Judges tended to be from the gentry, and removing one for malfeasance promised to be controversial. So, rather than ruling on the behavior of the judge, Marshall instead persuaded the council to look into whether the law violated Virginia’s constitution. The council’s report then pronounced unconstitutional the act of the legislature that had authorized the council to evaluate judicial conduct. The language of the opinion presages that which Marshall would employ two decades later. “The [Council] are of the opinion that the Law authorizing the Executive to enquire into the Conduct of a Magistrate . . . is repugnant to the Act of Government, contrary to the fundamental principles of our constitution.”27
The relative power of a constitution and the legislature it defined had been debated for decades, not just in the United States, but also in Europe, and this debate goes directly to the question of separation of powers, in which judicial review is grounded.
If the constitution was deemed superior to laws enacted by legislature, judged to be the sort of “super law” Justice Scalia describes, any legislation counter to the constitution must give way. Although opinion on this question was by no means unanimous, most scholars, both then and now, agree that a constitution should take precedence over laws enacted under its provisions.
The question remains as to which arm of government should be entitled to determine when the legislature has overstepped its bounds, and then to adjudicate conflicts. To Justice Scalia, the answer is simple—the courts. But the great William Blackstone, spiritual godfather of conservative judges throughout the English-speaking world, and a man whom Marshall revered, had rejected judicial activism and specifically declared that the courts should not be granted this power. Only the legislature can overturn a legislative act.
“Because the legislature,” Blackstone wrote in a passage with which Marshall was familiar, “being in truth the sovereign power, is always of equal, always of absolute authority . . . Acts of parliament that are impossible to be performed, are of no validity, and if there arise out of them any absurd consequences, contradictory to reason, they are, with those collateral consequences, void. If parliament will positively enact an unreasonable thing, there is no power in the ordinary forms of the constitution vested with authority to control it. The judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive to all government.”28 Thus, to Blackstone, separation of powers, the ultimate guarantor of liberty, demanded that the courts have no power to overturn legislative acts.
But Blackstone added an exception, when a cause before the bar arose from an unforeseen consequence of a legislative act. In that circumstance, he felt judges were entitled to ignore the act. As he put it, “But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc [to this extent] disregard it.”29 This passage, while in no way an endorsement of judicial review, does provide justification— potentially quite broad justification—for a court to refuse to enforce a statute in specific cases.
Still, in his conclusion, Blackstone left little doubt where his overall sentiments lay. “There is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.”30
Oddly, Marshall, in the issue before the council, would have found more support in Montesquieu,31 who would become the favored philosopher of Jefferson and the hated Republicans. As Montesquieu asserted that the executive should act as a control on the legislature, the Virginia council, being technically an executive body, was within its rights in nullifying the offending statute.
But, like Blackstone, Montesquieu also rejected both judicial review and an active judiciary. “National judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor.”32 Again as had Blackstone, Montesquieu also postulated that the legislature must sometimes act as a check on itself. “That part, therefore, of the legislative body, which we have just now observed to be a necessary tribunal on another occasion, is also a necessary tribunal in this; it belongs to its supreme authority to moderate the law in favor of the law itself, by mitigating the sentence.”33
Montesquieu’s and Blackstone’s exceptions notwithstanding, in advising the governor that the law was void, Marshall was staking out new and uniquely American territory. The council’s ruling was “the first recorded instance in the United States of an act of a legislature being annulled because it conflicted with the constitution.”34 Governor Harrison was loath to set such precedent and attempted to persuade the council to reconsider and rule on the judge’s fitness anyway, but the council stood its ground.
As was to become common in his long and storied career, by seizing on a narrow question and using it as a lever to advance his philosophical agenda, Marshall created a storm in the surrounding political arena. In this case, the controversy over separation of powers, which Marshall had been instrumental in creating, reverberated in the Virginia legislature for the next two years.
At first, the Virginia assembly accepted the ruling of the council, or at least refused to overturn it, suggesting “that the supremacy of the constitution was a concept well understood in Virginia.”35 The concept could not have been that well understood, however. Two years later, after Marshall had resigned from the Executive Council, the council agreed to rule on the fitness of another judge. One of the members, Spencer Roane, resigned in protest.* Clearly, separation of powers was a construct that evoked a good deal more acrimony than agreement. Still, during Marshall’s tenure on the council, he succeeded in transforming himself from a promising upstart to a man whose views held great significance within the government.36
Also during his time on the council, Marshall began an intimate business relationship with James Monroe, who would eventually become a political adversary and close ally of Jefferson. Monroe had solicited Marshall to oversee land warrants in Kentucky. At one point, Marshall wrote, likely tongue in cheek, “I have been maneuvering amazingly to turn your warrants into cash; if I succeed, I shall think myself a first rate speculator.”37
Marshall’s reason for leaving the council seems to have been financial. His law practice was still not bringing in the money he had hoped for, so he freed himself from political obligations to become a full-time lawyer. Once again, with his father-in-law’s connections, Marshall quickly turned his practice around and, when financially stable, turned his attention once more to politics. In 1784, he was again elected to the House of Delegates.
While in the house, where he served on the Committee for Courts and Justice, Marshall championed a bill to establish a series of circuit courts to replace the existing system in which magistrates sat in one district only, often as minor potentates. Circuit riding was to become a dominant and pivotal issue with regard to the federal court system, and Marshall would become deeply embroiled in the question as a member of the Supreme Court.
Frustration at the Byzantine practices of the Virginia legislature again got the better of Marshall, and after only one term, he left the House of Delegates to resume his now lucrative law practice. He had permanently settled in Richmond with Polly, who had borne the first of his children, although he was also given a country home by Polly’s father. He became active in local government in the capital, serving on the volunteer fire brigade, the city council, and as a magistrate.38
Thus, in early 1787, when Shays’s Rebellion in Massachusetts sent a chill through the nation and spurred the call for a constitutional convention to meet in Philadelphia in May, Marshall for a third time stood for election to the House of Delegates, this time from his adopted Richmond instead of Fauquier County. Now a well-known and popular figure in the capital, he was elected easily. Marshall wa
s present when, at the conclusion of the Philadelphia Convention, the House of Delegates was charged with deciding whether Virginia should call a ratifying convention.
While the calling of the ratifying convention itself was never much in doubt, the rules under which it would operate were very much so. Federalists wanted a simple up or down vote on the product that had emerged from Philadelphia. Led by Henry, opponents proposed allowing a ratifying convention only if Virginia could first propose amendments conditional to acceptance of the Constitution. The number of amendments promised to be extensive and they would, if not kill the Constitution outright, at least necessitate calling the second convention that was at the core of the Anti-Federalist strategy.
Marshall proposed leaving the question of amendments to the delegates to the ratifying convention itself, which would allow the meeting to proceed without any preconditions or limitations on debate. The motion passed unanimously, and Marshall was rewarded by his subsequent election as a delegate to the ratifying convention itself.
Thus, when Marshall arrived at the ratifying convention in June, while he had not yet attained the status of a Madison or a Henry, he was poised for a leap to prominence. The Virginia ratifying convention was his first foray into national politics and, as a delegate, he was now among 170 of the state’s most prominent and influential citizens.
* In 1788, Virginia included most of what is present-day Kentucky, so the blockade would extend to the Mississippi, then owned by Spain.
* When she was just in her teens, she ran off with a slave overseer, married him secretly, and had a child. The family went and got her, killing her husband in the process. A few years later, she married a local minister, John Marshall’s grandfather, again in violation of her family’s wishes. The family shunned her and, as a result, Marshall almost never discussed his link to the Randolphs. She ultimately went mad and died insane (Jean Smith, Marshall).
† The latter position was particularly lucrative, since a tax collector was entitled to keep a portion of the taxes he collected.
* Marshall’s younger brother James eventually married the daughter of Philadelphia financier Robert Morris.
† Reported equally is that Marshall’s intense antipathy for Jefferson was formed by the latter’s failure to join his fellows at Valley Forge, although Marshall probably did not need Valley Forge for an excuse.
* Congress had no power to raise troops. That was left to the individual states, whose efforts and willingness to spend money could be less than enthusiastic. Lack of manpower was a source of constant consternation to Washington.
† His cousin’s war record as Virginia’s governor was a major factor in Marshall’s estrangement, although there is no evidence that Marshall ever denounced Jefferson publicly for his failure to serve in the army.
* Not all his opponents, of course. Jefferson detested him and Andrew Jackson would have gleefully slit his throat. Still, for a man so often in the path of the storm, Marshall was remarkably well liked.
* Roane’s agreement with Marshall’s position is ironic. After Jefferson’s election to the presidency, Spencer Roane was the man Jefferson wanted to nominate to be chief justice of the Supreme Court after he had succeeded in removing the sitting chief justice, John Marshall.
FOUR
MAKING A NEW NATION:
RATIFICATION IN VIRGINIA
MORE EVANGELIST THAN THEORIST, Patrick Henry was one of history’s most breathtaking orators, a titanic figure who could sway multitudes by force of personality alone. He could speak for hours at a stretch to a packed auditorium without a single person noticing the time pass. From the Virginia ratifying convention’s opening day on June 2, 1788, Virginians lined up to hear what has been described as “the most eloquent performance in the annals of forensic virtuosity.”1 Henry roared; he whispered; he used logic and sarcasm; he probed for every tiny opening in which he could instill fear of the abyss into which ratification of the Constitution would send his state and his country. Henry was so voluble that, early in the proceedings, the shorthand stenographer assigned to keep records of the convention could not keep up with him. Midway through a typically electrifying speech, this on the inevitable despotism of the president, the secretary merely inserted, “Here Mr. Henry strongly and pathetically expatiated on the probability of the President’s enslaving America, and the horrid consequences that must result.”2
If Henry had a weakness, it was an inability or an unwillingness to keep to the point. He cast his argument like a great net, trawling to see what opportunities might be ensnared by his rhetoric. If Henry was to be defeated, it would be by precision and guile, not bare-knuckles floor argument.
James Madison, in the Federalist camp, was unmatched for precision and guile. But as summer approached, Madison was not in Virginia. He had remained in New York to spearhead the newly ratified Constitution through Congress. However, after friends warned him that Henry had succeeded in fomenting widespread opposition to the Constitution, Madison was forced to alter his plans. In late April 1788, Madison reluctantly left New York and returned home. He quickly submitted his name as a convention delegate from his native Orange County and was easily elected.
Although they may have been equals as politicians, Madison could not have been more different from Henry in style. Where Henry was large and voluble, Madison was tiny and quiet, as methodical and meticulous as Henry was spontaneous. Madison had helped carry the day in Philadelphia by arriving more prepared for the constitutional debates than any other delegate. He now repeated that technique in Virginia—he had studied every article, every clause of the new Constitution, in terms of both how to attack and how to defend it, and had the additional advantage of being one of only a handful of delegates who had been present for every session in Philadelphia, so he could speak knowingly to the nuances of the debates.
At the ratifying convention’s outset, to blunt Henry’s rhetorical legerdemain, Madison secured a rule that the debates would be clause-by-clause. In such a dissection of the Constitution, Madison could shine, offering detailed explanations in defense of the plan. But while structurally the clause-by-clause rule was adhered to, Henry refused to be penned in. (At one point, he entered a motion to scrap the format, but it was dismissed. Henry responded by simply ignoring it.) Ranging far in his denunciations, Henry made little attempt to parse specifics or to dissect the positions of his opponents. Instead, he railed against the new Constitution as an instrument of tyranny. Although, under the thunder, Henry’s main thrust was to decry a loss of state sovereignty, his dire warnings of a despotic central government run by non-Virginians denying individual rights and liberties struck a responsive chord in Anti-Federalist Virginia.*
Patrick Henry
For the first few days, defense of the Constitution fell to Edmund Randolph (who had refused to sign it in Philadelphia, but had since converted to supporter) and Edmund Pendleton. Finally, on the afternoon of June 6, Madison, beset by illness, spoke for the first time. The contrast with Henry’s theatrics could not have been more striking. The secretary recorded that Madison “spoke so low that his exordium could not be heard distinctly.”3
But Madison’s reserve masked a tenacity equal to Henry’s. While each man had impressive adherents,† the debates ultimately reduced to a head-on duel, the orator against the philosopher, emotion against reason. Time after time, Henry rose to respond to Madison or Madison to Henry. In one stretch, Madison took the floor thirty-five times in four days, quietly, methodically countering each of Henry’s charges.
By June 19, after almost three weeks of argument, the outcome was so much in doubt that each side thought it held a small edge. On that day, and for the remainder of the convention, the debates would focus on Article III, the judiciary.
Pendleton opened the debate by claiming that the vagueness with which Article III had been drawn was actually a virtue. “The first clause contains an arrangement of the courts—one supreme, and such inferior as Congress may ordain and establish. This
seems to me to be proper. Congress must be the judges, and may find reasons to change and vary them as experience shall dictate. It is, therefore, not only improper, but exceedingly inconvenient, to fix the arrangement in the Constitution itself, and not leave it to laws which may be changed according to circumstances.”4
Pendleton then defined the jurisdiction of the Supreme Court in a manner that would have great significance fifteen years hence. “The next clause settles the original jurisdiction of the Supreme Court, confining it to two cases—that of ambassadors, ministers, and consuls, and those in which a state shall be a party. It excludes its original jurisdiction in all other cases . . . Congress may go further by their laws, so as to exclude its original jurisdiction, by limiting the cases wherein it shall be exercised. . . . Yet the legislature cannot extend its original jurisdiction, which is limited to these cases only.”5
Pendleton offered the narrow interpretation of Article III, Section 2, since the next sentence states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” For Pendleton, “exceptions” were confined to appellate jurisdiction, although, since he had not been a delegate in Philadelphia, he was merely stating an opinion. In fact, there had been no agreement at all at the Convention as to whether or not Congress might extend the Supreme Court’s original jurisdiction.6 But not once in his extended enunciation of the Supreme Court’s responsibilities did he mention the power to annul an act of Congress.
The remainder of the June 19 session was dominated by George Mason, who argued that a national judiciary would a priori tend to despotism by overpowering the states and removing the courts from the people. The proceedings were then adjourned.
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