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 Legal History (Anthony Comstock, Anti-Vice Crusader, Born)

March 7, 1844—Anthony Comstock, who mercilessly pursued litigation and legislation against obscenity in the Victorian Era, was born in New Canaan, Conn.

Over four decades, Comstock used the organization he founded, the New York Society for the Suppression of Vice, to range across and rage against the cultural landscape. Starting with halting the promotion and sale of birth control and abortifacients, he ended up broadening his reach to plays, art and even medical texts, leading one of those he pursued, playwright George Bernard Shaw, to come up with a neologism for the anti-vice crusader. 

It wasn’t a compliment. “Comstockery is the world’s standing joke at the expense of the United States,” he complained to a New York Times reporter in September 1905, after Comstock had attempt to censor the Anglo-Irishman’s 1892 play about prostitution, Mrs. Warren’s Profession.

In the post-Civil War Era, white Anglo-Saxon Protestants, watching in dismay at the Northern cities they once controlled swelled to accommodate immigrant tide, countered with measures to deal with these ills. Some were benign attempts at uplift, such as public libraries. Others were sometimes questionable attempts to sanitize elections and governance through referenda, initiatives, and recall attempts. Others were more frankly hostile, like post-Famine deportations of Irish indigents in 11 Eastern states and the Chinese Exclusion Act of 1882. Still others, though ostensibly applied across the board, were purity crusades that stigmatized marginalized racial and ethnic groups disproportionately, such as Comstock’s anti-vice campaigns.

Once he came to New York City in 1866, Comstock could not get over what he encountered: prostitution, drug addiction, and bookstores that all kinds of pornography.  

By 1873, Comstock began in earnest his counteroffensive by persuading Congress to pass federal legislation making illegal the transportation and delivery of “obscene, lewd, or lascivious” materials. Due to his license as a “special agent” and inspector for both the Society and the United States Postal Service, that measure became so associated with him that it became known simply as the Comstock Act.

 

To his own version of the purity campaign, Comstock brought the energy of the demented to his quest—by his own admissions, destroying 160 tons of obscene materials; trying to ban adventure books and romance novels; helping to put out of commission the Louisiana lottery, the only legal lottery in the country at the time; and writing articles and lecturing college students to warn them against the licentious life he foresaw for them. 

I’m not sure how anyone who calls himself a Christian could brag about causing a suicide, but Comstock did—and not just one person, but 16, including abortionist Ann Lohman.

 One of the few modern defenses I’ve read of Comstock was Helen Andrews’ 2008 article in The Hedgehog Review. Although I disagree strongly with her sympathy for Comstock, I found fascinating her observation that the elite “who bankrolled Comstock were not about to invite him to dinner at their homes or to their private clubs.”

Indeed, another author, Nicola Beisel in her book Imperiled Innocents, has noted that the major contributors to his campaign were members of the upper crust who feared that their children, corrupted by the forces that Comstock inveighed against, might lose the social standing their parents had labored so hard to obtain.

Comstock’s last major target was Margaret Sanger for promoting her views on birth control. But midway through the campaign to make her cease and desist, Comstock died, leaving Sanger with another five decades to fulfill her destiny as a pioneer birth-control advocate.

Even after Comstock’s death in 1915, the Society for the Suppression of Vice continued to exist, albeit with steadily diminishing impact, under his successor, John S. Sumner, who pursued his own campaigns against James Joyce’s Ulysses, James Branch Cabell’s Jurgen and D.H. Lawrence's Lady Chatterley's Lover.  

As late as the 1930s, the Society’s reports identified the ethnicity of those it tagged as miscreants, as if this were relevant to the offenses. (It even claimed, according to its own statistics, that "less than one-third of [obscenity] offenders were of real American stock.")

 

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...