ORIGINAL SIN:

The Case that Made the Court (Michael J. Glennon, Summer 2003, Wilson Quarterly)

Today, political activists of all stripes call themselves “Jeffersonians.” In Jefferson’s day, however, his political philosophy was distinctive. Jefferson was the original advocate of “small is beautiful.” He favored the states over the federal government and preferred a limited federal government and (until he became president) a weak presidency. He believed that an enlightened electorate was the path to good government, and that civic virtue lay more surely in small farms than in big business or citified commerce. Decen-tralized authority was essential, he thought, to keep government close to the people and responsive to their wishes. Many opponents of the new U.S. Constitution shared Jefferson’s views, though Jefferson himself, as American emissary to France during the 1787 Philadelphia convention, avoided formally having to resolve his own ambivalence toward the nation’s new charter.

Jefferson’s philosophical antagonist is less known to Americans, at least to those outside the legal profession. John Marshall was the longest-serving chief justice in the Court’s history, and easily the most influential. The rumpled, outgoing, athletic Virginian was the first grand master of the Court’s internal politics and oversaw the disposition of more than a thousand cases. He wrote the opinions for 508 of them.

Marshall’s power flowed from three sources: political canniness, disarming charm, and a riveted focus on his unvarying long-term strategic objective: establishing the supremacy of the federal judiciary. Before his appointment by President Adams in 1801, the Court’s six members wrote separate opinions, limiting the Court’s potential institutional strength. Mar-shall changed that. He encouraged his colleagues to speak with one voice. He even cajoled them into joining him in taking rooms at Conrad’s, a Capitol Hill boarding house, where they dined together, drank together, and argued together. (Justices in those days had no offices, and the unnoticed Court met in a small room on the first floor of the Capitol.) In his first three years on the Court, Marshall participated in 42 cases. The opinion of the Court was unanimous in every one of them, and John Marshall wrote every opinion. [...]

Part of Jefferson’s animus toward Marshall grew out of their diametrically different political philosophies, which traced in turn to very different life experiences. While Jefferson punctuated periods of service to state and country during the Revolution with interludes spent entertaining captured English and Prussian officers at Monticello, Marshall passed the winter of 1777 at Valley Forge. The stench, cold, and hunger were unbearable, and 3,000 men-one-fourth of the Contin-ental Army-died. The misery left an indelible impression on the 22-year-old Marshall. The troops knew, as did he, that the colonies were not poor and that there was no shortage of foodstuffs. But the Continental Congress had no power to requisition supplies. It’s hardly surprising that Mar-shall’s every effort throughout his 34 years as chief justice would be directed at solidifying the authority of the federal government over the states, and the authority of the judiciary over Congress and the executive branch. [...]

While they waited for the Court’s decision, the Jeffersonians must have believed that Marshall was boxed in, and that neither of his apparent options would be attractive to him. Marshall could order Madison to deliver the commissions, but Jefferson might then direct Madison simply to ignore the Court’s order, thus leaving Marshall with no means of enforcement-and creating a precedent that the executive branch is not subject to judicial direction. Such a course, moreover, might well play into the Repub-licans’ impeachment plans and make it possible to replace the entire Court-thereby establishing, perhaps, the even broader precedent that a change in administration carries with it the right to appoint new, sympathetic Supreme Court justices. Marshall’s second option-to decide in favor of Madison and hold that, for one reason or another, he was not required to deliver the commissions-was no better. It, too, would have been a devastating victory for the Jeffersonians, not merely a triumph on the law but a highly visible political capitulation of the Supreme Court in the face of apparent political threats.

On February 24, 1803, two weeks after the Marbury trial ended, Marshall delivered the opinion of the Court. It was, as usual, unanimous, and was, as usual, signed only by him. The text lacks the sweep and flow of Marshall’s more majestic opinions, such as McCulloch v. Maryland (1819), or the timeless logic of Gibbons v. Ogden (1824), but it is a masterwork of calculated restraint, feint, and cunning, an opinion that laid claim for the courts to the greatest of governmental powers-the final say as to what the law is-even as it left Marshall’s opponents no effective response.

The opinion is pure Marshall in its gradual, almost imperceptible movement from the obvious to the arguable, and in the understated, inexorable, syllogistic force of its reasoning. The chief justice began with the undisputed facts that the plaintiffs’ commissions were signed by the president and sealed by the secretary of state (himself); therefore, he concluded, because the appointments were made and the commissions were complete, the plaintiffs had a right to them.

For every abridgement of a right, he continued, there is a remedy. This is “the very essence of civil liberty.” If the government of the United States should provide no remedy for the deprivation of a vested legal right, it should cease to be a “government of laws and not of men.”

Whether the plaintiffs were entitled to the remedy they sought-a writ of mandamus-depended upon the nature of the writ and the power of the Court. Marshall moved into more dangerous territory. “It is not by the office of the person to whom the writ is directed,” he wrote, “but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.” In other words, there was nothing in the Constitution that precluded the Supreme Court from telling the secretary of state-or the president of the United States-to do what the law required. At issue was what the Court would order to be done. Here, Marshall said, the test was whether the administration’s action had been discretionary or non-discretionary: If the action was purely discretionary, the question presented would be political and not within the Court’s power. But if the action had not been discretionary, then there would be no ground on which a court could refuse to order it to be carried out. Delivering a completed commission incident to a valid appointment, Marshall noted, was something that Madison was directed by law to do; it was therefore a non-discretionary act, which the Court could properly order Madison to carry out.

By this point in the opinion, then, Marshall had thoroughly excoriated the Jefferson administration for violating the law and suggested in plain terms that Madison’s failure to deliver the commissions was nothing less than a breach of duty. Would he take the final step and order that the commissions be delivered? That depended, Marshall continued, in a neat tactical twist, upon whether the Court had power to decide the case.

Jurisdiction was granted, remember, by section 13 of the 1789 statute that conferred original jurisdiction upon the Court in cases such as this. The Constitution, however, also conferred original jurisdiction upon the Court in specified cases. It provided that the Court could sit as a trial court in “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Was it within Con-gress’s constitutional power to expand that list by law, as it had done in 1789, and did the Court therefore have jurisdiction to hear this case?

Marshall’s stunning answer was no-stunning because the issue of Con-gress’s power to expand the list in the Con-stitution had not been raised in the briefs presented, or even in passing in the oral argument; stunning because Marshall himself, in an earlier case, had relied upon section 13 in finding valid jurisdiction; stunning because section 13 was written by Oliver Ellsworth, one of the framers of the Constitution-who, as chief justice before Marshall, had also relied upon the statute to find valid jurisdiction; stunning because nearly half the members of the Congress that approved section 13 had been members of the Philadelphia convention. But there it was: Congress had acted beyond the scope of its constitutional power in enacting this statute. Any contrary interpretation, Mar-shall wrote, would render the Consti-tution’s list of specified cases mere surplusage. The consequence, Marshall went on to conclude, was that the 1789 law was of no force and effect: An “act of the legislature, repugnant to the Constitution, is void.” Then came the monumental point: “It is emphatically the province and duty of the judicial department to say what the law is.” In other words, the Supreme Court has the power to determine whether a law is repugnant to the Constitution.

Marshall thus succeeded in publicly labeling the Jefferson administration as a lawbreaker, lecturing Jefferson on his obligation to obey the Constitution, and establishing a precedent for judicial supremacy. He accomplished all this, moreover, in a manner that immunized him and his fellow justices from retribution, because the Court itself, after all, was the “victim” of its own abnegation.

The opinion is not a paragon of logic; much of it is circular, in particular the question-begging final argument that the Court has the power to invalidate a statute at odds with the Constitution. Nothing in the constitutional text directly supported that conclusion. None-theless, as many commentators have pointed out, the opinion was a small step backward (Mar-bury and his fellow Federalists never got their jobs as justices of the peace) and a huge step forward in Marshall’s lifelong quest to establish the United States Supreme Court as the final arbiter of the meaning of the Constitution.

Obviously there has to be some final determination of whether Congressional action may have transgressed the Constitution, but the very worst place to have that determination occur is in the most dangerous branch. Far better to allow another bite at the apple after the Court issues an opinion, perhaps by submitting said opinion to the Congress (requiring a supermajority?), Executive, and maybe even the state legislatures, which could then overturn the Court.

MORE (via Paul Cella):
-The True Story of Marbury v. Madison (David Forte, Winter 2003, Claremont Review of Books)

Of all the excuses for the abuse of judicial power offered by leftist judges and their defenders, none is more disingenuous than, "John Marshall made me do it."

Though normally not friends of original intent or legal tradition, today's judicial "activists" like to trace their lineage back to the (purported) original judicial activist, to the great Chief Justice who was the first to persuade the Supreme Court to strike down a law of Congress.

According to this conceit, which is now the standard interpretation enshrined in countless histories and hornbooks, Marbury v. Madison was the breakthrough that demonstrated how truly powerful the judiciary could be. In this famous case, decided 200 years ago, Marshall supposedly showed that the Constitution is an elastic document or at least could be turned into one. Therefore, the "living Constitution" is nothing new: John Marshall's own example and authority prove that judicial activisim is as American as apple pie.

Strangely, many conservatives accept this strained interpretation, though for different reasons. They agree that judicial activism is an exaggerated form of judicial review and that the problem is endemic to the Constitution. Reluctantly, they conclude that judicial review is an undemocratic flaw in the constitutional order that needs to be excised or constrained, perhaps by a constitutional amendment that would empower Congress to overrule the Court.

Yet both liberals and conservatives are mistaken, because the prevailing account of Marbury on which they rely is itself wrong.

This is what happened.

Posted by Orrin Judd at January 29, 2004 10:31 PM