America’s Long Journey: Jefferson and Marshall

John Marshall was a Federalist politician, before and after he was named Chief Justice of the Supreme Court. This is the key to the 35-year-long duel between Marshall and the Democratic Republicans. The fact that he was a politician doesn’t mean he wasn’t also an excellent jurist; he was. But it is well to remember that, as a good Federalist, and the last one in high places, he had an agenda, all his long life.

Marshall was born in 1755, a dozen years after Jefferson, into a small community on Virginia’s frontier. He served as an officer in a Virginia regiment in the Continental army, then read law at William and Mary and in 1780 was admitted to the Bar and entered politics. From 1782 to 1789 and again from 1795 to 1796, he was an elected member of the Virginia House of Delegates. As a delegate to the Virginia convention, he helped lead the successful fight for ratification of the Constitution.

He was a lawyer and a politician, but apparently not a hungry one. In 1795, George Washington invited him to become Attorney General, and in 1796 offered to make him minister to France, but Marshall declined both proposals. However, in 1797 President John Adams appointed him to a three-member commission to France. There, Marshall and his fellow commissioners were told by three representatives of the French directory government that in order to negotiate, they would first have to pay bribes. They refused, and made the situation public, and Marshall’ returned to the United States with a national reputation. He declined a Supreme Court appointment, won a seat in the U.S. House of Representatives, and, in May, 1799, President Adams named him Secretary of State.

How and why he became the fourth Chief Justice of the Supreme Court will tell you everything you need to know about John Marshall’s bias in his 35-year tenure. When Adams lost the election of 1800, the lame-duck Federalist Congress passed an act allowing outgoing President Adams to name forty-two justices of the peace and sixteen circuit court justices for the District of Columbia, the so-called Midnight Judges. Adams signed their commissions — which were sealed by acting Secretary of State John Marshall! At the same time, Marshall was nominated to replace ailing Chief Justice Oliver Ellsworth, and as confirmed the same month. (He remained as Secretary of State, at Adams’ request, for the remaining few weeks of the president’s term.)

His 30-year tenure on the bench was distinguished and effective, no question. Marshall strove for consensus among the justices, arrived at via thorough and intimate discussion, rather than trying to impose his own views. His influence on learned men of the law is said to have come from his intelligence, his charismatic personality, his ability to bring men’s opinions together. and his ability to base strong legal arguments upon the key facts of a case.

Probably the most important case the Marshall court decided, Marbury v. Madison, came in 1803. In this case, Marshall managed at one and the same time to (a) give Jefferson a technical victory, and (b) declare that the administration had acted unconstitutionally, and (c) establish, by assertion, the notion of judicial review, and (d) provide the administration no ground to challenge the assertion. Quite an achievement, worth looking at.

The case involved the same Midnight Judges whose commissions Marshall had sealed as Secretary of State. (Nonetheless, he did not recuse himself from the case.) William Marbury was one of those whose commission Adams had signed, but which had not been delivered because time ran out on Adams’s term. Jefferson claimed that the commissions were invalid because they had not been delivered by the end of Adams’s term. Marbury asked the Court to compel Secretary of State James Madison to deliver the commissions, because the Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any courts appointed, or persons holding office, under the authority of the United States.”

Marshall knew that if he were to order the administration to deliver the commissions; Jefferson would ignore him (as did Andrew Jackson, a generation later). Instead, he made the case serve his own purposes. The Court ruled that the commission to Marbury did become effective when signed by President Adams, but that the Judiciary Act of 1789 that had granted the Court original (as opposed to appellate) jurisdiction in such cases was unconstitutional, in that it expand the scope of the Court’s original jurisdiction beyond what is specified in Article III of the Constitution. Therefore, the Court could not constitutionally hear Marbury’s complaint.

Pay no attention to the man behind the curtain! Thus he asserted the right of judicial review of the acts of the other two branches of the federal government.

After Marbury v. Madison, the three branches of the federal government were no longer equal. Now, the Court could overrule Congress, the President, the states, and all lower courts, strictly on its own say-so. Two centuries on, this idea is so well established that many people are unable to conceive of a Supreme Court without the power to overrule acts of Congress.

Let’s give Thomas Jefferson the last word in this argument. “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so…. Their power [is] the more dangerous as they are in office for life…. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Marshall is universally respected as a great Chief Justice, perhaps the greatest we have had. But that doesn’t mean that when he was named to the Court he was suddenly above politics, and it certainly doesn’t mean that he did not do all he could to counter Jefferson’s policies. In John Marshall, John Adams entrenched Federalist prejudices in the judiciary for 35 years, to that degree thwarting the will of the people as expressed in elections, and creating in the Court a branch of the government asserting that it and it alone was the ultimate arbiter of what was and was not constitutional. It wasn’t a fatal legacy, but it had its dangers.

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