John Marshall

by Harlow Giles Unger

  * The Constitution, however, counted each slave vote as only three-fifths of a vote, thus reducing the votes of 1.7 million slaves to the equivalent of about 1 million white votes—still enough to give wealthy southern plantation owners full control of state legislatures in the six slave states and a disproportionate influence in the US Congress and national government. At the time state legislatures selected the two US senators from each state.

  * The Constitution gave Congress the power to fix the number of justices on the US Supreme Court. The Judiciary Act of 1789, which created the federal judiciary, fixed the number at six. The Judiciary Act of 1801 reduced it to five, the Judiciary Act of 1802 restored the number to six, and it climbed to seven in 1807, nine in 1837, and ten in 1865, with each increase often reflecting the effort of the majority party in Congress to influence the politics of the Court. In 1869 Congress acted to reflect the increase in the number of states and reduce the incidence of tie votes by fixing the number of justices at nine, where it has remained ever since.

  CHAPTER 11

  Party Rage

  AS JOHN MARSHALL SET OUT FOR CIRCUIT COURT IN RALEIGH, NORTH Carolina, after Christmas in 1802, he felt uncharacteristically melancholy: Thomas Jefferson had blatantly violated the Constitution—indeed, violated his oath to “preserve, protect, and defend the Constitution” by shrinking the federal judiciary and effectively emasculating the Supreme Court. He had ignored normal impeachment and trial procedures and removed federal judges from the bench because they held political views that differed from his own.

  Adding to Marshall’s somber mood was the news that his father, Thomas Marshall, had died in Kentucky. After John Marshall’s election to Congress in 1799 he had taken the time to visit his father, knowing it might be the last time they would ever be together. They had always been close, and old age had taken its toll on Thomas Marshall.

  Obsessed by his irrational loathing of the Marshalls, Thomas Jefferson imagined a dark political plot behind the Marshall son’s pilgrimage to see his father. He told Virginia Senator Wilson Cary Nicholas that “the visit of the apostle Marshall to Kentucky excites anxiety” and warned of “poisons” that Marshall would introduce into Kentucky politics.1

  “There is so much in the political world to wound honest men that I am disgusted with it.” Marshall lamented to his friend Charles Cotesworth Pinckney, the retired congressman from South Carolina.

  I begin to see things and indeed human nature through a much more gloomy medium than I once thought possible. This new doctrine of the perfectibility of man . . . begins to exhibit him I think as an animal much less respectable than he has heretofore been thought.2

  The new North Carolina capital of Raleigh lay 165 miles away from Richmond. The forty-eight-year-old Marshall covered the distance on horseback in about three days, traveling about fifty miles a day and spending two nights on the road—sometimes at a tavern, sometimes at a friend’s house, sometimes simply knocking at a farmer’s door.

  “My dearest Polly,” he wrote from Raleigh on January 2, 1803. He knew that Polly remained too fragile to ponder over his political problems.

  You will laugh at my vexation when you hear . . . I lost 15 silver dollars out of my waistcoat pocket. They had worn their way through the various mendings . . . and sought their liberty in the sands of Carolina. . . . I ordered Peter to take out my clothes that I might dress for court when to my astonishment and grief after stumbling several minutes in the portmanteau, staring at vacancy, and sweating most profusely, he turned to me with the doleful tidings that I had no pair of breeches. You may be sure this piece of intelligence was not very graciously received. However, I immediately set out to get a pair made. I thought I should be a sans culotte only one day . . . but the greatest of evils, I found, was followed by still greater! Not a tailor in town could be prevailed on to work for me. I have to pass the term without that important article of dress . . .

  Adieu, my dearest Polly.

  I am your ever affectionate

  J Marshall3

  Justice Samuel Chase was even more disgusted than Marshall with Jefferson’s attack on the federal courts. “I have no doubt,” he appealed to Marshall, “that the circuit judges cannot . . . be deprived of their offices, or commissions, or salaries during their lives; unless only on impeachment for, and conviction of, high crimes and misdemeanors, as prescribed by the Constitution.”

  As the act of Congress evidently intended to remove the circuit judges from their offices and to take away their salaries, I am of the opinion that it is void. . . . Further, all judges, by the Constitution, are required to bind themselves by oath to support the Constitution of the United States . . . and that they are bound in duty to declare acts of Congress or of any of the states contrary to the Constitution void. . . . Every judge of the Supreme Court . . . must, in my judgment, decline to execute the office of a circuit court judge.4

  Although Marshall and the other justices agreed with Chase, Jefferson argued that he too had taken an oath to support the Constitution of the United States and that neither his own oath nor that of the justices permitted them to thwart the will of the people by overturning laws enacted by the people’s representatives in Congress. With Jefferson’s Republicans in command of Congress and the justices of the Supreme Court “in exile,” the President wielded all but dictatorial powers.

  Late the following spring Marshall took Polly and the children north for the summer to his boyhood home of Oak Hill, on a cool forest hillside of the Blue Ridge. In midsummer Marshall and Polly joined James and Elizabeth Monroe at Fauquier White Sulphur Springs,* a resort about forty miles from Oak Hill, where the two couples rented cottages next to each other. Like Polly, Elizabeth Monroe suffered chronic health problems, and the two developed a warm friendship, taking the waters together and comparing ailments and remedies, while their husbands argued politics, discussed constitutional law, or went hunting as they had when they were boys.

  As summer blended into fall, storm clouds sprayed the Blue Ridge with sheets of chilly autumn rain, and the Marshalls and Monroes packed up and returned to their respective Virginia homes before resuming government service.

  When Marshall returned to Washington, eleven of the judges ousted by the Judiciary Act of 1802 were petitioning Congress for reinstatement and payment of back salaries. Their dismissals, they declared, had violated their constitutional rights as federal judges to “hold their offices during good behavior and . . . receive . . . compensation.” At Jefferson’s direction the Republican majority in Congress rejected the petitions, declaring Congress, not the courts, sole judge of what was and was not constitutional.

  “If the petitioners can bring their case before the Supreme Court,” taunted Virginia’s Representative John Nicholas, “let them do so. If the Supreme Court shall arrogate this power to themselves and declare our law to be unconstitutional, it will then behoove us to act. Our duty is clear.”5

  After an absence of nearly two years John Marshall reconvened an all but impotent Supreme Court. Attorney Charles Lee, the former US attorney general and brother of former Virginia Governor Henry Lee, sprang to his feet and asked the Court for a writ of mandamus,* or court order, to force Secretary of State James Madison to deliver William Marbury’s commission as a justice of the peace. On Jefferson’s instructions Madison had not appeared, and Attorney General Levi Lincoln, who represented Madison and the government’s executive branch, could do nothing but sit and say nothing in the absence of his client.

  As an embarrassing silence filled the room, Marshall and the four associate justices looked to each other for a way out of the constitutional impasse. The justices realized that if they issued the writ, they had no law enforcement arm to force the secretary of state to comply. Rather than a symbol of authority, the writ would become a symbol of court impotence and prevent its emergence as a third coequal branch of the federal government. If they did not issue the writ, however, they would be complicit in undermining the foundation of the new g
overnment by allowing a President to violate Article III of the Constitution that “judges . . . shall hold their offices during good behavior.”

  Marshall had the good sense to adjourn and give the justices time to consider their dilemma together in the privacy of their quarters.

  Two weeks later the Chief Justice pronounced the most important decision in Supreme Court history. Indeed, his decision in Marbury v. Madison effectively changed the Constitution and reshaped the US government by establishing the judiciary as a third, coequal branch of the federal government with the executive and legislative branches.

  There were three parts to the decision, two of them restricting presidential and congressional powers and a third that expanded Supreme Court powers to put it on an even footing with the other two branches of government.

  In the first part of the decision Marshall declared that the President (and his agent, the secretary of state) had violated the Constitution by withholding Marbury’s commission. Marshall rejected Jefferson’s argument that “delivery is one of the essentials to the validity of the deed.”

  “The transmission of the commission is a practice directed by convenience not by law,” Marshall declared. “It cannot therefore constitute the appointment.”

  It is therefore decidedly the opinion of the court that when a commission has been signed by the President, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State.

  In signing Marbury’s commission and affixing the Great Seal of the United States, then-President Adams and his secretary of state had “vested in the officer [Marbury] legal rights which are protected by the laws of his country. To withhold his commission . . . is an act deemed by the court not warranted by law, but a violation of a vested legal right.”6

  There it was: the Secretary of State (and, by implication, the President) had exceeded the constitutional powers of the executive branch of government. He could not remove Marbury from the bench. Marbury had a constitutional right to his commission and the right to its immediate delivery.

  When, however, Marbury’s lawyer asked the Court to issue the writ and force the secretary of state to deliver the commission, Marshall and the Court wisely backed away and responded by reminding Marbury’s lawyer that the Constitution had created the Supreme Court as an appellate court. It expressly limited the Court’s original jurisdiction to “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” Marbury, therefore, had chosen the wrong court in which to originate his case, and the Supreme Court was constitutionally proscribed from granting him a writ.

  “It is the essential criterion of appellate jurisdiction,” Marshall explained, “that it revises and corrects proceedings in a cause already instituted and does not create that cause.” A writ of mandamus, he said, was designed to provide evidence in the discovery phase of a case. It sustains “original action . . . and therefore seems not to belong to appellate but to original jurisdiction.”

  Marbury’s attorney protested, citing a 1789 act of Congress that, among other things, specifically gave the Supreme Court power to issue writs of mandamus. Marshall and the justices were ready with the most explosive part of their decision. As lawyers for both sides gasped in surprise, Marshall declared part of the 1789 act of Congress unconstitutional:

  “The authority . . . given to the Supreme Court by the act [of Congress] . . . to issue writs of mandamus . . . appears not to be warranted by the Constitution. The particular phraseology of the Constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the Constitution is void; and that courts as well as other departments are bound by that instrument.”7

  With those words Chief Justice John Marshall effectively amended the Constitution by assuming the power of judicial review for the Supreme Court, allowing it to void an act of Congress it deemed unconstitutional. Nowhere in the Constitution had the framers written “that a law repugnant to the Constitution is void” or given the Supreme Court power to void such a law. That the decision went unchallenged was the result of Marshall’s brilliant political strategy: he and the associate justices were evidently aware they were overstepping the bounds of the Constitution, and the Chief Justice worded the decision in terms that left all parties in the case—the President, the secretary of state, Congress, William Marbury, and even the Court itself—unable to respond with either defiance or compliance. They could decry it, they could try to take steps around it, even try to amend the Constitution and annul it, but they could not defy it, because Marshall gave them nothing to defy.

  Designed as a fait accompli, the decision demanded nothing of anyone and left no opportunity for anyone to respond. It set a precedent without affording any opportunity to challenge—and without depriving any of the principals of redress through constitutional action. Marbury could still ask for his writ from a lower court. Congress could rewrite the judiciary act to conform with constitutional restrictions. And the President could, if he chose, reinstate Marbury or at least stop trying to remove judges from the federal bench without due process. But no one had an avenue to challenge the decision because Marshall had left them none.

  In writing the decision Marshall was simply too savvy a politician to make demands he knew the Court could not enforce. So the decision, at one and the same time, asserted that Marbury’s status was not contingent on delivery of the commission and avoided ordering the President or secretary of state to deliver it or install Marbury as a justice of the peace. In voiding part of the 1789 act of Congress, the Court said it could not issue the writ of mandamus, which, in turn, left Marbury without the commission to which the Court said he was entitled. So Marbury v. Madison had no immediate impact beyond the relatively inconsequential appointment—or disappointment—of a low-level justice of the peace, essentially a sinecure.

  The long-term effects of Marbury, however, were dramatic. It declared both the President and secretary of state guilty of violating the Constitution, and, for the first time, it voided part of an act of Congress. In effect the decision represented another in a growing list of quasi-coups d’état that each branch of government had staged since the inauguration of the first President in 1789. Each coup had altered the shape of the new American government and made the Constitution more elastic without resorting to the tedious process of amending it or the more dramatic process of using military force to renounce it.

  President George Washington staged the first such coup in 1789, his first year in office, by sending Treasury Secretary Hamilton to borrow and spend funds without an appropriation or authorization from the House of Representatives as required by the Constitution. Two years later he sent troops to war with Indians in the West without a congressional declaration of war. He later issued a proclamation, then sent troops to crush a legitimate tax protest by farmers in western Pennsylvania, denying them their constitutional rights to redress of grievances. The Constitution gives the President no power to issue proclamations—in effect to legislate by executive order.

  Congress staged its share of coups as well. In 1798 it scrapped the Bill of Rights with passage of the Alien and Sedition Acts to crush opposition to and criticism of the government. Later, with President Jefferson’s encouragement and consent, Congress passed the Judiciary Act of 1802, removing opposition-party judges in violation of Article III, Section 1, that “judges . . . shall hold their offices during good behavior.”

  After a decade of unconstitutional assumptions of powers by the executive and legislative branches Marbury v. Madison was the first assertion of extraconstitutional powers by the judiciary. Assumption of the right of judicial review and the power to void unconstitutional laws enacted by Congress and signed by the President gave the Supreme Court equal power with Congress and the President and, indeed, the power to check the actions of both the legislative and executive branches of government. Since Marbury the Supreme Court has voided ab
out 200 federal laws as unconstitutional, but in doing so, it often incurred harsh criticism for overstepping constitutional boundaries into legislation.

  The associate justices of the Supreme Court who, with Chief Justice John Marshall, issued the historic Madison v. Marbury decision. Clockwise from top left, William Paterson, William Cushing, Samuel Chase (center), Bushrod Washington (George Washington’s nephew), and Alfred Moore. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. III:128)

  Although Marbury v. Madison infuriated and frustrated President Jefferson, pressing affairs of state required his immediate attention. Spanish authorities in New Orleans had suddenly closed the port of New Orleans to American trade and provoked an economic and diplomatic crisis. Three thousand ships a year passed through New Orleans, more than half of them flying American colors. In rural areas beyond New Orleans Americans made up more than half the white population. They owned vast sugar and cotton plantations and raised huge herds of cattle on lands stretching beyond the Mississippi across the west country into Texas to the Rio Grande.

  Fearful American expansion would extend into Mexico and its rich reserves of gold and silver, Spain closed the port of New Orleans and retroceded the rest of Louisiana to France, whose foreign minister Talleyrand pledged to turn the Appalachians into “an impenetrable wall of brass” with French cannons.8

  Westerners besieged President Jefferson and Congress with demands for action against Spanish authorities, and Congress called up 50,000 militiamen to prepare an attack.

  For Napoléon Bonaparte and France, reacquisition of Louisiana meant control of burgeoning commerce on the Mississippi and a huge territory to develop as a bountiful granary for France. Initially he decided to send 20,000 troops to fortify the territory, build roads, and prepare for mass colonization by French farmers and their families. They, in turn, would transform Louisiana into the motherland’s primary source of grain, sugar, cattle, produce, cotton, and natural resources.