theory” of the American founding.  Marshall, Brookhiser contends, was a “populist.” He points out that Marshall could be inconsistent, even contradictory, but Brookhiser believes that Marshall was ultimately right in his attempt to arrest the factionalization of the American polity. Marshall feared demagoguery and the petty, narrow political agendas of State actors. To Brookhiser, this was the correct conservative approach, and he is often laudatory of Marshall’s devotion to American nationalism. Unfortunately, Brookhiser highlights the wrong inconsistencies, namely the fabrication and codification of the “one people theory” and his duplicitous statements during the Virginia ratifying convention of 1788.

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