John Marshall

by Harlow Giles Unger

  A hero in battles at Trenton, Monmouth, and Yorktown, Alexander Hamilton was General George Washington’s closest aide-de-camp in the Revolutionary War and wrote fifty-one of the eighty-five Federalist essays that proved instrumental in ratification of the Constitution. He would go on to serve in Washington’s cabinet as the nation’s first Secretary of Treasury. (LIBRARY OF CONGRESS)

  For the new constitution to take effect, each state had to call a popularly elected ratification convention, and at least nine states would have to vote in its favor. But without Virginia—America’s largest, richest, and most heavily populated state—the new nation would be relatively powerless, and, as John Marshall conceded, a majority of Virginians, led by their popular former governor Patrick Henry, “were in the opposition.”19

  “As this government stands,” Patrick Henry had avowed after reading the Constitution, “I despise and abhor it. . . . I speak as one poor individual—but when I speak, I speak the language of thousands.”20

  By February 1788 six states had ratified—Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, and Massachusetts. The states with the least land and fewest people—Delaware, New Jersey, and Connecticut—favored ratification to win military protection from the large army a central government would afford. Sparsely settled Georgia—beset by Indian raids from Spanish-held Florida—also needed protection of a strong federal force. Powerful banking interests in Pennsylvania and trading interests in Massachusetts had controlled majorities in the ratification conventions of those two states and ignored popular opposition to ratification.

  When Virginia’s 170 delegates met at their ratification convention in June 1788, Maryland and South Carolina had become the seventh and eighth states to adopt the new Constitution. Virginia sent most of its great figures to Richmond for the convention—Henry, Madison, Randolph, Mason, Lee, Wythe. The most notable absentee was Washington, who had presided over the Constitutional Convention and felt Virginians should decide on ratification without his direct interference.

  Also missing was Thomas Jefferson, whom the Confederation Congress had sent to Paris as American minister to France. Despite his distance from home, Jefferson tried to influence the convention by writing regularly to his protégés James Madison and James Monroe.

  “Were I in America,” he wrote, “I would advocate it [ratification] till nine [states] should have adopted it and then as warmly take the other side to convince the other four that they ought not to come into it until the declaration of rights be annexed to it.”21

  As the two most prominent young leaders in the state, Marshall and Monroe easily won election to Virginia’s ratification convention. Marshall’s winning personality and the proximity of his home to the convention site made his parlor a popular social center for delegates of all political persuasions.

  For the first time in their lives, however, the two friends Marshall and Monroe—brothers in battle at Monmouth—opposed each other. In Monroe’s first confrontation with his friend, he accused Marshall’s constitutionalists of failing to secure individual liberties. “We have struggled too long to bring about this revolution,” Monroe declared. “We have fought and bled freely to accomplish it.” He did not oppose strengthening central government, he said, but he bridled at ratifying a document that excluded a bill of rights.

  “How are we secured in the trial by jury?” he asked.

  Unless we qualified their exercise by securing this, might they not regulate it otherwise? As it is with trial by jury so with the liberty of conscience; that of the press would soon follow. Like all the state constitutions, the federal constitution should define the powers given to government and define the mode in which they shall be exercised.22

  Monroe went on to list his five principal objections to the Constitution: the federal government’s powers to tax people directly without their consent; the absence of a bill of rights to guarantee individual freedoms; the absence of presidential term limits; the opportunity for collusion between the President and Congress to oppress the people; and treaty-making powers that might undermine the interests of a particular region of the nation.

  “I shall always believe,” Monroe went on, “that the exercise of direct taxation by one body over the very extensive territory contained within the bounds of the United States will terminate either in anarchy and a dissolution of government or a subversion of liberty.”23

  John Marshall shot up from his seat to challenge his friend. Known for disheveled clothes that flapped about like tattered sails, Marshall unveiled a new persona as he stood—a new jacket, vest, elegant linen shirt, new pants and shoes, and silk stockings. While delegates often milled about and chatted as others spoke, Marshall’s deep, mellifluous voice commanded everyone’s attention:

  “The friends of the Constitution are as tenacious of liberty as its enemies,” Marshall challenged Monroe. “What are the objects of the national government?” he asked rhetorically. “To protect the United States and promote the general welfare!”

  Protection in time of war is one of its primary objects. Until mankind shall cease to have avarice and ambition, wars shall arise. There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose? But the honorable gentleman says that we need not be afraid of war.

  Marshall paused to let his sarcasm sink in before raising his voice at his friend:

  “Look at history!

  “How were the liberties of the frontiers to be preserved by an impotent central government? Could they . . . be secured by retaining that weak Government?

  “No!”24 he bellowed in answer to his own question.

  As Monroe shied under Marshall’s withering attack, James Madison—the author of many provisions in the Constitution—reinforced Marshall’s argument:

  “Congress ought to have the power to provide for the execution of the laws, suppress insurrections, and repel invasions,” Madison reiterated Marshall’s assertions. “Without a general controlling power to call forth the strength of the Union, to repel invasions, the country might be overrun and conquered by foreign enemies.”25

  Too many delegates nodded in agreement for Patrick Henry to remain still any longer.

  Although Marshall’s oratory had bludgeoned his friend Monroe, Monroe was, by his own admission, a less-than-gifted public speaker. Seeing Monroe’s distress, Patrick Henry, whom some called America’s “Demosthenes,” rose to put the upstart Marshall in his place. All eyes fixed on the great patriot—the legendary “Trumpet of the Revolution.” Picking up Monroe’s theme, he looked at the gallery filled with Kentuckians in tasseled deerskin shirts and coonskin hats:

  “Why?” he paused.

  “Why do we love this trial by jury?” Henry’s mountain twang rang through the hall.

  Patrick Henry, the iconic patriot who called America to arms, bitterly opposed ratification of the Constitution. A champion of the Constitution, young John Marshall won notoriety debating Henry at the Virginia ratification convention, where he accused the former governor of tyranny during his term in office. (LIBRARY OF CONGRESS)

  Because it prevents the hand of oppression from cutting yours off! They may call anything rebellion and deprive you of a fair trial. . . . Something must be done to preserve your liberty and mine. The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges are rendered insecure, if not lost.26

  “Is the relinquishment of trial by jury and liberty of the press necessary for your liberty?” he cried out.

  “No!” the buckskins in the gallery answered. Presiding officer George Wythe gaveled them to order.

  Henry insisted that the Confederation of American States deserved “the highest encomium:

  It carried us through a long and dangerous war: It rendered us victorious in that bloody conflict with a powerful nation: It has secured us territory greater than any European monarch possesses. . . . To obtain the most splendid prize
you did not consolidate. . . . The genius of Virginia landed you on the shore of freedom.

  “Consider what you are about to do before you part with this [Confederation],” he pleaded.27 “This [new] government . . . will destroy state governments and swallow the liberties of the people . . . your President may easily become King. . . . Congress will have an unlimited, unbounded command over the soul of this commonwealth.” Assailing congressional powers with power to pass any laws it deemed “necessary and proper,” Henry mocked what he called the absurdity of adopting this system and relying on the chance of getting it amended afterward.

  “I should take that man to be a lunatic who should favor adoption of a government avowedly defective in hopes of having it amended afterwards.”28

  If Henry cowed Marshall, the young attorney did not show it. Indeed, he all but sprang from his seat to bark back at Henry:

  “The supporters of the Constitution claim the title of being firm friends of liberty and the rights of mankind,” the former soldier cried out. “We, Sir, idolize democracy!

  “I differ in opinion from the worthy gentleman. I think that the virtue and talents of the general government will tend to the security instead of the destruction of our liberty.” Citing the very powers he would one day assert, Marshall declared that if Congress passed a law “not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution.

  “They would declare it void!”29

  Marshall scoffed at Henry’s contention that the Atlantic Ocean eliminated the causes of war by separating the nation from Europe.

  “Sir,” he looked Henry in the eyes, “I say the sea makes them neighbors to us.”

  Does not our naval weakness invite an attack on our commerce? May not the Algerines seize our vessels? Cannot they and every other predatory or maritime nation pillage our ships and destroy our commerce? . . . If anything be necessary, it must be to call forth the strength of the Union when we may be attacked or when the general purposes of America require it.30

  “The Confederation,” Marshall went on, “has nominal powers, but no means to carry them into effect. . . . I defy you to produce a single instance where requisitions on the several individual states composing a confederacy have been honestly complied with. . . . Our own experience shows the contrary.”31

  Marshall all but shouted that the instability of Congress and the failure of the states to comply with Washington’s requisitions had emasculated Patriot military strength in the Revolutionary War. He called it “improper” to compare taxing powers under the new Constitution with those of Parliament:

  “We were not represented in Parliament. Here we are represented!”

  As Henry’s anger at the young man’s insolence festered, Virginia’s war hero General Henry Lee added more fire power to Marshall’s assault with a reference to Henry’s failure to serve in the war.

  “I have had a different experience from the Honorable Gentleman,” Lee smiled at Henry condescendingly. “It was my fortune to be a soldier of my country.”

  In the discharge of my duty . . . I saw what the Honorable Gentleman did not see: Our men fighting with the troops of the King. . . . I have seen incontrovertible evidence that [state] militia cannot always be relied upon. Let the Gentleman recollect the action of Guilford [North Carolina]. The American regular troops behaved there with the most gallant intrepidity. What did the militia do? The greatest numbers of them fled.32

  But it was the diminutive James Madison who delivered the most effective argument against Patrick Henry and the antifederalists by emphasizing the strict limits the Constitution imposed on the new federal government. Barely five feet tall, Madison suffered chronic intestinal problems and “a constitutional liability to sudden attacks, somewhat resembling epilepsy.”33 Too frail and sickly for military service, he had spent three years of the war in Congress and led the unsuccessful struggle for interstate unity and congressional powers to levy taxes for national defense.

  His head bent down and all but invisible to most of the delegates, Madison read in short feeble bursts from notes inside his hat—“so low that his exordium could not be heard distinctly,” according to one delegate. Madison argued that the Constitution did not grant the new national government any powers beyond those spelled out in the document.

  “The powers of the federal government are enumerated,” his voice squeaked. “It has . . . defined and limited objects, beyond which it cannot extend its jurisdiction. . . . Congress ought to have the power to provide for the execution of the laws, suppress insurrections, and repel invasions. Without a general controlling power to call forth the strength of the Union to repel invasions, the country might be overrun and conquered by foreign enemies.”34 He repeated Washington’s argument that Article V gave opponents of the Constitution the right to amend it.

  Marshall then reminded the convention that “all delegated powers are liable to be abused.” He said the opponents of the Constitution were making “a recommendation of anarchy” and that the friends of the Constitution were “tenacious of liberty [and] wish to give no power that will endanger it.”35

  On June 24, as storm clouds gathered across the horizon, Henry came to the hall to make a last, desperate stand against the constitutionalists by raising an explosive issue that all had pondered but dared not address:

  “May they not pronounce all slaves free?” Henry demanded to know.

  As slaveholders gasped and looks of horror spread across the hall, Henry stared directly at Madison and, without giving the shaken little Federalist a chance to respond, he answered his own question. In words that echoed across the South for the next seventy-five years—words that would justify secession and civil war—Henry warned Virginians that the new government would abolish slavery.

  They have the power in clear unequivocal terms and will clearly and certainly exercise it! As much as I deplore slavery . . . prudence forbids abolition. . . . The majority of Congress is in the North, and the slaves are to the South. In this situation, I see a great deal of the property of Virginia in jeopardy.36

  As angry shouts spewed from the gallery, torrential rain pounded the roof, lightning blazed across the sky, thunder shook the building. Henry took advantage of the drama, lifting his voice in a crescendo and calling on God’s wrath to punish the authors of the Constitution:

  “He [Madison] tells you of important blessings, which he imagines will result to us and mankind in general from the adoption of this system,” Henry argued. “I see the awful immensity of the dangers with which it is pregnant.

  “I see it!” he cried out.

  “I feel it!”

  He spread wide his arms and looked to the heavens, playing the scene like the veteran actor he was. The storm had turned day into night; each bolt of lightning struck closer to the frightened delegates.

  “Our own happiness alone is not affected by the event,” Henry’s voice boomed after a lightning bolt had crashed near the hall. “All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemispheres.”37

  Unnerved by the power of the storm and Henry’s prophecies of doom, some delegates left the hall, shuddering at the dangers Henry had linked to ratification. When the convention adjourned for the day, the Constitution that John Marshall favored so strongly seemed doomed. The chaos of the Confederation was about to explode into widespread interstate wars over conflicting territorial claims.

  _______________

  * Two senators each would be named by state legislatures until 1917.

  CHAPTER 4

  Quoits Was the Game

  WHEN VIRGINIA’S RATIFICATION CONVENTION RESUMED THE NEXT MORNING, some spectators claimed Henry had summoned “black arts” to call lightning from the heavens on his antagonists the previous day. Whether he had or not proved immaterial. James Madison summoned a few black arts of his own, albeit political r
ather than meteorological.

  Collaring a handful of moderate antifederalists, Madison pledged to work for passage of a bill of rights in the First Congress if they agreed to support ratification. He and Marshall convinced enough delegates to switch their votes to produce an eighty-nine to seventy-nine victory for ratification.

  Although delegates believed their votes had made Virginia the decisive ninth state to ratify the Constitution, New Hampshire had actually ratified it a few days earlier. Together the two states ended the chaos of the Confederation and created the world’s newest nation—the United States of America.

  From the moment of its birth, however, the new nation found itself engulfed in as much chaos as the old. Many opponents of ratification refused to accept the will of the majority, and before the ink had dried on the new Constitution, they set out to shred the document and overturn the new government.

  “I had grown up,” Marshall explained his vote for ratification, “when ‘United we stand, divided we fall’ was the maxim of every orthodox American. And I imbibed these sentiments so thoroughly that they constituted a part of my being.”1

  Many others, however, felt differently. To his distress, Marshall’s closest friend, James Monroe, had voted against ratification and now pledged to overturn it or reshape it with amendments. The two heroic soldiers who had stood together in battle to win the nation’s independence now stood at odds in peace as Americans tried forming a new government.

  Both Monroe and Marshall reaped rewards from their convention efforts, however. Although Monroe lost the debate, he won election to the new US Senate when Henry’s antifederalists rallied enough votes to win both Virginia seats in the new upper chamber. Federalists, meanwhile, heaped ample rewards on John Marshall for his stand in favor of ratification. The state’s wealthiest planters—federalists all—entrusted him with their legal portfolios, and when the presidential election sent George Washington to the nation’s new capital in New York City, he too gave Marshall control of his legal affairs in Virginia.