The Jefferson Presidency
The Jefferson Presidency
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Law in The Jefferson Presidency

Looking at the Past Through the Lens of Law

Jefferson and Marshall: Two Virginians in Washington

Thomas Jefferson and John Marshall had much in common. They were both from Virginia, they both modeled the same shaggy styles of the Virginia gentry, and they both attended the College of William and Mary. Both were appointed Secretary of State and both served as minister to France. They were even related, distant cousins on the Randolph side. But by 1801, when they arrived in the new capital of Washington City to assume their new positions as respective heads of the executive and judicial branches of government, they found themselves miles apart politically and philosophically. Marshall was a Federalist. Like many who served in the officer corps of the Continental Army, he emerged from the war a nationalist committed to strengthening the central government. As the new Chief Justice of the Supreme Court, Marshall was intent on expanding the Court's authority and using this authority to enhance the power of the federal government. Jefferson, as a Republican, was just as anxious to reduce the power of the state and restore the principles of limited government he equated with the ideals of the Revolution. He was especially intent on curbing the judiciary's power, as he feared it might become an antidemocratic bastion of Federalist influence.

There was bound to be a collision between the two. But neither realized that the opportunity would be provided by the very first thing that Jefferson chose to do—or rather, not to do.

John Adams's Midnight Judges

When John Adams named Marshall Chief Justice of the Supreme Court in the waning days of his presidency, he did so as part of a broader attempt to strengthen the judiciary. With a Republican president and a Republican Congress waiting in the wings, Adams and his Federalist colleagues looked to the judicial branch as a means of preserving influence after 1801. The Judiciary Act passed that year was central to this plan: by expanding the federal judicial branch—creating more federal courts and broadening their jurisdiction, funneling more cases into federal rather than state courts—a Federalist-leaning judiciary could exercise influence over the interpretation of law far into the future.

After signing the Judiciary Act in February 1801, Adams rushed the names of the sixteen new federal judges through the Senate for confirmation. He also named dozens of new justices of the peace for the city of Washington. The new law had given the president the power to appoint as many of these lower magistrates as he deemed necessary for the growing city. He decided upon 42, signed their commissions, and sealed the letters with instructions that they be delivered.

Thirty-eight of these letters were delivered, but through some oversight, four were not. And when Jefferson took office, he instructed his new Secretary of State James Madison not to deliver these "midnight" appointments. Arguing that, since these lower judges did not enjoy life tenure, he could nullify their appointments, Jefferson announced that he would name his own justices of the peace. William Marbury and the three other justices of the peace that did not receive their appointments decided to force Madison's hand (and Jefferson's) by suing to the Supreme Court. They requested a writ of mandamus, a court order demanding that a government official carry out some action—in this case, the delivery of their appointment letters.

For Chief Justice Marshall, the case was filled with opportunity, but also loaded with problems. On the one hand, it offered a chance to make a statement about the power of the Supreme Court. On the other hand, the case pitting Federalist plaintiffs against Republican defendants risked a verdict that would appear narrowly partisan. And while Marshall wanted to strengthen the Court, he also wanted to establish its prestige as a nonpartisan arbiter of law. Over the preceding several years, the judiciary had become a political battleground. Just as the Federalists had tried to preserve their influence through its expansion, Republicans were trying to weaken it though a series of impeachment proceedings. The two judges the Republicans first went after probably deserved to be removed—one was insane, both were transparently partisan in their conduct—but Republican efforts were guided more by an interest in establishing a broad power of impeachment than in simply purifying the judiciary. Within this context, a poorly handled Marbury ruling could easily appear to be just another example of partisan expediency; a ruling by the new Federalist-appointed Chief Justice against the new Republican president, and in support of another recent Federalist appointee, would surely damage the Court's reputation.

As Marshall examined the details of the case, he must have asked himself if there was a way that he could strengthen the Court without appearing partisan. Could he assert the power of the Court against the other branches of government and establish its role as the arbiter of the constitution without provoking further partisan wrangling?

The Marbury Decision and Judicial Review

Marshall delivered the Court's opinion in Marbury v. Madison on 24 February 1803. He wrote it himself, as he would 24 of the first 26 opinions issued by the Court between 1801 and 1805. He began by arguing that the Marbury case presented the Court with two fundamental questions: were Marbury and the others entitled to their commissions and, if so, could the Court provide a remedy? To the first question, Marshall answered a simple yes. President Adams had signed and sealed their appointments; this completed a legitimate exercise of his executive authority. Simply failing to deliver the commissions did not constitute a repeal or negation of the appointments.

But the second question, Marshall argued, was more complex. While these appointees were entitled to their commissions, the Court could do nothing to enforce them because it lacked the necessary jurisdiction. Issuing a writ of mandamus fell under the category of original jurisdiction (the area of authority a court has to hear a case the first time it is presented). The other type of jurisdiction was appellate (the authority to rehear a case on appeal when a party believed there was some procedural or substantive error in the first trial). The problem, Marshall argued, was that while the Supreme Court possessed very broad appellate jurisdiction, its original jurisdiction was severely limited—and it did not include writs of mandamus. Therefore, the Court could not issue one on Marbury's behalf, regardless of the legitimacy of his claim.

Had Marshall's opinion stopped here, the case of Marbury v. Madison would not have been long remembered. But Marshall continued. The confusion inherent in the case, he said, lay in the Judiciary Act of 1789. Passed during the first session of Congress, this act had aimed at fleshing out the very brief terms of Article III of the Constitution. The 1789 act had created a series of lower courts, identified the jurisdictions of the federal and state courts, and provided further details regarding the composition and powers of the Supreme Court. For example, the act specified that the Supreme Court would consist of a Chief Justice and five Associates. All this was just fine, said Marshall, but the act had also stipulated that the Supreme Court had the power to issue writs of mandamus—and in doing so, Congress had exceeded its authority. The Court's original jurisdiction was explicitly defined by the Constitution, said Marshall, and Congress had no authority to enhance or expand what the Constitution had already determined.

The bottom line: the Supreme Court had no authority to issue the sort of writ Marbury and his friends wanted. Marbury lost. Jefferson and Madison won. Or did they?

Jefferson's Pyrrhic Victory

In the most immediate sense, the decision in Marbury v. Madison was a Republican victory. The Federalists' attempt to rush through a series of last-minute appointments had partially failed, and the new president could not be forced to do their bidding. But in a broader sense, the ruling accomplished much of what the Federalists had set out to do. For in denying the legality of a portion of the 1789 act, Marshall strengthened the judiciary by asserting the principle of judicial review—the right and power of the Court to rule on the constitutionality of congressional action. This judicial claim had been debated since 1789. Many argued it was implicit in the language of Article III of the Constitution, which stated that the Court's power extended to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made." Alexander Hamilton had made the case for this interpretation of the Constitution in Federalist #78. But others argued that the language of the Constitution in this area was vague, and that conceding the power of judicial review would place the judiciary above the legislative branch. Nowhere did the Constitution explicitly grant the Supreme Court the power of judicial review. Moreover, they suggested, it was inconsistent with America's democratic form of government to place so much power in the hands of a tiny group of judges that were appointed to office and enjoyed life tenures.

With their ruling in Marbury v. Madison, the Supreme Court thus answered a hotly contested question. By asserting the power of judicial review, the Court explicitly claimed for the first time its authority to rule on the constitutionality of legislative acts. For Republicans like Jefferson, this represented a dangerous precedent. But it was difficult to argue the point too aggressively, for should Jefferson have challenged the Court's authority to strike down this congressional act, he would have implicitly defended the authority of the Court to issue the writ Marbury sought—and Secretary of State Madison may have been forced to deliver the appointment letters.

While Jefferson struggled to find a suitable response to Marbury v. Madison, Marshall sealed the deal with another ruling one week later. On 2 March 1803, the Court ruled that Congress's repeal of the Judiciary Act of 1801 had been constitutional. The repeal had been pushed by Jefferson and the Republican Congress in 1802 in an effort to undo the Federalist measure. Federalists challenged the constitutionality of this repeal by arguing that it threatened the independence of the judicial branch. But Marshall said Congress could act in this case, that it did have legal authority to repeal the 1801 Judiciary Act. In other words, by giving Jefferson and the Republicans another small victory, he secured a much larger victory for the power of the Court. By declaring that the Republican Congress had acted constitutionally, Marshall asserted the authority of the Court to act as the arbiter and interpreter of last resort for the Constitution.

John Marshall died in 1835. During his 34 years as Chief Justice, the Supreme Court would rule on fourteen more cases that questioned the constitutionality of congressional action. The Court would affirm the constitutionality of Congress's legislation in all fourteen. But with each case, the Court set another brick in the wall of judicial authority; with each affirmation of congressional action, the Court established more forcefully its own power of judicial review.

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