The James Wilson Foundation on Natural Rights and the American Founding

“Securing the Constitution and Union”–Prof. David Forte in the Claremont Review of Books

In a review for the Spring 2019 Claremont Review of Books, JWI Senior Scholar Professor David F. Forte hails Ronald R. Rotunda’s abridgment of Albert J. Beveridge’s seminal work, Life of John Marshall, as an impressive work. The book incorporates Rotunda’s own commentary, yet importantly retains the spirit and rhythm of Beveridge’s writing. Professor Forte introduces his own commentary on Marshall throughout and reaffirms Beveridge’s claims regarding Marshall’s prominence in establishing the Supreme Court on an even plane with the Executive and Legislative Branches. While Professor Forte admits that the book has a few historical blunders they are unquestionably overshadowed by Beveridge’s triumph in presenting the role that Marshall played in Marbury vs. Madison and in establishing judicial independence.

Excerpts from the article:

“Ronald D. Rotunda, the prodigious legal authority who died last year at the age of 73, wrote the widely used course book American Constitutional Law, coauthored the six-volume Treatise on Constitutional Law, and wrote several other books and hundreds of articles over his career. A scholar of the first order, he was a friend to many in his field. Fittingly, his last book is a tribute to Albert J. Beveridge’s Life of John Marshall, the seminal analysis of the Great Chief Justice, the first of whose four volumes appeared in 1916. As a U.S. senator from Indiana between 1899 and 1911.”

“In his treatment of Marshall, Beveridge replicates his own roiling political battles in which he pitted progressive nationalism against a stubborn states’ rights parochialism. He fashions Marshall’s struggle into a dramatic narrative, where the stakes were of the highest order. With the pen as his sole weapon and against the onslaught of President Thomas Jefferson, Marshall placed the judiciary in an unrivaled position of authority, which Beveridge asserts saved the republic.”

“Without Marshall, Beveridge argues, the judiciary would have been a withered branch, unable to constrain either the executive or the Congress. John Jay had refused reappointment to be Chief Justice because he “had no desire to preside, yet again, over a Court lacking ‘essential’ attributes of ‘Energy, weight, and Dignity.'” Without Marshall, the Jeffersonian notion of the Constitution as a compact of states would not have taken root, leaving the Union without any principled basis to resist secession and disintegration.”

“The centerpiece of the contest between Marshall and Jefferson was, of course, Marbury v. Madison, and Beveridge constructs a dramatic narrative to highlight Marshall’s unexpected triumph. He begins with the Federalist Party’s self-immolation in the 1800 election, both at the polls and in the House of Representatives. In 1801, the Federalists’ loss was seen by few as permanent and the party fully expected that if it could hang on Jefferson charges of incompetency, partisanship, and revolutionary design, it would return to power. Only in hindsight can we see that their cause was doomed.”

“Missteps aside, Beveridge brings the tale of Marshall’s success in Marbury v. Madison to its triumphant conclusion in a way that is now known to every student of constitutional law. He notes the Chief Justice’s chagrin in having to enforce the Repeal Act while on circuit in 1802, contrasting that with his catapulting Marbury, a case of “no consequences,” into totemic significance. He “praises” Marshall for devising a “pretext” for annulling Section 13 of the Judiciary Act of 1789. He also asserts that Marshall’s interpretation of Section 13 ran counter to the understanding of “the whole bench and bar.”

“Through it all, Beveridge insists, Marshall kept his sights on preserving the Union. In Beveridge’s eyes, he was the first progressive nationalist. Time and again, Marshall disputed the wrongheaded notion launched by Jefferson in the Kentucky Resolution of 1798 that the constitution was a compact of states. Even in the age of Jackson, Marshall upheld the rights of the Cherokee Indians against Georgia’s predatory claims, while affirming national control over Indian affairs. Having feared that the Union was on the verge of dismemberment, Marshall rejoices, however, at Andrew Jackson’s strong opposition to South Carolina’s Ordinance of Nullification.”

 

 

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790