John Marshall, the first chief justice of the Supreme Court, was both an ardent advocate of judicial constructionism and supporter of central government, Gary McDowell said at a lecture on Monday.
McDowell, a professor at the Jepson School of Leadership Studies at the University of Richmond, is the author of 11 books on topics like judicial power and the Constitution. He received his B.A. from the University of South Florida in 1972 and his Ph.D. from the University of Virginia in 1979.
McDowell explained in the lecture that, for Marshall, the purpose of the judicial branch is to give a construction to the words of the Constitution, reasoning that if no one were able to defend the original intent of the Constitution, then the executive and legislative branches could simply ignore it.
Marshall was also clear that he wished to reduce the possibility of the judges’ own arbitrary will getting in the way; otherwise, judges would simply become legislators, McDowell said.
“Marshall is much closer to Justice [Antonin] Scalia than Justice Scalia knows or Marshall would have imagined,” McDowell said. “There is a textual element to Marshall that you don’t get with a lot of originalist arguments.”
However, despite his emphasis on the importance of words, Marshall also believed the Constitution to be a document of enumeration, not definition. The job of judges, in making a ruling on a given law, is to determine the objective intention of the law-giver.
Marshall did not agree with the states’ rights doctrine invoked by Thomas Jefferson and others, McDowell said. McDowell explained that since the Articles of Confederation were abandoned, there was a “continual paranoia” of diminution of states’ rights, and Marshall suspected Jefferson and his allies of trying to turn the Constitution back into the Articles of Confederation.Marshall said the Constitution, which had been ratified by the people’s will, empowered the nation to bind its parts, and the parts cannot control the whole.
“At the heart of states’ rights,” McDowell said, “was the belief that the Constitution was to be considered not as emanating from the people but as an act of sovereign and independent states.”
McDowell also presented a moral component to Marshall’s doctrines, based on the tenets of Enlightenment philosophers such as John Locke and William Blackstone. Marshall believed that liberty and freedom from control are not the same thing. In a ‘state of nature,’ man can govern and labor for himself, but without government intervention, conflicts will inevitably result.In Marshall’s view, McDowell said, men surrender their natural rights in exchange for social privileges and freedom from violence.
McDowell also discussed the defects of the Articles of Confederation, saying that Marshall believed that the Constitution had created a true government, rather than a league or confederation. The Articles did not give the nation enough power to enforce its rules while also not providing a way for states to check their impulses. Marshall wanted the Constitution to be a way to correct the vices of the Articles and to preserve the general principles of liberty and democracy that the Founding Fathers had discussed.
The lecture, entitled “John Marshall and the Moral Foundations of Republican Conservatism,” was held at 4:30 p.m. in Lewis Library and was sponsored by the James Madison Program in American Ideals and Institutions.
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