John Marshall and the Constitution, a Chronicle of the Supreme CourtCorwin, Edward Samuel
History
John Marshall and the Constitution, a Chronicle of the Supreme Court
Corwin, Edward Samuel
Constitutional history -- United States; Marshall, John, 1755-1835; United States. Supreme Court
The great lack of the Federal Judiciary during these early years, and it
eventually proved well-nigh fatal, was one of leadership. Jay was a
satisfactory magistrate, but he was not a great force on the Supreme
Bench, partly on account of his peculiarities of temperament and his ill
health, and partly because, even before he resigned in 1795 to run for
Governor in New York, his judicial career had been cut short by an
important diplomatic assignment to England. His successor, Oliver
Ellsworth, also suffered from ill health, and he too was finally
sacrificed on the diplomatic altar by being sent to France in 1799.
During the same interval there were also several resignations among the
associate justices. So, what with its shifting personnel, the lack of
business, and the brief semiannual terms, the Court secured only a
feeble hold on the imagination of the country. It may be thought, no
doubt, that judges anxious to steer clear of politics did not require
leadership in the political sense. But the truth of the matter is that
willy-nilly the Federal Judiciary at this period was bound to enter
politics, and the only question was with what degree of tact and
prudence this should be done. It was to be to the glory of Marshall that
he recognized this fact perfectly and with mingled boldness and caution
grasped the leadership which the circumstances demanded.
The situation at the beginning was precarious enough. While the
Constitution was yet far from having commended itself to the back
country democracy, that is, to the bulk of the American people, the
normal duties of the lower Federal Courts brought the judges into daily
contact with prevalent prejudices and misconceptions in their most
aggravated forms. Between 1790 and 1800 there were two serious uprisings
against the new Government: the Whisky Rebellion of 1794 and Fries's
Rebellion five years later. During the same period the popular ferment
caused by the French Revolution was at its height. Entrusted with the
execution of the laws, the young Judiciary "was necessarily thrust
forward to bear the brunt in the first instance of all the opposition
levied against the federal head," its revenue measures, its commercial
restrictions, its efforts to enforce neutrality and to quell uprisings.
In short, it was the point of attrition between the new system and a
suspicious, excited populace.
Public-domain text, read in full here on John Shaqi.
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