Chief Justice Marshall Takes the Law in Hand

Upsetting Presidents and setting precedents, he helped forge a nation

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The definitive binding of all Americans into one nation "was written in torrents of blood during the Civil War," Robert Wernick writes, as he examines the work of the fourth Chief Justice in forming a nation. But long before that the question of what our country would become began to be answered, bit by bit, "and a crucial moment in the gradual shift toward nationhood can be pinpointed to a few months in 1803, when two great Americans took separate and independent actions ensuring that a nation, one and indivisible, would eventually result."

One action was the Louisiana Purchase, by which — for a mere $15 million dollars — Thomas Jefferson acquired 828,000 square miles of west-reaching land for the United States. The other, less celebrated, action was a decision handed down by John Marshall, the new Chief Justice of a Supreme Court far less powerful than the one today. It was called Marbury v. Madison, and it asserted, and thus created a precedent, that the Supreme Court has the right to declare unconstitutional a law passed by Congress and signed by the President, a ruling that reverberates to this day.

 Marshall and Jefferson were adversaries. Jefferson believed in states' rights — that the colonies who ratified the constitution did so as sovereign states. He wanted the weakest federal government possible. Marshall knew that a federal government without the power to tax, to support a military and to regulate finance was a recipe for anarchy. For 34 years, in decision after decision, McCulloch v. Maryland, Gibbons v. Ogden, he built up the legal power of the Supreme Court and, with it, the power of the federal government. Jefferson and succeeding democratic Presidents were against everything Marshall did, but found themselves helpless before his legal expertise in reading the Constitution.

Jefferson's life and the crotchets of his character are familiar to us. His head is on the nickel. But Marshall, apart from his precedents, is little known. Wernick paints a memorable portrait of the brilliant, convivial, plainspoken man — and the issues behind the laws that the Chief Justice took in hand.

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