If History Mattered: John Marshall and Reframing the Constitution

What more can there be to learn about John Marshall? We have been blessed recently with a flood of fine books about Marshall and the Supreme Court over which he presided from 1801 until 1835. We also now have readily available an impressive collection of documents concerning the Court before Marshall, as well as a fine series collecting, introducing, and annotating Marshall’s papers. With recent bicentennial celebrations marking the beginning of Marshall’s career as Chief Justice and the anniversary of Marbury v. Madison, an outpouring of law review articles and scholarly symposia have offered learned exchanges about the great Chief Justice and his most famous decision. It turns out, however, that Kent Newmyer’s account of John Marshall and his times actually illuminates a vigorous current debate. We are witnessing a bitter fight within the Supreme Court over federalism, the relative weight to give constitutional text, and the basic role of judges. In a manner that echoes the Court’s internal divisions during the early 1930s, current Justices repeatedly battle about what the founding generation meant to do in passing, ratifying, and beginning to interpret the Constitution. Though Newmyer’s excellent historical work is anything but “presentist,” it turns out to be relevant as it clearly conveys the constitutional vision proclaimed by Marshall and his fellow Justices. This careful study directly contradicts the state sovereignty claims that have been made repeatedly by a majority of the current Court. Newmyer provides a cogent portrait of how John Marshall’s charm and legal craftsmanship forged a vision of balanced federalism. With tenacious research and crisp writing, Newmyer demonstrates that Marshall was a committed nationalist, who nonetheless divided sovereignty, respected the states, and hoped to facilitate individual entrepreneurial efforts. Yet in service to an expansive national promise – a promise entailing a constitutional commitment that Marshall did not doubt the Framers shared – the Chief Justice repeatedly led his remarkably collegial Court to interpret Congress’s powers broadly. He did so “to help Congress help the people help themselves build a nation” (p. 302).