Who can talk about john marshall's contribution to the Supreme Court?

Give me a few hours, my computer has no Chinese input function. When I go home, I will write down the answer.

People who study law seem to know that john marshall is the founder of modern American rule of law. His discussion and practice of judicial review right in Marbury v Madison has become a classic case familiar to law school students. However, the appointment of this talented jurist as the Chief Justice of the United States Supreme Court was purely accidental, and there were many partisan disputes.

Speaking of Marshall's historical opportunity as chief justice, we can't help but talk about the party struggle at the beginning of the founding of the United States. 1800, the first presidential election in the United States, party candidates competed. Adams, the current president of the Federalist Party, lost to Jefferson, the vice president of the Federalist Party. In the parliamentary elections held at the same time, the federalists also suffered a fiasco. Therefore, it has to pin its hopes of maintaining its political influence on the judicial department, which is not determined by electoral politics. Therefore, on 180 1 year1October 20th, Adams appointed Marshall, his secretary of state, as the chief justice of the Supreme Court, which was confirmed by the Senate. After Marshall became Chief Justice, he even acted as Secretary of State until Adams' term of office expired on March 3, 180 1. From the current point of view, this obviously violates the principle of separation of powers.

Adams' choice of Marshall was considered as "a pleasant coincidence that changed the course of history". There are indeed too many karmic opportunities. First, caleb cushing, the current senior justice of 1796, rejected the nomination of President Washington for his chief justice. If he accepts it, he will die within 18 10 years, so Marshall has no chance at all; Secondly, Chief Justice Esworth was arrested and sent to France, so he fell ill and resigned. If there is no mission to France, there is no chance for Marshall; Finally, after Esworth resigned, Georgia immediately nominated Jay, the first chief justice of the Supreme Court who had just stepped down as governor of New York. Although the Senate has approved the appointment, Jay has no intention of returning to the position where he sat. According to Marshall's own recollection, "I recommended Justice Patterson to take over, but the President disagreed, thinking that bypassing Caleb Cushing and choosing a junior Patterson would hurt Caleb Cushing's feelings. The president immediately said to me,' It's you' ". The real reason why Adams didn't choose Patterson is that Patterson is Hamilton's friend, while Adams and Hamilton are enemies in the Federalism.

This choice, though unexpected, is also reasonable. Although Marshall did not belong to Washington, Jefferson, Adams, Madison and other founding fathers, he was also regarded as the second generation leader of the United States. During the War of Independence, Marshall served as a captain officer in the mainland army. He witnessed the chaos of the militia in the States in the mainland army at the beginning of the war and deeply felt the importance of establishing a unified federal government. He later recalled: "I participated in the independence revolution as a Virginian and became an American after the revolution." The experience of participating in the war of independence "convinced me that the United States is my country and Congress is my government. These feelings are so strong and thorough that they have become a part of my body and mind. "

/kloc-in the winter of 0/780, 25-year-old Marshall took advantage of military leave to study law at William and Mary College. After just three months of study, Marshall became a practicing lawyer and quickly became the most successful legal person in Virginia. Marshall doubted the importance of civilian politics and believed that judicial authority could restrict the legislature. 1788, at the Virginia Constitutional Convention debating whether to accept the federal constitution, Marshall, as a state senator, presented strong evidence to support the constitution: "If the laws enacted by Congress are not authorized by the powers listed in the constitution, then, as the guardian of the constitution, the judge should regard them as unconstitutional ... and declare them invalid". His views and what he did after he became the Chief Justice of the Federal Supreme Court are obviously directly related to his military experience in that year.

As far as Marshall's personal interests are concerned, his enthusiasm for holding public office is not great. He has declined the invitation from Washington to be the federal attorney general and ambassador to France, and Adams hopes to appoint him as a judge. However, out of loyalty to the country, Marshall served as a state senator, a federal diplomatic envoy, a federal representative and a secretary of state, but for a short time. Nevertheless, the accumulated experience of the executive and legislative branches of his government laid a solid foundation for him to become a great judge later.

(B) Marshall's judicial practice

From 180 1 to 1835, Marshall worked for 34 years and became the longest-serving chief justice in American history. The court led by Marshall published 1 106 judgments, of which Marshall himself wrote 5 19. In 62 cases involving the Constitution, he wrote 36 judgments. Almost all his constitutional judgments revolve around three goals: first, to ensure that the new United States has the power to achieve its effective governance; Second, ensure that federal power is higher than state power; Third, ensure that private property rights are not violated by government public rights. Through these judicial practices, Marshall turned the words of the paper constitution into real constitutionalism in life. If the American Constitution of 1787 determines the constitutional framework of the United States and puts forward the goal of the rule of law, then Marshall Court enriches this framework and practices the concept of the rule of law. In order to express the authority of the court's judgment, he completely changed the British tradition followed by the Supreme Court, that is, the practice of writing the judgment opinion by the chief justice alone, and established the tradition of publishing a court opinion (unanimous and majority opinion). And he himself is always willing to undertake the task of writing opinions, thus influencing other justices with his own ideas. Jefferson, his political opponent, hated it. In the latter's view, this is tantamount to using the "collective authority" of the Supreme Court to promote the "private goods" of Marshall nationalism.

The constitutional interpretation implemented by Marshall Court is original and directly related to the constitutional text itself, instead of relying on accumulated precedents to support its views like later courts. Because it has formed a living connection with the generation that wrote the Constitution, Marshall Court can confidently claim that it understands the meaning and intention of the Constitution. In the words of Oliver Holmes, a famous judge later, Marshall Court represents "a strategic turning point in a historic battle", and its greatness lies in "being born at the right time". There is no doubt that Chief Justice Marshall and his partners created most of their historical moments.

During his 34 years in charge of the Supreme Court, Marshall fully supported the Supreme Court. Even the first justice appointed by Jefferson in 1804, william johnson, known as the "first dissenter of the Supreme Court", was the most independent judge of Marshall Court and an "enthusiastic democrat", and finally basically recognized Marshall's vision and accepted Marshall's leadership. As he himself said in a letter to former President Jefferson, who was dissatisfied with his performance, "In the end, I found myself either adapting to the environment or becoming what we call an insignificant role. I have to give in to the trend. " In the eyes of some Jeffersonians, justices who "go against the trend" such as Johnson are tantamount to "traitors". In fact, Johnson was by no means a Nuo Nuo fan of Marshall. During his 30-year tenure (1804-34), the court had 35 secondments and 74 objections, among which Johnson wrote 2/kloc-0 secondments and 34 objections. If Marshall's court opinion ensures the prestige of the court, then Johnson's secondment and dissent show that the court is also flexible enough to allow internal dissent.

Marshall's leadership was vividly described by a British author at that time: Marshall's voice was "soft" and "the six judges on both sides of the seat stared at him, thinking more about the students than his deputy". Although 18 1 1 years later, several * * * peace factions replaced the positions of justices vacated by the former federal faction and gradually occupied the majority of the Supreme Court, this did not shake Marshall's dominant position. Some people think that "in the entire history of the Supreme Court, such a dominant position is unique". During Marshall's 34 years in charge of the court, he disagreed with the court only eight times. Of course, the times have created Marshall to a great extent, but it is undeniable that Marshall's political wisdom, leadership, legal genius and team spirit constitute the internal conditions for his success.

An important embodiment of Marshall's political wisdom and legal genius is to establish and consolidate the uncertain authority of the Supreme Court by activating the Constitution when the legislative and administrative authorities are not very concerned about this new thing. Mccloskey, an American constitutional expert, wrote: "In the stormy years of the early history of the United States, people in Congress and the executive branch have repeatedly indicated that for them, the constitution is not as important as political results. Such evidence can be seen everywhere in the history of the two parties, such as the Federal Rebellion Punishment Act and Jefferson's purchase of Louisiana territory. In this way, the judiciary can freely claim that the Constitution belongs to it and equate its dignity with that of the Basic Law. Marshall is very willing to combine boldness and caution to get the maximum benefit. "

(C) the establishment and construction of constitutional laws

The most important and effective way for Marshall to establish the authority of the Supreme Court is to interpret the constitution through the judgment of constitutional cases, thus creating constitutional laws, which is the most fundamental and lasting achievement of Marshall Court. The practice of judicial review is firmly rooted in the constitutional text, making it a universal and lasting operating principle in the American constitutional system. In the early judicial practice of the Supreme Court, judicial review was mainly aimed at state laws, and its purpose was to consolidate the newly born federation. Fortunately, the Marbury case began a judicial review and rejected a congressional law, which somewhat put on a neutral coat for the use of this power and did not seem to be specifically aimed at state behavior.

After the Marbury case, Marshall never vetoed the laws of Congress again. Obviously, in Marshall's view, judicial review should be an unconventional and rarely used means to protect the fundamental law. However, this is only in terms of legislation in Congress. Marshall and his colleagues were less polite about state laws. They frequently use judicial review of national laws to consolidate federal power step by step and cultivate people's loyalty to the Federation. In these cases, Marshall Court initiated the process of constitutional judicature and made a judicial interpretation of the constitutional text. To a great extent, they treat the constitution in the same way and principle as judges interpret the common law. In this way, the constitution has come to the secular world from the unattainable heaven, and has become a branch of "law", which is subject to daily judicial interpretation and practice. The constitution has been washed away, returned to the ordinary, lost its sacred characteristics as a fundamental political law, and has the characteristics of common law. Such laws can be unimpeded in the federal court system, and judges can also interpret such laws in daily litigation.

Slowly, the American Constitution came into being and became a branch of law-like commercial law, contract law and property law, it has its own set of principles and major cases. Like other legal fields, the emergence and development of the constitution is the result of court decisions and the opposing parties' claims and debates on their respective rights in court. By applying the interpretation of the Constitution in the judgment, Marshall Court can combine the statement of constitutional principles with ordinary legal rulings. Therefore, it can persuade the American people to accept their interpretation of constitutional principles, not as politics, but as law.

(d) Seeking judicial value far from politics.

From the beginning of his career as a justice, Marshall realized that the effectiveness of the Supreme Court depends on its ability to promote public acceptance, as an institution that announces "laws" without partisanship and does not accept any "political" issues. The separation of law and politics is the key to the final rise of the judicial department in the United States, on an equal footing with Congress and the President. Loyal to the Constitution and laws, free from political interference and public pressure, the Supreme Court under Marshall gained the dignity and authority worthy of public trust, thus having the power to decide major public issues. The key to this success is that the Supreme Court regards the Constitution as its only resource.

Charles Hobson, editor and biographer of Marshall Document, concluded, "Marshall and his colleagues established the institutional power of the Supreme Court by making the American people worship the Constitution. As the guardian of the Constitution, the Supreme Court has positioned itself as the spokesman of the people's eternal will. By 1835, the Supreme Court has a mysterious power, and the Justice has the legend of the gods of Olympus, and is an admirable constitutional protector, far from the political muddy water. This mysterious stunt continues to form the basis of the extraordinary power of the Supreme Court. This explains to a great extent why an institution composed of lifelong and unelected judges can be convincingly called the purpose service of democratic government. " Compared with the European courts in the same period, the Supreme Court really stands out from the crowd. Tocqueville from the old world lamented: "No other country has ever created such a powerful judicial power. The Supreme Court of the United States is far higher than any known court in terms of its power nature and the people under its jurisdiction. "

Driven by the example of Marshall Court, courts at all levels in the United States began to avoid dealing with and getting involved in party politics, and made a more detailed investigation and distinction on the jurisdiction of the courts. Witnessed the party struggle of different interest groups in the legislature, people increasingly trusted the justice of the court, and the reputation of the court was obviously improved. Some people even think that without the protection of courts and lasting common law, "rights will never be compensated and mistakes will never be corrected". Madison, a Democrat who experienced all these major events, such as revolution, constitutionalism and the founding of the People's Republic of China, had a new understanding of the federal court in his later years. He told his old friend Jefferson that the Justice Department was the only government agency similar to an arbitrator. It transcends the market where various interests compete with each other and makes a fair and just ruling. After inspecting American democracy, Tocqueville also came to the conclusion that "the court is a visible institution that the judicial system can control democracy".

⑤ The first person in the American Constitution

All these achievements of the federal court are almost inseparable from Marshall's contribution. American President Garfield, as a lawyer, has a vivid evaluation of Marshall: "Marshall finds out the constitutional text and gives it strength. What he found was a skeleton, but he gave it flesh and blood. " Because Marshall strengthened the authority of the Supreme Court historically, he enjoyed the reputation of "the great chief justice" and "the second person after Washington" in American history. One biographer even thought, "If Washington established this country, Marshall defined it." Marshall always ranks first in the evaluation of judges' historical achievements in the United States.

Seeing Marshall's efforts and contributions to strengthen the rule of law in the new United States, especially the authority of the federal government, retired former President Adams was very happy. Twenty-five years after Marshall was appointed Chief Justice, he boasted: "Marshall is my gift to the American people, which is the proudest thing in my life. Nothing makes me happier than remembering what I have done in my life. " Adams will naturally have such a sigh, because he once pessimistically thought that the American Constitution, as an experiment, would probably not outlive him!

Another incredible fact is that such a great judge has received so little basic education and legal education. Marshall only went to a private school for two years, and the rest of the time was mainly influenced by his father, who had little education. Marshall also fell in love during a three-month legal study at William and Mary College. His class notes not only recorded the contents of the law, but also filled in the names of the right people. However, he not only achieved academic love, but also completed legal training. It seems that Marshall's experience proves that at least in the first half of the19th century, the first condition for becoming a justice is experience, not education.

Full political experience, rich life experience, and "crash course in law" training make Marshall not stick to the legal rules and regulations like many judges and lawyers, but have a far-sighted strategic vision, the ambition to govern the country according to law, and the ability to handle cases with an open mind. An American scholar brilliantly summed up Marshall's judicial thought: "In his long career as a judge, Marshall was dominated by two enduring concepts: one was the sovereignty of the federal state, and the other was the sacredness of private property". Relying on these two ideas, Marshall persevered and overcame many difficulties, and finally established the Supreme Court as the final interpreter of the American Constitution, and used this role to lay the foundation of the rule of law for the strength of the United States.