Unearthing John Marshall's Major Out-of-Court Constitutional Commentary John Marshall, a Friend of the Constitution: In Defense and Elaboration of McCulloch v. Maryland: Introduction 21 Stanford Law Review 1968-1969

21 Stan. L. Rev. 449 (1968-1969)
Unearthing John Marshall's Major Out-of-Court Constitutional Commentary

handle is hein.journals/stflr21 and id is 473 raw text is: John Marshall,
A Friend of the Constitution:
In Defense and Elaboration of
McCulloch v. Maryland
Introduction:
Unearthing John Marshall's
Major Out-of-Court
Constitutional Commentary
Gerald Gunther*
The i5Oth anniversary of McCulloch v. Maryland' may be an appro-
priate time for the first identification and publication of John Marshall's
main extrajudicial defense of that great case. It is certainly high time. It is
not news, to be sure, that the stinging Virginia attacks on McCulloch pro-
voked Marshall to the only newspaper replies of his judicial career: the
Chief Justice of the United States and the leading Virginia judge, Spencer
Roane, garbed in pseudonyms, did indeed engage in an extraordinary news-
paper battle. But there are significant flaws in the traditional description
of the ammunition used by the combatants: probably, Roane has been
credited with too much; certainly, too little has been attributed to Marshall.
The received view is a simple one: after McCulloch, Roane launched a
double-barreled attack in the Richmond Enquirer, the mouthpiece of his
Richmond Junto; he began with two relatively mild essays under the nom
de plume Amphictyon and continued with stepped-up intensity in four
pieces carrying the pseudonym Hampden; Marshall countered with two
articles signed A Friend to the Union, in the Philadelphia Union But
* B.A. 1949, Brooklyn College; M.A. 195o, Columbia University; LL.B. 1953, Harvard Univer-
sity. Professor of Law, Stanford University. This publication is an outgrowth of work on a volume of
the History of the United States Supreme Court now in preparation under the auspices of the Perma-
nent Committee for the Oliver Wendell Holmes Devise.
1. 17U.S. (4 Wheat.) 316 (Mar. 6, I8ig).
2. The most influential version of the traditional understanding is 4 A. BEvERmGE, Tim LIFE OF
JO-N MAE5HALL 312-23 (i919). See also, e.g., V. M uPHY, CoNGRESS AND THE COURT 20 (1962);
i C. WARREN, ThE SUPREME CoURT rN UNITED STATES HIsTORY 515-18 (1922); AN AUTOBIoGRAPHY
OF WIN Sus'naam CoURT 77-78 (A. Westin ed. 1963); Mays, Judge Spencer Roane, in 40 ANNUAL
REPORT OF VIRGINIA STATE BAR AssOCIATION 446, 457-58 (1928).

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