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  THE ACTIVIST

  John Marshall, Marbury v. Madison,

  and the Myth of Judicial Review

  LAWRENCE GOLDSTONE

  Copyright © 2008 by Lawrence Goldstone

  All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission from the publisher except in the case of brief quotations embodied in critical articles or reviews. For information address Walker & Company, 175 Fifth Avenue, New York, New York 10010.

  Published by Walker Publishing Company, Inc., New York

  All papers used by Walker & Company are natural, recyclable products made from wood grown in well-managed forests. The manufacturing processes conform to the environmental regulations of the country of origin.

  All illustrations are from the Library of Congress except, from the collection of the Supreme Court of the United States, and, from the Free Library of Philadelphia.

  LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA HAS BEEN APPLIED FOR.

  eISBN: 9780802777638

  Visit Walker & Company’s Web site at www.walkerbooks.com

  First U.S. edition 2008

  1 3 5 7 9 10 8 6 4 2

  Typeset by Westchester Book Group

  Printed in the United States of America by Quebecor World Fairfield

  To Nancy and Emily

  CONTENTS

  CHAPTER 1: Law and Politics

  PART I: Creating a Judiciary

  CHAPTER 2: Convention: A Few Good Men

  CHAPTER 3: To the States: The Struggle to Ratify Begins

  CHAPTER 4: Making a New Nation: Ratification in Virginia

  CHAPTER 5: Uniting a New Nation: Ratification in New York

  CHAPTER 6: Transition: Congress Is Transformed and So Is Madison

  PART II: “The Weakest of the Three”

  CHAPTER 7: A Long and Frustrating Ride: Jay Takes the Reins

  CHAPTER 8: Once and Future Chiefs: Jay and Marshall Collide

  CHAPTER 9: A Question of Priorities: The Absent Chief Justice

  CHAPTER 10: A Taste of the Future: Marshall Visits the Court

  CHAPTER 11: Yankees Win: Ellsworth at the Helm

  CHAPTER 12: As Simple as XYZ: Marshall Ascendant

  CHAPTER 13: First in Quasi-War: Adams on a Tightrope

  PART III: Making the Court Supreme

  CHAPTER 14: Default Judgment: Marshall to the Bench

  CHAPTER 15: Two Bills: Adams’s Last Stand

  CHAPTER 16: Sunset at Midnight

  CHAPTER 17: The New Day

  CHAPTER 18: “Beyond Comparison the Weakest of the Three”: Marshall Takes the Court

  CHAPTER 19: Repeal: The Seventh Congress

  CHAPTER 20: Suicide Squeeze: Hamilton v. Marshall

  CHAPTER 21: Saying What the Law Is

  CHAPTER 22: Marginalization: Stuart, Pickering, and Chase

  CHAPTER 23: What the Law Isn’t

  Appendix I: Marbury v. Madison

  Appendix II: Stuart v. Laird

  Notes

  Select Bibliography

  ONE

  LAW AND POLITICS

  IN A 1996 SPEECH at Catholic University titled “A Theory of Constitution Interpretation,” Antonin Scalia, associate justice of the United States Supreme Court, noted, “I belong to a school, a small but hardy school, called ‘textualists’ or ‘originalists.’ ” Describing the meaning of those terms, Justice Scalia observed, “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”1

  To an originalist, then, anything not specifically enunciated in the Constitution cannot be the law.

  But Justice Scalia admitted that there is an exception: “The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn’t say that anywhere. We made it up.”

  But the justice is in no way being critical of his brethren for constitutional overreaching. Nor is he denying the right of the Supreme Court to overturn acts of Congress. Quite the contrary. “Now, we made it up very sensibly,” Justice Scalia went on, “because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law . . . and what the law means is the job of the courts.” Since judicial review, the authority to declare acts of Congress and the president unconstitutional, is therefore simply an obvious and universally accepted facet of the Supreme Court’s role, it follows that whether or not the Constitution has specifically granted the Court the right of that power is irrelevant.

  To buttress his argument, in his speech Justice Scalia began where every other American judge begins, with the most famous and important judicial opinion in United States history, that of Chief Justice John Marshall in the 1803 case of Marbury v. Madison.

  If there is a seminal case in American jurisprudence, it is Marbury. The Supreme Court’s unanimous decision in that case, rendered by the chief justice, not only established the right of judicial review but also drastically redefined the notion of separation of powers that had emerged from the Constitutional Convention sixteen years before. The lead entry in almost every constitutional law textbook, Marshall’s ruling has spawned an unequaled volume of analysis by legal scholars and historians. Over the years, Marbury has seen its impact extend well beyond legal precedent to become a cornerstone of American government itself. In recasting the Court’s role in American government, Marshall opened the door for expansion of judicial authority into other areas not anticipated—or intended—by the framers. Thus, in 2000, five government appointees with life tenure, whose fitness to continue in office would never be tested at the ballot box, may well have decided a presidential election.

  Marbury itself arose out of a bitter feud between John Adams’s Federalists and the Democratic-Republican Party of Thomas Jefferson.* In the election of 1800, after a brutal campaign, Adams, the incumbent, lost the presidency. Federalists lost control of Congress as well. These dual defeats were made all the more indigestible since the new Republican majority had been made possible in no small part by the provision in the Constitution allowing slaves, predominantly in the South, to be counted as three fifths of a person in determining a state’s apportionment in Congress, thus allowing slave states a disproportion of electoral votes.†

  Although Adams had been decisively beaten, through a quirk in the constitutional provision for choosing a president in which electors cast votes for president and vice president without stipulating which vote was for which office, the Electoral College deadlocked and it fell to the House of Representatives to choose the winner.* Late in January 1801, facing the likelihood that Jefferson would ultimately prevail, Adams appointed his secretary of state, John Marshall, to be chief justice of the Supreme Court, replacing the recently retired Oliver Ellsworth. Marshall was confirmed on February 4 but agreed also to remain on as secretary of state until Adams’s term ended.2 Although he was a Virginian like Jefferson—they w
ere, in fact, cousins— Marshall was an ardent Federalist who loathed Jefferson personally. (The sentiment was heartily reciprocated.) Marshall could thus be counted on to use the Court wherever possible to curb the new president’s power.

  The battle for electors dragged on, and not until February 17, after thirty-six votes in the House, did Thomas Jefferson finally receive enough votes to be confirmed as the third president of the United States. The final ballot came only fifteen days before the scheduled inauguration on March 4.

  Although they had been turned out of two branches of the government, Federalists had no intention of melting quietly away. In their last weeks in the lameduck Congress, Federalist legislators had voted to create seven new federal circuit courts, to be manned by nineteen new judges. Hundreds of administrative officers and minor judgeships were also added to the federal court system. Among these were an undefined number of justices of the peace for the new national capital in the District of Columbia, each of whom would serve a five-year term.† Packing the judiciary with loyal party members, Federalists felt, was the only way to ensure that at least one branch of government remained beyond the reach of Jefferson and his rabble. Jefferson grumbled that the Federalists “have retired into the judiciary as a strong hold.”3

  On March 2, his next-to-last day in office, as part of a flurry of eleventh-hour activity, Adams nominated forty-two justices of the peace for the capital district. This was an absurd number of judges for a city that was still largely swamp and whose population was only a few thousand. These nominations, one of which was for a Federalist functionary named William Marbury, were ratified by the Senate the following day. According to law, in addition to ratification, the official commissions had to be “signed, sealed, and delivered” before taking effect. Adams and Marshall sat up by candlelight in the President’s House, as the White House was then called, until the early hours of inauguration day affixing both their signatures and the seal of the United States to each of the documents, thus earning the appointments the sobriquet “Midnight Judges.” Then, at four in the morning, Adams left town so as not to be forced to attend Jefferson’s swearing-in.

  All that remained was for Secretary of State Marshall to deliver the commissions to the new judges. Through carelessness or oversight—Marshall later wrote to his brother James that “the extreme hurry of the time” and the absence of the chief clerk were responsible—many of the commissions lay undelivered when Marshall had to hurry off to the special session of Congress in which he was to swear in President-elect Jefferson. Among those who did not receive his signed and sealed commission was William Marbury.

  After assuming the presidency, Jefferson discovered Marshall’s blunder and ordered that none of the overlooked commissions be delivered. Then Jefferson proceeded to void the appointments.*

  Undeterred, Marbury did everything he could to obtain his commission. He wrote letters, petitioned officials of the new administration, and eventually worked his way to a personal meeting with James Madison, whom Jefferson had appointed to replace Marshall in the cabinet. The new secretary of state would not be moved. There was no way, Marbury was told, that he would receive his warrant.†

  Finally, in December 1801, Marbury ( joined by three others)4 sued to gain his judgeship, asking for a writ of mandamus (literally “we order”), which directs a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. Instead of opting for the recently empaneled federal circuit court in the District of Columbia, the four chose to take their suit directly to the Supreme Court. Marbury and his cohorts doubtless assumed that by placing the case before a political ally—and the same man whose negligence had created the grounds for the action in the first place—their claim would receive a sympathetic hearing.5 For the basis of their claim, the four plaintiffs cited Section 13 of the Judiciary Act of 1789, the legislation by which the First Congress had laid out a detailed plan for the judicial branch of the federal government.6 Because they chose this particular piece of legislation and this particular court in which to press their claim, William Marbury and his three co-litigants set off a constitutional crisis that has reverberated for more than two centuries.

  Chief Justice Marshall did not, in fact, welcome Marbury’s decision to seek redress from his court. He knew all too well that if he sided with his fellow Federalist and ordered Marbury’s commission to be delivered, Jefferson would simply refuse, and Marshall had no means to compel him to comply.* The Court’s authority would therefore be weakened, thus defeating the Federalist scheme to maintain its power through the judiciary. If he denied Marbury’s claim, he would be using a Federalist bastion to strengthen Jefferson’s power to make arbitrary rulings, an equally unpalatable alternative.

  The case was not decided for fifteen months. That Marshall found a way through the thicket changed American history.7 With inspired misdirection, he began his opinion with a complete validation of Marbury’s claim. Yes, Marbury had been properly appointed; yes, he was entitled to receive his commission; yes, Secretary of State Madison had been obligated to deliver that commission; and no, neither the president nor his secretary of state had had a right to void the appointment.

  Unfortunately, however, Marshall went on, Marbury had originated his suit before the Supreme Court under Section 13 of the Judiciary Act. Although the wording is ambiguous, Section 13 seems to grant the Supreme Court only appellate jurisdiction in issuing writs of mandamus. From here, what Marshall should have done—and what any subsequent court would have done—was return the case to the lower court with appropriate jurisdiction.8

  But instead of allowing the case to be heard in circuit court, where he would have no control over the outcome, Marshall chose to hear Marbury anyway, a ploy that allowed him to shift the argument from the validity of Marbury’s suit to the validity of Section 13. Section 13, he then ruled, was in contradiction to Article III of the Constitution, which had not expressly granted original jurisdiction to the Supreme Court in such cases. And, since the Judiciary Act was now in conflict with the Constitution, at least according to Marshall, one of the two had to be set aside.

  Not surprisingly, in his ruling of February 24, 1803, the chief justice declared Section 13 of the Judiciary Act unconstitutional and Marbury’s suit, although he was in the right, was dismissed because he no longer had a valid statute on which to support his petition. Marshall had thus succeeded in denouncing Jefferson for violating Marbury’s civil rights without being forced to issue a writ of mandamus, which Jefferson would certainly have ignored.

  Now Jefferson was in a bind. If he did nothing, he was tacitly granting power to the Federalist Supreme Court to oversee the constitutionality of legislative acts, a repugnant alternative. The only way to avoid setting such a precedent was to deliver commissions to Marbury and the others, thereby undermining his authority throughout the Union.

  Jefferson chose to continue to refuse the commissions, and the power of judicial review was born. With his ruling, John Marshall forever expanded the role of the federal judiciary in American life. He went on to serve for thirty-two more years, going down in history as “the second father of the Constitution—the man who made the Court supreme.”9

  After Marbury, the Supreme Court became not merely the instrument to determine questions of “Law and Equity,” as specified in Article III, Section 2 of the Constitution, but also the final authority on the meaning and application of the Constitution itself. The right to interpret the law, to say “what the Constitution means,” passed from the legislature to the judiciary. This was no accident or unintended byproduct—in his Marbury opinion, Chief Justice Marshall announced his intention of claiming that very role.10 Although the Supreme Court would not again strike down a federal statute for another fifty-four years, in another inflammatory case—Dred Scott v. Sandford—the power of constitutional oversight is now one of the Supreme Court’s most potent weapons.

  After Marbury, justices’ constitutional philosophy became ev
ery bit as important as their knowledge of statutes. At first, this meant that Marshall’s Federalist views, which emphasized strong central authority and separation of powers, were pitted against Jefferson’s, which favored decentralization and popular sovereignty. The terms “strict construction” and “broad construction,” therefore, were—and are still—not so much philosophies in and of themselves, but rather political positions determined by whether or not one’s viewpoint was at the time dominant in the Court.

  Stanley Elkins and Eric McKitrick, in their wise and profound Age of Federalism, asserted that strict construction is “the resort of persons under ideological strain.” Strict constructionists prefer to “renounce a range of positive opportunities for action in return for a principle which will inhibit government from undertaking a range of things one does not approve of.” Rather than view the Constitution as an instrument of progress, they prefer to use the document “as a protection against those designs of others which have come to be seen as usurping and corrupting.”11 Under the Marshall court, then, Federalists who favored expanding the power of the judiciary were accused of broad construction by the strict-construction Republicans who wanted to restrain it. As the Republicans slowly began to supplant Federalists in the judiciary, those terms would reverse. Throughout American history, the terms have continued to skate about, depending on whether liberals or conservatives (two other often variable terms) have held the reins of power.

  Without Marshall’s bloodless coup in Marbury, then, terms such as “originalism,” “textualism,” “strict construction,” “broad construction,” and “original intent” might have merely remained fodder for legal theorists, the subject of poorly attended graduate school seminars. With Marbury, however, these terms and the points of view that they represent spilled over into mainstream politics and became one of the most hotly contested issues of government. The uneasy balance between legal application and political application was—and, after two centuries, still is—at the root of the debate over strict construction and broad construction. At its crux, the clash of philosophies pivots on whether or not the framers of the Constitution intended to grant final authority to the one branch of government that is not subject to popular will and whose members, once appointed, serve without oversight for the rest of their lives.