I appreciate Bobby's elaboration. My own sense is that Marshall's view of judicial power closely tracked dominant opinion among governing elites; moreover, Marshall's nationalism closely tracked the evolving nationalism of the Virginia Dynasty (with the understanding that there are always competing wings and intramural battles among elites). Maybe the founders could not have predicted that con law would develop exactly as it did under Marshall, but they also could not have predicted how the rest of the regime developed. It's impossible to say whether things would have worked out very differently if someone other than Marshall was at the helm, but (for what it's worth) I think the standard accounts of constitutional development underestimate the extent to which judicial power (here and elsewhere) is politically constructed rather than the byproduct of the independent will of a small number of autonomous judicial statesmen.
Howard Gillman
