This Day in Legal History (Marshall Makes Case for Supreme Court in ‘Marbury v. Madison’)

Feb. 24, 1803—In his first, stealth move to simultaneously uphold federal power and to assert the Supreme Court as a partner equal to the President and Congress, Chief Justice John Marshall set down for the first time the concept of judicial review— the ability of the Court to declare a Legislative or Executive act in violation of the U.S. Constitution.

That power, unmentioned in the text of that foundational national document, has been essential in establishing the Court as the ultimate authority of the validity of a law. It has also helped make the Court an eternal bone of contention for political parties.

Marbury v. Madison was the most unorthodox case on which to build a judicial revolution. I can’t think of another important case, for instance, where:

* a justice’s own brother was called on as a witness to verify a fact;

* the justice arguably had his own conflict of interest in this case;

* the Presidential administration being sued was not represented in the courtroom because it wished to confer no legitimacy on the plaintiffs;

* the Attorney General, called as a witness by the plaintiffs, declined to answer because of executive privilege and his Fifth Amendment right against self-incrimination; and

* more importantly, as historian Henry Adams aptly put it in his History of the United States During the Administrations of Thomas Jefferson, “Where a judgment was to turn on a question of jurisdiction, the Court commonly considered that point as first and final.”

In other words, if the Court lacked jurisdiction, the case should proceed no further.

In contrast, Marshall first argued at length that the principal plaintiff, William Marbury, had been damaged when Jefferson’s Secretary of State, James Madison, failed to deliver Marbury's commission as Justice of the Peace in the District of Columbia —but only then stated that the Supreme Court lacked authority in this instance.

Legally, all of the foregoing was highly unusual, even problematic. But, in a case with overwhelming political importance, Marshall’s resolution was shrewd and startlingly successful.

In a sense, the title of the case was a misnomer. The real adversaries were not William Marbury and James Madison but Thomas Jefferson and John Marshall.

Though alike in certain ways—second cousins, slaveholders from the Virginia interior, careless of dress, with a fondness for fine liquor and good company—the two men could not have been more opposed.

Exactly when and how their mutual enmity developed is still disputed by historians. But by the late 1790s, that dislike had hardened into something toxic: differences founded as much on personality as on early American party politics.

In March 1801, when Marshall—appointed Chief Justice just before John Adams turned the Presidency over to friend-turned-rival Jefferson—administered the oath of office to his fellow Virginian, the two men were taking the measure of each other, not realizing that their quarrel over the nature of government would dominate the rest of their lives, and beyond.

Jefferson was the head of the Democratic-Republican Party, which now not only held the Presidency but, for the first time, both the House of Representatives and the Senate.

Marshall was the most significant surviving officeholder in a Federalist Party that, nobody knew at the time, would never dominate the executive or legislative branches of the United States again.

There were few if any Jeffersonian positions that Marshall agreed with, whether it was friendly relations with revolutionary France, rising democratic sentiments across the nation, or states’ rights. More viscerally, the Chief Justice loathed the new President as a faithless friend of Marshall’s commanding officer in the American Revolution and postwar political mentor, George Washington.

Perhaps above all, Jefferson feared Marshall’s formidable intellect and persuasive powers. “When conversing with Marshall,” he observed, “I never admit anything. So sure as you admit any position to be good—no matter how remote 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 was daylight or not, I’d reply, ‘Sir, I don’t know. I can’t tell.’”

The outgoing Federalist majority in Congress furnished Jefferson with a pretext to strike back by passing, in the last days of their session, the Judiciary Act of 1801, which created new courts, added judges, and gave the president more control over appointing judges—and, by increasing offices for Federalist party members (including Marshall’s brother James), resulted in what the Chief’s biographer Richard Brookhiser termed a “lame-duck potlatch.”

Jefferson’s Congress retaliated not only by undoing these expanded judicial appointments in the Judiciary Act of 1802, but also by eliminating summer sessions of the Supreme Court. The next chance for Marshall and his like-minded justices to counterattack came when Marbury and several other “midnight judges” appointed in the last hours of the Adams Administration asked the Court for a “writ of mandamus” ordering Madison to deliver their commissions.

Marbury wouldn't have had to do if Marshall hadn't been struggling to deal with the first transition between opposing political parties in Presidential history. 

Serving as Secretary of State before Adams finally prevailed upon him to take over as Chief Justice, Marshall had been so busy affixing his seal to all these commissions that he didn’t ultimately make sure they were delivered. He asked his brother James to do the job. They were still on the secretary’s desk would Madison took over. Jefferson ordered that the commissions stay right there. 

Nowadays, judicial-ethics mavens would have had a fit over Marshall ruling on a case in which he figured, even if peripherally. But this was a new republic, with the rules being made up as people went along--and Marshall would be there at the foundation.

With Jefferson not wanting the administration represented in the court, Marshall had to resort occasionally to extraordinary means just to determine facts. Such was the case when James Marshall was called to testify about the non-delivery of the commissions.

Finally, on February 24, Marshall read aloud the ruling. This, in itself, was a break with prior practice, in which the justices handed down their own separate decisions.

Marshall, in writing and delivering the opinion himself, was having the Court speak as one voice. Moreover, because the ruling was a unanimous 6-0, he had succeeded in “massing the court,” or presenting a united front—an effective device for gaining legitimacy in controversial cases.

Marshall answered “yes” to the first two questions before the justices: Did Marbury and the other plaintiffs have a right to receive their commissions, and could they sue for their commissions in court?

Two statements in particular, both of which continue to reverberate with clarity and authority to the present day, seemed guaranteed to provoke Jefferson into another act of retaliation against the judiciary: "A Law repugnant to the Constitution is void" and "It is emphatically the duty of the Judicial Department to say what the law is."

Then Marshall pulled his masterstroke. Even though Marbury was entitled to the commission, he could not rely on the Judiciary Act of 1789, since Constitution did not permit the Court to have original jurisdiction in this matter. Therefore, the Court would not order the White House to give Marbury his office.

What to make of this maneuver? Jefferson had been left, it seems, with a victory: this and other judicial appointments that could obstruct his power had been vacated.

It was, in fact, nothing of the sort, but rather, as noted in Michael Glennon's excellent overview of the case in the Summer 2003 issue of The Wilson Quarterly, "a masterwork of calculated restraint, feint, and cunning, an opinion that laid claim for the courts to the greatest of government powers—the final say as to what the law is—even as it left Marshall's opponents no effective response."

In later years, the President realized that Marshall had a loaded pistol at his disposal in the doctrine of judicial review. Jefferson would decry Marbury v. Madison and subsequent decisions of the Marshall Court.

At the same time, Marshall solidified a judicial institution that had appeared increasingly irrelevant. Turnover on the Supreme Court had been rapid, in no small part due to the belief that it was the weakest of the three branches of government, with its power continuing to ebb. When he had taken over, R. Kent Newmyer told Brian Lamb in a C-Span "Book Notes" interview in 2002, "the institution was pretty much on the ropes.

Marshall changed all that, through his intellect, his charm, and his 35 years as Chief (still a record in that post), as I discussed in a later precedent-setting ruling of his, Gibbons v. Ogden. Perhaps most of all, he retained his influence through his shrewd political insight that he should not invite a reaction by overstepping his authority. 

So, though he claimed the right of judicial review, that authority would not be exercised again until 1857, two decades after his death, in the enormously controversial Dred Scott decision--a ruling that also confirmed that Marshall was the first Court practitioner of what Felix Frankfurter would call "judicial restraint."

(There are many fine discussions of Marbury vs. Madison, but one I would recommend is Nicholas Mosvick's blog post this time last year on the Website for the National Constitution Center.)

This Day in Supreme Court History (Webster, Marshall Save ‘A Small College’—and the Private Realm in America)

Feb. 2, 1819—In one of the central cases advancing John Marshall’s concept of a republic in which contracts would create a diverse economy that would bind the nation together, the Supreme Court ruled 5-1 in favor of the trustees of a then-small New England college and the eloquent alumnus arguing its case, Daniel Webster.

At first glance, the case, Trustees of Dartmouth College v. Woodward, might seem highly technical: whether the legislature of New Hampshire, in seeking to convert Dartmouth College from a privately funded institution to a public university, had violated the Constitution’s Contract Clause (Article 1, Section 10, Clause 1), which prohibits states from violating contracts with private or public corporations.

But Marshall (pictured here) saw matters more broadly. If the state could abrogate the terms of a private contract—even a charter such as Dartmouth’s granted in 1769, when New Hampshire was still a colony under British rule—then it could interfere in the operations of charities and, by extension, Americans’ private lives.

“The Dartmouth College case established an important safeguard for charitable institutions in the United States,” writes Justin Zaremby in the February 2019 issue of The New Criterion:

“The Court held that while privately run institutions may engage in activities that are within the purview of government, government could not by right assume control. It affirmed the role of charities (and their donors) in shaping America’s educational, literary, and cultural life, and over time the number and impact of such organizations grew.”

Only two decades later, Alexis de Tocqueville, in his classic political study Democracy in America, marveled at the strength and variety of these private activities in the U.S.:

"Nothing, in my opinion, is more deserving of our attention than the intellectual and moral associations of America. The political and industrial associations of that country strike us forcibly; but the others elude our observation, or if we discover them, we understand them imperfectly because we have hardly ever seen anything of the kind.”

But in another sense, Marshall opened the door to a constitutional interpretation that others would push far more aggressively. In holding for the trustees of Dartmouth College, he stated that a corporation was "an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence." 

In the 1880s, former Senator Roscoe Conkling of New York took this a step further in arguing before the Supreme Court: a corporation was not just "an artificial being" but a person, thus entitled to protection under the post-Civil War 14th Amendment. The high court adopted that proposition, producing a situation far from "originalist" (to use Antonin Scalia's term) in its basis: a constitutional  amendment adopted was a dead letter for the group it was intended to protect--African-Americans--but a boon for one not contemplated: robber barons.

(Indeed, the "Two Centuries of Corporate Personhood" that ensued from the decision was hailed in an op-ed piece in this Friday's Wall Street Journal by Carson Holloway, a visiting scholar at the conservative Heritage Foundation and a professor of political science science at the University of Nebraska Omaha.)

In more personal terms, Trustees of Dartmouth College v. Woodward enabled the two figures most essential to its outcome—the justice hearing the case and the lawyer who successfully pleaded it—to stake out a continuing important role in the nation’s affairs, even after the Federalist Party to which they had once belonged had self-destructed at the end of the War of 1812 through secessionist mutterings.

Following the collapse of the Federalist Party, Marshall, as Chief Justice of the Supreme Court, was the last party member in any major leadership post in Washington. With the capital not yet rebuilt after the British burning of the city in the war, he and his fellow justices were operating out of what an observer of the Dartmouth case, Chauncey Goodrich of Yale College, called “a mean apartment of moderate size.”

If Thomas Jefferson and his two Democratic-Republican successors, James Madison and James Monroe, had had their way, Marshall would have been lucky to have even that cubbyhole. Armed only with his incisive intellect and an easygoing, egalitarian manner, Marshall had somehow still managed to carry the day with sizable majorities, as he often managed to persuade justices appointed by the other party to join his cause.

Likewise fighting a rear-guard action against the Democratic-Republicans, Webster was also struggling to maintain his viability against his old foes. A couple of years before, he had left the House of Representatives—and the state of New Hampshire—to start a thriving legal practice in Boston, Mass.

From 1814 to 1852, “Black Dan” (a reference to his commanding dark looks) argued 168 cases before the Supreme Court. In the process, argued historian Merrill Peterson in The Great Triumvirate, “Webster turned ordinary law cases into vehicles of statesmanship with profound effects. The unique right of judicial tribunals to decide constitutional questions, enabling the humblest citizen in the humblest case to appeal to the supreme law, widened the scope of American law and invested it with the utmost dignity of state.”

The Dartmouth case, together with another he argued successfully before the court that year, McCulloch v. Maryland, allowed Webster to form a reputation as “defender of the Constitution”—and win election as U.S Senator from his new state. (His formidable reputation as a legal advocate would be memorably evoked a century later in Stephen Vincent Benet's much-anthologized short story "The Devil and Daniel Webster," in which the great man pulls off the neat trick of saving a poor farmer who had sold his soul to Ol' Scratch.

Oddly enough, Webster felt the conclusion to his four-hour argument in the Dartmouth case was so mawkish that he deleted it when he had copies printed. It has only been saved for posterity through Professor Goodrich, who published it after Webster’s death in 1852. These sentences, directed squarely at Marshall, moved the justice to tears and have become famous since then:

“Sir, you may destroy this little Institution; it is weak, it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out! But, if you do so, you must carry through your work! You must extinguish, one after another, all those greater lights of science which, for more than a century, have thrown their radiance over our land! It is, Sir, as I have said, a small College. And yet there are those who love it.”

This Day in Legal History (Marshall Points Commerce-Clause Dagger at States’ Rights)

March 2, 1824—In the last year of what might be termed Jeffersonian Republicanism, John Marshall, Chief Justice of the Supreme Court, continued to strike at the Democratic-Republican Party he had shadow-boxed in more than two decades on the high court.  In Gibbons v. Ogden, he did more than merely decide between two competing steamboat owners, or even establish a precedent that would govern use of the interstate-commerce clause of the Constitution  in everything from the navigation innovations of the 19^th century to the telecommunications revolution of the 21^st.  

No, Marshall—himself a Virginia slaveowner—insisted that, whenever the two conflicted, federal power superseded state power. That nationalist vision repudiated the notions of states’ rights and secession secretly promoted by Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions of 1798. The enhanced authority this throwback to the now-defunct Federalist Party presented to Congress to pass laws relating to interstate commerce would, in time, become a weapon for abolitionists for the antebellum era, and even for civil-rights activists in the 1950s and 1960s.

A second cousin to Jefferson, Marshall, still vigorous in his late sixties, had outlasted Jefferson, Madison, and now his childhood friend, James Monroe. More infuriating to the Sage of Monticello, Marshall had pulled within his gravitational orbit most of the men that the Democratic-Republican Party had nominated to the high court, in the vain hope of counteracting his influence.

After justices had heard oral arguments, they reviewed the day’s business quickly in their cramped boardinghouse, where the chief’s mastery of men matched any mere President. For a man considered the bulwark of conservatism in the young republic, he put on no airs. (On a visit to the John Marshall House in Richmond some years ago, I was astonished to find that not only did he do his own food shopping in the city streets, but also that he was such a careless dresser that he needed the help of one of his slaves to ensure he looked presentable on special occasions.)

The court’s decision in Gibbons v. Ogden promised to be among them. Daniel Webster, the lead counsel for the case’s appellant, Thomas Gibbons, had drawn a crowd to see if he could deliver another persuasive argument, as he had done in two other landmark Marshall Court decisions (Dartmouth College v. Woodward and McCulloch v. Maryland), and the future Senator from Massachusetts didn’t disappoint. Moreover, commercial interests in New York were keenly watching a young go-getter in the background of the case, Cornelius Vanderbilt, whose tough, even ruthless management of Gibbons' boat had elicited the rancor of the latter's former steamboat partner, Aaron Ogden.  

The case had developed originally because the New York State Assembly had awarded a steamboat monopoly on the Hudson River to politician Robert Livingstone and inventor Robert Fulton. In turn, Livingstone allowed Ogden to navigate the waters between New York and New Jersey with this new mode of transportation. When Ogden fell out with Gibbons, the latter obtained a license to navigate under the federal Coasting Act of 1793. The New York state courts consistently sided with Ogden, until Gibbons played his last trump card and appealed to the Supreme Court.

In siding with Gibbons, Marshall struck down a monopoly that was restraining the growth of a new industry. The decision allowed a host of entrepreneurs who were trying to follow up on Fulton’s steamboat to ply their trade throughout the country. In particular, it “opened the floodgates for the Hudson River,” according to Fulton biographer Kirkpatrick Sale. Together with the Erie Canal (opening a year after the Ogden decision), the steamboat would transform the American interior, uniting East and West through strengthened commercial ties.

But Marshall was engaging in something larger: an adroit, step-by-step process by which he erected a legal foundation for his vision of a mercantile, contract-bound society that would unite all sections of a disparate republic into a true nation. Webster crowed that Marshall imbibed his arguments “as a baby takes in his mother’s milk,” but, in truth, the Chief Justice merely did with the attorney what he had done so successfully with his associate justices: gleefully employed their reasoning as a means of advancing his own constitutional strategy.

Crucially, in interpreting Article 1, Section 8, Clause 3 of the U.S. Constitution—i.e., the power given to Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”—Marshall construed the verbiage broadly to mean not simply the artifacts of commerce, but the whole “intercourse” by which it was conducted. Then, turning to the phrase “among the several states,” he argued for its widest possible application, limited only by the Constitution itself: “Commerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior.”

Predictably, Jefferson and his followers did not look benignly on what they saw as yet another incursion by the Chief Justice on states’ rights. But Gibbons v. Ogden proved to be among the Marshall Court’s most popular decisions. Its wide acceptance, in fact, enabled opponents of slavery to wonder if it couldn’t be applied in overthrowing a system they abominated.

The domestic slave trade relied on the “chattel principle,” the notion that slaves were movable property. While most Americans thought that slavery could not be interfered with within individual states, abolitionists saw an increasing point of vulnerability to the peculiar institution in slave trade between states, which would fall under the commerce power.

Abolitionists’ denunciation of the interstate slave traffic, historian David L. Lightner argues in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War, threatened alike plantation owners in older states (who needed proceeds from sales of surplus slaves to supplement their increasingly narrow profit margins) and those in the Deep South (who needed the labor to farm newly opened territories). Slaveowners’ paranoia about this perceived threat to their livelihood boosted the secessionist movement and hastened the coming of the Civil War.

A century after the Civil War, the administration of Lyndon Johnson crafted the Civil Rights Act of 1964 in such a way that the commerce power could be used to outlaw segregation and prohibit discrimination against African-Americans. It provided the federal government a wedge to charge non-state actors with Equal Protection violations. It also became a tool by which Congress could regulate manufacturing, child labor, workplace safety, farm production, mass media of communication, wages and hours of work, the activities of labor unions, buying and selling at marketplaces, and various other activities.

All of this began with a Chief Justice who served under five Presidents, making what was widely expected to be the weakest branch of the federal government into one with its own unrivaled authority. Marshall did so through a self-confidence that allowed him to range widely over the law while gratefully accepting the expertise of particular justices; the sure-footed instinct to know how far to push a point without incurring the full wrath of Jefferson and his followers (a point I mentioned in a prior post about how he conducted the Aaron Burr treason trial); and a conviviality that furthered the good feelings among the associate justices with liberal amounts of alcohol. 

The justices had a rule about drinking only when it was raining, but, as might be guessed, Marshall used a broad interpretation of their jurisdiction to decide when that applied. He would sometimes ask Associate Justice Joseph Story to “step to the window and see if it does not look like rain.”  If Story said the sun was “shining brightly,” Marshall would often answer, “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”  That was the signal for the bottles to open, and in the ensuing time spent together, the Chief undoubtedly sounded extra persuasive...

This Day in Legal History (Burr Acquitted of Treason)

September 1, 1807—Aaron Burr, former Vice-President, dodged a danger greater than his infamous duel with Alexander Hamilton when a Richmond jury acquitted him of treason against the United States. For President Thomas Jefferson, who had thrown the full machinery of the government in the prosecution of his onetime running mate, the acquittal stung even more because the case was tried by his cousin and enemy, John Marshall, Chief Justice of the Supreme Court.

One might well ask why Jefferson was at such pains to continue a case that a grand jury had previously decided was without merit. But the scheme, as set out, was extraordinary:  Burr, it was alleged, in a desperate attempt to revive his dead political career, wanted to lead an army south, separate the Western United States (just acquired in the Louisiana Purchase), then proceed to Mexico, where he would set up a separate nation with him as king, emperor, or some other potentate. It struck the Virginian as the same sort of conniving that almost made Burr, the Vice-Presidential candidate in the election of 1800, almost beating out the man who was supposed to be his boss when the election was thrown into the House of Representatives.

The question also arises as to whether the President wanted to bag an additional prize besides Burr. For the past four years, when the Federalist Marshall served notice on the Democratic-Republicans, in Marbury v. Madison, that the power of judicial review gave the Supreme Court the right to declare acts of Congress unconstitutional, Jefferson had eyed every opportunity to catch his cousin Marshall in a mistake. Marshall hadn’t provided that chance at the time, but the stakes in the Burr trial were enormous and, consequently, anything could happen.

Over the years, some observers wondered why the Jefferson Administration would try such an important case in Richmond, where Marshall held jurisdiction as presiding judge in the federal circuit (Supreme Court justices heard cases on the circuit until the late 1890s), in a conspiracy case stretching from Kentucky down to New Orleans.

But, in a case with such high stakes, every opinion of its magistrate would be closely watched and itself judged. Jefferson was counting on public opinion to surge against Marshall, in the event of an adverse ruling or rulings: “They will see that one of the great coordinate branches of the government, setting itself in opposition to the other two and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce which will not be tried again,” he wrote Virginia Senator William Giles.

In History of the United States of America During the Administrations of Thomas Jefferson, Henry Adams (great-grandson of the President’s longtime friend, then bitter enemy, John Adams) aptly summarized Jefferson’s feelings in that last sentence: “In substance Jefferson said that if Marshall should suffer Burr to escape, Marshall himself should be removed from office.” Indeed, the principal government attorney in the case, George Hay, made that very threat amid the trial.

Everybody wanted to come to the Virginia State Capitol in Richmond for the proxy battle that Burr had unwittingly furnished Jefferson and Marshall. Among those who did come were Andrew Jackson (whom Burr had tried to enlist in his scheme); Winfield Scott, then a 20-year-old soldier embarking on the career that would make him the greatest American general between the Revolution and the Civil War; and Washington Irving, already attracting notice as a witty observer of his country.

Irving was among those offended by one of Marshall’s actions early in the proceedings. The Chief Justice had shown up at a dinner also attended by one of Burr’s attorneys and the defendant himself. The New York author, judging this attendance “grossly indecent,” wondered if Marshall had forgotten one of the elementary tenets of the law: “that the administration of justice should not only be pure but unsuspected” (emphasis in the original).

That incident outraged Democratic-Republicans, but Burr’s sympathizers were no less angry about Jefferson’s initial announcement about the discovery of the conspiracy: “Of [Burr’s] guilt there can be no doubt,” he had written.

It might be said, then, that the idea of impartiality, in what Henry Adams called “the most important and difficult State prosecution ever tried under Executive authority,” had gone missing by both sides.

It is doubtful whether the early American republic had witnessed so many famous or well-connected people representing the prosecution and the defense. Caesar Rodney, just confirmed as Attorney-General, was immediately thrown into this complicated case. With so many of his duties keeping in Washington, he farmed out the day-to-day running of the case to William Wirt (himself a future Attorney-General); Alexander McRae, lieutenant-governor of Virginia; and George Hay, son-in-law of Jefferson’s protégé, James Monroe.

The lackluster ability of McRae and Hay would prove no match for the high-powered talent representing Burr. Edmund Randolph had served as Washington’s Attorney General and Secretary of State. His gravitas was balanced by the suavity of John Wickham and Benjamin Botts. Last was the flamboyant, alcoholic Luther Martin, a brilliant opponent of Jefferson’s who had already saved one enemy of the President, Supreme Court Justice Samuel Chase, at his impeachment trial.

The prosecution faced several obstacles that, in the end, proved fatal:

*The Constitution’s insistence on what the presence of two witnesses to treason. There was one problem with the alleged crime that landed the Burr case in Marshall’s circuit to begin with: It took place on an island in the Ohio River owned by the Irish immigrant Harman Blennerhassett. The only trouble was that, though the men Burr had recruited had all shown up, Burr was hundreds of miles away.

*Delays in gathering materials. The “conspiracy,” the government alleged, occurred in places such as Lexington, Nashville, Fort Massac, and Chickasaw Bluffs, along with Blennerhassett’s island. This required that materials and testimony had to be gathered in these places, then brought back to Richmond—all at a time when transportation was not well advanced. (Robert Fulton had only just demonstrated the value of his steamboat that year.)

*The government’s star witness had serious credibility problems. Of all the famous people connected to the case, the most stunning might have been General James Wilkinson, the governor of the Louisiana Territory who, it was said, Burr had tried to draw into his scheme. Only one problem: Many wondered what Wilkinson himself was up to. They were right to be skeptical. At the time, Wilkinson—then commander in chief of the U.S. Army—had barely managed not to be indicted himself for his part with Burr. What nobody knew at the time was that, for two decades, he had also been a paid, secret double agent in the employ of the King of Spain.

A couple of Marshall rulings during the case would have serious implications for two Presidents in the late 20^th century, as they found themselves in legal trouble. Martin, passionately disputing Jefferson’s prejudgment of the case, pointedly asked if his client did not have all the more right for any and all materials to save himself from the death penalty. Couldn’t he require the President to yield up all important documents in the case? Couldn’t he even require the President’s testimony?

Hay had claimed that the President could be required to do so as a private citizen, but not as President. Marshall disagreed. To claim a special exemption from the President would place him on the level of a king (a charge guaranteed to rankle the anti-monarchist Jefferson). Moreover, the President’s business in Washington was not so pressing that he could not testify (raising Jefferson’s fury to even greater heights, at the implication that he really was not terribly busy, even at Monticello). There was one way that Jefferson could avoid the need to testify in person, Marshall explained: Simply provide the necessary materials requested by the defense. Accordingly, Marshall sided with Jefferson’s motion for a subpoena duces tecum to be issued to Jefferson.

The faceoff between Marshall and Jefferson over what the President could be compelled to provide at trial formed an important precedent in the issue of executive privilege. That issue would reach its most dire points when Richard Nixon and Bill Clinton were required either to yield materials or testify themselves in the Watergate and sexual harassment trials that threatened their Presidencies.

On August 30, only three days after the jury had been sworn in and a dozen witnesses had testified, Burr’s defense team moved to exclude any testimony that went beyond the main point of the treason charge, that Burr chose to levy war on Blennerhassett's Island on December 10, 1806.This was the heart of the indictment, and it would be gutted if Marshall upheld the motion. On August 31, that is exactly what the Chief Justice did.  

The next day, Hay told the court that he could not move ahead with the case, and the jury, after deliberating a mere 20 minutes, gave the prosecution its expected drubbing. But, as with so much else in this case, it was more complicated than that. The jury returned a finding of “not proved to be guilty under this indictment by any evidence submitted to us.” It was as if they smelled something fishy going on at Blennerhassett's Island and wanted to state so somehow. Marshall, for the sake of the record, had the verdict changed simply to “not guilty.” Burr would have to do with a misdemeanor charge for the next couple of months, but the main threat to him from the capital charge was over.

Burr had escaped a guilty sentence, but he had to leave the country for several years, waiting for tempers to cool before he could come home. He would live for nearly another 30 years, but his career as a public man was effectively over. As usual with him, nobody can be quite sure if he was simply being his old opportunistic self in separating some of Spain’s lands in the Southwest or if he also wanted to include new lands from the Louisiana Purchase in the bargain.

Jefferson, who was close to the pinnacle of his power and influence when Burr had first been seized, had, by the fall, gotten Congress to pass an Embargo Act that shut down trading with Britain and France, in an effort to avoid the impressment seizures by British forces. The legislation, hugely controversial, dampened any influence he might have exerted against Marshall.

Marshall, having rendered an opinion that would form part of the Supreme Court’s set of precedents concerning treason and Presidential power, would survive his cousin Jefferson’s rage to stay on the court for another 28 years. His opinions went a long way toward establishing the cohesion of the Union. But he had already established conclusively, in the Burr case, that he was not to be intimidated, even by a district attorney arguing the President’s case hinting strongly that he could be impeached.

 
Marshall’s response to that not-so-veiled threat, on August 31, would ring through the next two centuries as the court’s own declaration of independence from the other two branches: “That this Court dares not usurp power is most true; that this Court dares not shrink from its duty is not less true.”