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02/17/2021

Matthew Franck on Richard Brookhiser on John Marshall
Michael Ramsey

At Law & Liberty, Matthew Franck: John Marshall: Judge or Statesman? (reviewing the film version of Richard Brookhiser's John Marshall: The Man Who Made the Supreme Court).  From the introduction:

Over the last quarter-century, National Review senior editor Richard Brookhiser has earned the sobriquet “historian” for a string of accessible books, chiefly biographies of American founders and statesmen, beginning with George Washington and continuing with Alexander Hamilton, four generations of the Adams family, Gouverneur Morris, James Madison, and Abraham Lincoln. His most recent biography, of John Marshall, came out a couple of years ago and was reviewed here by Marc DeGirolami. (Brookhiser also discussed it with Richard Reinsch on the LibertyLawTalk podcast.)

As with his previous works on Washington and Hamilton, which resulted in biographical films broadcast by PBS, Brookhiser’s Marshall bio is now the basis of a fine documentary, this time available via Amazon, bearing the same title as his book, John Marshall: The Man Who Made the Supreme Court. As before, Brookhiser himself is the film’s narrator, guide to various sights, and interviewer. And he has assembled an impressive group of interviewees—historians, legal scholars, even a U.S. senator (Missouri’s Josh Hawley) and two Supreme Court justices (Justice Samuel Alito and Chief Justice John Roberts).

Clocking in at two and a half hours—a good hour longer than Brookhiser’s Washington film and a half-hour longer than his Hamilton—the Marshall documentary might have benefited from a little trimming. (Did we really need a visit to a boxing gym as a “metaphor” for the “contact sport” of politics in the founding era?) But as our genial host takes us to John Marshall’s boyhood home in Fauquier County, Virginia—then truly the western frontier—as well as to Valley Forge, Williamsburg, Richmond, Philadelphia, and Washington, with junkets for atmosphere by horse-drawn carriage and sailing ship, we get a good impression of the American republic’s tenuous beginnings, and of the causes of Marshall’s devotion to perpetuating our constitutional order.

And from later on:

The thread running through the remarks of some of Brookhiser’s commentators is succinctly stated by Yale’s Bruce Ackerman: that John Marshall’s jurisprudence was marked by a kind of “political statecraft.” Again I would sound an unfashionable note of caution about such characterizations—unfashionable because it rests on an old-school presupposition that there are right answers to legal questions. First it is incumbent on the historian or legal scholar to show where a judge has departed from the law, giving the questions in a case the wrong answers. Then he may reasonably consider what moved the judge to behave so—whether it was simple error, or culpable distortion, and, if the latter, what political or personal agenda he was serving in place of the law.

Another example of this cart-before-horse analysis arises when the documentary presents the case of The Antelope, a complicated case concerning the international slave trade. Here Paul Finkelman has his innings as a commentator, insisting that Marshall’s personal standing as a slaveholder drove his decision to recognize the legitimacy of the trade under international law. To his credit, Finkelman attempts a legal critique of the ruling in the case, but for the most part he and other commentators deplore Marshall’s decision on moral grounds, insinuating that if he were really a friend of human freedom and dignity he would have found a way to free all the unfortunate captives discovered aboard the Antelope. The consensus view seems to be that this was a culpable failure of the high statecraft of which Marshall was capable on other occasions. But if a solid case can be made that the chief justice was right about the strictures of international law in 1825—and it can be—then what we have is a correctly decided case with tragic results. This is not an unfamiliar phenomenon in the law.

In short, too often Brookhiser’s commentators go to the “statecraft” explanation of Marshall’s behavior without giving the viewer the benefit of a persuasive legal critique of his work. But if the law, viewed from a perspective internal to it, supplies its own reasons for action, there is where the commentator’s work should begin. And it may satisfactorily end there too, if the conclusion is that the law itself supplied the ground of a decision. Somehow Marshall’s acknowledged greatness does not seem truly great unless his admirers attribute large dimensions of political statesmanship to him. Even Chief Justice Roberts—perhaps seeing a bit of Marshall in himself, or himself in Marshall—stumbles into this when he says that his predecessor’s overriding concern was “protecting the Court as an institution.” No doubt this did concern Marshall. But we have no solid reasons to believe that such a consideration outweighed getting the law right. And his lifelong commitment to getting it right was the real cause of his greatness.