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12/22/2018

Kevin Walsh Reviews Joel Paul's "Without Precedent"
Michael Ramsey

At Law and Liberty, Kevin Walsh (Richmond): Without Evidence: Joel Richard Paul’s John Marshall (reviewing [harshly] Joel Paul, Without Precedent: Chief Justice John Marshall and His Times (Riverhead Books 2018)).  From the introduction:

Paul is a gifted writer and his engaging prose yields a pleasant read. But his portrait of Marshall as a man and jurist too often reflects repackaged conventional wisdom developed over the last century or so. It has neither the immediacy of the older eulogistic accounts by near-contemporaries nor the fresh perspective that can come from renewed and in-depth attention to primary sources in their historical context. The most significant new historical claim in the book—that John Marshall probably suborned perjury from his younger brother, James Markham Marshall, to embarrass the Jefferson administration in Marbury v. Madison—is as baseless as it is bold.

And in conclusion:

Although Paul is wrong about the extent of Marshall’s inventiveness, he is right about Marshall’s ultimate object and his greatest accomplishment. Paul contends in his book’s opening sentence that “no one did more than Marshall to preserve the delicate unity of the fledgling Republic.” And he echoes this theme of Marshall’s contribution to national unity at the end of his introduction: “In a revolutionary time, against myriad enemies both foreign and domestic, Marshall held the Court, the Constitution, and the union together.” Although he fumbles in describing Marshall’s means, Paul properly grasps Marshall’s end.

One reason that Paul and others of a progressive bent may have difficulty appreciating Marshall’s modus operandi is that Marshall’s methods were fundamentally backward-looking in form. To many today, such an approach implies narrowness of mind and a regressive mindset. But looking back and holding to earlier authoritative determinations made by those with legitimate political authority is precisely what Marshall’s understanding of the judicial role and his obligation of fidelity to positive law required. His characteristic way of providing, judicially, for the future was to anchor the decisions of his Supreme Court in the record laid down by the people of the United States in the past.

In rejecting this biography’s perpetuation of the Progressives’ mythical Marshall, we must be careful not to swing to the opposite extreme. While Marshall was not as inventive as Without Precedent would have us believe, he obviously possessed abundant legal ingenuity. As R. Kent Newmyer has written, Marshall operated by identifying himself with the Court, the Court with the Constitution, and the Constitution with the People. That is the creative Marshall that the jurist himself would have wished to see perpetuated.