Madison's Music

by Burt Neuborne

  8. Burwell v. Hobby Lobby, 2014 WL 2921709.

  9. Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).

  10. In observant Judaism, the Shabbos goy is the good Samaritan who comes into your home and lights the furnace on the Sabbath, when observant Jews are prohibited from doing so. When I was growing up in Queens, several wonderful non-Jewish neighbors (who happened to be black) made sure that nearby elderly observant Jews stayed warm on cold Saturday afternoons. I loved them for it, and tutored their kids.

  11. Thornton v. Caldor, Inc., 472 U.S. 703 (1985).

  12. Marsh v. Chambers, 463 U.S. 783 (1983).

  13. Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

  14. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (allowing road through Indian burial ground); O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (rejecting prisoner’s petition); Goldman v. Weinberger, 475 U.S. 503 (1983) (enforcing military headgear rule).

  15. Witters v. Department of Services for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993); Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

  16. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

  17. Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Wallace v. Jaffree, 472 U.S. 38 (1985); Lee v. Weisman, 505 U.S. 577 (1992); Stone v. Graham, 449 U.S. 39 (1980); Epperson v. Arkansas, 393 U.S. 97 (1968); Edwards v. Aguillard, 482 U.S. 578 (1987).

  18. Reynolds v. United States, 98 U.S. 145 (1878).

  9. The Costs of Ignoring Madison’s Music

  1. Marbury v. Madison, 5 U.S. 137 (1803).

  2. The three earlier presidential elections had been won by Federalists. The presidency passed to the Jeffersonian Republicans in 1800, and stayed there until the election of John Quincy Adams by the House of Representatives in 1824.

  3. Article II, section 3, clause 2 originally provided: “In every Case, after the Choice of the President, the Person having the greatest number of Votes of the Electors shall be Vice President.”

  4. There was a problem with Georgia’s four electoral votes. While there is no doubt that the Georgia electors actually voted for Jefferson and Burr, the votes were recorded in a technically defective certificate that failed to follow the prescribed formula. Jefferson, presiding over the electoral count as vice president, ignored the procedural defect and counted the Georgia electoral votes for himself. If the four Georgia votes had been disqualified on a technicality, the electoral vote would have been 69–65 in favor of Jefferson, throwing the election into the House of Representatives because no candidate would have obtained the necessary majority of 70. Because Jefferson eventually won election in the House anyway, the counting of the Georgia votes probably did not affect the outcome of the presidential election.

  5. The admission of Tennessee in 1796 had brought the number of states in 1800 to sixteen.

  6. Georgia’s other Federalist member of Congress, James Jones, had died on January 11, 1801.

  7. The first section of the Judiciary Act of 1789 (Act of September 24, 1789, 1 Stat. 73) set the number of Supreme Court justices at six—a chief justice and five associate justices.

  8. The practice of Supreme Court circuit riding is discussed in Joshua Glick, “Comment: On the Road: The Supreme Court and the History of Circuit Riding,” Cardozo Law Review 24, no. 4 (2003): 1753.

  9. Ibid.

  10. It is possible that Ellsworth’s resignation letter dated September 30, 1801, was occasioned by ill health, not by a desire to give Adams the chance to appoint a successor. If I were cross-examining, though, I’d want to know why a letter dated September 30 was not received by Adams until December 15. Backdating is always a possibility. Moreover, although the formal electoral balloting was not decided until December 1801, when South Carolina gave its eight electoral votes to Jefferson, it was clear as early as April 1801 that New York would support Jefferson, making him the likely winner.

  11. Despite never having served as a judge, Marshall enjoyed a reputation as an excellent lawyer. In 1789, Washington had offered him the post of U.S. attorney for Virginia. Marshall declined. In 1795 Washington had asked him, at the age of thirty-nine, to serve as attorney general. When Marshall declined for financial reasons, the job went to Charles Lee, who served as counsel in Marbury. In 1797, Marshall accepted Adams’s nomination as one of three commissioners to France. He was expelled from France as part of the XYZ Affair, burnishing his political reputation in the United States. See William Stinchcombe, The XYZ Affair (1980), describing Talleyrand’s unsuccessful effort to extort a bribe from the United States commissioners and their expulsion from France upon refusing to pay. In 1798, Marshall, again moved by financial considerations, declined an offer by Adams of a nomination as an associate justice of the Supreme Court, recommending Bushrod Washington instead. In 1799, Marshall reluctantly agreed to run for the House, winning a close election largely on the basis of his popularity as a result of the XYZ Affair. Marshall served as Federalist leader in the House until Adams nominated him as secretary of war in early May 1800. When Marshall refused the post because of financial considerations, Adams renominated him as secretary of state one week later, with a salary large enough to permit Marshall to give up his law practice. Nine months later, Adams nominated Marshall as the fourth chief justice.

  12. Circuit riding was limited in 1869 and abolished in 1891. Act of April 10, 1869, 16 Stat. 44; Act of March 3, 1891, 26 Stat. 826. The appellate courts were restructured in 1887–88, 1891, 1911, and 1925. Act of March 3, 1887, 24 Stat. 552, corrected by Act of Aug. 13, 1888, 25 Stat. 433; Act of March 3, 1911, 36 Stat. 1087 (formally abolishing mixed circuit courts); Act of February 13, 1925, 43 Stat. 936 (providing for discretionary review by Supreme Court). Federal question jurisdiction was granted in 1875. Act of March 3, 1875, Section 1, 18 Stat. 470.

  13. Commissions were written records of appointment, signed and sealed by the appointing officer. In 1801, it was unclear whether receipt of a commission was merely a record of appointment or constituted an integral part of the appointment itself. The botched effort to nominate Ray Greene as a district judge is discussed in Edward A. Hartnett, “Recess Appointments of Article III Judges: Three Constitutional Questions,” Cardozo Law Review 26, no. 2 (2005): 377 at n66 and relevant text. See also Hiller B. Zobel, “Those Honorable Courts—Early Days on the First First Circuit,” Federal Register Digest 73 (1977): 511, 522.

  14. Just before New Year’s Day 1803, Senator Ellery was the subject of a brutal caning and physical assault by John Rutledge, a Federalist congressman from South Carolina and the son of Justice John Rutledge, who had attempted suicide when his nomination as chief justice was rejected. I guess madness ran in the family.

  15. Given Marshall’s insistence in Marbury that delivery of the commission was not required to complete the judicial appointments process (5 U.S. at 157–59), it is unclear why Marbury needed the commission in the first place.

  16. John Marshall later expressed regret to his brother about his failure to deliver the commissions. See The Papers of John Marshall, ed. Charles F. Hobbs (Chapel Hill: University of North Carolina Press, 1990), 6:90, letter dated March 18, 1801, John Marshall to James Marshall.

  17. Boisterous street demonstrations had greeted Jefferson’s election on February 17, 1801. A large crowd marched through Georgetown demanding that houses be illuminated to celebrate Jefferson’s victory. Marbury adamantly declined to illuminate his house.

  18. Marbury’s nomination on March 2, 1801, as one of twenty-three JP nominees for Washington County is recorded in the Senate Executive Journal, March 2, 1801, at 388, reprinted in Martin P. Claussen, ed., Journal of the Senate (1977), vol. 5, p. 198. Poor Marbury. They couldn’t even spell his name right on the nomination papers. He’s listed as William Marberry.

  19. For a detai
led account of Marbury’s life, political background, and history of financial speculation, see David Forte, “Marbury’s Travails: Federalist Politics and William Marbury’s Appointment as Justice of the Peace,” Catholic University Law Review 45 (1996): 349 (hereafter “Marbury’s Travails”). In addition to fitting the mold of financial speculator (a Jefferson bête noire), Marbury had actively but unsuccessfully sought to change Maryland’s electoral college voting procedure to a winner-take-all system in order to deny Jefferson any Maryland electoral votes. Because a swing of five electoral votes was involved, had Marbury succeeded, Adams would have won the election 70–68. The unsuccessful effort to alter Maryland’s system is recounted in “Marbury’s Travails” at 395–97. As David Forte notes at 402, “. . . Marbury must have been one of the easiest cuts for Jefferson to make.” It was not the only cut aimed at Marbury. On July 9, 1801, in the wake of substantial cost overruns at the Washington Navy Yard, Jefferson’s secretary of war dismissed Marbury as naval agent. “Marbury’s Travails” at 385.

  20. Ramsay, Hooe, and Harper had been appointed to serve in Alexandria County. Marbury was to serve in Washington County. Ramsay had been one of the six army comrades to serve as honorary pallbearers at Washington’s funeral. Harper had wintered at Valley Forge and had commanded an artillery company at Washington’s funeral. When off duty, he fathered twenty-nine children. Hooe was a successful real estate speculator and former sheriff of Fairfax County.

  21. Stuart v. Laird, 5 U.S. 299 (1803).

  22. See ibid. Marshall sat as the circuit judge in Stuart, rejecting the constitutional arguments. He recused himself on appeal to the full Court. Marshall’s lower court ruling is not officially reported, but is described in the headnotes to Stuart v. Laird at p. 302.

  23. Presumably, that is why only three of the original four petitioners in Marbury presented their claims to the Court. By that time, Harper had dropped out.

  24. Levi Lincoln would eventually testify that he never turned the commissions in Marbury over to Madison.

  25. Justices Cushing and Moore were absent.

  26. United States v. Nixon, 418 U.S. 683 (1974).

  27. The Court record indicates that “on a subsequent day, and before the Court had given an opinion” Lee offered the Hazen Kimball affidavit as proof of the Marbury commission. The record does not indicate whether the untimely affidavit was accepted. 1 Cranch 137, 146. Kimball was never formally examined. 1 Cranch 153.

  28. One assumes that Marshall, a stickler for fair procedure, would have provided an opportunity to challenge the untimely Kimball affidavit if the Court were inclined to rely on it. The recitation of the Kimball affidavit in Marbury occurs solely in the introductory material prepared by William Cranch in his capacity as court reporter, not in Marshall’s opinion itself.

  29. 5 U.S. 154–55.

  30. 5 U.S. at 163–73.

  31. Ibid., 173–81.

  32. See Richard H. Fallon Jr., “Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension,” California Law Review 91, no. 1 (2003): 1, 52, finding it “highly doubtful” that the D.C. Circuit would have asserted authority to issue a writ of mandamus in 1803.

  33. 5 U.S. at 167–68.

  34. Even the historic standard-bearers for parliamentary supremacy—Great Britain and France—have adopted a form of judicial review. See Human Rights Act of 1998 (1998, c. 42), subjecting British courts to review by European Court of Human Rights, and Organic Law 2009-1523 (December 10, 2009), establishing expanded procedure for presentation of constitutional claims to the French Conseil Constitutionnel. Virtually every democracy established since the end of World War II has adopted a variant of judicial review, usually involving a specialized court with the authority to enforce the constitution against the political branches. My informal, unscientific survey reveals fifty-eight constitutional courts, although I do not warrant the efficacy of them all.

  35. See Cooper v. Aaron, 358 U.S.1, 18 (1958), quoting Marbury at 5 U.S. at 177.

  36. National Federation of Independent Businesses v. Sibelius, 132 S. Ct. 2566 (2012).

  37. Antonin Scalia, “The Rule of Law as a Law of Rules,” University of Chicago Law Review 56 (1989): 1175.

  38. See generally Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutman (Princeton, NJ: Princeton University Press, 1999), an essay by Antonin Scalia with commentary by Amy Gutman, Gordon S. Wood, Laurence H. Tribe, and Ronald Dworkin.

  39. Nor does it provide a guide to reading religious texts. Beware of fundamentalists of any faith claiming to speak directly to god through a literal reading of religious texts composed many centuries ago. See Laurence Wood, Theology as History and Hermeneutics: A Post-Critical Conversation with Contemporary Theology (Lexington, KY: Emeth, 2005). As I’ve suggested, infra, literalism isn’t much good in reading poetry, either.

  40. Jefferson was in Paris as ambassador to France during much of the drafting of the Constitution. He commented on every stage of the proceedings, using his special relationship with Madison to learn about events and seek to influence them. Hamilton was a delegate to the Constitutional Convention, but often seemed curiously uninterested in the process.

  41. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Oxford University Press, 2006).

  42. Brown v. Board of Education, 347 U.S. 483 (1954).

  43. Prigg v. Pennsylvania, 41 U.S. 539 (1842).

  44. Article IV, section 2, clause 3 of the Constitution (the Fugitive Slave Clause) provides:

  No person held to Service or Labour in one state, under the Laws thereof, escaping into another shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

  The moral cowards didn’t even have the courage to use the word slavery.

  45. Plessy v. Ferguson, 163 U.S. 537 (1896).

  46. Giles v. Harris, 189 U.S. 475 (1903).

  47. See Mark Curriden and Leroy Phillips Jr., Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism (New York: Anchor, 2001).

  48. Santa Clara County v. S. Pac. RR Co., 118 U.S. 394 (1886).

  49. Smyth v. Ames, 169 U.S. 466 (1898).

  50. Adair v. United States, 208 U.S. 161 (1908).

  51. Hammer v. Dagenhart, 247 U.S. 251 (1918); Lochner v. New York, 198 U.S. 45 (1905).

  52. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Carter v. Carter Coal Co., 298 U.S. 238 (1936).

  53. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

  54. Korematsu v. United States, 323 U.S. 214 (1944).

  55. Roe v. Wade, 410 U.S. 113 (1973).

  56. Planned Parenthood v. Casey, 505 U.S. 833 (1992); Gonzales v. Carhart, 550 U.S. 124 (2007).

  57. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).

  58. Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014).

  59. Sherbert v. Verner, 374 U.S. 398 (1963).

  60. Employment Division v. Smith, 494 U.S. 872 (1990).

  61. Lemon v. Kurtzman, 403 U.S. 602 (1971).

  62. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

  63. Brandenburg v. Ohio, 395 U.S. 444 (1969).

  64. Garcetti v. Ceballos, 543 U.S. 1186 (2005).

  65. Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966).

  66. United States v. Leon, 468 U.S. 897 (1984).

  67. Buckley v. Valeo, 424 U.S. 1 (1976).

  68. Citizens United v. FEC, 130 S. Ct. 876 (2010).

  69. District of Columbia v. Heller, 554 U.S. 570 (2008).

  70. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

  71. United States v. Morrison, 529 U.S. 598 (2000).

  72. Cooper v. Aaron, 358 U.S. 1 (1958); United States v. Nixon, 418 U.S. 683 (1974); City of Boerne v. Flores, 521 U.S. 507
(1997); Boumediene v. Bush, 533 U.S. 723 (2008).

  73. United States v. Husdon & Goodwin, 11 U.S. (7 Cranch) 32 (1812).

  74. Garrison v. Louisiana, 379 U.S. 64 (1964).

  75. Ex parte Merryman, 17 F. Cas. 144 (C.C.D.Md. 1861).

  76. In 1863, faced with widespread rioting over military conscription, Congress finally authorized Lincoln to suspend habeas corpus throughout the United States, in effect placing the entire nation under potential military rule.

  77. Ex parte Vallandingham, 68 U.S. 243 (1863).

  78. At least Lincoln didn’t carry a grudge. In 1864, Vallandingham returned to the United States and attended the Democratic Party’s National Convention in Chicago. He wrote the party’s “peace plank” opposing the continuation of the Civil War.

  79. Ex parte Milligan, 71 U.S. 2 (1866).

  80. Reconstruction is the euphemism used to describe the federal government’s military occupation and attempted political and social makeover of the defeated Southern states.

  81. Ex parte McCardle, 74 U.S. 506 (1868).

  82. A direct line runs from the contested Hayes v. Tilden presidential election of 1876 to the turbulent Bush v. Gore presidential election in 2000. In the wake of the congressional deal making over contested electors that changed the outcome of the 1876 presidential election, Congress enacted “safe harbor” legislation providing that state certification of a slate of winning electors could not be challenged in Congress as long as the state certification was received in Washington by a given date. It was the imminence of the safe-harbor date that caused the Supreme Court in Bush v. Gore to cut short the recount of Florida’s popular vote, permitting the Florida secretary of state to certify electors pledged to George Bush as the winners. If the recount had continued after the expiration of the safe-harbor date, any electors Florida certified would have been subject to politically driven challenges in the House of Representatives.

  83. Debs v. United States, 249 U.S. 211 (1919).

  84. Attorney General A. Mitchell Palmer is indelibly associated in American history with the notorious post–World War I Palmer Raids, aimed at arresting and deporting leftist aliens. The raids were in response to a series of terrorist bombings, one of which damaged Palmer’s home.