In light of the celebration of July 4th, this blog will be dedicated to educate on the less well known aspects of the founding of our national government.
The Supreme Court of today is very powerful due to the doctrine of judicial review, which provides for the Court to examine laws against the framework of our U.S. Constitution to determine whether they are constitutional. Political battles are commonly fought over whether or not to confirm the appointments of Supreme Court Justices. But it was not always so.
Back in 1801, when John Marshall was appointed to be the Supreme Court Chief Justice, there was little regard for the judicial branch of government. In fact, when the government moved to Washington there were no plans for a judicial building. Two years later there were still no plans because it was simply not as important as the buildings for the President and Congress.
Judicial review was not common either. The English Lord Coke had theorized about it back during the reign of the Stuart Kings but English historians agree that there was never a case where an English court over-ruled an act of Parliament. American patriot James Otis preached that the courts were the guardians of the natural rights of individuals against the government but for the most part judges did not overturn laws in this way. In early state governments the legislature was supreme.
When John Marshall was made the Secretary of State he was assigned to oversee the building of the new capitol but he made no arrangements to house the court either! And yet, John Marshall, the fourth Chief Justice of the Supreme Court, did more to raise the status of the court at that time than any other person of his day.
Thomas Jefferson, the author of the declaration of independence and our fourth President, saw John Marshall as a political threat and he wished to see him banished to the position of a judge because he thought that would neutralize Marshall. In a letter to James Madison he said, “I am told that Marshall has expressed half a mind to come. (to Washington) Hence I conclude that Hamilton has plied him well with flattery and solicitation and I think nothing better could be done than to make him a judge.”
What’s even more interesting about these two men is that they were cousins and had strikingly similar pedigrees. Both had fathers who were of working class Welsh that had inherited small farms from their fathers. Both fathers became surveyors. Both fathers had married into the powerful Randolph family and benefited from being hired by Lord Fairfax, the only aristocrat in England who had made America a permanent home.
However, William Randolph inherited the Randolph plantation, Tuckahoe, through primogeniture and named Thomas Jefferson’s father, Peter, to be the executor of his estate and the guardian of his three young children and this created a difference where Thomas Jefferson received the benefit of being reared in a kind of wealth that most early Americans could only read about. Another irony is that John Marshall’s mother was a sister to William Randolph and had grown up on the Tuckahoe estate.
These two great Americans did not like each other at all.Historian Henry Adams wrote that John Marshall was a very great man but that “This great man nourished one weakness. He detested Thomas Jefferson…no argument affected his conviction that Jefferson was not an honest man.”
One of the problems that Marshall had with Jefferson was that Jefferson had such prejudices against England that made him unfit to govern. Another was that Jefferson had not served in the Continental Army or suffered in the Revolutionary War as had Marshall and so many other great men of the time.
Finally, Jefferson had written a letter that had come to public light that made reference to George Washington in a negative way to the extent that all understood Jefferson’s low opinion of George Washington.
Jefferson reciprocated and disliked Marshall irrationally. He told Joseph Storey that, “When conversing with Marshall I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me if it were daylight or not, I’d reply, “Sir, I don’t know, I can’t tell.”
Jefferson commented on the biography that Marshall had written about George Washington by saying that he thought Marshall was “poisoning the public mind and gaining a passport to posterity”. Nothing John Marshall did could be seen in a positive light by Thomas Jefferson.
And so the stage was so perfectly set for a confrontation between these two men in the final days of John Adam’s presidency. John Adams had appointed some judges in his final days as president. These judges were Federalists and opposed Thomas Jefferson’s political party, the Republicans.Federalist power was waning but still supported a strong central government while the Republicans supported states rights.
William Marbury had been appointed as a judge by the outgoing Adams but the paper memorializing the appointment, the commission, had not been delivered. It had been left, along with several others, on the Secretary of State, James Madison’s desk undelivered and since had disappeared.
The Judiciary Act of 1789 provided for writs of mandamus to issue from the Supreme Court. This was basically one branch of government ordering another branch to do something. What William Marbury had done was to formally request the Supreme Court to issue an order, a writ of mandamus, to James Madison forcing him to produce the paper commission that appointed him to be a judge.
John Marshall found himself in a unique dilemma. James Madison did not respond to the legal proceedings, a slap in the face to the court. And yet the judiciary had no power at hand to enforce any ruling compelling the executive branch to act. Jefferson knew that Marshall could not enforce any ruling requiring James Madison to produce Marbury’s commission. Under these difficult circumstances Marshall elevated the judiciary to the stature that it now enjoys with a brilliant ruling.
Did Marbury have a right to his appointment? Yes, it was in effect as soon as it was issued. Did he have a legal remedy? Yes, but it could not issue from the court because of the constitutional principal of the separation of powers. Legislation providing for one branch to compel the other to act in such a way was unconstitutional.
By this ruling Marshall invalidated that part of the Judiciary Act of 1789 that provided for writs of mandamus. He enshrined the doctrine known as “judicial review”, the idea that the Supreme Court could hold a law up against the constitution and determine if it were valid. What is striking is that by the admission of weakness he brought the Supreme Court strength and stature. Judicial restraint catapulted the court into a position of national power.
I wonder if Jefferson ever remembered that he had wished for Marshall to become a judge. One should be careful what one wishes for. It just may happen.