From the Washington Times: February 10, 2002

by William F. Gavin
Now that the Supreme Court has become the recipient of the second highest
honor the TV industry can bestow ? a prime-time drama about the court (only
sitcoms rank higher in dignity) ? it seems only fitting to examine two
recent books, one about the legendary John Marshall and the other by
Justice Sandra Day O'Connor concerning her childhood on an Arizona ranch.
     John Marshall and The Heroic Age of The Supreme Court by R. Kent
Newmyer (Louisiana State University Press, $39.95, 511 pages, illus.) is
based on solid scholarship, graced by common sense, and written in a lucid,
penetrating style. But be warned: This book is not easy reading. It is
dense with legal, historical and social analyses, and all of them require
close scrutiny.
     The author, professor of law and history at the University of
Connecticut School ofLaw, devotes most of the book to detailed examinations
of the major opinions of Chief Justice John Marshall (1755-1835). This
isn't one of those oh-look-how-human-he-was Great Man biographies, chock
full of "humanizing" anecdotes. There are accounts of Marshall's
good-humored friendliness, and the esteem with which he was held by those
who knew him best, but the book focuses on how he reached judicial
conclusions about profound constitutional issues.
     Despite Mr. Newmyer's skill at painstakingly guiding the reader, point
by point, through legal thickets, the material he deals with ? nothing less
than the interrelated legal, political, and economic trends of Marshall's
long life ? is of its very nature dauntingly complex and not suited to
breezy, popular presentation.
     Marshall was, among his many accomplishments, a Revolutionary War
veteran, a successful Virginia lawyer, a state legislator, an admired
diplomat (remember the XYZ Affair?), a congressman and cabinet officer
(briefly) and a chief justice of historic importance. But, as the author
points out, he was above all "a Burkean conservative," a Virginia
aristocrat of strong Federalist views, and a "constitutional nationalist,"
placing him in direct confrontation with most of his Virginia friends and
neighbors who held strong states rights views. Perhaps nowhere in American
history can we find such a long and bitter political and philosophical
enmity than that between the two great Virginians, Thomas Jefferson and
Marshall, each of whom thought the other was a scheming, lying politician.
     In 1801, Marshall was appointed Supreme Court justice by President
John Adams, although, in one those ironies of history, he was sworn in by
the next president, Jefferson, who even at that early date disliked and
distrusted him. During the next two decades, Marshall was at the center of
a debate concerning two of the most important political questions in
American history: What do the words of the Constitution mean and what role
should the Supreme Court play in determining the answer to that question?
We are still asking those questions, as witness the presidential election
of 2000.
     To Marshall, the answers were clear. The American people themselves,
not the sovereign states, created the Constitution. The national government
they created does not depend upon the states to exercise its powers, and
the Supreme Court has the constitutional right and duty to exercise
judicial review, not only of laws by the states but by the Congress as
well. The next question ? What powers does the national government have and
how do these powers relate to the equally constitutional, but different,
rights and powers of the states? ? was one Marshall would take more than
two decades trying to answer. His decisions (based on the idea of "divided
sovereignty" between the states and the national government), written in a
forceful, reasoned, Olympian style, made him one of the most revered ? and
reviled ? men of his time.
     The two major cases with which his name will be forever linked ?
Marbury v. Madison and McCulloch v. Maryland ? are examined from every
angle, including the impact of McCulloch on the subsequent economic
development of the country. Mr. Newmyer's analysis of the Aaron Burr
treason trial, at which Marshall presided (enraging Jefferson by refusing
to find Burr guilty) is of particular interest given the recent case of
John Walker Lindh, the young American who had been accused by some of
treason for fighting on the side of the Taliban. The author's description
of the fate of the Cherokees under President Andrew Jackson ? a subject the
Marshall court dealt with ? is a model of scholarly wisdom, neither
anachronistically "politically correct" nor morally insensitive to the
tragic plight of the Indians.
     According to the author, John Marshall detested theoretical political
abstractions, and believed that "human nature as he found it [and] life as
it was and not as he wished it to be," should be at the heart of legal and
political decisions. Those sentiments, in my view, are still at the heart
of any conservatism worthy of the name.
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