Paul Finkelman’s account of antebellum decisions gets Justice Taney right, but not Justice Marshall, and especially not Justice Story.
George Washington resigned his commission as the commander in chief of the Continental Army in a public appearance before the Confederation Congress (then sitting in Annapolis) on December 23, 1783, in his own words “commending the Interests of our dearest Country to the protection of Almighty God.” Eleven days later, from Richmond, Virginia, John Marshall, a former captain in the 7th Virginia Regiment now married, settled down, and practicing law, wrote to his old friend and fellow veteran James Monroe:
At length then the military career of the greatest Man on earth is closed. May happiness attend him wherever he goes. May he long enjoy those blessings he has secured to his Country. When I speak or think of that superior Man my full heart overflows with gratitude. May he ever experience from his Countrymen those attentions which such sentiments of themselves produce.
Marshall’s veneration of Washington was not unusual among the officers and men who had served under the commanding general. What may have been unusual was the extent to which Marshall’s admiration remained durably undimmed to the end of his own long life more than a half century later.
The evidence of Marshall’s lifelong attachment to Washington is how hard he worked to express it over so many years. Following Washington’s death in December 1799, Marshall was given access, for purposes of writing a biography, to the first President’s papers, which he had bequeathed to his nephew, Justice Bushrod Washington. No doubt Marshall’s subsequent appointment to the Supreme Court in 1801 impeded his progress in writing The Life of George Washington, yet he still produced a five-volume work (with a slender sixth volume of accompanying maps), which was published from 1804 to 1807.
Marshall was not satisfied with the work. He labored to produce corrected printings of the first three volumes while still writing the final ones. The first volume, in which Washington did not even appear, he later republished separately as a history of the colonies. And with much trimming and revision of the remaining four volumes, he produced a two-volume second edition in 1832, which was much more successful and went through many printings. Still devoted in his final years to bringing the example of Washington before the eyes of the rising generation, he cut and rewrote yet again, producing a one-volume edition intended to be used in schools—though it was by no means a “children’s version” of his massive work.
This last edition, first published posthumously in 1838, is the one brought back into print by Liberty Fund in 2000, edited by scholars Robert Faulkner and Paul Carrese. As Faulkner says in his foreword, “Marshall’s Life of Washington is political history as well as biography. . . . the only comprehensive account by a great statesman of the full founding of the United States.” This is history lived by the author, more Thucydides or Xenophon than Plutarch. And so Marshall, who could remember well the temper of the times, remarks of the beginnings of the Revolution:
Although the original and single object of the war on the part of the colonies was a redress of grievances, the progress of public opinion towards independence, though slow, was certain. . . . To profess allegiance and attachment to a monarch with whom they were at open war, was an absurdity too great to be of long continuance.
As a “life and times” that is history as much as biography, Marshall’s narrative often omits its great protagonist for pages on end, even a few whole chapters during the Revolution (as when Marshall deals with the southern theater of war). Three things seem to stand out in his account as the decisive variables in the long war for independence. First there was mere contingency, both within and without the reach of human control, in the form of weather, tactical blunders on both sides, the American forces’ chronic shortages of men and materiel, and the like. Second was the intervention of Providence, which Marshall professes to see several times, such as in the seemingly chance apprehension of the British officer John André, which unraveled the treason of Benedict Arnold and saved the strategically important fort at West Point on the Hudson.
Third and last, and in Marshall’s estimation the most decisive variable, was George Washington himself. As a tactician he was flexible, capable of quick decisions on a battlefield; as a strategist he was farsighted, always seeking the critical advantage over the enemy while never risking his capacity to keep an army in the field. As an officer answerable to civilian authority he was patient in obedience yet persistent in his entreaties to those in the state and continental governments who could give him troops and supplies. As a commander in chief he was democratic enough to bow at times to the recommendations of the council of generals he occasionally convened, and he made a practice of sending his best troops to serve under others’ command, reserving greener or less capable units for himself.
But above all other qualities, what endeared him to those he led, and in fact often salvaged situations that to others may have seemed hopeless, was his indomitable character. The American cause suffered repeated setbacks, and many times seemed on the brink of being lost. “But in no situation could Washington despond,” Marshall writes. “To this unconquerable firmness—to this perfect self-possession, under the most desperate circumstances, is America, in a great degree, indebted for her independence.”
As in war, so in peace. It may surprise us that Marshall, who spent the last 34 years of his life interpreting the Constitution from the bench of the Supreme Court, devotes about half a page to the four months of the Constitutional Convention, and about that much again to the 10 months of the ratification campaign, in a work of more than 450 pages. He never once mentions The Federalist, which he cited as authoritative in some of his judicial opinions. What are we to make of this?
Marshall certainly considered the adoption of the Constitution as a signal event, indeed the salvation of the Union. His account of the Revolution, and of the Confederation period, is a tale of political “imbecility.” Power and responsibility were too diffuse to marshal the real strength of the nation and to overcome the divergent interests of state-level politicians, or of civilians loath to make sacrifices. The Constitution created a real government, supplied with the full array of institutional powers to govern the Union, though they were powers limited in kind and in reach, coexisting with the police powers of states that still had their share of local sovereignty.
But perhaps Marshall’s relative neglect of the writing and ratification of the Constitution can be chalked up to his evident belief that it was the use of those new federal powers, not the theoretical debates over their creation, that really mattered for righting the listing ship of state in the new nation. Hence his description of Washington’s eight years as President is granular in detail, a rich account of executive-legislative relations, of fiscal policy, of conflicts with Indians on the frontiers, and of foreign affairs in the era of the French Revolution. It was one thing to establish a Constitution that gave a new government the capacity to tackle the young country’s many problems. It was quite another to employ that new capacity, to solve those problems, keeping the country united, solvent, and safe. These achievements Marshall credits chiefly to Washington’s statesmanship. Even the best constitution will fail to launch and stay afloat if its maiden voyage is not captained by someone in fundamental sympathy with its principles and its potencies.
Thomas Jefferson, who had served as Washington’s secretary of state—but at the same time fostered the emergence of the Republican Party opposed to the administration’s policies—always considered Marshall’s history of the period to be a strictly partisan project, calling it a “five volumed libel” of his party. But as Faulkner writes in his foreword, “Even if the Life were partisan history, it helps us understand a great party, perhaps the indispensable party in American history. We are given an authentic account of the party that made enduring popular government possible.”
This judgment is fundamentally sound. Each of our first political parties was prone to exaggerate the threat to constitutional republicanism of its opposite number. The Federalists saw a “mobocratic spirit” in the Republican Party of Jefferson and Madison, bestowing the nickname “Democratic” that eventually stuck as the name of the reconstituted party in Andrew Jackson’s day. The Republicans for their part were convinced that the new government would be (in Jefferson’s words years later) “administered into a monarchy” by the Federalists led by Alexander Hamilton.
At the extremes in their perceptions, each party was wrong about the other, but each one’s conviction was nevertheless grounded in something real. The Federalists did advocate a more vigorous national government, fiscal policies that appealed to business and financial interests, a restoration of commercial relations with Britain, and an arm’s-length approach to revolutionary France. The Republicans—in many respects heirs of the hesitant party that had opposed the Constitution itself—were suspicious of financial elites, advocates of “state sovereignty” and of agrarian interests, and passionately attached to France, even as that nation descended into a bloodbath.
Marshall’s assessment—seconded by Faulkner in the quotation above—was that Washington’s presidency, consciously “above” partisanship but inclining to the policies of Hamilton and the Federalists, had made good on the promises of the Constitution. Inviting his reader to contrast the United States of 1797 with that of 1788, Marshall tallies up “sound credit,” a system for paying the nation’s debts, refreshed prosperity in both agriculture and commerce, real progress in Indian relations, access to both the Mississippi and the Mediterranean, and the evacuation of the British military from posts on American soil. “This bright prospect was indeed shaded by the discontents of France,” Marshall concedes; but Washington’s pursuit of neutrality between France and Britain had been essential to the “real independence of the nation” and to “the right of self-government.”
It is difficult to imagine such an auspicious beginning to the life of the new constitutional republic if, say, Thomas Jefferson had been the first chief executive. Even the continuity that John Adams provided to Washington’s policies—notwithstanding the ghastly blunder of the Alien and Sedition Acts, which converted a political strength into a weakness—may be said to have contributed to the long-run stability of the constitutional order (not least in Adams’s final gift to the nation, the chief justiceship of Marshall himself). The precedents set by the Federalists in fiscal policy, foreign policy, and administration were invaluable for the future of effective government in the United States, and for years to come represented a polestar for navigating clear of a return to the doldrums of political imbecility.
In one respect, Marshall’s Washington makes for very sobering reading today. We tend to think of George Washington as the Marble Man—all looked up to him, and he merited every encomium bestowed on him. There is much truth in this; he was, after all, the only man ever elected President effectively by acclamation—and twice! But Marshall does not omit another truth: that there were plenty of people eager to bring him down, even among his own countrymen. Rival generals and suspicious congressmen during the Revolution schemed to displace him at the head of the army. As President, Washington had a “honeymoon” that lasted less than two years; then the knives came out, first for men like Hamilton who were his advisers and his instruments, and by the end, for Washington himself.
The hero of American independence was such a colossal figure, bestriding his infant country, that few of the Washington administration’s opponents were willing to aim their barbs at him personally. Only in the last 12 or 18 months of his presidency was Washington’s personal integrity attacked, with calumnies that he was “totally destitute of merit, either as a soldier or a statesman.” It got bad enough that “an impeachment was publicly suggested.” Of Washington!
Through all these travails the old general maintained a dignified public silence. He never repaid his attackers in kind. For Washington it was not possible to play the demagogue, or to appeal to popular passions. He had, Marshall writes, the quality of “magnanimity” and always “pursu[ed] steadily the course dictated by a sense of duty, in opposition to a torrent which would have overwhelmed a man of ordinary firmness.”
For all his neglect of The Federalist in the Life of Washington, Marshall surely agreed with the judgment of Publius that in republican governments, “enlightened statesmen will not always be at the helm.” We may join Marshall in thanking Providence that our first President was just such a helmsman.