John Marshall, chief justice of the United States from 1801 to 1835, is revered as the most influential shaper of the Supreme Court. The most famous case of his tenure, Marbury v. Madison (1803), established judicial review: the Court's authority to strike down federal laws that it finds unconstitutional.

Some legal historians have argued that judicial review took the Supreme Court down the wrong path. With Marbury, Marshall usurped lawmakers' authority in an unprecedented way for politically motivated reasons, they have charged--and some still view the Marshall court this way.

SIUC political science professor Robert Clinton calls that view "the Marbury Myth." In fact, Marshall was a man of his time, and his leadership built brilliantly upon that of his predecessors, he says.

In a speech Clinton gave in October 2001 at the Supreme Court, to mark the bicentennial of Marshall being appointed as chief justice, he showed how the pre-Marshall court laid the foundation for the Marshall court's achievements. The printed version of Clinton's speech recently won the Supreme Court Historical Society's annual Hughes-Gossett Award, honoring the best article published in the society's journal in 2002. "The Supreme Court Before John Marshall" appeared in Vol. 27, No. 3 of the Journal of Supreme Court History (November 2002). Justice Antonin Scalia presented Clinton with his $1,500 prize this past June in the Court's Great Hall.

"The overall thesis of my article is that the pre-Marshall court had an enormous influence on the Marshall court, that it was of enormous importance in getting the judiciary off the ground in the constitutional arena, but that it has been essentially forgotten because of the celebrity of the Marshall court," says Clinton, who specializes in political theory and legal and constitutional philosophy and history.

"That's not to say [Marshall] wasn't a great justice," Clinton adds. "He was a more comprehensive legal thinker than the earlier justices, and that's why he was able to pull it together."

As Clinton notes in his article, "Marshall has become an icon, and iconic figures...have the potential to distort our historical vision." One such distortion, he says, is "the widely held belief that the Marshall court's accomplishments were largely unprecedented."

But judicial review didn't spring forth full-fledged with Marbury v. Madison, writes Clinton, who has published a book on the case. The pre-Marshall court tackled constitutional issues in several cases, and its justices "asserted the Court's power to disregard unconstitutional laws."

In fact, they refused to uphold an act of Congress that empowered judges to carry out certain administrative duties, such as granting pensions to Revolutionary War veterans. If they did not go further, it was probably because most of the cases in the Supreme Court's first decade involved international matters, such as treaties and maritime law.

"The pre-Marshall court was the first in the world to be presented with the terrifying task of figuring out how to work this new Constitution into the framework of existing law--there were never before any written national constitutions, nothing to guide them," Clinton says.

Some of their contemporaries thought the Constitution was nothing more than a charter, a set of guidelines on how to run the fledgling nation, he says.

"It's quite possible that if the pre-Marshall court had not been willing to interpret certain provisions in the small number of cases they had decided by the time Marshall took the bench, everyone would have considered the Constitution in that light."

We can better understand the early Court if we understand the legal philosophy of its justices, Clinton writes. They subscribed to the longstanding concept of natural law: the notion that the essence of the law existed before it was expressed in written texts such as statutes or constitutions. Their opinions were "efforts to 'find' or 'discover' the 'true' constitutional principle underlying the text."

In short, the interpretive tradition essential for establishing judicial review was nothing new to the pre-Marshall court. What remained was for Marshall to give it its full expression.

"They began that process, and Marshall followed it up, using the same rules and principles of interpretation that the pre-Marshall court had used," Clinton says.

"It just happened that Marshall was the man sitting in the chief justice's seat when the most important cases in the history of the court occurred."

Among them: Marbury v. Madison held that Congress could not enlarge the Supreme Court's jurisdiction as set forth in the Constitution. McCulloch v. Maryland upheld Congress's right to establish a federal bank. And Gibbons v. Ogden described Congress's commerce power so expansively as to limit the legislative authority of the states.

In these landmark cases and in others, the Marshall court fully asserted the power of the judicial branch of federal government. The rest, as they say, is history.

--by Marilyn Davis, ed., and K. C. Jaehnig, Media & Communication Resources

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