George Washington was an inspiring leader, and Thomas Jefferson could turn a phrase; but to federal judges, the greatest of the Founding Fathers was undoubtedly John Marshall, chief justice of the US Supreme Court from 1801 to 1835, who forged the rule of federal law in American life. In his four-volume Life of John Marshall (1916), Albert J. Beveridge writes, “The work of John Marshall has been of supreme importance in the development of the American Nation, and its influence grows as time passes.” But Beveridge then cautions that “such exalted, if vague, encomium has been paid him, that, even to the legal profession, he has become a kind of mythical being, endowed with virtues and wisdom not of this earth.” Nonetheless, Beveridge’s biography is largely a panegyric to Marshall, and the titles of more recent biographies, such as Jean Edward Smith’s John Marshall: Definer of a Nation (1996) and Harlow Giles Unger’s John Marshall: The Chief Justice Who Saved the Nation (2014), indicate how much Marshall is still viewed with an awe that may inhibit critical thinking.
Something of a correction, however, is provided by a fine new biography of Marshall by Joel Richard Paul of Hastings Law School. While Paul greatly admires Marshall, he conscientiously provides the evidence on which a more nuanced assessment of Marshall may be made. In particular, it may be suggested that Marshall, while hugely instrumental in assuring for the federal judiciary its limited supervisory role over the legislative branch, exhibited a subservience to the executive branch that continues to haunt us.
Certainly there was a heroic aspect to Marshall’s rise to prominence. While it is commonplace to think of him as a member of the colonial Virginia aristocracy, in fact he was the proverbial “poor cousin.” Although his maternal grandmother had been born a Randolph (a fabled “First Family of Virginia”), she was disinherited after being caught in flagrante delicto with a Scottish minister, James Keith. Banished to the barely developed wilds of western Virginia, the two eventually married, but the taint of scandal continued to hang over their children, including Marshall’s mother, Mary Keith, who, bereft of money and connections, wound up marrying a farmer of modest means. In frontier fashion, they lived in a two-room log cabin in Germantown, Virginia, while raising fifteen children, of whom John Marshall, born in 1755, was the eldest.
Unlike his second cousin Thomas Jefferson, who was born on a large plantation and received years of private tutoring before entering the College of William and Mary at age sixteen, Marshall was largely self-taught and had no more than one year of formal schooling. His first job of any consequence was as a soldier in the Revolutionary War, in which, during the winter at Valley Forge, he met George Washington, who…
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