Thursday, April 2, 2015
A couple of observations from John Marshall on the nature of political debate
I have the good fortune of presenting next week over lunch to the students in my law school's John Marshall Scholars program on the topic of John Marshall's private life. This seemed like a fitting topic in anticipation of their upcoming visit to the John Marshall House. In preparation, I've recently been reading My dearest Polly; letters of Chief Justice John Marshall to his wife, with their background, political and domestic, 1779-1831, by Frances Norton Mason. I came across a couple of quotations from Marshall that seemed worth sharing.
The first is from Marshall's Life of Washington, in his description of the political hysteria surrounding the deeply unpopular Jay Treaty. Marshall's contrast between the deliberate approach of the statesman and the intemperate quickness of populist critics reveals how little has changed since the 1790s in the manner in which public affairs are sometimes considered:
In the populous cities, meetings of the people were immediately summoned, in order to take into their consideration, and to express their opinions respecting an instrument, to comprehend the full extent of which, a statesman would need deep reflection in the quite of his closet, aided by considerable inquiry. It may well be supposed that persons feeling some distrust of their capacity to form, intuitively, a correct judgment on a subject so complex, and disposed only to act knowingly, would be unwilling to make so hasty a decision, and consequently be disinclined to attend such meetings. Many intelligent men, therefore, stood aloof, while the most intemperate assumed, as usual, the name of the people; pronounced a definitive and unqualified condemnation of every article in the treaty; and, with the utmost confidence, assigned reasons for their opinions, which, in many instances, had only an imaginary existence; and in some, were obviously founded on the strong prejudices which were entertained with respect to foreign powers. It is difficult to review the various resolutions and addresses to which the occasions gave birth, without feeling some degree of astonishment, mingled with humiliation, at perceiving such proofs of the deplorable fallibility of human reason.
The second Marshall observation I thought I would share is from an autobiographical letter to Justice Story written in 1827. This observation, too, is about the debate over the Jay Treaty, from a distance of about thirty years:
As it was foreseen that an attempt would be made in the legislature to prevent the necessary appropriations, one or two of my cautious friends advised me not to engage in the debate. They said that the part which it was anticipated I would take, would destroy me totally. It was so very unpopular that I should scarcely be permitted to deliver my sentiments, and would perhaps be treated rudely. I answered that the subject would not be introduced by me; but, if it should be brought before the house by others, I should undoubtedly take the part which became an independent member. The subject was introduced; and the constitutional objections were brought forward most triumphantly. There was perhaps never a political question on which any division of opinion took place which was susceptible of more complete demonstration, and I was fully prepared not only on the words of the constitution and the universal practice of nations, but to show on the commercial proposition especially, which was selected by our antagonists as their favorite ground, that Mr. Jefferson, and the whole delegation from Virginia in Congress, as well as all our leading men in the convention on both sides of the question, had manifested unequivocally the opinion that a commercial treaty was constitutional. 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. There was scarcely an intelligent man in the house who did not yield his opinion on the constitutional question. The resolution however was carried on the inexpediency of the treaty.
https://mirrorofjustice.blogs.com/mirrorofjustice/2015/04/a-couple-of-observations-from-john-marshall-on-the-nature-of-political-debate.html