As I mentioned in my previous examination of the Kentucky Resolutions of 1798, judicial review was concept that did not fully materialize in the United States until over a decade after the Constitution itself came into effect. And while it was Jefferson who suggested in 1798 that all members of the federal union (i.e. the states) had the right and responsibility to judge for themselves the constitutionality of federal statutes, the legal decision that enshrined judicial review in the common law of the United States was actually written in opposition to Jefferson’s administration as President in 1803. The man who wrote the majority opinion for that decision, Chief Justice of the Supreme Court John Marshall, is perhaps one of the most important jurists in American history. Though he did not participate in either the Continental Congress (in any of its sittings between 1774 and 1789) or the Philadelphia Convention of 1787, he more than deserves inclusion among the pantheon of America’s Founding Fathers for the way he almost singlehandedly shaped US jurisprudence for generations to follow. Even barring his over thirty-year tenure as Chief Justice, his decision in the 1803 case Marbury v. Madison from which he derived the accepted formulation of judicial review stands alone as perhaps the single most influential legal decision in American history. And yet, for all that, he remains a relatively obscure figure outside of legal and historical circles. For that reason, and because I’d like to follow up on some of the ideas I explored connected with the Kentucky Resolutions, this next series of posts will attempt to examine some of the noteworthy aspects of the Marbury v. Madison decision as well as the life and career of its author.
First and foremost I think it bears discussing who John Marshall was. Born in Germantown in 1755 on the frontier of colonial Virginia, Marshall was not raised in the lap of luxury like so many of his Southern contemporaries. His father Thomas worked as a surveyor and land agent for Lord Fairfax much as George Washington had in his younger days, and though he was able to support his growing family quite ably he would not have been considered a member of the colony’s landed gentry. Accordingly John, oldest of fifteen children, spent the majority of his youth living in relatively modest surroundings, inhabiting a series of log cabins and frame houses of his father’s construction. His education was similarly straightforward. Though for a year at age fourteen he attended an academy in nearby Washington parish, Marshall was mainly homeschooled by either his father Thomas or whatever tutor he had managed to arrange for his children. Fortunately for John and his siblings their father had cultivated an impressive library and successfully requested access for his children to the collections of his employer Lord Fairfax. As a result by age twelve Marshall had become familiar with a number of English philosophers and writers, from Alexander Pope and John Milton to William Shakespeare, as well as works from the Classical canon, like those the Roman historian Livy and poet Horace. Because his father was intent on him pursuing a career in law, Marshall was also encouraged to familiarize himself with the family’s copy of William Blackstone’s Commentaries on the Laws of England, for over a century considered the essential primer for a legal education in the British Empire. Blackstone was perhaps the foremost English jurist of the 18th century, and his Commentaries attempted to rationalize and catalogue the at-times terrifying complexity of England’s heritage of common law in a way that was explicable to the uninitiated reader.
At the outbreak of the Revolutionary War in 1775 Marshall first joined the Culpeper County Minutemen, a local militia regiment, and later served as a Captain in the Eleventh Virginia Continental Regiment between 1776 and 1780. Like many young officers Marshall became well acquainted with Commander-in-Chief of the Continental Army and fellow Virginian George Washington, and served out the brutal winter of 1777-78 under his command at Valley Forge, Pennsylvania. Near the conclusion of hostilities in 1780 he resigned his commission, read the law under famous Virginia lawyer George Wythe (who had previously instructed Thomas Jefferson), passed the bar, and established a private practice in Fauquier County. Shortly thereafter, in 1782, he entered politics by running for and winning a seat in the Virginia House of Delegates. There he served until 1789, during which time he also participated in the Virginia Convention of 1788, tasked with ratifying the proposed constitution that had been drafted in Philadelphia the previous year. An early supporter of strong, centralized government, Marshall was among the most prominent advocates for ratification (along with future President James Madison and future Attorney General Edmund Randolph), and his efforts no doubt contributed at least in part to his faction’s narrow victory (89-79).
In spite of obviously favoring the creation of a robust federal government in the United States, Marshall showed little initial interest in serving as one of its officers. After declining President Washington’s offers in 1795 for Attorney General and 1796 for Minister to France he finally deigned to serve as part of a three-man diplomatic mission to the government of Revolutionary France in 1797 at the behest of President John Adams. However, upon their arrival he and his compatriots in this effort, Elbridge Gerry and Charles Cotesworth Pinckney, were subsequently refused cooperation with their French opposite numbers unless the United States agreed to pay a series of exorbitant bribes. The resultant XYZ Affair (as it became known, for the redacted names of the officials the bribes were intended for) seriously inflamed anti-French sentiment in America and greatly enhanced Marshall’s reputation upon returning to his home country as one who had directly opposed French corruption. Subsequently he turned down yet another federal appointment in 1798, this time for Associate Justice of the Supreme Court, and was elected to a term in the House as the representative for Virginia’s 13th District. His term in office was cut short less than a year later when he finally accepted President Adams’ entreaty that he become Secretary of State. There he served out the remainder of the President’s term in office, occupied mainly with directing the negotiations of the Convention of 1800. This treaty settled a number of issues that had arisen between the United States and the French Republic, and nearly brought the two nations to all-out war. For this, Adams developed a high opinion of Marshall’s abilities, and asked him to accept one last appointment in service of his country and the ideological vision that both men shared.
This was, of course, the office of Chief Justice of the Supreme Court. In point of fact, Marshall was chosen by Adams not only because the President had a great deal of confidence in the capabilities and character of his Secretary of State, but also because Marshall was literally in the same room as Adams when he was writing out the nomination. This was an important factor at the time because the Federalist faction, to which Adams and Marshall both belonged, had been catastrophically defeated in the election of 1800. Having lost control of the presidency and both houses of Congress, Adams was intent on maintaining Federalist control of at least the judicial branch and asked the lame duck House (most of whose members had just lost their jobs) to pass a series of acts that dramatically altered the state of the federal judiciary in an attempt to deny advantage to incoming-President Jefferson. His selection of Marshall was expedient because of the limited time left in Adams’ term and Marshall’s ability to accept the job on the spot, and came after the president’s first choice, John Jay, turned the offer down. To Adams’ great pleasure (indeed he once remarked that "My gift of John Marshall to the people of the United States was the proudest act of my life"), Marshall proved to be an extremely effective jurist and a persistent thorn in the side of Jefferson and his Republican successors. Over the course of his thirty-five year tenure as Chief Justice he effectively redefined the role of the Supreme Court, raising it from a relatively weak and ineffective appendage to a coequal branch of government on par in power and dignity with either the Presidency or Congress.
In order to better grasp the significance of these efforts, I think it prudent to also briefly examine the history and role of the Supreme Court in the fifteen years of its existence before Marshall came along. Of specific interest in this context is the remarkable difference between the Court as described in the Federalist Papers by Alexander Hamilton and that which actually came into being. Federalist No. 78 actually claimed judicial review as the exclusive province of the Supreme Court as early as 1788, arguing that, among other things, “Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” The Congress itself, Hamilton asserted, could not be depended on to judge of its own legislative efforts because its members were directly invested in the outcome. The courts, whose members were appointed and therefore not beholden to any specific constituency, were consequently the only organ of government capable of acting as a nonpartisan intermediary between the people and their representatives. In spite of this robust endorsement of the special role of the federal judiciary, however, Hamilton was also quick to assure his readers that the courts would by no means be capable of dominating either the executive or legislative branches. As a counter to criticisms that the courts would be too independent and that it would be all too easy for federal judges to interpret laws to their own liking rather than in accordance with the Constitution, Hamilton declared in Federalist No. 78 that no officer of the United States government (from any of the three branches) could engage in unconstitutional behavior without being called to answer for it. To this end he further claimed in Federalist No. 79 that the ability of Congress to impeach and subsequently remove judges for misconduct was guarantee enough that the independent judiciary did not represent a threat to good government. Indeed, it was Hamilton’s assertion that the judicial branch would be the weakest of the three described by the Constitution, having, “neither FORCE nor WILL, but merely judgement.”
While the sole authority of the Supreme Court to conduct judicial review of legislation was neither immediately accepted nor utilized in the first decade or so of its existence, Hamilton’s assertion of its weakness and inability to exert its will proved very much to be the case. Between its first sitting in 1790 and its virtual reinvention under Chief Justice Marshall, the Court enjoyed very little prestige or influence within the federal government. For the first several years it had no permanent home and heard a very small number of cases; of the thirteen that appeared on the Court’s docket most dealt with issues of procedure and had little lasting impact. The only case that could be said to defy this state of affairs, Chisholm v. Georgia (1793), ended in the decision that states did not possess immunity from being sued in court and reinforced the right of the Supreme Court to hear such suits. Unfortunately for the Supreme Court and its reputation this was promptly undone by the passage and ratification of the Eleventh Amendment in 1795 (at the prompting of several nervous state government), that guaranteed every state’s sovereign immunity and inability to be sued without consent. So inglorious a posting was the Court considered that in eleven years it was overseen by three Chief Justices. The first, John Jay, resigned after five years upon being elected Governor of New York; evidently he considered being chief executive of a single state a superior station to being head of an entire branch of the federal government. His replacement, former South Carolina Governor John Rutledge, was a recess appointment (made temporarily by the president in between sessions of Congress) whose vocal opposition to the government-backed Jay Treaty ensured his rejection by the Senate once it reconvened. The third, Oliver Ellsworth, was chosen after President Washington’s first choice declined to serve; he resigned after only four years leading the Court due to poor health.
Considering its rather ignominious start, and his apparent aversion to high federal office, it is indeed curious that John Marshall chose to accept the post of Chief Justice of the Supreme Court when it was offered him in 1800. That rarest of birds - a Virginia Federalist - Marshall had shown little interest in federal politics over the course of his career. Though he had strongly supported the ratification of the Constitution in the 1780s he seemed content to pursue his law practice in relative quiet and leave the actual governing to others. However, when thrust into the position of heading the judicial branch Marshall rose to the occasion and proved himself to be a cunning jurist, a forceful personality, and an extremely effective leader. The anemic Court that he inherited was transformed under his watchful eye into the undisputed equal of either Congress or the Presidency. Marbury v. Madison was where that transformation began.