Allen Barra Book Review Original

Thaddeus Stevens and John Marshall: Mythical American Figures Who Still Loom Large

Two highly readable biographies delve into the indelible mark left on American politics by Thaddeus Stevens and John Marshall.

Thaddeus Stevens: Civil War Revolutionary by Bruce Levine

John Marshall: The Final Founder By Robert Strauss  

Reviewed by Allen Barra

During the Gettysburg campaign, Confederate General Jubal Early demolished an ironworks near the town. The factory’s owner was Republican Congressman Thaddeus Stevens who, Early was disappointed to find, wasn’t present at the time of the raid. The General, writes Bruce Levine in his highly readable biography, Thaddeus Stevens: Civil War Revolutionary, thought Stevens “had inflicted more harm on the Confederacy than any other in the U.S. Congress.”

A Pennsylvania congressman from 1849-1853 and 1859 till his death in 1868 at age 76, Stevens was born in Vermont in 1792 and raised by his mother. He overcame poverty and the birth defect of a club foot to become a successful lawyer in Gettysburg. His ascent into politics began in 1838 when elected to the Pennsylvania state legislature. He went on to the U.S. Congress in 1859, becoming the most vociferous and unrelenting opponent of slavery the nineteenth century produced.

Possessed of a salacious wit – when told that Lincoln’s vice president, Andrew Johnson was ”a self-made man,” he replied that he was “glad to hear it, for it relieved God Almighty of a heavy responsibility” — his  speeches in the House were delivered in a style described as “argumentative, sardonic, and grim.”  He commonly provoked “slave-state rage”; his fellow Republicans were sometimes forced to gather round him to fend off angry Congressmen from slave states. 

 “When speaking on the House floor,” writers Levine, “he rarely gestured theatrically with his arms as others often did; he simply clasped his hands before him. He kept his voice low but always audible, and his manner remained calm and deliberate …”

Uncompromising in his pursuit of what he regarded as “history’s mandate,”  he “felt the winds of history in his sails.” “The course of liberty,” he told a Pennsylvania audience, “is hard to sustain in this republic” because men are unable to “understand why others than themselves should be free.” That condition continues to afflict many in our time.

In matters of practicality, Stevens’s judgement was nothing short of genius. More clearly than Lincoln or any other Northern politician, he understood the economic importance of slavery to the Confederacy: “Their soldiers are as brave as yours,” he reminded his colleagues. “…Nor have we more able generals than they.”

“The key to victory was to be found elsewhere – in laying hands upon all of the rebels’ slave laborers … So long as they [the rebels] are left the means of cultivating their fields thought forced labor, you may expend the blood of tens of thousands of freemen and billions of money, year after year, without being any nearer the end … Those who now furnish the [rebels’] means of war’ are in reality ‘the natural enemies of the slaveholders.” It was precisely those people who could and “must be made our allies.”

He made it clear, though, who the War was against. He did not “reproach the South;” on the contrary “I honor her courage and fidelity.” The enemy, always, was slavery. 

Civil War Revolutionary is the definitive account of Stevens and the anti-slavery patriots who fired up the Union cause and gave impetus to the abolition of slavery. Too often, though, there is something missing from Levine’s work — Stevens himself. What was going on inside his head, inside his heart? At the end of Steven Spielberg’s monumental Lincoln, Stevens, brought to life on screen with passion and zest by Tommy Lee Jones, returns home to his black housekeeper who, it appears, is his common law wife. The woman the character is based on was Lydia Hamilton Smith, of mixed-race ancestry, who worked for Stevens for years as head of his household. The two, writes Levine, “developed a close friendship and working relationship. Hoping to tarnish Steven’s image, enemies accused him of taking Mrs. Smith as a lover, and Spielberg’s Lincoln treats that claim as true, although no firm evidence substantiates it.”

If anyone is in a position to elucidate their association, it would be Levine, but Lydia disappears early in the narrative. Since there was no other woman known in Stevens’s life after his mother, with Lydia goes one of the only real chances to see inside Thaddeus’s heart and head. For several chapters we are made privy to the inner workings of the perhaps the most brilliant and relentless mind in the pre-Civil War U.S. Congress.  But what did he do after hours?  Did he frequent a tavern with his colleagues for a few games of poker or whist? Did he retire to his den, as so many of his contemporaries did, for a quiet evening with Plutarch or Alexander Pope? Stimulating as his political life was, there’s a hole in Civil War Revolutionary that can’t be filled by politics. 

As a political animal, he was magnificent, and his contemporaries saw the courage and resolution forged in the smithy of his soul. W.E.B. Du Bois praised his “grim and awful courage” as “a seer of democracy.” An unnamed chronicler of Congress put it, “The timid became bold and the resolute made stronger in seeing the bravery with which he maintained his principles.”

It is heartrending to find that in the last year of his life he lamented that “I have lived so long and so uselessly.” What does that say about the rest of us? 

*** (Space Break) ***           

If Thaddeus Stevens is one of our most neglected heroes, John Marshall’s is the face missing from Mount Rushmore. Though he never graduated from a formal law school, Marshall, as Robert Strauss maintains in his lively and unorthodox John Marshall: The Final Founder, was as essential to the creation of the fledging United States as the cousin he despised, Thomas Jefferson.

Strauss, author of Worst President Ever: James Buchanan — a book which, it should be noted, was written before the completion of Donald Trump’s term — writes that Marshall “knew, and often clashed with, pretty much every one of the nation’s Founders”  and “may well been the Zelig of the Founding Era.”  I disagree with the latter because the protagonist of Woody Allen’s 1983 film appears with nearly every celebrity of the 1920s but had no impact on his time, while Marshall influenced nearly every important issue of the country, from the Revolutionary War (in which he served as an officer in the Continental Army) to his death in 1835. 

Marshall was born in Germantown, Virginia into a slave-holding family with ties to the Lees, the Randolphs, and the Jeffersons; his father was a schoolmate of George Washington. The future Chief Justice of the Supreme Court was homeschooled by parents possessed of an extraordinary library. His upbringing made him resolute and progressive. For instance, deciding that he should not be susceptible to smallpox, young Marshall cast aside anti-vaxxer nonsense and walked the 190 miles from his home in Virginia to Philadelphia to be inoculated.

Early America “was balancing between stability and adventure. There were governments, colonial and local, with ordinances and rules, but they were as fluid as the population …” There was little law outside of local custom. More than any other man, John Marshall would change that. 

After rising to the rank of general in Washington’s army, Marshall turned to politics. In 1799 he was elected to the House of Representatives, where Speaker of the House Theodore Sedgwick observed that Marshall was “a virtuous & certainly an able man. But you see in him the faults of a Virginian … he expects the world will be governed according to the Rules of Logic …” Many saw similar faults in Marshall’s friend and fellow Virginian, George Washington.

In 1800 Marshall was asked by President John Adams to accept the vacant position of Secretary of State, and in 1801 Adams insisted that he also become Chief Justice. “Marshall had rejected other things with almost a mere shrug,” writes Strauss, “but here, finally, was his calling.” 

Marshall wrote Adams’s December, 1800 discourse to Congress, the first of what would come to be called the State of the Union address. Included was a passage that would help create government as we know it today: an appeal for an expansion of the national court system. The Judiciary Act was quickly passed by Adams’s and Marshall’s Federalist Party in 1801, before they surrendered power to the newly elected Republicans.  

Within two years the Court made its first important decision – many say the most significant in its history – in Marbury v. Madison. The details of the case are today regarded as insignificant. But it marked the first time the Court overturned an existing law, establishing a precedent that, argues Strauss, “might have saved the Union. Without a court to level the field, partisan Congresses and presidents could fashion laws that would perhaps cause rebellion, a split of the country that nobody could cement together.”

Contrary to widespread opinion, the Constitution doesn’t specify that the Supreme Court is a co-equal branch of government, it merely states that the Court has the “judicial Power of the United States.” The principal that the Court could review the acts of the other branches became the power Marshall used to forge the Court into a position coequal with the legislative and the executive branches. 

Marshall’s courage “made what would seem a trivial case … into something that would transform democracy throughout the world. By asserting there was a judiciary that could negate unfair or non-constitutional laws, the decision brought the federal courts to the equality they had to wait for after the initial phases of the Founding.” And so, John Marshall can, with justification, be called the final founder.

Strauss is an unconventional historian and The Final Founder is no standard biography, as he takes a bull-in-the-china-shop attitude towards a swarm of cherished American myths:  

— Valley Forge: “There has been much hyperbole and a lot of inaccuracy surrounding the dangers and weariness of that winter of 1777-78 … It was a far more typical wintering in place than the bleak enumeration of death and despair Americans have heard of …” 

— The Constitution and Declaration: “The oft-taught story line that the Constitution (and the Declaration before it) were documents of the people, the common man, the workers of the land, is false. In order to even attend the convention for four months, the delegate either had to have subsidy or inherent means … The document, while not completely conservative, is certainly learned and with illiberal principals throughout – the regulations around slavery and who could vote and become president and congressmen would bear that out.”

— The Bill of Rights is “ … sacred to modern Americans …[but] was passed without support of even the state which originally proposed that it exist.”

— Thomas Jefferson “was an ardent foe of executive power when he was challenging the Federalists, but once he was president he felt above the rabble in Congress, and certainly was disdainful of the judiciary.”

— The Liberty Bell “was not named as such until it appeared on a pamphlet at the Massachusetts Anti-Slavery Fair in 1839 in Boston, and that ‘Liberty’ part did not have anything to do with the founding of the country, but was instead about the attempt to free slaves.”

Strauss halts his narrative when he chooses to digress on such subjects as The Worst Supreme Court Decisions, The Worst Justices, The Best Dissent, and When Did The Founding of America End? His method is quirky and decidedly nonacademic, and The Final Founder sometimes reads like literary hopscotch, but it yields a vision, bringing John Marshall into focus as “the mythical figure of the American judiciary.”

5 comments

  1. This post is very much fun to read as it reveals great truths about this country’s political economy.

  2. If you think the Supreme Court has become too political today, it has always been political. We should blame John Marshall rather than praise him.

    John Marshall was Secretary of State, appointed by Federalist President John Adams. Adams also appointed Marshall Chief Justice to the Supreme Court, the only man to ever hold both positions simultaneously, although only for about a month. As Secretary of State, it was Marshall’s job to deliver all of the federal court appointments by Adams. On the last day, many positions still had to be filled while Adams was still in office before Jefferson, a Democratic-Republican took office the next day. They became known as ‘midnight appointments.’ Marshall never got around to delivering in time Marbury’s appointment as justice of the peace for DC. Court appointments have always been political. One might believe that Marshall should have recused himself, since it was his mistake not delivering the appointment on time.

    So, Marbury filed suit with the Supreme Court and now Marshall had to make a decision, a political one no doubt, since he was a Federalist who knew it would be a hallmark of the Federalist era with Democratic Republicans ready to take office. He was certainly in a bind politically. Some would describe it an ingenious decision that had lasting consequences. I would argue it was by sleight of hand with terrible consequences. He initially did not know how to handle the suit, but discovered that Article III dedicated to the Supreme Court was quite specific about which cases the Supreme Court had original jurisdiction over, that is, which cases the court could hear first without an appeal. The justice of the peace or a magistrate as some books called the position was not listed under original jurisdiction, Article III, Section 2 . So, the answer was found in the Constitution itself which was quite clear on this procedural issue. And from this decision, the Court somehow gave itself the power to decide any case coming out of Congress, not just procedural ones. Marbury never received his appointment.

    This set a terrible precedent because now the Court can interpret any law it arbitrarily chooses. Take for example, a legislative ban from Congress on assault weapons. Try digging into the Constitution to find anything specific about assault weapons. Low and behold, not a word in our shortly worded relic from the 18th Century about them. So, the justices will go to a vaguely worded Second Amendment, established for slave holders so they could control their human property, and clearly make their arguments out of thin air. The conservative justices too often when it suits them, base their review of the law on originalism, the intent of the founders. Good luck finding the intent of living people let alone dead men, although white men with slaves may give us a pretty good idea.

    I have no problem with a Supreme Court making decisions on procedure or conflicts between states, individuals and issues with foreign countries, but I deplore a court having the power to overturn legislation passed by a democratic majority concerning civil rights. That applies to laws supported by a majority of Americans but cannot even get through Congress, like the right to abortion, regulation of guns, and Medicare for All to mention a few.

    If one defends judicial review as it stands, then of course one supports an undemocratic Constitution that has little relevance to the 21st Century. There are good parts no doubt that should be included in any democratic constitution, as it stands today, laws are interpreted by political actors on a political court based on terrible precedents. The real question is: has the Supreme Court done more damage than good since it was established. I believe the former and it needs major reform.

    1. Amen, David De Hart. I would love to read more. . . maybe you could expand on your fourth paragraph and give us a raionale for revising and renewing.

      1. Thanks, Peter. Would you please specify your request. I did not quite understand what you would like.

        Thanks,

        David

  3. This is brilliant reviewing as usual by Barra, whose breadth and depth of historical knowledge is extraordinary. I look forward to his next piece.

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