by Ray Raphael
Reentering the political fray, Morris found himself fighting a rearguard action against a less cataclysmic “revolution” than France’s, this one merely trying to reverse the policies of the previous administration. A Federalist by temperament and philosophy, by class and business interests, and by any other measure, Morris would have to adjust whatever views he had expressed in his previous incarnation as an American statesman to reflect the political contingencies of the moment. At the Constitutional Convention in 1787, he had engineered the transfer of appointive powers from the Senate to the president, fearing that the Senate would be “subject to cabal.” Now, sitting in that body, he looked upon the Senate more favorably and the presidency, now in Republican hands, less so. On January 14, in a lengthy address opposing presidential appointive powers without consent of the Senate, he entreated senators to stay true to their constitutional mission and not repeal the Judiciary Act. “We, the Senate of the United States, are assembled here to save the people from their most dangerous enemy, to save them from themselves; to guard them against the baneful effects of their own precipitation, their passion, their misguided zeal. ’Tis for these purposes that all our Constitutional checks are devised.” To allow repeal would “plunge us all into the abyss of ruin,” he decried. “Do not, I beseech you, … commit the dignity, the harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compass and your charts into the ocean. Do not believe that its billows will waft you into port.”18
Morris’s rhetoric, extended metaphors and all, had no effect on party-line voting. Although Vice President Aaron Burr, as president of the Senate, cast a tie-breaking vote on a procedural issue with the Federalists, no other Republican broke ranks, and when all had returned to duty, the repeal bill narrowly passed. President Jefferson signed it into law on March 3, 1802, the last day of his first year in office. Stage one of the assault on the Federalist judiciary was completed, but it had required the expenditure of political capital. “I hope to see them [the people] again consolidated into a homogeneous mass, and the very name of party obliterated from among us,” Jefferson had written to Robert Morris two days after taking office. “I will do anything to obtain it short of abandoning the principles of the revolution.” Following his “principles,” though, had shattered the dream of unity. Federalists might have lost the battle, but their argument that Jefferson and the Republicans were attempting to destroy the Constitution by crushing the independence of the judiciary only grew stronger, galvanizing opposition to the administration. To what lengths would the ruling party now go, once “Jefferson’s measure” (as his opponents tagged the repeal) had passed?19
Among the forty-two “midnight” appointees were four men chosen for the relatively inconsequential positions of justices of the peace: William Marbury, Robert Hooe, Dennis Ramsay, and William Harper. Although John Adams had signed their commissions in the waning hours of his presidency and Secretary of State John Marshall had quickly affixed the Great Seal of the United States, James Marshall, the secretary’s brother, in his haste had failed to include them with others he delivered to the appointees. Presumably, this minor administrative oversight could be straightened out, but Jefferson, upon assuming office, refused to deliver the commissions that had already been signed and sealed. Teaming up with the Federalist Charles Lee, a former attorney general under Washington and Adams, Marbury, Hooe, Ramsay, and Harper took Jefferson’s secretary of state, James Madison, to court. Madison was required by the Judiciary Act of 1789 to hand over their commissions, they argued, but the defendant refused to produce the documents or even show up in court.
The case, Marbury v. Madison, was tried before the all-Federalist Supreme Court, with Chief Justice John Marshall presiding. Marshall and the associate justices faced a political dilemma. If they ruled in favor of the plaintiffs and ordered Secretary of State Madison to deliver the commissions, Jefferson would likely order Madison to disobey the Court, thereby setting up a constitutional showdown that Jefferson and the Republicans, at the height of their popularity, would win. On the other hand, the Federalist justices did not want to bow to Republican pressure and deny the plaintiffs their rightful offices.
Having sealed the original commissions when he was secretary of state, Marshall could easily have recused himself and let the other judges struggle with the problem, but instead he conceived a masterful exit strategy. First, he explained point by point why Madison, by law, should deliver the commissions, but he stopped short of ordering him to do so. Instead, he determined that the Supreme Court was not empowered to hear the case. The Constitution, he said, gave original jurisdiction to the Supreme Court only in cases “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,” so this suit did not qualify. Further, since the Judiciary Act of 1789 had stated a case like this should qualify, that act was unconstitutional. Marshall purposely lost the battle in order to win the war. Yes, Jefferson could deny the plaintiffs their commissions, but in this and all future issues brought before it, the Supreme Court would make the final determination on the constitutionality of laws. It was certainly a bold move, and perhaps it was not even “constitutional,” since nowhere in the Constitution is the Supreme Court granted the explicit authority to make such a determination, but Marshall’s prevailing opinion in Marbury v. Madison has withstood the test of time and become a central canon of our legal system.
Today, in our texts, we treat Marshall’s decision in Marbury v. Madison as establishing what we call judicial review, but historically the matter was not so cut-and-dried. Although Marshall headed the Court for another third of a century, he never again overturned federal law. President Jefferson, meanwhile, refused to accept Marshall’s pronouncement. True, he did not directly challenge the decision, which technically ruled in the administration’s favor by dismissing the plaintiff’s case, but privately he fumed. To Abigail Adams, eighteen months after Marbury v. Madison was concluded, he wrote, “The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also, in their spheres, would make the judiciary a despotic branch.” A key word here is “would”; for Jefferson, the matter was by no means settled. The notion that the judiciary could interfere with an action of the executive department seemed a clear violation of the basic principle of independent branches, which he had long espoused and the Constitution, he thought, had incorporated. The president, duly elected, clearly should have the final say in executive matters, not appointees from a different branch of government, while Congress itself should decide whether proposed legislation was constitutional. Each branch, Jefferson believed, must determine its own responsibility to the Constitution, subject only to the will of the people. The Constitution, after all, had required Jefferson to take an oath pledging to “preserve, protect and defend the Constitution of the United States,” and how could he do this without determining for himself what the Constitution really meant?20
Separation of powers under the Constitution was not absolute, however, and this might work in Jefferson’s favor. Federalist judges, if they overreached their authority, could potentially be impeached. Although the power of impeachment belonged to the legislative branch, Jefferson was the de facto leader of the party that controlled Congress, and he did not turn a blind eye to the possibility of utilizing this constitutionally approved technique for removing Federalist judges. The problem, though, was that “civil Officers of the United States” could only be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” Could Federalist judges be proven guilty on any of those counts?
Jefferson believed one could. The Supreme Court justice Samuel Chase had evidenced clear bias when trying cases under the Sedition Act. He bullied defense attorneys and tried to stack juries; once, he allegedly asked the marshal to remove from the jury panel “any of those creatures or people called demo
crats.” Repeatedly, Chase preached his brand of Federalism from the bench, and his instructions to a grand jury in Baltimore in May 1803 caught Jefferson’s attention. “I can only lament that the main pillar of our State Constitution has already been thrown down by the establishment of universal suffrage,” Judge Chase told the jurors. “Our republican constitution will sink into a mobocracy, the worst of all possible governments…. The modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us.” When Jefferson read Chase’s words in a newspaper, he wrote immediately to Joseph Nicholson, who was then managing the impeachment trial of a Federalist judge who had literally become insane: “You must have heard of the extraordinary charge of Chase to the Grand Jury at Baltimore. Ought this seditious and official attack on the principles of our Constitution, and on the proceedings of a State, to go unpunished? And to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration, for myself it is better that I should not interfere.” The president’s message to this Republican stalwart was clear: Chase should be impeached, but the president should not be implicated.21
Nicholson and John Randolph, the eccentric Republican “whip” who attended congressional sessions booted, spurred, and with riding whip in hand, drew up eight articles of impeachment, which the House of Representatives readily approved. Yet despite marshaling dozens of witnesses who attested to Chase’s political excesses while serving in an official capacity, Nicholson and Randolph were unable to maintain party-line discipline in the Senate. Had all Republican senators toed the party line, Chase would have been removed from office, but just enough moderates joined with the outnumbered Federalists to acquit Chase on all counts.
Chase’s impeachment trial was both a setback for Jefferson and a rare repudiation of partisanship. While the framers had established high standards for impeachment—“Treason, Bribery, or other high Crimes and Misdemeanors”—they also decriminalized the procedure by insisting that “Judgment in Cases of Impeachment shall not extend further than to removal from Office” and disqualification from holding future offices. While Chase had certainly broken no law, a good case could be made that he had violated his judicial charge of impartiality. Everybody knew, however, that had Chase been convicted, other impeachments would certainly follow. Not only would the judiciary be politicized even more than it was, but it would also become forever beholden to Congress, which could and likely would judge the judges habitually. That’s why several moderate Republicans, fearful of setting a dangerous precedent, balked. (The exact number varied with the eight articles of impeachment.) With Chase’s acquittal, the judiciary became more independent of Congress and, indirectly, the president. Jefferson had hoped impeachment would chasten the judiciary for its usurpations, but instead the judicial branch emerged stronger yet. No Supreme Court justice has been tried for impeachment since.
The borderlands between executive and judicial authority were explored yet one more time during Jefferson’s presidency. On January 22, 1807, the president sent a special message to Congress announcing that Aaron Burr, “whose guilt is placed beyond question,” had spearheaded a western conspiracy with “two distinct objects, which might be carried on either jointly or separately, and either the one or the other first, as circumstances should direct. One of these was the severance of the Union of these states by the Alleghany mountains; the other, an attack on Mexico.” The first constituted treason, and the second a violation of treaty and law, since Spain was nominally on friendly terms with the United States. Although two grand juries in the West had failed to return indictments, the president vowed to bring Burr to justice closer to the center of national authority.22
This he did, but the case wound up in the federal district court in Richmond, Virginia, where the presiding judge was none other than Chief Justice John Marshall (at that time, Supreme Court justices presided over lower courts as well), and Jefferson did not trust Marshall or any other Federalist judge to oversee a fair trial. “What loophole they will find,” he wrote to William Branch Giles, “we cannot foresee.” Old wounds had not healed. To Giles the president did not bother to conceal his disdain for Federalist opponents, who “give all their aid, making Burr’s cause their own, mortified only that he did not separate the Union and overturn the government.” If Burr had succeeded in his secessionist efforts, he continued, “they would have joined him to introduce his object, their favorite monarchy, as they would any other enemy, foreign or domestic, who could rid them of this hateful republic for any other government in exchange.” More than six years into his presidency Jefferson was still consumed with venom, but he did have a somewhat rational backup plan should Burr be acquitted. “The nation will judge both the offender & judges for themselves,” he predicted. “They will see that one of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution.” The folly of allowing judges to set traitors free would alert people to the need for reining in the judiciary, which could be done with a constitutional amendment. No longer would judges, with “impunity,” be allowed to “overturn the Constitution.”23
As the proceedings began, Jefferson tried to direct the prosecution by issuing frequent and specific instructions to George Hay, U.S. attorney for the District of Virginia, who was charged with handling the case. Writing from Washington, he told Hay how to examine witnesses, administer their oaths, and pay them. “Go into any expense necessary for this purpose, & meet it from the funds provided by the Attorney general for other expenses,” the president wrote.24
On June 2, in his third letter within a week, Jefferson told Hay how he should respond to the defense’s citation of Marbury v. Madison: “I think it material to stop at the threshold the citing that case as authority, and to have it be denied to be law.” He pointed out the essential inconsistency of the ruling—the Court said how the case should be decided, even though it “disclaimed” authority to rule on it because it did not have original jurisdiction—and then proceeded to argue his side once again to Hay. Since Jefferson, not Marshall, had interpreted the case correctly, and since the Court had transcended its authority by interfering with the internal affairs of the executive branch, the president felt no obligation to follow any aspect of the Court’s ruling, particularly the assumption that it could declare an act unconstitutional. Jefferson’s defiance is worth noting at some length:
I shall ever act … against any control which may be attempted by the judges, in subversion of the independence of the executive and Senate within their peculiar department…. [W]here our decision is by the Constitution the supreme one, & that which can be carried into effect, it is the Constitutionally authoritative one, and that … by the judges was coram non judice [literally, “before one who is not a judge,” indicating an improper venue or lack of jurisdiction], & unauthoritative, because it cannot be carried into effect. I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; and I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially & against law, and that their reverse will be the rule of action with the executive.25
Four years after Marshall had asserted final authority in interpreting the Constitution, Jefferson was still claiming that authority as well, and now the trial of Aaron Burr provided yet another occasion for the chief justice and the chief executive to assert the supremacy of their respective branches. When Burr requested that the court subpoena documents from the president, Marshall considered the matter carefully and then agreed to do so. Unlike the British king, who was said to b
e above the law and therefore could not be compelled to answer a subpoena for documents, the American president, in the eyes of the law, was still a citizen and therefore subject to the court, Marshall determined. For a Federalist, it was a strangely Republican argument, while the response by the Republican president was more in keeping with Federalist philosophy. Jefferson agreed to submit “whatever the purposes of justice may require,” but as head of the executive branch he alone would determine which documents those might be, and no court could order otherwise. “Voluntarily,” he said, he would send the requested documents, but while doing so, he insisted it was “the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.” During the debate over Jay’s Treaty more than a decade earlier, when President Washington had resisted demands by Congress to hand over documents, Jefferson had protested, but now, as president, he was as willing as any Federalist to fight for the autonomy of his office.26