The Significance of the Marshall Court (1801-1835)

1
The Significance of the Marshall Court
(1801-1835)
2
The Changing Role of the Judiciary

• Colonial courts were not an independent entity or
  separate branch of government (e.g., Thomas
  Hutchinson in Massachusetts had simultaneously
  been chief justice of the superior court,
  lieutenant governor, a member of the council, and
  judge probate of Suffolk County)
• Judges were appointed because of social and
  political rank, not due to legal expertise
• Court performed administrative and executive
  tasks
• In the 1780s, the modern idea of judiciary as a
  equal and independent branch of government took
  root.

3
The federal judiciary

• Article III creates a Supreme Court and allows
  for the creation of such inferior courts as the
  Congress may from time to time ordain and
  establish.

• The Judiciary Act of 1789 creates the
  hierarchical three tiered federal court system

4
Establishing Judicial Independence

• Life terms during good behavior
• Guaranteed Salary
• Removal only by impeachment

5
The Significance of Jurisdiction

• Original
• Exclusive versus Concurrent
• Appellate
• District Courts had jurisdiction over admiralty
  cases, petty crimes, and revenue collection
• Circuit Courts served as major trial courts for
  cases involving out-of-state or foreign citizens,
  and over appeals from the district courts in
  admiralty cases also had concurrent jurisdiction
  with state courts in cases with more than 500
  hundred dollars at stake and in those with
  diversity of citizenship (i.e., citizens from
  different states)
• Supreme Courtjustices rode circuit and initially
  heard few cases (only 87) before the 1801 term.
  Also had a rule that the justices would drink
  wine only on rainy days.

6
Do federal courts have jurisdiction over common
law crimes?

• For example, can you punish seditious libel
  without Congress passing a sedition act?
• Federalists and Republicans provided different
  answers to this question in the 1790s.
• The Supreme Court finally resolved this issue in
  United States v. Hudson (1812)

7
The Retirement of Oliver Ellsworth

• Whats a President to do?
• The Political Environment in mid December 1800
• How does John Adams decide?

8
Overview

• The most important achievement of the Marshall
  Court (1801-1835) was not particular landmark
  rulings but rather its elevation of the Courts
  stature. Had the justices not begun aggressively
  exercising the power of judicial review when they
  did, the Court might never have become a
  coordinate branch of the national government. In
  1801, it certainly was not. That year, John Jay
  declined President John Adamss offer to
  reappoint him chief justice, observing that the
  federal judicial system was so defective that
  it could never obtain the energy, weight, and
  dignity which are essential to its affording due
  support to the national government.
• Michael Klarman

9
The Final Days of the Adams Administration

• Interregnum
• The Judiciary Act of 1801 16 new circuit court
  judges blanket power to appoint justices of the
  peace for the District of Columbia and changing
  the number of Supreme Court Justices
• Secretary of State John Marshall, a moderate
  Federalist who had opposed the Alien and Sedition
  Acts, becomes Chief Justice John Marshall.

10
The Republicans Respond

• President Jefferson and Secretary of State James
  Madison Refuse to Send Commissions
• The Republican Congress passes the Repeal Act of
  1802 and abolishes the 1802 term of the Supreme
  Court

11
The Fragile State of Judicial Independence

• The Threat of Impeachment
• How to use this power?
• Impeaching Judge John Pickering
• The Impeachment of Justice Samuel Chase

12
Marshalls Dilemma

• Although Jefferson and Marshall are cousins, they
  intensely dislike one another.
• If the Supreme Court declares the 1802 repeal of
  the Judiciary Act of 1801 unconstitutional, then
  the Republicans in Congress might destroy the
  judiciary.
• What would happen if the Supreme Court ordered
  President Jefferson to issue Marburys
  commission, but he refused?

13
The Eloquence of Marshall

• All of his eloquence consists in the apparently
  deep self conviction and emphatick earnestness of
  his manner the correspondent simplicity and
  energy of his style the close and logical
  connexion of his thoughts and the easy
  gradations by which he opens his lights on the
  attentive minds of his hearers.
• The audience is never permitted to pause for a
  moment. There is no stopping to weave garlands
  of flowers, to hang in festoons, around a
  favourite argument. On the contrary, every
  sentence is progressive every idea sheds new
  light on the subject the listener is kept
  perpetually in that sweetly pleasurable
  vibration, with which the mind of man always
  receives new truths the dawn advances in easy
  but unremitting pace the subject opens gradually
  on the view until, rising, in high relief, in
  all its native colours and proportions, the
  argument is consummated, by the conviction of the
  delighted hearer. . . .
• William Writ

14
The Sophistry of Marshall

• 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
  whether it were daylight or not, Id reply, Sir,
  I dont know, I cant tell.
• Thomas Jefferson

15
Marshall and Order

• In the order in which the court has viewed this
  subject, the following questions have been
  considered and decided.
• 1. Has the applicant a right to the commission
  he demands?
• 2. If he has a right, and that right has been
  violated, do the laws of his country afford him a
  remedy?
• 3. If they do afford him a remedy, is it a
  mandamus issuing from this court?

16
A Political Interpretation

• The decision is an ingenious way to criticize
  President Jefferson, while simultaneously
  preventing him from retaliating.
• By posing the questions in this unusual order
  Marshall was able to make his point without
  having to suffer the consequences. As Jefferson
  and other Republicans pointed out, the Court in
  its final question disclaimed all cognizance of
  the case, but in the first two questions declared
  what its opinion would have been if it had
  cognizance of it.
• Gordon Wood, Empire of Liberty, 441.

17
The Immediate Aftermath

• Jefferson angered by Marshalls twistifications
• Six days later, the Court hands down its opinion
  in Stuart v. Laird
• The Marshall Court never again declares an act of
  Congress unconstitutional

18
The Marshall Court before the War of 1812

• The Role of the Chief Justice
• From seriatim opinions to the Court speaking with
  an unitary voice (During the first four years of
  his tenure, the Court handed down forty-six
  written opinions. They were all unanimous.
  Moreover, Marshall participated in 42 of them and
  wrote the opinion in all 42 between 1801 and
  1815 Marshall, in fact, wrote 209 of the Courts
  378 opinions!)
• Avoiding a confrontation with the Republicans,
  while simultaneously establishing the right to
  review and reverse state court decisions
• Separating Law from Politics
• Making questions of vested property rights into
  exclusively judicial issues

19
American Nationalism

• The War of 1812
• The Rise of Nationalism
• Martin v. Hunters Lessee (1816) The Court
  rejected the claim that Virginia and the national
  government were equal sovereigns. Reasoning from
  the Constitution, Justice Story affirmed the
  Court's power to override state courts to secure
  a uniform system of law and to fulfill the
  mandate of the Supremacy Clause.

20
Looking Forward

• Never was there a more glorious opportunity for
  the Republican party to place themselves
  permanently in power. . . .Let us extend the
  national authority over the whole extent of power
  given by the Constitution. Let us have great
  military and naval schools an adequate regular
  army the broad foundation laid of a permanent
  navy a National bank a national system of
  bankruptcy a great Navigation act a general
  survey of our ports, an appointment of port
  wardens and pilots Judicial Courts which shall
  embrace the whole Constitutional powers national
  notaries public and national justices of the
  peace, for the commercial and national concerns
  of the United States.
• Associate Justice Joseph Story, 1815

21
The Marshall Court and Constitutional Nationalism

• Who made the Constitution?
• How should the Constitution be interpreted?
• Who should interpret the Constitution?
• What powers does the Federal Government have?

• The People
• Broadly
• Federal Courts
• Necessary Proper Enumerated Implied

22
The Bank Question Revisited in 1819
Chief Justice John Marshall and Associate Justice
Joseph Story
Washingtons Cabinet in 1791
23
The McCulloch Questions

• The first question made in the cause is -- has
  Congress power to incorporate a bank?

• The power now contested was exercised by the
  first Congress elected under the present
  Constitution. The bill for incorporating the
  Bank of the United States did not steal upon an
  unsuspecting legislature and pass unobserved. Its
  principle was completely understood, and was
  opposed with equal zeal and ability. After being
  resisted first in the fair and open field of
  debate, and afterwards in the executive cabinet,
  with as much persevering talent as any measure
  has ever experienced, and being supported by
  arguments which convinced minds as pure and as
  intelligent as this country can boast, it became
  a law. The original act was permitted to expire,
  but a short experience of the embarrassments to
  which the refusal to revive it exposed the
  Government convinced those who were most
  prejudiced against the measure of its necessity,
  and induced the passage of the present law. It
  would require no ordinary share of intrepidity to
  assert that a measure adopted under these
  circumstances was a bold and plain usurpation to
  which the Constitution gave no countenance. These
  observations belong to the cause but they are
  not made under the impression that, were the
  question entirely new, the law would be found
  irreconcilable with the Constitution.

24
Who made the Constitution?

• In discussing this question, the counsel for the
  State of Maryland have deemed it of some
  importance, in the construction of the
  Constitution, to consider that instrument not as
  emanating from the people, but as the act of
  sovereign and independent States. The powers of
  the General Government, it has been said, are
  delegated by the States, who alone are truly
  sovereign, and must be exercised in subordination
  to the States, who alone possess supreme dominion.

• It would be difficult to sustain this
  proposition. The convention which framed the
  Constitution was indeed elected by the State
  legislatures. But the instrument, when it came
  from their hands, was a mere proposal, without
  obligation or pretensions to it. It was reported
  to the then existing Congress of the United
  States with a request that it might be submitted
  to a convention of delegates, chosen in each
  State by the people thereof, under the
  recommendation of its legislature, for their
  assent and ratification.
• This mode of proceeding was adopted, and by the
  convention, by Congress, and by the State
  legislatures, the instrument was submitted to the
  people. They acted upon it in the only manner in
  which they can act safely, effectively and
  wisely, on such a subject -- by assembling in
  convention. It is true, they assembled in their
  several States -- and where else should they have
  assembled? No political dreamer was ever wild
  enough to think of breaking down the lines which
  separate the States, and of compounding the
  American people into one common mass. Of
  consequence, when they act, they act in their
  States. But the measures they adopt do not, on
  that account, cease to be the measures of the
  people themselves, or become the measures of the
  State governments.

25
Marshalls Broad Reading of Necessary and Proper
Clause

• 1st. The clause is placed among the powers of
  Congress, not among the limitations on those
  powers.
• 2d. Its terms purport to enlarge, not to
  diminish, the powers vested in the Government. It
  purports to be an additional power, not a
  restriction on those already granted. No reason
  has been or can be assigned for thus concealing
  an intention to narrow the discretion of the
  National Legislature under words which purport to
  enlarge it. The framers of the Constitution
  wished its adoption, and well knew that it would
  be endangered by its strength, not by its
  weakness. Had they been capable of using language
  which would convey to the eye one idea and, after
  deep reflection, impress on the mind another,
  they would rather have disguised the grant of
  power than its limitation. If, then, their
  intention had been, by this clause, to restrain
  the free use of means which might otherwise have
  been implied, that intention would have been
  inserted in another place, and would have been
  expressed in terms resembling these. "In carrying
  into execution the foregoing powers, and all
  others, c., "no laws shall be passed but such
  as are necessary and proper." Had the intention
  been to make this clause restrictive, it would
  unquestionably have been so in form, as well as
  in effect.

26
The McCulloch Test

• We admit, as all must admit, that the powers of
  the Government are limited, and that its limits
  are not to be transcended. But we think the sound
  construction of the Constitution must allow to
  the national legislature that discretion with
  respect to the means by which the powers it
  confers are to be carried into execution which
  will enable that body to perform the high duties
  assigned to it in the manner most beneficial to
  the people. Let the end be legitimate, let it be
  within the scope of the Constitution, and all
  means which are appropriate, which are plainly
  adapted to that end, which are not prohibited,
  but consist with the letter and spirit of the
  Constitution, are Constitutional.

27
The Rejoinder Compact Constitutionalism

• Who made the Constitution?
• How should the Constitution be interpreted?
• Who should interpret the Constitution?
• What powers does the Federal Government have?

• The States
• Strictly
• The States
• Enumerated only (10th Amendment)

28
The Marshall Court and the Legacy of Federalism

• By the end of Marshalls tenure, the situation
  was very different. The Court had established
  its authority to invalidate state and
  congressional legislation and to review state
  court decisions involving federal law issues. It
  had rejected compact theory, authorized a vast
  increase in the power of the national government,
  and imposed significant constraints on the
  ability of states to interfere with national
  markets and with contract rights. In 1830 the
  astute French observer Alexis de Tocqueville
  noted, The peace, the prosperity, and the very
  existence of the Union are vested in the hands of
  the seven Federal judges of the Supreme Court.
  Twenty years later, unable to resolve the
  nations most contentious political issue,
  congressional leaders invited the Court to
  determine the fate of slavery in the federal
  territories. One cannot imagine Congress in 1800
  entrusting the justices with such
  responsibility.
• Michael Klarman

29
Further Readings

• Richard E. Ellis, Aggressive Nationalism
  McCulloch versus Maryland and the Foundation of
  Federal Authority in the Young Republic (Oxford
  University Press, 2007). The most comprehensive
  history of this landmark decision.
• George Lee Haskins and Herbert A. Johnson,
  History of the Supreme Court of the United
  States. Vol. 2 Foundations of Power John
  Marshall, 1801-1815 (MacMillan, 1981). This
  volume is part of the Oliver Wendell Holmes
  Devise History of the Supreme Court of the United
  States.
• G. Edward White, The Marshall Court and Cultural
  Change, 1815-1835 (MacMillan, 1988). This volume
  places the Marshall Court into a larger cultural
  context.