Remembering John Marshall

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Though the circumstance is a matter of chance rather than design, it is not insignificant that President George W. Bush gets to put has mark on the United States Supreme Court against the backdrop of the 250th anniversary of the birth of Chief Justice John Marshall (Sept. 24, 1755).

While Marshall was not one of the Framers of the Constitution, as the author of such landmark decisions as Marbury v. Madison, which established the power of judicial review, and McCulloch v. Maryland, which affirmed the supremacy of federal over state law, he certainly deserves to be ranked among the self-conscious founders of the American constitutional order.

Marshall's reputation as the greatest and most influential of America's judges has obscured the fact Marshall assumed his duties as chief justice in 1801 amid charges the institution he would lead had been radically politicized by Federalists like President John Adams, who appointed him. Thomas Jefferson and many of his followers -- the "Republicans" of the day -- questioned whether a Marshall court would adequately protect the democratic rights and liberties of the people. The Alien and Sedition Acts, passed in 1798, were taken as conclusive proof of the Federalists' antidemocratic tendencies.

In short, the political climate in 1801 was not all that different from the present, as Democrats and Republicans square off over qualifications of candidates for judicial offices and even more over the role of the federal courts in government.

The situation then and now bears out Alexander Hamilton's observation that the judicial branch, dubbed by him as the "weakest" of the departments, would be critically important to preserving the bona fides of the republic.

Marshall and Jefferson were political opponents but were in complete agreement that the success of self-government required the intellectual and moral development of the American people. For people to be able to govern themselves politically, they must be able to govern themselves individually.

It was with a view to such self-government that Jefferson, in his "Notes on the State of Virginia," advocated religious toleration, free public education, and a plan for gradual, compensated abolition of slavery. The first proposal was adopted by the state but, to his great distress, not the others.

Unwilling to leave much to chance, Marshall engaged himself in shaping the nation's cultural climate. His biography of George Washington was manifestly an exercise in civic education. His commitment to civic education was in evidence as early as 1784, when he joined James Madison, James Monroe, and others to form the Virginia Constitutional Society, established to provide instruction in vital matters of public interest.

Marshall, like Jefferson, understood a healthy democracy requires more than good institutions. The convictions and even habits of the people are critically important. The cultural foundations of the society are, in many respects, even more important than the political institutions. An intellectually and morally healthy citizenry can survive governmental disorder; good institutions, however, will not save a citizenry that has descended into cultural chaos.

Jefferson is famous for recommending -- albeit in a private letter, not in a public speech -- a bit of revolution every generation or so, to maintain a robust republican spirit among the citizens, even at the cost of some political disorder.