Introduction
In 1915, a few months into the great European war, President Woodrow Wilson and former President Theodore Roosevelt delivered speeches defining and commending ‘Americanism.’ The term itself dates back to Wilson’s distinguished predecessor at Princeton College, John Witherspoon, who used it to refer to the dialect of the new independent nation. By the early 1800s Thomas Jefferson was already brandishing it in the ideational sense, associating it with the rule of reason. But by 1915 any such term might easily carry associations with nineteenth-century theories on nationality and race. Wilson and Roosevelt both understood this. They also understood that the war was in some sense the result of the heightened sense of nationality among rival Europeans, and that this national sense underlay the contest between political regimes—commercial republicanism and military monarchism—that were themselves held to be expressions of national characters.

Wilson and Roosevelt proposed to unify ethnically and racially diverse Americans in order to enable the United States to assume an elevated station among the nations of the earth. In so doing, they spoke to, and about, European-Americans, scarcely mentioning African-Americans. I shall examine the content of the two speeches in three ways: the very different conceptions of American greatness set forth by the two statesmen in the body of their work; their divergent policies toward African Americans; their largely convergent policies toward European Americans.

I. Wilson’s Americanism
In his speech accepting the Democratic Party presidential nomination in 1912, Woodrow Wilson deployed a rhetoric of inclusion. “You see that these multitudes of men, mixed of every kind and quality, constitute somehow an organic and noble whole, a single people, and that they have interests which no man can privately determine without their knowledge and counsel. That is the meaning of representative government itself.” In a contemporary letter he assured an Italian-American leader that “The Democratic party would not, without forgetting its very origin, advocate an illiberal policy in the matter of immigration. The party may almost be said to have originated in opposition to the Alien and Sedition Laws….” Regulation of immigration, yes: Wilson advocated a policy similar to that advanced by Henry Cabot Lodge, who proposed to exclude the diseased, the defective, and those “unable to support themselves.” But illiberality, no. [1] However, as his opponents were quick to trumpet, in his voluminous scholarly writings Wilson had not treated immigrant peoples with uniform courtesy. “The huge stream of immigrants” prior to the Civil War had “deepened that habit of charge, of experiment, of radical policies and bold proposals, which was bringing the people into a frame of mind to welcome even civil war for the sake of a reform.” As recently as his 1902 History of the American People Wilson had exhibited a distinct asperity toward recent immigrants not born of the “sturdy stocks of the north of Europe.” [2] By 1915, ‘hyphenated’ Americans still posed difficulties for any would-be Americanizer, not least in the conduct of foreign policy. German-Americans and German-Jewish Americans tended to favor the Kaiser; so did many Irish-Americans, on the grounds that the enemy of our enemy, the English, is our friend Jews from central and eastern Europe were equally pro-German, detesting the anti-Semitic governments they had fled, which were allied with England and France. The Swedish-Americans of the upper Midwest also detested the Russians and sided with the Germans. Although not classed as hyphenates, Americans of English ancestry of course inclined toward the republics. Propaganda on both sides filled the newspapers. [3]

Wilson distinguished nationality from race, theoretically. In a Princeton letter he had explained that English and American writers mean by ‘nation’ what the Germans mean by ‘volk’: “community of organization, of life, and of tradition. By ‘race’ English and American writers mean what Germans mean by ‘nation’: natio or birth, “community of origin and blood.” Notwithstanding this scholarly distinction, in contemporary politics the two ideas are imbricated: “Race tradition… is for the most part contained in and transmitted by political associations. It is largely dominated by habits of allegiance.” Blood and tradition are “compounded” in modern “consciousness.” [4] Thus in his May 1915 speech on ‘Americanism’ before newly naturalized citizens in Philadelphia, Wilson described America as a nation “founded for the benefit of humanity”—founded for “a great ideal”—but solidly based upon populations drawn from all other nations. But this solidity is only potential unless the immigrants who comprise America perform an act of “will” to adhere to the ideal of service to their new nation. This “consciousness different from the consciousness of every other nation in the world” can bring peace to the world. Breaking with the Hegelian tradition that would overcome the bourgeois spirit with the spirit of the warrior, Wilson urged self-transcendence—the immigrants’ transcendence of their old nations—via the ideal of peace: “[P]eace is the healing and elevating influence of the world and strife is not.” Peace-loving not war-loving is the true thumotic passion: “There is such a thing as a man too proud to fight. There is such a thing as a nation being so right that it does not need to convince others by force that it is right.” [5] In Wilsonian rhetorical heights, the willed ideal trumps blood, even as in Wilsonian political science things are much murkier.

With respect to the warring nations of Europe, Wilson linked the patriotic pride of his motto, “American First,” with his policy of neutrality. Neutrality was “good will”—the same will that naturalized Americans were to share, namely, the will to peace intra-nationally and internationally. America is “the mediating nation of the world”: “We mediate their blood, we mediate their traditions, we mediate their sentiments, their tastes, their passions; we are ourselves compounded of those things.” America no longer sees territory, as it had as recently as Roosevelt’s administration. “We do not want anything that does not belong to us.” Her industrial resources, enhanced by the war, her financial resources strengthened, her consciousness of her nationhood—her “new union”—heightened, America can bring “new leadership” to war-weary Europe. “A nation made up out of the world ought to understand the world. No nation, I venture to say, constituted out of a single racial stock could undertake the task which the United States has undertaken, namely to stand, not for national aggression, not for hostile rivalry, not for the things that stir the antagonistic passions of mankind, but for the rights of mankind of every sort, everywhere.” [6] Woodrow Wilson, the leader of the leading nation, the leader whose mind synthesizes the minds of the citizens of the most grandly comprehensive nation on earth, can serve as a secular prophet of the living, agapic God, the Prince of Peace. [7]

By May 1915, however, Realpolitik was drawing an ever more confining circle around Wilson’s policy of neutrality. As late as January, Wilson and Democratic Party leaders in Congress had agreed to reduce military expenditures in the coming year. Only seven U-boats could patrol the northern Atlantic at any one time; occasional attacks on American merchant shipping did not anger Americans sufficiently to be persuaded by the speeches of Roosevelt, Lodge, and others who advocated military readiness. But passenger ships were another matter. Three days before the ‘Americanism’ speech, the Germans sank the Lusitania, killing 1,198 passengers, including 124 Americans. ‘Preparedness’ spokesmen had their issue. Wilson’s catchy phrase, “Too proud to fight,” could now be described by Roosevelt as “the nadir of cowardly infamy.” Wilson himself rued the day: “That was just one of the foolish things a man does. I have a bad habit of thinking out loud.” By July, Wilson had ordered recommendations for increased military readiness from the relevant cabinet secretaries. Secretary of State William Jennings Bryan, the kindly old Populist-Party peace-horse, resigned in sorrow. In November Wilson presented a $1.6 billion naval construction program to the country. [8]

Wilson’s turn toward military readiness provoked a crisis in the Progressive movement, which, except for its northeastern fraction led by Roosevelt, remained strongly pacifist, convinced that war would bring the reversal of Progressive domestic reforms. Wilson temporized throughout the election year of 1916, and seemed to be negotiating improved relations with Germany. While publicly defending the preparedness drive, he could nonetheless campaign on the slogan, “He Kept Us Out of the War.” Progressives held firm in the November elections. Only after the Germans renewed U-boat campaign of 1917 did Wilson switch his slogan to “War to end war”—a formula that carried many of the Progressives, including organized labor (with the exception of the small, radical IWW) with him. [9] Wilson could now fight the war on essentially the same basis on which he had maintained neutrality. American would still enter at the decisive moment—now with force—and lead the world to a peaceful settlement. Wilson’s ‘Americanism’ argument held firm; if anything, war afforded hyphenates—especially those from the nations forming the Central Powers—the opportunity to prove their Americanness in deeds and not only in the profession of ideals. War became the ultimate melting pot.

Or it did—for European-Americans. Wilson’s ‘Americanism’ speech did not mention African-Americans. The glib explanation is that the speech was delivered to newly naturalized citizens, and none of them were from Africa. African-Americans did not need to be Americanized. They needed civil rights. Still, in a larger sense, Wilson’s silence expressed his preference for treating American blacks as invisible men.

Wilson’s admiring biographer Arthur S. Link duly notes his hero’s mild expressions of sympathy toward blacks, some dating back to the 1880s. [10] And indeed Wilson was no race-baiter of the James K. Vardaman stripe. But neither did he much advance the cause of civil rights. As a historian, he had presented the Confederate cause with considerable sympathy, describing it as an attempt to defend self-government rather than as an attempt to perpetuate slavery. He described slavery primarily as an economic drag on the South, even going so far as to suggest that the “stubborn” defense of the Southern “way of life” might have been a sort of noble sacrifice of the region’s “material interests”—a refusal of the fleshpots of Yankee industrialism. [11]  During Reconstruction, Wilson complained, “unscrupulous adventurers” from the North manipulated “inexperienced blacks” who ruled Southern whites so long as Northern armies enforced “the temporary disintegration of southern society.” The rise of the Ku Klux Klan mean that “one lawless force seemed in contest with the other.” Post-1876, “the determination of the Saxon race of the South that the negro race shall never again rule over them is… not unnatural, and it is necessarily unalterable.” It is not the dark skin of the Negro that offends the Southerner, Wilson maintained, but his dark, unenlightened mind. Compulsory education of Southern blacks can remedy this in time. [12]  One must conclude from Wilson’s argument that this is likely to be a very long time.

In Wilson’s account, Reconstruction reconstructed not the South but forged, for the first time, the American nation. “The law of the Constitution reigned until war came,” a civil war prosecuted by the North in violation of the confederal constitution of the American Founders. “[T]he ultimate foundation of the structure was laid bare: physical force, sustained by the stern loves and rooted predilections of masses of men, the strong ingrained prejudices which are the fibre of every system of government”—surely not the ‘ideals’ of natural-rights equality propounded by Jefferson and Lincoln. The war over and Reconstruction exhausted—the deconstruction of constitutionalist illusions completed—”the real revolution was not so much in the form as in the spirit of affairs.” Now, “statesmen knew that it was to be their task to release the energies of the country for the great day of trade and of manufacture which was to change the face of the world; to ease the processes of labor, govern capital in the interest of those who were its indispensable servants in pushing the great industries of the country to their final value and perfection, and make law the instrument, not of justice merely, but also of social progress.” “A citizenship of the United States was created,” founded not on the weak reed of natural-rights constitutionalism but on the strong historical tide of economic progress. “It is evident that empire is an affair of strong government, and not of the nice and somewhat artificial poise or of the delicate compromises of structure and authority characteristic of a mere federal partnership.” The “national spirit” arose from the detritus of the Founders’ constitutionalism. [13] Although Wilson made favorable remarks about Lincoln, he is in a sense Lincoln’s opposite, replacing the natural-right foundation of American constitutionalism with historicist teleology. The slaughterbench of history served as prelude for the most glorious idealism, an idealism solidly grounded in economic life. So it has been for America. So it shall be for the world of the Great War and after.

In such a time, is it any wonder that African-Americans were regarded by Wilson as no more than annoying details? In his mind, blacks were still in tutelage during a period when the fate of all humanity was being settled. At best, they were to be placated. During the 1912 election campaign, Wilson met with representatives of the National Independent Political League of Washington—actually a Democratic Party organization—and told them, “You may feel assured of my entire comprehension of the ambitions of the negro race and my willingness and desire to deal with that race fairly and justly.” Such ambiguous assurances swayed W. E. B. DuBois and others to back Wilson—Roosevelt had meanwhile capitulated to Southern interests at the Progressive Party convention. Democrats spent some $50,000 in New York to win the votes of African-Americans there, arguing that blacks had no profited from their loyalty to the Republican Party. Arthur S. Link contends that in the end it is likely that most African-Americans voted for Taft, not Wilson or Roosevelt, given the faithful support of black Americans for the party of Lincoln up until that time. [14]

Whatever his intentions, once in office Wilson had to face the political facts. Southern Progressives were anything but progressive on race issues—or rather they were, if one defines Progressivism in terms of ‘race theory,’ as many did. Wilson allowed several cabinet officers to impose segregation within their departments for the first time since the Civil War. Black postmasters were swept from office throughout the South. In a showdown meeting with Oswald Garrison Villard of the NAACP, Wilson could only claim, lamely, that segregation in federal employment was “in the interest of the colored people, as exempting them from friction and criticism in the departments.” To the hapless William Monroe Trotter of the National Independent Political League, Wilson intoned, “We are all practical men.” [I]t takes the world generations to outlive all its prejudices”—which is true enough, but not quite on point. “It is not a question of intrinsic equality, because we all have human souls. We are absolutely equal in that respect. It is just at the present a question of equality—whether the Negro can do the same things with equal efficiency. Now, I think they are proving that they can. After they have proved it, a lot of things are going to solve themselves.” One area in which that demonstration might have been furthered with Wilson’s help was in the implementation of the Smith-Lever Act, which provided for farmers’ instruction in soil conservation, crop diversification, and other farming practices. The program never quite got to black farmers, as that comparative radical, Booker T. Washington, rightly observed. [15]

In his second inaugural address, weeks before coming before Congress to request a declaration of war, Wilson again invoked national unity. “We are being forged into a new unity amidst the fires that now blaze throughout the world. In their ardent heat we shall, in God’s providence, let us hope, be purged of faction and division, purified of the errant humours of party and of private interest, and shall stand forth in the days to come with a new dignity of national pride and spirit.” After America’s entry into the war, and despite black participation in the war effort, racial antagonism continued with little opposition from the Wilson Administration. Pleas for intervention to protect blacks in a July 1917 St. Louis race riot went unheeded. Lynchings rose from thirty-eight to fifty-eight in 1918, at which point the Administration, alarmed that such unrest might disrupt the war effort, issued a proclamation condemning racial violence. Seventy blacks were lynched in 1919. At the Versailles Peace Conference in April 1919, Wilson opposed a move to require racial equality in each nation that would become a member of the League of Nations. “My own interest, let me say, is to quiet discussion that raises national differences and racial prejudices. I would wish them, particularly at this juncture of the history of the relations with one another, to be forced as much as possible into the background.” [16] Increased local violence against blacks should not be laid at the doorstep of the Wilson Administration, except perhaps in the vague sense that the Administration was perceived as ‘Southern’ in its orientation, and so may have increased the insouciance of race-baiters. But Wilson did nothing effectively to discourage such incidents.

Roosevelt’s Americanism
Roosevelt’s ‘Americanism’ speech, delivered five months after Wilson’s echoed themes he had sounded consistently throughout his career. Roosevelt had no need to put a thumotic face on pacifism because he had no use for pacifism in the first place. Not peace but strife forms nations. “The law of worthy national life, like the law of worthy individual life, is, after all, fundamentally, the law of strife. It may be strife military, it may be strife civic; but certain it is that only through strife, through labor and painful effort, by grim energy and by resolute courage, we move on to better things.” [17]  In 1890 he read Albert Thayer Mahan’s The Influence of Sea Power in History, 1660-1763, which became a seminal book in ruling circles in America, Britain, Germany and Japan. Mahan was one of the first military strategists to grasp what we now call ‘geopolitics’: the idea of the world as one system, its parts all connected directly or indirectly, and therefore open to the projection of military, political, and economic power worldwide by nations with adequate technology and manpower. American commercial republicanism could for the first time be something other than a mere exemplar to other nations; it could enforce the Monroe Doctrine against them, challenge British naval supremacy on the high seas, open new markets in Asia. [18]

From that time forward, Roosevelt thought geopolitically. The German invasion of Belgium was a moral outrage, but Roosevelt understood that “the men who shape German policy take the ground that in matters of vital national moment there are no such things as abstract right and wrong, and that when a great nation is struggling for its existence it can no more consider the rights of neutral powers than it can consider the rights of its own citizens as these rights are construed in times of peace, and that everything must bend before the supreme law of national self-preservation. Whatever we may think of the morality of this plea, it is certain that almost all great nations have in time past again and again acted in accordance with it.” To this neo-Darwinian Realpolitik Roosevelt added the geopolitical point that Belgian neutrality had held the balance of power in western Europe. By invading Belgium, the Germans had outflanked the French and aimed a sword at Britain’s heart. German domination of Europe would in turn threaten the United States. Not only is it “a wicked thing to be neutral between right and wrong” (Roosevelt wrote, echoing Lincoln and scoring Wilson), it is also a stupid thing. Geopolitics permits no neutrals. And in moral terms, courage scorns the “base materialism” of “the coward who excuses his cowardice, who tries to cloak it behind lofty words, who perseveres in it, and does not appreciate his own infamy.” “The worst infamies of modern times—such affairs as the massacres of the Armenians by the Turks, for instance—have been perpetrated in a time of profound international peace, when there has been a concert of big Powers to prevent the breaking of this peace, although only by breaking it could the outrages be stopped. Be it remembered that the peoples who suffered by these hideous massacres, who saw their women violated and their children tortured, were actually enjoying all the benefits of ‘disarmament.’ otherwise they would not have been massacred….” [19] The moral distinction between a national massacre and a national conquest—the one evil, the other sometimes good, a sign of ennobling strife—evidently may be seen in the lack of resistance in the first case, courageous self-defense in the other.

American needs ‘Americanism’ because “the patriotism of the belfry”—localism, sectionalism, “the spirit of provincial patriotism”—causes not only strife but disintegration, as seen in ancient Greece, medieval Italy, and modern South America. Smallness of territory comports with smallness of soul. American nationalism despises Know-nothingism, socialist class conflict, bourgeois money-grubbing, and ethnic divisiveness. “There is no room for the hyphen in our citizenship.” The children of immigrants “must forget their Old World national antipathies and become purely Americanized…. This is not to blind us at all to our own shortcomings; we ought steadily to try to correct them; but we have absolutely no ground to work on if we don’t have a firm and ardent Americanism at the bottom of everything.” Although he did not say so publicly, for Roosevelt Americanism was as much for old American stocks as for new. That is, whereas the new immigrants needed assimilation, the old immigrants needed toughening. “We [old-stock Americans] are barbarians of a certain kind, and what is most unpleasant we are barbarians with a certain middle-class, Philistine quality of ugliness and pettiness, raw conceit, and raw sensitiveness. Where we get highly civilized, as in the northeast, we seem to become civilized in an unoriginal and ineffective way, and tend to die out”—commit what Roosevelt elsewhere and famously called “race suicide.” [20]

By ‘Americanism’ Roosevelt meant primarily the natural and Constitutional rights of the American founding and their reciprocal obligations, along with patriotism and—here is the Progressivist element—”the democratization of industry so as to give at least a measurable equality of opportunity for all.” “Everything is in-American that tends either to government by a plutocracy, or government by a mob”—that is, anything that tends toward unjust divisiveness. By ‘preparedness’ Roosevelt meant preparedness “of the soul no less than of the body”: keeping Americanist principles of natural and constitutional right “steadily before us” while “train[ing] ourselves in practical fashion so that we may realize these ideals.” Preparedness for war increases the chances of obtaining and maintaining a just peace, as Americans learned (on the negative side) in the War of 1812, when Congress declared war but voted against increasing the number of Navy battleships. In his fifth annual message to Congress, Roosevelt had said what he was saying ten years later to the Knights of Columbus: “Our aim is righteousness. Peace is normally the handmaiden of righteousness; but when peace and righteousness conflict then a great and upright people can never hesitate to follow the path which leads toward righteousness, even though that path also leads to war.” The price of “peace at any price” is human and national rights. [21]  Preparedness need to require “Prussian militarism.” The Swiss system of military training will do; national service, for women and men, would form part of high school education and would continue for six months every year for youths aged sixteen to twenty-one. Such service would augment preparedness and national unity at the same time, bringing together youth of all classes and nationalities; it shall be “a potent method for Americanizing the immigrant” and will have “an immense democratizing effect” because rich and poor will serve together. [22]

Unlike Wilson, Roosevelt did mention African-Americans in his 1915 ‘Americanism’ speech. But he made only passing mention, citing slave emancipation during the Civil War. It was as if the race problem had been solved, and its solution served as a model for solving the immigrant problem. Of course, Roosevelt knew very well that the race problem hadn’t been solved. He wrote much more extensively on race than Wilson did, and also had more experience in race relations, traveling to Asia, Africa, and South America as well as Europe. His experience as a self-trained and respected amateur field biologist also put him in a position to think about racial pseudoscience.

Roosevelt endorsed the fashionable Anglo-Saxonism of his time; with Gustave le Bon, he regarded the Anglo-Saxon ‘race’ as uniquely well-fitted to rule itself and others. [23]  According to his friend Owen Wister (a fine novelist but rather hidebound white supremacist from Charleston, South Carolina), Roosevelt doubted Wilson’s claim that self-government eventually would be earned by all races: “We are all unquestionably members of the human race, just as much at the North Pole as at the Equator. And trees are all trees, wherever they grown. But I am prepared to assert that you can give an apple-tree all the time you want and it wants, and it will not produce oranges.” [25]  If this reminiscence accurately reflects Roosevelt’s views, this would reflect a biological racism—essentially polygenicist. But in his actual correspondence with Wister Roosevelt undermined such biologism. “I entirely agree with you that as a race and in the mass [the Negroes] are altogether inferior to the whites…. But admitting all that can truthfully be said against the Negro, it also remains true that a great deal that is untrue is said against him; and that much more is untruthfully said of the white man who lives beside and upon him. Your views of the Negro are those expressed by all of your type of Charlestonians. You must forgive my saying that they are only expressed in their entirety to those who don’t know the facts.” In the same letter, he undercut “the latest scientific theory” of cranial measurement in two ways: by saying that it will “doubtless… be superseded by others” and by pointing out that whites and blacks have skulls much more like each other than either is like the skull of “the Mongolian.” To his English friend Cecil Arthur Spring Rice he remarked that language and race are unrelated. Moreover, the modern Turks are “just as much white people” as any other European nation, but are nonetheless “a curse to Europe” because of their “absolutely alien” creed, culture, historic associations, “and inherited governmental and social tendencies.” “The Turks are ethnically closer to us than the Japanese, but they are impossible members of our international society, while I think the Japs may be desirable additions.” [25]  Roosevelt combined natural-rights morality with Neo-Darwinism regarding international relations and probably, at most, a vague neo-Lamarckianism regarding (biological) race. But ‘nation’ and ‘race’ are often used interchangeably by him, so his Neo-Darwinism, his survival-of-the-fittest ideology, sometimes seems to bleed over into his writings on race relations.

A clearer understanding of Roosevelt’s view of race may be seen when he gets down to cases and discusses specific racial groups. Of these, none interested him more than the Amerindians, whom he had lived among as a young man in the American West in the 1880s.

Roosevelt tells a multicultural story about a Chinook named Ammal, who listened to a white hunter tell of a Chinese laborer who fleeced some Indians at cards. One of them, an Upper Kootenai, killed the card sharp but was never punished, “as it did not seem any one’s business to avenge a mere Chinaman.” “Ammal was immensely interested in the tale, and kept recurring to it again and again, taking two little sticks and making the hunter act out the whole story. The Kootenais were then only just beginning to consider the Chinese as human. They knew they must not kill white people, and they had their own code of morality among themselves; but when the Chinese first appeared they evidently thought that there could not be any special objection to killing them, if any reason arose for doing so. I think the hunter himself sympathized somewhat with this view.” [26]  Whites and Amerindians of a certain type both agree on a sort of rough justice because rough justice exists across the lines of ‘race,’ however defined; Roosevelt conceives of civilizational level more than race as the key determinant of conceptions of justice. ‘Civilization’ is not identical with Anglo-Saxonism, although Anglo-Saxonism is a very good thing. As seen above, the Japanese are civilized but not Anglo-Saxon. The ‘winning of the West’ by Americans has been a victory for civilization won not by the civilized but by civilization’s barbaric advance guard.

“Many of the frontiersmen are brutal, reckless, and overbearing; most of the Indians are treacherous, revengeful, and fiendishly cruel. Crime and bloodshed are the only possible results when such men are brought into contact. Writers usually pay heed only to one side of the story; they recite the crimes committed by one party, whether whites or Indians, and omit all reference to the equally numerous sins of the other.” This error oddly mimics the unsubtle distinctions made on the frontier, where Indians and whites each tend “to hold the race, and not the individual, responsible for the deeds of the latter.” In the 1770s, in the Alleghenies (for example) “a race of peaceful, unwarlike farmers would have been helpless before such foes as the red Indians, and no auxiliary military force could have protected them or enabled them to move westward.” The civilized colonists needed “a living barrier of bold and self-reliant American borderers” for protection. In fact, a pacifist community of Dunkards and an equally peaceful community of Moravian Indians (converted to Christianity by the Quakers) both met the same fate: “Hateful to both sets of combatants, [and] persecuted by both,” each “finally fell a victim to the ferocity of the race to which it did not belong.” A civilization separated from its barbaric roots will weaken and be killed. Roosevelt’s ‘race’ stories reinforce his ‘preparedness’ and ‘Americanism’ urgings, and are represented as illustrative of universal truths that cross racial lines. [27]

The savagery of the Amerindians results not from some innate ferocity but from their socioeconomic order. “The Indians were formidable in warfare… because they were so few in numbers. Had they been more numerous they would perforce have been tillers of the soil, and it would have been far easier for the whites to get at them.” They could fight the most effective sort of guerrilla warfare, as “there was little chance to deliver a telling blow at enemies who had hardly anything of value to destroy.” By contrast, the Navajo of the late nineteenth century were an agricultural people, “stand[ing] far above mere savagery”; “everything possible should be done to help them help themselves.” Compared with the neighboring Indian tribes, they had already made a long stride in cultural advancement when the Spaniards arrived; but “they were shrinking back before the advance of the more savage tribes.” Roosevelt concludes, “As always when I have seen Indians in their homes, in mass, I was struck by the wide cultural and intellectual difference among the different tribes, as well as among the different individuals of each tribe, and both by the great possibilities for their improvement and by the need of showing common sense even more than good intentions if this improvement is to be achieved. Some Indians can hardly be moved forward at all. Some can be moved forward both fast and far.” Such differences could be seen among the three main groups of Amerindians in the Appalachian Confederacies of the 1770s: the Iroquois were the most warlike; the ‘Appalachians’ of the southern Alleghenies (Creeks and Cherokees) were non-nomadic, “barbarous, rather than in the merely savage state”; the Algonquins were in-between. [28]

Roosevelt accordingly wasted little sympathy or antipathy on the conquered Amerindians or the conquering frontiersmen who, by the time he wrote, were also vanishing. “[T]he world would probably have gone forward very little, indeed would probably not have gone forward at all, had it not been for the displacement of submersion of savage and barbaric peoples as a consequence of the armed settlement in strange lands of the races who hold in their hands the fate of the years. Every such submersion or displacement of an inferior race, every such armed settlement or conquest by a superior race, means the infliction or suffering of hideous woe and misery. It is a sad and dreadful thing that there should be such throes of agony; and yet they are the birth-pangs of a new and vigorous people.” Roosevelt looks at “savage and barbarous peoples” rather as Marx (an earlier Victorian) looks at the bourgeoisie, albeit with perhaps a shade less moral dudgeon. “The Indians should be treated in just the same way that we treat white settlers. Give each his little claim; if, as would generally happen, he declined this, why let him share the fate of thousands of white hunters and trappers who have lived on the game that the settlement of the country has exterminated, and let him, like these whites, who will not work, perish from the face of the earth which he cumbers. The doctrine seems merciless, and so it is; but it is just and rational for all that. It does not do to be merciful to a few at the cost of justice to the many.” [29]  Human groups adapt to new circumstances or die.

Roosevelt’s accounts of blacks in Africa and Mississippi are entirely consistent with these views. In Africa, his hunting companions “showed a courage and loyalty and devotion to duty which would have put to shame very many civilized men”; at the same time, “most of them were like children, with a grasshopper inability for continuity of thought and realization of the future.” These characteristics are cultural, not innate. Here as among the Amerindians, tribes range from “pure savages” to “races of a higher type” at “the upper stages of barbarism.” In Uganda, “the chief task of the officials of the intrusive and masterful race must be to bring forward the natives, to train them, and above all to help them train themselves, so that they may advance in industry, in learning, in morality, in capacity for self-government—for it is idle talk of ‘giving’ a people self-government.” Similarly, on a hunting trip to Mississippi, Roosevelt reports: “These negroes of the Black Belt have never had the opportunity to develop beyond a low cultural stage. Most of them with us were kindly, hard-working men, expert in their profession.” For them he recommended a Booker T. Washington-like program of education, self-help, and law-abidingness. To Roosevelt’s neo-Darwinian eye, such (to us) modest efforts are the realistic alternative to racial extermination. The “mercifulness” of the dominant (in this case white) race “would disappear instantly if any of the inferior races began to encroach” upon them in any violent way. Violence had already occurred in local areas of the South, in response to “insurrectionary movement[s]” by blacks, and in the frontier West. “Of course the central or home population… would always clamor” against such warfare, “but if [an insurrection] became sufficiently strong to jeopardize white control I think this clamor would be hushed, and it would certainly be disregarded.” [30]

Roosevelt’s conception of Americanism, based as it was on natural right as conceived by the American Founders, excluded the worst forms of racial prejudice. For example, as a Northerner and a Republican, Roosevelt felt no need to write an apology for slavery, “a grossly anachronistic and un-American form of evil.” In a children’s history book he co-authored with Henry Cabot Lodge, he celebrated Colonel Robert Gould Shaw, commander of an African-American regiment during the Civil War, who defied “the prejudice against the blacks” that “was still strong even in the North.” The Confederate general’s order “to bury [Shaw] with his ‘niggers,’ which ran through the North and remained fixed in our history, showed, in a flash of light, the hideous barbarism of a system which made such things and such feelings possible.” Roosevelt himself commanded black troops in Cuba in 1898, “who did as well as any soldiers could possibly do.” [31]

At the beginning of his first term as president, Roosevelt approached white-black relations with blunt modesty: “I have not been able to think out any solution of the terrible problem offered by the presence of the negro on this continent, but of one thing I am sure, and that is that inasmuch as he is here and can neither be killed nor driven away—treated like many of the Indians—”the only wise and honorable and Christian thing to do is to treat each black man and each white man strictly on his merits as a man, giving him no more and no less than he shows himself worthy to have…. [I]f I am , then all my thoughts and beliefs are wrong, and my whole way of looking at life is wrong…. I do not intend to offend the prejudices of anyone else, but neither do I intend to allow their prejudices to make me false to my principles.” [32]. These last brave words played out to some degree in practice. Roosevelt’s time in the White House saw several collisions with the race issue: his October 1901 dinner with Booker T. Washington, which agitated Southern newspaper editors for months thereafter; his closing of the Indianola, Mississippi post office after local whites forced the resignation of Mrs. Minnie M. Cox, the black postmaster; the appointment of Dr. William D. Crum to the position of collector of the Port of Charleston in 1902. In each of these incidents Roosevelt acquitted himself honorably, at one point lecturing the Charleston mayor that “the question raised by you [concerning the Crum appointment] is simply whether it is to be declared that under no circumstances shall any man of color, no matter how upright and honest, no matter how good a citizen, no matter how fair in his dealings with all his fellows, be permitted to hold any office under our government. I certainly cannot assume such an attitude, and you must permit me to say that in my view it is an attitude no man should assume, whether he looks at it from the standpoint of the true interest of the white men of the south or of the colored men of the south—not to speak of any other section of the Union.” Roosevelt vigorously and lengthily denounced lynching in a letter to Governor Winfield Taylor Durbin of Indiana on the grounds that lawlessness must not be tolerated; his rough treatment of the black soldiers of the 25th U. S. Infantry after violence committed in Brownsville, Texas in 1906 was the opposite side of the same coin, in his view. [34]

Roosevelt could not understand the racial animosity of Southern whites as expressed in their overheated rhetoric in response to the Washington, Cox, and Crum incidents. “[A]s regards the race problem in the South I have been greatly puzzled,” he wrote to the venerable liberal Carl Shurz, who had complained about Southerners’ effectual nullification of the Civil War amendments to the Constitution. “I do not mean that I was puzzled as to whether what I did was right”—and indeed he rarely was—”for I have never been clearer about anything. But I have been greatly puzzled to account for the yell of bitter anger caused by my action, and I have found it difficult to know how far I ought to go at certain points, and exactly what I ought to say.” In his last years as president he continued to insist in public speeches that whites and blacks in American would rise or fall together, and that justice should be done to individuals regardless of race. [34]

In the 1912 presidential election campaign, however, Roosevelt sacrificed much of the good will he had built up on racial issues. Although many Southern blacks initially joined the new Progressive Party, Roosevelt’s chief Southern adviser, John M. Parker of Louisiana, persuaded him that the party could never get anywhere in the region by appealing to black voters. Roosevelt attempted to please white Southern Progressives by excluding Southern blacks from the Progressive Party convention. At the same time, Roosevelt welcomed Northern blacks to the convention. During the subsequent campaign, he lauded the Progressives’ “good faith” and “entire frankness and sincerity” toward African-Americans. Predictably, his machinations gained him nothing among whites or blacks. [35]  By the time of the 1915 ‘Americanism’ speech, Roosevelt had become, if not a lonely figure in American public life, a man of much reduced popularity, advocating preparation for intervention in the European war to a people who were still profoundly isolationist. Unlike Wilson, he had remained quite consistent in his views on race and nation, but also unlike Wilson he was in large measure unwilling to adjust to ever-shifting public opinion. The new “racial type” or nation, the American, had proved himself too bourgeois for Roosevelt’s arguments, and Southerners had proved themselves too recalcitrant to embrace Americanism as Roosevelt defined it.

 

Conclusion

Wilson and Roosevelt both spoke for the nationalism, although not for the nativism, current in post-Civil War America. As John Higham observes, nationalist sentiments reacted to labor-capital strife and immigration. [36]  Nationalism also probably represented an attempt to heal the lingering injuries of the Civil War and Reconstruction. Both Wilson and Roosevelt were acutely conscious of those injuries. Wilson was the first Southern president since the war; Roosevelt repeatedly umped his head against intractable Southern ‘difference.’ The careers of both men illustrate the constraints that public opinion places on political actors, even those noteworthy for bold invocations of ‘leadership’ and ‘stewardship.’

Examination of the complete published writings of Wilson and Roosevelt confirms Higham’s account of the ‘Americanization’ movement as an event that remained for the most part within the scope of political liberalism [37], although it is well worth remarking that the moral foundations of that liberalism were shifting from natural to historical rights. This is especially noticeable when American is contrasted with the contemporary regimes in Europe, liberal and illiberal alike. The presence of large immigrant populations in the United States required a mixture of rousing rhetoric about ‘American ideals’ with a simultaneous moderating rhetoric of inclusiveness. This duality of the rhetoric reflects the ‘hyphen’ itself; to dissolve the hyphen one must not let (for example) the word ‘German’ slip too far into a pejorative connotation, lest such new Americans be goaded into further collaboration with their country of origin.

In this effort of the 1915-1918 period, both Wilson and Roosevelt tended to treat African-Americans as invisible men and women. Earlier, as president, Roosevelt had taken some tentative steps toward advancing black interests—steps he could afford to take because Republicans weren’t getting many votes in the South, anyway. After the 1912 debacle in which he reversed his field, he kept his mouth shut on race, preferring to campaign for ‘preparedness,’ comprehensively conceived as Americanism.

As a Southern Democrat, Wilson operated under still tighter constraints. He seems not to have been much discomfited by these constraints. Whereas Roosevelt publicly endorsed much of the Booker T. Washington program—putting himself rather in the better portion of white American politicians of the period—Wilson did not even go that far. Most disappointing was his failure to reverse segregation orders governing federal workplaces, orders enacted by his own cabinet officers.

Unlike the Civil War and the Second World War, World War I did little to improve race relations in America. This was so because World War I was prosecuted by Americans of the generation born around the Civil War who came of age during Reconstruction and the backlash against Reconstruction. Republicanism being only as good as the republicans who compose it, elected politicians had very little room to maneuver on race issues, given the sectional realities of American politics. Reaching out to immigrants did nothing to make this better; most immigrants were not in the South, and most immigrants had no affection for African-Americans, with whom they competed for jobs. The ‘melting pot’ of pre-war and wartime preparedness rhetoric, designed for European-Americans, may well have helped to achieve its intended purpose, but that purpose did not include justice for African-Americans, which was neither a priority for white politicians nor a concern of ordinary white citizens at the time. Disenfranchised by post-Reconstruction restrictions, African-Americans lacked the political and economic power to make racial justice a concern, over and above whites’ intentions.

Significant improvements in race relations had to await shifts in public opinion that accompanied demographic and socioeconomic shifts, some of which (e.g. black migration to Northern cities) began during the war. In the wake of the Great Depression, the construction of a powerful national state that eventually overruled state-sponsored Jim Crow laws, along with factionalism among Southern elites, gave New-Deal progressives far better opportunities than did the circumstances of 1900-1920.

 

Notes

1. Speech Accepting the Democratic Nomination, Sea Girt, New Jersey, August 7, 1912, Link 1966-95 (hereinafter citied as PWW), 25.7; Letter to Anthony Geronimo, August 16, 1912, PWW 25. 40-41. A few years later, Wilson would invoke the remaining piece of the Alien and Sedition Act, the Alien Enemies Act, as soon as war was declared in 1917 (Higham 1955, 210).
2. Wilson 1961, 141; Link 1947-65, I. 381; Clements 1992, 20. See also Higham 1955, chapter 7.
3. Link 1947-63, 3. 23.
4. Notes for Lectures in a Course on the Elements of Politics, March 1898, PWW. 10. 471.
5. Compare Friedrich Nietzsche: Human All Too Human, II. section 284, “The means to real peace.”
6. Remarks to the Associated Press, New York, New York, April 20, 1915, PWW. 33. 38-39; An Address on Preparedness to the Manhattan Club, New York, New York, PWW. 35. 169-170; “America’s Opportunity,” unpublished essay, July 1917, PWW. 37. 500-501; Address to New Citizens, Chicago, Illinois, October 19, 1916, PWW. 38. 490-491.
7. On Wilson’s Christianity—specifically, Presbyterian Christianity, the Christianity of the ‘secular saint’—see Link 1965 and Link 1971, passim.
8. Link 1947-65, 3. 358, 366-375,420-425; Link 1954, 174-179; Cooper 1983, 407 n. 3; Heckscher 1991, 360-366.
9. Link 1947-65, 4. 26; Link 1954, 180-181; Cooper 1983, 298; Mayer 1958, 346-350.
10. Link 1971, 29-30.
11. Link 1971, 29-30; Wilson 1961, 110-113, 117; “John Bright,” essay, March 6, 1880, PWW. I. 618-619; “Marginal Notes,” July 19, 1880, PWW I. 664-665; Address to the New York Southern Society, Washington, D. C., December 12, 112, PWW. 25. 596; Remarks to the Confederate Veterans, Washington, D. C., June 5, 1917, PWW. 42. 451-452.
12. Wilson 1961, 222-224; Wilson 1906, 4. 58-59, 64; “Stray Thoughts from the South” (unpublished essay), February 22, 1881. PWW. 2. 28-29.
13. “The Reconstruction of the Southern States,” essay, March 1900, PWW. 11. 460, 466, 473-479; Wilson 1906, 5. 300.
14. Link 1947, I. 502, 505; Link 1971, 259-271.
15. Link 1947, 2. 248; Link 1954 64-65; Clements 1992, 45-46; 59-60 (on Booker T. Washington’s reaction); Remarks by Wilson to William Monroe Trotter, PWW. 31. 301-303.
16. Second Inaugural Address, WPP. 41. 335; Clements 1992, 160; Remarks Upon the Clause for Racial Equality, Paris, France, April 11, 1919, WPP. 57. 268.
17. “America’s Part in the World’s Work,” Speech at Lincoln Club Dinner, New York, New York, February 13, 1899, Hagedorn 1923-26 (hereinafter cited as WTR) 16. 475.
18. See Burton 1997, 56-57. Although Roosevelt’s foreign policy was and is often called ‘the policy of the big stick,’ and is associated with international aggression, Roosevelt himself denied this, reminding his readers that the full slogan was “Speak softly and carry a big stick.” “[W]e lay equal emphasis on the fact that it is necessary to speak softly; in other words, that it is necessary to be respectful toward all people and scrupulously to refrain from wronging them….” (America and the World War [1916], WTR 20. 30.) On balance, Roosevelt historians are inclined to agree, pointing to Roosevelt’s secret negotiations with Germany over Venezuela in 1902, mediation in the Russo-Japanese War of 1904-05, his participation in the 1906 Algeciras Conference on Morocco, counterbalancing his spectacular acquisition of Panamanian territory for the (Mahanian) purpose of canal-building. “Behind both the appearance and the reality of his public stances, the president led an almost secret life as a sensitive, subtle diplomat” (Cooper 1983, 72-75; see also Buehrig 1955, 151). Roosevelt spoke loudly in public, softly in the back channels.
19. America and the World War (1916) WTR 20. 18; Buehrig 1955, 160-161; Fear God and Take Your Own Part (1916) WTR 20. 239, 322, 363; Autobiography (1913) WTR 22. 606. In a letter to his friend the British ambassador Cecil Arthur Spring Rice, Roosevelt confided: “Wilson is, I think, a timid man physically. He is certainly a timid man in all that affects sustaining the honor and national interests of the United States and justice by force of arms…. He believes that in the course he has followed he will keep the pacifists with him here at home and placate the German vote and the Irish vote…. Furthermore, he believes that whatever sense of injury the British may like to show they won’t show it, that when the time comes they will turn to him for help and that he will then gain great glory as the righteous peacemaker. I think this is very probably a correct estimate of the future on his part. I think it very probable that he will profit by his wrongdoing [because] England and France will find that his own misconduct has made him available for action as a mediator between them and Germany.” (Letter, November 121, 1914, Morison 1951, 8. 841). In promoting military intervention in the war, Roosevelt deliberately chose what he took to be the losing side. (On another claim, we now know Roosevelt was mistaken: genocide can be perpetrated in war as well as in peace, as Hitler demonstrated in the 1940s.)
20. The Strenuous Life (1900), WTR 15. 18, 34; The Great Adventure (1918) WTR 21. 329-330; Letter to Osborne Howes, May 5, 1892, Morison 1951, 8. 278-279; Letter to Cecil Arthur Spring Rice, Morison 1951, 1. 648-649.
21. Letter to S. Stanwood Mencken, January 10, 1917, Morison 1951, 8. 1143-1144; American Ideals (1897) WTR 15. 240-259; Fifth Annual Message to Congress, WTR 17. 346-348.
22. America and the World War (1916), WTR. 20. 104-109; The Great Adventure (1918) WTR 21. 278; Fear God and Take Your Own Part (1916) WTR 20. 297-299.
23. Beale 1956, 27. See also Higham 1955, 10 on Sharon Turner’s History of the Anglo-Saxons.
24. Wister 1930, 362.
25. Letter to Owen Wister, April 27, 1906, Morison 1951, 5. 226; Letter to Cecil Arthur Spring Rice, June 13, 1904, Morison 1951, 4. 832-833.
26. The Wilderness Hunter (1893) WTR. 2. 131-132.
27. Ranch Life and the Hunting Trail (1888) WTR 4. 484-485; The Winning of the West (1889-96) WTR 10. 114-115; WTR 11. 6-7. See also Ibid. 10. 78. For an application of the same lesson to Europe, see “The World Movement,” Lecture at the University of Berlin, May 12, 1910, WTR 14. 275-276.
28. The Winning of the West (1889-1896) WTR 10. 46; WTR 11. 287; A Book-Lover’s Holidays in the Open (1916) WTR 4. 28-29, 39. The founding generation in the United States also distinguished between the ‘savage’ and ‘civilized’ Amerindian nations and tribes, a distinction the Washington Administration followed in dealing with southeastern Indians.
29. The Winning of the West (1889-1896), WTR 11. 389-390; Hunting Trips of a Ranchman (1885) WTR 1. 20-21. Moreover, the very life that Roosevelt himself enjoyed, the life of the cattle rancher, :the free, open air life” that is “the pleasantest and healthiest life in America, is from its very nature ephemeral.” Even “the most powerful ranches, owned by wealthy corporations or individuals,” may not last to the end of the twentieth century. (Ibid. 1. 21.).
30. A Book Lover’s Holidays in the Open (1916) WTR 4. 120, 132; African Game Trails (1910) WTR 5. 4, 363; Gould 1991, 238; Letter to Charles Henry Pearson, May 11, 1894, Morison 1951, 1. 377-378.
31. Thomas Hart Benton (1887), WTR 8. 117; Hero Tales from American History (1895) WTR 9. 141-143; The Rough Riders (1899) WTR 13/ 109-110.
32. Letter to Albion Winegar Touree, November 8, 1901, Morison 1951, 3. 190.
33. Gatewood 1970, 36-38; 63-66, 82, 89, 91-104; Letter to James Adger Smith, November 26, 1902, Morison 1951, 3. 385; Letter to Winfield Taylor Durbin, August 6, 1903, Morison 1951, 3. 540-543; Mowry 1958, 212-213. See also Wister 1930, 117-118.
34. Letter to Carl Schurz, December 24, 1903, Morison 1951, 3. 680; Speech at the Lincoln Day Dinner at the New York Republican Club, New York, New York, WTR 18. 464; Sixth Annual Message to Congress, Washington, D. C., December 12, 1906, 413-415.
35. Link 1971, 244-247; “The Progressives and the Colored Man,” article, August 24, 1912, WTR 19. 412, 415.
36. Higham 1955, Chapter 4.
37. Higham 1955, Chapter 9.

 

Works Cited

Beale, Howard K. 1956. Theodore Roosevelt and the Rise of America to World Power. Baltimore: The Johns Hopkins University Press.

Buehrig, Edward H. 1955. Woodrow Wilson and the Balance of Power. Bloomington: Indiana University Press.

Burton, David H. 1997. Theodore Roosevelt, American Politician. Madison: Fairleigh Dickinson University Press.

Clements, Kendrick A. 1992. The Presidency of Theodore Roosevelt. Lawrence: University Press of Kansas.

Cooper, Jr., John Milton. 1983. The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt. Cambridge: Harvard University Press.

Gatewood, Jr., Willard B. 1970. Theodore Roosevelt and the Art of Controversy: Episodes of the White House Years. Baton Rouge: Louisiana State University Press.

Gould, Lewis L. 1991. The Presidency of Theodore Roosevelt. Lawrence: University Press of Kansas.

Hagedorn, Herman, ed. 1923-26. The Works of Theodore Roosevelt. 24 volumes. New York: Charles Scribner’s Sons.

Heckscher, August. 1991. Woodrow Wilson. New York: Charles Scribner’s Sons.

Higham, John. 1955. Strangers in the Land. New Brunswick: Rutgers University Press.

Hunt, George L., ed. 1965. Calvinism and the Political Order. Philadelphia: The Westminster Press.

Link, Arthur S., ed. 1947-1965. Wilson. 5 volumes. Princeton: Princeton University Press.

_____. 1954. Woodrow Wilson and the Progressive Era. New York: Harper and Row.

_____. 1965. “Woodrow Wilson: Presbyterian in Government.” In Hunt 1965.

_____, ed. 1966-95. The Papers of Woodrow Wilson. 69 volumes. Princeton: Princeton University Press.

_____. 1971. The Higher Realism of Woodrow Wilson. Nashville: Vanderbilt University Press.

Mayer, Arno J. 1969. Wilson vs. Lenin: Political Origins of the New Diplomacy, 1917-1918. Cleveland: New World Publishing Company.

Morison, Elting E., ed. 1951-54. The Letters of Theodore Roosevelt. 8 volumes. Cambridge: Harvard University Press.

Mowry, George E. 1958. The Era of Theodore Roosevelt: 1900-1912. New York: Harper and Row.

Wilson, Woodrow. 1906. A History of the American People. 5 volumes. New York: Harper and Brothers.

_____. 1961. Division and Disunion, 1829-1889. New York: Collier Books.

Wister, Owen. 1930. Roosevelt: The Story of a Friendship, 1880-1919. New York: The Macmillan Company.

 

 

Jonathan Schell: The Time of Illusion: An Historical and Reflective Account of the Nixon Era. New York: Vintage Books, 1975.

 

Upon being told that an unadmired acquaintance was a self-made man, Oscar Levant asked, “Who else would have helped?” This is the dilemma of Machiavelli’s prince: Having created a world of effectual truth, with yourself as its god, how do you know you didn’t botch the job? And if you did, will your confederates help you to recoup, or leave you to twist in the wind? Jonathan Schell’s book provides an American object lesson on a Machiavellian moment, the self-construction and deconstruction of Richard Nixon.

Given its publication almost immediately after the much-encouraged retirement of our Puritan Alcibiades, The Time of Illusion is remarkably penetrating. But it also bears the marks of the heated political atmosphere of the time, and some of the niaiseries one expects from a staff writer for The New Yorker. The argument can now be strengthened in the revisiting, decades later.

Problem: As Machiavelli sees, you can’t be an executive unless you can execute, in the several senses of that word. In a government with an extensive bureaucracy (in America, the post-New Deal government), how can any chief executive actually govern his own branch of government? The much-remarked Nixonian feelings of impotence, persecution, etc. had a real structural foundation. The even more-remarked Nixonian tactics of evasion and deception have the same foundation—or rather, the foundation lends itself to those tactics, practices them itself and invites their practice in others, as countermeasures. To the maxim ‘Tory men, liberal measures’ Nixon added McLuhanite (or pop-Machiavellian) means. Nixon wanted simultaneously to remedy, and to take advantage of, the statist labyrinth—rein in Leviathan and to retreat into its belly.

As far as I can tell, in extreme cases Nixonian problems are only soluble by the route actually taken: Congressional investigation, threat of impeachment. This is a messy and exhausting process, but that’s self-government for you. The Whigs were right: Democracy and distrust go together. Democrats are supposed to harbor “a mistrust of all politicians” (317). When new, technical means of communication—and therefore of deception—are invented, citizens had better figure out how to abuse them, the better to guard themselves from abuse.

My sermon finished, I turn to a critique of Schell. Generally, I think he wants to center his critique on nuclear-weapons issues, but a better center would be the problem of statism. It’s the elephant, not the duck. Many of my criticisms are trivial and pedantic, but mildly interesting nonetheless.

1. Schell could not have had much practical political experience at the time he wrote this book. Example: his hand-wringing over Nixon staffers’ practice of writing letters-to-the-editor in support of administration policies, and having party loyalists sign them and mail them in. This is a longstanding gimmick on all levels of politics. Back in the days when I was paid to do it in Monmouth County, New Jersey, I often wondered who my counterpart on the other side was. Similarly, in deploring Nixon’s attempt to “load the world itself with events that would induce the Democrats turn against one another,” one can only ask: Did Schell ever hear of the New Deal? As his admiring biographer James Macgregor Burns remarked, FDR was a fox as well as a lion. Maybe more fox than lion.

2. Schell writes eloquently about the Constitution, but he doesn’t understand its basis. He refers casually, and incorrectly, to “the sovereignty of the federal government” (133). Notwithstanding the famous New Yorker ‘view of the world,’ even Manhattan is not an outpost of the European state system. James Monroe had it right in his book title: The People, The Sovereigns. Similarly, Schell mis-teaches his readers that “rights are granted to the people, to protect them against abuse of government powers” (157). The Hell they are. Rights are inherent in the people, individually and collectively, then secured by the grantees (or so they hope) when they institute government. Government contradicts its own purpose when it violates those unalienable rights: thus the Americans’ charge that King George III was ‘revolutionizing’ them. Schell wants to be a good Whig, but he doesn’t know how.

3. Schell can’t quite make up his mind on who ‘the people’ are. Were anti-war demonstrators “the nation” (101)? The majority thereof? A harmless is vocal minority that should never have disturbed Lincoln-bedroom dreams? How unpopular was the Vietnam War when Nixon took office? I understand Schell’s reluctance to sully his prose with polling data, and I know he would regard any such data as compromised by the systematic deceptions of the Johnson and Nixon administrations, but some sort of effort needs to be made.

4. Schell frequently claims that this or that Nixonian depredation was unprecedented, extraordinary, remarkable, well-nigh sui generis. I would be interested to know if this is true. I rather suspect that the president’s men perfected techniques not unknown to previous Washington pols. One minor example: After an Australian émigré named Dr. Fred Schwarz established a right-wing organization called the Christian Anti-Communist Crusade, New Yorker foreign policy hero Senator J. William Fulbright had the Internal Revenue Service audit the books. (They found no improprieties.) Tsk, tsk, Senator ‘Arrogance of Power.’ I am not sure that Washingtonians had the right to be shocked, simply shocked, that wiretapping was going on in this place. Senator Barry Goldwater—a tolerably honest pol, if no genius—probably spoke the truth about that.

5. Similarly Schell sometimes writes as if ‘public relations’ had been invented by Nixon in collaboration with Pat Buchanan. Walter Lippmann knew otherwise.

6. As for Nixon’s statement, “the press is the enemy” (55)—well, wasn’t it? How many New Yorker staffers joined in chanting “Nixon’s the One”? No Silent Majoritarians in William Shawn’s shop, I’ll wager. A good example of a fairly typical press-politics tactic may be seen on page 185, where Schell calls attention “once again” to “the affinity of the right-wing strategists in the White House with the left-wing fringe on the streets” (emphasis added). This equation puts New Yorker-ites comfortably in the center of the ideological Downs curve. No such luck!

7. Schell is at his weakest when considering foreign and military policy. He makes Henry Wallace look like a hard-nosed realist. The “linkage” doctrine of the Nixon administration (196) is nothing other than Mackiinder’s geopolitics—a commonplace among U. S. policymakers by 1945, as it had been among the Soviets two decades earlier (and ever after), the Germans throughout the first half of the twentieth century, the British, the French, and pretty much everyone else. The world, Mackinder sees, is a single system; the knee bone is connected to the thigh bone. While this has always been true geographically, as of the turn of the twentieth century it had become true politically, as well, thanks to transportation and communication technologies along with modern techniques of political organization.

It is not enough to talk about the motif of nationalism as if it were an alternative to Mackinderian ideas. What is nationalism without foreigners with imperial designs” The world is not a duck. It’s not an elephant. It’s a flying elephant, a vast Dumbo, alternatively soaring awkwardly in the internationalist/globalist empyrean and thudding to the ground of soil and blood. In the event, the Soviets did exploit U. S. disarray in the 1970s, seeing it as providing an opportunity to push ahead in the Third World—where, like the Americans, they appealed to nationalism and their political doctrines. (A lot of good it did them, but that’s another story.)

What is more, ‘communism’ and ‘democracy’ made two competing claims to nationalism. Democrats said: You can’t have national self-determination without representative government that enables the nation to make determinations. Communists said: Bah! bourgeois democracy is nothing but a superstructural con-game; only the proletarian vanguard can express the will of the nation. In Vietnam, too, many of the people mistakenly concurred with the communists’ line. Elsewhere, they didn’t. Generally speaking, “linkage” was right. Johnson and Nixon failed to see how to apply the doctrine intelligently.

8. Schell makes some unfathomable objections to Nixon’s carrot-and-stick tactic against foreign rivals, calling them contradictory (327 and elsewhere). Well, yes, a carrot is a reward and a stick is a punishment. To use both is not to contradict oneself; it is to recognize the variety of human motives.

9. On nuclear-weapons issues, it is nonsense to imagine that Nixon’s policies brought “the entire world… repeatedly… to the verge of war” (343). Americans and Soviets came fairly close to war in 1962, during the Kennedy Administration—de Gaulle rightly refused to be overly impressed by the posturing, during and after the event—and that was about it. The rest in my estimation was nukes-rattling, for foreign and domestic consumption.

One of the peculiarities of the nuclear arms race with respect to issues of deception may be seen rather in the rhetoric concerning arms build-ups throughout that era. Both sides had a stake in deliberately playing to, and augmenting, the fears of the American public. Because the weapons procurement process is long-drawn-out, the ‘Right’ periodically would warn about missile gaps and present dangers—which were really future dangers, when they were dangers. For  its part, the ‘Left’ tried to frighten people with the Armageddon which was always just around the corner. Both sides were fighting over their share of scarce resources in the New-Deal state. Once the Cold War gave them no cover, the battle shifted to tax cuts on the Center-Right and politics-of-compassion on the Center-Left. Scare tacticians have shifted their focus to the wallet and the child.

Subtract these errors and misjudgments, and Schell still has an unanswerable case against Nixon. Fewer distractions.

“To rational liberty—the cause of mankind. Its friends cannot despair when they behold its champions.”
John Marshall’s toast to the Marquis de Lafayette

 

How the “Great Chief Justice” Conceived of Greatness
Someone—it may have been his fellow Virginian, John Randolph—called John Marshall “that great master of the human heart.” [1] That is an unusual thing to say about a Supreme Court justice, but one of the best things that could be said about any judge. Properly to judge requires mastery of the human heart in two senses. The judge must understand the human being standing before him, and the many kinds of human beings there are. He must know human nature in its variety. And, in order to do justice, the judge must master his own heart, rise above personal interest and passion in applying the law to the case. He must know himself, and govern himself according to that knowledge. When, at the age of seventy-one, Marshall read Jane Austen’s novels, he saluted that other great master of the human heart, his contemporary: “Her flights are not lofty, she does not soar on eagle’s wings, but she is pleasing, interesting, equable, and yet amusing.” [2] Equable: Miss Austen has received no more accurate assessment from anyone more worthy to bestow it—from one great Chief Justice to another.

As a young man and then as a historian in his mature years, Marshall always had before him an example of self-government that did soar on eagle’s wings, a man not only great but conspicuously great: George Washington. As a politician, Marshall was not so much a Hamiltonian but a “federalist of the Washington School.” [3] So he had been, before and after the career of the Federalist Party, as a young soldier in Washington’s army at Valley Forge and the Battle of Monmouth and then as a Supreme Court justice at the height of his powers, years after Washington’s death, writing a history of the Revolutionary War seen through the prism of Washington’s life and character. By contrast, the traitor Benedict Arnold, far from a master of his own heart, was “the slave of his rage,” a man of character on the battlefield who lacked the self-knowledge to see that he lacked the ability to engage in successful financial investing. This “false pride”—lack of just self-assessment—led him into indebtedness that made him vulnerable to the blandishments of the enemy. [4] Washington, “the example of virtuous moderation,” displayed an “unyielding firmness of mind,” a “perfect self-possession under the most desperate circumstances,” enabling him to “struggle against adverse fortune” and win independence for his country. [5] It was precisely these moral qualities that made Washington a great ‘judge’ in his own way: “In his civil administration, as in his military career, ample and repeated proofs were exhibited of that practical good sense, of that sound judgment, which is perhaps the most rare, and is certainly the most valuable quality of the human mind…. Taught to distrust first impressions, he sought to acquire all the information which was attainable, and to hear, without prejudice, all the reasons which could be urged for or against a particular measure. His own judgment was suspended until it became necessary to determine; and his decisions, thus maturely made, were seldom if ever beshaken.” [6] As a result, Marshall writes, “No man has ever appeared upon the theatre of public action, whose integrity was more incorruptible, or whose principles were most perfectly free from the contamination of those selfish and unworthy passions, which find their nourishment in the conflicts of party.” Washington was utterly without duplicity, exhibiting “the rare example of a politician to whom wiles were absolutely unknown.” He was a man of “magnanimity”—literally, a man of greatness of soul, a man whose soul comprehended the virtues of justice, courage, wisdom, and moderation. Washington was also “a real republican,” living proof that the philosopher who denies the congruence of magnanimity and democracy is wrong. [7] In Washington as understood by Marshall we see self-government in an executive—a military commander and president. In Marshall himself we see self-government in a judge, a guardian of the rule of law. In both, we see the defense of self-government as constitutional union.

Great-souled or not, the republican citizen governs himself. Marshall toasted Lafayette, then in his seventies: “To rational liberty—the cause of mankind. Its friends cannot despair when they behold its champions.” [8] Rational liberty is self-government: without liberty, no self-government; without reason, no self-government. In public life, Marshall exhibited self-government throughout the partisan battles of the 1780s and 1790s: “I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly.” [9] In private life, he exhibited self-government no less. After what must have been an excruciating surgery in his old age, Marshall was sitting up in bed writing to his wife the next day: His physician recalled, “I consider it but an act of justice, due to the memory of that great and good man, to state that in my opinion, his recovery was in great degree owing to his extraordinary self-possession and to the calm and philosophical views which he took of his case, and the various circumstances attending it.” [10] On his deathbed, Marshall “met his fate with the fortitude of a Philosopher, and the resignation of a Christian.” [11]

As no less astute a judge than Felix Frankfurter was moved to observe, the great Chief Justice’s celebrated written opinions embody both his ‘self’ and his ‘government.’ “Marshall spoke for the Court. But he spoke.” In so speaking, Marshall never lost his sense of balanced self-government: “Marshall’s boldness was wary.” [12] Marshall’s writing was as well-governed in its way, for its purposes, as Jane Austen’s writing was well-governed in its way, for hers. The prolixity of Marshall can be “seen as a clue to Marshall’s basic strategy as an interpreter of the Constitution,” as “characteristic of a judge who was determined to use constitutional cases as so many opportunities for disseminating ideas, and a way of thinking about them, which would help to propagate his conception of the governmental system ordained by the Constitution. His method, admittedly verbose and repetitious, was part and parcel of a larger design.” [13] The man of greatness of soul designed greatly, mastering his heart and essaying to teach his countrymen better to govern themselves.

 

Self-Government and American Republicanism
In calling Washington “a real republican,” Marshall referred to his mentor’s devotion to the  United States Constitution “and to that system of equal political rights upon which it is founded.” “But between a balanced republic and a democracy, the difference is like that between order and chaos.” Democracy breeds demagogues, men who overturn the laws and disperse governmental energy in factional wrangling. Republicanism breeds patriots, men who “preserv[e] the authority of the laws and maintain… the energy of the government.” [14]  The language echoes The Federalist #10, in which Publius contrasts democracy—a society consisting of a small number of citizens, who assemble and administer the government in person”—with republicanism or representative government—whereby more citizens and territory may be accommodated, rendering factional passions less powerful and thus giving rational, disinterested government the chance to take effect. [15]

Marshall scarcely fit the standard image of the wealthy American federalist. As Albert J. Beveridge explains, Virginians from the rich, tidewater section were ruled by landed oligarchs. The upland counties—poorer, more rural, quite unfashionable in dress and deportment—sought but often did not receive funding for “roads, bridges, and other indispensable requisites of social and industrial life.” The Marshalls came from that region, and Marshall’s lifelong carelessness of attire and awkwardness of carriage fit the type. [16]  In his personal style, Marshall resembled a democrat, even as the rather democratic Jefferson more nearly resembled an aristocrat. But federalist republican he was, citing the state governments framed after the Declaration of Independence as “exhibiting the novel spectacle of matured and enlightened societies, uninfluenced by external or internal force, devising, according to their own judgments, political systems for their own government.” Only Connecticut and Rhode Island, “whose systems had ever been in a high degree democratic,” failed to adopt written constitutions that “prescrib[ed] bounds not to be transcended by the legislature itself.” Legislative dominance comported with democratic leanings in America before 1787; “popular government” that was republican set limits on passionate majorities.” [17]

During the Virginia Ratifying Convention of 1788, Marshall referred to republicanism as “well-regulated Democracy.” Well-regulated democracy consists of “a strict observance of justice and public faith, and a steady adherence to virtue.” In contrast with strict observance of justice, Marshall cited legislatures that tried defendants (even in capital cases, as in the trial of Josiah Philips in Virginia) without allowing them to face their accusers or to cross-examine witnesses. By strict adherence to public faith, Marshall meant a government that does not allow demagogues to force the government to forgive legally contracted debts, a practice endemic in many state legislatures under the Articles of Confederation. [18]

Virtue also suffered in the atmosphere of violent rebellion that ill-regulated democracy fostered. Under the Articles’ quasi-government, Shays’ Rebellion in Massachusetts—”a state I had thought inferior in wisdom and virtue to no one in the nation”—raised questions worldwide as to whether the American Revolution and free governments thereafter established could long endure. “I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself,” Marshall worried in a letter to a friend. [19]  Much different was the stronger federal government under President Washington, which moved rapidly to suppress a rebellion in western Pennsylvania. Even “under a government emanating entirely from the people, and with an administration whose sole object was their happiness, the public mind was violently agitated with apprehensions of a powerful and secret combination against liberty.” Such factionalism, fanned by demagogues, tending “to abolish all distinction between virtue and vice,” and “to prostrate those barriers which the wise and the good have erected for the protection of morals… which are defended solely by opinion,” could only be countered by a strong federal government controlled by representatives of all Americans, not those swayed by local passions. [20]

Marshall consistently sought to moderate the radical-Whiggish inclination to link ‘democracy and distrust.’ In the first year of the Adams Administration, he wrote, “Remember, my countrymen, that the government of the United States is created by yourselves, that those who fill its great departments are chosen by yourselves, that they are your friends, and not your enemies, that their measures must be intended to benefit, and not to injure you.” While “a blind approbation of every governmental act” must “not be countenanced,” citizens should view governmental measures “with a scrutinizing, but not a hostile, eye.” As for control of the federal government itself, each republican citizen is a kind of judge: “If the conduct of the government be arraigned (and arraigned it shall be, so long as various minds shall be variously constructed) let us not condemn because an accusation is made, but let us look temperately into the charge, and exercise our best judgment upon it.” [21]

At exactly that time, the radical democracy of revolutionary France provided Marshall with an object lesson in the malign effects of political passion. Marshall blamed the genocidal slave rebellion  in Santo Domingo on the French ideology, but Exhibit A was of course the Terror in France itself. The exile of his friend Lafayette; the recantation of Thomas Paine himself (“I now despair of seeing the great objection of European liberty accomplished,” given “the tumultuous misconduct” of the revolutionaries); and Marshall’s experiences as an ambassador to a corrupt French government in the aftermath of the revolution: All these convinced him of the dangers of unregulated democracy and of the folly of that most eminent American partisan of the revolutionaries, Thomas Jefferson. In Marshall’s estimation, Jackson lacked a sense of the harshness of political life because Jefferson took too benign a view of the human soul, which in turn made him excessively optimistic in considering the prospects for the more radically democratic forms of democratic republicanism. Decades later, Marshall deemed Andrew Jackson a vulgar, late echo of the unsagacious Monticellian. [22]

In one respect, however, Marshall and Jefferson thought alike on democracy. “In democracies, which all the world confesses to be the most perfect work of political wisdom, equality is the pivot on which the grand machine turns, & equality demands that he who has a surplus of anything in general demand should parcel it out among his needy fellow citizens.” As one might imagine, Marshall did not therefore advocate communism. Instead, like Jefferson, Marshall advocated the use of tax monies for education, particularly in the agricultural sciences. Dispersion of agricultural knowledge would enhance economic self-sufficiency among people, and thus strengthen self-government. [23]

 

Self-Government and Political Economy: The Defense of Property

Robert K. Faulkner observes that for Marshall property is more than tangible possessions; as does Locke, as do the principal American Founders, Marshall conceives of property as largely the product of human labor, although one’s own natural abilities also form an important part of it. To have property rights is to have “the right to possess what one has worked for.” [24] The right to property is one foundation of self-government. Slavery, the opposite of self-government, consists of the denial of the natural right to the fruits of one’s own labor.

Like many Virginia landowners, Marshall owned slaves. There is no evidence that he traded in slaves or sold them for income. He served as president of the Richmond chapter of the American Colonization Society while on the Supreme Court; the Society advocated the (very) gradual abolition of slavery. [25]  Edward S. Corwin argues that Marshall’s court decisions in the decades well before the Civil War, favoring a strong national government and a commercial-industrial economy encouraged the formation of “a property interest almost as extensive as that which supported the doctrine of State Rights”; corporate power in effect countered the power of the slaveholders. [26]  As Beveridge puts it, the Southerners “began to see that the power that could enact a protective tariff [such as the 1828 “Tariff of Abominations”] control commerce [via the Bank of the United States], and make internal improvements, could also control slavery—perhaps abolish it” [27]  In the 1829 case Boyce v. Anderson Marshall held (“to the dismay of many slaveowners”) that a slave is a person. [28]  On the bench he had to be circumspect; the Constitution recognized (off-handedly, to be sure) the legal right to own slaves. In his private correspondence he could be more frank: “Nothing portends more calamity and mischief to the southern states than their slave population; yet they seem to cherish the evil and to view with immovable prejudice and dislike every thing which may tend to diminish it.” [29]  He had no practicable, near-term solution; neither did anyone else.

There was only a long-term national solution. As Frankfurter observed with respect to Marshall’s commerce clause decisions, “in so far as he struck down state legislation he did so as a means of releasing energies of national life” [30], energies that might have ended slavery peacefully, and did end it bloodily.

Marshall began his lifelong advocacy of commercial political economy at the Virginia Ratifying Convention, where he criticized the Articles of Confederation system on the Lockean grounds that it “takes away the incitements to industry, by rendering property insecure and unprotected.” [31] Under the Articles, the federal structure lacked the power to regulate interstate commerce. As early as 1781, several representatives urged the adoption of such powers, “but state influences prevailed.” “Notwithstanding the greatness of the exigency, and the pressure of the national wants, never, during the existence of the confederation, did all the states unite in assenting to this recommendation; so unwilling are men possessed of power, to place it in the hands of others.” [32]  Worse, even as the states resisted increased federal power they preferred to avoid responsibility themselves, many balking at the payment of war debts. Despite the “Herculean” efforts of Robert Morris during the Revolutionary War—including the institution of the first national bank—the Articles system was financially unworkable. [33]

A commercial economy is precisely what was needed to increase national cohesion. As Marshall wrote in Gibbons v. Ogden, “commerce” means “intercourse,” which includes not only exchange of goods but transportation. [34]  In giving Congress the power to regulate interstate commerce, the 1787 constitution bestows a very broad power indeed: one that would facilitate a gradual but deep transformation in American life, undermining the economic power of landed gentry—the nearest thing in America to an aristocratic class. Commerce would complete the American revolution or regime change. Gibbons v. Ogden limits States’ sovereignty to import and export taxes, denying States the power to regulate interstate commerce, broadly conceived. This means that the States are not permitted to act as if they were entirely sovereign because, as United States envoy had reminded Talleyrand a quarter-century before, the right to form commercial treaties is “the inseparable attribute of sovereignty… to be questioned only by those, who question the right of a nation to govern itself.” [35]. The American States will not make commercial treaties amongst themselves; Congress shall regulate commerce among them.

In the tenth Federalist Publius argues that the natural faculties of human beings provide the origin of property rights. Property rights themselves, Marshall contends, are civil not natural, “subject, in all respects, to the disposition and control of civil institutions.” [36]  These civil rights nonetheless deserve firm protection, in Marshall’s view, as his opinion in Fletcher v. Peck confirms.

As Marshall construes it, Article 1, Section 10 restricts State interference with property rights. States may not enact ex post facto laws, nor may they impair a contractual obligation—even if the State is a party to the contract and even if the State government consisted of corrupt men at the time the contract was framed. “Impure motives” are in this instance legally irrelevant; the purchasers of the Yazoo lands from the allegedly corrupt State legislators were in any event not impure, and they were entitled to their purchase. Even if the people of the State of Georgia were the real losers, their former representatives, however corrupt, were nonetheless theirs; the people may punish their representatives by declining to re-elect them, among other things. But the people may not deprive the innocent contracting purchaser of his property rights. The people’s new representatives may not rescind the contract, however corrupt they say their predecessors were.

May a legislature “by its own act, divest the vested interest of any man whatever, for reasons which shall, by itself, be deemed sufficient”? It may not, Marshall answers, for even “the most absolute power” cannot “recall the past.” The civil rights of contract are “absolute,” not the power of legislators. Such are the “limits of legislative power.” These would be more obvious under U. S. constitutional law. “Whatever respect might have been felt for the state sovereign ties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment, and that the people of the U[nited] States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.” Thus the United States Constitution “contains what may be deemed a bill of rights for the people of each state,” not only in the Bill of Rights itself but in the body of the document. [37]  If property is the essential matter, contract is the essential form of self-government with respect to political economy. Contract is the very definition of economic and political voluntarism or consent. A fundamental principle of self-government must be: Keep good faith. If the intentions of the ‘self’—individual or legislative—change from one day to the next, other selves cannot contract with it. No government is possible.

States cannot violate property rights guaranteed by valid contracts. Do States have the right to pass bankruptcy laws, despite Article I, Section 8, which empowers Congress to establish nationally uniform bankruptcy laws? Marshall agrees with the plaintiff in Sturgis v. Crowninshield that a constitutional provision must override any contradictory State law. However, Congress had not, in 1819, passed a uniform bankruptcy law; therefore, there could be no contradiction. But the States could not therefore enact any bankruptcy law. A law that “discharges the obligations the bankrupt entered into” would be constitutionally invalid under the contract clause. So, for example, a State may prohibit debtors’ prisons, but it cannot absolve debtors from their debts. States can say how debtors shall pay their debts, but cannot absolve debtors of those debts. Another fundamental principle of economic self-government must always be: Pay your debts. [38]

In his dissent in another bankruptcy case, Ogden v. Saunders, Marshall elaborates on his argument concerning contracts. The American constitutional union, itself contractual, “is intended to make us, in great measure, one people, as to commercial objects”—commercial in the broad sense laid down in Fletcher v. Peck. The right to enter into any contract, political or commercial, is a natural right, “original and pre-existing” in man as man; such rights can be “controlled” by “human legislation”—why else legislate?—but not given by it. In the state of nature “man governs himself and labors for his own purposes,” bartering with others who by nature enjoy equal rights. Such obligations as arise in bartering are real obligations, enforceable by the parties. “Superior strength may give the power” to violate a barter agreement in the state of nature “but cannot give the right.” The same is true among independent nations. The purpose of government is not to establish a natural right that already exists but to make its protection, the enforcement of the agreements entered in accordance with it, more secure. Individuals find coercion difficult; they submit to government in order to make satisfaction more likely. “The whole subject of contracts is under the control of society”—specifically, its government. But governmental control cannot rightly contradict the very essence of the natural right to contract that men enter civil society in order to secure. If government, and civil society generally, could overturn contract rights, civil government will no longer be self-government. The security of contract rights is one of the objects of civil government. “Contracts have, consequently, an intrinsic obligation,” no longer to be enforced by individuals but rather by government. For governments to excuse debtors would be a violation of the very purpose of government. “[T]he right to contract is not surrendered with the right to coerce performance.” The first is a natural and moral obligation; the second is a civil remedy. The States must not pass any law impairing the obligation of contracts, although they have considerable authority to control remedies available to contracting citizens. [39]

Self-government cannot survive if any considerable body of citizens is reduced to abject economic dependence upon another. To prevent pauperism, Marshall looked not to redistribution of wealth but to education. In addition to being a contract case, Dartmouth College v. Woodward is also an education case. [40]  Article I, Section 8 specifically mentions patent and copyright laws as means of promoting “the Progress of Science and the useful Arts,” but the contract clause can also be pressed into this worthwhile service when a State government interferes with the self-government of a private, charitable institution. A public institution, a State college, would of course be a different matter. This ruling impedes the establishment of a state monopoly on educational institutions.

Marshall distinguishes private from public contracts. The Framers could not mean that States cannot pass laws impairing the obligation of contracts consistent with the constitutional and statutory laws of the States themselves. This would mean that States could not amend their own laws. Rather, the Framers sought to restrict the enactment of certain State laws that violate property rights, laws that thereby “weaken the confidence of man and man” by “dispensing with a faithful performance of obligations,” e.g., debt payment. [41]

Dartmouth College is a private school. Although “education is an object of national concern, and a proper subject of legislation,” education is not “altogether in the hands of the government.” Teachers are not public officers unless they teach in public schools. A private “corporation,” being a product of the natural rights and obligations of contract, must enjoy a degree of self-government within the civil society ordained for the protection of that right and those obligations. Such a private corporation—as the etymology of the word implies—enjoys a certain identity and integrity over time, even as a living human body enjoys the right to life. A corporation, an artificial body, lacks political power and authority, but it is also in some measure free from political power and authority. “Because the government has given it the power to take and to hold property in a particular form, and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes,to which the property applies?” No: Unlike the British parliament, New Hampshire’s legislature is not sovereign. It cannot “annul corporate rights,” the rights of a freely contracted artificial body. A State cannot arrogate control of private corporations for itself. [42]

Marshall thus conceives of property rights—those of individuals and of ‘collective’ or ‘artificial’ individuals called corporations—as integral to self-government. Freedom of contract is the essence of self-government, or government by consent, by rational assent, in the sphere of political economy.

 

Self-Government in Military and Foreign Affairs.

His experience as a soldier taught Marshall one Machiavellian lesson: Use your own troops. [43]  At Valley Forge, foreign soldiers were more likely to desert. “Through this severe experiment in fortitude, the native Americans persevered steadily in the performance of their duty; but the conduct of the Europeans, who constituted a large part of the army, was to a considerable extent, less laudable; and at no period of the war was desertion so frequent as during this winter.” The necessity of living off the land compounded these problems, eliciting licentiousness among the soldiers, which caused resentment among civilians. Congress failed to reform the provisions system until the following spring—another example to Marshall of that body’s limitations under the Articles. Congress displayed moral firmness throughout the war, giving members “a just claim to the admiration of the world, and to the gratitude of their fellow citizens,” but this firmness did not yield vigorous and timely action. [44]  Only executive did-patch can prevent military indiscipline. Soldiers under the Articles government could look for such energy only from their general, not from their representatives.

The war also satisfied Marshall of the imbecility of the militia system. The claim “that a nation can be defended against a permanent force, by temporary armies, by occasional calls of the husbandman from his plough to the field, was completely disproved; and, in demonstrating its fallacy, the independence of America nearly perished in its cradle.” [45]  During the Virginia Ratifying Convention Marshall reassured anti-federalists that the States would retain control of the militia under the new constitution. “[T]he States can use the militia when they find it necessary,” without need of Congressional approval. [46]  This notwithstanding, Marshall never regarded the militia to be sufficient for national defense.

There was a problem to be faced, beyond radical-Whig handwringing. A commercial republic will tend to view the military as a burden. Commercial republicanism justifies itself in large measure as a regime of civil and international peaceableness in a world of religious strife and empire building. Americans have hoped that “the people of this favored land might in peace pursue their own happiness though war and violence should desolate the European world, or drench it in human blood.” Marshall turns this ‘exceptionalism’ in a new direction. War is even more dreadful to Americans than to other nations, peace still more beneficial. [47]  All the more reason to expand America’s standing army. “The question now is—whether self-government and national liberty be worth the money which must be expended to preserve them.” “[T]rue economy did not content itself with inquiring into the mere saving of the present moment” but instead calculated “present saving” against “a much more considerable future expenditure.” War with Napoleonic France (in Marshall’s opinion America’s most likely rival by 1800, when he made this argument) would bring “immense waste of blood as well as treasure,” an expense military preparedness might well obviate. Alluding to his celebrated mission to France, culminating in his triumphant return home after refusing Talleyrand’s demand for American payment in exchange for a promise of peace from the French government, Marshall reminded Congress: “It must… be particularly observed, that while prayers for peace were returned for indignities of every sort, while American was humbly supplicating for peace, and that her complaints might be heard—France spurned her contemptuously and refused to enter on a discussion of differences, unless that discussion was preceded by a substantial surrender of the essential attributes of independence.” [48]  Military preparedness is indispensable to national self-government; in a commercial republic, where dreams of military conquest and empire will not enjoy much scope, the argument for preparedness must rest on the right to life (“blood”) and the need for “true economy” (“treasure”).

National self-government or independence served as the lodestar of American military and foreign policy throughout the founding period and beyond. Marshall consistently endorsed the Washingtonian policy of neutral political relations with foreign countries. “We ought to have commercial ties with all, but political ties with none.” Of his tenure as a Virginia legislator during the first Washington Administration, Marshall wrote: “My constant effort was to show that the conduct of our government respecting its foreign relations were such as a just self-respect and a regard for our rights as a sovereign nation rendered indispensable, and that our independence was wrought into real danger by the overgrown and inordinate influence of France.” In the aftermath of the Genêt controversy Marshall affirmed that “our own safety made it necessary to manifest a firm determination to be guided only by ourselves…. We will govern ourselves, we will preserve our faith with all nations, and we will be at peace with the world.” [49]

French envoy Edmond Genêt’s attempts to rouse Americans to ally with France against Britain raised the issue of whether a foreigner’s appeal from the Washington Administration to the people should be countenanced by the people themselves. “Foreign influence to be exerted on the people, in a republican government, can only be repelled by the people themselves,” Marshall observed. In his appeal to his fellow citizens of Virginia, Marshall argued that sympathy for the republican regime of France should not overturn Washington’s neutrality policy. Admit foreign influence in this and Americans must admit it at any time. “Our country, instead of pointing its united efforts to the promotion of its own happiness, might be founded divided into parties struggling under the direction, and for the views of foreigners.” For Americans to ally themselves habitually with France, or with any country, would be to “relinquish the rights of self-government.” “Americans ought to view all foreign nations with an equal eye,” shifting alliances as their interests shift. [50]

Marshall again and characteristically sought to increase Americans’ trust in their federal government two years later, when the Jeffersonians condemned Jay’s Treaty. “Great umbrage was taken at the mysterious secrecy in which the negotiation has been involved.” According to the Jeffersonians—anticipating the Wilsonian formula of another century—”republics ought to have no secrets.” Marshall dismissed the claim: “This doctrine was not too absurd for the extravagance of the moment.” The extravagance of the moment is precisely the problem with an excessively ‘democratized’ foreign policy. Marshall could not dissuade his legislative colleagues from condemning the treaty. [51]

Marshall practiced his preachments of independence on those occasions when he had responsibility for the conduct of American foreign policy. In 1797, as an envoy to France, Marshall indignantly rejected French Foreign Minister Talleyrand’s offer of peace in exchange for a cash payment—this, in an attempt to intimidate the Americans into siding with France in France’s ongoing war in Europe. “Still dearer to us than the friendship of France… was our national independence”; Americans would ‘make at least one manly struggle” before surrendering it. Americans should neither seek nor avoid war: To “launch…into the boundless ocean of European Politicks” would risk “contracting habits of national conduct, and forming close political connections, which must… compromise the future peace of the nation,” a nation inclined to “self-defense” but only self-defense. That policy alone coincides with both the nation’s “genius” and finances as a fledgling commercial republic. Marshall had seen firsthand the consequences of French domination of a foreign country, the Netherlands, and this further strengthened his determination to resist French influence over America. [52]

In his 1812 opinion Schooner Exchange v. McFaden and Greetham Marshall lent judicial authority to these long-held principles. International law does not abridge national sovereignty, he asserted; it rests on it. The “perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete territorial jurisdiction which has been stated to be the attribute of every nation.” It is therefore reasonable to distinguish between foreigners on American soul in a private capacity and foreigners visiting in a public capacity. Private citizens from “a friendly power” must be fully subject to the laws of the country they visit. But public officials of a foreign power enjoy more leeway. In the incident under litigation, a “public armed ship” of a friendly foreign power entered an American port; no American “interference” with that ship or its crew could “take place without affecting [the foreign state’s] power and his dignity.” The traditional “rites of hospitality” according to international law—which is really international usage or custom—must be respected. Such usage derives its authority not from tradition but, in Marshall’s contractarian view, from consent: “the unanimous consent of nations.” [53] This need not be formalized by an explicit contract; if not so formalized, it stands as an example of what Locke calls ‘tacit’ consent.

Treaties obviously add further contractarian weight to unwritten international law or contract. In his opinion in United States v. Schooner Betty, Marshall defined a treaty as “a contract between nations,” a contract that is, under the American constitution, the supreme law of the land. States cannot unilaterally override treaties. [54]

 

Self-Government and the Fact of Conquest

Edward G. White criticizes the Marshall Court for “tolerating the obvious contradictions between natural rights theory and social discrimination” with respect to Americans’ “treatment of blacks and Indians,” a toleration that “contributed to the practical erosion of the legal rights of racial minorities in nineteenth-century America and to jurisprudential erosion of the natural law argument.” In contrast, Faulkner regards Marshall’s Indian land claims opinions as “a fine illustration of Marshall’s stern but human e judicial statesmanship,” whereby the Chief Justice “reduced the justification for depriving the Indians of their property to the most minimal of which liberal jurisprudence for depriving the Indians of their property to the most minimal of which liberal jurisprudence is capable—the right of providing for the colonists’ self-preservation.” [55]  Faulkner is closer to the truth. Marshall’s opinions in these cases clearly move toward protecting the right of Amerindian tribes to self-government, without any sentimental esteem for certain Amerindian customs.

Marshall uses Johnson and Graham’s Lessee v. M’Intosh as an opportunity to outline an American theory of conquest. The issue: Can title from a purchase from Amerindian tribes be recognized in the courts of the United States? Marshall says no, but as much as concedes that his answer does not rest “singly”—and perhaps not at all—”on those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man.”[56]

European “potentates” claimed a right to conquer the Amerindians on the grounds that the latter thereby exchanged “unlimited independence” for “civilization and Christianity.” Marshall frankly characterizes these claims as “pompous”; his very association of the claims with Old-World monarchy is enough to taint them in American eyes, as he knows. Nor does Marshall countenance any extensive claims for the ‘right of discovery’—which, he gently notes, could exist only among European nations, inasmuch as the Amerindians had already discovered and occupied the territories in question. When Americans declared independence from Britain, they took over these intra-European rights—rights against any French or Spanish claims of conquest or purchase. That is, ‘discovery’ of Amerindian-held territories gave the discovering European nation an “exclusive right” vis-à-vis other European nations to purchase or conquer, and then rule, these territories. Such a right is silent with respect to international rights between the ‘discovering’ European nation and the native peoples. [57]

Vis-à-vis the Amerindians, Americans have title by conquest “acquired and maintained by force,” not a right. The conquered “shall not be wantonly oppressed.” Ordinarily, a conquered people is “incorporated with the victorious nation,” which over time is “mingled with” them; “the distinction between them [is] gradually lost.” Where this does not occur, the conquered retain property rights. But in America the native tribes presented a serious problem. Some tribes consisted of “fierce savages whose occupation was war, and whose subsistence was drawn chiefly from the forest.” They could neither be incorporated nor governed as a separate people because “they were as brave and high spirited as they were fierce.” Unless the Europeans had been willing to return home, there could have been no good outcome. Wars “inevitably ensued.” The Europeans won. Legally, Amerindians must be regarded as occupants of land no longer truly owned by them. They cannot convey rights to lands lost to their conquerors, “however this restriction may be opposed to natural right, and to the usages of civilized nations.” The restriction is “indispensable to that system under which the country has been settled,” and that is that. [58]  Marshall could have argued that to derange the system at this time would worsen, not improve, matters, but he thought so he left the argument unstated.

Had Marshall left matters there, White would be correct. But Marshall evidently wanted to press the case for Amerindian rights further. In Cherokee Nation v. State of Georgia he argues that the Cherokee constitute “a distinct political society, separated from others, capable of managing its own affairs and governing itself.” This reflects the prevailing American opinion that the Cherokee numbered among the civilized, not the savage tribes or nations, a nation that had established a civil society. The United States government has enacted treaties with them, thereby admitting Cherokee status as a distinct state. [59]

But do the Cherokee have a foreign state? No: The Cherokee state is a U. S. protectorate. “They acknowledge themselves in their treaties to be under the protection of the United States” and they can send a (non-voting) deputy to Congress, if they so choose. They cannot be removed from their lands legally except “by a voluntary cession to our government” (but not, as per Johnson and Graham’s Lessee, to any private purchaser). [60]

Marshall extended his argument still further in Worcester v. Georgia. Within bounds set by treaty in 1802, the “Indian nations” possessed “rights with which no state could interfere.” The government of the United States, not the government of any State, enjoys “the whole power of regulating the intercourse with them.” Georgia has “abandoned” this system, and is therefore acting illegally in moving to evict the Cherokee from their ancestral lands. The assertion of exclusive federal jurisdiction over Amerindian relations was, White admits, “a bold step,” resting as it did on very nebulous constitutional evidence. The natural rights argument seems to have disappeared into a federal authority argument, White maintains. But Marshall actually makes no such concession. “The settled doctrine of the law of nations”—intermediate between natural right and local convention—”is, that a weaker power does not surrender its independence, its right to self-government, by associating with a stronger, and taking its protection.” [61] Marshall cites Vattel as his authority—Vattel, who defines the law of nature as the mixture of natural and conventional right. [61] Thus the natural-right argument Marshall seemed to dismiss near the beginning of his Johnson opinion lies very near the surface in Worcester, and self-government is the key to uncovering it.

 

Self-Government and the American Constitutional Union

It should have been difficult for political men of that generation to overlook the harsh side of political life. The Revolutionary War, the Pseudo-War with France, the War of 1812, the wars with Amerindians: all of these kept war, conquest, and their consequences before American eyes. The first tactic of any conqueror is of course to sow divisions in his prey. Marshall’s lifelong defense of constitutional union began in the war for independence. As Marshall recalls in his Life of Washington, State governments and their interests dominated the Continental Congress. “The measure for [military] recruiting were founded on the state system.” Delays and inequalities ensued, immeasurably complicating military strategy and thus hindering the war effort. “The few intelligent statesmen who could combine practical good sense with patriotism, perceived the dangerous inefficiency of a system which openly abandoned the national character, and proceeded on the principle that the American confederacy was no more than an alliance of independent nations.” At the end of the war, Marshall deplored the “variety of little interests & passions [which] produces such a distracted contrariety of measures that ’tis sometimes difficult to determine whether some other end [than independence] is not nearer the hearts of those who guide our Counsels.” Beveridge (who has his own, different, nationalist agenda to promote) is nonetheless right to call “the war for our Independence” the “fountain-head of John Marshall’s National thinking.” [63]

As a Virginia State legislator in the 1780s, working under the Articles of Confederation system, Marshall saw firsthand the causes of American disunity, nearly fatal during the war. Not only jealousy and State pride but reluctance to pay war debts and partisan administration of justice embittered Virginians. “[T]he 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.” Nonetheless, in his argument to the Virginia Ratifying Convention on behalf of the new federal constitution, Marshall restrained himself from criticizing the venality of his legislative colleagues, preferring to dwell on the need for national unity in defending each State. National defense “requires a superintending power, in order to call forth the resources of all to protect all. If this be not done, each State will fall a sacrifice.” [64]. The first duty of self-government is self-defense. It is also the prerequisite of continued self-government. And Union is indispensable to American self-defense.

As Corwin sees, ratification of the 1787 constitution rechanneled the issue of States’ sovereignty into constitutional-interpretation controversies. [65] The question remained one of defining what American self-government meant, what it entailed. The Missouri Compromise and Andrew Jackson’s firm response to the South Carolina nullification ordinance of 1832 deferred civil war for a generation. [66]  But by the end of his life Marshall viewed the future of the Union with pessimism. “I yield slowly to the conviction that our Constitution cannot last.” Southern opinions are simply “incompatible with united government.” How long can the Union be “prolonged” by such “miracles” as those effected by Clay in 1820 and Jackson in 1832?” [67]  Faulkner rightly claims that civil society according to Marshall needs not only consent but “public force” to keep it united. [68]  But consent to maintain the public force is needed, and that remained weak among many Americans North and South throughout Marshall’s lifetime and beyond.

Marshall unwaveringly sought to strengthen consent for constitutional union. As a young Virginia legislator he had heard the great anti-federalist orator Patrick Henry single out a key phrase in the Preamble to the 1787 constitution. “The question turns,” Henry said, “on that poor little thing—the expression, ‘We the people‘; instead of the states.” That phrase constituted “a revolution as radical as that which separated us from Great Britain” because it transferred sovereignty from the States to the American people as a whole, thus giving the federal government authority over State governments. Only the latter, in Henry’s opinion, could secure such “human rights and privileges” as the rights of conscience, trial by jury, and liberty of the press. [69]  In so arguing, Henry could not know that he had supplied a great federalist with a crucial argument for federal Union, once the Constitution had been ratified.

The young Marshall already had developed unionist arguments of his own. He denied any parallel between the relationship of the colonial American governments to the British government and that of the State governments to the federal government under the new constitution. The colonists’ argument had turned on the slogan of self-government, ‘No taxation without representation.’ “We were not represented in Parliament. Here we are represented” in the federal government. “Would you believe that men who had merited your highest confidence would deceive you? Would you trust them again after one deception? Why then hesitate to trust the General Government?” the federal government must really govern. Without the power to tax, a government cannot obtain the means to govern. “Our inquiry here must be: whether the power of taxation be necessary to perform the objects of the Constitution” outlined in its Preamble, and “whether it be safe and as well guarded as human wisdom can do it.” [70]  This anticipates Marshall’s argument in the McCulloch v. Maryland opinion, some thirty years later. Representation renders those who tax us trustworthy; it is the guarantor of ‘self’ in government. Necessity helps to define the means of government, the kinds of taxes to be imposed. It helps to define the ‘government’ side of ‘self-government.’

In McCulloch Marshall defends the power of Congress to incorporate a national bank by denying to the States the power to tax the bank—a power Maryland wanted to use to tax the bank out of existence or, at least, out of Maryland. Marshall’s editor remarks, “The case’s abiding importance lay in its being the occasion of an inquiry concerning the extent of federal power, the limits on state sovereignty, the nature of the federal Union, and the principles of constitutional interpretation.” [71]

Marshall turns Henry’s argument of 1788 against the States’ righters of 1819, whom he regarded as Henry’s direct political descendants. [72]  “We the People” refers to the fact of the ratification of the Constitution by the people, directly—meeting, to be sure, within the boundaries of the several States. But the governments of those States themselves called the State conventions, “thus submitting that instrument to the people.” The State governments could neither ratify nor veto the new constitution. The State governments are not and never were sovereign; the people of each State were sovereign over their own government. The State governments had formed a league or confederation, its laws contained in the Articles of Confederation. The league was not a government; the Articles were not a constitution but a treaty. “But when ‘in order to form a more perfect union,’ it was deemed necessary to change this alliance into an effective government… acting directly on the people, the necessity of referring it to the people and of deriving its powers directly from them, was felt and acknowledged.” In contrast, the Articles had been submitted to the state legislatures for approval. The government of the new federal Union “is, emphatically and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, for their benefit.” [73] Here is the source of Abraham Lincoln’s lapidary formulation in the Gettysburg Address, that attempt to lay the groundwork for the recovery and strengthening of Marshall’s constitutional Union.

It is popular self-government that justifies making the Constitution “the supreme law of the land.” The supremacy of federal constitutional law is not unlimited. The lawful powers of the federal government are supreme only “within its sphere of action.” The complexity of the American system comes from this fact. There is no easy solution to the question of the extent of the federal and States’ spheres of legitimate supremacy. The complexity is enhanced by the language of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.” This “omits the word ‘expressly'”—the Articles had included it—thus requiring interpreters to consider the Constitution in its entirety when determining the limits of federal and States’ powers. Although there is no formulaic answer to such questions, the fact that it is a question belies the anti-federalists’ claim that a ‘national’ government means a ‘consolidated’ one. Rather it is, as Publius had written, a compound government. [74]

An act of the whole people, taken at one time, but intended to last beyond its own time—”intended to endure for ages to come”—must be stated in general terms. A constitution, a founding or fundamental law, should not—and this one was not—designed to comprehend statutory laws, which are specific, detailed, and more easily changed with changing circumstances. A statue influences immediate conduct; a constitute constitutes a way of governing. A constitution tells its readers how and for what purposes a sovereign people shall govern itself. The generality of constitutional language precludes self-explanation, requires construal. [75]

The self-government of the American people requires a national legislature that really legislates. The sovereign people govern themselves through a representative legislature. The legislature must select the means by which it would secure the stated objects of the Constitution. Those who deny that the means selected are legitimate are free to vote against their representatives in the next election. Or they can proceed with a court case. In such a case the burden of proof is on the plaintiff; the representatives must be presumed innocent of constitutional wrongdoing unless proof of guilt is produced. Given the generality of constitutional language, such a case will not be easy to make. [76]

Publius links self-government to reason, particularly to practical reason or prudence. This is what is behind Marshall’s interpretation of the “necessary and proper” clause. “Necessary,” he contends, cannot mean physically necessary, only, else the federal government will be rendered “incompetent to its great objects.” The States’ righters’ narrow construal of constitutional language is impracticable. To make the Constitution a detailed legal code, susceptible of strict construction, “would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” That is, such a constitution itself would have been imprudently framed, and it would have given no scope for the prudence, the self-governance, of future generations. The exercise of the legislative power should be prudent, a just estimate of the necessities of the circumstance. It must also be proper: right, ‘just’ in the larger sense of conforming to natural right and to the ends stated in the Preamble. “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” [77]

By consent of the people within State boundaries, State governments may tax the people in order to raise revenue for the legitimate ends of the State governments. The federal government may also, by consent of the people as a whole, represented in Congress (including the Senate, where each State enjoys equal representation), tax the people in order to raise revenue for legitimate national ends. The States cannot tax a federal institution. A State retains “command of all its resources.” But it cannot siphon off the resources of the federal government. If there is any superiority of power, it is on the federal side—again, on exactly the ground Patrick Henry had feared, namely, the superiority of the whole people to any part of the people. Any other solution to the problem of federalism will lead to confusion and mutual interference—to ungovernability, which cannot have been the intention of the Framers or of any self-governing people. [78]

 

Self-Government and the Supreme Court

At the Virginia Ratifying Convention Marshall defended the federal courts from anti-federalist ire. Citizens insure the “fairness and impartiality” of judges by choosing them in accordance with an orderly, deliberative process and by guaranteeing the independence of the judges from the other branches of government. Federal judges will be chosen by the same process and shielded from improper influence as much as State judges. “If so, shall we not conclude, that they will decide with equal impartiality and candor?” [79]  The concern of anti-federalists centered not so much on process, however, as on the position of the judges. Would federal judges not favor federal power, leading to consolidation and despotism? [80]

Three decades later, States’ righters continued to target the federal judiciary. “Certain restless politicians of Virginia”—Spencer Roane and other radical Jeffersonians—had “been for some time making [systematic efforts] to degrade [the federal judiciary] in the estimation of the public,” Marshall charged, pseudonymously, in response to the criticism of McCulloch. He suspected the enemies of the federal government of deliberately selecting the weakest branch of the federal government. Congressmen and presidents are elected; they are “popular.” Judges are “separated from the people by the tenure of office, by age, by the nature of their duties”; they possess neither power nor patronage, and “have no sops to give.” At the same time, the judges are “necessary to the very existence of the government.” They make the perfect target: With low risk, their attacker can seize high political rewards. [81]

Marshall fought back with his own weapons, on his own terrain. One scholar remarks that Marshall “refused to regard his office merely as a judicial tribunal; it was a platform from which to promulgate sound constitutional principles, the very cathedra indeed of constitutional orthodoxy.” [82]  Marshall’s obiter dicta enunciate the general principles of American constitutionalism and amount to a lessons in civic education.

Marshall’s legal education and indeed the ethos of a life in law in the Virginia of his time encouraged this approach. The “gentleman judges” of Virginia before whom Marshall argued his cases were not legal technicians. For winning favorable judgments, logic and common sense counted more than a parade of precedents. Also, law itself “was conceived to be a body of principles that existed independently of cases, which served merely as illustrations and evidence of the law. It followed that piling precedents one upon another did not make law and might even obscure the true principle.” [83]  This nontechnical approach to the law enhances self-government. The more detailed the law, the more technical the judges’ approach to interpreting must be, and the more the bar must become a sort of priesthood. The more the law consists of understandable general principles, the better citizen-judges can convey its meaning to plaintiffs, defendants, and the general public.

In a self-governing—in modern times, a contractarian—society citizens must know the terms of the contract and judges must guard and explicate it. “The judiciary was the branch of the state that directly secured to men the place earned by industrious talent exercised in the economy.” [84]  Judicial review derives from self-government because it is “the very antithesis of arbitrary will,” residing in the prudential choice, the discretion, of judges who “turned to the great body of transcendent principles that ran through and beyond cases,” principles found in law as it had been practiced in America for decades before the Revolution. [85] The protection of industrious talent, for example, derives from the natural right to property enunciated by John Locke.

James B. Thayer suggests that the Framers deliberately left the power of judicial review unmentioned in the Constitution so as “not to stir up enemies to the new instrument.” Judicial review was “left to be settled by the silent determinations of time [i.e., by judges] or by later discussion.” [86]  Leonard Baker, however, shows that judicial review was simply not controversial among many Framers, or among Marshall’s predecessors on the Court. [87]  Judicial review may have gone unmentioned because it did not need to be mentioned.

Both scholars are probably right. Many Framers knew the Constitution made federal judicial review necessary, but its exact scope needed not to be predetermined, and had better not be much debated during ratification. In any event, the Constitution, being a novelty, needed to build up its own body of precedents before judicial review could be exercised fully. Beveridge argues that the earliest Supreme Court judges actually pressed too hard and fast to establish their authority, injudiciously giving Jeffersonians fuel for anti-nationalist bonfires. The enforcement of the Sedition Act very nearly gave Jefferson a noose of impeachment with which to hang federalist judges. Not only impeachment but the doctrine of States’ nullification of federal court decisions and the Jeffersonian claim of ‘coordinate construction’—that the executive and legislative branches enjoyed co-equal authority of constitutional judgment—taken together, would have restricted the Supreme Court to a minor role, indeed. Legislative supremacy—the power to pass laws and pronounce them constitutional—would have resulted, as Gouverneur Morris charged at the time. [88]

But Jefferson’s view was even more radically opposed to judicial power than Beveridge says. Jefferson’s reforms of the Virginia legal code had minimized judicial discretion at the State level. English common law, particularly as (mis)understood by Mansfield and Blackstone, must, in Jefferson’s view, be revolutionized from top to bottom. “Jefferson and other Revolutionary reformers believed that it was possible to maintain a system of laws founded in reason and equity without resorting to judicial discretion.” [89]  Their view of self-government was more directly democratic than Marshall’s. To the democratic republicans, judicial discretion and review were themselves suspect vestiges of the old regime, to minimized or, better, expunged.

Under these circumstances, Marshall needed to proceed with every bit of prudence that he had often admired and commended. He calls Marbury v. Madison a case of “peculiar delicacy,” then demonstrates in his opinion that he is equal to the peculiarly delicate task of judicial self-government. The circumstances leading to the case confirm Marshall’s concern. William Marbury was appointed by outgoing President John Adams, who had lost the 1800 election to Thomas Jefferson. Marbury was one of several dozen Federalist-Party judges appointed by the president and confirmed by the Senate, after the Senate had established several new courts for the evident purposes of increasing the number of judges friendly to Party principles—a hedge against future actions that might be taken by the incoming administration. Adding to the “delicacy” was the fact that Marbury’s commission was signed by then-Secretary of State John Marshall, who had already been appointed and confirmed as Chief Justice of the Supreme Court. Once inaugurated, President Jefferson quite understandably voided Marbury’s commission, along with 24 other such appointments. Marbury sued, maintaining that he was legally entitled to his commission, which had been duly made by the Senate. Observing that the Judiciary Act of 1789 gave the Supreme Court original jurisdiction over petitions for writs of mandamus, whereby the Court could command or ‘mandate’ (hence mandamus) an inferior government official to fulfill his duties or correct an abuse of discretion. But was the Judiciary Act constitutional? Article III, section 2 gives the Supreme Court original jurisdiction in cases “affecting Ambassadors, other public Ministers and Consuls,” but not judges. And there is a larger issue: May the Supreme Court pronounce upon the constitutionality of any law passed by Congress and enacted?

In Marbury, Marshall asserts the place of the federal judiciary in the American system of self-government. How can judicial review—the role of the Court as the final arbiter of constitutional disputes in the government—be justified under a new constitution enacted in a political society that had broken with England and thereby—on the federal level, at least—revolutionized the common law tradition? [91]  Judicial review is unquestionably consistent with commerce, as England had shown. How could judicial review be reconciled with commercial republicanism? Given judicial review, how are the people nonetheless to remain sovereign?

Marshall first distinguishes, famously, between “political” and “legal” matters. “Political” matters involve choice; he who makes the choice rules or governs. “Legal” matters are duties; he who performs them is ruled. A voter votes for a president or Congressman; that is a choice, a political or governing act. The president nominates a man to an office; that is a choice, also. the Senate confirms the nomination, appoints the nominee; that too is a political or governing act. Once the nominee is appointed, however, he must be commissioned, according to the law; none of the erstwhile choosers has a choice any longer. The appointee has the right to his job; it is his unless he resigns or is removed for cause. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to provide that protection.” A citizen rules and is ruled; a government of laws rules and is ruled by the principle of equal protection. “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right,” if government officials may disregard the laws enacted by the people’s representatives—i.e., themselves or their predecessors—or, worse, disregard the laws enacted by the people, that is, the laws of the Constitution. [92]

The United States Constitution is a set of laws. The president must obey it. In his political function he “use[s] his own discretion,” answerable only to the voters and “his own conscience.” But in matters respecting “individual rights” he has no choice, no discretion—only the duty he freely (“politically”) affirmed in taking the oath of office. The president politically swears to be ruled by the Constitution with respect to the constitutional rights of his fellow citizens. This distinguishes him from a despot. He is “an officer of the law,” an executive of it, once the law has been enacted. The courts can judge executive actions with respect to the execution of the law; they are precluded from judging political acts. [93]

Marshall’s argument makes it appear that he will rule that Madison must deliver the commission to poor Marbury. But Marshall wants to mark out the Court’s constitutional territory not only from that of the executive but also from that of the legislative branch. He reminds his readers that the Constitution gives the Supreme Court original jurisdiction in all cases affecting ambassadors and other public ministers and consuls, and in all cases in which a State shall be a party. In all other cases, the Supreme Court has appellate jurisdiction. Although the Judiciary Act gave the Supreme Court the additional power of original jurisdiction over cases involving writs of mandamus, the Constitution itself gives Congress no power to shift cases from one category to another. If Congress had this power, it would be mixing political or discretionary power with legal duty. But the party must not be the judge. The Judiciary Act under which Marbury brought his suit was therefore in this respect unconstitutional, as it gave the judiciary a power not enumerated as its own in the Constitution. A federal (and indeed Federalist) judge saved federal republicanism from its own legislative policy—which had been intended to strengthen the judiciary—by denying itself a very minor power—the mandamus in such cases as Marbury’s—to establish clearly a major power—judicial review. And in so doing that judge left democratic republicans with no response. Jefferson could not make a great show of ignoring the mandamus; it had evanesced. [94]

What, then, gives the Supreme Court the power to adjudicate such ‘border disputes’ among the three branches of the federal government? Are the other branches no co-equal? Can the legislature and the executive not govern themselves in these matters?

They are co-equal, but not with respect to legal interpretation, any more than judges are co-equal with respect to legislating and executing. Legislators legislate; executives execute. Those are their powers. “It is emphatically the province and duty“—not discretion or choice—”of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound, and interpret that rule.” Any law that contradicts the fundamental, supreme law, the Constitution, must be struck down. “This is the essence of judicial duty.” If the legislature can pass an unconstitutional law, if a president can sign it, and they can pronounce this law constitutional, then the Constitution is a thing of plastic, shaped by government officials to please themselves. Genuine rule of law under a written constitution is at an end. Such a practice would be “prescribing limits, and declaring that those limits may be passed at pleasure”—politicized. Congressional power in alliance with executive power would be despotic; there could be no effective legal check on it at the federal level. [95]

The oath of the judges to uphold the Constitution, identical with that taken by legislative and executive officers, thus means something different for judges than it means for legislators and executives. In legislating, a legislator undertakes the duty to vote for no measure he deems unconstitutional. An executive must not sign any such measure into law. But once the legislature and the executive have acted, the Supreme Court must, if a relevant case comes before it, say what the law is, including constitutional law. Judges cannot legislate or execute but they have a sworn duty to judge. They are the ‘third party’—the only one which can legitimately judge because they neither framed nor signed the measure into law. [96]  The judges cannot claim to represent the sovereign people in the immediate sense; the people didn’t elect them. Marshall presents them as spokesmen for the people in the permanent sense; guardians of the one law enacted by the people themselves, the supreme law of the land. Marshall thus converts the apparent weakness of the judiciary, the weakness the States’ righters sought to exploit, into a potentially great and abiding strength, a strength that will increase as the Constitution itself becomes settled in the American mind.

Marshall “endeavor[ed] to build a rule of law that stood apart and was distinct from the vagaries of changing politics and the expediencies of the moment.” [97]  This rule of law comports with republicanism if not with radical democracy because the Constitution it upholds is itself the most direct political  act of the sovereign people, ratified by them and not merely enacted by their representatives in government. [98]  Constitutionalism is the supreme act of popular self-government. The federal judiciary is the Constitution’s final guardian under the law; its final guardian beyond the law is the people. Constitutionalism saves popular self-government from despotism—toward which, in Marshall’s estimation, the state legislatures had veered under the Articles of Confederation. [99]  Marshall in effect replies to Jefferson: ‘In advocating, effectively, legislative sovereignty, you are the “Englishman,” the devotee of parliamentary sovereignty in practice if not in theory. I am the truer American, defending the right to self-government of the sovereign people according to the principles of the constitution they ratified.’ Marshall concedes to Jefferson the democratic republicanism of the moment. He takes for the Supreme Court the democratic republicanism of all time.

 

Conclusion

No man of his generation had more of what might be termed ‘constitutional experience’ than John Marshall. He served in all three branches of the federal government; he had ‘lived’ the issues surrounding balanced, separated powers before he arrived at the Supreme Court. Before entering the federal government he had been a state legislator, ‘living’ the problems of federalism. He lived what one biographer calls a life in law, but he had also lived part of his life outside the law, as a soldier in a revolutionary war. One of the many things he knew about the law was the limits of the law.

The limits of the three branches of government; the limits of state and federal government; the limits of law and of force: Marshall’s predilection for drawing the fine distinction, for finding the principle of every case, for knowing when not to ‘cross the line’ as a judge into dangerous political territory, all instance his experience in living with and by the American instruments of self-government. Delimitation implies rationality. Marshall conceived of self-government as precisely this kind of rational liberty, freedom within limits but also (in circumstances of a just revolution) outside the limits.

Self-government requires self-knowledge or just self-assessment, the philosophic virtue par excellence. Self-government can encompass but does not require greatness of soul, the moral virtue par excellence. Washington, the man of magnanimity and of self-possession or mastery of the heart, can never be a typical citizen among a self-governing people, but he can win the esteem of such a people; he can vindicate their rights, even as a Burr will betray them.

The regime of rational liberty in modernity is commercial republicanism. Self-government in commerce means the right to enjoy the fruits of your own labor and the duty to pay your own debts. A commercial economy conduces to political union and to the end of slavery. Self-government in politics means republicanism or representative government with balanced and separated powers, as distinguished from democracy, where the people legislate without checks, and despotism, where one man does. Democracy and despotism bend law to the desires of the sovereign; they are passionate, ungoverned by rational limits. ‘Democracy and distrust’ must be replaced by ‘republicanism and trust.’ Self-government cannot work in a condition of constant doubt, of ‘self-faction.’ Self-government legislates, executes, judges for itself—else it will finally look to some external human authority, some priesthood or ruling class, to guide it. Self-government looks not to received opinion but to contract, central both to commerce and to modern republicanism. Contract means that we, the contractors, set the terms of our way of life. We deliberate, reason; we decide; we agree; we enforce our agreement.

For a people, self-government means independence. This requires self-defense, using your own arms, your own troops. When in a condition of relative weakness—in a world where there are no other fully republican regimes—an independent people will build its military and economic strength and try to maintain an honorable neutrality. They will thus respect the contract that is the ‘law of nations’ and perhaps avoid conquest, the destruction of self-government.

Divide-and-conquer tactics threaten the people’s self-government. Therefore, maintain the republican political union. In the United States, union rests on the federal constitution as the supreme law of the land, the expression of the sovereignty of the people as a whole. This law is supreme because it alone embodies the lawmaking authority of the people, beyond the transientness of statute law and the partiality of the States. The Constitution must be phrased in general language in order to give scope to prudence, to self-government on the statutory level, where changing circumstances may require reforms.

Constitutional union in turn requires a self-governing Supreme Court with power to say what the law is, separated from the legislative power to make law and the executive power to enact and carry out law. As contract, law requires impartial, independent, third-party judges in order to prevent despotic collusion of the law makers and the law enforcers. It was to this task that Marshall set himself, in his lifelong attempt to secure the regime of self-government in America.

 

Notes

1. Faulkner 1968, xix.
2. Letter to Joseph Story, quoted in Beveridge 1919. IV. 79-80. On Jane Austen and self-government, see “The Politics of Self-Knowledge: Mansfield Park and the Refounding of the English Aristocracy,” in Morrisey 1996, 197-251.
3. Joseph Story and John Quincy Adams, quoted in Faulkner 1968, 166.
4. Marshall 1836, I. 375, 381.
5. Ibid., I. 122; II. 61.
6. Ibid., II. 446.
7. Ibid., II. 447. For the portrait of the great-souled or magnanimous man, the man of megalopsychia, see Aristotle, Nichomachean Ethics 1123b-1125a. For commentary see Faulkner 1968, 127-129. The philosopher who denies the compatibility of greatness of soul and democracy is Bertrand Russell in his A History of Western Philosophy (New York: Simon and Schuster, 1966), 175-176. For a more recent discussion of magnanimity and American politics, see Paul Eidelberg: A Discourse on Statesmanship: The Design and Transformation of the American Polity (Urbana: University of Illinois Press, 1974). More broadly, both Washington and Marshall formed themselves on the neoclassical culture of eighteenth-century America. Washington’s esteem for Joseph Addison’s play, Cato, is well known. Marshall’s most recent biographer, Jean Edward Smith, makes much of the influence of Alexander Pope’s poem, “Essay on Man,” on Marshall specifically and upon Americans of his generation generally. She finds in the poem Marshall’s “political and judicial outlook”: that nature and reason are allied and that a mixed and balanced government is the best regime (Smith 1996, 33-35). (This is not only a theme of classical philosophy but also of John Locke, who defines the law of nature as reason.) One might add that Pope’s famous coda, “WHATEVER IS, IS RIGHT,” refers not only to the rational character of being but to the need for human self-knowledge. It is not to be confused with the notorious slogan, ‘Might makes right.’
8. Marshall quoted in Smith 1996, 483.
9. Marshall 1937, 18-19.
10. Dr. Randall quoted in Thayer 1967, 118.
11. Dr. Nathaniel Chapman quoted in Beveridge 1919. IV. 587-588. Dr. Chapman probably overestimated the Christianity of his patient. The Episcopal bishop who knew him said Marshall attended services as “a sincere friend of religion” and to “set an example” (Beveridge 1919. IV. 69-70). Smith 1996 notes that “Throughout his life the chief justice declined to become a member of any congregation, unable to believe in the divinity  of Christ” (36). Marshall’s daughter testified that he converted to Christianity during his final illness (Beveridge 1919, 70), which may account for Dr. Chapman’s claim.
12. Frankfurter 1937, 25, 44.
13. Konefsky 1964, 211.
14. Marshall 1836. II. 447.
15. Publius 1961, 81.
16. Beveridge 1919. I. 59.
17. Marshall 1836. I. 78.
18. Speech before the Virginia Ratifying Convention, June 10, 1788, in Johnson 1974-. I. 256-257.
19. Letter to James Wilkinson, January 5, 1787, Johnson 1974-. I. 201.
20. Marshall 1836. II. 348-349.
21. Letter to Augustine Davis, October 16, 1793, Johnson 1974-. II. 221-223, 228. See also Marshall: Speech before the Virginia Ratifying Convention, June 16, 11788, Johnson 1974-. I. 273. For a recent treatment of the radical-Whig theme with respect to constitutional interpretation, see John Hart Ely: Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980).
22. Marshall 1836. II. 239, 252; Beveridge 1919. II. 27-28, 34, 287-289. On the contrast between Marshall and Jefferson, see Corwin 1919, 55 and, more thoughtfully, Faulkner 1968, 55, 173-175. On Jackson, see Faulkner 1968, 189-192.
23. Letter to Richard Peters, July 21, 1815, Johnson 1974-. VIII. 99.
24. Faulkner 1968, 18. The philosophic source is Chapter V of Locke’s Essay on Civil Government. Hobson 1996 offers an interesting supplemental suggestion. The protection of property rights serves “interest,” i.e., the “desire for persona security and material well-being.” Interest combines two extremes: reason, which rules only a few men much of the time, and the passions, which rule many men some of the time. Reason combines a ‘low’ or calculating rationality with “controlled passion.” A regime that encourages men to look to their interests will rest on solid and largely peaceful ground. (Hobson 1996, 23-24).
25. Baker 1974, 11, 715, 724; Thayer 1967, 101.
26. Corwin 1919, 170-171.
27. Beveridge 1919. IV. 536.
28.  Smith 1996, 483.
29. Letter to Timothy Pickering, 1826, quoted in Smith 1996, 489.
30. Frankfurter 1937, 39.
31. Speech before the Virginia Ratifying Convention, June 10, 1788, Johnson 1974-. I. 266.
32. Marshall 1836. I. 427.
33. Marshall 1836. I. 441, 444-445.
34. Opinion: Gibbons v. Ogden (1824), Cotton 1969. II. 42, 49-50.
35. Letter to Talleyrand, January 17, 1798, Johnson 1974-. III. 300.
36. Argument to the Supreme Court: Ware v. Hylton (1796), Johnson 1974- V (appendix).
37. Opinion: Fletcher v. Peck (1810), Jonson 1974-. VII. 231-237.
38. Opinion: Sturgis v. Crowninshield (1819), Jonson 1974-. VIII. 244-250.
39. Opinion: Ogden v. Saunders (1827), Cotton 1969. II. 180-211. For commentary, see Konetsky 1964, 142-145. Marshall closely follows and applies the argument of Locke, op. cit., paragraphs 29-34.
40. Faulkner 1968, 141.
41. Opinion: Dartmouth College v. Woodward (1819), Johnson 1974-. VIII. 225.
42. Opinion: Dartmouth College v. Woodward (1819), Johnson 1974-. VIII. 223-238. Hobson 1996 argues that Dartmouth College represents the thorough ‘constitutionalization’ of property rights, that there was now no longer any need, as in Fletcher, to appeal to “vested rights” (90). This ignores Marshall’s dissent in Ogden v. Saunders, in which he was more insistent than ever with respect to “vested” or pre-constitutional rights.
43. See Niccolò Machiavelli: The Prince, Chapter XIII.
44. Marshall 1836. I. 133-134, 216, 226.
45. Marshall 1836. I. 133.
46. Speech before the Virginia Ratifying Convention, June 16, 1788, Johnson 1974-. I. 273.
47. Address to George Washington: August 17, 1793, Johnson 1974-. II. 198-199. This document was signed by George Wythe and Andrew Dunscom, but Marshall claimed authorship.
48. Speech in Congress, January 7, 1800, Johnson 1974-. IV. 56-57.
49. Letter to a Freeholder, September 30, 1798, Johnson 1974-. III. 504; Marshall 1937, 14; Letter to Augustine Davis, November 20, 1793, Johnson 1974-. II. 241.
50. Letter to Augustine Davis, November 20, 1798, Johnson 1974-. II. 246-247; Letter to a Freeholder, September 20, 1798, Johnson 1974-. 505; Letter to Thomas Posey, Janurary 30, 1799, Johnson 1974-. IV. 5-6.
51. Marshall 1836 II. 362; Beveridge 1919, II. 133.
52. Journal entry: September 27, 1797, Johnson 1974-. III. 173-174; Letter to Talleyrand, January 12, 1798, Johnson 1974-. III. 334-335. On Holland, see Beveridge 19191. II. 230, 235.
53. Opinion: Schooner Exchange v. McFaden and Greetham (1812), Johnson 1974-. VII. 308, 312-313. The same principle may be seen in Marshall’s opinion in Blane vs. Drummond (1803), a U. S. Circuit Court case tried in Virginia. “The proposition that the laws of foreign nations become a part of the law of every civilized nation is true to a certain extent,” Marshall wrote, but the right to sue under bankruptcy laws must be governed by “the principles of jurisprudence established in the country where the suit is brought,” not those of the country where the plaintiff resides. “The laws of one nation” cannot “give a form of action in the courts of another, or authorize a person to maintain an action who could not maintain it by the principle of that forum to which he has applied.” (Johnson 1974-. VI. 213-214).
54. Opinion: United States v. Schooner Betty (1801), Johnson 1974-. VI. 100. See also Marshall’s opinion in the 1803 United States Circuit Court of North Carolina case, Ogden v. Blackledge, Johnson 1974-. VI. 148.
55. White 1988, 681; Faulkner 1968, 52, 55.
56. Opinion: Johnson and Graham’s Lessee v. M’Intosh (1823), Cotton 1969. II. 3.
57. Ibid., 18.
58. Ibid., 20-22.
59. Opinion: Cherokee Nation v. State of Georgia (1831), Cotton 1969. II. 313-314.
60. Ibid., 315.
61. Opinion: Worcester v. Georgia (1832), Cotton 1969. II. 374-385; White 1988, 734-735.
62. John Locke: An Essay Concerning the True Original, Extent, and End of Civil Government, Chapter II. section 13.
63. Marshall 1836. I. 356; Letter to William Pierce, February 12, 1783, Johnson 1974-. I. 95; Beveridge 1919. I. 147.
64. Speech to the Ratifying convention, June 16, 1788, Johnson 1974-. I. 274. As an envoy in Europe in 1797, Marshall discussed the political divisions of Holland, which, he feared, would lead to a replay of the French Revolution on Dutch soil (Letter to George Washington, September 15, 1797, Johnson 1974-. III. 140-141). As for the French themselves, he admires them for one thing: “The internal commotions of France produce no external weakness, no diminution of exertion against her enemies. Parties ready to devour each other unite in fighting the battles of their country. In this they display real patriotism.” (Letter to Timothy Pickering, September 9, 1797, Johnson 1974-. III. 134.) the French are the exception to the general rule.
65. Corwin 1919, 173.
66. For background, see Smith 1996, 453-455, 519.
67. Letter to Joseph Story, September 22, 1832, quoted in Konefsky 1964, 232.
68. Faulkner 1968, 96-98.
69. Henry quoted in Beveridge 1919. I. 388.
70. Speech to the Virginia Ratifying Convention, June 10, 1788, Johnson 1974-. I. 261-262. Emphasis added. In a letter of 1829 Marshall writes that the 1787 constitutional convention established “a real Government, and not a nominal one only” (quoted in Faulkner 1968, 103).
71. Editorial Note, Johnson 1974-. VIII. 255.
72. In a newspaper article defending the McCulloch decision against the criticism of the Virginia Junto, Marshall asserted, “The zealous and persevering hostility with which the constitution was originally proposed, cannot be forgotten. The deep rooted and vindictive hate, which grew out of unfounded jealousies, and was aggravated by defeat, though suspended for a time, seems never to have been appeased.” (A Friend of the Constitution No. 1, June 30, 1819, Johnson 1974-. VIII. 318.)
73. Opinion: McCulloch v. Maryland (1819), Johnson 1974-. VIII. 261-262. See also A Friend to the Union No. 1, April 24, 1819, Johnson 1974-. VIII. 293-294. Thus, as Marshall himself observes, his position on sovereignty is identical to that of James Madison’s in the Virginia Resolutions of 1798. The Maryland/States’ righters’ innovation was to claim that “States” meant the State governments (Ibid. 295-296).
74. Opinion: McCulloch v. Maryland (1819), Johnson 1974-. VIII. 262; A Friend of the Constitution No. 6, July 6, 1819, Johnson 1974-. VIII. 347. On “compound” government, see The Federalist Nos. 39, 51, 62.
75. Opinion: McCulloch v. Maryland (1819), Johnson 1974-. VIII. 263, 267.
76. Ibid. 267-268.
77. Ibid. 267-271. In his contemporaneous polemical essays Marshall cites Vattel and Coke as understanding ‘necessity’ in his broader sense; see A Friend of the Constitution Nos. 2 & 3, Johnson 1974-. VIII. 324, 326, 328. Also see Konefsky 1964, 180. For further discussion see Berger 1987, 90-94.
78. Opinion: McCulloch v. Maryland (1819), Johnson 1974-. VIII. 273-275. Two of Marshall’s recent commentators emphasize that Marshall’s opinion did not anticipate the much more recent claim that the federal government enjoys constitutional power “to regulate the economy and promote social welfare” (Smith 1996, 445; see also Hobson 1996, 123). Rather, Marshall was fighting a defensive battle against what he took to be anti-Union sentiments. See also Barron v. Baltimore (1833), where Marshall explicitly states that the Bill of Rights applies only to the federal government and not to the States (Smith 1996, 520).
79. Speech to the Virginia Ratifying Convention, June 20, 1788, Johnson 1974-. I. 275.
80. White 1988, 118-119.
81. A Friend to the Union No. 1, April 24, 1819, Johnson 1974-. VIII. 283; A Friend to the Constitution No 1, June 30, 1819, Johnson 1974-. VIII. 318.
82. Corwin 1919, 122-123.
83. Johnson 1974-. V. lviii-lix.
84. Faulkner 1968, 78.
85. Hobson 1996, 34.
86. Thayer 1967, 53-54. In Robert McCloskey’s memorable phrase, the Constitution was “conceived in ambiguity as well as liberty” (McCloskey 1967, 15).
87. Baker 1974, 384-385.
88. Beveridge 1919. III. 23, 28-29, 52, 73-78. For a brief summary of Jefferson’s theory of coordinate construction, see Fisher 1988, 238-239.
89. Hobson 1996, 37.
90. Opinion: Marbury v. Madison (1803), Johnson 1974-. VI. 165.
91. Marshall regarded common law as still existing in the States; see Letter to St. George Tucker, November 27, 1800, Johnson 1974-. VI. 24.
92. Ibid. 170-172.
93. Ibid. 174.
94. Ibid. 180-181. For further discussion see McCloskey 1967, 40-41 and Fisher 1988, 54-55.
95. Opinion: Marbury v. Madison (1803), Johnson 1974-. VI. 183.
96. Ibid. 184-185. this is not to deny that the other branches influence constitutional law; for discussion see Fisher 1988, 255. It is well worth remarking that Locke describes civil society itself as providing an impartial ‘third party’—civil government itself—to arbitrate disputes among persons who, in the ‘state of nature,’ act as judges, juries, and executioners of claimed offenses against the Law of Nature. See John Locke, op. cit., paragraphs 19-20.
97. Haskins and Johnson 1981, 286.
98. Konefsky 1964, 83.
99. See Edward S. Corwin: “The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention,” in Loss 1981. I. 58ff. See also Hobson 1996, ix-xii, 59-62.

 

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