Seminal Works: G. Edward White's Contemplation of Marshall Court is Essential Reading Almost 30 Years Later

Just as Marshall Changed How the Court Operated, White Too Redefined a Major Legal Series

G. Edward White, an award-winning scholar of legal history, serves as the David and Mary Harrison Distinguished Professor of Law.

November 17, 2016

In 1988 Professor G. Edward White released his seminal work, "The Marshall Court and Cultural Change, 1815-35," which gave insight into the U.S. Supreme Court, as led by Chief Justice John Marshall, during a major shift in the court's philosophical approach that involved more discretion in decision-making.

The book, part of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States series, argues that the court during this time period emphasized certain terms within the constitution to give the appearance of timeless legal principles, while it promoted a style of decision-making that concealed the discretionary elements of constitutional interpretation.

White's ambitious approach to his contribution shifted the series from a more encyclopedic approach to one focused on methodology and context. Originally published by Macmillan, the book was also released in an abridged form by Oxford University Press in 1991.

A review of the book in the Washington Post Book World stated that White "has produced no less than a one-volume education in the formative period of American law." Reviews in American History said, "White is superb at using brief biographies to describe the personality, philosophy, politics, and comparative significance of the lawyers practicing before and the judges serving on the Marshall Court."

How it came about:

In White's words: "'The Marshall Court and Cultural Change' was commissioned as a volume in a series of 'authoritative' histories of the Supreme Court of the United States, organized around the tenures of chief justices, that was first conceived in the 1950s and whose first titles appeared in the early 1970s. At the time I was approached to do a volume, the works that had appeared had been exclusively encyclopedic reference works and several authors had not completed volumes they had agreed to undertake.

"Daniel Boorstin, who as Librarian of Congress was the chair of the Permanent Committee for the Holmes Devise, and Stanley Katz, who had succeeded Paul Freund as editor of the Holmes Devise series, wanted to change the format so as to produce more accessible works with overarching historical themes. I resolved to attempt to connect the Marshall Court’s decisions to central themes in American history in the early nineteenth century and to ideas about law and judging in what would now be thought of as the 'premodern' era of American jurisprudence. I very much wanted to produce a volume that would make a historiographic contribution to early American legal and constitutional history and thereby appeal to generalists as well as specialists, and to extend the scope and ambition of the Holmes Devise series."

Key lines from the book:

  • "In no period in the history of the Supreme Court of the United States were the personal predilections of Justices arguably more important, since no Court that decided such important cases had so informal and unaccountable a set of deliberative procedures."
  • "It is, of course, a puzzle to moderns how judges could be simultaneously granted the discretion to make substantive law and yet not fully be perceived as lawmakers. That puzzle … remains rooted in intellectual assumptions we no longer share."
  • "It may be easier to fathom judges riding in stagecoaches, or communicating to each other in handwritten letters with eighteenth-century calligraphy, or wearing knee breaches beneath their robes, or holding conferences in a boardinghouse, than to imagine their seeing their declarations of legal rules and principles as anything other than creative lawmaking."

Why the work matters:

"Looking back, the importance of the book for me is that I think it simultaneously reframed the posture of the Holmes Devise series and recast conventional understandings of early nineteenth-century legal and constitutional history," White said.

Professor John Harrison, the James Madison Distinguished Professor of Law and an expert in constitutional history, gave a detailed review of his colleague's work and its significance:

"Law teachers today teach Marshall Court opinions and law students today read them, as law teachers and students have been doing for generations. That might suggest that in writing "The Marshall Court and Cultural Change," Ted White was doing what any professor does, but more of it. Certainly he was comprehensive. White’s volume of the Oliver Wendell Holmes Devise History of the Supreme Court treats the Marshall Court’s entire body of work in depth, from admiralty to the western lands.

"Beyond providing a thorough and searching study of the court’s work in that period, White did something much more difficult and much more important. He recovered substantive and conceptual presuppositions shared by lawyers and judges in the early 19th century that have since become lost or obscure, even to lawyers. On one important issue, for example, White discovered both a puzzle and its solution, where today’s lawyers might not even have seen the puzzle. In some Contracts Clause cases, Marshall and his colleagues discussed possible grounds of decision, such as fundamental principles of the social contract, that are not directly connected to the Constitution’s text. Today, that might seem simply like a broad reading of a constitutional value. White discovered that such discussions present a puzzle, because they appear in only some cases. His understanding of now-lost ways of thinking enabled him to see the solution: principles of general constitutional law, like the nature of the social contract, were potential grounds of decision only in cases that came to the Supreme Court on appeal from a lower federal court. When a federal court had original jurisdiction, as the lower courts did, it could consider all potentially relevant grounds of decision. On appeal, the Supreme Court could review all the issues the lower federal court decided. But when the Supreme Court had appellate jurisdiction over a state court, the Judiciary Act of 1789 limited the court’s review to issues of federal law. The Contracts Clause is federal law but the first principles of the social contract are not, so in Contracts Clause cases coming from the state courts, the Supreme Court construed the Constitution’s text but did not decide on the basis of general principles. To see the interaction between now-forgotten conceptual distinctions and technical rules of appellate jurisdiction is a quintessential achievement of legal history – not just the history of law, but history of law informed by the law itself.

"White touches on features of the Marshall Court that would surprise today’s reader and that are somewhat less technical than the interaction between general constitutional law and appellate jurisdiction. Oral arguments with no time limits would be unthinkable today, but that is how the Marshall Court did business. He also treats his serious subject in a serious fashion without being solemn. The court’s courtroom, in the basement of the Capitol, may not sound like a promising dating scene, but White reports that it was regarded as 'a place to meet members of the opposite sex.' The book is truly comprehensive."

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