Friday, August 07, 2020

Is John Marshall Next?

Gerard N. Magliocca

America's reckoning with slavery and white supremacy is focused thus far mainly on Confederate monuments. But there is also an ongoing discussion about the Founders who owned slaves, How should we remember them? What should be done with their monuments?

The Supreme Court will at some point confront this question about John Marshall. When you tour the Court, a statue of the Chief Justice dominates the exhibit hall downstairs. When new Justices are formally given their place on the Court, they sit in John Marshall's chair during the ceremony. 

The problem is that John Marshall owned people. In fact, he owned hundreds of enslaved people. Paul Finkelman's recent book on that fact (called Supreme Injustice) is well worth reading (at least for the portion about Marshall). In writing my biography of Bushrod Washington, I was struck by Marshall's terrible record on slavery and on race (including various comments that he made in letters). Much of this record was not known until recently, which partly explains why the Chief Justice has escaped the criticism that the other Founders from Virginia now justly receive.

Does this change my opinion of Marbury or McCulloch? Not at all. But do I think that Marshall should be singled out for special recognition within the Supreme Court building? Not anymore. 


What? You mean this retroactively changes history, so that he was no longer a Chief Justice? Because, so far as I know, that's the only thing he was being honored for, that and the opinions, which I guess were now authored by somebody else.

If he was being honored for being a moral icon and all round nice guy, it was a pretty well kept secret. Better kept than the 'secret' of his being a slave owner, which was pretty openly part of history.

This is valid IMO.

The founding of this country was explicitly about protecting slavery. There were political currents in Britain that threatened it, it was a non-negotiable dealbreaker at the constitutional convention, and it was written into the Constitution both explicitly (fugitive slaves, three-fifths) and implicitly (no state deprived equal sufferage in the Senate). This was at bottom because A MAJORITY OF FRAMERS OWNED AND RAPED SLAVES.

We have to eventually reckon with this, because for so long we have told the public to worship the framers. And it's sort of an unstated privilege of especially white liberals to do so.

The 1619 Project tried to address this by pointing out the evil origins of this country, but white historians, almost like homer sports fans who can't stand the notion that their team did anything wrong, pushed back hard. The 1619 Project was right.

Gerard: Does this change my opinion of Marbury or McCulloch? Not at all. But do I think that Marshall should be singled out for special recognition within the Supreme Court building? Not anymore.

Congress almost certainly purchased this statue to adorn the Supreme Court to celebrate Marshall's work on that body, not the fact he owned slaves.

I am curious. Is statue removal and the like an actual thing at law schools these days? Has academia gone Antifa?

Dilan: The 1619 Project was right.

Apart from the fact slavery and the slave trade started in the British American colonies about this time, nearly everything else in this “project” Marxist nonsense like capitalism, politics, medicine and nearly everything else is racist; racism prevents us from enjoying socialism; and the excreable claim contrary to all evidence “one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery."

The KGB used to publish and finance propaganda like this back in the day.

Important one. Just worth to note, that, the recent bill of Congress, concerning replacement of statues and so forth... States in the "Findings", while dealing with another Justice, in relation to slavery, that, I quote relevant part:

"(a) FINDINGS.—Congress finds the following:

(1) While sitting in the United States Capitol, the Supreme Court issued the infamous Dred Scott v. Sandford decision on March 6, 1857. Written by Chief Justice Roger Brooke Taney, whose bust sits inside the entrance to the Old Supreme Court Chamber in the United States Capitol, this opinion declared that African Americans were not citizens of the United States and could not sue in Federal courts."

One may reach the bill, here:


"The KGB used to publish and finance propaganda like this back in the day."

Chinese Intelligence services took over those bills, or so I understand. It's only recently that the NYT owned up to being paid a small fortune each year to run Chinese propaganda in its pages.

Of course our Birchers casually dismiss this idea. Slavery and Jim Crow and related atrocities committed against black persons welfare and dignity have never really exercised them (that's why they can so casually point to periods of black enslavement or peonage as 'golden ages' of liberty). Black persons lives and dignity don't matter much to them. They reserve their outrage for the 'real' outrages (things like having to wear masks), you know, the ones that might impact them in some way.

The problem with honoring Chief Justices is that nearly all of them occupied the range between "bad" and "horrifying". Only 2 are worth honoring for their services as CJ, Marshall and Warren. Both, obviously, have other facts in their background which should disqualify them unless the plaque (or whatever) is very carefully worded.

"The 1619 Project was right."

Nope. It's just a work of propaganda intended to delegitimize the US and Constitution, to make them easier to overthrow. That's all. Historians pushed back, hard, because it was a fraud.

The US was not an immaculate conception. Not for good, but not for evil, either. It was mixed.

"Only 2 are worth honoring for their services as CJ, Marshall and Warren."

And only one end of the political spectrum would even believe that much.

Mr. W: Of course our Birchers casually dismiss this idea. Slavery and Jim Crow and related atrocities committed against black persons welfare and dignity have never really exercised them...

Hypocrite, we beat this one to death in a prior thread. When you Democrats agree to remove all images of Democrats who participated in or supported slavery, Jim Crow and government racial discrimination, then dissolve the party of government racism itself, I will take you semi-seriously as crusaders to erase celebrations of racism from the public square.

Otherwise, turn in your race card.

Finkelman writes that Marshall not only owned slaves, but, in his 34 years as chief justice, he never wrote an opinion "supporting black freedom or attempts to punish slave traders." I quote from a review I published of Finkelman's book in The Federal Lawyer, June/July 2018:

"He wrote seven opinions in cases in which a slave sought freedom, and in all seven the slave plaintiff lost, with Marshall sometimes overruling apparently correct lower court decisions. In Wilson v. Belinda (2827), for example, Pennsylvania law required that slave owners register their slaves, providing each slave's name, age, and sex. The slave owner had not provided the slave's sex, which resulted in Pennsylvania's Chief Justice William Tilghman liberating her.... Hardly a controversial ruling, but Marshall reversed, citing the 'spirit' of the law.... In another case, Mima Queen and Child v. Hepburn (1813), Marshall upheld the exclusion of a juror who opposed slavery while jurors who supported it were allowed to serve...."

In a civil suit against a slave trader, Marshall applied a two-year statute of limitations that on its face applied only to criminal prosecutions, and he ruled that the two years started to run when the slave ship set off from the United States for Africa to kidnap people into slavery. Yet the crime of slave trading was ongoing, continuing until the ship returned to the United States, and slave ships never returned within two years.

Of course, the people ardently defending celebrations of racism and racists are our Birchers and fellow GOPers. And this is one area where they love celebrations of Democrats too: when they're white supremacists who supported slavery of black persons.


In the first comment above, Brett writes that Marshall's being a slave owner was pretty openly part of history. False, according to Finkelman. Previous historians ignored the fact. For example, G. Edward White wrote that "Marshall was not a slave owner."

Btw-Marshall was awful on Native Americans 'rights' (he didn't think they had them so the quotes), applying the incredibly racist thinking of the founder of 'classical liberalism' John Locke to their case. There's a long pedigree of racism and racial obtuseness with 'classical liberalism' I guess.

"And only one end of the political spectrum would even believe that much."

Sad to say that this is true.

"Only 2 are worth honoring for their services as CJ, Marshall and Warren."

What is Salmon Chase's reputation as CJ?



Yes, I recommend reading the Paul Finkelman book in its entirety. It's a short book and quick reading. If you search C-SPAN online, you can find the author talking about the book. Jean Edward Smith has a good biography of Marshall. I own and read it. But, he barely talks about Marshall's involvement with slavery, on the court or off.

There are a few interesting notes (including one case involving him saying slaves are "persons") but it's a disappointing defect to the work overall. And, this is not just about southerners on the Court either. An old bio of Justice Johnson (SC) includes his typical views on slavery, but also notes his concerns that some minimum due process be practiced in trials of slaves. Another Marshall justice who is mostly forgotten had a notable dissent involving loosing testimonial rules in freedom suits.

So, there is some complexity in that area. See also, Don Fehrenbacher's work on the Dred Scott case and other works.


As to the specific matter, John Marshall should be highlighted at the Supreme Court as a central figure in its history. This should be done, however, by also providing a full history of who he is. The "chair" ceremony is not really necessary -- I can see some finding that distasteful given he was a large (as Paul F. notes) slaveholder. But, he still is a major figure in Supreme Court history. Pride of place there at the Supreme Court building is to me appropriate with a sign or something that reminds people that he wasn't just a charming person who joked about drinking Madeira wine and so forth, but also a slaveowner.

Chief Justice Chase has a very interesting biography but had a short tenure on the Court and was not much of a force. It is unfortunate he was too ill to write a dissent in Bradwell v. Illinois, being the only justice who dissented in that case involving the privilege of a female citizen to be a lawyer.

John Marshall as a justice is worthy of respect as a whole. Charles Evan Hughes was also pretty good, if not there too long. There were many fairly forgettable, even the first one. Warren was a good Chief Justice. I'm not a big fan of his ideology, but Rehnquist did a good job running the Court. Others did a fairly good job running the Court, if not too memorable to history. Roberts also has been a good Chief Justice overall as a matter of running the Court. His ideology is mixed imho.

Yes, Hughes was a solid CJ though I don't think he was a great one (a term on which reasonable people might disagree). I don't know much about the rest of his life except that he was the R candidate for President in 1916.

Chase has to be notable as probably the only Justice to rule that his own policy (as Treasury Secretary) was unconstitutional, which he did in the Legal Tender Cases. His decision in Ex Parte Milligan was good, though that's been substantially undermined since. He was right to dissent in The Slaughterhouse Cases, but did so for bad reasons, so...

Regarding Ex Parte Milligan, I recommend a collection of essays called "Ex Parte Milligan Reconsidered: Race and Civil Liberties From the Lincoln Administration to the War on Terror" (2020). This is from my forthcoming review:

[Michael Les Benedict, one of the book's contributors,] also explains the difference between Justice Davis’ majority opinion and Chief Justice Chase’s concurrence. All the justices agreed that, under the Constitution, when civilian courts were open, the president could not authorize the trial of a civilian by a military commission. The majority opinion went further, however, saying that Congress could not have authorized such a tribunal either. Chase disagreed, finding that Congress could authorize the use of military commissions against civilians. Chase’s concern was Reconstruction. He noted that, in the South, “courts might be open and undisturbed in the execution of their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators.” In other words, state courts in the former Confederacy would not protect the former slaves from violence.

Only 2 are worth honoring for their services as CJ, Marshall and Warren.

You literally have to hate Black people to equate these two people. One was an enslaver, and one was a liberator of Blacks.

Actually, neither of them should be honored, though, because Warren fought for the internment of Japanese and Japanese Americans.

Honoring and worshipping these sorts of people is pure white privilege.

Finkelman writes that Marshall not only owned slaves, but, in his 34 years as chief justice, he never wrote an opinion "supporting black freedom or attempts to punish slave traders."

One of the dirtiest little secrets of constitutional history is that Marshall and Taney were actually much closer ideologically than a lot of legal historians like to portray them.

John Marshall as a justice is worthy of respect as a whole.

I don't respect rapists. But then, I actually care about the lives of Black people, unlike a lot of white liberals.

Having said all that, judged purely as a manager of the Court, yes, Marshall was one of the most competent and important Chief Justices (and I think Joe correctly identifies who some of the other competent and important Chief Justices were).

But the less we honor slaveholders, the better.

"Marshall and Taney were actually much closer ideologically than a lot of legal historians like to portray them."

Finkelman's "Supreme Injustice" is devoted to Marshall, Story, and Taney. Story started as an opponent of slavery, but he became increasingly deferential to it, culminating in Prigg v. Pennsylvania (1842), which Finkelman finds to be "as proslavery as anything Chief Justice Taney would conjure up in the Dred Scott case" and arguably "more important than Dred Scott."

Well, that's an interesting twist. I had NOT been aware that Taney had inherited slaves, and had not only emancipated them decades before the infamous Dred Scot ruling, but had provided pensions for the ones who'd been too old to find jobs.

I guess real world people are rather more complex than historical cartoon cutouts.

Finkelman writes, "As a young lawyer Taney manumitted most (but not all) of his slaves, presumably because as an urban lawyer and politician he needed only a few personal servants. The fact that he freed some slaves--rather than selling them--suggests that the young Taney was uncomfortable treating people as merchandise. But the fact that he kept some slaves indicates that he never separated himself from slaveholding or the system of slavery." (p.7)

Finkelman adds, "Although his biographers claim he manumitted his own slaves, he freed only some of them. In the course of his life, slaves served his family in households in Frederick, Baltimore, and Washington, D.C. Eventually he would inherit more land and slaves from his father." (p. 179)

I agree with Dilan that the less we honor slaveholders the better, but I find monuments to slaveholders placed at the cite of worthy and important institutions to which they played key roles in (Marshall at the Court, Jefferson at UVA, etc.,)to be less morally objectionable than for the same placed in a public square or place of general honor.

"I guess real world people are rather more complex than historical cartoon cutouts."

Lol, the least self aware man in the universe strikes again!

The inability to hear an ironic tone of voice over text strikes again.

Wow, if he keeps up at that rate he'll be able to buy that propaganda he spoke of at point of origin! Lol.

Bushrod Washington had slavery issues too. Shall see how the book (which sounds interesting) will cover them.

I figure we will be seen as pretty bad in 2220 too [a lot of people today think we are pretty bad] & in various ways they will be right, but I'll probably be dead.

Joe, maybe. But one reason why I find it so problematic that some people are so dead set on honoring slave owners and supporters of slavery is that even at the Founding there were so many important figures who did not have slaves and opposed it. We wouldn't be short on heroes if we stopped whitewashing slavers history to honor them.

"I figure we will be seen as pretty bad in 2220 too"

That's my expectation, too. There will be something they think we're monstrous for doing, or failing to do. And be sure there will have been no lack of people agreeing today, whatever it is, just as their were abolitionists all through history.

Will it be abortion? Failing to cryonically suspend the dying, instead of letting them rot? The only certainty is that it will be something.

We have people now who oppose the evils of the day. The criminal justice system comes to mind. It is very cruel and results in many harms. A minority is against it. Other things come to mind. Treatment of non-human animals might be one thing in the future too. And, again, there are people against it. I think some humility should be placed on that.


Prigg (the slavecatcher) v. Pennsylvania (for having a far from extreme anti-kidnapping law to protect its own people) is a prime case of the Fugitive Slave Clause given more bite than necessary. Chase et. al. tried various methods, which if slavery still existed later on might have been accepted by different court personnel, to apply the Constitution to protect slavery as a narrowly as possible.

Even in Prigg, Taney thought Story didn't go far enough to clarify the power and responsibility of states to help re-capture slaves. Story left open the power of states to refuse to be involved with the rendition of fugitives. Taney accepted that later on in Kentucky v. Dennison, but it was seen as out of date by the 1980s in an opinion written by Thurgood Marshall.

I'm unsure how to compare this to Dred Scott, especially if that opinion is taken in its strongest form regarding black citizenship. Events passed it by too, including the 14A. The territory aspect of Dred Scott was likely to be narrow in reach though it could have affected the freedom of some blacks (some of those cases covering events that happened a long time ago).

Anyway, Margaret Morgan (the slave) and her children (one or more who very well might have been legally free, but basically ignored by Story) was from what I can tell never heard from again. Her husband, a free black (Jerry Morgan), drowned while trying to find legal assistance to get his family back. One account has him accused of theft and maybe he didn't have his papers & he jumped off the boat and drowned.

"We have people now who oppose the evils of the day."

Of course, and that is my point. While posterity may find some practices common today to be atrocious there will be people of our times who were opposed to them. I hope posterity picks those people to honor, to do otherwise would be to devalue the values of posterity.

John Marshall is honored for various things. There were other lawyers and pols, so we can say his slavery means his work as a lawyer, a ratifier of the Constitution or a member of the Adams Administration is overwhelmed by him being a slave owner.

But, he's a pretty special figure in the Supreme Court. Same applies to James Madison. Slaveowner. Rapist, if one wants. Should we not honor his work regarding the Constitution, religious liberty and the Bill of Rights? Same applies with Washington. I'm unsure how many fairly marginal slaveowners are honored much, except as fairly specialized cases.

We shouldn't whitewash. We should note the problems of Madison et. al. But, the same thing applies today. People in the future will look at various people treated as heroes and note how they did little or even were part of the system they see as bad per the norms of the day. They also might honor our Madisons and Marshalls for the specific good things they did that stands out.

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