Considering the Constitution as a kind of law that was cognizable in the regular courts (and not, as in some other countries, in special constitutional courts) permitted American judges not only to expound and construe the Constitution according to existing rules of statutory construction but also to expect regular enforcement of the Constitution as if it were a simple statute.49
The implications of this transformation were momentous. Once the Constitution became a legal rather than a political document, judicial review, although not judicial supremacy, became inevitable.50 The secret of Marshall’s success in his Marbury decision was his unquestioned assumption that the Constitution was simply a law.51 Because, as he said, it was “emphatically the province and duty of the judicial department to say what the law is,” treating the Constitution as mere law that had to be expounded and interpreted and applied to particular cases like a statute suggested that American judges had a special authority to interpret constitutions that other branches of the government did not possess.52
Jefferson would have none of this. For him the Constitution remained primarily a political document, and judges had no monopoly in interpreting it. Indeed, he believed that judges’ ability to interpret any law ought to be strictly limited. Statutes ought to be precisely drawn, and judges ought to be bound by the letter of these statutes. “Relieve the judges from the rigour of text law, and permit them to wander into its equity,” he said, “and the whole legal system becomes uncertain.” Jefferson rejected out of hand the eighteenth-century “revolution” in jurisprudence that Black-stone and Mansfield had created in England, dismissing their efforts to construe the common law equitably and to broaden judicial discretion as dangerous to liberty. The goal of judges was supposed to be “to render the law more & more certain.” The goal of Mansfield and Blackstone, according to Jefferson, had been the exact opposite. They intended “to render it more uncertain under pretense of rendering it more reasonable.” Jefferson realized that these English advocates of judicial flexibility had a powerful influence on American judicial thinking and practice. Indeed, he believed there was “so much sly poison” in Mansfield’s “seducing eloquence” that he wanted to forbid American courts from citing any English decisions rendered by the Court of the King’s Bench since Mansfield acceded to the court. Jefferson never ceased complaining that “the honeyed Mansfieldism of Blackstone” had forced young Americans to slide into “toryism” to the point where they “no longer know what whigism or republicanism means.”53
John Marshall thought exactly the opposite. He believed Mansfield to be “one of the greatest Judges who ever sat on any bench, & who has done more than any other to remove those technical impediments which grew out of a different state of society, & too long continued to obstruct the course of substantial justice.” As the editor of the Papers of John Marshall has pointed out, “Among all the various elements composing the deep-seated conflict between these two Virginians, not the least important was Jefferson’s concern that an American Mansfield held the chief justiceship of the United States.”54
ULTIMATELY, WHAT MADE ALL OF THIS new thinking about the judiciary comprehensible—what gave the judiciary equality with the legislative and executive branches in a tripartite system of government—was the Americans’ peculiar conception of representation, that is, the unusual way that American people embodied themselves in the institutions of government. By the time the new federal judiciary was being established in 1789, some Federalists were even coming to regard judges as another kind of agent or representative of the people.
Such a remarkable conclusion followed from the logic of the Americans’ conception that sovereignty—the final, supreme, and indivisible lawmaking authority in the state—remained with the people themselves. In England sovereignty rested in Parliament because it embodied the whole society, all the estates of the realm, within itself, but the sovereign American people were never eclipsed by their governments. They remained legally viable even after doling out bits and pieces of their power, but never all of it, to their various agents in the state and federal governments.
Only by conceiving of sovereignty as remaining with the people could Americans make sense of their new constitutional achievements such as federalism, that is, the remarkable division of power between central and provincial governments, the ideas of special constitution-making conventions, and the process of popular ratification of constitutions. This conception of sovereignty eventually made possible the emergence of unusual institutions and processes of later years, such as the primaries, referendums, recall of officials, and ballot initiatives introduced by Progressive reformers at the beginning of the twentieth century. It also made possible the idea that a judge was just another representative agent of the people.
In 1776 most Americans had initially thought of the lower houses of their new state legislatures as the exclusive embodiments of the people, which is why nearly all of them had been called the “house of representatives.” During the following decade, partly as a result of the heavy criticism of their legislative abuses, the lower houses began to lose their exclusive authority as representatives of the people. Some Americans began to regard the upper houses, or senates, as being just as representative of the people as the lower houses. Originally, the senates had not been considered representative bodies at all. They were supposed to be composed of the wisest and most distinguished members of the society; consequently, even when they were elected, they presumably had no constituents.
It was soon apparent, however, that justifying a senate or upper house smacked of “aristocracy” and was too politically incorrect to be used publicly. Instead, those who wished to justify senates had to argue that they were simply “double representations” of the people. But if the people could be represented twice, then, of course, they could be represented in additional ways as well. As a result, many came to think of all elected officials, including senators and governors, as representatives of the people, and the term “house of representatives” became an awkward reminder that Americans had once thought of popular representation as the English had, as confined to the lower houses of their legislatures.
Regarding the legislatures as something less than a full embodiment of the people allowed the defenders of judicial authority, like Alexander Hamilton in Federalist No. 78, to suggest that judges were as much agents of the people as the members of the legislatures. Americans, said Hamilton, had no intention of allowing “the representatives of the people to substitute their will to that of their constituents.” In fact, it was “far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned their authority.” The authority of the judges to set aside acts of the legislatures, said Hamilton, did not “by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges . . . ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”55
In his “Lectures on Law” presented in 1790–1791 James Wilson (the first justice to take the oath of office as a member of the Supreme Court) expanded the logic of seeing all parts of the government as agents of the sovereign people. Some individuals call the legislature “the people’s representatives,” complained Wilson; they seem to imply by that term “that the executive and judicial powers are not connected with the people by a relation so strong, or near, or dear. But it is high time that we should chastise our prejudices,” said Wilson, “and that we should look upon the different parts of the government with a just and impartial eye. The executive and judicial powers are now drawn from the same source, are now animated by the same principles, and are now directed to the same ends, with the legislative authority: they who execute, and they who administe
r the laws, are as much the servants, and therefore as much the friends of the people, as they who make them.”56
Of course, only a minority as yet saw the judges as just another kind of servant of the people; but those that did were always ready to exploit the implication. Some even concluded that if the judges were really agents of the people, then they should be elected as other agents were. Although this logic would not be followed in actual practice until the middle decades of the nineteenth century, the Republican radical John Leland made this point explicitly as early as 1805. “The election of all officers, to fill all parts of the government,” he said, “is the natural genius that presides over the United States. . . . If men are incompetent to elect their judges, they are equally incompetent to appoint others to do it for them.” Judges should not be immune to the authority of the people. “A judicial monarch is a character as abhorrent as an executive or legislative monarch.”57
In the succeeding decades many of the states, especially the new states of the West, began electing their judges. And today at least thirty-nine states elect their judges in one way or another. Certainly making the judiciary an equal part of a modern tripartite representative government in the early Republic helped to strengthen judicial authority and to justify judicial independence. This was perhaps the Federalists’ greatest legacy.
ALTHOUGH MANY AMERICANS in the 1790s had come to accept most of the principles that made for an understanding of judicial review, that acceptance remained largely partisan—shared by most Federalists but not by most Republicans and probably not by the bulk of the American people.58 To make judicial review something more than an instrument of the Federalist cause, something else was needed—some radical change in the character of adjudication, some separation of law from politics.
If the higher law of the Constitution were to be brought down to the level of a lowly statute, and if setting aside statutes as unconstitutional were to be simply part of the routine business of legal interpretation and not an earthshaking political exercise, then it followed that the entire process of adjudication had to be removed from the passions and interests of politics and from legislative tampering. Somehow or other judges had to carve out for themselves an exclusive sphere of disinterested professional legal activity.
After 1800 this was precisely what happened. Judges shed their traditional broad and ill-defined political and magisterial roles that had previously identified them with the executive branch or chief magistracy and adopted roles that were much more exclusively legal. The practices of judges’ politically haranguing juries from the bench and of justices’ performing diplomatic missions while sitting on the Court were discontinued. Judges increasingly saw themselves as professional jurists, qualified only for hearing cases and interpreting the law.
As early as Hayburn’s Case in 1792 the federal circuit court for the district of Pennsylvania protested Congress’s Invalid Pension Act for violating the separation of powers. The act had given the judges of the United States circuit courts the administrative task of deciding the pension claims of veterans injured in the Revolutionary War. Their decisions, however, were subject to review and reversal by the secretary of war and the Congress. The circuit court, which comprised two Supreme Court justices and the district judge, refused to hear William Hayburn’s petition for a pension and declared the Pension Act unconstitutional on the grounds that engaging in non-judicial activities that were subject to revision by other branches of government violated judicial independence. Although the judges apologized for their decision, they nonetheless expressed a clear understanding of their distinctive judicial status. No longer did they want to be considered as political magistrates with administrative responsibilities.59
With the spread of this kind of thinking judges increasingly limited their activities to the regular courts, which became more professional and less burdened by popular juries. Even at the outset the Supreme Court had avoided giving an opinion that did not arise out of actual litigation between parties. In 1790 Chief Justice John Jay refused a request from Secretary of the Treasury Hamilton for the Court to take a stand against Virginia’s opposition to the federal assumption of state debts. Then again in 1793 the Court turned down President Washington’s request for extra-judicial opinions on matters relating to international law, neutrality, and the British and French treaties. Although some states continue to this day to give advisory opinions, these early refusals to offer advisory opinions helped to establish the Supreme Court and other federal courts as purely judicial bodies hearing particular litigated cases.60
Yet even after 1800 the withdrawal of judges from politics did not occur quickly. Of the ten justices that served between 1802 and 1823 on New York’s supreme court, for example, four had tried to become governor and three had succeeded. The fact that New York’s justices of the supreme court sat with the chancellor and governor on the state’s peculiar council of revision (abolished in 1821) no doubt contributed to their greater political activity.
Despite these vestiges of an earlier era, more and more judges tended to avoid partisan politics and to pride themselves on their judicial expertise and impartiality. They supported the publishing of judicial opinions and the collecting of law reports. In 1798 Alexander J. Dallas published the first volume of cases decided by the Supreme Court of the United States, and in 1804 William Cranch began publication of his Supreme Court Reports. By the early nineteenth century the states themselves were busy publishing reports of their court decisions. By 1821 Justice Story estimated that more than 150 volumes of American reports already existed, “containing,” he said, “a mass of decisions which evince uncommon ambition to acquire the highest professional character.”61
Everywhere jurists published treatises and promoted the emergence of law as a science known best by trained impartial experts. The states tried to comply with this view by erecting new qualifications for entrance to the bar. New Hampshire required at least two years of practice before the Court of Common Pleas for admittance. In Delaware and Maryland three years of law study were needed followed by examinations. Universities added professors of law to their faculties, and some jurists called for the establishment of separate law schools to teach the new science of law. The most notable was that established by Tapping Reeve in Litchfield, Connecticut, in 1784. The founding of Harvard Law School followed in 1817. Yale’s Law School grew out of the offices of New Haven lawyer Seth Staples in the 1810s.62
As jurists and lawyers became more professional and the law was increasingly regarded as a special science, the courts tried to avoid the most explosive and partisan political issues. Certainly that was the secret of much of the success of the Marshall Court in these years. Not only did the Court retreat from the advanced and exposed political positions that the Federalists had tried to stake out for the national judiciary in the 1790s, but it also sought at every turn, at least up to the War of 1812, to avoid serious confrontations with the Republicans. Even the Court’s decision to issue a single anonymous “opinion of the Court” tended to dampen controversy and to give the impression of more consensus than existed in fact. In many of its decisions the Court sought to curtail governmental power—something that Marshall and other Federalists knew would be acceptable to many Republicans who were eager to expand the areas of individual freedom.
Prior to its decision in McCulloch v. Maryland in 1819, the Marshall Court did not attempt to build up the power of the federal government positively. That enhancement of governmental power would have aroused Republican hostility everywhere. Instead, it moved to reduce governmental power, not at the federal but at the state level. It declared a large number of state judicial interpretations and state laws invalid because they violated the national Constitution. In doing so it indirectly augmented the supremacy of the nation and its own authority as well. In a series of decisions beginning with United States v. Peters (1809) and Fletcher v. Peck (1810) and proceeding through Martin v. Hunter’s Lessee (1816), the Supreme Court established its right
to review and reverse decisions of state courts and state legislatures involving interpretations of federal law and the federal Constitution. At the same time, the Court’s insistence on the rule of law binding the entire country worked to strengthen people’s feeling of being citizens of the United States and not just their individual state.63
In the Peters case the Pennsylvania state legislature had ignored a federal district court decision and had claimed the right by itself to interpret federal law. In a powerful opinion Marshall declared that a state legislature could not annul the judgments of the courts of the United States in this way or else the Constitution would become “a solemn mockery.” The nation, if it were to be one, had to have “the means of enforcing its laws by the instrumentality of its own tribunals.” When Pennsylvania appealed to President Madison for help in resisting this judgment, Madison refused, fearing the effect it would have on the New England states that were resisting federal law.64
Empire of Liberty: A History of the Early Republic, 1789-1815 Page 57