This year marks a full century since Albert Jeremiah Beveridge (1862 to 1927) published the first two volumes of his historic biography, The Life of John Marshall. In 1919, he published the last two volumes. This book, which won the Pulitzer Prize, has been out of print for many years, yet it is still relevant today in understanding the Supreme Court.
Beveridge led a remarkable and varied life. He was a prominent politician and, at the young age of 36, became a Republican U.S. Senator. He represented Indiana from 1899 to 1911. In an age of oratory, his eloquence lifted him above the pack. The 1912 Progressive Party (Bull Moose) Convention, which nominated Theodore Roosevelt for President, chose him as its keynote speaker. Before and after his political career, he enjoyed a successful law practice, which began when he was admitted to the Indiana Bar in 1887.
Beveridge also was a study of ideas in contradiction. His father was a Union solider during the Civil War, and Beveridge became an enthusiastic member of the Party of Lincoln. Yet, he had a firm belief in the superiority of the Anglo-Saxon race. He supported American imperialism for, frankly, racist reasons. In his speech on “The Philippine Question,” his first speech before the U.S. Senate, he said:
We will not renounce our part in the mission of our race, trustee, under God, of the civilization of the world. . . . It will be hard for Americans who have not studied them to understand the people. They are a barbarous race, modified by three centuries of contact with a decadent race. The Filipino is the South Sea Malay, put through a process of three hundred years of superstition in religion, dishonesty in dealing, disorder in habits of industry, and cruelty, caprice, and corruption in government. It is barely possible that 1,000 men in all the archipelago are capable of self-government in the Anglo-Saxon sense. . . . They are not capable of self-government. How could they be? They are Orientals, Malays, instructed by Spaniards in the latter’s worst estate.
Later Beveridge joined the Progressive Republicans and became one of its leaders. He supported limiting child labor, a progressive position that was controversial at the time. Yet he also favored federal power to end the Pullman workers’ strike.
His fame (or infamy in the case of his racism) came from none of those activities. Instead, we remember him for his magisterial four-volume biography of Chief Justice John Marshall, The Life of John Marshall. After he ended his political career, he turned to writing books on a variety of historical topics. For example, he started a biography of Abraham Lincoln, though he died before he could finish all four volumes. Yet his real legacy is his book on Marshall.
Beveridge’s research was mind-boggling, particularly in the era before computerized research, modern telephones, email, and speedy transportation. He combed the newspapers that were contemporary to Marshall, he examined unpublished papers, letters, and manuscripts, and he interviewed people related to Marshall who passed down family lore.
Beveridge’s biography teaches us important lessons for today, although he writes about the legal landscape of two centuries ago. His history (even the factual trivia) is fascinating; his portrait of Marshall is compelling, and his writing superb. His use of syntax and spelling, while reflecting English usage of a century ago, is not too distracting.
A problem of this out-of-print biography is that it is not readily accessible to the contemporary reader. It is also too long for modern tastes, covering many issues that are not of interest to the book lover of today. It is still worth reading. (Self-interested disclosure: I am working on an abridged, more concise edition of Beveridge’s four-volume history.)
Beveridge’s history helps us understand the development and evolution of the Court. The Supreme Court is now the most powerful judicial tribunal that the world has ever known, but it was not always so, and it certainly was not powerful when Marshall became its fourth Chief Justice. Before President John Adams nominated Marshall, he nominated John Jay (who was also the first Chief Justice), and the Federalist Senate promptly confirmed him, but Jay still rejected the position. Jay did not think being Chief was worth the effort.
Adams then considered several others and eventually decided, perhaps impetuously, to nominate Marshall. In spite of some criticisms from his fellow Federalists, the Senate confirmed him a week later.
Beveridge clearly is enthralled with Marshall and he writes a glowing biography. Sometimes it is easy to glow. Marshall, the oldest of 15 children, was really born in a log cabin in rural Virginia. He had very little formal schooling, though he did spend six weeks attending the law lectures of Chancellor George Wythe, who was then teaching at the College of William and Mary. Marshall’s father bought him a copy of Blackstone’s Commentaries for young John Marshall to read and study. When Daniel Webster argued before Marshall, the classically trained Webster sometimes peppered his oral argument with Latin phrases. As far as we know, Marshall did not understand a word of Webster’s Latin.
At other times, Beveridge glosses over some details. There is, after all, the question of slavery. When John Marshall married, Beveridge tells that his father gave him a slave and three horses. The next year, in 1784, Beveridge says it is likely that any “slaves, horses, and cattle” that his father left behind when he moved to Kentucky he also gave to John Marshall. However, Beveridge writes little else about Marshall and his slaves.
Beveridge does not paint Marshall as much of a slaveholder. Recent historical analysis challenges that view. Paul Finkelman, a distinguished legal historian, demonstrates that the Chief Justice bought and sold slaves throughout his lifetime. He profited from making a market in his fellow humans. In The Antelope, 23 U.S. (10 Wheat.) 66 (1825), Marshall acknowledged that the international slave trade was against the law of nature, but he also concluded that it was not contrary to international law or positive law (that is, the law of many nations, including the United States). And he aggressively used that positive law to better himself financially.
Marshall’s distant cousin (and lifetime political enemy), Thomas Jefferson, was also a slave owner. This same Jefferson eloquently wrote, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
One lesson that one could draw from reading Beveridge’s Life of Marshall is that we honor Marshall and Jefferson today not because they were slave owners but in spite of it. We find value in Beveridge’s Life of Marshall, even though Beveridge held the racist view that non-Anglo-Saxons were not as good as he because they were not Anglo-Saxon.
We no longer accept these views, but the fact that people like Marshall, Jefferson, and Beveridge held them should give us a little modesty and cause a little soul-searching. These people were very distinguished, intelligent, and respected in their time. For example, Kennedy said of Jefferson, while hosting a White House dinner honoring Nobel Prize winners of the Western Hemisphere, “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.”
The humility we learn is that even very intelligent people can be very wrong about essential moral truths. Of the first 28 presidents, 13 were slaveholders. Even Ulysses S. Grant, the general who led the Union forces during the Civil War, owned a slave—although he freed this slave in 1859, two years before the War began.
We may look down on our forerunners, with their tired and outdated prejudices, but they were not alone. They were men of their time, not men ahead of their time. That does not excuse the fact that the United States was conceived in original sin, and that sin was slavery.
Many of us would assert that we would never do that, but—if we lived in their world—some of us (perhaps many) would hold the similar views. What separates us from our predecessors is not that we are smarter, or more moral; it is that we have learned from their errors not to repeat their prejudices. If we do not practice humility about the past, we risk being blindsided by different prejudices today. The person who is truly wise is the one who breaks out of that prison. History should teach us not to be complacent.
Recall two important Supreme Court cases, neither of which is the law today. First, Gitlow v. New York, 268 U.S. 652 (1925), which upheld the criminal conviction of workers who published a radical manifesto that supported “revolutionary mass action for the annihilation of the parliamentary state.” Later, Dennis v. United States, 341 U.S. 494 (1951) also upheld defendants’ conviction for “willfully and knowingly conspiring to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence.”
The Dennis Court said that the Gitlow Court was wrong to restrict speech, but Dennis is right. Frankfurter, J., concurring, in Dennis, justified this distinction. He said that the ascendancy of the Communist doctrine was a matter of common knowledge that “would amply justify a legislature in concluding that recruitment of additional members for the Party would create a substantial danger to national security.” However, he added, Gitlow “excessive[ly] tolera” the legislative judgment. Unlike Gitlow, “there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security.”
Frankfurter and the Court were saying that their predecessors in the 1920s were foolish to be worried, but the Court, in the 1950s is correct about the Communist menace at home.
Every generation makes this error: we think we are smarter than our ancestors were, and we criticize them while making similar mistakes. Only Justices Black and Douglas dissented in Dennis—the only two who were not prisoners of their culture.
