American Experiment

by James Macgregor Burns

  Marshall pondered his dilemma. If he granted Marbury’s plea and issued the mandamus, Jefferson and Madison could ignore or reject it, on the grounds that the judicial branch was now interfering in the executive’s internal affairs. The court would then be powerless—no court official could make Madison deliver up a commission—and the federal judiciary would appear more impotent than ever. But if the court refused to issue the writ of mandamus, it would seem even more impotent, unable to perform one of its most elementary functions. What could Marshall do? Only a supreme judicial strategist could snatch victory from such a weak position.

  On February 24, 1803, the members of the high court took their seats in the dingy basement chamber. “Oyez, oyez, oyez!” cried the clerk, as he admonished all gentlemen having business with the court to draw near and give attention. The clerk concluded sonorously: “God save the United States and this Honorable Court.” Marshall was about to do the latter. The Chief Justice was hardly a striking presence, with his tall, meager frame, sober dress, and hard, dry voice, but to many his logic seemed commanding. He began to read.

  After a perfunctory start he reviewed the facts of the case. Then he posed three questions: Did Marbury have a right to the commission? If he had such a right, did he have a remedy under law against Madison’s denial? And if he had such a remedy, was it a mandamus from the Supreme Court? Marshall’s answer to the first two questions came in an hour-long lecture in which, using judicial language, he scolded the President and the Secretary of State for failing to conform to the law. Withholding of Marbury’s commission was an act “not warranted by law,” the Chief Justice stated flatly, “but violative of a vested legal right.” And certainly Marbury had a remedy. “The very essence of civil liberty” consisted in the “right of every individual to claim the protection of the laws, whenever he receives an injury,” Marshall intoned. Presidents and Secretaries of State, in short, had to obey the law just like anyone else. That raised the third question: Could the Supreme Court properly demand that Madison turn over the commission to Marbury?

  The answer obviously seemed yes, and the moment seemed to have come for a dramatic confrontation between Jefferson and Marshall, between Republicans and Federalists, between the elected branches of the government and the appointed. But no; Marshall appeared to be off on another tack. Marbury had brought his case under an article of the 1789 Judiciary Act giving the Supreme Court original jurisdiction in certain cases. The Constitution, however, granted original jurisdiction to the court only in very limited kinds of cases and this, said Marshall, was not one of them. If the court followed the act, he said, it had jurisdiction, but if the court followed the Constitution, it did not have jurisdiction. Then the Chief Justice proceeded to what struck his Republican auditors as a patriotic stump speech, filled with self-evident statements and self-answering questions, all of which served his political purposes.

  The people, he said, had “an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness.” In short, the people had a right to draw up a constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” No one had doubted this. In a series of positive and sweeping sentences, the Chief justice argued the obvious—that the law must give way to the Constitution—and he largely assumed the far less obvious—that it was up to the courts to rule whether another branch of the government had exceeded the Constitution. As J. W. Peltason has written, in typical fashion Marshall stated the question in such a way that the answer was obvious. Should the Supreme Court enforce an unconstitutional law? Of course not. Should the Supreme Court decide, when Congress or President had violated the Constitution? Of course. So: Congress in the Judiciary Act of 1789 had sought to grant the court a power prohibited by the Constitution; that section of the act was unconstitutional; thus the court had no power to act in this situation, even though Madison had acted improperly; case dismissed.

  There were two immediate and sharp reactions to the opinion. One was Marbury’s; the poor wretch had been denied his commission once because of Marshall’s evident negligence; now he was being denied his commission again, even though Marshall said he had a right to have it. The other was that of Republican leaders, and it was pure indignation. Jefferson and Madison could hardly be oblivious to their young rival who, from the sanctity of the bench, was lecturing them as to how they should conduct their executive department. The sharpest reaction came from the Republican press, which also saw Marshall’s opinion simply as a Federalist attack on the two Republican-controlled branches.

  “The efforts of federalism to exalt the Judiciary over the Executive and Legislature,” said the Boston Independent Chronicle, “and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other, but will probably terminate in degradation and the disgrace of the Judiciary.…The attempt of the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the constituted departments. The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office.”

  But the Chronicle, and most Republicans, had missed the point. The court had not invaded the executive, only upbraided it. Indeed, it had invalidated the congressional act granting power to the court to take original jurisdiction in certain matters. What the Chief Justice had done was far more important, and its significance dawned only slowly on many Republicans. Marshall, in voiding an act of Congress signed by the President that gave the court a small power, was creating the great precedent of judicial invalidation of congressional action, and—the supreme strategic triumph for Marshall—was doing so in a way that the executive could not thwart. If Marshall had demanded that the executive take certain action, such as giving that commission to Marbury, Jefferson and Madison could have—and probably would have—coolly refused. But how could Jefferson & Co. stop the court from declining to exert power? The Republicans were helpless. To add salt to their wounds, the action of the court in reviewing one of its own alleged powers even comported with Jefferson’s notion of coordinate constitutionality by each branch in its sphere.

  Of course, Marbury was only a weak precedent for judicial invalidation of laws passed by Congress and signed by the President. But that precedent was destined to become a time bomb, ticking away for half a century, until it would explode amid the most grievous crisis in American history.

  It was ironic that it was Jefferson who should have failed to overcome the judicial bastion, for otherwise he was displaying a brilliance of political leadership that would hardly be matched in two hundred years of nationhood. If that brilliance blinded some Republicans to potential weaknesses in his leadership, its full import would not be evident for some years.

  Jefferson led, first of all, as chief executive. Those who feared—or hoped—that the relaxed, ruminating, casual Virginia aristocrat would let others run his administration could hardly recognize the decisive figure in the White House. Jefferson did not need to bestride a white charger or bark out orders to assume the role of chief executive. He had a quiet air of authority, a steadfastness of purpose, a superb sense of timing, and the capacity to look ahead. His historic actions, such as the purchase of Louisiana, turned on many smaller decisions. Thus in sending Monroe abroad he did not waste time asking his friend whether he would like to go; knowing of Monroe’s public-spiritedness, he informed the retiring Virginia governor that public necessity demanded he go, that he was putting his nomination through the Senate, and that he expected to see him in Washington promptly. In moving quickly to dispatch Lewis and Clark to an area beset by imperial ambitions, he was risking heavy censure if the explorers met some disaster, but the luck of the audacious was with the President as well as with
the expedition.

  He defended executive independence and executive prerogative—withholding certain presidential papers, for example—as compatible with the system of checks and balances, and indeed as required by it. Only the President could command the necessary overview of the government, he felt; the President alone provided a “regulating power which would keep the machine in steady movement.” He demanded unity within the executive. He asked understanding from those who did not, like the chief executive, “command a view of the whole ground.” No Hamiltonian, he held as firm a conception of executive leadership as did Hamilton.

  Still, this was collective executive leadership, with the President soliciting and responding to the advice of his Cabinet. Years later he boasted that his Cabinet of six persons had presented an example of harmony without parallel in history. “There never arose, during the whole time, an instance of an unpleasant thought or word between the members.” Harmony was produced by a modifying of one another’s ideas. “But the power of decision in the President left no object for internal dissension, and external intrigue was stifled in embryo by the knowledge which incendiaries possessed, that no division they could foment would change the course of the executive power.”

  The leadership of the legislative branch that Jefferson had so indirectly but firmly exerted during his first two years in office carried on through the rest of his term. The basis of that leadership continued to be party solidarity, and the role of party was expanded after the Republicans gained strength in the “off-year” elections midway through the term. Party membership was still a bit ambiguous, but Jefferson estimated that Republicans outnumbered Federalists 103 to 39 in the House and 25 to 9 in the Senate. He continued to exert party influence more by persuasion than dictation, far more by skillful use of patronage and the party press than by public efforts to impose his ideas. He picked his way through the minefields of schismatic state politics by tolerating differences. “His ability to hold the Republican party together nationally when it was rocked by state party divisions and to retain the attachments of virtually all sides involved in the internal divisions of state politics,” Noble Cunningham concludes, “was an accomplishment that only a superb politician could achieve.”

  The Jeffersonians’ party strategy continued to be the pre-emption of the middle ground, where all but “sweeping” Republicans and the highest of “high Federalists” could meet and join hands. The President carefully doled out appointments to Republican moderates, while leaving Federalist moderates in office where feasible. But Jefferson’s appeal transcended party. His ultimate political strategy was to turn to the people—or at least the active citizens among them—because he respected them and believed in them and expected much from them. He was one of those rare leaders who, in responding to people’s fundamental wants and needs, aspirations and expectations, and in pursuing some powerful vision or goal, transcend the passing eddies of public opinion, and even more, educate the popular will, sensing authentic but unexpressed wants and needs in the people. That is the ultimate engagement between leader and led, and that kind of leadership Jefferson demonstrated in his program, his methods, and his persona.

  Yet, the very success of the Jeffersonian leadership carried the seeds of new crisis. Great leadership is forged in the crucible of conflict, as the careers of Jefferson, Hamilton, and Adams had so amply demonstrated. What happens, then, when leadership succeeds so well, by mobilizing the support of so many of the people, that conflict either dwindles or is displaced into extra-constitutional, even violent arenas? What happens, in the Jeffersonians’ case, when leadership draws such wide support across the party spectrum that opposition shrinks and threatens to crumble, and conflict exists only between the great mass of moderates and the extreme or the desperate?

  Jefferson’s answer to this question was that once the moderate Federalists were won over and the high Federalists crushed, the ballooning Republican party would split into two moderate, responsible, competitive parties. “We shall now be so strong,” the President wrote a friend in May 1802, “that we shall certainly split again; for freemen thinking differently and speaking and acting as they think, will form into classes of sentiment, but it must be under another name, that of federalism is to become so scouted that no party can rise under it.…the division will substantially be into whig and tory, as in England, formerly.…” But Jefferson had to admit that no “symptoms” of a new party split had shown themselves, nor would they until after the midterm election. And the President developed a disturbing tendency to equate the Republican party with the whole nation.

  As Federalist strength declined at midterm and still more in the 1804 presidential election, no significant division developed in the Republican party. Perhaps Jefferson was too skillful a conciliator. Was the new young republic becoming a one-party state?

  A startling event made this question more urgent. One man Jefferson had not conciliated—and intensely distrusted—was Vice-President Aaron Burr. Rumors abounded among the Jeffersonians about Burr’s striving for the presidency during the crisis of February 1801, just as Burr and his friends suspected that Jefferson had finally won out through a secret deal. The President had virtually ignored Burr on patronage matters and instead dealt with the latter’s adversaries in New York, the Livingston and Clinton factions. Although Jeffersonians suspected that Burr would work out a coalition with the Federalists, the Vice-President was still a mortal enemy of the titular leader of that party, Alexander Hamilton. When Burr, weary of his frustrating job as Vice-President, decided to run for governor of New York, Hamilton was furious at the notion that some of his more opportunistic fellow Federalists would support this ambitious little man. He so attacked Burr’s character that the duelists’ code required a confrontation. It occurred on July 11, 1804, at a secluded spot across the Hudson River in New Jersey. Hamilton, it is thought, intended to miss in the hope that Burr intended likewise. Burr sought to kill. Hamilton died of a bullet in his vertebrae, after hours of intense suffering. The remaining great hope of the Federalist party was gone, along with any hope that Burr could draw the Federalists into a new alliance.

  Thus Jefferson was left as head of a burgeoning party, confronting an opposition dwindling both in Congress and in elections. He was the leader of an organized majority. He was a firm believer in majority rule as the practical expression of government by the people, but he also recognized that majority rule must not mean extremist rule. “All, too, will bear in mind this sacred principle,” he had said in his Inaugural Address, “that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable: that the Minority possess their equal rights, which equal laws must protect, & to violate would be oppression.” Implicit in this doctrine of majority rule were certain assumptions. One was that the majority would necessarily embrace so many diverse interests, sections, and attitudes, in a pluralistic nation, that the majority would pursue a moderate and balanced program; a second was that the majority would represent the great mass of people. Both these assumptions could be questioned: under certain conditions a majority could become as oppressive and fanatical as a minority; and Jefferson’s majority even at best encompassed only free, male, and largely property-owning Americans. Crucial to Jefferson’s belief in majority rule was his belief in the minority’s “equal rights,” but what politically would guarantee those rights? A strong opposition party, but Jefferson lacked a firm understanding of the role of party opposition.

  It was precisely here that Jeffersonian theory left an intellectual gap—a gap that Marshall’s judicial theory brilliantly filled. For if there was inadequate political check on the majority—that is, on the government—there must be an adequate constitutional check institutionalized within the governmental structure. And clearly that vital check on the popular majority must be the judiciary, itself protected against the immediate power of the electorate.

  Aaron Burr’s bullet, it was said, had blown the brains out of the Federalist party
. This was a half-truth at best; Federalist brains remained very much intact in the heads of John Marshall and his brethren entrenched in the federal judiciary. Marshall, in particular, had a better grasp than Jefferson of the constitutional scope and political implications of various kinds of judicial review. The most minimal kind of judicial review—and one that Jefferson respected because he believed that each branch of government should be independent—was the power of the courts to protect their own existence and manage their own internal affairs. A somewhat higher form of judicial review was that of state legislation, and most Americans at the turn of the century agreed that the federal courts must exercise this power in order that there be an “umpire of federalism.” A still broader form of judicial review was that of presidential action; for centuries Englishmen and Americans oppressed by kings or royal governors had been turning to the courts for relief. The fullest form of judicial review was that of congressional action—the awesome authority to invalidate laws passed by the elected representatives of the people. This was an enormous power, and an anomalous one in a “government by the people.”

  Seizing on Marbury’s complaint, Marshall had used that most minimal form of judicial review in order to create the vital precedent for the largest form. Practically, there was nothing Jefferson could do about this, but it is doubtful that intellectually he grasped the enormous implications of what Marshall was about. Ostensibly the Chief Justice was simply protecting the independence of the federal judiciary, at the same time that he was refraining from interfering in the executive’s domain; in fact, he was actually denying a power granted to the Supreme Court by the Congress. Rarely has such potentially vast power been so nicely disguised.

  If Marshall had placed a check on the Republican President and Congress, he had established a potential checkmate on popular majorities for years to come. But would that checkmate, in a nation destined to pass through ceaseless social change and violent political conflict, in a nation still encircled north and south and on the oceans by foreign powers, turn out to be that most dangerous condition for a democracy: stalemate?