Two years later he held that ``we are one people'' in war, in making peace and -- third, but not of tertiary importance -- in ``all commercial regulations.'' The Framers' fundamental task was to create a federal government with powers impervious to encroachments by the states. The Framers had been frightened by the states' excesses in using political power on behalf of debtors against creditors and to limit competition by mercantilistic practices such as granting monopolies. Marshall made constitutional law a bulwark of the sanctity of contracts, the bedrock of America's enterprise culture. And by protecting the private rights essential to aspirational individualism, Marshall's court legitimized an inequality -- not of opportunity but of outcomes -- compatible with a republic's values.
When in 1801 Marshall was nominated to be chief justice -- one of the last things, and much the best thing, President John Adams did -- the nation still largely had an Articles of Confederation mentality. Formally, it was a nation; emotionally -- hence, actually -- it was still in many ways many countries, most states being older than and more warmly embraced than the nation. Marshall's jurisprudence built the bridge to 1862, the year it became clear that many men would have to die in a protracted conflict to preserve the Union, and that many would be willing to do so.
Marshall had been willing to die to help midwife the nation's birth, seeing much hard action during the Revolutionary War. Amiably sociable and broadly tolerant, he had friends of vastly different political persuasions and the only adversary he seems to have steadily disliked was a second cousin named Thomas Jefferson, in part because of Jefferson's partisan criticisms of Washington, who Marshall celebrated, in an immense biography, as the symbol of a national identity transcending state loyalties.
Among the many recent fine biographies of America's Founders, none is finer than Jean Edward Smith's ``John Marshall: Definer of a Nation'' (1996). Smith locates Marshall's greatness in this fact: Unlike Britain's constitutional documents, which are political documents that it is Parliament's prerogative to construe, the U.S. Constitution is a legal document construed by courts, not Congress. When judicial supervision of our democracy seems tiresome, consider the alternative.
Marshall's life of strong, consequential prose had, Smith writes, a poetic coda. Marshall died in Philadelphia, birthplace of the Constitution into which he breathed so much strength and meaning. The Liberty Bell, while tolling his death, cracked. It never rang again.
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