Photo courtesy of the Wisconsin State Historical Society, negative #
Seldom has a Wisconsin judge been named more
inappropriately than Justice Roujet Delisle Marshall. Justice Marshall's
namesake, Roujet Delisle, was the author of the "Marseillaise," the
anthem of the French Revolution. Marshall, by contrast, was the leading
conservative on the Wisconsin Supreme Court during the Progressive era,
a steadfast defender of individual property and liberty against the
potential excesses of reform.
Marshall in many ways was the spiritual descendant of Byron Paine,
although Paine is popularly thought of as a radical because of his role
in the Wisconsin states rights movement of the 1850s and 1860s.1 Both Paine and Marshall believed deeply in the
"free labor" ethic that individual and societal happiness could best be
achieved through a system in which "the major responsibility for a
person's success or failure rested with himself, not society."2 Marshall identified closely with the ethic because
he rose from poverty and obscurity to wealth and power through his
extraordinary capacity for hard work. Paine promoted the free labor
doctrine on the court during the doctrine's rising period; Marshall
defended the doctrine during its declining period.
A Poor Boy's Rise (1847-1895)
Marshall was born in New Hampshire in 1847. After years of trying to
scratch a living from poor soil, his parents moved the family to
Wisconsin in 1854 in the hope of finding richer land, and eventually
settled in Sauk County. Marshall's father became disabled in the early
1860s and Marshall, then in his teens, had to take primary
responsibility for operating the family farm. During the next 10 years
Marshall gave himself little time for sleep or rest. He wanted something
more than farming; accordingly, he spent his winters in study at local
schools and, eventually, several colleges while operating the farm
during the summer. Despite the constant risks of failure posed by
weather and crop prices, Marshall kept the family farm solvent.3 His success instilled in him a deep belief that
"character coupled with persistent industry, industry in man or woman,
is the better part of either."4
In 1866 Marshall read a biography of William Wirt, a leading
constitutional lawyer and politician of the early 19th century. Marshall
was struck by Wirt's "singleness of purpose, ... tireless industry and
unswerving course from the start to the coveted prize" of wealth and
prominence - qualities with which Marshall identified closely - and he
concluded that the legal profession was the best path for him.5 Marshall read law with a Sauk County lawyer, N.W.
Wheeler, and was admitted to the bar in 1871. In 1873 Wheeler moved to
Chippewa Falls, which was then the center of the lumbering industry in
northwest Wisconsin and was generating a large amount of legal business.
Marshall joined him.6
This is the SIXTH of a series of articles on Wisconsin's legal
history that will appear in the Wisconsin Lawyer through 2003
to commemorate significant anniversaries of the Wisconsin Supreme Court
(150 years), the State Bar of Wisconsin (125 years), and the Wisconsin
Court of Appeals (25 years).
This series presents biographies of prominent Wisconsin Supreme Court
justices and is part of the work of the Wisconsin Legal History
Committee, which was appointed by Chief Justice Shirley Abrahamson to
commemorate the legal entities' anniversaries in 2003 and to encourage
the study of Wisconsin legal history generally.
Visit WisBar's newest feature: Wisconsin's legal
history. Celebrating Wisconsin's Rich Legal History, a new
feature on WisBar, is a permanent archive of important events and
biographies in Wisconsin's legal history. It describes events and
activities commemorating the important role the legal profession, the
organized Bar, and Wisconsin courts have played in the state's
development over the past 150 years. Peruse a collection of legal
history-related materials written over time, plus new materials prepared
in celebration of the State Bar's 125th and the Wisconsin Supreme
Court's 150th anniversaries in 2003. To learn more, please visit Legal History.
In Chippewa Falls, Marshall continued on the path of rectitude he had
set for himself, working from 12 to 16 hours a day at his practice. He
noted that "the members of the bar, as a rule, were a lot of good
fellows who readily turned aside from the business of their profession
at most any time during business hours to enjoy a social game of cards
with more or less drinks by the side," while he "was regarded as a
drudge and not in any sense a mixer." However, Marshall was "confident
that my temperate, industrious habits and my custom of doing things
promptly and thoroughly, would prove to be winning assets. Just such a
character was needed in Chippewa."7
In the late 1870s, after several years of practice, Marshall came to
the attention of Frederick Weyerhaeuser, an Illinois lumber magnate
whose business would eventually encompass huge operations in northern
Wisconsin and the Pacific Northwest. At the time Weyerhaeuser was
involved in the "Beef Slough Wars," a long-running battle between a
group he headed and a rival group of Eau Claire-based lumbermen for
control of the Chippewa River and the rich timberlands it watered.
Weyerhaeuser was winning the battle but was weary of it. With Marshall's
help he devised a cartel, known as the "Chippewa Pool," which eventually
encompassed most of the major lumber producers in the upper Mississippi
Valley. The cartel eliminated competition between Weyerhaeuser's group
and the Eau Claire group: it assigned to each a specified portion of all
logs harvested and floated down the Chippewa River. In return for loss
of independence, each producer received security in the form of a
guaranteed share of the logs and a more stable market.8 Marshall was tremendously proud of his
accomplishment and of Weyerhaeuser who, in turn, became Marshall's
patron for many years.9
Marshall rose swiftly after forming his alliance with Weyerhaeuser.
In 1885 he was elected judge of the circuit comprising the northwest
corner of Wisconsin. His phenomenal appetite for hard work continued
undiminished. Marshall typically held court from 8 a.m. to 10 p.m., with
only short breaks for meals, and as a result he was able quickly to
clear a previously congested docket. Judge Marshall was impatient with
attorneys who were not as well prepared as he. Marshall prepared many of
the court forms previously prepared by attorneys, and he was not shy
about admonishing lawyers in his court to speed up their presentations.
His energy won him the attention and the somewhat grudging admiration of
lawyers around the state.10 Marshall had
further ambitions: he took advantage of opportunities to get himself
noticed as a visiting judge in other parts of the state, and when
vacancies occurred on the supreme court in the early 1890s, he lobbied
discreetly but energetically for appointment. After several failures, he
managed to enlist enough support from Wisconsin lawyers to induce a
somewhat reluctant Gov. William Upham to appoint him to a vacancy in
Early Years on the Supreme Court: The Rise of Substantive Due
Marshall was a member of the supreme court throughout Wisconsin's
Progressive era (1900-1915). As described in a previous article,12 during this period the Wisconsin Legislature
enacted a variety of far-reaching reform laws that marked the final
steps in Wisconsin's adjustment to the Industrial Revolution and created
the outlines of a state regulatory structure that continues to this
Throughout the Progressive era, reformers worried that the Wisconsin
Supreme Court would follow the lead of other courts that frequently
invoked the doctrine of substantive due process to strike down reform
laws. The debate over substantive due process involved sharply competing
concepts of freedom. Beginning in the 1890s the U.S. Supreme Court
"insisted upon its right to determine whether [reform statutes]
constituted a legitimate exercise of the police power," and "since a
majority of statutes ... imposed some limitations upon private property
or contractual right, the ramifications of due process were
endless."14 One scholar has explained that
for the U.S. Supreme Court "and all those who continued in its
tradition, it was impossible to conceive of the state as a source of
freedom. For them liberty was freedom from governmental
interference."15 Marshall was highly
sympathetic to this view of freedom.
Marshall and the U.S. Supreme Court adhered to this view even though
an increasing number of Americans were coming to believe that "social
conditions such as poverty could also be a threat to liberty ... [and
that] the state would now have to reconstruct [the social order] and
redistribute resources to make freedom possible."16 Marshall's colleague, Justice Winslow, was much
more sympathetic to the latter view of freedom, and the debate between
Marshall and Winslow over their competing views shaped the court's
history during the Progressive era.17
Several Wisconsin Supreme Court decisions early in the Progressive
era suggested the court might follow the U.S. Supreme Court's lead. In
State ex rel. Zillmer v. Kreutzberg (1902), Marshall and his
colleagues struck down a law prohibiting employers from firing workers
for union membership. In doing so they reaffirmed the traditional free
labor view that employers and workers could deal with each other on an
equal footing, and they stated that liberty could best be defended by
resisting "the present ... unexampled popular ... belief in the widest
scope of governmental activity and interference with the
individual."18 During the next five years,
the court upheld several important Progressive reform laws,19 but in State v. Redmon (1907)20 and Bonnett v. Vallier (1908),21 Marshall's view of substantive due process
In Redmon, the court struck down a minor law regulating use
of Pullman sleeping cars; in Bonnett, it struck down a slum
housing improvement law that was an important part of the Progressives'
reform program. Marshall, who wrote the Court's decisions in both cases,
used them to expound his view of freedom. Relying on Zillmer,
he argued that under the Wisconsin Constitution "preservation of
[individual] liberty is given precedent [even] over the establishment of
government."22 He then argued that the
constitution imposed a duty on the court to review reform legislation
for reasonableness, and he cautioned that "common sense as to reasonable
requirements ... should prevail, not the extreme views of well-meaning
persons as to what is for the best."23
Marshall painted a dark picture of what would happen if the court did
not fulfill its duty of review, a picture that distilled his philosophy
to its essence. He stated:
"[Regulation might expand] till one would be placed in such a
straight-jacket ... that liberty and the pursuit of happiness, the
incentive to industry, to the acquirement and enjoyment of property -
those things commonly supposed to make a nation intelligent,
progressive, prosperous and great - would be largely impaired and in
some cases destroyed. That such an extreme would be regulation run
[riot] and is quite improbable, 'tis true, but it would be possible
without limitations of some sort, if a police law be conclusively
legitimate merely because it promotes, however trifling in degree,
public health, comfort, or convenience."24
Later Years on the Court: The Debate With Winslow
Shortly after Bonnett was decided, Winslow embarked on a
campaign to make clear to the public that the court understood that the
Progressives were trying to address "imperious and complex problems"
that the industrial era had presented, and that the court intended to
practice "constructive conservatism" in reviewing reform
legislation.25 Although Winslow had joined
in the Zillmer, Redmon and Bonnett decisions, between
1909 and 1911 he emerged as the leading challenger of Marshall's
The debate between Marshall and Winslow came to a head in two of the
most important cases of the Progressive era, Kiley v. Chicago,
Milw., St. P. & P. R. Co. (1909)27
and Borgnis v. Falk Co. (1911).28
In Kiley, the court upheld a 1907 law modifying the traditional
contributory negligence system and creating more liberal rules of
recovery for railroad employees only. The court rejected an
equal-protection challenge to the law, reasoning that the unique nature
of railroads made it appropriate to put their employees in a special
category for safety purposes. Marshall objected, to no avail, that his
colleagues were ignoring his past statements on individualistic
liberty.29 Winslow, in a concurring
opinion, noted with satisfaction that the court was now following a
modern trend of increasing deference to the Legislature.30
Two years later, Winslow used the Borgnis case to present
his rebuttal of Marshall's position to the entire state. There is irony
in this: in Borgnis the court upheld Wisconsin's new worker's
compensation system, which Marshall had been instrumental in
promoting.31 Despite his conservatism,
Marshall had long recognized that accidents were an inevitable part of
the industrial system and that it made more sense to treat them as a
cost of doing business than to resolve them based on traditional tort
principles. After 1905, he regularly used the court's worker injury
cases as a forum for advocating worker's compensation.32
In Borgnis, Winslow coined a famous phrase that the U.S.
Constitution must not "be construed and interpreted by an eighteenth
century mind in the light of eighteenth century conditions and ideals"
because "this were to command that race to halt in its progress, to
stretch the state upon a veritable bed of Procrustes" (that is, an
inflexible framework).33 Marshall agreed
that the worker's compensation law was constitutional, but he sharply
criticized Winslow's doctrine of flexible constitutional interpretation.
"If the constitution is to efficiently endure," Marshall retorted, "the
ideal that it is capable of being re-squared from time to time, to fit
new legislative or judicial notions of necessities ... must be combated
whenever and wherever advanced." Marshall reasoned that the worker's
compensation law must be viewed as a "respon[se] ... to a constitutional
command, to conserve, in the light of the present, the public
welfare."34 But he stood alone in his
In another irony, Marshall's last great judicial triumph, the
Forestry Case (1915),35 led to the
end of his judicial career. The case involved a challenge to a series of
Progressive laws (known collectively as the Forestry Law) that created a
state forest reserve, provided for its future expansion, and created a
state commission to conserve lands that had been denuded of their timber
by Weyerhaeuser and other lumbering concerns.36 Speaking for the court, Marshall held the
Forestry Law violated several provisions of the Wisconsin Constitution,
most notably the prohibition of state aid for internal improvements.
Marshall construed the term "internal improvement" broadly and rejected
an argument that the Legislature's funding of a forest reserve
constituted a legitimate public purpose.37
He went out of his way to emphasize that "exercise of the police power
is implicitly limited by the very spirit and purpose of the constitution
to conservation of 'life, liberty and the pursuit of happiness' and of
all other inherent rights"_ that is, individual rights.38
Joseph A. Ranney, Yale 1978, is a trial lawyer with
DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting
Nothing to Providence: A history of Wisconsin's Legal System (1999) and
has tuaght as an adjunct professor at Marquette University Law
Winslow once again took issue with Marshall. In a concurring opinion,
he concluded the Forestry Law was invalid because of technical defects
in its enactment process, but he also argued that conservation was a
public purpose: "It would be a mere affectation of learning to dwell
upon the value to a state of great forest areas. That has been
established long since and is not open to question."39
Marshall's decision sparked public protest and controversy and played
a significant role in his defeat for reelection in 1917 by Walter Owen,
who as attorney general had defended the Forestry Law before the court.
One newspaper summarized the voters' feelings in its endorsement of
Owen, stating that "we do not believe all [Marshall's] decisions bear
the forward vision that is most helpful in building precedent for the
future's good" and arguing that Owen "sees law in the light of humanity
and human welfare and not of individual right divorced from human
Conclusion: Modern Echoes of Marshall
After his defeat, Marshall devoted his remaining years to State Bar
activities and to writing a lengthy autobiography. He died in 1922. A
year later the court all but officially repudiated his concepts of
individualistic liberty and substantive due process when it upheld a
broad zoning law that probably would have appalled Marshall. Owen,
writing for the court, served notice that although "many declarations
... coming from the pen of Mr. Justice Marshall, tend[ ] to create the
impression that there are constitutional limitations upon the exercise
of this [police] power ... [in fact] it is thoroughly established in
this country that the rights preserved to the individual by these
constitutional provisions are held in subordination to the rights of
Prof. Willard Hurst, an eminent legal historian, delivered an equally
blunt requiem. Hurst painted Marshall as an anachronism, characterizing
his opinion in the Forestry Case as a "deep emotional reaction
against the style of legal action that the [Forestry Law] represented"
and concluded that Marshall's "feelings grew naturally out of the
confrontation between men bred in the buoyant opportunism of
nineteenth-century action and an emerging twentieth-century insistence
on closer, more professional rationalization of economic and social
Owen's and Hurst's requiems may have been premature. The gospel of
individualistic liberty and the dual view of government as both a threat
to and guardian of liberty flourished long before Marshall was born, and
they have again flourished in the late 20th century. Prof. Lawrence
Friedman, who arguably is Hurst's successor as America's leading legal
historian, has characterized the 20th century as "the century of the
self, the century of expressive individualism."43 Friedman suggests that the modern concept of
individual liberty is oriented more toward personal expression than
economic action, but it is questionable whether most Americans view the
two concepts as separate: fears of government as a threat to expressive
liberty and to economic liberty have been equally common in recent
decades.44 The debate framed by Marshall
and Winslow did not end with Marshall's defeat in 1917: it continues
today, and likely will continue as long as the American justice system
1 See Joseph A. Ranney,
Concepts of Freedom: The Life of Justice Byron Paine, 75 Wis.
Law. 18 (Nov. 2002).
2 Id. at 18 (quoting Eric
Foner, Free Soil, Free Labor, Free Men: The Ideology of the
Republican Party Before the Civil War 11 (New York, 1970)).
3 Roujet D. Marshall, The
Autobiography of Roujet D. Marshall 1:119-68 (Madison, 1923).
4 Id. at 1:82.
5 Id. at 1:144.
6 Id. at 1:240-43.
7 Id. at 1:257-58.
8 Joseph A. Ranney, Trusting
Nothing to Providence: A History of Wisconsin's Legal System 156-59
9 See Marshall,
supra note 3, at 1:260-96.
10 Id. at 1:401-18.
11 Id. at 1:455-62,
12 Joseph A. Ranney, John B.
Winslow: Stretching the Procrustean Bed, 75 Wis. Law. 22 (May
13 See generally
David P. Thelen, The New Citizenship: Origins of Progressivism in
Wisconsin, 1885-1900 (Columbia, Mo., 1972); Robert S. Maxwell,
LaFollette and the Rise of the Progressives in Wisconsin (Madison,
1956); Herbert Margulies, The Decline of the Progressive Movement in
Wisconsin, 1900-1920 (Madison, 1968).
14 Alfred H. Kelly & Winfred
A. Harbison, The American Constitution: Its Origins and
Development 525-26 (4th ed.: New York, 1970).
15 Owen M. Fiss, History of
the Supreme Court of the United States, Vol. 8: Troubled Beginnings of
the Modern State, 1888-1910, at 21, 392 (New York, 1993).
17 See Ranney,
supra note 12, at 22.
18 State ex rel. Zillmer v.
Kreutzberg, 114 Wis. 530, 546, 90 N.W. 1098 (1902); Laws of 1899,
19 See, e.g.,
Nunnemacher v. State, 129 Wis. 190, 108 N.W. 627 (1906)
(upholding 1903 law creating Wisconsin's first inheritance tax);
Minneapolis, St. P. & Sault Ste. Marie R. Co., 136 Wis.
146, 116 N.W. 905 (1908) (upholding 1905 law regulating railroad freight
and passenger rates).
20 134 Wis. 89, 114 N.W. 137
21 136 Wis. 193, 116 N.W. 885
22 Redmon, 134 Wis. at
23 Bonnett, 136 Wis. at
215; see also Redmon, 134 Wis. at 109.
24 Redmon, 134 Wis. at
25 John B. Winslow, "The Patriot
and the Courts" 9, 12 (Feb. 3, 1909), Winslow Papers, Wisconsin
Historical Society; see Ranney, supra note 12, at
26 See Joseph A. Ranney,
Shaping Debate, Shaping Society: Three Wisconsin Chief Justices and
Their Counterparts, 81 Marq. L. Rev. 925, 938-46
27 138 Wis. 215, 119 N.W. 309
(1909); see also Kiley v. Chicago, Milw., St. P. & P. R.
Co., 142 Wis. 154, 125 N.W. 464 (1910).
28 147 Wis. 327, 133 N.W. 209
29 Kiley, 138 Wis. at
232-33 (Marshall, J., dissenting).
30 138 Wis. at 257-58 (Winslow,
31 Marshall, supra note
3, at 2:53-83.
32 See, e.g.,
Houg v. Girard Lumber Co., 144 Wis. 337, 129 N.W. 633 (1911);
Ranney, supra note 8, at 347.
33 Borgnis, 147 Wis. at
349-50; see Ranney, supra note 8, at 371-72.
34 Borgnis, 147 Wis. at
375 (Marshall, J., concurring).
35 State ex rel. Owen v.
Donald, 160 Wis. 21, 151 N.W. 331 (1915).
36 Laws of 1903, chapter 450; Laws
of 1905, chapter 264; Laws of 1907, chapter 491; Laws of 1909, chapter
137; Laws of 1911, chapter 639. See generally Vernon
Carstensen, Farms or Forests: Evolution of a State Land Policy for
Northern Wisconsin 33-43 (Madison, 1958).
37 160 Wis. at 136-38.
39 Id. at 159 (Winslow,
40 Editorial, Wisconsin State
Journal, April 2, 1917.
41 State ex rel. Harper v.
Carter, 182 Wis. 148, 151-53, 196 N.W. 451 (1923).
42 J. Willard Hurst, Law and
Economic Growth: The Legal History of the Lumber Industry in Wisconsin,
1836-1915, at 585 (Cambridge, Mass., 1964).
43 Lawrence M. Friedman, Crime
and Punishment in American History 12-13 (New York, 1993); see
also Lawrence M. Friedman, The Republic of Choice: Law,
Authority and Culture 2-3, 29-35 (New York, 1990).
44 Compare Friedman's
views (see supra note 43) with those of Haynes Johnson,
Sleepwalking Through History: America in the Reagan Years 65-82
(New York, 1991).