Despite our less than stellar democracy report card, though, we can justly take credit for one of the most important contributions to the art of democratic governance. We pioneered the idea of giving unelected judges the power to trump the outcome of the democratic process in the name of enforcing the Constitution. We call it judicial review and celebrate it as the key to harmonizing democratic rule with individual rights. Most of the democratic world has now adopted a variant of the practice. But granting such power to a small group of black-robed bureaucrats carries real questions and risks. First, there is the troubling question of where American judges get their judicial review power from. Unlike European constitutions, the text of the U.S. Constitution doesn’t contain a single word about it. Then there’s the fact that the provisions of the Constitution that really matter, like the Bill of Rights, almost never have a single, objectively knowable meaning. Judges must decide what they actually mean, but more than two hundred years into our experiment with judicial review there is still no consensus about how judges should go about reading the Constitution’s ambiguous text, often rendering the outcome of judicial review as unpredictable as the spin of a roulette wheel. Finally, history teaches that American judges have too often gotten the constitutional text terribly wrong, reading the Constitution in ways that reinforce the powerful and ignore the weak.
That’s why recovering the ability to hear Madison’s music is so important. Remembering how to read the Bill of Rights, especially the First Amendment, as a coherent narrative of democracy instead of a series of unconnected commands would immensely enrich a judge’s interpretive tool kit, providing much needed guidance to intellectually honest judges and a firmer popular understanding of our most important political text. While recovering Madison’s music will not turn judicial review into a mechanical process with a single right answer (the luminous abstractions in the Bill of Rights will always resist simplistic readings), it will lessen the arbitrariness of our current approach and should lower the odds that a judge will get a fragment of the text catastrophically wrong.
WHERE DOES JUDICIAL REVIEW COME FROM?
As an initial matter, though, why should we worry so much about how judges, as opposed to legislators, presidents, or the people, read the Bill of Rights? Why should an unelected Supreme Court justice’s reading trump everybody else’s reading? In short, exactly where does the power of judicial review come from?
Most Americans believe there is only one United States Constitution. Physically, of course, that’s true. The signed originals of the 1787 Constitution, the 1791 Bill of Rights, and the subsequent seventeen amendments are locked up safe and sound behind plate glass in the Rotunda of Freedom at the National Archives. Most constitutional experts (including virtually all politicians and many judges) insist that there is only one legally correct meaning for each provision in the constitutional text. Expert after expert claims to have discovered the constitutional Rosetta stone that will instruct judges how to decipher the constitutional text’s one true meaning. The problem, of course, is that the experts and judges disagree—often bitterly—about which Rosetta stone to use and what that one true meaning is. The problem is made worse by the failure of the Constitution to say anything about giving unelected judges the final power to read the Constitution. In 1803, Chief Justice John Marshall insisted in Marbury v. Madison (yes, our James Madison, making a cameo appearance as President Jefferson’s secretary of state) that an American judge, confronted with a collision between the constitutional text and a congressional statute, has no choice but to give preference to the constitutional text, even if that means overturning an act of Congress.1 Since then, whenever anyone asks where the awesome power of judicial review comes from, judges and law professors confidently answer, Marbury v. Madison. But my nose gets a little longer each time I use Marshall’s reasoning to justify a judge’s power to have the last word about the one true meaning of the Bill of Rights. If Marbury is really where judicial review comes from, we’re in big trouble, because the case is a farce on just about every level. The facts read like the script of a Marx Brothers movie about life on the farcical island of Barataria, with politicians, office seekers, and judges scurrying about, behaving in antic ways. As for the law, Marshall’s legal reasoning wouldn’t pass muster in my first-year law class. In fact, the legendary chief justice cynically manipulated the facts and the law in an effort to score political points against President Jefferson, even if it meant sacrificing the rights of the litigants before the Court. When we take off the rosy self-congratulatory lenses through which we venerate Marbury as a bedrock of our political system, the case is revealed as a naked judicial power grab.
Judicial review is too important to our democracy and too valuable to our freedom to be left dangling from Marbury v. Madison. But don’t take my word for it. Consider the case for yourself, without the hot air and self-justification that usually afflicts lawyers and judges when they try to explain where judicial review comes from. It’s like trying to explain the origin of babies to your young kids. The product is sublime, but the process of creation is left to euphemisms like the stork. Marbury is the stork that brings us judicial review.
Those of you, dear readers, who do not enjoy the louche pleasures of American legal history can take my word that the facts of Marbury border on the farcical and the legal reasoning is seriously flawed. You may skip to page 171. But you’ll be sorry.
MARBURY V. MADISON: A CONSTITUTIONAL FARCE IN THREE ACTS
Prelude to a Farce
Marbury v. Madison unfolds against the comic-opera backdrop of the election of 1800, the nation’s first contested electoral transfer of presidential power from one political faction to another.2 Before the adoption of the Twelfth Amendment in 1804, each presidential elector cast two votes in the Electoral College without designating which was for president and which for vice president. The candidate garnering the most Electoral College votes became president. The runner-up became vice president.3 The only restriction on electors was that at least one of the two candidates for whom he voted had to be from a different state than the elector. That’s how it worked during Washington’s two terms. That’s how it worked in 1796, the first contested presidential election, when Jefferson lost to Adams in the Electoral College by three votes and became Adams’s vice president. Although the 1796 election featured slates for the first time—John Adams and Charles Pinckney for the Federalists versus Thomas Jefferson and Aaron Burr for the Democrats—the relatively large number of candidates receiving electoral votes (thirteen) acted to prevent ties between running mates. In the election of 1800, the voters were confronted with the same rival slates as in 1796, Adams/Pinckney versus Jefferson/Burr. Electors pledged to the Jefferson/Burr slate won a close but clear 73–65 victory in the Electoral College, but Jefferson almost blew the election by failing to ensure that at least one of his electors withheld his second vote from Aaron Burr to prevent a tie. The Federalists got it right. One Federalist elector from Rhode Island withheld his vote from Pinckney and cast it for John Jay, so that the Adams/Pinckney electoral vote was 65–64. Not only did the Jeffersonian electors fail to withhold a vote from Burr, but Anthony Lispenard, an elector from New York, actually sought to cast both of his votes for Burr. Lispenard eventually was persuaded that he couldn’t cast both votes for someone from his own home state, so he cast his two votes for Jefferson and Burr. Ironically, while Lispensard was constitutionally disabled from casting two votes for Burr, he could have swung the election from Jefferson to Burr by merely casting his second vote for someone other than Jefferson, but he didn’t seem to realize it. If he had done so, Burr would have been elected president by a vote of 73–72.
When the Electoral College ballots, including Lispenard’s, were all counted in December 1800, Jefferson and Burr were tied at 73 votes each.4 Once the 73–73 tie was announced, Burr infuriated Jefferson by failing to take affirmative steps to withdraw his candidacy for president, thereby throwing the formally tied presidential election int
o the House of Representatives, where, under Article II, section 1, clause 3, each of the then sixteen state congressional delegations was entitled to cast one vote. The votes of nine states were needed to elect the president.5 Although the Jeffersonian Democrats had won a 68–38 majority in the new House of Representatives, under the Constitution as originally written, the newly elected Congress did not take office until March 4, 1801, leaving the Federalist-controlled lame-duck House of Representatives with the power to choose the next president. Although the Federalists controlled the lame-duck House by a popular vote plurality of 60 percent to 45 percent, they controlled only eight of the sixteen state delegations. Jeffersonian Democrats controlled seven. Vermont was evenly split.
In an effort to break the Electoral College tie, the House conducted thirty-five presidential ballots from February 11 to 17, 1801. The vote was always 8–6–2. Jefferson consistently carried eight states: the seven controlled by Jeffersonians—Kentucky, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, and Virginia—plus Georgia, whose sole surviving Federalist congressman (Benjamin Taliaferro) voted for Jefferson as a matter of conscience.6 Six Federalist states—Delaware, South Carolina, Connecticut, Massachusetts, New Hampshire, and Rhode Island—voted consistently for Burr. The Vermont delegation, evenly split, cast a blank ballot. The Maryland delegation, controlled by Federalists, also maneuvered to cast a blank ballot.
The deadlocked presidential voting revealed that more was at stake in 1800 than the transfer of power from one president to another. Jefferson was viewed by many as a dangerous egalitarian radical committed to the principles of the French Revolution. Burr, a successful New York lawyer, was considered a much safer bet by conservatives. Some Federalists actually hoped that a sustained deadlock would result in the reelection of John Adams as a compromise candidate. The irony of viewing Thomas Jefferson, a slaveholding Virginia planter with a voracious taste for luxury (he died more than $100,000 in debt), as a dangerous radical seemed lost on the eighteenth-century mind.
Barely two weeks before the scheduled March 4, 1801, inauguration, on the 36th ballot, James Bayard, the sole Federalist congressman from Delaware, persuaded Federalist allies in the evenly split Vermont and Maryland delegations to cast blank ballots, throwing both states to Jefferson. At the same time, Bayard shifted his Delaware vote from Burr to blank and persuaded the South Carolina Federalist delegation to similarly switch from Burr to blank. Although the final vote for Jefferson was 10–4–2, it was a close thing.
On February 17, 1801, when Jefferson’s election was finally announced, the Supreme Court’s prestige was at a low ebb, in large part because the six justices7 decided only a small number of appellate cases (the Supreme Court decided only fifty cases in its first decade) and were routinely assigned to “ride circuit” throughout the country to serve as judges in the trial courts, a demanding task requiring arduous travel.8 Washington’s first chief justice, John Jay, had resigned in 1795 to become governor of New York, in part because the Supreme Court did so little and circuit riding was so exhausting.
Under the Judiciary Act of 1789, which had created the lower federal courts, federal courts were divided into three familiar tiers—district courts, circuit courts, and the Supreme Court. But the original circuit courts were not classic intermediate appeals courts. There were no permanent circuit judges. Initially, a circuit court consisted of two Supreme Court justices sitting twice a year with a local district judge. In 1793, the burden was lessened by requiring only one Supreme Court justice, although that created the possibility of a split two-judge circuit court. The two judges sat as multimember original trial courts for certain important cases and as an intermediate appeal forum for certain other cases.
After Jay’s resignation in 1795, John Rutledge of South Carolina received a recess appointment in July 1795 as the second chief justice, only to have the Senate deny confirmation after he had presided for less than six months. Rutledge, who appears to have suffered a mental breakdown after the death of his wife, was said to have been so distraught at his rejection by the Senate that he attempted suicide by jumping into the St. James River. One of his slaves jumped in to fish him out.
Washington finally appointed Oliver Ellsworth in 1796. Ellsworth served as chief justice for four uneventful years.9 He was in Europe negotiating a treaty with Napoléon when news of Jefferson’s likely election victory reached him. Ellsworth wasted no time in immediately sending a resignation letter, dated September 30, 1800, to Adams to give the outgoing president time to nominate a successor.10 Adams received Ellsworth’s resignation on December 15, 1800, and immediately nominated John Jay, without bothering to ask him whether he would serve once again. Jay was quickly confirmed by the Senate on December 19, but declined the nomination on January 2, 1801. Adams didn’t receive Jay’s declination until January 19, 1801. The next day, Adams turned to his recently appointed secretary of state, forty-five-year-old John Marshall, who had been leader of the Federalists in the House of Representatives but had never served as a judge.11 The Senate confirmed Marshall as chief justice on January 27, 1801, the one-week delay probably attributable to the unhappiness of certain conservative High Federalist senators from New England who viewed Marshall as too moderate.
Marshall took office on February 4, 1801, thirteen days before Jefferson was finally named president-elect. At Adams’s request, Marshall agreed to continue serving as acting secretary of state as well as chief justice for another month until the close of Adams’s term on March 4. In February 1801, the State Department was where the real power lay. It was Federalist patronage headquarters.
Building the Set: A Large Patronage Trough
The facts of Marbury unfold during the charged two weeks between Jefferson’s delayed election as president on February 17, 1801, and his inauguration on March 4, as Federalists scrambled for patronage jobs before their party lost control of the national government it had dominated since 1789. The patronage bonanza was fueled by congressional passage of the District of Columbia Organic Act on February 27, 1801, just five days before the Federalists went out of power, giving the outgoing president the ability to appoint an entire government from scratch for the new District of Columbia. The D.C. Organic Act provided for a full complement of officials, ranging from an unlimited number of justices of the peace to marshals, notaries, surveyors, lawyers, and military officers. Well over a hundred new jobs were created.
On March 2, Adams nominated forty-two justices of the peace for the new District of Columbia, as well as a full complement of notaries, federal marshals, and other executive officials. The five-year low-level justice-of-the-peace posts were unsalaried. Compensation was based on charging fees for the issuance of legal writs. Jurisdiction was capped at $20. The judicial position appears to have been partly honorific but carried the general duty to maintain public order. The population of the District of Columbia in 1801 was approximately 10,000 whites and 4,000 blacks, including 800 freedmen, so 42 justices of the peace—one for every 240 residents—seems excessive. Jefferson eventually settled on 30.
The D.C. Organic Act also provided for a prestigious Article III three-judge circuit court with lifetime terms. Marshall’s younger brother, James, received one of the plum circuit judgeships, as did Abigail Adams’s nephew, William Cranch. But with only four days to perform the task, time ran out on Marshall’s effort to find a chief judge for Adams to appoint. Adams’s first choice, ex–Supreme Court justice Thomas Johnson, unexpectedly said no, leaving the coveted appointment to Jefferson. Jefferson promptly appointed a staunch supporter, William Kilty of Maryland.
The judicial patronage scramble didn’t stop at the District of Columbia. On February 13, 1801, four days before Jefferson was named president-elect and just under three weeks before the Federalists went out of power, President Adams persuaded the lame-duck Congress to pass the so-called Midnight Judges Act, creating sixteen new lifetime Article III circuit judgeships throughout the country, in addition to the three for the n
ewly created District of Columbia two weeks later. While they were at it, as part of the Midnight Judges Act, Congress prospectively reduced the number of Supreme Court justices to five (in an apparent effort to deny Jefferson an appointment), abolished circuit riding by the justices as no longer necessary (since there was now a permanent corps of nineteen new lifetime circuit judges), and granted power to the lower federal courts to decide questions of federal law (federal question jurisdiction), in addition to the already existing power to decide cases involving citizens of different states (diversity jurisdiction). The abolition of circuit riding, creation of permanent circuit intermediate appellate courts, and the grant of federal question jurisdiction were needed judicial reforms. Each was eventually adopted.12 But the claimed justification for moving from six to five Supreme Court justices—a desire to avoid ties—seemed a transparent effort to deny Jefferson a Supreme Court nomination. It poisoned the entire bill, causing the legislation to be widely viewed as a partisan effort to perpetuate Federalist power through the judiciary after the party’s defeat at the polls.
The entire Midnight Judges Act was repealed a year later on March 8, 1802, by the newly elected Jeffersonian Congress, returning the Supreme Court to six members, reinstating circuit riding, revoking the grant of federal question jurisdiction to the lower federal courts, and throwing sixteen of the new “lifetime” circuit judges out of work. No similar effort was made to repeal the 1801 Organic Law for the District of Columbia, leaving the forty-two low-level five-year justices of the peace and the three lifetime D.C. circuit judgeships unscathed.
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