| Book Review | Law and History Review, 22.3

Book Review

R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court, Baton Rouge: Louisiana State University Press, 2001. Pp. 540. $39.95 (ISBN 0-8071-2701-9).

Most who study the U.S. Supreme Court opine that John Marshall (1755–1835) was and remains "the great chief justice." In attempting to determine whether or not this is true, Newmyer permits readers to draw their own conclusions about Marshall by providing rich detail about the conflicts of Marshall's time and place as objectively and fully as any biographer to date.

In developing how Marshallian jurisprudence triumphed despite opposition from men of other perspectives, most notably Thomas Jefferson and Andrew Jackson, Newmyer vividly and engagingly depicts John Marshall's moderate yet nationalist jurisprudence and places it in its proper historical context. Further, Newmeyer explains that Marshall's ability to apply his legal thought stems from a synthesis of experiences, including those while a Continental Army soldier and as a Virgin-ia Federalist lawyer and politician.

Only for figures such as Jefferson or Marshall would a biography of 500 pages be considered brief. Indeed, lengthier studies by J. Edward Smith and G. Edward White are among the invaluable contributions to recent scholarship on Marshall. Newmyer, however, provides us with a beautifully written, concise study, an informative narrative that places us on the very complicated trail Marshall traveled during the early republic, making excellent usage of sources along the way.

Demonstrative of one of very few negatives, Newmyer tells little about Marshall's mother, Mary Keith Marshall. He only states that she had probably given Marshall his first reading lesson. This is a rather unfortunate exclusion. Contrarily, Newmeyer speaks volumes of the influence that Marshall's father, Thomas Marshall, had on his son. As Newmyer avers, Marshall's father knew "that law was the open sesame to power and possibly even republican fame" (77). History has proven him right.

In delineating the origins of Marshall's understanding of the federal Constitution, Newmyer deduces that Marshall made his first "constitutional decision" to fight as a lieutenant under George Washington (12). Throughout the first third of the book, Newmyer aptly demonstrates how Marshallian jurisprudence and politics were shaped by his having witnessed the difficulties states had in working with the Continental Congress.

It should be of little surprise that the concepts of nation held by Jefferson—a politician in either Virginia or abroad during the Revolution—and that held by Marshall were bi-polar opposites. Newmyer is successful in bringing this all-too-colorful debate to the fore, proving just how these significant earlier events edged Marshall into his nationalist role on the Supreme Court during the early republic, the catalyst for his embroilment in this ideological clash, and the odds that he had against him.

Newmyer treats Marshall and the slavery issue equitably. Marshall, "was not," urges Newmyer, "one of those Virginians who condemned it on moral grounds" (416). In his discussion of Marshall's participation in the American Colonization Society, he criticizes that "the transportation of blacks out of the country appeared to be, if not Marshall's major concern, then his most pressing goal" (423). However disappointing for some, it is nevertheless a feather in the cap for Newmyer that he did not succumb to the labor-of-love syndrome that many biographers do, defending or at least attempting to explain away less desirable attributes.

Continuing his objective treatment of Marshall, Newmyer informs us that Justice Marshall was not always able to separate law and politics, but to some degree synthesizes his legal training with his experiences to form an opinion. Marshall was indisputably protective of the Federalist line, an idea that Newmyer promotes and develops throughout the book. While Marshall's noncommittal disagreement with the Alien and Sedition Acts compared to his position in the Aaron Burr sedition trial are obvious examples of this point, McCulloch v. Virginia, probably more than any other case exemplifies how Marshall's politics played a role in formulating his opinion. Newmyer argues that the Chief Justice used "Logic, hermeneutics and constitutional theory ... along with twenty years of precedent," (296) to remind the Jeffersonians that the federal constitution did not allow Maryland to sue the Bank of the United States, even if they were in competition with one another. Significantly, McCulloch illustrates how, in employing judicial review, Marshall almost invariably applied natural law to constitutional text. This legal dogmatism is an important element of Marshall's jurisprudence and one that Newmyer depicts adeptly.

Something that Newmyer does not address but is surprising about Marshall is, despite controversial decisions such as Marbury v. Madison and Martin v. Hunter's Lessee Marshall managed to circumvent any considerable protest against him. Spencer Roane's criticisms under the pseudonym "Hampden,"—to which Marshall wrote responses as "Friend of" either "the Union" or "Constitution"—pale in comparison to accounts of what happened to some when they sided against the masses. James Wilson's home, for instance, was burned to the ground in 1779 when he was branded as, among other things, a Tory. Marshall, champion of the Federalist cause, must have been simply more adroit than his predecessor.

Contract also played a defining role in Marshall's jurisprudence. Newmyer writes "Contract was the energizing mechanism" used to "deploy" individuals' right to property (264). In Ogden v. Saunders, the only dissent in the ninety-seven constitutional cases during his tenure as Chief Justice, Marshall maintained that contracts are meant to be "literally performed" (261). His dissent affirmed that Marshall remained constant in applying constitutional text to natural law, evinced by his strict interpretation of the Contract Clause.

In leading to the winter of Marshall's career, Newmyer illustrates Marshall's struggle against Andrew Jackson with precision. He explains how crucial Marshall's fight from the bench for a liberal rather than direct democracy really was. In striving to lay this gauntlet, Marshall once again proved that his politics and jurisprudence were sometimes inseparable regardless of how hard he tried to divorce the two. Indeed Newmyer argues that Marshall's decision in Worcester v. Georgia purposely heaved the weighty Native American issue into the political arena, just in time for the 1832 elections. This closing curtain on a brilliant career may very well have been what Newmyer maintains it had been: John Marshall's "finest moment" (458).

Christopher Brooks

Center for North American Studies
Frankfurt, Germany

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