John Marshall, suspicious of “wild and enthusiastic democracy”

In 1827, responding to a request from his “partial and highly valued friend” Joseph Story, John Marshall wrote an autobiographical letter describing some of the main events of his life between his birth in 1755 and becoming Chief Justice of the United States in 1801.

Today, our focus from this letter will be on his description of supporting ratification of the new U.S. Constitution in Virginia. One of the attractive features he singles out for praise is Article I, Section 10, which contains restrictions on state legislatures.

It was while serving in the continental army that Marshall “was confirmed in the habit of considering America as my country, and Congress as my government.” This army experience shaped his perceptions of state politics. Marshall saw in the state legislature “the causes which had been chiefly instrumental in augmenting [the] sufferings” of the continental army. He also observed that questions “perpetually recurring in the state legislatures … brought annually into doubt principles which [he] thought most sacred,” such as the obligation of debtors to creditors.

Here is an extended excerpt:

In April 1787, I was elected into the legislature for the county in which Richmond stands; and though devoted to my profession, entered with a good deal of spirit into the politics of the state. The topics of the day were paper money, the collection of taxes, the preservation of public faith, and the administration of justice. Parties were nearly equally divided on all these interesting subjects; and the contest concerning them was continually renewed. The state of the Confederacy was also a subject of deep solicitude to our statesmen. Mr. James Madison had been for two or three years a leading member of the House of Delegates, and was the parent of the resolution for appointing members to a general Convention to be held at Philadelphia for the purpose of revising the confederation. The question whether a continuance of the Union or a separation of the states was most to be desired was sometimes discussed; and either side of the question was supported without reproach. Mr. Madison was the enlightened advocate of the Union and of an efficient federal government; but was not a member of the legislature when the plan of the constitution was proposed to the states by the general Convention. It was at first favorably received; but Mr. P. Henry, Mr. G Mason, and several other gentlemen of great influence were much opposed to it, and permitted no opportunity to escape of inveighing against it and of communicating their prejudices to others. In addition to state jealousy and state pride, which operated powerfully in all the large states, there were some unacknowledged motives of no inconsiderable influence in Virginia. In the course of the session, the unceasing efforts of the enemies of the constitution made a deep impression; and before its close, a great majority showed a decided hostility to it. I took an active part in the debates on this question and was uniform in support of the proposed constitution.

When I recollect the wild and enthusiastic democracy with which my political opinions of that day were tinctured, I am disposed to ascribe my devotion to the union, and to a government competent to its preservation, at least as much to casual circumstances as to judgment. I had grown up at a time when a love of union and resistance to the claims of Great Britain were the inseparable inmates of the same bosom; when patriotism and a strong fellow feeling with our suffering fellow citizens of Boston were identical; when the maxim “united we stand, divided we fall” was the maxim of every orthodox American; and I had imbibed these sentiments so thoughroughly that they constituted a part of my being. I carried them with me into the army where I found myself associated with brave men from different states who were risking life and every thing valuable in a common cause beleived by all to be most precious; and where I was confirmed in the habit of considering America as my country, and Congress as my government. I partook largely of the sufferings and feelings of the army, and brought with me into civil life an ardent devotion to its interests. My immediate entrance into the state legislature opened to my view the causes which had been chiefly instrumental in augmenting those sufferings, and the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government. The questions too which were perpetually recurring in the state legislatures, and which brought annually into doubt principles which I thought most sacred, which proved that everything was afloat, and that we had no safe anchorage ground, gave a high value in my estimation to that article in the constitution which imposes restrictions on the states. I was consequently a determined advocate for its adoption, and became a candidate for the convention to which it was to be submitted.

John Marshall on James Madison, Patrick Henry, and the distinction between convincing and persuading

Patrick Henry has often been depicted as a stirring orator who operated primarily on the emotions or passions. He certainly did know how to move men’s souls and stir them to action. But overemphasis on his “jury appeal” risks under-appreciation of his skills of logical argument and rational persuasion. This excerpt from William Wirt Henry’s life of Patrick Henry shows how John Marshall appreciated Henry as an accurate thinker and profound reasoner as well as a great orator. In comparing Madison to Henry, Marshall draws a distinction between convincing and persuading. Perhaps the distinction is worth trying to understand:

The poorly reported speeches of Mr. Henry attest the powers of reasoning he displayed [during the Virginia ratification convention], but in addition we have the testimony of one of his ablest opponents, one who certainly was a judge of logic, and had ample opportunity of seeing him in deliberative bodies and at the bar.

John Marshall, after he had achieved his great reputation as Chief Justice of the United States, upon a visit to Warrenton, Va., was asked his opinion of Wirt’s “Life of Henry.” He replied that “he did not think it did full justice to its subject. That while the popular idea of Mr. Henry, gathered from Mr. Wirt’s book, was that of a great orator, he was that and much more, a learned lawyer, a most accurate thinker, and a profound reasoner.” And proceeding to compare him with Madison: “If I were called upon,” said he, “to say who of all men I have known had the greatest power to convince, I should perhaps say Mr. Madison, while Mr. Henry had without doubt the greatest power to persuade.”

William Wirt Henry, 2 Patrick Henry: Life, correspondence, speeches 376 (relying on Judge James Keith of Warrenton, Va., for this statement of Marshall’s, which he obtained from a memorandum of the conversation made by Judge John Scott).