Free for All:
Hail to the ‘Great Chief’

Each of us has a hero, someone who serves as an inspiration for us. We may never have met our heroes; they may or may not be like us. But in unique ways, our heroes touch our lives and help us along the complicated journey we call life.

For persons involved in the American legal system, John Marshall, the “Great Chief Justice” (1755-1835), is a hero. We are pleased to salute him this year, which marks the bicentennial of his appointment as Chief Justice of the United States Supreme Court.

As I write these words, our nation has endured weeks of uncertainty following the 2000 presidential election, resolved only after the U.S. Supreme Court rendered its decision on the matter of the Florida vote.

In listening to various public figures’ comments on the outcome of the election, it was striking to hear many state that while they personally might have preferred a different ending to the saga, they accepted the Supreme Court’s decision as thoughtful, binding and fair to all parties involved.

Much of the credit for the Supreme Court’s standing must go to Marshall. Prior to his becoming Chief Justice in 1801, the Supreme Court was regarded as “an object of derision, even contempt”; the Constitution was dismissed by Alexander Hamilton as a “frail and worthless fabric.” During the years of the Marshall Court, the Constitution was established as the law of the land and the Supreme Court gained respect and recognition as the ultimate arbiter of that law. From that time onward, the justices of the nation’s highest court have continued to define its mission through constitutional study, thoughtful opinions, and impeccable fairness.

Unlike other American heroes, Marshall has no grand monument to immortalize his achievements. His living legacy is that of a strong, vital and impartial Supreme Court, and a Constitution that has been recognized the world over as one of history’s greatest codes of law.

Closer to home, The Virginia Bar Association and the Association for the Preservation of Virginia Antiquities joined together in 1987 to establish The John Marshall Foundation, in order to preserve the John Marshall House in Richmond as a permanent memorial.

The Foundation has supported the operation of the Marshall House, the rehabilitation of the Marshall family gravesite in Richmond, and the annual John Marshall Teaching Awards program for teachers of the U.S. Constitution, among other activities demonstrating its commitment to Marshall’s ideals.

The Foundation is spearheading the Marshall bicentennial celebration, including a gala dinner at The Library of Virginia on February 3. For more information, visit www.vba.org and click on the “John Marshall Foundation” link.

On pages 8-11 of this issue, we include an abridged version of the address delivered by Justice Horace Gray at the Marshall centennnial ceremony on February 4, 1901. A century later, the Gray speech remains timely in its depiction and analysis of Marshall’s life and work. Return to Top

President’s Page:
Strategic Thinking: 2001 and Beyond
Anita O. Poston

In 1995, under the leadership of then-President Phil Stone, the VBA undertook long-term planning which focused largely on reexamination of the mission and strengths of the VBA. A significant outcome of that study was the reaffirmation of the VBA’s historic mission, and the conclusion that it was as relevant in the late 20th century as it had been a century earlier. Other initiatives which resulted from that planning effort included a rededication to professionalism and a recognition of the importance of new communications technology.

The planning effort undertaken this year was more programmatic in nature. President-elect Jeanne Franklin led the deliberations which identified two questions as central:

•On what should the VBA focus its energy and resources over the next three years to fulfill its mission amidst a changing legal and social landscape, and remain relevant to its members and the bar in general?

•What should the VBA do to increase resources available to it, and to facilitate the efficiency of volunteer and staff activities in pursuit of our strategic goals and mission?

Five general goals emerged in response to these strategic questions:

•The VBA should enhance its unique legislative program;

•The VBA should create an in-depth program on legal professionalism, with activities designed to foster it;

•The VBA should examine its financial and governance infrastructure in light of a changing environment and foster greater interaction with the YLD to further strategic goals;

•The VBA should undertake targeted activities designed to increase the level of public confidence in and appreciation of the judicial system, with emphasis on providing information to the public about the law, through some projects in collaboration with the court system; and

•The VBA should seek ways to collaborate with other professional and bar associations (building on what we already do) with a special emphasis on increasing relations with local bar associations.

Implicit in several of the identified goals and activities are (a) increasing opportunities for public service activity by lawyers, including pro bono activity and providing helpful, educational information to the public, and (b) developing closer relations with other professions to enhance the quality of our legislative, public service and educational work, as well as our reputation.

The VBA will begin implementation of this strategic plan in 2001. Some activities have actually already begun with necessary study underway to facilitate action in 2001. Our priorities for implementing these strategic goals are as follows:

1. Enhancing Our Legislative Program

Enhancement of our current law reform program is a top strategic necessity. Objective law reform flows directly from the VBA mission statement. It is also perhaps the VBA’s single most distinguishing characteristic among statewide bar associations, and an invaluable contribution to the administration of justice. Unlike trade associations interested in furthering the interests of their members legislatively, the VBA studies and develops legislation and otherwise assists the General Assembly with legislation only in order to improve the laws of the Commonwealth so as to benefit all citizens.

To the extent our legislative mission and activities are known, the VBA is held in good regard by members of the General Assembly . This is a precious attribute, particularly in a legislature with fewer lawyers. It must be protected and fostered by the ongoing quality of our legislative work and by increasing effectiveness of our efforts to communicate that work in the General Assembly.

Continuing to earn and increase regard for our legislative work is vital to fulfillment of the VBA’s mission. It also can be viewed as increasingly vital to the success of the General Assembly which is expected to deal with massive amounts of legislation in a brief period of time and only limited specific legal staff available to individual members. Changes in the reality of the legislative process render objective, quality volunteer assistance to the General Assembly all the more important; we are, and can be, uniquely positioned to supply that. Such changes also render constituent contact as an important method of communicating with legislators.

2. Professionalism: Creating An In-Depth, Broad-Based Initiative to Address the Full Dimensions of Being a Legal Professional

Just as important as the focus on enhancing our legislative program is the strategic need to address professionalism issues anew, both creatively and effectively. As with law reform, this flows directly from the VBA mission. Concern about professionalism was in fact the driving force in the formation of the VBA in the 1880s. And as stated earlier, a unique VBA professionalism program was born from the 1995 Long-Range Plan. Consisting largely of a “traveling” ethics course made available to any bar association, it is a valuable and successful innovation. The profession and the Association are at a stage, however, where additional, bold approaches are warranted.

The disciplinary rules are a foundation, but not the only foundation, of a fully dimensional lawyer as a professional. Changes in the legal market and in society itself demand that we pay attention to the entirety of those factors that affect how we function as professionals. The VBA’s focus on professionalism, in its next stage, will be unique in that we will seek to broaden the definition of what it means to be a fully dimensional legal professional. We will also do more than merely talk about it; we will encourage mechanisms to help every member achieve and maintain that standard.

We propose to redefine professionalism to include attendance to one’s character and work ethic, including public or community service as an essential component, in addition to attendance to specific ethical rules. This redefinition will include due regard to furthering a proper work/lifestyle balance, with attention to one’s physical, mental and spiritual health. Civility and integrity in all dealings with clients, the judicial system and the public cannot help but follow if a lawyer focuses on these elements as being essential to his or her fully rounded professional character. This should become contagious, and as such will contribute in the long run to the improved administration of justice and to new respect for the rule of law and its agents. When operational and well-known as a signature VBA focus, it should also enhance our credibility in the larger community.

3. Increasing the Level of Public Understanding of and Confidence in the Judicial System

Support of the “Rule of Law” is the cornerstone of our free society. The goal of this third strategic focus is to enlist the public’s support of the ideal of our legal system. To achieve our goal, we must earn the public’s respect for the rule of law and the professionals who serve it. Providing information to the public about how different aspects of the system work is an effective way to earn this respect by making the system more understandable as well as accessible to the public. Our law reform efforts contribute to this in an important but subtle way, in that improving the Code of Virginia can make the law more understandable for the public. But this specific focus is on the communication aspect of upholding the rule of law and improving the administration of justice.

4. Collaboration with Other Bar Associations, with a particular emphasis on local bar associations

Maintaining and fostering cordial relations with other bar associations in Virginia will be an ongoing concern of the VBA. Apart from that, however, the strategic aspect of this focus is to maintain and increase our membership pool and future leadership pool by increasing our visibility. Letting Virginia lawyers know what is distinctively valuable about VBA involvement and support, particularly on a grassroots level, is vital to that strategic focus, as is maintaining enthusiasm among our members and being seen as valuable and accessible.

5. Infrastructure

Although this strategic focus is listed last, it is in fact a current and will be an ongoing priority because it is the basis on which all strategic activity will rest. We cannot do more than the VBA currently does without (a) augmenting our annual budget to fund additional staff assistance and new projects, and (b) developing a fundraising mechanism to support that. Also, we cannot do more without effectively focusing volunteer time and energy in service of strategic goals of the Association.

As this VBA year closes, let me say it has been a pleasure to serve as your President. Many thanks to all of you. Return to Top

The 2001 General Assembly:
With a full and varied agenda of proposals,
VBA prepares for a busy legislative session

The General Assembly of Virginia begins its 2001 session — a “short” one — on January 10 and ends it 46 working days later on February 24.

In between, legislators will wrestle with hundreds of bills, although recent moves by the Joint Rules Committee indicate that the workload may be streamlined to a certain extent, thanks to a December 18 deadline for prefiled bills drafting requests and proposed new limits on the number of bills which can be introduced by each legislator.

As in previous years, The Virginia Bar Association has a full and varied agenda of proposals prepared by its sections and committees and reviewed by the VBA Executive Committee at its October and December meetings.

Perhaps the most visible legislative priority for the VBA in 2001 will be addressing issues raised by remote electronic access to court records. The VBA Coalition on Family Law, which includes representation from all Virginia family law groups, has worked through the fall in an attempt to determine how the question of electronic access impacts delicate family law information and needs. There will be several other important family law bills to watch as well.

Although space limitations preclude a full, detailed description of the VBA’s 2001 legislative agenda, the following overview will provide some guidance as to the Association’s activities.

In terms of sheer numbers, the VBA Wills, Trusts & Estates Section leads the way with nine — count ’em, nine! — proposals. The VBA Construction & Public Contracts Law Section is not far behind with six items on its agenda, and the Civil Litigation Section has several proposals recommended by the Boyd-Graves Conference. The VBA Business Law Section will propose amendments to the Limited Liability Company Act.

Other agenda items have been propounded by the Criminal Law, Health Law, and Intellectual Property & Information Technology Law Sections.

The carryover of H.B. 1260, which dealt with the insanity defense in juvenile proceedings, was withdrawn and a new bill for 2001 is in process.

In matters involving the judiciary, former VBA President and Delegate Whitt Clement (D-Danville) is expected to introduce a merit selection bill. The VBA will also support proposals of the Office of the Executive Secretary of the Virginia Supreme Court, as appropriate.

The VBA continues to oppose restrictions on legal services funding and to support federal and state legal aid budgets.Other subject areas such as DNA testing implications, real estate and children’s issues will bear close watching as well. Return to Top

John Marshall Bicentennial:
‘No higher inspiration, nor surer guide’:
Justice Horace Gray’s centennial address

The Honorable Horace Gray of Massachusetts, associate justice of the United States Supreme Court, delivered an address on the life and influence of John Marshall at the centennial celebration of Marshall’s appointment as Chief Justice of the United States in Richmond on February 4, 1901. Described at the time as “a model of painstaking work” which “must always be regarded as an authority,” Mr. Justice Gray’s address remains a powerful and comprehensive review of Marshall’s life, career and legacy. While space does not permit the reprinting of the full address, which ran to 38 pages in the Association’s 1901 Annual Report, this abridged version contains key passages from the original text.—The Editor

One hundred years ago today, the Supreme Court of the United States, after sitting for a few years in Philadelphia, met for the first time in Washington, the permanent capital of the Nation; and John Marshall, a citizen of Virginia, having his home in Richmond, and a member of this Bar, took his seat as Chief Justice of the United States.

In inviting a citizen of another ancient Commonwealth to take part in your commemoration of that epoch in our national history, by addressing you on the Life, Character and Influence of Chief Justice Marshall, you have been pleased to mention that it was President John Adams of Massachusetts who gave Chief Justice Marshall to the Nation, and that I am a citizen of Massachusetts and a member of the court over which Chief Justice Marshall presided; and to refer to the most cordial relations formerly existing between your State and my own, now happily restored and, as we all trust, being reestablished in a closer degree.

Heartily reciprocating your kindly sentiments, and deeply touched in my inmost feelings and convictions, your invitation has had the force of a summons that could not be gainsaid.

Before the adoption of the Constitution, one of the chief defects in the government of the United States was the want of a national judiciary, of which there was no trace other than in the tribunals constituted by the Continental Congress, under powers specifically conferred by the Articles of Confederation, for the decision of prize causes, or of controversies between two or more States.

During the first 12 years of the Supreme Court, there were frequent changes in its membership: three by the appointees preferring high offices in the governments of their several States; three others by resignation; one by rejection by the Senate; and two by death.

John Marshall, then Secretary of State, was nominated as Chief Justice of the United States by President Adams on the 20th, confirmed by the Senate on the 27th, and commissioned on the 31st of January, 1801.

His characteristic letter of acceptance, addressed to the President and dated February 4, 1801, was in these words:

“Sir: I pray you to accept my grateful acknowledgments for the honor conferred on me in appointing me Chief Justice of the United States.
“This additional and flattering mark of your good opinion has made an impression on my mind which time will not efface.
“I shall enter immediately on the duties of the office, and hope never to give you occasion to regret having made this appointment.
“With the most respectful attachment,
“I am, sir,
“Your obedient servant,
“J. MARSHALL.”

On the same day, as is stated on the record of the Supreme Court, his commission as Chief Justice “bearing date the 31st day of January, A.D. 1801, and of the Independence of the United States the twenty-fifth,” was “read in open court, and the said John Marshall, having taken the oaths prescribed by law, took his seat upon the Bench.”

Before Marshall became Chief Justice, very few cases of constitutional law were decided by the Supreme Court.

John Marshall was Chief Justice of the United States for more than 34 years, from his taking the oath of office on February 4, 1801, to his death on July 6, 1835.

After his accession, the changes in the membership of the Supreme Court became much less frequent than they had been during the earlier years of the court.

Before Marshall’s appointment, the practice appears to have been for all the Justices to deliver their opinions seriatim — a practice which tends to bring into prominence the subordinate points of view in which they differ, and to obscure the principal point on which they agree; and while it sometimes makes the report of the case more interesting, tends to impair its weight as a precedent for the determination of future controversies. Under Marshall, all subordinate differences seem to have been settled in conference, or at any rate, less often displayed to the public; and the opinion of the court was usually delivered by one Justice, and in the majority of important, and especially of constitutional cases, by Marshall himself. During his time there were few dissenting opinions.

Marshall’s judicial demeanor is best stated in the words of an eyewitness. Mr. Binney, who had been admitted to the Bar of the Supreme Court in 1809, and who had often practiced before him, tells us:
“He was endued by nature with a patience that was never surpassed—patience to hear that which he knew already, that which he disapproved, that which questioned himself. When he ceased to hear, it was not because his patience was exhausted, but because it ceased to be a virtue.

“His carriage in the discharge of his judicial business was faultless. Whether the argument was animated or dull, instructive or superficial, the regard of his expressive eye was an assurance that nothing that ought to affect the cause was lost by inattention or indifference; and the courtesy of his general manner was only so far restrained on the Bench, as was necessary for the dignity of office, and for the suppression of familiarity.

“His industry and powers of labor, when contemplated in connection with his social temper, show a facility that does not generally belong to parts of such strength.

“To qualities such as these, he joined an immovable firmness befitting the office of Presiding Judge in the highest tribunal of the country. It was not the result of excited feeling, and consequently never rose or fell with the emotions of the day. It was the constitution of his nature, and sprung from the composure of a mind undisturbed by doubt, and of a heart unsusceptible of fear.

“In him his country have [sic] seen that triple union of lawyer, statesman and patriot, which completes the frame of a great constitutional judge.”

The jurisdiction of the court over which he presided was not confined to one department or branch of the law; it included common law, equity, maritime law, the law of admiralty and prize, and in some degree, the civil law of Spain and of France.

Beyond all this, the jurisdiction of his court extended to constitutional law, in a more comprehensive sense than ever belonged to the courts of any other country.

In England, there is no law of higher sanction than an act of Parliament; and Parliament has uncontrolled power to change or to repeal even Magna Charta. It is otherwise in this country.

One of the earliest and most important judgments of Marshall is Marbury against Madison, decided in 1803, in which the paramount obligation of the Constitution over all ordinary statutes was declared and established by a course of reasoning which may be indicated by a few extracts from the opinion.
“The Constitution is either a superior paramount law, unchangeable by ordinary means; or it is on a level with ordinary legislative acts, and like other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society.

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

“The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”

In the light of experience, it is curious to look back upon the doubt and apprehension entertained by some of the Northern Federalists with regard to Marshall shortly before he became Chief Justice. For instance, on the 29th of December, 1799, when he had just entered the House of Representatives, Oliver Wolcott, then Secretary of the Treasury under President Adams, wrote to Fisher Ames: “He is doubtless a man of virtue and distinguished talents; but he will think much of the State of Virginia, and is too much disposed to govern the world according to rules of logic; he will read and expound the Constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will not perceive the importance.”

Why should he not “think much of the State of Virginia?” What State of the Union had produced such a galaxy of great men? And what American, worthy of the name, does not cherish a peculiar affection for the State of his birth and his home? But such an affection for one’s own State is by no means incompatible with a paramount allegiance and devotion to the United States as one’s country. There is no more striking illustration of this truth than Chief Justice Marshall himself.

It was upon writs of error to the highest court of Virginia in which a decision in the case could be had—at first in 1816, in the case of Martin against Hunter’s Lessee, a case between private individuals; and afterwards, in 1821, in the case of Cohens against Virginia, a criminal prosecution instituted by the State— that the Supreme Court, under the lead of Chief Justice Marshall, upheld and established its appellate jurisdiction, under the Constitution and the Judiciary Act, to review the judgment of the State court against a right claimed under the Constitution or the laws of the United States. In the first case, indeed, perhaps because it came from his own State, he allowed Mr. Justice Story to draw up the opinion of the court. But in the second case he himself expressed the unanimous conclusion of the court in one of his most elaborate and most powerful judgments.

The idea that he would “read and expound the Constitution as if it were a penal statute” seems now almost ludicrous. Take, for instance, his judgments in the cases of McCulloch against Maryland in 1819 and of Wiltberger in 1820. In Wiltberger’s case he clearly stated the reasons and the limits of the rule that penal statutes are to be construed strictly. But in McCulloch’s case, when dealing with the question of what powers may be implied from the express grants to Congress in the Constitution, he said: “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could hardly be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.”

In McCulloch’s case, after full discussion, he thus defined the rule: “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.”

Among his other greatest judgments are United States against Peters, on the sanctity of judgments of the courts of the United States, Fletcher against Peck, and Dartmouth College against Woodward, that a grant by a State is a contract, the obligation of which cannot afterwards be impaired; Gibbons against Ogden and Brown against Maryland, on the paramount nature of the power of the power of Congress to regulate commerce with foreign nations and among the several States; Sturges against Crowninshield, on the power of the States to pass insolvent laws; and Osborn against the Bank of the United States, on the subject of suits by the Bank of the United States.

His letters to Mr. Justice Story show that he often consulted him on admiralty cases pending in the Circuit Court.

One is apt to forget that Mr. Justice Story was originally a Democrat, and was appointed to the court by James Madison, a Democratic President. He soon became a devoted adherent of Chief Justice Marshall, and fully recognized his leadership.

In an article in the North American Review in 1828, he wrote: “We resume the subject of the constitutional labors of Chief Justice Marshall. We emphatically say, of Chief Justice Marshall; for though we would not be unjust to those learned gentlemen who have from time to time been his associates on the Bench, we are quite sure than they would be ready to admit, what the public universally believe, that his master mind has presided in their deliberations, and given to the results a cogency of reasoning, a depth of remark, a persuasiveness of argument, a clearness of elaboration of illustration, and an elevation and comprehensiveness of conclusion, to which none others offer a parallel. Few decisions upon constitutional questions have been made, in which he has not delivered the opinion of the court; and in these few, the duty devolved upon others to their own regret, either because he did not sit in the cause, or from motives of delicacy abstained from taking an active part.”

Five years later, in dedicating his Commentaries on the Constitution of the United States to Chief Justice Marshall, Mr. Justice Story said: “When I look back upon your judicial labors during a period of 32 years, it is difficult to suppress astonishment at their extent and variety, and at the exact learning, the profound reasoning and the solid principles which they everywhere display. Other judges have attained an elevated reputation by similar labors, in a single department of jurisprudence. But in one department (it need scarcely be said that I allude to that of constitutional law), the common consent of your countrymen has admitted you to stand without a rival. Posterity will assuredly confirm, by its deliberate award, what the present age has approved as an act of undisputed justice.”

In his diary, under date of July 10, 1835, Mr. John Quincy Adams wrote: “John Marshall, Chief Justice of the United States, died at Philadelphia last Monday, the 4th instant. He was one of the most eminent men that this country has ever produced. He has held this appointment 35 years. It was the last act of my father’s administration, and one of the most important services rendered by him to his country. All constitutional governments are flexible things, and as the Supreme Judicial Court is the tribunal of last resort for the construction of the Constitution and the laws, the office of Chief Justice of the court is a station of the highest trust, of the deepest responsibility, and of influence far more extensive than that of the President of the United States. John Marshall was a Federalist of the Washington school. The Associate Judges, from the time of his appointment, have generally been taken from the Democratic or Jeffersonian party. Marshall, by the ascendency of his genius, by the amenity of his deportment, and by the imperturbable command of his temper, has given a permanent and systematic character to the decisions of the court, and settled many great constitutional questions favorably to the continuance of the Union.”

In the same diary again, a month later, Mr. Adams wrote: “The office of Chief Justice requires a mind of energy sufficient to influence generally the minds of a majority of his associates; to accommodate his judgment to theirs, or theirs to his own; a judgment also capable of abiding the test of time and of giving satisfaction to the public. It requires a man profoundly learned in the law of nations, in the commercial and maritime law, in the civil law, in the common law of England; and in the general statute laws of the several States of the Union. With all these powers steadily exercised during a period of 34 years, Chief Justice Marshall has settled many questions of constitutional law, certainly more than all the Presidents of the United States together.”

“The American Constitution, as it now stands,” says Mr. James Bryce in his book on The American Commonwealth, “is a far more complete and finished instrument than it was when it came fire-new from the hands of the Convention. It is not merely their work, but the work of the judges, and most of all of one man, the great Chief Justice Marshall. His work of building up and working out the Constitution was accomplished not so much by the decisions he gave, as by the judgments in which he expounded the principles of these decisions, judgments which, for their philosophical breadth, the luminous exactness of their reasoning, and the fine political sense which pervades them, have never been surpassed, and rarely equalled, by the most famous jurists of modern Europe or ancient Rome. He grasped with extraordinary force and clearness the cardinal idea that the creation of a national government implies the grant of all such subsidiary powers as are requisite to the effectuation of its main powers and purposes; but he developed and applied this idea with so much prudence and sobriety, never treading on purely political ground, never indulging the temptation to theorize, but content to follow out as a lawyer the consequences of legal principles, that the Constitution seemed not so much to rise under his hands to its full stature, as to be gradually unveiled by him, till it stood revealed in the harmonious perfection of the form which its framers had designed.”

The very greatness and completeness of the work of Chief Justice Marshall tends to prevent our appreciating how great it was.

He was a great statesman, as well as a great lawyer, and yet constantly observed the distinction between law, as judicially administered, and statesmanship.

Marshall grew up with the Constitution. He served in the Legislature of Virginia before and after its adoption, and in the Convention of Virginia by which it was ratified. He took part in its administration, abroad and at home, in a foreign mission, in the House of Representatives, and in the Department of State, before he became the head of the judiciary, within a quarter of the century after the Declaration of Independence, and less than 12 years after the Constitution was established.
During the 34 years of his Chief Justiceship he expounded and applied the Constitution in almost every aspect, with unexampled sagacity, courage and caution.

He had an intuitive perception of the real issue of every case, however complicated, and of the way in which it should be decided.

His manner of reasoning was peculiarly judicial. It was simple, direct, clear, strong, earnest, logical, comprehensive, demonstrative, starting from admitted premises, frankly meeting every difficulty, presenting the case in every possible aspect, and leading to philosophical and profoundly wise conclusions, sound in theory and practical in result. He recognized that, next to a right decision, it was important that reasons for the decision should be fully stated, so as to satisfy the parties and the public. And it may be said of him, as Charles Butler, in his Reminiscences, says of Lord Camden, that he sometimes “rose to sublime strains of eloquence: but their sublimity was altogether in the sentiment; the diction retained its simplicity, and this increased the effect.”

It was in the comparatively untrodden domain of constitutional law, in bringing acts of the Legislature and of the Executive to the test of the fundamental law of the Constitution, that his judicial capacity was preeminently shown. Deciding upon legal grounds, and only so much as was necessary for the disposition of the particular case, he constantly kept in mind the whole scheme of the Constitution. And he answered all possible objections with such fullness and such power as to make his conclusions appear natural and inevitable.

The principles affirmed by his judgments have become axioms of constitutional law. And it is difficult to overestimate the effect which those judgments have had in quieting controversies on constitutional questions, and in creating or confirming a sentiment of allegiance to the Constitution, as loyal and devoted as ever was given to any sovereign.

A service of nearly 20 years on the Bench of the Supreme Court has confirmed me in this estimate. We must remember that, as has been well said by an eminent advocate of our own time, Mr. Edward J. Phelps, in speaking of Chief Justice Marshall: “The test of historical greatness—the sort of greatness that becomes important in future history—is not great ability, combined with great opportunity, greatly employed.” None other of the great judges of England or of America ever had the great opportunity that fell to the lot of Marshall.

John Marshall, during his term of office as Chief Justice, undertook no other public employment, except that, at the beginning of that term, and at the particular request of President John Adams, he continued to hold the office of Secretary of State for the last month of his administration; and that, at 74 years of age, and after having been Chief Justice 28 years, he was persuaded to serve as a member of the Virginia Convention of 1829-30 to revise the Constitution of the State.

His private character cannot be more felicitously or more feelingly summed up than in the resolutions drawn up by Mr. Leigh, and unanimously adopted by the Bar of this Circuit, soon after the death of the Chief Justice: “His private life was worthy of the exalted character he sustained in public station. The unaffected simplicity of his manners, the spotless purity of his morals, his social, gentle, cheerful disposition; his habitual self-denial, and boundless generosity towards others; the strength and constancy of his attachments; his kindness to his friends and neighbors; his exemplary conduct in the relations of son, brother, husband, father; his numerous charities; his benevolence towards all men, and his ever active beneficence; these amiable qualities shone so conspicuously in him, throughout his life, that, highly as he was respected, he had the rare happiness to be yet more beloved.”

Let me add a few words from the address of Mr. William Maxwell before the Virginia Historical and Philosophical Society on March 2, 1836, preserved in the Southern Literary Messenger: “He came about amongst us, like a father amongst his children, like a patriarch amongst his people—like that patriarch whom the sacred Scriptures have canonized for our admiration — ‘when the eye saw him, it blessed him; when the ear heard him, it gave witness to him; and after his words men spake not again.’”

Brethren of the Bar of the Old Dominion; Fellow-citizens of the United States;

To whatsoever professional duty or public office we may any of us be called, we can find, in the long line of eminent judges with whom Almighty Providence has blessed our race, no higher inspiration, nor surer guide, than in the example and in the teachings of John Marshall. Return to Top

Across the Commonwealth

Virginia Business feature promotes lawyers

Several months ago, Virginia Business decided it was time to identify and honor the top attorneys throughout Virginia. For assistance, the magazine’s top editors turned to that “venerable voluntary professional group,” as they put it, The Virginia Bar Association.

The result: a cover story in the magazine’s December issue featuring profiles of top attorneys in 10 broad areas of law identified by the magazine’s editors and a listing of nominated attorneys in each of the 10 legal fields, bringing the total of honorees to nearly 300.

While the VBA did not sponsor the survey, it was agreed that advice and counsel would be appropriate. Thus, VBA leaders reviewed survey materials before they were mailed, but were not involved in the voting or ranking. As with any such endeavor, strict rules were imposed. Lawyers could not nominate themselves. They could nominate attorneys in their own law firms, but better scores were given to lawyers they nominated from other firms. Approximately 800 respondents participated in the survey.

The survey resulted in a roster of lawyers representing a variety of geographical areas, practice fields, and law firms in Virginia. While numerous VBA leaders and members made the list, a sizable number of non-member lawyers were also named by their peers to the list.

According to Virginia Business Executive Editor Peter Galuszka, several trends and themes emerged from the survey results:

•The center of the Virginia legal profession is still in Richmond, but Northern Virginia firms are growing along with the high-tech industry in that region. Top attorneys were named in areas across the state, however.

•Fields like information technology and intellectual property are expanding quickly as new technological developments become more widespread.

•There is more of a tendency for lawyers to concentrate in a particular area of law, but mega-firms continue to offer “one-stop shopping” for legal services.

•Despite an influx of giant multi-jurisdictional firms moving into Virginia, Richmond-based Hunton & Williams remains the largest law firm between Washington and Atlanta. Return to Top

Flood relief project results in law library

In September 1999, floods resulting from Hurricane Floyd sent the normally placid Blackwater River overflowing its banks throughout the city of Franklin and its surrounding area in Southampton County in southeast Virginia.

Among the local workers devastated and displaced by the flooding were a number of lawyers, many of whom lost valuable legal resources and equipment to floodwater and mud damage.

The VBA has a tradition of responding to lawyers hit hard by natural disasters. In 1992-93, the VBA came to the aid of Florida lawyers whose legal resources were damaged by Hurricane Andrew; in 1997, the VBA raised funds to assist North Dakota lawyers who had lost their offices in torrential floods.

Shortly after the full extent of the flood damage became known, the VBA, led by then-President David Craig Landin of Richmond, spearheaded a statewide relief effort for the Franklin-Southampton lawyers. A fund was established within The Virginia Bar Association Foundation, a 501(c)(3) entity.
As donations were received, a major gift from the Virginia Law Foundation led the way. It was decided to use the flood relief fund, which eventually totaled more than $32,000, for the creation of a centralized law library at the Southampton County Courthouse in Courtland, with computers providing access to electronic resources for lawyers.

Edward C. “Ted” Minor, a VBA member from Southampton County, served as the local coordinator of the relief project.

On December 14, the new law library was unveiled and opened for business in a special ceremony attended by approximately 20 members of the Franklin-Southampton County Bar Association and representatives of the VBA and the Virginia Law Foundation.

The library was enhanced by LEXIS Law Publishing’s donation of CD-ROM resources. Return to Top

Franklin to become VBA president this month

Jeanne F. Franklin will become The Virginia Bar Association’s president on Saturday, January 20, during the VBA’s annual business meeting and breakfast at the Williamsburg Lodge & Conference Center.

Franklin is a sole practitioner in Alexandria, concentrating in the area of health care law since 1989. She also serves as a consultant to clients, particularly health care providers, participating in organization development efforts such as strategic planning and practice assessment.

She received her B.A. degree cum laude from Vassar College and her J.D. degree from the University of Virginia School of Law. She holds a certificate in organization development from Georgetown University and has studied at the University of Michigan School of Public Health. In addition to health care law, her resume includes work in legal services, Native American issues, and elder care issues, and she is a past recipient of the Solicitor’s Special Achievement Award (U.S. Department of the Interior).

Franklin is the current VBA president-elect. She has chaired the VBA Executive Committee, the VBA Committee on the Needs of the Mentally Disabled and the VBA Membership Task Group, is a member of the VBA Health Law Section, and has served on the VBA Executive Committee since 1997. She is also a member of the National Health Lawyers Association. Return to Top

Futurist Dator will appear in Williamsburg

Professor James Allen Dator of the University of Hawaii, a nationally-known futurist, will be the VBA’s guest for a general session program on January 19 during the 111th Annual Meeting at the Williamsburg Lodge & Conference Center.

“2001: An Odyssey Into the Future — What Are the Critical Legal Issues for Us?” will be sponsored by the VBA Committee on Issues of National and State Importance.

Prof. Dator, who directs the Hawaii Research Center for Futures Studies, is a former president of the World Futures Studies Federation. He is a fellow of the World Academy of Art and Science, Woodrow Wilson Foundation, Danforth Foundation and Phi Beta Kappa. He is a co-director of the Space and Society Division and a member of the Academic Council for the master of space studies program of the International Space University in Strasbourg, France. An associate of the Future Generations Alliance and Foundation in Kyoto, Japan, he is also a founding member of the Committee for Viable Constitutionalism.

His major areas of specialization include political futures studies, especially the forecasting and design of new political institutions, and the futures of law, education and technology; space and society, especially the design of governance systems for space settlements; political-economic futures of the Pacific Rim nations; and media production and the politics of media. Return to Top

VBA members selected as Law Foundation Fellows

Fifteen members of The Virginia Bar Association have been nominated as Fellows of the Virginia Law Foundation and will be inducted as the 2001 Class of Fellows on Thursday, January 18, at the Foundation’s annual banquet at the Williamsburg Lodge and Conference Center.

The VBA-member nominees are as follows:

James E. Brydges Jr., Norfolk
Donald H. Clark, Virginia Beach
James A.L. Daniel, Danville
Robert E. Eicher, Richmond
Lane R. Gabeler, McLean
Prof. Roger D. Groot, Buena Vista
Douglas L. Guynn, Harrisonburg
Glenn M. Hodge, Harrisonburg
Wade W. Massie, Abingdon
Thomas J. Michie, Charlottesville
Joseph P. Rapisarda Jr., Richmond
Alan B. Rashkind, Norfolk
Prof. Robert E. Shepherd Jr., Richmond
Barbara Ann Williams, Richmond
Ebb H. Williams, Martinsville

Other nominated Fellows include Leonard W. Lambert of Richmond and Robert E. Shoun of Fairfax. Return to Top

Wake Forest takes regional Moot Court honors

Wake Forest University won Region IV honors and second place in the National Moot Court Competition in Richmond November 10-11. Because two teams from the same law school are not allowed to advance to the national competition in New York City, the William & Mary team of [names] will go in their stead.

Final-round judges included Virginia’s Chief Justice Harry L. Carrico; Hon. Charles R. Simpson III, chief judge of the U.S. District Court for the Western District of Kentucky; Hon. Larry V. Starcher of the West Virginia Supreme Court of Appeals; Hon. James C. Turk of the U.S. District Court for the Western District of Virginia; and Hon. James A. Wynn Jr. of the North Carolina Court of Appeals.

The competition is sponsored by the Young Lawyers Committee of the Bar of the City of New York and the American College of Trial Lawyers. The VBA Young Lawyers Division sponsors the regional contest for law schools in Virginia, North Carolina, West Virginia and Kentucky. Co-chairs of the competition organizing committee for the VBA/YLD are Shannon P. Garbett and Elizabeth Mason Horsley, both of Williams, Mullen, Clark & Dobbins in Richmond.

Competition sponsors were as follows: Allen, Allen, Allen & Allen, P.C.; Brault, Palmer, Grove, Zimmerman, White & Mims; Chandler & Halasz, Inc.; Cowan & Owen; Dave Jones & Associates; GEICO Philanthropic Foundation; GEICO Staff Counsel; George B. Little & Associates; Hirschler, Fleischer, Weinberg, Cox & Allen, P.C.; Hogan & Hartson, L.L.P.; Hunton & Williams; Jackson & Kelly; LeClair Ryan, P.C.; The Lex Group; Mays & Valentine, L.L.P.; McGuireWoods, L.L.P.; McSweeney, Burtch & Crump, P.C.; Midkiff, Muncie & Ross, P.C.; Nixon Peabody, L.L.P.; Oblon, Spivak, McClelland, Maier & Neustadt, P.C.; PennStuart; Taylor, Hazen, Kaufman & Pinchbeck, P.L.C.; Walsh, Colucci, Stackhouse, Emrich & Lubely, P.C.; Williams, Mullen, Clark & Dobbins; Womble, Carlyle, Sandridge & Rice, P.L.L.C.; Yost Associates. Return to Top

Training session planned by VBA/YLD, NAMI-Va. Chapter

The VBA Young Lawyers Division’s Model Legal Services Project for the Mentally Ill Committee will join with the National Alliance for the Mentally Ill’s Virginia Chapter (NAMI) to offer a training session for attorneys, “Representing the Mentally Ill and Disabled in Virginia,” on March 23 at the Downtown Club in Richmond.

The program will be a training session for attorneys and a legal education forum for other participants, and is expected to offer CLE credit. Details will be posted on the VBA website as they become available.

Patrick Hanes and King Tower, both of Williams, Mullen, Clark & Dobbins in Richmond, co-chair the committee for the VBA/YLD. For more information, please call King Tower at (804) 783-6438. Return to Top

News in Brief

On February 3, 2001, Justice Antonin Scalia of the U.S. Supreme Court will address the “John Marshall 200” gala dinner at The Library of Virginia in Richmond. The VBA is among the sponsors of the event, which is a fundraiser for the John Marshall Foundation. For more details, please call Julie Plunkett at (804) 648-7833.

Three VBA members were recently selected by Inside Business magazine for the 2000 “Top 40 Under 40” listing of emerging community leaders in the metropolitan Richmond area: Calvin W. “Woody” Fowler Jr. of Williams Mullen Clark & Dobbins, James R. Kibler Jr. of McCandlish, Kaine & Grant (chair of the VBA Administrative Law Section), and Ruth E. Nathanson of Maloney Parks Clarke & Nathanson.

If you’ve tuned in to the BBC’s World News during the weeks following the presidential election, you’ve probably spotted the familiar face of VBA Domestic Relations Section Chair Glenn Lewis, who serves as an American legal analyst for the British network.

Support VBA activities by becoming a Patron in 2001. By contributing $100 in addition to your membership and section dues, you will provide invaluable support for the many public and professional services offered by the Association. Check the box on your membership dues statement, or mail your check separately. Call (804) 644-0041 for more information.

Is your address up-to-date with the VBA? Please keep the VBA staff informed of any changes to your name, employer, postal address, telephone, fax or e-mail listings. Changes may be faxed to (804) 644-0052 or e-mailed to thevba@vba.org. Return to Top

Copyright 2007 The Virginia Bar Association