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Mclean, John

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Birth: March 11, 1785, Morris County, New Jersey.

Education: Attended local school; privately tutored; read law with John S. Gano and Arthur St. Clair Jr.

Official Positions: Examiner, U.S. Land Office, 1811–1812; U.S. representative, 1813–1816, chairman, Committee on Accounts; judge, Ohio Supreme Court, 1816–1822; commissioner, General Land Office, 1822–1823; U.S. postmaster general, 1823–1829.

Supreme Court Service: Nominated associate justice by President Andrew Jackson, March 6, 1829, to replace Robert Trimble, who had died; confirmed by the Senate, March 7, 1829, by a voice vote; took judicial oath January 11, 1830; served until April 3, 1861; replaced by Noah H. Swayne, nominated by President Abraham Lincoln.

Death: April 3, 1861, Cincinnati, Ohio.

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John Mclean
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John Mclean

Despite his long tenure, hard work, and national prominence during his lifetime, John McLean was never an important justice, and his impact on law was minimal. And although he wrote 247 opinions of the Court, McLean was neither a scholar nor a theorist, and, with a few exceptions, his majority opinions are virtually forgotten. Those few that are remembered, such as Wheaton v. Peters (1834), Briscoe v. Bank of Kentucky (1837), and Pennsylvania v. Wheeling Bridge Co. (1852), are recalled more for the parties involved, the high political issue at stake, or the important economic issue in question than for the importance of McLean's opinion. Furthermore, despite his dissent in Dred Scott v. Sandford (1857) and fifty-nine other separate opinions, concurrences, and dissents, he did not leave a record of prophetic dissents or concurrences. Few justices have worked so hard, for so long, with such little impact.

McLean was born in New Jersey, the son of Scotch-Irish immigrants, but was raised on the frontier in the Ohio valley. He had little formal education but studied law with Arthur St. Clair, the son of the former governor of the Northwest Territory. McLean began practicing law in Lebanon, Ohio, in 1807. He was a member of Congress from 1813 to 1816 and a vigorous supporter of President James Madison's war policy. McLean then became a judge on the Ohio Supreme Court, serving from 1816 to 1822. While on this court, McLean ruled in Ohio v. Carneal (1817) that masters could not employ slaves in Ohio, but that they could probably travel through the state with their slaves. President James Monroe appointed McLean as a commissioner of the General Land Office in 1822 and as postmaster general in 1823. McLean's brilliant administrative skills and adept political maneuvering enabled him to retain his position under President John Quincy Adams. Always politically agile, during the election of 1828, McLean refused to use his office and immense patronage powers to help Adams. Although he had not worked for Andrew Jackson, the president-elect rewarded McLean for his silent “nonpartisan” support. Two days after his inauguration, Jackson nominated McLean to the Supreme Court, and one day later the Senate confirmed him.

Although he was Jackson's first Court appointee, McLean was not a true Jacksonian Democrat. He opposed Jackson's wholesale removals of officeholders in order to distribute patronage, and he supported protective tariffs and internal improvements. While on the bench, McLean persistently dabbled in politics, and he seemed available to any party. He was, at various times, discussed as a presidential nominee by the Anti-Masonic Party, Free Soil Democrats, the Whigs, and in 1856 and 1860, the Republicans. McLean never saw any impropriety in continuing to be a politician while on the Court. In this sense he was no different from many others on and off the bench at this time.

Despite his early affiliation with the Democrats, McLean's jurisprudence lay more in the Federalist-nationalist tradition of John Marshall and Joseph Story than the emerging Jacksonian jurisprudence of Chief Justice Roger B. Taney. Three elements characterized that jurisprudence: an inclination to stimulate and allow new economic enterprises through the release of creative energies, a deference to state power and state sovereignty, and strong proslavery tendencies. McLean distanced himself from Taney in the first two of these areas, and whenever possible—within his notion of proper jurisprudence—he opposed slavery.

In Charles River Bridge v. Warren Bridge (1837), Taney held that the franchise to build a new bridge did not abrogate the rights of the stockholders of the older bridge company. McLean's dissent explicitly rejected older English doctrine that protected virtually all existing enterprises from competition, and to this extent he accepted some of the Jacksonian ideals of enhanced competition. But he was unwilling to apply those ideals to this case. On the substantive issues, McLean agreed with Story's Federalist jurisprudence. The creation of the new Warren Bridge violated the contract clause of the Constitution by abrogating the Charles River Bridge Company's charter, which was clearly a contract between the state and the proprietors.

Unlike everyone else on the Court, however, McLean did not believe the Court had jurisdiction in the case. His view of the jurisdictional issue also reflected some of the Jacksonian deference to the states. McLean did not want the Supreme Court to micromanage the emerging dynamic economy.

Unlike Taney and other Jacksonians, in a number of commercial cases, McLean was ready to intervene in state affairs to strengthen national power. In the License Cases (1847), he joined the majority to uphold the challenged regulations of the sale of liquor as legitimately within the scope of a state's police power. But McLean also reaffirmed that in the area of interstate commerce the power of Congress was “supreme.”

McLean applied the implications of his License Case opinion to the Passenger Cases (1849). As the senior judge in the majority, McLean wrote the lead opinion in this case in which every judge wrote something, and the Court split, 5–4. McLean wrote to strike down state laws requiring that ship captains pay a fee for every immigrant they landed. He construed this fee to be a tax and found that any tax on imports, whether “upon tonnage, merchandise, or passengers” was a “regulation of commerce, and cannot be laid by a State, except under the sanction of Congress.” Taney, favoring state power over national power, led four hard-core states' rights dissents.

In Cooley v. Board of Wardens of the Port of Philadelphia (1851), the Jacksonian majority on the Court upheld Philadelphia's regulation of its port, which included a requirement that most ships hire local pilots. McLean did not dispute the utility of this legislation but believed it violated Congress's power to regulate commerce. He expressed concern that a majority of the Court had now subscribed to the notion that “a State may regulate foreign commerce, or commerce among the States.” McLean feared a “race of legislation between Congress and the States” that would produce chaos in interstate and international commerce.

Consistent with his neo-Federalist view of national power, McLean wrote the majority opinion in Pennsylvania v. Wheeling Bridge Co. (1852), ordering that the Wheeling Bridge be raised so it would not interfere with commerce on the Ohio River. Here Taney and the extreme states' rights advocate, Peter V. Daniel, dissented.

McLean's jurisprudence on slavery is complex. He was personally and politically opposed to slavery, and the antislavery lawyer and politician Salmon P. Chase, a future chief justice, was a good friend and political ally. In 1848 Chase told Charles Sumner that McLean was “the most reliable man, on the slavery questions, now prominent in either party.” As legal scholar Robert M. Cover noted, from a Free Soil perspective, McLean was “sound on slavery, politically and personally, if not judicially.”

McLean heard a number of fugitive slave cases in his role as circuit justice, and he also reviewed fugitive slave and other slavery-related cases on the Supreme Court. His early jurisprudence was clearly antislavery. In 1841 he joined Story's opinion ordering the release of the Amistad captives. This result was a direct slap at the proslavery policies of Jackson's successor, Martin Van Buren. Groves v. Slaughter (1841) pitted McLean's Federalist commercial jurisprudence against his antislavery views. The case turned on a Mississippi constitutional provision that prohibited the importation of slaves. McLean noted that the “necessity of a uniform commercial regulation, more than any other consideration, led to the adoption of the federal Constitution,” and he denied that the states had concurrent power to regulate commerce in the absence of congressional legislation. This stance put him squarely in the Federalist-nationalist-Whig tradition and clearly in opposition to the Taney-Jacksonian views of commerce and would seem to lead to the conclusion that Mississippi could not prohibit the importation of slaves as articles of commerce. But saying that would have undermined his antislavery views and the laws of most of the North. Instead, in a concurring opinion, McLean declared that slavery was purely a creature of local law, and using his home state as an example, he asserted that although Ohio could not prohibit the importation “of the cotton of the south or the manufactured articles of the north …. no one doubts its power to prohibit slavery.”

Prigg v. Pennsylvania (1842) also forced McLean to choose between a nationalist jurisprudence and an antislavery jurisprudence. Here he broke ranks with both Story and Taney. Story's majority opinion struck down all state personal liberty laws on the grounds that the federal fugitive slave law of 1793 preempted all state regulation of the return of fugitive slaves. The proslavery, states' rights Jacksonians, let by Taney and Daniel, agreed with the result in this case, but they wanted to allow the states to be proactive in aiding the return of fugitive slaves. McLean, on the other hand, abandoned his normal support for a strong national government. In the only dissent in the case, he argued, consistent with his opinion in Groves, that slavery was local and therefore the states could constitutionally intervene in the return of fugitive slaves to protect free blacks.

Although he dissented in Prigg, McLean accepted the will of the majority of his brethren. In a number of subsequent circuit court cases, he usually (but not always) ruled in favor of masters and against those who wanted to help fugitive slaves. In Norris v. Newton (1850), he charged an Indiana jury to find for the slaveholding plaintiff, reminding the jurors that “the law, and not conscience, constitutes the rule of action.” McLean's circuit court opinions in Jones v. Van Zandt (1843), Norris, and Miller v. McQuerry (1853) continued to disappoint his friends, as did his failure to dissent from Justice Levi Woodbury's opinion when Jones v. Van Zandt reached the Supreme Court in 1847.

McLean was obligated by his notion of stare decisis to support fugitive slave renditions, but he remained opposed to slavery. In Dred Scott v. Sandford (1857), McLean wrote a thirty-five-page critique of Taney's opinion. As he had throughout his career, McLean argued that slavery was “emphatically a state institution.” The only exception to this, he asserted, involved the Constitution's fugitive slave clause. Also consistent with his lifelong views, McLean supported the power of the national government to regulate affairs in the territories. McLean's dissent was admirable but is often forgotten because of Justice Benjamin Curtis's sixty-eight-page attack on Taney's opinion. At the time, however, McLean's dissent led to renewed interest in him as a presidential candidate. In 1860 Thaddeus Stevens, among others, backed him for the presidential nomination, but the presidency was no longer a realistic possibility for the seventy-five-year-old jurist. Moreover, his home state of Ohio backed a more viable candidate, Salmon Chase. McLean remained on the Court during the secession crisis and died a month after Abraham Lincoln's inauguration.


Francis P. Weisenburger, The Life of John McLean: A Politician on the United States Supreme Court (1937), the only scholarly biography of McLean, is dated and overemphasizes his political interests and career. An excellent short summary of McLean's life, followed by some of his opinions, is Frank Otto Gatell, “John McLean,” in Friedman and Israel, Justices, vol. 1, 535.

Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975), discusses the dilemmas of judges, such as McLean, who opposed slavery but felt obligated to enforce the constitutional provisions protecting the institution. Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981), places much of McLean's jurisprudence on slavery in the context of federalism. See also Michael A. Kahn, “The Appointment of John McLean to the Supreme Court: Practical Politics in the Jacksonian Era,” Journal of Supreme Court History (1993): 59; and Paul Brickner, “The Passenger Cases (1849): Justice John McLean's ‘Cherished Policy’ as the First of Three Phases of American Immigration Law,” Southwestern Journal of Law and Trade (2003/2004): 63.

Harold M. Hyman and William M. Wiecek, Equal Justice Under Law (1982), is the best book available on the constitutional history of antebellum America. Carl B. Swisher, The Taney Period, 1836–1864 (1974), volume 5 of the Holmes Devise History of the Supreme Court, is a classic history of the Taney Court.

Noteworthy Opinions

Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837) (Dissent)

Groves v. Slaughter, 40 U.S. 449 (1841) (Concurrence)

Prigg v. Pennsylvania, 41 U.S. 539 (1842) (Dissent)

Passenger Cases, 48 U.S. 283 (1849)

Pennsylvania v. Wheeling Bridge Co., 54 U.S. 518 (1852)

Dred Scott v. Sandford, 60 U.S. 393 (1857) (Dissent)


Document Citation
Mclean, John, in Biographical Encyclopedia of the Supreme Court 349 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18168-979392
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