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    Wisconsin Lawyer
    July 01, 2003

    Justice Roujet D. Marshall: The World of Buoyant Opportunism

    Wisconsin Supreme Court Justice Roujet D. Marshall believed that individual and societal happiness could best be achieved through a system in which a person's success or failure rested primarily with the individual, not society. His philosophy of individual opportunism was at loggerheads with the Progressives' philosophy of society's rights taking precedence over the rights of individuals.

    Joseph Ranney

    Justice Marshall

    Photo courtesy of the Wisconsin State Historical Society, negative # WHi(x3)26716

    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

    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 1895.11

    Early Years on the Supreme Court: The Rise of Substantive Due Process (1895-1908)

    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 day.13

    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 triumphed again.

    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 (1909-1918)

    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 views.26

    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 view.

    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. RanneyJoseph 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 School.

    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 welfare."40

    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 society."41

    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 processes."42

    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 endures.


    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 (Madison, 1999).

    9 See Marshall, supra note 3, at 1:260-96.

    10 Id. at 1:401-18.

    11 Id. at 1:455-62, 487-524.

    12 Joseph A. Ranney, John B. Winslow: Stretching the Procrustean Bed, 75 Wis. Law. 22 (May 2003).

    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).

    16 Id.

    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, Chapter 332.

    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 (1907).

    21 136 Wis. 193, 116 N.W. 885 (1908).

    22 Redmon, 134 Wis. at 109.

    23 Bonnett, 136 Wis. at 215; see also Redmon, 134 Wis. at 109.

    24 Redmon, 134 Wis. at 109.

    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 22.

    26 See Joseph A. Ranney, Shaping Debate, Shaping Society: Three Wisconsin Chief Justices and Their Counterparts, 81 Marq. L. Rev. 925, 938-46 (1998).

    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 (1911).

    29 Kiley, 138 Wis. at 232-33 (Marshall, J., dissenting).

    30 138 Wis. at 257-58 (Winslow, C.J., concurring).

    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.

    38 Id.

    39 Id. at 159 (Winslow, C.J., concurring).

    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).

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