Thursday, April 24, 2014
"more reverend than plausible": John Marshall on the Constitution as a "sacred instrument"
In his exploration of John Marshall's jurisprudence, Robert Faulkner has described how Marshall sought, in a way, to found a "political religion" in which the Constitution is a "sacred instrument" to be treated with reverence. Here is an excerpt in which Faulkner discusses Marshall's judicial writing style:
The Chief Justice's mode of construction, "adhering to the letter of the statute, taking the whole together," also tended to engender close respect for the law. And the style of his writing had a similar effect. Story remarked that Marshall followed Lord Bacon's suggestion, with which the conduct of Justice Holmes might be instructively compared, that "judges ought to be more learned than witty; more reverend than plausible; and more advised than confident." The gravity of the Chief Justice's style is proverbial. While it dulls the Life of George Washington, it yields an appropriate dignity to the judge. Marshall rose to a kind of magisterial reverence when he treated the fundamental law. By no means, his whole manner indicated,, was the Constitution to be confused with the hurly-burly of politics. It was to be venerated, not controverted. It seems, as the more flippant and unreflective commentators have not hesitated to point out, that Marshall dealt not merely with a constitution framed by unusual mean, but with a sacred law made by sainted men. The reverence of Americans for their law and for the "cult of the robe" has not gone unnoticed. It is certain that the great Chief Justice's endeavors have something to do with this. Apart from the tone of his opinions, he repeatedly called the Constitution "sacred." Perhaps the best illustration of his treatment occurred when in United States v. Maurice he was faced with a rather ambiguous provision of the fundamental law. He wanted so badly to shield Constitution and framers from any imputation of error, that he ascribed to the flaw itself responsibility for its own appearance. "I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause." In his own way too Marshall tried to found a "political religion."
Robert Kenneth Faulkner, The Jurisprudence of John Marshall, 218-19 (1968).
https://mirrorofjustice.blogs.com/mirrorofjustice/2014/04/more-reverend-than-plausible-john-marshall-on-the-constitution-as-a-sacred-instrument.html