How Great were the 'Great' Marshall Court Decisions?
Michael J. Klarman
As published in Virginia Law Review, Vol. 87, pp. 1111-1184, October 2001
On this two hundredth anniversary of the ascension of John Marshall to the Chief Justiceship of the United States Supreme Court, it is appropriate that we take a revisionist look at some of the landmark decisions of the Court that he presided over for thirty-four years. Political scientists and legal scholars have written a great deal in recent years questioning conventional as-sumptions about the importance of Supreme Court decisions such as Brown v. Board of Education, Roe v. Wade, and Engel v. Vitale. Yet almost nothing has been written about the conse-quences of the "great" Marshall Court decisions. Scholars continue, almost universally, to assume that the old Marshall Court chestnuts---decisions such as Marbury v. Madison, McCulloch v. Maryland, and Dartmouth College v. Woodward---were of enormous significance to the history of the early republic. A closer look at these rulings in their historical context, however, suggests that such assumptions are in need of serious revision. While I do not mean to suggest that these famous Marshall Court decisions were completely inconsequential, the prevalent assumption that they fundamentally shaped the course of American national develop-ment is almost certainly wrong.
This Article will reconsider the consequences of three categories of Marshall Court decisions. Part I will examine the most famous Marshall opinion of all, Marbury v. Madison, and will question the importance of its proclamation of the judicial review power. Part II will reevaluate the importance of McCulloch v. Maryland and Gibbons v. Ogden--decisions that approved extremely broad conceptions of national legislative power. Part III will turn to some of the famous Contract Clause decisions of the Marshall Court---specifically, Dartmouth College v. Woodward, Sturges v. Crowninshield, and Green v. Biddle---and will challenge the widespread assumption that they were instrumental to American economic development during the first half of the nineteenth century. Finally, Part IV will consider one way in which the Marshall Court did make a vital contribution to American history: It helped establish the Supreme Court as a significant, if not quite coequal, branch of the national government. This final Part will assess the extent to which Marshall and his colleagues were responsible for the Court's growing institutional stature and the extent to which this development was fortuitous. While I doubt this Article will conclusively resolve any of these issues, my goal is to prompt other scholars to reconsider prevalent assumptions about the importance of canonical Supreme Court rulings generally and the "great" Marshall Court decisions specifically.
Number of Pages in PDF File: 74Accepted Paper Series
Date posted: November 10, 2003
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