Friday, September 23, 2005

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.

Moderation, lawabidingness, civility, prudence and self-discipline were some elements of a healthy culture singled out for attention by Marshall. He counseled the American people not to be “seduced by a love of ease” or by the “arts and misrepresentations” of individuals intent on undermining their liberties or the country’s interests. Marshall believed a decent democratic republic — that respected the natural rights of the people and effectively secured them — was achievable.

As Marshall was aware, like Madison and Alexander Hamilton, the principal authors of the Federalist Papers, such a democratic republic had never before, in the whole history of the world, been successfully created and maintained. It was the great mission of the Americans to demonstrate what many people doubted, that is, the capacity of the mass of the people to govern themselves. This would require, however, possession of both “wisdom and virtue” by Americans.

Here there is a profound difference between Marshall and his jurisprudence on the one hand and many contemporary jurists on the other. The attention Marshall devoted to the people’s virtues in his writings is notably absent in much contemporary jurisprudence. A recognition of the constitutional significance of culture does not appear in the decisions that have defined the right of privacy out of emanations from penumbras around a number of constitutional amendments.

Another place where Marshall’s — and Jefferson’s — concern for the moral character of the people is notable by its absence is in the Supreme Court’s recent decisions on the Establishment Clause. The First Amendment’s prohibition on Congress establishing a religion has been taken by the Supreme Court — most dramatically by Justice David Souter—to mean that Congress can do nothing that would entangle it with religion as such. Not only can it not establish one denomination as the official religion of the state, it cannot do anything to support religious belief or practice in general.

The court has tended to trace its understanding of the Establishment Clause back to Jefferson, who spoke — in a private letter, not a public speech — of a “wall of separation” between church and state. Apart from the fact that Jefferson was not in Congress when the First Amendment was drafted and approved, so his ideas cannot be dispositive of its essential meaning, the court’s understanding of what Jefferson meant by a “wall of separation” is almost surely at odds with his own.

Jefferson unquestionably opposed religious establishment, which he thought corrupted religion and caused sectarian conflict. He does not seem to have opposed, however, the encouragement of religion in general.

While by no means an orthodox believer, Jefferson thought religious belief, properly tempered, supplied useful support for democratic self-government. His culminating argument for abolishing slavery was that “the liberties of a nation” could not be “thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God” and “that they are not to be violated but with his wrath.”

Jefferson was not alone among the Founders in holding this opinion of religion’s significance. In his Farewell Address, George Washington argued: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.” Marshall could only have agreed.

The Supreme Court’s Establishment Clause jurisprudence led recently to the remarkable spectacle of a federal district court in California declaring the Pledge of Allegiance unconstitutional because of its reference to “one nation, under God.”

Perhaps the 250th anniversary of Marshall’s birth will lead to a reconsideration of his jurisprudence, which was much more respectful of the role of religion in public life because it was informed by a recognition of the importance of character and culture in democratic self-government.

Roger Barrus is Elliott Professor of Political Science, and David Marion is director of the Wilson Center for Leadership in the Public Interest, at Hampden-Sydney College in Virginia.

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