Editorial from the Chicago Tribune editorial board
U.S. Supreme Court Chief Justice John Marshall was the most consequential jurist in American history, but his historical importance is no match for the modern impulse to disown our flawed forebears.
Last week, University of Illinois (UI) trustees voted to remove his name from the University of Illinois at Chicago John Marshall Law School, which will now be called the UI-Chicago School of Law.
The change, which comes two years after John Marshall Law School merged with UIC to establish the first public law school in Chicago, is meant to dissociate the school from the worst parts of Marshall’s biography.
In his 2018 book “Supreme Injustice: Slavery in the Nation’s Highest Court,” historian Paul Finkelman documented that Marshall, who led the Supreme Court from 1801 to 1835, owned hundreds of slaves over his lifetime, held racist views and, on the bench, “always supported slavery, even when statutes and precedent were on the side of freedom.”
But Marshall was hardly unique in his racial views or his participation in the system of human bondage. There is no purity test from our era he would survive; nor should we expect him to. George Washington, Thomas Jefferson, James Madison and even Alexander Hamilton owned slaves, and the Constitution provided for the indefinite preservation of the “peculiar institution.” But those founders are rightly revered for achievements that loom larger than their failures.
What distinguished Marshall was his critical role in establishing the courts as the protectors of American liberties — including, eventually, the liberties of those who had been cruelly oppressed. Carved in marble at the Supreme Court is what he wrote in an 1803 opinion: “It is emphatically the province and duty of the judicial department to say what the law is.”
In that case, known as Marbury v. Madison, the court set American law on a course that was anything but foreordained.
As the Supreme Court noted in a 1958 decision, Marshall’s majority “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” — which would become “a permanent and indispensable feature of our constitutional system.”
That principle gave the court the crucial task of upholding constitutional principles even when it meant overruling elected officials and public sentiment. Without it, unpopular individuals and groups would be at the mercy of their enemies.
Had Marshall and his justices not interpreted the Constitution to enshrine “judicial supremacy,” any number of landmark decisions would not have come to pass — including those that ended school segregation, recognized the right of same-sex couples to marry and established the legal equality of women.
A later Marshall opinion affirmed the court’s right to strike down state laws as well as federal ones. His jurisprudence stood consistently for a strong national government and the rule of law.
As much as anyone in American history, Marshall gave life and meaning to the words of the Constitution at a time when the fledgling republic had no assurance that it would survive, much less endure into the 21st century. He should be measured against that moment in time, not today’s.
