by Peter Irons
The Court’s unanimous decision in Barron v. Baltimore came near the end of Marshall’s long tenure as Chief Justice. His opinion attracted little notice in 1833, and little discussion since then; one recent history of the Supreme Court relegated the Barron case to a footnote. Most constitutional scholars have simply assumed that Marshall reached the right conclusion in this case, and that those who framed the Bill of Rights had not intended to protect the people against oppression by the states, as they did from Congress. But Marshall was a fervent nationalist and almost always gave an expansive reading to the Constitution. It would have been more in character for him to force the states into compliance with federal standards. However, he had little respect for the rights of “the people” against the governor—state or federal. Forced to choose between these countering principles, he did not find “much difficulty” in rejecting the argument based on individual rights.
Today, we look to the Due Process and Equal Protection Clauses of the Fourteenth Amendment—ratified after the Civil War in 1868—for protection against state laws that violate the provisions of the Bill of Rights. But why not look to those first ten amendments themselves? Marshall’s answer to this important question in Barron effectively barred “the people” for another century from relying on the Bill of Rights to shield them against oppressive state laws, until the Supreme Court began to “incorporate” its provisions into the Fourteenth Amendment, a judicial journey that started in 1925 and has not yet been completed. One reason this doctrinal change took so long to develop was that the Court remained faithful—well into the twentieth century—to Marshall’s view of the Constitution. He succeeded in limiting state powers under the Contract and Commerce Clauses, but he refused to apply the Bill of Rights to the states. In deciding these cases, he may have read the Constitution as the Framers intended. Marshall was certainly closer to them in time, and in shared experiences, than those who view him from the perspective of two centuries of momentous change in America’s size, population, and technology. But Marshall also read the Constitution through the eyes of a committed and partisan Federalist, and as a fervent advocate of judicial supremacy. His was not the only possible reading of the Constitution, but it was—for more than three decades—the one that counted.
12
“Great, Good, and Excellent Man!”
Speaking for the Supreme Court in 1819, Chief Justice Marshall wrote in McCulloch v. Maryland that the Constitution was “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Even at that time, the nation faced a serious crisis in the conflict over slavery. Increases in population and the westward march for new territory had intensified the battles that raged between slavery’s opponents and defenders. While the justices listened to Daniel Webster’s arguments in the McCulloch and Dartmouth College cases, the halls of Congress in the same Capitol building rang with debate over the extension of slavery into the western territories.
The political battle over slavery began when residents of Missouri petitioned Congress for statehood early in 1819. The House first approved the proposal, but with an amendment, offered by Representative James Tallmadge of New York, that would prohibit the further importation of slaves into the state and free all slave children at the age of twenty-five. The Senate refused to accept the Tallmadge amendments, and the Missouri statehood bill languished until Congress met for its next session in December 1819. By that time, residents of Maine (then a part of Massachusetts) had also asked for statehood. With the admission of two states at issue, House speaker Henry Clay forged a compromise: both states would be admitted to the Union, with Maine as a free state and with slavery allowed in Missouri but “forever forbidden” in that part of the Louisiana Purchase above Missouri’s southern border.
Congressional passage of the Missouri Compromise did not end debate on the slavery issue. In fact, it provoked the more extreme partisans on both sides to intensify their efforts. Northern abolitionists and southern defenders of slavery began talking of “disunion” and “secession.” James Tallmadge, whose amendment to end slavery in Missouri had failed, spoke to the House with heated words: “If a dissolution of the Union must take place, let it be so! If civil war . . . must come, I can only say, let it come!” On the southern side, Representative Thomas Cobb, of Georgia replied: “We have kindled a fire which. . . seas of blood can only extinguish.” With heated rhetoric like this, the slavery issue became impossible to resolve peacefully. Over the next four decades, the warring sides moved closer and closer to real bloodshed.
During this period, and throughout the remainder of John Marshall’s tenure as Chief Justice, the Supreme Court remained virtually silent on the question of slavery. This did not reflect the Court’s refusal to face the issue as much as the reluctance of state and federal officials to enforce the Fugitive Slave Act of 1793, which did not come before the Court until 1842, seven years after Marshall’s death. How he would have ruled on a direct change to salvery cannot be answered, but we do have evidence of Marshall’s ambivalence on the issue. He owned slaves, but opposed the institution of slavery. He believed that slavery violated the “natural law,” but believed even more strongly that the Constitution gave it sanction. He considered slaves as “property” but admitted their humanity. Caught in these contradictions, he avoided committing himself to either side in the slavery dispute. Six years after passage of the Missouri Compromise, Marshall lamented to a friend that “nothing portends more calamity & mischief to the Southern States than their slave population. Yet they seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it.” He did not “wonder that they should resist any attempt, should one be made, to interfere with the rights of property, but they have a feverish jealousy of measures which may do good without the hazard of harm that is, I think, very unwise.”
The measure that Marshal thought would do the most good was repatriation of free blacks to Africa. He eagerly joined the American Colonization Society in 1829, and served as president of the Virginia branch until his death, with James Madison as one of the vice presidents. Writing to the society’s secretary in 1831, Marshall supported the “removal of our colored population” to Africa. “The whole Union would be strengthened by it, and relieved from a danger, whose extent can scarcely be estimated.” The colonization movement raised enough funds to return several thousand free blacks to the west coast of Africa, where they founded the nation of Liberia. But that left almost two million slaves in bondage the United States.
Marshall addressed the slavery issue just once as Chief Justice, in a strange case known as The Antelope, decided in 1825. This was the name of a Spanish vessel involved in the slave trade off the coast of Africa. According to the Supreme Court report in the case, a “privateer” ship called the Columbia sailed from Baltimore in 1819, and then “hoisted the Artegan flag, assuming the name of the Arraganta.” (Geography books make no mention of any nation called Artega, but the Court may have meant Antigua in the Caribbean.) The Arraganta then rampaged along the African coast, stopping and boarding American, Spanish, and Portuguese slave ships and stealing their human cargoes. After the Arraganta was wrecked on the coast of Brazil, about 280 Africans were transferred to the Antelope, which sailed for the United States. Her captain , John Smith , evidently hoped to smuggle the Africans into the country and sell them into slavery. Since Congress had barred the further importation of slaves, this would have been illegal. An American revenue cutter, under the command of Captain Jackson, intercepted The Antelope off the Georgia coast and brought her into the port at Savannah.
Five separate parties claimed ownership of—or rights to—the hapless Africans. The claimants included Spain and Portugal, from whose ships some of the captives had been stolen; Captain John Smith, who claimed them as jure belliof the fruits of war; Captain Jackson, who claimed the Africans as either bounty or salvage, depending on whic
h party won the case; and the United States government, which argued that they “were entitled to their freedom” under American law “and by the law of nations.”
John Marshall assumed the task of sorting out these conflicting claims. He approached this question of “momentous importance” with full recognition that the case involved “claims in which the sacred rights of liberty and property come into conflict with each other.” But he sternly admonished that “this court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.”
Marshall did his duty, as he saw it under the law of nations. “ However abhorrent this traffic may be,” he wrote of the slave trade, “it has been sanctioned, in modern times, by the laws of all nations who possess distant colonies” and who profit from it. Marshall spoke disapprovingly of slavery. “That it is contrary to the law of nature, will scarcely be denied,” he wrote. But “feelings of humanity” must yield to “the law of nations” The Africans held on The Antelope were captured, wrote Marshall, from an “immense continent” which still adhered to the ancient law that “prisoners are slaves.” But he still faced the question of whether his country, having “renounced this law,” could allow others to enslave “the beings who are its victims.” Should the Court order the government to deliver the Africans to the Spanish and Portuguese claimants, who would return them to slavery? “Whatever might be the answer of a moralist to this question,” Marshall wrote, “a jurist must search for its legal solution” in the law of nations.
Acknowledging “the perfect aquality of nations,” the chief justice wrote of slavery that “this traffic remains lawful to those whose governments have not forbidden it.” Marshall’s final order smacked of Solomon’s decision to cut the disputed baby in half. The lower court had found—by very rough calculation—that sixteen of the Africans had been stolen from an American ship, and could not be held in slavery under American law. Consequently , sixteen were chosen “by lot” and freed. The unlucky losers in this human lottery were turned over to their Spanish and Portuguese claimants and left the United States as slaves.
Very few historians have even mentioned Marshall’s opinion in The Antelope case, and none have discussed it at any length. Why is it important in understanding his role in constitutional history? The answer reflects the conflicting aspects of Marshall’s personal and professional lives. On one hand, Marshall has been celebrated as a man of humane sentiments. He was not pretentious or ostentatious; he was a “plain, unpretending” man, generous to both friends and enemies. Despite the lifelong hostility between Marshall and Jefferson, he “never spoke a personally offensive word” about his rival. Only once, responding to Jefferson’s attack on his conduct in the XYZ affair, did Marshall reply publicly, to avoid—as he wrote to a friend—“the appearance of crouching under the lash, and admitting the justice of its infliction.” But in The Antelope case, Marshall subordinated his feelings of humanity to the “lash” of the law, as he read its dictates. He did not—indeed, he could not—took at the captured Africans as fellow human beings, but only as the “property” of their Spanish and Portuguese owners. This was the harsh consequence of Marshall’s adherence to a higher principle than human rights. He was born into a family that owned slaves and raised in a society that depended on slavery for its good life, and he chose a profession that was devoted—as it still is for most lawyers—to the protection of property. It is no surprise that faced with a choice between “the sacred rights of liberty and of property,” Marshall decided in favor of the latter.
During most of his long life, Marshall enjoyed remarkably good health. But he spent his last five years in considerable pain, suffering from stones in his bladder and liver disease. Marshall remained at the Court’s helm until the very end. His closest friend and ally, Justice Joseph Story, expressed his feelings in March of 1835: “What a gloom will spread over the nation when he is gone! His place will not, nay, it cannot be supplied.” Three months later, Marshall left for treatment in Philadelphia and Story knew the end was near. “Great, good and excellent man!” he wrote to a friend . “I shall never see his like again! His gentleness, his affectionateness, his glorious virtues, his unblemished life, his exalted talents, leave him without a rival or a peer.”
Two months short of his eightieth birthday, Marshall died on July 6, 1835, in “the city through which, a patriot soldier, he had marched from Valley Forge to Monmouth nearly sixty years before,” Beveridge wrote of his judicial hero. He “met his fate with the fortitude of a Philosopher, and the resignation of a Christian,” said one of the doctors who witnessed his death. His body was sent by boat to his home in Richmond, Virginia, where he was buried next to his beloved wife in an Episcopal service. The encomiums poured in, from old friends and enemies alike. The Richmond Enquirer, a Republican paper that had often criticized Marshall, praised his “brilliant talents” and offered this portrait: “There was something irresistibly winning about him.” One of Marshall’s most unrelenting critics, Hezekiah Niles, editor of the widely read political journal Niles’ Weekly Register, lamented his death and wrote: “Next to Washington only, did he possess the reverence and homage of the American people.”
There were still those who could not praise Marshall, even in death. William Leggett, an editor of the New York Evening Post and founder of the Equal Rights Party, wrote that Marshall “distrusted the virtue and intelligence of the people, and was in favor of a strong and vigorous General government , at the expense of the rights of the states and of the people.” Deploring the “fawning, hypocritical and unqualified lamentations” of others who opposed Marshall’s policies and opinions, Leggett added that “we cannot but experience joy” that in his death “the cause of aristocracy has lost one of its chief supports.”
For almost two centuries , praise for Marshall as a judicial statesman has far outweighed criticism of his role as Chief Justice. But the historical scale requires some balance. Marshall was plain and humble in person, yet he was an aristocrat in outlook. He came from a state that vigorously insisted on its “sovereign” rights within the Union, but he favored the “General Government” in almost every case he decided. He read the Constitution broadly to protect the rights of property, but narrowly when he addressed individual rights. Most important, Marshall disregarded his “feelings of humanity” and looked at blacks as property, not as persons. This last weight on the historical scale strips the mantle of “statesman” from Marshals shoulders.
Marshall was to be sure, a man of his times. But not every man—or woman—of those times shared his beliefs on “the sacred rights of liberty and of property.” Men like Nat Turner and Frederick Douglass, and women like Harriet Tubman and Sojourner Truth, suffered as slaves under laws that Marshall considered “abhorrent” but felt bound by “duty” to uphold. Men of Marshall’s race and class, like Horace Mann and Charles Sumner, considered it their “duty” to fight against slavery. Even with the hindsight of two centuries, we must remember that a person with Marshall’s status and influence had choices that were laid out in clear and unambiguous terms. Marshall made his choices after listening to lengthy arguments on both sides. The choices he made, and the opinions he wrote, tell us much about the man who served as Chief Justice for more than thirty years.
John Marshall’s death placed the choice of his successor in the hands of President Andrew Jackson, then in his second and final term. Fifteen associate justices had served with Marshall during his long tenure, but seven held their seats for periods ranging from fifteen to thirty years, and this group constituted the solid core of the Marshall Court. Only one, Bushrod Washington, came to the Court before Marshall , and the two Federalists agreed in virtually every case until Washington’s death in 1829. The other six “old-timers” had all been chosen by three Democratic-Republican presidents: Jefferson, Madison, and Monroe. But, as we have seen, Marshall dominated the Court so completely that he rarely found himself in dissent. Only
his death would give the incumbent president a chance to reshape the Court.
That president, first elected in 1828, was Andrew Jackson, the Tennessee politician and war hero known as “Old Hickory” by friends and foes alike. Jackson was the first real “populist” to occupy the White House. He was, in fact, the first president to invite “the people” to visit his new home; the throngs of visitors to Jackson’s inauguration reportedly stole china and silverware, broke chairs, and trampled the grass. Justice Joseph Story, who witnessed the scene, wrinkled his Yankee nose and sniffed, “The reign of King ‘Mob’ seems complete.”
Jackson had already begun reshaping the Supreme Court before Marshall’s death in 1835, midway through Jackson’s second term. His first nomination—two days after his inauguration in 1829—was an unintended gift from his predecessor, John Quincy Adams. Justice Robert Trimble died in August 1828, shortly before the presidential election. Adams, by then a very lame duck, could not persuade the Senate to confirm former senator John Crittendon of Kentucky to replace Trimble, despite the endorsement of Chief Justice Marshall. Jackson’s supporters controlled the Senate and wanted to present the incoming president with this judicial plum. The new president gave the post to John McLean of Ohio. Although McLean had served for six years on the Ohio supreme court, his real passion was not law but politics. A major factor in McLean’s appointment, in fact, was that putting him on the Court, on a pledge not to pursue his presidential ambitions, would remove a potential obstacle to Jackson’s second term in the White House. McLean broke his pledge not once but six times between 1832 and 1860, seeking the presidential nominations of six different parties during those years. McLean saw no impropriety in campaigning from the bench, assuring one critic that he would not be subject to “any improper influence” that might “tend to corrupt the Bench.” During his thirty-two years on the Court, McLean wrote majority opinions in 247 cases, but he plowed old furrows and broke little new legal ground. One biographer summarized his long career in one sentence: “Few justices have worked so hard, for so long, with such little impact.”
