- The Washington Times - Sunday, February 10, 2002

Now that the Supreme Court has become the recipient of the second highest honor the TV industry can bestow a prime-time drama about the court (only sitcoms rank higher in dignity) it seems only fitting to examine two recent books, one about the legendary John Marshall and the other by Justice Sandra Day O'Connor concerning her childhood on an Arizona ranch.
John Marshall and The Heroic Age of The Supreme Court by R. Kent Newmyer (Louisiana State University Press, $39.95, 511 pages, illus.) is based on solid scholarship, graced by common sense, and written in a lucid, penetrating style. But be warned: This book is not easy reading. It is dense with legal, historical and social analyses, and all of them require close scrutiny.
The author, professor of law and history at the University of Connecticut School ofLaw, devotes most of the book to detailed examinations of the major opinions of Chief Justice John Marshall (1755-1835). This isn't one of those oh-look-how-human-he-was Great Man biographies, chock full of "humanizing" anecdotes. There are accounts of Marshall's good-humored friendliness, and the esteem with which he was held by those who knew him best, but the book focuses on how he reached judicial conclusions about profound constitutional issues.
Despite Mr. Newmyer's skill at painstakingly guiding the reader, point by point, through legal thickets, the material he deals with nothing less than the interrelated legal, political, and economic trends of Marshall's long life is of its very nature dauntingly complex and not suited to breezy, popular presentation.
Marshall was, among his many accomplishments, a Revolutionary War veteran, a successful Virginia lawyer, a state legislator, an admired diplomat (remember the XYZ Affair?), a congressman and cabinet officer (briefly) and a chief justice of historic importance. But, as the author points out, he was above all "a Burkean conservative," a Virginia aristocrat of strong Federalist views, and a "constitutional nationalist," placing him in direct confrontation with most of his Virginia friends and neighbors who held strong states rights views. Perhaps nowhere in American history can we find such a long and bitter political and philosophical enmity than that between the two great Virginians, Thomas Jefferson and Marshall, each of whom thought the other was a scheming, lying politician.
In 1801, Marshall was appointed Supreme Court justice by President John Adams, although, in one those ironies of history, he was sworn in by the next president, Jefferson, who even at that early date disliked and distrusted him. During the next two decades, Marshall was at the center of a debate concerning two of the most important political questions in American history: What do the words of the Constitution mean and what role should the Supreme Court play in determining the answer to that question? We are still asking those questions, as witness the presidential election of 2000.
To Marshall, the answers were clear. The American people themselves, not the sovereign states, created the Constitution. The national government they created does not depend upon the states to exercise its powers, and the Supreme Court has the constitutional right and duty to exercise judicial review, not only of laws by the states but by the Congress as well. The next question What powers does the national government have and how do these powers relate to the equally constitutional, but different, rights and powers of the states? was one Marshall would take more than two decades trying to answer. His decisions (based on the idea of "divided sovereignty" between the states and the national government), written in a forceful, reasoned, Olympian style, made him one of the most revered and reviled men of his time.
The two major cases with which his name will be forever linked Marbury v. Madison and McCulloch v. Maryland are examined from every angle, including the impact of McCulloch on the subsequent economic development of the country. Mr. Newmyer's analysis of the Aaron Burr treason trial, at which Marshall presided (enraging Jefferson by refusing to find Burr guilty) is of particular interest given the recent case of John Walker Lindh, the young American who had been accused by some of treason for fighting on the side of the Taliban. The author's description of the fate of the Cherokees under President Andrew Jackson a subject the Marshall court dealt with is a model of scholarly wisdom, neither anachronistically "politically correct" nor morally insensitive to the tragic plight of the Indians.
According to the author, John Marshall detested theoretical political abstractions, and believed that "human nature as he found it [and] life as it was and not as he wished it to be," should be at the heart of legal and political decisions. Those sentiments, in my view, are still at the heart of any conservatism worthy of the name.

Marshall believed that the strength of our nation depends not so much on laws and government policies as on what we might call today, "facts on the ground" the way Americans behave in their daily lives, the jobs they do (and how well they do them), and the innumerable daily decisions they make for themselves and their families. Lazy B: Growing Up on a Cattle Ranch in the American Southwest by Sandra Day O'Connor and H. Alan Day (Random House, $24.95, 316 pages, illus.) is a delightfully entertaining and enlightening look at how one family lived a life of hard work, self-reliance, and dignity for three generations.
Justice O'Connor's grandfather, H. C. Day, started the Lazy B ranch in Arizona near the New Mexico border in 1880: "All one needed was a herd of cattle and a few people to watch over them; God and the free market would do the rest." Well, not quite. Ranching (and survival) in this stark, beautiful, but unforgiving country demanded daily attention to the myriad details of the tasks of raising, feeding and selling cattle on a ranch "approximately one-fifth the size of the state of Rhode Island." Henry Day's son, Harry, was born in the family house by the Gila River in 1898. Almost all of his long life was spent fighting drought, hard economic times, and clueless bureaucrats, but he loved what he was doing and made a success of it.
What I liked most about this book is its specificity, the homey details about everything from how to make beef jerky to how to dress properly for ranch work (first, buy Levis, then a Stetson), and from how the desert spadefoot toad survives without water to how to break a horse (never mind whispering to himshow him who's boss).
Justice O'Connor and her brother (the coauthor), along with their sister Ann, grew up in an environment in which the single most important thing was water. Every aspect of ranch life depended on it. A big rainfall, a rare event, would be the subject of conversation for weeks. Frugality, stoicism in the face of pain and defeat, rigorous honesty, and doing every job exactly the right way were virtues Harry Day demanded from his family, his ranch-hands, and himself, because there was no other way the ranch could survive, or he could live with himself. This book is a tribute to him and to a way of life.

Willliam F. Gavin is a writer living in McLean, Va.

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