With his new book, John Marshall: The Final Founder, award winning author and historian Robert Strauss (whose career includes many by-lines for The New York Times and Sports Illustrated, as well as his contributions for JerseyMan Magazine) has framed for us a more focused idea of this lesser known founding Father during the Revolutionary War and the formation of the United States. Through Strauss’s telling, Marshall’s character, athleticism and collegial personality helped define his pivotal role in our country’s birth, as a soldier and confidante of George Washington, and as Secretary of State and Chief Justice of the Supreme Court. Strauss demonstrates that Marshall’s crucial contribution, the elevation of the judiciary, the third branch of government, to its co-equal status under the U.S. Constitution alongside the legislative and executive branches, was no accident. It was the result of Marshall’s leadership, maneuvering and determination during America’s tentative and contentious first steps towards nationhood.
Robert Strauss confirms that: “The Final Founder is an unconventional biography of John Marshall. I look at Marshall as the Forrest Gump of the Founders, everywhere from Valley Forge onward, and with panache. At Valley Forge, he was sort of the camp counselor, keeping the troops happy with games and sporting events. In fact, a diary entry says he could leap over a bar held on top of two soldiers’ heads, a rather early Olympics of sorts at Valley Forge. He is well-known as the seminal Supreme Court justice who essentially bound the nation by giving it a true tri-partite coalition of institutions. I tend to look at history a little differently than most historians, as a word with ‘story’ embedded.” – G.B.
The city of Washington was hardly a Valhalla when the Jefferson administration, and the concurrent Marshall Supreme Court, started at the beginning of 1801. The census the year before put the population at 3,210, of which more than thirty percent were black, the much larger number of them being slaves.
There were two “neighborhoods.” One was a little bigger and centered around the “eastern hill,” where the to-be-massive Capitol was partially built. There were a little more than a dozen freestanding wooden houses, and half of them were boarding houses. Most of the rest of the buildings, also wooden, were poorly constructed. One was a tailor shop, another a shoemaker, yet another was a printer – and then there were a dry goods shop, a washer woman, a grocery and, of all things, an oyster shop.
A mile away, with a clearing through the swamp in between, lay what would become known as the White House, even then painted in that color. There was a roadway between the two villages, but it was full of stumps and what became mud holes in rainy weather. There was a small stream to be forded in the middle, rain or shine.
The half-dozen larger structures, which held businesses and warehouses, near the White House were brick and there were a few small houses nearby, brick as well.
Paris, or even Philadelphia, this was not.
The weather, even in September, was malarial, especially given the swampy environs. Government virtually ceased in the summer, with even the Southern members, presumably used to this kind of weather, looking for solace from the heat.
Two or three Congressmen to a room inhabited the boarding houses, which went for about fifteen dollars a week, with maybe another dollar or two for boarding, whiskey and other alcohol usually thrown in for free. Jefferson boarded at Conrad and McMunn’s until the day he was inaugurated. Thirty men would set at one long table there, Jefferson being left with the lowest, and often then the coldest, seat since he was the tallest.
Once Jefferson moved into the President’s House, he made sure there were no more outdoor privies, at least for the President’s quarters, ordering indoor plumbing immediately. John Adams was so loath to see his successor come to actual power that he left town in a public carriage with two of his aides to Massachusetts at four in the morning. He lived another quarter of a century, but he never saw Washington again.
Jefferson awoke at dawn on his inauguration day and had the breakfast he usually had when he was at Monticello—corncakes with cold ham – but still on the lowest seat at the big table at Conrad and McMunn’s.
Marshall had a rented room at the Washington City Hotel on the other side of the Capitol. Marshall had already been planning his biography of George Washington, so he had with him a footlocker full of papers and letters that Martha Washington had given him to get started. That morning, he wrote a letter to his friend, the recent Federalist vice presidential candidate Charles Cotesworth Pinckney.
“Today the new political year commences. The new order of things begins,” he wrote Pinckney. He was wary of Jefferson becoming an erratic leader, and if he did, “it is not difficult to foresee that much calamity is in store for our country.”
Marshall and Jefferson suspended their usual war of words and deeds for the inauguration. Jefferson had derided at the time both Washington’s and Adams’s inaugural prelims. Both former presidents dressed in almost monarchical garb and rode to the Capitol in grand carriages. Jefferson toned it down, wearing just a plain suit and no powdered wig, his red locks flowing for all to see. He also walked to the capital with only a few U. S. marshals and militiamen from Alexandria to guard him.
Jefferson gave a rather humble address in his somewhat squeaky voice before about a thousand people in the Senate chambers. Marshall sat on one side of Jefferson when on the dais, and Vice President Aaron Burr on the other – Jefferson seated between his two worst enemies must have been a sight for the visitors. After giving the oath, Marshall went back to his room and finished the letter to Pinckney, being himself more subdued, calling the address “in general well judged and conciliatory.”
Jefferson, seemingly, had two kinds of political philosophy – one for when he was in office and one for when he was not. He was an ardent foe, for instance, of executive power when he was challenging the Federalists, but once he was president, he felt above the rabble in Congress, and certainly was disdainful of the judiciary. It was said that not even the smallest piece of Congressional legislation got introduced without his approval and nothing that he ever opposed would become a law.
Despite some passing notes in The Federalist Papers mentioning that the courts, especially the Supreme Court in its appellate mode, could block a law, even overturn it, Jefferson, and even Madison, who wrote some of that language, primarily thought that the federal court system should be of little influence.
Though it was probably not solely because of Marshall, but more because the courts were almost wholly Federalist, Jefferson launched an assault on the judiciary, seeking to blunt its possible influence, but certainly to lessen its size. He immediately limited the number of new justices of the peace in Washington to thirty, instead of the forty Adams had appointed. Proposed legislation would shrink the lower courts just expanded, and there were secret meetings on how to impeach Federalist judges, and just which ones to go after first.
Meanwhile, Marshall started going about setting up his own fiefdom in the dusky city. His initial Court session as Chief Justice started the first week in August, 1801. It had been decided by that time that the Court would meet twice a year in Washington, once in August and then again in December.
Marshall knew that little would be accomplished were the members of the court dispersed, as they had often been under Jay, who himself went abroad to negotiate his treaty, and Ellsworth, who also went on a diplomatic mission to France while Chief Justice. This was not going to be the Marshall way. It is uncertain whether Marshall came into office intending to be an activist, but he certainly was going to be active.
Marshall had spent the late spring and early summer at home in Richmond, mostly working on his George Washington biography. When he arrived in Washington, he changed his quarters to the fancier Conrad and McMunn’s boardinghouse on the other side of the Capitol. He liked the idea that it was essentially the Republican headquarters. He wanted to be in the flow of things, and also to hear gossip and news from the “other side.” He had gotten rooms for the other justices there, though with no space for their wives. The point was to be collegial, to see each other in work hours and at play.
The Justices came from all parts of the country. Alfred Moore came up the coast from North Carolina. Marshall rode his horse from Richmond. Samuel Chase had the shortest carriage ride – from Baltimore. William Cushing, the oldest justice, rode a carriage almost a week from Massachusetts and William Paterson, who often had bad luck in transit, regularly encountering accidents, was the last to arrive, also by carriage, from New Jersey.
Marshall, more like Franklin than Jefferson as a party – not the political type – man, was never formal and always ready to raise a glass. A later justice, Joseph Story, who would become Marshall’s greatest friend, despite being originally a Republican, after Bushrod Washington’s death, said the constant contact, even when the Court terms were short, made the Supreme Court run efficiently and jovially.
“We take our dinners together, and discuss at the table the questions which are argued before us. We are great ascetics, and even deny ourselves wine, except in wet weather,” wrote Story. The last line was, indeed, a joke. Marshall would often ask Story to go over to a window and see what the weather was. When it was sunny, Story reported that. But Marshall would always then say that the jurisdiction of the Court was so extensive in geography that it must be raining somewhere, and ordered drinks for everyone. Story said that Marshall was “brought up on Federalism and Madeira, and he was not a man to outgrow his early prejudices.”
Marshall also hoped that all decisions of his Court would be similarly convivial and unanimous, or at least assented to. Marshall believed the Court’s deliberation was important, and minority voices would always be heard, but once a decision was reached, that was the decision for all. As members of the Court, they might be in the majority in one case and not in the next, but they were members of a serious, educated body, and answering every call as one was important for the dignity of the Court. It did not happen always – there were some dissents, especially in Marshall’s later years, when Republicans took all the rest of the seats. But for the most part, Marshall could confidently write the majority opinion, as he did most often, knowing that even the minority in any case were believers in his system.
That first Marshall Court’s official headquarters, though, was ignominious. It was a rather restricted and remote committee room in the lower level of the Capitol – a room that often community churches would lease out for Sunday services even in the seasons the Court was in session. Marshall made one significant change, however, and that was to have all the justices in academic robes, while he wore a black robe. For Justice Cushing, this was a real change, since he had worn British Court-style ermine robes and even had a white powdered wig during his first Supreme Court session – which was also the first ever, in 1790.
The Court heard only one case in that first session, and then went home, arriving back in the city in early December, this time being there at the same time as Congress, filling the boardinghouses with more whispering and, to be sure, lots of flowing Madeira. Though the city was far more crowded, Marshall convinced the justices again to stay together
By the time a quorum of justices were there, it was December 8, and after convening early in the morning, the group recessed at 11 a.m. to go up to the Senate chambers to hear Jefferson’s first State of the Union address. To no one’s surprise, Jefferson did not deliver it in person – though quite erudite, Jefferson had a high voice and did not project the way his predecessors did. The Clerk of the House read it instead, and it followed Jeffersonian principles.
Since the most recent tense event had been the war with the Barbary pirates in Tripoli, Jefferson led off with a rather glorious note of how the Navy was about to defeat them, something even Federalists could get on board with.
Then his address turned political. He intended to shrink the federal government to the point of cutting taxes almost to nothing, farming out most of its functions to the states. Most vividly, he assailed the courts and their bloated hierarchies. The new judges the Judiciary Act of 1801 had put in place, he implied, were unnecessary.
Within a few days, though, the wheels would be turning toward a different confrontation. On December 16, a dreary Wednesday in the new capital, Marshall’s old friend from the Adams cabinet, former Attorney General Charles Lee, came to the Court with a request. Four men had come to him who had been appointed justices of the peace in the last few days of the Adams administration and had not had their commissions delivered, so were being prevented by the Republicans from taking office. Three were to be seated in Alexandria and one, William Marbury from Maryland, was to take office in the District of Columbia itself.