The year 2018 brought us two new studies of Chief Justice John Marshall. Together, they provide a platform for discussing Marshall and his role in shaping American law. They also provide a platform for discussing the uses of American history in American law and the value of an historian’s truthful, careful, complete, and accurate accounting of American history, particularly in an area as sensitive as American slavery.
One of the books reviewed, Without Precedent, by Professor Joel Richard Paul, provides an account of Chief Justice Marshall that is consistent with the standard narrative. That standard narrative has consistently made a series of unsupported and ahistorical claims about Marshall over the course of two centuries. The substantial errors contained in this standard narrative are exposed by another book, Supreme Injustice, by Professor Paul Finkelman, which reveals, in groundbreaking fashion, Chief Justice Marshall’s deep personal and professional commitment to, and investment in, the institution of American slavery.
Chief Justice Marshall’s commitment to an institution that has been rejected by our law and by pervasive social norms should give his modern successors, attorneys, judges or students of the law, as well as citizens, substantial pause when relying upon Marshall as a posthumous authority and reference point in debates regarding contemporary legal subjects. Any other conclusion would countenance an unjustified double-standard when assessing American historical figures whose conduct we would condemn if perpetrated by historical figures from foreign nations.
Michael S. Lewis, Confronting a Monument: The Great Chief Justice in an Age of Historical Reckoning, 17 U.N.H. L. Rev. 315 (2019).