Gordon Book Review Blog

26-Oct-2018 Geoffrey Gordon legal

Without Precedent - the Story of John Marshall

Without Precedent, by Joel Richard Paul, was the story of Chief Justice John Marshall, our country's most influential and most prolific Chief Justice's in the nation's history. Over 34 years Chief Justice Marshall oversaw 1129 decisions, of which over 1000 were unanimous, with 547 authored opinions. While Marshall was not perfect, his commitment to Washington's and Hamilton's vision and execution of Federalism for the young nation's first four decades was remarkable and extraordinary. Most importantly, he established the Judicial branch a a near co-equal to the legislative and executive branches.

Unlike many of the other founding fathers, Marshall's upbringing was not among the elite class of large plantation owners and lawyers, such as his cousin, Thomas Jefferson. Jefferson grew up in privilege on a plantation with 500 slaves, while Marshall came of age as the oldest of 14, scraping out a living on the edge of the wilderness on his father’s farm. His childhood taught him resilience and humanity, and his experience in the Revolution, at Valley Forge with Washington, Hamilton and Stuben, taught him the real suffering of war.


Marshall was a quick learner, however, getting a law degree and demonstrating leadership and  skills in compromise and collaboration. His sharp mind got him noticed by the elites in the young republic. His simple hardscrabble upbringing did not limit his opportunities, and ultimately contributed to his legendary contributions to American jurisprudence.

The book seemed to be broken into three parts: Marshall’s early life including his service during the Revolution, the time in France negotiating terms of peace for his new country, and finally the Supreme Court years. In France, (with too many pages dedicated according to Doug), he was exposed to both government corruption and runaway ideologies. These seem to have influenced his ideas of how an effective judiciary could limit flawed humans from establishing autocratic rule. For me, the most memorable part of the time in France was the overt demands for a bribe from France’s foreign minister, Talleyrand, before commencing in negotiations between nations.  For others, the descriptions of revolutionary Paris and the collapse of due process under the law, under the guise of ‘equality’ was equally remarkable.

Thomas Jefferson was relentlessly criticized throughout the book. Part of this view is historical: the closer we look at Jefferson, the more elitist and detached, and flawed, he appears. Juxtaposed to his cousin, Marshall ended up being Jefferson’s greatest nemesis during his presidency.  Some examples: Marshall had a close business and personal relationship with his slave, all his life. Jefferson had Sally Hemmings. Marshall lived simply, and left substantial landholdings to his family, while Jefferson always lived in and died, deeply in debt.

We expected the court cases to be long and arduous; but were pleasantly surprised. The descriptions leading up to the decisions were well organized and clearly described, and the relevance of the decisions to affected parties at the time, as well as to the development of legal thought, including establishing precedence, for the young nation was outstanding.  Every case made sense.

The first case described of course, was Marbury vs Madison, the first case they discuss in law school. The relevance of this case was the establishment of the Judiciary as an equal to the Executive branch. Madison (he defendant - and Jefferson's Secretary of State) didn’t even appear at the hearing, so little was thought of the controversy at the time. The Constitution barely mentions the Supreme Court, and nothing in it says the Court can stop the legislature.  Marshall established these standards through his brilliant early opinions. This particular case (MvM) established Marshall’s credentials as a force on the national scene – against his cousin, President Jefferson.

We delved into the disparity of concepts of equality within the Declaration of Independence (authored by Jefferson) versus what actually made it into the Constitution (written mostly by James Madison). The Declaration spoke about all men being equal by God, while the Constitution held that slaves were valued at 3/5ths of a freeman; and women and non-property owner men had no vote, no representation. The Constitution was eventually amended to grant voting rights to non-property owners, and 100 years later to women,   Marshall laid the foundation well ahead of his time, through contract resolution and three Indian cases, where he ruled that Indian Nations were in fact entities qualified to execute contracts, thus effectively placing them on equal footing as white landowners,.

We talked about how Federalism vs States Rights affects us today. Doug talked about how the energy sector - its bifurcation is one result of different states’ policies toward energy. Today securities and aviation are nationally regulated, while energy (and insurance and many other industries) is regulated by states. States’ rights issues were potentially limiting to the economic growth of the nation in the early 1800’s; the establishment of Congress’ authority over ‘interstate commerce’ stopped monopolistic state standards in transportation in particular, opening up the eastern seaboard to the rest of the continent. Marshall knew enough about international trade to know that different regulations by states would hamper the country's economic vitality, and its trajectory.  He was not about to protect monopolistic interests under the law.

We disagreed over the role of the judiciary in solving social issues, a reflection of the Kavanaugh hearings. Should the court serve as England’s House of Lords, deciding social issues? We disagreed.  London's Supreme Court does not overrule laws as they do here.  Washington warned against parties (factions) in government, and parties are often influenced by social influences.  

Chuck remarked that the current stable of justices, exclusively from Harvard Law or Yale Law today, does not play well in the heartland, really anything between Route 5 and the Acela Corridor. If Trump had found someone from UT or other qualified institution for the Kennedy vacancy, the disgraceful hearings in September might have taken a different tone.

We asked and revisited the question, Did the founding fathers have any idea of the enduring influence of the institutions they built?  I argued they did. They had a continent to populate and develop, and they knew (and often wrote of) the importance of getting it right after the Articles of Confederation. Getting it right rested in a document and a national commitment to remain a country of laws, of liberty, and most importantly of limiting the natural aggregation of power by people or groups of people.  Marshall’s consequence was a judiciary which can stop the legislative and executive branches both form incurring on the people’s freedom.  Without a strong judiciary, we’d’ve become an autocracy, a true dictatorship of the majority.  Or worse, a human controlled autocracy more common on the world today, as through history.

Marshall’s ability to bring parties of opposing views together was as remarkable as his mind. How many decisions were made over a bottle of claret in a boardinghouse, where the justices lived in the early days? Imagine the arguments they had, the projection of consequences, the collaboration over the best interests of a new country. They knew.

Overall, we agrees this book was one of the best to read to understand the fragility of the men, and indeed fragility of the structure of our republic. John Marshall was a quiet giant among giants, and his influence in the strength and dynamism of our country that we know today cannot be overstated.

Next book
Bart Ehrman – The Triumph of Christianity





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