Reconsidering John Marshall

S E E D E D   C O N T E N T

 THE ATLANTIC ›


Reconsidering John Marshall

PAUL FINKELMAN JUNE 15, 2021

About the author: Paul Finkelman is the president of and a history professor at Gratz College. He is the author or editor of more than 50 books, most recently Supreme Injustice: Slavery in the Nation’s Highest Court.

John Marshall is America’s most important jurist. Biographers are universally laudatory of the “Great Chief Justice.” A recent documentary about him (in which I am interviewed) is subtitled The Man Who Made the Supreme Court.

This icon of jurisprudence is central to America’s constitutional development. For nearly three and a half decades, longer than any other chief justice, he led the Court and shaped constitutional law. A bronze statue of him sits outside the Supreme Court Building, and a marble one stands inside. He has appeared on four postage stamps, a commemorative silver dollar, a $20 Treasury note, and a $500 Federal Reserve note. Two centuries after he wrote them, Marshall’s opinions are still read and cited. Five of the 10 opinions most cited by the Court itself are Marshall’s.

But the country must now reevaluate this venerated figure in American history. A few institutions have already begun to do so. Of the three law schools named after him, one—John Marshall Law School, at the University of Illinois at Chicago—announced last month that it would now be known as simply the University of Illinois at Chicago School of Law. Another, the Cleveland-Marshall College of Law, at Cleveland State University, is considering a change as well. Franklin & Marshall College, in Pennsylvania, is also weighing a new name. Though some will surely deride these decisions as “cancel culture,” they are part of an earnest and deserved reckoning, the result of an effort to fully understand Marshall’s jurisprudence and his personal life, and to examine whether his profound impact on American law was not as honorable as we have previously believed.

The motivation comes, in part, from information I revealed in my 2018 book, Supreme Injustice: Slavery in the Nation’s Highest Court. Earlier biographers argued that he did not seek investment profit from slavery; that he owned a “dozen house servants” in Richmond, Virginia; that he disliked slavery but went along with it because he was a practical man focused on strengthening the national government; and that as a justice he heard very few cases involving slavery. He accepted the system and focused on other issues.

None of this is true. What I found in my research—three years spent analyzing every case dealing with slavery that the Marshall Court heard, including many that previous scholars had ignored brought by people held as slaves who had strong legal claims to being freed, and others involving the illegal African slave trade; census and tax records revealing Marshall’s huge personal investment in enslaved people; his private letters that display his attention to buying and selling human beings; business records showing his purchases of enslaved people; and the three versions of his will, which also revealed his commitment to slavery—totally upended the established view: Marshall not only owned people; he owned many of them—certainly more than 300—across the years of his life. Unlike other major slaveholders, such as his cousin Thomas Jefferson, Marshall did not inherit enslaved people; he aggressively bought them when he could. Whether buying young children, or a mother and one of her children, or selling them to raise cash, he paid little attention to the enslaved families he destroyed in his lifelong quest for more human property. Marshall’s biographers assert that he was not brutal or violent toward the people he owned, and this may well be true. But Marshall had day-to-day contact with only the dozen and a half enslaved people in his household. We have no knowledge about how the overseers on Marshall’s land in other parts of Virginia treated the chief justice’s human property. Nor do we know how two of his sons, who lived about 100 miles from Marshall, in rural Fauquier County, and to whom he lent about 60 people, treated them.

Marshall, this great father of American law, was professionally deeply committed to slavery too. His jurisprudence was guided not by justice but by the ideology and worldview of someone who held other humans in slavery. In all of his opinions involving slavery, he always sought “justice” for slaveholders and never for the people they held—sometimes illegally—in bondage.

The son of a small planter on the Virginia frontier, Marshall grew up in modest circumstances, served as a junior officer in George Washington’s army, and became a successful lawyer, diplomat, and politician before joining the Court in 1801. Along the way, he accumulated great wealth, including more than 200,000 acres of land, as well as stock in banks, turnpikes, and other investments. He also purchased hundreds of enslaved people throughout his life.

Marshall lived in a slaveholding culture; Virginia had more enslaved people than any other state at the time. And Marshall was no outsider. He owned at least 12 adults in Richmond, as his biographers acknowledge, though they ignore the children of those enslaved people, whom Marshall likewise owned. More significantly, the biographers also don’t mention the hundreds of other people he held on his rural plantations.

In the 1820s and ’30s, he gave 27 enslaved people to one son, sold more than 30 to pay off the debts of another son, and gave about 40 to another son. He probably gave similar gifts to his other two sons, because as very young men, all of them owned large numbers of enslaved people who had almost certainly come from Marshall. Despite all these gifts and sales, at his death, Marshall still owned more than 150 people. Had he not given away and sold so many, he would have owned 300 or more.

Marshall’s pattern of acquisition, recorded in his notebooks (which are also published in The Papers of John Marshall), began when he was a young lawyer. These record books show that in October 1783, Marshall bought a man named Moses for £74. On July 1, 1784, he paid just over £90 for a man named Ben. Three days later, on the Fourth of July, he bought two unnamed children for £30, who the editors of Marshall’s papers believe were two young boys named Edey and Harry. He also paid £20 “in part for two servants.” In September, he spent another £25 for unnamed and uncounted “servants.” In November, he bought two more people, Kate and Esau. He also purchased Harry that year. Over 12 months, Marshall bought nine people whose names he provides, plus other unnamed and uncounted people. In November 1786, he paid £50 for two unnamed people. In April 1787, he bought Israel for £55 and in May spent another £55 for “a Woman bought in Gloster.” On June 3, he made a down payment of less than £11 for two more people. As he had in 1784, he spent Independence Day in 1787 buying people—this time a woman and her child, both of whom he passed on to his father-in-law. That day he also paid money he owed on another enslaved person. In August, he paid £30 for people he had bought in Gloucester, Virginia, and bought another unnamed “negroe man” for £47.

In none of these records of his purchases did Marshall note whether his acquisitions of human property destroyed marriages or took young children such as Edey and Harry from their parents. Their lives and those of their family members did not matter to the young lawyer.

Initially Marshall recorded the names of the people he purchased, suggesting at least some acknowledgment of their personhood. But he later largely abandoned this practice, noting merely that he bought a “woman,” a “negroe man,” two “slaves,” or “a negroe woman.” Emblematic of the naming and not-naming of enslaved people was the June 1790 expenditure of £130 “for Dick and others.”

Marshall’s political views reflected his practice of human enslavement. He vigorously opposed the presence of free Black people in his state. In 1831, in the wake of Nat Turner’s rebellion in rural Virginia, he petitioned the state legislature to appropriate funds for the “urgent expedience of getting rid in some way, of the free coloured population of the Union.” Marshall blamed the Turner rebellion on free Black people, which was absurd, because no free Black people were associated with the rebellion and enslaved people in the county outnumbered free Black people by more than four to one. Marshall declared that free Black people in Virginia were worthless, ignorant, and lazy, and that in Richmond, half of free Black people were “criminals.” In his petition, he asserted that all free Black people were “pests.” (Marshall had clearly forgotten the thousands of free Black soldiers who had served in Washington’s army, fighting and dying alongside white soldiers and suffering, as he did, in the snow at Valley Forge.)

More significant, Marshall’s jurisprudence also reflected his personal hostility to free Black people. As the chief justice of the United States, Marshall wrote the Supreme Court’s opinion in seven cases involving claims of Black freedom. In some of these cases, people held in slavery had won their freedom in jury trials in Washington, D.C., where only white men, many of whom were slaveholders, sat on juries. Under D.C. law, slaveholders who moved into the city had to register their enslaved people within a certain time period or the people would become free. Juries often decided in favor of Black people claiming their freedom, because the facts and the law were on their side. But in every one of the cases for which Marshall wrote the Court’s opinion, the Black people lost, even when they had won in the trial court.

In one case, Marshall acknowledged that the statute was “ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed.” Here was a chance for Marshall to side with freedom, because, as he admitted, the case could go either way. But Marshall interpreted the ambiguity in favor of the slaveholder, not in favor of freedom. In another case, a Black man in D.C. proved that his mother, who lived in Maryland, had never legally been enslaved, and the jury agreed that he was free. This outcome was consistent with the law of every slave state. But Marshall found for the purported slaveholder, arguing that a decision in Maryland could not affect a court in the District of Columbia.

In six other cases involving Black freedom, for which Marshall did not write the opinion, the Court supported freedom. (This was an era when the Court had very few dissents—Marshall wrote only nine in more than three decades on the bench. So when he could not get the majority to support him, he was just silent.) The Supreme Court record is clear. Marshall never wrote an opinion supporting freedom for a Black person, and he was silent in the six cases supporting Black liberty that came before the Court toward the end of his career, when he could no longer control the Court.

In cases that came before the Court concerning the slave trade, he followed a similar pattern. From 1794 to 1803, Congress passed three laws that prohibited Americans from participating in the African slave trade to foreign countries. In 1808, Congress prohibited the trade into the United States, making it illegal for any American to participate in the African trade. Later statutes provided that enslaved people illegally brought to the United States be returned to the continent of their birth. These laws also increased the penalties for participation in the African trade, culminating in statutes in 1820 and 1823 declaring it piracy. But whenever Marshall wrote a decision in a slave-trade case, he always sided with the slave traders.

The 1820 law declared that anyone involved in the African slave trade to the United States “shall be adjudged a pirate” and if convicted “shall suffer death.” But, in his most famous slave-trade case, The Antelope (1825), Marshall asserted that the African slave trade “cannot in itself be piracy.” Thus, the chief justice, who is famous for having supported the power of Congress, refused to enforce the federal piracy law. In this opinion, Marshall admitted that the slave trade might violate natural law, but he asserted that neither the Court nor Congress could apply natural law to the slave trade, because other countries allowed it. Thus, in this case, Marshall held that kidnapped Africans illegally brought to the United States would remain enslaved and be sold at auction in the country, even though American policy prohibited the introduction of new enslaved people.

What is additionally troubling is that Marshall was more than willing to ignore his supposed opposition to using natural law in other cases. Two years after the Antelope case, in one of his rare dissents, Marshall argued that New York State’s bankruptcy law was unconstitutional, in part because of “the authority of those writers on natural and national law, whose opinions have been viewed with profound respect by the wisest men of the present, and of past ages.” In other cases, which involved contracts and land purchases, Marshall also invoked natural law to support his opinions. But when it came to kidnapping Africans and bringing them to the United States in chains, Marshall rejected any use of natural law to uphold a federal statute.

Marshall was similarly dismissive of the rights of Native Americans. His three major opinions on Native American rights collectively held that Indian nations could not control their own destiny, could not sue on their own behalf, and could not enforce their rights under treaties in the courts. In 1823, he asserted that American Indian tribes did not own the land they lived on and thus could not sell their land to white people. In Marshall’s view, Native Americans could not own land, because “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.” Beyond the grotesque racism of this opinion, Marshall never explained how a tribe that peacefully negotiated the sale of land could be made up of “fierce savages, whose occupation was war.” In fact, as a lifelong speculator in land, Marshall might very well have shown admiration for Native Americans, who were acting as he did—selling land when it was economically profitable to do so. Instead, he denied that American Indians had such a right. His famous decision in Worcester v. Georgia affirmed the power of the national government to sign treaties with tribes but gave no protection to Native Americans.

Neil S. Siegel: The Supreme Court is avoiding talking about race

None of this is to say that Marshall’s contributions to American law weren’t important. Many legal scholars (and I am in this group) stand in awe of Marshall’s many great decisions, his facility with language, and the way he shaped American constitutional law and government. Marshall passionately supported a strong national government, the power of Congress to regulate the economy, and the supremacy of the Constitution. We recognize these accomplishments when we teach constitutional law. But he also went out of his way, over and over again, to protect slavery and deny freedom to Black people who were entitled to it by existing laws. Similarly, he devoted his brilliant mind to explaining why American Indians had no rights that white men needed to respect. His flattering biographers have ignored these aspects of his career because they do not fit with their model of the “Great Chief Justice.” Scholars’ failure to delve into Marshall’s relationship with slavery illustrates how generations of lawyers and constitutional historians have generally shied away from confronting the problems of slavery and race in the United States.

Marshall’s failure to ever protect the rights of Black Americans and Native Americans underscores the tragedy of his career as a jurist. As a political leader and justice, Marshall challenged states’-rights politicians, opponents of the Bank of the United States, and presidents. Savvy, shrewd, and often brilliant, he never sought political confrontation, but neither did he shy away from interpreting the Constitution and federal law in the face of political opposition. However, his jurisprudence also completely protected slavery and slaveholders, even when viable legal alternatives were available, and his jurisprudence on Native Americans gave the nation a green light to conquer their lands and deny them any legal remedies. The decisions in these areas of American life reflected Marshall’s personal investments in land and enslaved people.

In addition to his judicial career, Marshall wrote the first serious biography of his hero, George Washington, under whom he served in the Revolution, fighting for American liberty. Washington was also a slaveholder, but after the Revolution, he refused to buy and sell people “as you would do cattle at a market.” In his will, Washington manumitted all of the enslaved people he owned and gave them land so that they could support themselves as free people.

Marshall never learned from his hero. He spent his adult life buying and sometimes selling people, just as he did horses, cattle, and land. At the end of his life, he freed none of those people. This personal legacy—combined with his career of never supporting freedom on the Court, urging Virginia to expel all the free Black Americans in the state, and never enforcing the bans on the African slave trade—makes him one of the most pro-slavery, racist leaders of early America.

Perhaps recognizing the shamefulness of his disdain for liberty, freedom, and fairness, Marshall destroyed most of his business records before his death. Fortunately, a large historical record nevertheless remains. Let us put it to good use, and remember John Marshall for who he was.