“He hit the Constitution much as the Lord hit chaos…”
John Marshall: The Chief Justice Who Saved the Nation
By Harlow Giles Unger
DaCapo Press, 2014
In 2011 I reviewed Harlow Giles Unger’s biography of Patrick Henry, Lion of Liberty, which I thought was a shallow attempt to shill pre-digested, ideologically self-affirming history to a contemporary political movement with an appetite for consuming all things ideologically self-affirming. Unger has returned with a new book about a Revolutionary-era American whose beliefs could not be farther from Patrick Henry’s: the pro-constitution, pro-union, Federalist, Chief Justice John Marshall. Because he was now working with someone so different from the tempestuous Henry, I had hoped that Unger’s approach and rhetoric might be proportionally dissimilar in his newest offering. These hopes were quickly dashed as all of Unger’s stylistic foibles – the incessant moralizing, the two-dimensional character development, the rampant use of hyperbole – abound throughout John Marshall: The Chief Justice Who Saved the Nation.
It begins on page one where Unger is either describing a post-apocalyptic wasteland or the United States in 1800: with George Washington dead, the nation was fatherless and the children had lost their way. He describes how these one-time revolutionary brethren, men such as Adams, Jefferson, and Hamilton, had turned on one another in a chaotic struggle for supremacy of the present and mastery of the future. He continues:
In a drama not unlike a classical Greek or Shakespearian tragedy, lust for power and arrogance gripped the souls of national heroes, perverting their patriotism, spurring them to spring on each other, fangs bared spitting venom. Defying the Declaration of Independence and Constitution they had written and sworn to uphold, they ignored the commandments their religions demanded they obey. Madness swept them into its arms…
There are a number of things about this introduction that are objectionable. First, though he died in late 1799, Washington had been retired since 1797; the Republic wasn’t suddenly dropped into a leaderless vacuum with his passing. Second, the argument that the republic was spiraling into chaos doesn’t stand up to scrutiny; free societies come with inherent problematic conditions, one of which is competition between ambitious individuals. Friction arising from passionate disagreements is sometimes an unfortunate byproduct of a democratic society. That this competition occurred without devolving into open bloodletting is actually a sign of a fairly healthy democratic society. Secondly, examine the language: lust, arrogance, perverting, fangs, venom. One would never expect that 1800 would see a young nation persevere through a constitutionally tricky presidential election that produced the first peaceful transfer of power between rival parties in modern history.
But this is Unger’s style in a nutshell. His storytelling is maddeningly devoid of nuance and subtlety. His villains lack any redeeming qualities and his heroes are without faults. Within the historical world he crafts, characters are never noble but flawed and motivations cannot be complicated by self-doubt or internal conflicts. He regularly levies ad hominem attacks whenever it suits his purposes and seems always to gravitate towards the most extreme or salacious possible interpretation of events. I assume Unger adopts this method because he believes it will infuse the narrative with additional conflict and keep readers enthralled.
There is nothing wrong with compelling or entertaining storytelling, but when it’s processed and packaged as Unger does, readers are mislead into consuming a stew of hagiography and yellow journalism. Rightly or wrongly, readers have a preconceived notion about the informative utility of non-fiction books. Gore Vidal writes well-researched and thoroughly entertaining books about historical characters but sacrifices factual accuracy to the needs of his overarching goals of his story – just as Unger does – however the difference is that Vidal has the good sense to call the results fiction and not biography.
Marshall was not born a Justice, and his story offers modern readers the possibility of a fresh perspective of the Revolution and the early days of the Republic. He was not a founding father. During the Revolutionary War he sat in no great civil or military councils but marched and fought with other soldiers as a junior officer. He was not at Philadelphia in the summer of 1787, but he fought for the great charter’s adoption as one of the floor managers at Virginia’s ratifying convention. Though a distant cousin of Thomas Jefferson, he came from a less patrician branch of the family tree. John Marshall needed to work to support his family, and as one of the leading advocates at the Virginia Bar, he had a prosperous private practice before being dragged into public service.
At the same time as they recognize him as eminently capable, almost all sources also agree that John Marshall was also an all around good man. He was a congenial bon vivant who was always willing to seek out the good in others. He maintained his humor despite a tragic personal life that saw his wife become increasingly incapacitated by a depressive nervous condition. As his wife’s mental and physical health deteriorated and she became ever more sensitive to stress and noise, Marshall could not host the social gatherings he loved, and neighbors could often see him in the street outside his Richmond home at night trying to wrangle some stray dog whose baying tormented his bride.
Despite having turned down half a dozen offers from the Washington administration due to his domestic situation, he eventually relented to President Adams’ entreaties that he be part of a three-man American peace delegation being sent to France to de-escalate the Quasi-War. Once there, the delegation became embroiled in the famous X, Y, Z affair; X, Y, Z refer to three Frenchmen who sought to solicit bribes from the Americans on behalf of French Foreign Minister Talleyrand. In Unger’s description of these events, Marshall’s lack of discipline leads him into an embarrassing error. Unger relays that while in France, the commissioners were introduced by “friends,” secretly acting as agents of Talleyrand, to the Madame Reine-Philiberte Marquise de Villette who offered them apartments at her mansion. The commissioners, worried about the mounting cost of their stay in Paris agreed and soon were to be seen at de Villette’s side enjoying the salons and nightlife of Paris almost nightly.
Indelicately-worded letters sent home by Marshall describing his new accommodations raised fears in his wife that her husband was having an affair. The possibility of an affair cannot definitively be ruled out, but to this Unger adds an additionally scandalous twist:
“Why,” Marshall heard the seductive French whisper one evening. “Why will you not lend us money,” Madame de Villette had surprised Marshall in the quiet of her dimly lit Salon…
Stunned by the lady’s words at first, Marshall called in Pinckney [another American delegate]. Both suddenly realized their hostess was also a Talleyrand agent. The French Foreign Ministry had duped them into renting lodgings subsidized by the French government to lure them into the arms of a seductress. Pinckney told his hostess he planned to return to America immediately. Madame de Villette hissed that if he ended his mission, France had a powerful political party in America ready to seize power from the Adams administration by force if necessary.
This story has it all: treachery, international intrigue, sex, corruption, and of course it is almost certainly untrue. In his biography of Marshall, Jean Smith deals with this gossip fairly conclusively:
Some historians have suggested that Madame de Villette was a femme fatale, an agent of Talleyrand who seduced the Americans with her charm. There is no evidence to support this claim. The French police had an informer who watched Madame de Villette’s house and who tried to keep an eye on Marshall and Gerry, albeit without much success. The police dossier on Madame de Villette contains a report from this informer indicating that the envoys met nightly at her house. When the police commissioner passed that information on to Talleyrand, the Foreign Minister immediately expressed his gratitude. “The surveillance you have ordered, citizen colleague, can only produce welcome results at a time when the machinations of the foreign coalition, be it in the Republic or elsewhere, can only be dubious.” If Madame de Villette had been working for Talleyrand, it would not have been necessary to dispatch police informers to spy on the envoys. Moreover, the French archives, which are known for the completeness of their holdings, have no record of any communication between Talleyrand and the marquise.
In case one were still inclined to give Unger some benefit of the doubt at this point, Smith goes on detail how the rumor was born and detail how it was deconstructed by scholars before concluding:
The entire matter was considered at length by William Stinchcombe in his definitive work on the XYZ affair, and he concludes that the woman in question was Madame de la Forest, not Madame de Villette. That, too, was the judgment of the editors of the Marshall Papers.
Not only has de Villette’s name already been thoroughly cleared by historians but Jean Smith’s book appears in Unger’s bibliography, which might seem like a small matter if it weren’t emblematic of a deeper disease in Unger’s book, namely a looseness with facts in the service of a better story.
John Marshall received a hero’s welcome when he returned to the United States from France, and after a brief stint in Congress he was tapped by President Adams for Secretary of State. Marshall helped to prop up the flagging administration, as he was a moderate Federalist and a Virginian who held sway with both Hamiltonian Arch-Federalists and Jeffersonian Republicans alike, he was one of those rare public men who really did have friends on “both sides of the aisle.” He could help improve the administration’s standing with Congress through his bonhomie.
In 1800 Chief Justice Oliver Ellsworth announced his retirement from the Supreme Court and after President Adams was spurned by his first choice he nominated his most trusted advisor, the capable and popular Marshall to fill the vacancy. Adams would come to see his second choice for the job as a “gift” he gave to the American people and as “the proudest act of my life.”
Marshall’s term as Chief Justice would not only be the longest in American history but the most transformative, giving form to both the judicial branch and the nation at large. Right away Marshall infused the Supreme Court with his humility by rejecting the ornate judicial dress which was a vestige of British judicial tradition, opting instead for the plain black robes justices still wear today. He also began the now-abandoned practice whereby the justices lodged and took their meals together when the court was in session.
Smith believed this was a significant factor in the forging of the court’s distinct identity, which through Marshall’s long tenure was largely a reflection of himself:
The justices’ communal existence provided an environment in which Marshall’s conviviality could flourish. The qualities of clear thinking and political insight that had made him the natural leader of the delegation to Paris and that had propelled him to the leadership of the Adams Federalist in Congress now were free to work their effect on five potentially fractious associates who had had little experience working together and who were profoundly jealous of their individual prerogatives.
Cohesiveness was essential to the rehabilitation of the Supreme Court Marshall was undertaking. Since its inception the court had been viewed as the least equal of the three co-equal branches of the American government. As Smith points out, when Marshall became chief the court had no library, no offices, and garnered so little consideration that justices often had to scramble to find places to convene. Despite the lack of resources, Marshall stepped into the breach and made himself the foundation for a new, dynamic federal judiciary.
Marshall’s most important task in the early years of the 19th century was to distance the Supreme Court from the political controversies of the nation in order to preserve its legitimacy. Unger recognizes this and doubtless this is what he would point to if asked to justify his subtitle “the Chief Justice who saved the nation.”
Unger makes much of the ideological conflict between Chief Justice Marshall and President Jefferson. These two men are often portrayed as bitter rivals and came closest to direct confrontation when the court took up the case of Marbury v. Madison.
Marbury is undoubtedly the most important case ever decided by the Supreme Court. In brief, when President Adams left office, he left behind a signed but undelivered judicial commission for William Marbury. The incoming President Jefferson instructed his new secretary of state James Madison not to deliver the commission. Marbury sued to compel Madison to deliver it up to him.
Ultimately the court’s ruling displayed all of Marshall’s brilliance as a politician, jurist and logician. The decision simultaneously empowered the Supreme Court while preventing a constitutional showdown with the executive branch by declaring that the Jefferson administration had broken the law by withholding the commission but that the Supreme Court lacked the authority to order the President to deliver it. Marbury’s attorney had erred when he originated the complaint in the Supreme Court, because this case fell outside the Court’s original jurisdiction as specified in the Constitution. Though Congress sought to enlarge the Court’s original jurisdiction through the Judicial Act of 1789, even authorizing the Court to issue the exact kind of order Marbury was seeking, the Court declared that part of the law invalid on grounds that Congress lacked the authority to do so.
Here, for once, Unger’s description suits the momentousness of what had just transpired:
… Chief Justice John Marshall effectively amended the Constitution by assuming the power of judicial review for the Supreme Court, allowing it to void an] act of Congress it deemed unconstitutional…
That the decision went unchallenged was the result of Marshall’s brilliant political strategy: he and the associate justices were evidently aware they were overstepping the bounds of the Constitution, and the Chief Justice worded the decision in terms that left all parties in the case – the President, the secretary of state, Congress, William Marbury, and even the Court itself – unable to respond with either defiance or compliance…
Designed as a fait accompli, the decision demanded nothing of anyone and left no opportunity for anyone to respond. It set a precedent without affording any opportunity to challenge – and without depriving any of the principals of redress through constitutional action. Marbury could still ask for his writ from a lower court. Congress could rewrite the judiciary act to conform with constitutional restrictions. And the President could, if he chose, reinstate Marbury or at least stop trying to remove judges from the federal bench without due process…
Unfortunately, Unger quickly retreats from this fit of lucidity back into a tangential rant listing all the unconstitutional usurpations the government had undertaken since its conception: federal borrowing without congressional appropriation, deployment of troops without congressional authorization, issuance of presidential proclamations, putting down the Whiskey Rebellion, passing the Alien and Sedition acts, before declaring “after a decade of unconstitutional assumptions of powers by the executive and legislative branches Marbury v. Madison was the first assertion of extraconstitutional powers by the judiciary.”
Unger’s critique is ironic because despite excoriating Jefferson at every opportunity throughout the book, he essentially endorses the Jeffersonian position. In the ideological battle fought between loose and strict constructionists, Marshall clearly took an opposite view of Jefferson. This view is best expressed by Alexander Hamilton, who wrote government had, “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.”
In other words, the government sometimes needs to do things not expressly forbidden by the Constitution in order to do the things it’s authorized or required to do by the Constitution. Gears need grease, bones need joints, and that which doesn’t bend will break. Judicial review is an implied power that may not be expressly stated in the Constitution as an affirmative power of the Supreme Court, but it allows the Court to serve the purpose for which it was created. The Framers understood the Constitution as a legal document and assumed the proper venue for all questions of law was the judicial branch. Hamilton certainly says so in Federalist 78:
It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
After looking at Marbury, Unger examines the attempted impeachment of Supreme Court Justice Samuel Chase and the treason trial of Aaron Burr, which came before Marshall as he was presiding at the Circuit Court in Richmond. Unger’s brutalization of Jefferson throughout these passages is so pervasive that it’s difficult to point out specific histrionics. The aggregate effect is a grossly unfair characterization of the President as little more than a sociopathic, sputtering ball of rage.
At this point in the chronology of the narrative, it’s 1808 and Unger is running out of steam. Jefferson has left office. Madison’s taken over and, with his superior understanding of the Constitution, tacitly endorses the role Marshall has carved out for the Supreme Court within the national government. Madison’s presidency actually inaugurates 16 years of cooperation between the judicial and executive branches that will cement the Court’s equal and independent status.
The remaining 27 years of Marshall’s career receive a brief 50-page synopsis. However, Marshall’s importance to the future of the United States could not have adequately been encapsulated by an additional 500 pages. No other individual did more to give the United States Constitution sustainable form and function than John Marshall; consistency through the rule of law is his ultimate legacy.
John Marshall: the Chief Justice Who Saved the Nation fails both its subject and its readers by trying to sell the sizzle instead of the steak. Histories do not need to be dry recitations of names, dates, and places to be both well-received and legitimate. David McCullough, Ron Chernow and Jean Edward Smith are all recent examples of biographers whose works were as edifying as they were entertaining. Ultimately, writing history remains a pedagogical exercise with the end goal of presenting the reader with as accurate an account of its subject as the sources materials allow. The essential bridge between those source materials and the general public is the considered judgment of the historian. Unger’s failure in Marshall is one of judgment and circumspection, readers however, can take solace in knowing that better Marshall biographies exist and can look forward to the day when a new one will be published, that will hopefully do some justice to the life of the Chief Justice.
Thomas J. Daly is an Open Letters contributor living in Boston.