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  Anti-Federalists in Virginia and New York had the opportunity to present a united front and thereby increase their chances to scuttle the plan. Yet, while there was some communication between Anti-Federalists in the two states, because of the egos involved—most notably Henry’s—a coordinated strategy never materialized. As a result, the ratification struggle took very different forms: in Virginia, the battle was fought face to face during debate in the ratification convention; in New York, the issues were hashed out by dueling pamphleteers.

  Some similarities nonetheless existed. In both New York and Virginia, opponents of the Constitution were aware that mere squeamishness toward change would be insufficient to ensure rejection of the plan. Ratification by eight states had created momentum for the experiment, and dissatisfaction with the Articles of Confederation was sufficiently deep and widespread to stem any enthusiasm for a return to fractured government. In order to triumph, Anti-Federalists would need to identify solid issues around which fear of centralized authority might coalesce. Even if outright rejection could not be attained, they might at least succeed in inducing sufficient dissatisfaction with the Philadelphia product to require a second national convention.

  Many Anti-Federalists were confident they would win such a rematch. They had been blindsided in Philadelphia. At a convention called merely to reform the Articles of Confederation, Madison and his fellow nationalists had come much more prepared than their opponents. In the opening days, before many of the delegates had even arrived, Madison presented a detailed plan to overhaul the government that had been more or less accepted as a preliminary working draft. If a second convention were to be called, Anti-Federalists would not make the same mistake: they would come prepared to thwart any similar attempt to unduly centralize power.

  In both Massachusetts and South Carolina, proposals to amend or alter the Constitution had been attached to their ratification reports, but these amendments had not been made conditional to ratification. Conditional ratification—a vote to ratify that was only valid if the amendments were accepted by the other states—seemed the perfect vehicle to slow Federalist momentum. If enough states submitted amendments in this fashion, the process would become so unwieldy as to descend into chaos. From there, Anti-Federalists could press a call for the second convention, something Federalists were desperate to avoid.

  Two issues that Anti-Federalists seized on as particularly amenable to amendment were related to the legal system: The first was the lack of provisions in the Constitution to specifically protect individual liberties—a bill of rights. The second was the lack of detail about a national court system that might easily turn tyrannical.

  A bill of rights had been specifically omitted from the plan that had emerged from Philadelphia because the delegates believed that individual liberties were implicit in the Constitution they drafted. Even if not, individual liberty was the province of the states which, after all, retained all powers not specifically assigned to the national government. A major force for omitting a bill of rights had been Madison, who was quoted in the Virginia ratifying convention: “As to a solemn declaration of our essential rights, he thought it unnecessary and dangerous—unnecessary, because it was evident that the general government had no power but what was given it, and that the delegation alone warranted the exercise of power; dangerous, because an enumeration which is not complete is not safe.”4

  As to the court system, the very issues that had caused the delegates in Philadelphia to tread gingerly—cost, necessity of travel to get to federal court, out-of-state judges unsympathetic to local needs, potential for judicial despotism—were exploited by Anti-Federalists. Thus, in both New York and Virginia, these two judicial issues promised to be pivotal in determining whether or not the Constitution would be accepted without conditional amendments.

  Before ratification votes could be held in either New York or Virginia, however, on June 21, 1788, to the surprise of everyone, including most of the delegates to its own ratifying convention, New Hampshire approved the Constitution.5 Although a sufficient number of states had now ratified for the Constitution to take effect, New Hampshire’s approval had actually made matters even more tenuous.

  With the Constitution now officially the basis of government for the states in which it had been ratified, the United States had effectively been transformed into two overlapping nations. The first consisted only of the nine ratifying states; the second, those nine plus the four remaining states— Virginia, New York, Rhode Island, and North Carolina—which continued to operate, at least for the moment, under the Articles of Confederation. While there was no guarantee that the holdouts would agree to be ruled under the Constitution, most Americans—had they known of New Hampshire’s ratification—would doubtless have seen this overlap as an anomaly, a nation temporarily in transition from one set of laws to another. After all, as things stood, if there really were to be two separate political entities, George Washington would no longer be a citizen of one of them.

  Word of New Hampshire’s ratification did not travel quickly, however, and Virginians, in the third week of a bitterly debated ratifying convention, continued to operate under the assumption that only eight states were in the fold and, further, that ratification was unlikely in any of the remaining four states if Virginia refused.6 Proud Virginia therefore saw itself in exactly the place it thought appropriate—the fate of the nation resting on its decision.

  At that moment, the decision was far from certain. That there would be some opposition in the Old Dominion was no surprise, but the ferocity of the Anti-Federalist attack against the Constitution had knocked Federalists on their heels. As the vote to choose delegates to the ratifying convention had drawn near, Federalists realized that their opponents actually held the advantage. The situation had been sufficiently critical for James Madison to abandon his plans to manage the transition to the Constitution from Congress in New York and return to Virginia to get himself elected as a delegate from Orange County.

  Federalists planned a coordinated counterattack. Aside from Madison, Federalists could also draw on the talents of Edmund Pendleton, future Supreme Court associate justice Bushrod Washington, legal theorist George Wythe, former governor Edmund Randolph (who had been brought over to the Federalist cause), and a young and successful lawyer with a spotless war record named John Marshall.

  John Marshall was born in 1755 in a log cabin in the tiny community of Germantown in Fauquier County,7 “one of the frontier counties of Virginia,” as Marshall himself described it, the first of what would eventually be fifteen children.8 But Marshall’s was no Lincolnesque childhood. His father, Thomas, was a surveyor, a respected local official, and he held a commission in the Virginia militia. Descended from Welsh artisans who had immigrated to Virginia two or three generations before, Thomas Marshall had been born in 1730 and raised near the Atlantic coast in Westmoreland County, where he began a lifelong friendship with his neighbor George Washington. Although he had little formal education, the elder Marshall was a ravenous reader with an unquenchable thirst for self-improvement, traits he passed on to his children.

  Like his cousin Peter Jefferson, Thomas Marshall had “married up.”9 Marshall’s mother, Mary, was directly descended from William Randolph of Turkey Island and Mary Isham of Bermuda Hundred, local aristocrats whose families had been in the colony since the 1630s and who were sometimes referred to as the “Adam and Eve of Virginia.”10 They had nine children and thirty-seven grandchildren—one son married Pocahontas’s great-granddaughter—and their descendants included not only Marshall’s mother but also Thomas Jefferson, Robert E. Lee, and, of course, Edmund Randolph.

  Although he improved his social standing somewhat by marriage, Thomas Marshall, unlike Peter Jefferson, was never accepted into genteel, aristocratic Virginia society. His wife’s mother, another Mary, had been an outcast, involved in numerous scandals and all but disowned by her family. * Thomas Marshall, although he was a man of incorruptible character and reputation, inhe
rited, unlike others of the clan, only a small piece of property and could not compete in the plantation economy that had dominated the Virginia tidewater. He sold his land and, with Washington’s help, became a land agent for Lord Fairfax, the colony’s largest landholder. He moved to Germantown two years before John was born, surveyed the surrounding area, and eventually became sheriff, first magistrate, the county’s delegate to the House of Burgesses, and tax collector.†

  John Marshall spent his boyhood steeped in the contrast between the hard-driven, log-cabin frontier spirit of the pioneers around him and the intellectually curious household in which he resided. According to Marshall himself, his father gave him “an early taste for history and poetry,” and by twelve he “had transcribed Pope’s Essay on Man, and some of his Moral Essays.”11 John Marshall was unique among his peers. “The young men within my reach were entirely uncultivated; and the time I passed with them was devoted to hardy athletic exercises.”12 Hardy athletics obviously agreed with him. Marshall developed into a fast and tireless runner—he eventually earned the sobriquet “Silverheels”—and could reportedly jump a remarkable (and quite possibly apocryphal) six feet in the air.13

  Other than one year when was he fourteen and was sent away to study privately with an area clergyman, Marshall was educated entirely in his home.14 As his family grew, they moved several times, relocating ever westward, until they had crossed into what is now Kentucky, but always on the vast Fairfax estates. With each move, the Marshall family acquired more land and attained more affluent living conditions than the one before. To further both his ambition and his drive for learning, Thomas Marshall constantly acquired books for the family library, first borrowing volumes from Lord Fairfax, then, as he became more prosperous, purchasing them on his own. Thus the Marshall family was always surrounded by classics—Livy, Horace, Pope, Dryden, Milton, and Shakespeare.15 John and his siblings, also educated exclusively in the Marshall home, all became intellectually sophisticated and accomplished.* Among Thomas Marshall’s purchases in 1772 was the first American edition of Commentaries on the Laws of England by William Blackstone, a set of volumes that immediately engaged the attention of his eldest son.

  As John Marshall entered his late teens, “the controversy between Great Britain and her colonies had assumed so serious an aspect as almost to monopolize the attention of the old and the young.”16 Thomas Marshall was already an officer in the Virginia militia, and his eldest son soon volunteered as well. At age nineteen, he was appointed lieutenant and second in command of a company of about fifty men, and then, in 1775, assigned to a larger regional battalion when Virginia organized its defenses. Both father and son had distinguished war records. Thomas Marshall was on the line at Brandywine, in 1777, in a holding action that was credited with preventing Cornwallis from overtaking and decimating Washington’s main army, and John fought in a number of minor battles in the early months of the war.17

  John Marshall spent the winter of 1777–78 with Washington at Valley Forge, where he shared a cabin with James Monroe, and it became one of the defining episodes of his life. With acute shortages of food, clothing, and blankets, and disease rampant, one man in six of Washington’s seventeen-thousand-man army died, although not a shot was fired in four months. Marshall’s loyalty to Washington became unbreakable in those frozen months. He also became a source of comfort and encouragement to his men.† One of his colleagues later reported, “He was an excellent companion and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote.”18

  As 1779 drew to a close, the three-year enlistments of many of the soldiers in Marshall’s battalion were up. He was ordered home by the Virginia legislature on extended furlough to await new conscriptions and, as he put it, “availed myself of this inactive interval for attending a course of law lectures given by Mr. [George] Wythe.”19 By July 1780, the legislature had still not acted in raising new troops and Marshall obtained a license to practice law.*

  Marshall intended to begin his practice immediately, but, with the war on, most of the courts were closed. In September 1780, the Virginia legislature had still not assigned Marshall a new command, so he left for Philadelphia to rejoin the army, traveling on foot as much as thirty miles a day. He was not in Philadelphia long before he was sent back to Virginia with Baron von Steuben to help raise troops to repulse Cornwallis, who had taken Charleston and was heading north. Marshall helped persuade 1,500 men to enlist, only to learn that financially strapped Virginia, under Governor Thomas Jefferson, refused to appropriate the funds to buy shoes and uniforms.† The lack of official support disgusted him and, in February 1781, after more than five years in the army, Marshall resigned his commission to begin his law practice.

  His reasons for resigning when the war was at a critical juncture have been a matter of some speculation. Marshall himself said “as we had more officers than soldiers,” he thought he might “without violating the duty I owed my country, pay some attention to my future prospects.”20 The war had caused certainly great deprivation to his family, as it had to most Virginians, and he no doubt felt an obligation to try to earn some money. Also, during the 1780 furlough he had fallen in love with fourteen-year-old Mary Willis Ambler, known as “Polly,” the daughter of the Virginia state treasurer, but well-bred young women didn’t marry paupers. One biographer indicated, however, that Marshall’s departure might have been a result of falling out with Steuben.21 Whatever the reason, eight months later, when Washington defeated Cornwallis at Yorktown, Marshall was some fifty miles away, preparing to set up his law practice in Richmond.

  John Marshall around 1782

  Marshall was made for the law—he once wrote “from infancy I was destined for the bar.”22 He was analytical, logical, and drawn to detail. He enjoyed nothing more than digesting a complex argument to find any minute crack that he might then exploit to demolish the entire edifice. Equally important to his success was an easy delivery, booming laugh, infectious wit, and love of wine and good fellowship. With this fierce and ruthless intellect camouflaged by a shambling, slovenly dressed, loose-limbed joie de vivre, Marshall remained popular with most opponents throughout his life, even while taking the most partisan positions.*

  Regardless of how much Marshall was ready for the law, the courts had not reopened, and so the law was not yet ready for Marshall. His courtship of Polly Ambler, however, provided him entrée into Virginia society, where his quirky backwoods manner, war record, and obvious intelligence came to the attention of political leaders. He was persuaded to run for election for a seat in the Virginia House of Delegates from Fauquier County, and in 1782, still only twenty-seven years old, successfully completed his first foray into politics.23

  Marshall’s initial session as a delegate lasted thirty-eight days. The House of Delegates was a disorganized, inefficient hash, “not a body to inspire respect.”24 Legislative sessions often descended quickly into personal invective and chaos. Little, if anything, ever got done. Observing the anarchy around him, his years as a soldier caused his instinctive Federalism—his desire for orderly, efficient government—to ripen. “The general tendency of state politics convinced me that no safe and permanent remedy [for the suffering in the army] could be found but in a more efficient and better organized general government.”25 From there, Marshall developed not only a belief in a strong national government, but also in a constitution to control it, and an unconditional zeal to guarantee the right to property. But unlike Hamilton and many other northern Federalists, Marshall’s views were always tempered by frontier pragmatism, replacing absolutism with efforts to find workable middle ground.

  There was a sharp division in Virginia between those, like Marshall and, at the time, James Madison, who favored a strong national government, and others, like Jefferson and Patrick Henry, who decried centralized authority. Virginia, not without justification, already saw itself as the political and spiritual center of the nation, and those who stresse
d state autonomy enjoyed great popularity. The Richmond area in particular strongly opposed ceding authority to a central government, and it is a testament to Marshall’s popularity that voters continued to elect him.

  Marshall soon became an influential member of what one biographer termed “the establishment faction” of the Virginia Assembly.26 Concurrent with his legislative service, Marshall, with the help of Edmund Randolph, established a law practice and also became an intermediary for investors who had bought land warrants from the commonwealth and wished to convert them into surveyed acreage.

  Later in 1782, with his future father-in-law’s help, Marshall was elected by joint ballot of the Senate and House of Delegates to be one of eight members of the Virginia council of state, a quasi-executive advisory committee. The position held great prestige but minimal power. Soon afterward, in January 1783, as the Treaty of Paris was being negotiated to end the war, Marshall married Polly Ambler.

  During his tenure on the council of state, Marshall participated in a constitutional controversy that provided a window into his future decision in Marbury. Virginia’s governor, Benjamin Harrison, had asked the council for an opinion as to whether, under a recently passed law, a particular magistrate could be removed for alleged misdeeds while on the bench. Although it was not mandated to take action itself, the council, as part of its statutory duties, was charged with determining whether these misdeeds had actually taken place.