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Tuesday, March 29, 2016

“John Marshall: A Life in Law”, by Leonard Baker


845 pages, Macmillan, ISBN-13: 978-0025063600

John Marshall: A Life in Law, a sprawling book by Leonard Baker (a Washington journalist and not a lawyer) is one of the many books – biographical, historical, and legal – dealing with John Marshall, the 4th Chief Justice of the United States (1801-35). It will not be the last. As “the Expounder of the Constitution”, Marshall in his years as Chief Justice handed down many controversial decisions. Praised and lauded by the Federalists, he was bitterly assailed by the Jeffersonians and the Democratic Republican press. This is important as one would be forgiven in thinking that the events and political disputes that frothed during the first decades of American independence are of interest only in understanding the history of the time; instead, many of the issues and much of the polemics of the day are still are a part of our political rhetoric and action. The tension between states and the federal government, the issue of the rights of individuals and States versus federal power, of Jeffersonian Republicanism versus the Federalist concept of centralized government, are just as alive today as they were at the turn of the 19th Century. Grover Norquist’s boast that conservative Republicans want to shrink government “down to the size where we can drown it in the bathtub” is just an echo of Jeffersonian philosophy.

Marshall was without question one of the giants of early America. He went from commanding a company in the Revolutionary Army – even wintering at Valley Forge – to serving on General Washington’s staff. He was a country boy with little formal education, whose father, also a Revolutionary war officer, owned large tracts of land in Virginia and Kentucky. His basic instruction in law was at the College of William and Mary, attending lectures for 2 months only during one summer session. Mostly self-taught, he was admitted to the bar by Thomas Jefferson (then Governor of Virginia), and began a distinguished career as a lawyer in Virginia’s new capital, Richmond. His experiences in an Army ill-equipped and starving at Valley Forge taught him that strong central government was needed for the regular and orderly management of national affairs. His extensive reading in law and history brought to him the significance of an independent judiciary. A Federalist in a land of Jeffersonians, he nevertheless fought successfully for the adoption of the federal Constitution in his home state, served in the state legislature, and eventually served as an emissary to France, as Attorney General of the United States, and, finally, as Chief Justice.

Many readers will have some familiarity with Marshall’s major constitutional opinions, so the important question is does Baker present anything new with respect to the background of these cases (the arguments of counsel, or the formulation of the opinions)? Does the Baker offer any new and fresh insights into the contemporary impact or the lasting significance of these cases? The answer to these questions is simply “No”. Baker does dwell at great length upon the significance of Marshall’s major decisions, but much of this seems a repetitious elaboration of the obvious, at least to any lawyer or historian with some knowledge of American constitutional law. In view of all that has been written about Marshall’s milestone opinions, what is there left unsaid or capable of discovery by a writer without legal training? For the reader who is looking for a readable, comprehensive, and generally sound life of John Marshall-told dramatically and somewhat romantically-will find it in the Baker volume. A reader primarily intent upon a scholarly, in-depth analysis of Marshall’s constitutional opinions had better look elsewhere. 

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