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John Marshall

" The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of governments are to afford that protection. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction." (Marbury v. Madison)

Thus begins the thought of Chief Justice John Marshall in the case of Marbury v. Madison. This case gave the justice his first opportunity to state what the government under the constitution of the United States should do for the American people. Marbury v. Madison was a case in which a citizen attempted to remedy a wrong he felt was done.

Marbury was one of the "midnight judges" appointed by the Adams administration, in an attempt to protect the principles in the constitution. The main principle being that of nationalism. At this time, the Federalists were fearful that the Jeffersonians would destroy that which the constitution proclaimed, a government of the people, for the people and by the people.

John Marshall was a Federalist and thus he felt the same as his fellows. Marshall did not trust the Jeffersonians and thus felt that it was his duty to protect the government. John Marshall’s judicial mind consisted of one guiding force, Nationalism. Through his nationalistic philosophy, Marshall attempted to make a strong central government that was subordinate to the constitution.

Not a law unto itself, for the national government was a creation of the people. The people created the constitution so that they, the people might form a "more perfect union." Marshall sought to broaden the power of the national government by using the power of judicial review and his interpretation of the constitution as a contract.

He also wanted to make the courts independent from undue interference from both of the other branches and from public emotionalism. Marshall was practical in his nationalistic philosophy. He determined the cases brought before him by viewing them as a single case set beside the constitution and whatever was supreme, stood.

This usually was the constitution, for the constitution was the supreme law of the land. Marshall sought to strengthen the general government case by case. Today we have the advantage of hindsight but Marshall was breaking new ground with each case that came before his court. Marshall and his court were after a government that promoted the supremacy of the constitution.

In Marbury v. Madison, he stated that, either the constitution is an unchangeable superior law, by ordinary means, or it is an ordinary legislative act, which can be altered when the legislature shall want to do so. If it is superior, then, the legislative act, contrary to the constitution, is not law: if it is a legislative act, then "written constitutions are absurd attempts, on the part of the people, to limit power, in its own nature, illimitable. It is emphatically, the province and duty of the judicial department, to say what the law is."(Marbury v. Madison)

This establishes the power of judicial review for the supreme court of the United States. The state courts were using this power even before Marshall came to the bench. He established this power on the federal level. The judicial review of Marshall’s court is the founding cornerstone of Marshall’s Nationalism.

This is only partly right, for it was a tool used by Marshall to implement his plan. As we continue to examine Marshall’s judicial mind, keep in mind that nationalism is the central philosophy of his thinking. What is the guiding influence in Marshall’s nationalistic philosophy?

The guiding influence of his philosophy was the constitution and the principles proclaimed therein, that set the pattern for a more perfect union. The constitution in itself is then a contract between the people and their leaders. The constitution can be construed as such because the whole idea of government of the people, for the people and by the people, is one of contractual agreement.

The government has certain obligations to serve in the interest of the people. The people in turn have certain obligations to obey the laws of government set forth in the constitution and of the United States. This essence is the groundwork of nationalism.

More on Marshall's Judicial Mind

  1. Marshall's Nationalism
  2. John Marshall's Judicial Mind: Marshall's Nationalist Philosophy
  3. John Marshall's Judicial Mind: Federal Supremacy
  4. John Marshall's Judicial Mind: The Contract  between the People and Their Government