Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P49 pot

Because letters of marque and REPRISAL allowed privately owned and operated vessels to carry out acts of war, the practice came to be known as privateering. Privateering was frequently encouraged from the period between 1692 to 1814, at which time weaker countries used privateers to hurt a stronger country in the way guerrilla warfare is curre ntly used. Priva- teers operated concomitant to regular navies. Their main purpose was to annoy the enemy; however, an enemy’s merchant vessels were often seized in retaliation for acts of hostility. The system of privateering was subject to extensive abuses. In the absence of proper letters, a privateer was tantamount to a pirate. PIRACY is subject to severe punishment through- out the world. Although privateers allegedly existed in order to support the defense of their sovereigns, they frequently acquired much personal wealth through their activities. In addition, since privateers were not subject to the same discipline as a regular navy, they yielded to the temptation to seize ships beyond the scope of their authority. Such abuses, and new the ories of naval warfare led civilized nations, in 1856, to sign an agreement outlawing privateering. The agreement does not prohibit a state from organizing a voluntary navy of private vessels, which are under the dominion and control of the state. The U.S. Constitution provides that no state can grant letters of marque and reprisal. The federal government is not limited in this right by the Constitution; however, modern custom and treaties prevent it from granting the letters. CROSS REFERENCE Admiralty and Maritime Law. MARRIAGE Marriage is the legal status, condition, or relationship that results from a contract by which one man and one woman, one man and one man, or one woman and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of husband and wife in law for life, or until the legal termination of the relationship. Marriage is a legally sanctioned contract between two persons. Traditionally, marriage has been between a man and a woman, but several U.S. court and legislative decisions from 2003 onward have authorize d same-sex couples to acquire this legal status. Entering into a marriage contract changes the legal status of both parties, giving HUSBAND AND WIFE new rights and obligations. PUBLIC POLICY is strongly in favor of mar riage based on the belief that it preserves the family unit. Traditionally, marriage has been viewed as vital to the preservation of morals and civilization. The traditional principle upon which the institution of marriage is founded is that a husband has the obligation to support a wife and that a wife has the duty to serve. In the past, this arrangement has meant that the husband has the duty to provide a safe house, to pay for necessities such as food and clothing, and to live in the house. A wife’s obligation has traditionally entailed maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple’s children. Changes in society have modified these mar ital roles considerably as married women have joined the workforce in large numbers, and more married men have become more involved in child rearing. Individuals who seek to alter marital rights and duties are permitted to do so only within legally prescribed limits. Antenuptial agreements are entered into before marriage, in contemplation of the marriage relationship. Typically these agreements involve property rights and the terms that will be in force if a couple’s marriage ends in DIVORCE. Separation agreements are entered into during the marriage prior to the commencement of an action for a separation or divorce. These agr eements are concerned with CHILD SUPPORT, visitation, and temporary maintenance of a spouse. The laws governing these agreements are generally concerned with protecting every marriage for social reasons, whether the parties desire it or not. Experts suggest that couples should try to resolve their own difficulties because that is more efficient and effective than placing their issues before the courts. In the United States, marriage is regulat ed by the states. At one time, most states recog- nized common law marriage, which is entered into by agreement of the parties to be husband and wife. In such an arrangement, no marriage license is required, nor is a wedding ceremony necessary. The parties are legally married when they agree to marry and subsequently live together, publicly holding themselves out as husband and wife. The public policy behind the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 468 MARRIAGE recognition of COMMON-LAW MARRIAGE is to protect the parties’ expectations, if they are living as husband and wife in every way except that they never participated in a formal ceremony. By upholding a common-law marriage as valid, children are legitimized, surviving spouses are entitled to receive SOCIAL SECURITY benefits, and families are entitled to inherit Your marriage record is vital. Be sure the information you give is complete and accurate. PLEASE PRINT- USE BLACK INK MARRIAGE LICENSE APPLICATION TO BE FILLED OUT BY COUPLE MAKING APPLICATION (Please read instructions on reverse side of this form) STATE OF HAWAI’I • DEPARTMENT OF HEALTH OFFICE OF HEALTH STATUS MONITORING LICENSE NO. ______________________________________ _ 1a. FIRST NAME OF GROOM b. MIDDLE NAME c. LAST NAME 2. DATE OF BIRTH (Month, Day, Year) 3. USUAL RESIDENCE: a. STREET ADDRESS CITY b. COUNTY c. STATE OR FOREIGN COUNTRY 4. PLACE OF BIRTH: *City & State or Country 5. FATHER: a. FULL NAME - FIRST, MIDDLE, LAST b. STATE OR FOREIGN COUNTRY OF BIRTH* c. Living?* Yes, No, Refused, or Unknown GROOM (MALE) Zip Code ____________ Home Ph.# __________ Office Ph.# __________ 6. MOTHER: a. FULL NAME - FIRST, MIDDLE, MAIDEN NAME b. STATE OR FOREIGN COUNTRY OF BIRTH* c. Living?* Yes, No, Refused, or Unknown 7a. FIRST NAME OF BRIDE b. MIDDLE NAME c. LAST NAME 8. DATE OF BIRTH (Month, Day, Year) 9. USUAL RESIDENCE: a. STREET ADDRESS CITY b. COUNTY c. STATE OR FOREIGN COUNTRY 10. PLACE OF BIRTH: *City & State or Country 11. FATHER: a. FULL NAME- FIRST, MIDDLE, LAST b. STATE OR FOREIGN COUNTRY OF BIRTH* c. Living?* Yes, No, Refused, or Unknown BRIDE (FEMALE) Zip Code ____________ Home Ph.# __________ Office Ph.# __________ 12. MOTHER: a. FULL NAME- FIRST, MIDDLE, MAIDEN NAME b. STATE OR FOREIGN COUNTRY OF BIRTH* c. Living?* Yes, No, Refused or Unknown Blood relationship of groom to bride: On what island do you plan to be married? (Oahu, Hawai’i, Maui, Kaua’i Lana’i or Moloka’i) Name of Marriage Performer (Commissioned by the State of Hawai’i) FORWARDING ADDRESS: (After Marriage) DO YOU WANT YOUR NAMES PUBLISHED IN THE NEWSPAPER? YES NO CONFIDENTIAL INFORMATION - PLEASE COMPLETE NUMBER OF THIS MARRIAGE IF PREVIOUSLY MARRIED, LAST MARRIAGE ENDED. EDUCATION* - Specify Highest Grade Completed DATE ENDED SUPPLE- MENTARY DATA FIRST, SECOND, ETC. (SPECIFY) BY DEATH, DIVORCE, DISSOLUTION OR ANNULMENT (specify) MONTH / YEAR PLACE ENDED (COUNTY & STATE OR COUNTRY) RACE* OCCUPATION* Elem. Or Secondary (0-12) College (1 - 5+) GROOM (MALE) 25. 26a. 26b. 26c. 27. 28. 29. BRIDE (FEMALE) 30. 31a. 31b. 31c. 32. 33. 34. FOR OFFICE USE ONLY CERTIFICATION - SIGN BEFORE MARRIAGE AGENT We, the undersigned, certify that the information given in this application is true and correct to the best of our knowledge and belief. Written consent of court is attached, if under jurisdiction of court or under age 16. FULL SIGNATURE OF PROSPECTIVE GROOM (MALE) FULL SIGNATURE OF PROSPECTIVE BRIDE (FEMALE) Sworn and subscribed to before me this day of , 20 GROOM: SIGHTED: #: NAME ? Yes No DOB ? Yes No AGE: Sex: M F Previous Marriage(s): BRIDE: Yes No Yes No M F MARRIAGE LICENSE AGENT JUDICIAL DISTRICT, STATE OF HAWAI’I OHSM-1 ITEMS INDICATED WITH *ARE OPTIONAL, BUT DO NOT LEAVE THESE ITEMS BLANK; ENTER REFUSED OR UNKNOWN INTENTIONAL FALSIFICATION IS A CRIME Marriage License Application When do you plan to be married? ٗ ٗ ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MARRIAGE 469 property in the absence of a will. These public policy reasons have declined in significance. Most states have abolished common law marriage, in large part because of the legal complications that arose concerning property and inheritance. The U.S. Supreme Court has held that states are permitted to reasonably regulate marriage by prescribing who can marry and the manner in which marriage can be dissolved. States may grant an ANNULMENT or divorce on terms that they conclude are proper, because no one has the constitut ional right to remain married. There is a right to marry, however, that cannot be casually denied. States are proscribed from absolutely prohibiting marriage in the absence of a valid reason. The U.S. Supreme Court, for example, struck down laws in southern states that prohibited racially mixed marriages. These anti-miscegenation statutes were held to be unconstitutional in the 1967 case of Loving v. Virginia (388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010), because they violated EQUAL PROTECTION of the laws. By contrast, the court ruled in 1878 that polygamous marriages (i.e., having more than one spouse simultaneously) are illegal. The requirement that marriage involve one man and one woman was held to be essential to Western civilization and the United States in Reynolds v. United States (98 U.S. 145, 25 L. Ed. 244). Chief Justice MORRISON R. WAITE, writing for a unanimous court, concluded that a state (in that case, Utah) may outlaw POLYGAMY for everyone, regardless of whether it is a religious duty, as the Mormons claimed it was. All states limit people to one living husband or wife at a time and will not issue marriage licenses to anyone who has a living spouse. Once someone is married, the person must be legally released from his or her spouse by death, divorce, or annulment before he or she may legally remarry. Persons who enter into a second marriage without legally dissolving a first marriage may be charged with the crime of bigamy. The idea that marriage is the union of one male and one female has been thought to be so basic that it is not ordinarily specifically expressed by statute. This traditional principle has been challenged by gays and lesbians, who, until recently, have unsuccessfully sought to legalize their relationships. In Baker v. Nelson, (191 N. W. 2d 185 [Minn. 1971]), the Minnesota Supreme Court sustained the clerk’s denial of a marriage license to a homosexual couple. The 1993 decision of the Hawaii Supreme Court in Baehr v. Lewin (852 P. 2d 44, 74 Haw. 530), raised the possibility of homosexual marriage. In Baehr, the court held that the state law restricting legal marriage to parties of the opposite sex establi shes a sex-based classifica- tion, which is subject to strict constitutional scrutiny when challenged on equal protection grounds. Although the court did not recognize a constitutional right to same-sex marriage, it indicated that the state would have a difficult time proving that the gay and lesbian couples were not being denied equal protection of the laws. On remand, the Hawaii circuit court found that the state had not met its burden, and it enjoined the state from denying marriage applications solely because the applicants were of the same sex. Before the state supreme court could issue a final ruling, the voters of Hawaii passed a REFERENDUM to amend the constitution to allow the state legislature to restrict marriage to men and women only. As a result, the lawsuit was dismissed, and the state restricted marriage solely to that of men and women. Similar lawsuits were filed in other states, based on equal protection provisions in state constitutions. In Massachusetts, the state’s highest court granted gays and lesbians the right to same-sex marriage in 2003. State supreme courts in California and Connecticut ruled in favor of same-sex marriage in 2008, and the Iowa Supreme Court did so as well in 2009. In California, the voters pas sed Proposition 8 in November 2008, amending the state constitution to overturn the court decision. In May 2009 the California Supreme Court upheld the validity of the proposition. State legislatures in Vermont, New Hampshire, and Maine passed same-sex marriage statutes as well. However, the Maine law was rescinded by the voters in the November 2009 election. In the wake of Baehr, Congress enacted the DEFENSE OF MARRIAGE ACT OF 1996 (DOMA), Pub. L. No. 104–199, 110 Sat. 219, which defines marriage as a legal union between one ma n and one woman and permits states to refuse to recognize same-sex marriages performed in other states. With five states permitting same- sex marriage as of 2010, legal commentators expected constitutional challenges to DOMA from same-sex married couples who move to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 470 MARRIAGE other states and are denied legal protections and benefits. Each state has its own requirements concerning the people who may marry. Before a state will issue a marriage license, a man and a woman must meet certain criteria. Some states prohibit marriage for those judged to be mentally ill or mentally retarded. In other states, however, a judge may grant permission to mentally retarded persons to marry. Every state proscribes marriage between close relatives. The prohibited degree of relationship is fixed by state law. Every state forbids marriage to a child or grandchild, parent or grandparent, uncle or aunt, and niece or nephew, including illegitimate relatives and relatives of half blood, such as a half brother who has the same father but a different mother. A number of states also prohibit marriage to a first cousin, and some forbid marriage to a more distant relative, in-law, stepparent, or stepchild. Age is an additional requirement. Every jurisdiction mandates that a man and a woman must be old enough to wed. In the 1800s the LEGAL AGE was as low as 12 for females. Modern statutes ordinarily provide that females may marry at age 16, and males at age 18. Sometimes a lower age is permitted with the written consent of the parents. A number of states allow for marriage below the minimum age if the female is pregnant and a judge grants permission. Every couple who wishes to marry must comply with a state’s formal requirements. Many states require a blood test or a blood test and physical examination before marriage, to show whether one party is infected with a venereal disease. In some states, for example, the clerk is forbidden to issue a marriage license until the parties present the results of the blood test. Most states impose a waiting period between the filing of an application for a license and its issuance. The period is usually three days, but in some states the period may reach five days. Other states mandate a waiting period between the time when the license is issued and the date when the marriage ceremony may take place. Many states provide that the marriage license is valid only for a certain period of time. If the ceremony does not take place during this period, a new license must be obtained. It has been customary to give notice of an impending marriage to the general public. The old form of notice was called publication of the banns, and the upcoming marriage was announced in each party’s church three Sundays in a row before the marriage. These announce- ments informed the community of the intended marriage and gave everyone the opportunity to object if any knew of a reason why the two persons could not be married. In the early 2000s, the nam es of applicants for marriage licenses are published in local newspapers. Once a license is issued, the states require that the marriage commence with a wedding ceremony. The ceremony may either be civil or religious because states may not require religious observances. Ceremonial requirements are very simple and basic, in order to accom- modate everyone. In some states, nothing more is required than a declaration by each party in the presence of an authorized person and one additional witness that he or she takes the other in marriage. A minority of states have sought to curb growing divorce rates by enacting legislation designed to encourage couples to remain married. Statutes in states such as Arkansas, Arizona, and Louisiana provide fo r COVENANT marriages, where couples agree to impose upon themselves limitations on their ability to divorce one another. Twenty other states have consid- ered, but ultimately rejected, the adoption of similar bills. In covenant marriages, parties mutually agree to reject “no-fault divorce,” agree to enroll in premarital or post-wedding counseling, and also agree to divorce only under certain, more limiting conditions, such as DOMESTIC VIOLENCE ,abandonment,ADULTERY,imprisonment of a spouse, or lengthy separation. States that pass bills recognizing covenant marriages do not actually require such marriages, but rather formally acknowledge them as legally viable, thus creating legal recourse under the law for breaches of such covenants. Louisiana passed its covenant-marriage law in 1997. At the time, it was touted as the first substantive effort in two centuries to make divorce more difficult, and lawmakers had hoped that other states would follow suit. Since then, however, fewer than 5 percent of Louisiana couples have opte d to enter into such marriages. Arizona’s version of the law is less restrictive in that it permits an additional reason for divorce based on the mutual consent of the parties. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARRIAGE 471 The most common objection to covenant marriages comes from those who view such measures as undue government intrusion into family matters. The counter-argument is that states increasingly have viewed divorce as a legitimate matter of public concern because of its extensive costs and the havoc it causes to primary and extended social and economic relationships. In this regard, covenant marriages are no more intrusive than are state laws that permit or deny divorce based on certain articulated grounds. Another objection is that covenant marriages seemingly infringe upon the separation of church and state because the mandatory premarital counseling contained in the two existing laws is often provided by clergy. Other opponents to the attempted legislative measures in other states have either expressed reservation for laws that seem to limit adult autonomy and choice or have themselves been active in the so- called divorce industry. This resistance was apparently the case in Texas and Oklahoma, where covenant-marriage bills failed because of opposition by key committee chairmen who were divorce attorneys. In addition to the failed legislative attempts to pass covenant-marriage bills in other states, different tactics to curb divorce have been tried. For example, Florida enacted the Marriage Preparation and Preservation Act in 1998, but no state has followed Florida in requiring its marriage-education curriculum for public high schools. In Wisconsin a federal judge struck down a new state law that earmarked welfare money for clergy who encouraged long-married couples to mentor younger couples. According to the judge, the measure unfairly and uncon- stitutionally favored ministers over lay persons, such as judges or justices of the peace. Texas passed a law allocating $3 from every marriage- license fee to be used for marriage-education research and reform. FURTHER READINGS Alsenas, Linda. 2008. Gay America: Struggle for Equality. New York: Amulet Press. Brummer, Chauncey E. 2003. “The Shackles of Covenant Marriage: Who Holds the Key to Wedlock?” University of Arkansas at Little Rock Law Review 25 (winter). Morley, Michael T., et al. 2003. “Developments in Law and Policy: Emerging Issues in Family Law.” Yale Law and Policy Review 21 (winter). Pinello, Daniel. 2003. Gay Rights and American Law. New York: Cambridge Univ. Press. CROSS REFERENCES Celebration of Marriage; Domestic Violence; Family Law; Gay and Lesbian Rights; Miscegenation; Necessaries; Privileged Communication. MARSHAL A federal court officer whose job entails maintaining the peace, delivering legal papers, and perfo rming duties similar to those of a state sheriff. The term marshal originated in Old ENGLISH LAW , where it was used to describe a variety of law enforcement officers with responsibilities to the courts and the king or queen. In contem- porary U.S. law, it refers primarily to the chief law officers for the federal courts (28 U.S.C.A. §§ 561 et seq.). U.S. marshals execute federal laws within the states under the instructions of the courts. Their chief duty is to enforce legal orders; they have no independent authority to question whether a judge is right or wrong. Their responsibilities include delivering writs and processes and carrying out other orders, which range from making arrests to holding property in the custody of the court. Marshals may exercise the same powers as a state sheriff. The chain of command for U.S. marshals begins in the White House. The president appoints to a four-year term one marshal for each judicial district. Each appointment is subject to confirmation by the U.S. Senate. Once an appointment is confirmed, the president retains the power to remove the marshal at any time. In the JUSTICE DEPARTMENT, the U.S. Among their other duties, U.S. marshals are charged with executing federal laws within the states under the instructions of the courts. In September 1962, 500 federal marshals were sent to the University of Mississippi campus to protect James Meredith when he became the first African American to enroll at the institution. FLIP SCHULKE/CORBIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 472 MARSHAL attorney general designates where each marshal’s office is located. Each marshal appoints her or his own deputies and staff, with salaries based on schedules in federal law. At the state and local levels, the term marshal is also used to describe police officers whose job is similar to that of a constable or sheriff. It can also denote the head of a city police or fire department. MARSHALING ASSETS AND SECURITIES The process of organizing, ranking, and distribut- ing fund s in a manner set forth by law as being the most effective way to discharge debts that are owed to various creditors. When assets and SECURITIES are marshalled, the two-fund do ctrine is frequently applied. It provides that when one claimant has two possible funds in the hands of a debtor to whom the claimant is able to resort to satisfy his or her demand, and a second claimant has an interest in only one of the funds, the second claimant can force the first to satisfy the claims out of the fund in which he or she, the second claimant, has no lien. v MARSHALL, JOHN John Marshall presided over the U.S. Supreme Court from 1801 to 1835. Appointed by President JOHN ADAMS, Marshall assumed leadership during a pivotal era. The early nineteenth century saw tremendous political battles over the future of the United States and its Constitution, often with the Court at the center of controversy. By the force of personality, argument, and shrewdness, Marshall steered it through this rocky yet formative period. He weathered harsh criticism as the Court set important precedents that increased its power and defined its role in government. Historians credit him with establishing what has been called the American judicial tradition, in which the Supreme Court acts as an independent branch of government endowed with final authority over constitutiona l interpretation. Marshall was born September 24, 1755, near Germantown (now Midland), Virginia. He was the son of Thomas Marshall, a wealthy landowner, JUSTICE OF THE PEACE, and sheriff. Like his father he fought in the Revolutionary War and married into a prominent family. His father’s tutoring significantly enhanced his mere two years of formal education, which ▼▼ ▼▼ John Marshall 1755–1835 17501750 18001800 18251825 18501850 17751775 ❖ 1755 Born, Germantown (now Midland), Va. ◆ 1780 Admitted to Virginia bar 1782–88 Served in Va. House of Delegates ◆ 1788 Attended Virginia convention to ratify the U.S. Constitution 1775–83 American Revolution 1803 Supreme Court established Court's right of judicial review for acts of Congress in Marbury v. Madison 1801–35 Served as chief justice of Supreme Court 1810 Supreme Court struck down a state law as unconstitutional for the first time in Fletcher v. Peck 1812–14 War of 1812 1835 Died, Washington, D.C. 1821 Supreme Court extended its judicial review jurisdiction in Cohens v. Virginia 1796 Refused bribe from French foreign ministry in XYZ Affair 1799– 1800 Served in U.S. House ◆◆ ◆◆❖ 1824 Supreme Court ruled that powers granted under the Commerce Clause superseded those of states in Gibbons v. Ogden ◆ John Marshall. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARSHALL, JOHN 473 were augmented in 1780 by a brief attendance at lectures in law at the College of William and Mary. Marshall was also influenced by GEORGE WASHINGTON . Because of his service to General Washington in the war, Marshall became a strong Federalist. He later wrote about his mentor in his book Life of George Washington (1805–7). Marriage ties made Marshall a relative of a leading Virginia political family. This helped secure his place in society, paving the way for an early legal and political career in the 1780s. He specialized in appellate cases and quickly distin- guished himself in the Virginia state bar. He also served in Virginia’s council of state from 1782 to 1784, and in its house of delegates four times between 1782 and 1795. But it was as a partisan of the Federalists—the opponents of the states ’ rights–minded Republicans—that he came to wide acclaim. The struggle between the Feder- alists and the Jeffersonian Republicans was the most important political contest of the day. Marshall served as a devoted publicist and organizer for the Federalist cause in Virginia, and this work earned him various offers to serve as U.S. attorney general and as an associate justice of the Supreme Court. It also earned him the animosity of his distant cousin, Republican THOMAS JEFFERSON, who soon became U.S. president and was his lifelong political adversary. In 1798 Marshall agreed to serve Federalist president JOHN ADAMS as one of three U.S. ministers to France during one of the Napo- leonic Wars between France and Great Britain. In a scandal known as the XYZ AFFAIR, the French foreign ministry attempted to solicit a bribe from the U.S. emissaries, and Marshall became a national hero for refusing. He quickly emerged as the leading spokesman for FEDERAL- ISM in Washington, D.C., as a member of Congress from 1799 to 1800 and briefly as SECRETARY OF STATE under Adams in 1800. Then Adams lost the 1800 presidential election to Jefferson, and the Republicans won control of Congress. In a desperate attempt to preserve the Federalists’ power, Adams spent the remaining days of his administration making judicial appointments. Sixteen new positions for judges on federal circuit courts and dozens for justices of the peace in the District of Columbia were handed out during the final days of Adams’s administration. These last-minute appointees came to be known as MIDNIGHT JUDGES. One of these seats went to Marshall, who was appointed chief justice of the Supreme Court. On March 4, 1801, Marshall assumed his duties as the head of the Court. Jefferson and the Republicans were furious over Adams’s court stacking, and they swiftly quashed the appointments—except that, inexplicably, they did not challenge Marshall's. Marshall kept the Court out of the fray. He feared that in a conflict between the judiciary and the EXECUTIVE BRANCH , the Court would lose. Marshall again faced political conflict when in 1803 the Court ruled on a case brought by William Marbury, whose appointment as a D.C. justice of the peace had been one of those barred by the Republicans. Marshall’s opinion for the unanimous Court in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, dismissed Marbury’s suit on the ground that the Supreme Court lacked jurisdiction to rule on it. But at the same time, the Court restated the position that it had the power to rule on questions of constitutionality. By striking down a section of the JUDICIARY ACT OF 1789 (1 Stat. 73), Marshall’s opinion marked the first time that the Court overturned an act of Congress. Not for more than 50 years would it exercise this power again. Marshall asserted the right of the Supreme Court to engage in JUDICIAL REVIEW of the law, writing, “It is emphatically the province and duty of the judicial departmen t to say what the law is.” Marbury was the crucial first step in the evolution of the Supreme Court’s authority as it exists today. Marshall emphasized the need to limit state power by asserting the primacy of the federal government over the states. In 1819, as Marshall reached the height of his influence, he cited the Contracts Clause of the U.S. Constitution (art. 1, § 10) as a basis for protecting corporate charters from state interference ( TRUSTEES OF DARTMOUTH COLLEGE V . WOODWARD,17U.S.[4Wheat.] 518, 4 L. Ed. 629). That year he also struck a blow to STATES’ RIGHTS in MCCULLOCH V. MARYLAND,17U.S.(4 Wheat.) 316, 4 L. Ed. 579, where he noted that the Constitution is not a “splendid bauble” that states can abridge as they see fit. In 1821 he advanced the theory of judicial review, rejecting a challenge by the state of Virginia to the appellate authority of the Supreme Court (Cohens v. Virginia, 19 U.S. [6Wheat.] 264, 5 L. Ed. 257). In his written opinions, Marshall typically relied on the power of logic and his own ITIS, EMPHATICALLY, THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS . —JOHN MARSHALL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 474 MARSHALL, JOHN forceful eloquence, rather than citing law. This approach was noted by Associate Justice JOSEPH STORY : “When I examine a question, I go from headland to headland, from case to case. Marshall has a compass, puts out to sea, and goes directly to the result.” Marshall was not without opponents. Fore- most among them was Jefferson. In 1810 Jefferson wrote to President JAMES MADISON that “[t]he Chief Justice’s leadership was marked by “cunning and sophistry” and displayed “ran- courous hatred” of the democratic principles of the Republicans. Jefferson led the Republican attack on Marshall with the accusation that he twisted the law to suit his own biases. Although Marshall weathered the attacks, his authority, and the Court’s, was ultimately affected. Not all his decisions were enforced; some were openly resisted by the president. New appointments to the Court brought states’ rights advocates onto the bench, and Marshall began to compromise as a leader and to make concessions to ideological opponents. Marshall died in office on July 6, 1835. FURTHER READINGS Friedman, Leon, and Fred L. Israel, eds. 1995. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volumes I–V. New York: Chelsea House. Klarman, Michael J. 2001. “How Great Were the ‘Great’ Marshall Court Decisions?” Virginia Law Review 87 (October). Available online at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=270081; website home page: http://papers.ssrn.com (accessed August 12, 2009). Marion, David E. 2001. “The State of the Canon in Constitutional Law: Lessons from the Jurisprudence of John Marshall.” Bill of Rights Journal (The William and Mary) 9 (February). Newmyer, R. Kent. 2002. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State Univ. Press. Olken, Samuel R. 1999. “Chief Justice John Marshall and the Course of American Constitutional History.” John Marshall Law Review 33 (summer). Simon, James F. 2003. What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. New York: Simon & Schuster. CROSS REFERENCES Constitution of the United States; Fletcher v. Peck; Gibbons v. Ogden; Supreme Court of the United States. v MARSHALL, MARGARET HILARY On October 13, 1999, Margaret Hilary Marshall became the first woman chief justice of the Supreme Judicial Court of Massachusetts. Marshall was born in 1944 in Newcastle, Natal, South Africa. Her mother, Hilary A. D. Marshall, was born in Richmond, England. Her late father, Bernard Charles Marshall, was a native of Johannesburg, South Africa, and was a chemist and production manager at the African Metals Corporation. In 1966 Marshall received a bachelor of arts degree from Witwatersrand University in Johan- nesburg. At Witwatersrand, Marshall majored in English and art history. From 1966 to 1968 she was president of the National Union of South African Students, leading her fellow classmates in protests against apartheid. The National Union of South African Students was the only multi- racial national group in the country at the time. Marshall immigrated to the United States in 1968 to pursue an education at the graduate level. She studied at Harvard University, where she was awarded a graduate scholarship by the Ernest Oppenheimer Trust. The following y ear, she received her master’s degree in education from Harvard. After doing so, Marshall decided on a law career. She studied at Yale Law School from 1973 until 1975. Although she completed her last year of law school at Harvard, Yale awarded her a JURIS DOCTOR degree in 1976. Marshall began her career as a lawyer in private practice, working as both an associate Margaret H. Marshall. COURTESY OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MARSHALL, MARGARET HILARY 475 and a member in the Boston law firm of Csaplar & Bok from 1976 through 1989. In 1978 she became a naturalized U.S. citizen. She then continued in the private PRACTICE OF LAW in Boston as a partner at the prominent law firm of Choate, Hall & Stewart from 1989 through 1992. During these years Marshall’s practice consisted primarily of civil LITIGATION. She earned a reputation as an expert in the area of INTELLECTUAL PROPERTY, which includes patent, COPYRIGHT, and trademark laws that protect inventions, designs, artistic and literary pro- ducts, and commercial symbols. While pursuing her career in private practice, Marshall continued in the fight against apartheid in her native county. She urged the United States to impose sanctions against South Africa due to its racial SEGREGATION. At that time, advocating sanctions against South Africa was a treasonable offense in her native country. Consequently, she was not able to return to South Africa because of her activities in the United States. Marshall returned to Harvard University in 1992, where she served as general counsel and vice president until 1996. In that position, Marshall was responsible for Harvard’s legal and regulatory affairs. Furthermore, she served as an active member of the President’s Aca- demic Council. In November 1996 Marshall became an associate justice of the Supreme Judicial Court of Massachusetts. She was the second woman ever to serve as a justic e on the Massachusetts Supreme Judicial Court, which is the oldest court in continuous service in the United States. As a Supreme Judicial Court justice, Marshall is known for authoring opinions that strongly support CIVIL RIGHTS and liberties. For example, in one opinion, she supported the constitutional rights of sex offenders by holding that they are entitled to a hearing before their names are entered on the sex-offender registry in Massa- chusetts. Marshall is also known for opposing CAPITAL PUNISHMENT. On March 9, 1998, Marshall authored an opinion in the widely publicized case of Com- monwealth of Massachusetts v. Louise Woodward, 694 N.E.2d 659 (Mass. 1998). In that case, at the trial-court level, a jury found Woodward, an au pair from England, guilty of the MURDER of Matthew Eappen, an eight-month-old child under her care. However, the trial judge reduced the ju ry’s verdict from murder to INVOLUNTARY MANSLAUGHTER and sentenced Woodward to time served. Both sides appealed, and the case ultimately went before the Supreme Judicial Court for disposition. In the 46-page decision, Marshall stated that the reduced conviction of MANSLAUGH- TER , as well as the sentence imposed by the trial judge, were lawful. In making her ruling, Marshall explained that the trial judge merely invoked the commonly used right to r educe a jury verdict a nd to sentence a DEFENDANT to time served. After Marshall served as an associate justice on the Supreme Judicial Court for three years, the governor of Massachusetts, Paul Cellucci, nominated her to be the court ’s first female chief justice and the first female to head one of the three branches of government in Massachu- setts. On October 13, 1999, the Governor’s Council approved Marshall’ s nomination. In December of that year, Marshall was sworn in as chief justice of the Supreme Judicial Court. As such, she is the first naturalized U.S. citizen to become a chief justice. Margaret Hilary Marshall 1944– 2000 1975 1950 1944 Born, Newcastle, Natal, South Africa 1950–53 Korean War 1961–73 Vietnam War 1976 Earned J.D. from Yale 1978 Naturalized as U.S. citizen 1989–92 Became partner at law firm of Choate, Hall & Stewart 2000 U.S. Supreme Court’s Bush v. Gore decision halted presidential vote recount in Florida 1999 Sworn in as chief justice of Mass. Supreme Judicial Court 1996 Became associate justice of Mass. Supreme Judicial Court 1992–96 Served as general counsel and vice president of Harvard University ▼▼ ▼▼ ❖ ◆◆ ◆ ◆ ◆◆ 2003 Wrote decision in Goodridge v. the Department of Public Health, legalizing same-sex marriage in the state of Mass. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 476 MARSHALL, MARGARET HILARY As Chief Justice, Marshall designates which judges write opinions on particular cases, acts as the liaison to the Massachusetts governor and legislature, and has wide ranging authority over the administration of the state’s courts. In a keynote address delivered to the Massachusetts Bar Association on January 2, 2000, Marshall stated, “Because of my experiences in South Africa, I value profoundly the central place of law in American society law in the true sense. An impartial judiciary. Equal justice under the law.” In January 2002 Marshall wrote the major- ity opinion in a unanimous decision that held that children who are conceived by ARTIFICIAL INSEMINATION after the death of their father have the same inheritance rights as other children. The ruling was believed to be the first on the controversial issue by any state SUPREME COURT. Also in January 2002, Marshall addressed the Massachusetts Bar Association Confere nce, where she called for “a revolution in the administration of justice,” stating that the court system needed to improve its management system as well as its staffing and budget controls. In March 2002, her discussion of the court system’s problems were amplified in a 52- page report that was published by a blue-ribbon panel appointed by Marshall. In 2003 Marshall wrote the decision in Goodridge v. the Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (Mass. 2003) that legalized same-sex marriages in the state of Massachusetts by ruling the ban on such marriages violated the EQUAL PROTECTION clauses of the state constitution. The ruling made Massachusetts the first state to legalize same- sex marriages in the country. Marshall is married to New York Times columnist Anthony Lewis and has three step- children. FURTHER READINGS Ellement, John R. 2009. “Top Judge: Ban ‘CSI’ in Mass. Courtrooms.” Boston.com Available online at http:// www.boston.com/news/local/breaking_news/2009/12/ top_judge_ban_c.html (accessed January 2, 2009). Lavoie, Denise. 2002. “Court Rules on Posthumous Conception.” Associated Press. (January 2) Teicher, Stacy A. 2000. “A Subtle Revolution as Women Lead the Bench.” Christian Science Monitor. (January 5). MARSHALL PLAN After WORLD WAR II, Europe was devastated and urgently needed an organized plan for reconstruction and economic and technical aid. The Marshall Plan was initiated in 1947 to meet this need. The originator of the plan, U.S. Secretary of State George C. Marshall, introduced it in a speech at Harvard University on June 5, 1947. He pointed out two basic reasons for providing aid to Europe: the United States sought the reestablish- ment of the European countries as independent nations capable of conducting valuable trade with the United States; and the threat of a Communist takeover was more prevalent in countries that were suffering economic depression. In 1947 a preliminary conference to discuss the terms of the program convened in Paris. The Soviet Union was invited to attend but subsequently withdrew from the program, as did other Soviet countries. Sixteen European countries eventually participated, and, in July 1947, the Committee for European Economic Cooperation was established to allow representatives from member countries to draft a report that listed their requirements for food, supplies, and technical assistance for a four-year period. The Committee for European Economic Cooperation subsequently became the Organi- zation of European Economic Cooperation, an expanded and permanent organization that was responsible for submitting petitions for aid. In 1948, Congress passed the Economic Coopera- tion Act (62 Stat. 137), establishing funds for the Marshall Plan to be administered under the Economic Cooperation Administration, which was directed by Paul G. Hoffman. Between 1948 and 1952, the sixteen-member countries received more than $13 billion dollars in aid under the Marshall Plan. The plan was generally regarded as a success that led to industrial and agricultural production, while stifling the Communist movement. The plan was not without its critics, however, and many Europeans believed the COLD WAR hostilities between the Soviet nations and the free world were aggravated by it. v MARSHALL, THURGOOD Thurgood Marshall, the first African American to serve on the U.S. Supreme Court, saw law as a catalyst for social change. For nearly 60 years, as both a lawyer and a jurist, Marshall worked to dismantle the system of SEGREGATION and improve the legal and social position of minorities. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MARSHALL, THURGOOD 477 . RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MARRIAGE 469 property in the absence of a will. These public policy reasons. out as husband and wife. The public policy behind the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 468 MARRIAGE recognition of COMMON -LAW MARRIAGE is to protect the parties’ expectations,. on the power of logic and his own ITIS, EMPHATICALLY, THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS . —JOHN MARSHALL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 474

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