The Cambridge History of English and American Literature in 18 Volumes (1907–21).
VOLUME XVI. Early National Literature, Part II; Later National Literature, Part I.
§ 6. His Great Opinions
The layman reading Marshall’s decisions will be struck by the fact that he did not balance an opinion on a long line of precedents or seek refuge behind the thoughts and words of others. Few references to authority are to be found, and in some of his greatest cases there is not a single citation of precedent. He begins with simple statements, founded, one is led to think, in common sense, and then, with a careful but not overwrought analysis, he leads one forward to his conclusions, always with a directness and a simplicity which are characteristic of strong mental grasp but conceal the cleverness with which the road has been chosen or the arguments exposed. By his very statement of the issues involved in a case he could quietly disclose to the litigants against whom he was ruling the far-reaching and perhaps destructive consequences of their own contentions. And, as we have said, he did this, as he must needs do it in constitutional decisions, not by an elaborate dissecting of precedent and legal authority, but by a calm outlook upon the field and a searching analysis of the elements involved in the discussion. In his most important cases he appears to rise far above the details of the immediate controversy, one might almost say above the merits of the particular case, and to have his eye on the big principles affecting the future growth of the nation. And thus he created American constitutional law; at least, not to exaggerate, he marked out the broad lines of constitutional construction and fashioned the fundamental principles on which union and government might rest.