Evening star. [volume] (Washington, D.C.) 1854-1972, 1955-09-24
Chief Justice Marshall

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1t is appropriate enough that this
September should have been set aside
as John Marshall Bicentennial Month"
For II an overworked word may be en-
ployed once again, 1t was indeed q
remarkable man who was born 200 years
ago in what is now Fauquier County,
Virginia.
John Marshall was the first OF is
children. He came out OF the backwoods
Of Virginia to fight with distinction In
the Revolutionary War, to begin the prac-
tice Of law with only six weeks Of formal
legal education, and to dabble somewhat
inehectively In party politics. a.s !.
There is not much In this background
to- foreshadow giant of man. But
John Marshall, though his cousin Thomas
Jefferson once suggested that he ought
to be irnpeached, and though Andrew
jackson scorned his constitutional views,
was truly giant among the giants Of his
time. Instead of declaring that " =. the
Constitution Is what the judges say 1t
is 49," the late Chief Justice Hughes
might well have asserted that the Con-
stitution Is what John Marshall said
It was.
Marshall's name is most prominently
associated in the popular mind with three
Of his decisions as Chief Justice-Mar-
bury VS.. Madison, which asserted the
power Of the court to declare an act of
Congress unconstitutional: Fletcher VS..
Peck, which held essentially the same
thing with respect to State law. and
McCulloch VS.. Maryland, which searched
the Constitution and found therein au-
thority for Federal supremacy without
which this Government might have re-
verified to state Of impotence.
There are those who think that the
last Of these was the most significant.
For example, Mr.. Justice Frankfurter has
said: II should like to follow James
Bradley Thayer In believing that the
conception of the Nation which Marshall
derived from the Constitution and set
forth In McCulloch VS.. Maryland is his
greatest single judicial performance"
ever, there is more to be mined from Mar
bury VS.. Madison.
That case sheds light on Marshall
both as politician and as Judge. In the
election Of 1900, the party Of Thomas
Jefferson trounced the Federalists. AS
result Federalist President Adams and
Secretary OF State John Marshall The
held this Office before and after his con-
nrmation as Chief Justice) were up late
on the night Of March 8, 1901. They
were busily engaged in packing the
judiciary with job-hungry Federalists,
and this had to be finished before the
Jeffersonians would take over the next
day. But John Marshall went home that
night, neglecting to deliver some signed
commissions which were on his desk.
One OF these was for the appointment
Of man named Marbury as justice
OF the peace in the District of Columbia.
When James Madison took over the State
Department on March 4 he found this
commission and refused to deliver 1t.
Marbury brought suit to compel him to
hand 1t over.
John Marshall's personal involve
ment did not deter him, as it would today,
from taking part. He not only presided
as Chief Justice; he wrote the opinion,
which embodied neat little scheme for
frustrating the Jeffersonians.
Marshall ruled that Marbury was
entitled to receive his commission, that
Madison had acted illegally in withhold
ing 1t, and that Congress had given the
court power to compel him to issue it.
But instead of forcing what probably
would have been losing showdown for
the court on this issue, the astute Mar
shall concluded that the act Of Congress
comforting this power on the court was
unconstitutional, and that therefore the
court could not act. Thus, the Jeffer-
sonians won small victory, the court
was spared losing battle, and its SELF
asserted power to nullify an act OF
Congress on constitutional grounds was
securely planted in the judicial doctrine
of the land What Marshall had done
was to establish, but not to exercise In a
manner which could be successfully chal-
lenged, the doctrine of judicial supremacy
in this field.
For years this seed lay terminating.
The point was not pressed by the court,
and until 1856 it went substantially un-
challenged. But in that year, two dec
AIDES after Marshall had left the scene,
Chief Justice fancy announced the bred
Scott decision. This case held that Con-
gress lacked constitutional power to for
bid slavery in the territories. The de-
cision met with the condemnation Of