Berks Barrister Summer 2019 - 22

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Book Review: John Marshall: The Man Who Made the Supreme Court
Continued from page 21
power of the Commerce Clause), among others. These landmark
decisions may take the lead in Con Law I casebooks, but
Brookhiser's rendition is much more captivating because, while
he covers the legalisms, he focuses on the people behind the case
caption and their stories, a fresh approach.
With these decisions, the Marshall Court did assert the lead
in establishing the authority of the United States Constitution
and the role of the federal government. Not just in the
substance of the ruling, but also in the manner by which they
were decided. When he came to the Court, Marshall ended the
practice of seriatim opinion writing, whereby each justice wrote
an opinion setting forth his individual thoughts on the issue at
hand. While a majority ruling may have existed, the disparate
reasoning caused confusion.
Having a single majority opinion, frequently authored by
the Chief himself, increased the power of the Court's voice
and, together with the high number of its unanimous decisions,
its prominence was raised. He achieved this solidity by his
charming and convivial personality, his focused intellect and the
fact that he required the justices to stay in the same boarding
house when court was in session, allowing for discussion on
cases after hours while Madeira flowed. Clearly, the greatest
Chief !
When I told a friend I had finished reading the latest John
Marshall biography, she asked, "Well, what did you learn?" A
lot, but truth be told, I was most enlightened by Brookhiser's
treatment of the 1833 Barron v. Baltimore decision. I had not
recalled anything about the case except for its holding: the
protections of the Bill of Rights did not bind state governments.
In teaching an Alvernia Seniors' College course and a CLE
seminar on the Fourteenth Amendment and its application of
the Bill of Rights to the states by way of substantive due process,
I simply accepted the Barron holding without delving into it.
Brookhiser delves into it.
By delving, he first posits Marshall read the Constitution
"as it was written and as it was meant." However, one might ask,
can you be both a "textualist" and an "originalist"? Clearly,
Marshall strictly applied the text of the contract and commerce
clauses in Fletcher and Gibbons, respectively, for example. But
in Barron, a literal reading of the Bill of Rights was found not to
control.
John Barron and his business partner, at considerable
expense, purchased a wharf at Fell's Point capable of serving
the largest ships. Two years later Baltimore began a program
to control the drainage of Fell's Point, causing runoff into the
harbor just north of Barron's wharf, resulting in a sandbar
blocking access to the wharf and bringing an end to their
business. The two partners sued the city for damages, claiming
a taking of property, without compensation, in violation of the
Fifth Amendment.
Brookhiser's analysis is one I had never considered before.
He points out:
22 | Berks Barrister

"The First Amendment begins, 'Congress shall make
no law respecting,' and goes on to enumerate freedom of
religion, speech, the press, assembly, and petition. The Seventh
Amendment imposes a restriction on federal courts. But other
amendments say nothing about the federal government or any
of its branches. The Second and Fourth refer to 'the right of the
people,' the Sixth to 'the accused'; the Third, Fifth, and Eighth
are blanket prohibitions.
"If two of the first eight amendments restrict only the federal
government, should not the others, the Fifth included, be
understood to apply, by contrast, to both the federal government
and the states?"
Ignoring a strict reading of the text and holding that the
Fifth Amendment did not offer Barron and his partner any
remedy, Marshall recalls that the first ten amendments were
drafted and adopted in order to address the peoples' fear that
the new Constitution would make the national government too
powerful to the detriment of the people. Marshall explained:
"These amendments demanded security against the
apprehended encroachments of the general [federal]
government-not against those of the local [state]
governments."
The book's reviewer for the National Review, playwright
Jonathan Leaf, refers to Marshall as being among "the most
original of 'originalists.'" Whereas, Yale Law Professor John
Fabvian Witt, in his review for The New Republic, questions
whether there was any consensus of thought among the framers
upon which an originalist analysis can be based. "The men who
gathered in Philadelphia in 1787 broke into factions almost
immediately after the ratification of the Constitution precisely
because they had not resolved many of the most controversial
questions of the day."
Given that Marshall was an ardent Federalist to the end,
Professor Witt believes, "General ideas of sound policy, at least
from the Federalist perspective, provided a guiding light for
Marshall and his court."
Setting aside the question of whether John Marshall was
a textualist and/or an originalist or simply a political operative,
here is my take-away from the Barron decision: if the Court had
instead performed a textual analysis, the Sixth Amendment's
rights to a fair trial and assistance of counsel would have
been applied to the states 100 years before they actually were.
Imagine the injustices that might then have been avoided,
especially during the Jim Crow era. But my take-away does not
change the fact that John Marshall was the "greatest ever."
The sign of a good book is that it gets you thinking, and
Richard Brookhiser has written a very good book.
Mr. Smith, Executive Director Emeritus of the Berks
County Bar Association, teaches courses on the Supreme
Court and the U.S. Constitution as part of Alvernia
University's Seniors College.



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