Anti-Federalist Papers: Brutus II, Part III: Common Ground and Continuity, contd.

It should not be seen as in the least surprising that most of the state constitutions which were drafted in the late 1770s following the declaration of American independence contained some form of a bill of rights on the British model. Inexperienced state-makers though the revolutionaries were, they seemed at least to be of the near-uniform opinion that certain rights were in need of concrete legal protection. Yates said as much in the third paragraph of Brutus II, where he observed that, “At a time when the pulse of liberty beat high, and when an appeal was made to the people to form Constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government.” Of the rights enshrined in these state constitutions, Yates also chose to shine a spotlight on a particular few. Specifically, he pointed to the importance of the right of habeas corpus (in paragraph five), protection from excessive bail and fines and unlawful search and seizure (paragraph six), the right of trial by jury (paragraph eight), and the prohibition against the existence of standing armies during peacetime (paragraph nine).

Taking Yates’ assertion in hand, that Americans were so fond of their rights that the made sure to codify them when they were drafting their state constitutions, I thought it might be worthwhile to examine some of these state charters and see for myself. Rather than examine each of the eleven original state constitutions (remembering of course that Connecticut and Rhode Island maintained their colonial-era charters), however, I've instead chosen to explore those of Virginia, Massachusetts and Pennsylvania only. Among the thirteen original members of the United States, these three represented the greatest concentration of wealth, population, and influence. By comparing and contrasting their respective bills of rights, a great deal can be concluded about how much 18^th-century Americans valued these kinds of legal protections and which specific rights they felt were worth enumerating.

The first state constitution of Virginia was drafted in 1776, and contained a “Declaration of Rights” that encompassed sixteen sections. Among various calls for frequent meetings of the people’s elected representatives and repetitions of the assertion made famous by the Declaration of Independence that “all men are created equal,” the document stated: there would be no enactment of martial law without the consent of the people of their representatives; no levying of excessive bail or fines and no use of cruel and unusual punishment; that the rights of habeas corpus and trial by jury were guaranteed; that no warrants were to be issued without probable cause and due process; that there would be no standing armies in time of peace; no restrictions on the practice of religion or the freedom of speech; and that the right to frequent and fair elections was not to be abridged.

Pennsylvania’s 1776 constitution (the first of five) also contained a bill of rights that was divided into sixteen sections. Like that of Virginia, the document guaranteed freedom of religion, the right to fair and frequent elections, the rights of habeas corpus and trial by jury, and freedom of speech, as well as injunctions against standing armies during peacetime and warrants issued without due process and probable cause. Unlike the framers of Virginia’s constitution, the authors of Pennsylvania’s state charter also enshrined a right to taxation only with the consent of the people or their representatives, freedom of the press, assembly and movement between states and territories, and the right to bear arms.

The Massachusetts Constitution, written in 1779 and still in operation today, contains a thirty-part Declaration of Rights situated directly after its preamble (as perhaps a sign of its importance). While it covers most of the same topics as those similar documents enshrined in the Virginia and Pennsylvania constitutions, it also ventures into certain specific areas left untouched by either. In common with its brethren, the Massachusetts Declaration endorsed freedom of religion, assembly and speech, the right to bear arms and to enjoy fair and frequent elections, the right of habeas corpus and trial by jury, and prohibitions against taxation without consent, warrants being issued without probable cause and due process, the enactment of martial law without consent, or the levying of excessive fines or bail and the use of cruel and unusual punishment. Unique among the three here presented, the Massachusetts declaration also declared ex post facto laws illegal, made provisions for the public funding of religious education, and decreed that all powers not delegated to the United States in Congress Assembled (as the federal government was then known) were reserved to the state itself.

It would seem, between Yates’ claims and my meagre explorations, that there was at least a base set of fundamental rights whose importance most Americans agreed on. These included, by my reckoning, the rights of habeas corpus and trial by jury, the right to bear arms, to frequent elections and taxation only with consent, protection from excessive bail and fines and unlawful search and seizure, freedom of religion and speech, and an absolute prohibition against standing armies during peacetime. Of these, some are clearly Enlightenment derived. Free speech and freedom of conscience, for example, seem very much rooted in the embrace of personal responsibility, the search for truth and the importance placed on open debate that so defined the Enlightenment and the reforms movements it spawned. At the same time, the value that 18^th-century Americans seemed to place on the free exercise of religion was no doubt in part a consequence of how and why many of the colonies in British America were founded. Pennsylvania, Massachusetts, Maryland, Rhode Island, and New York (at least initially) were all characterized by their founders as havens for the religiously persecuted of England. While they did not always remain so, or the degree of religious liberty they afforded was not always consistent, the idea maintained a strong hold on the minds of the colonial political class.

That being said, a significant portion of the rights that members of the Founding Generation seemed to hold dear were arguably of British derivation. A perusal of the 1689 Bill of Rights, which Yates drew explicit attention to in Brutus II, makes this fact quite plain. In its ornate, 17^th-century verbiage the Bill of Rights, among many other resolves and declarations and protests, declared that it was in keeping with the “ancient rights and liberties” of the English people that the crown: had no power to collect taxes without the consent of Parliament (no taxation without representation); to raise armies in times of peace, or restrict the ability of the people to keep and bear arms; to tamper with the frequency of meetings of Parliament or the manner in which elections were held; to enforce excessive bail, fines, or punishment considered cruel or unusual; or to tamper with the right of trial by jury as established by tradition and precedent. In 1689, these were rights that the administrative classes in England agreed were absolutely fundamental to their shared sense of citizenship and socio-political identity. That they should have also been championed by 18^th-century Americans is not so surprising in light of their mainly British origins, though it is at times curious how rabidly anti-British many of the foremost defenders of these rights and liberties sometimes were.

To put forward another example, take the right of habeas corpus. A writ (like the previously discussed mandamus), habeas corpus petitions are utilized by those that have been arrested and detained but not formally charged in order to compel the arresting authority to bring the detainee before a recognized judicial power so that charges may be made known and the validity of their seizure can be established. If, for instance, an individual is arrested without cause and held for an indefinite period, a writ of habeas corpus can be requested in order to establish the unlawful nature of the imprisonment and secure the prisoner’s release. Often referred to as “the Great Writ,” habeas corpus has its origins in English common law and developed into one of the English legal system’s fundamental remedies over the course of many centuries. Statutes dated 1640 and 1679 were the first to formally enshrine the writ in English law, but ample evidence exists of its usage as far back as the 12^th century and the reign of Henry II. As 18^th-century British legal scholar William Blackstone explained in his Commentaries on the Laws of England, habeas corpus writs were always issued in the name of the monarch, who is,  “At all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." As common law was inherited by the English colonies founded in North America in the 17^th and 18^th centuries, so too was the Great Writ. And as Englishmen came to view it as one of the most basic protections afforded to every citizen against unlawful incarceration, so their American brethren came to see it in much the same way.

The point I’m trying to make, mazy and circuitous though it sometimes is, is essentially twofold. On the one hand, 18^th-century Americans were a very unusual people. They were, for their time, unique in their attachment to written constitutions. Their forefathers, the English, felt no such compulsion to codify every aspect of their government. Nor, with a few exceptions, did the ancient Greeks or Romans whom they praised and admired, or even the Dutch, members of the only other republic then in existence. Perhaps this was a consequence of their attachment to Enlightenment rationalism; what better way, after all, to make something plain and clear than by writing it down? Or perhaps it was due to the way their colonial government operated. Unlike Britain, which to this day has no written constitution, the colonies of British North America all functioned via a series of royally-granted charters. Virginia, Pennsylvania, Massachusetts; all were defined by charters that described the size, scope and composition of their governments. Sometimes these charters were revoked or replaced, but there never seemed to be a time when the colonists determined that they were no longer necessary or desirable. And when the Revolution came and a change was required, constitutions took their place, each containing a declaration of the rights that it was felt were most in need of protection.

When later events necessitated the writing of a national constitution, it was with surprise that many readers came to recognize the complete absence of a similar declaration contained within. Robert Yates was certainly one of those readers, and though his insistence on the inclusion of a written declaration of rights in the proposed federal constitution was rooted in a very American sentiment, the rights that he specifically chose to highlight and the historical examples he put forward were quite the contrary. Like so many Americans of the Founding Generation, Yates looked to their shared British past and to the rights and privileges he and his countrymen had inherited from their forefathers for guidance and inspiration. The importance of declaring the rights of the people in opposition to a central authority had been arrived at in Britain long before any of the American Founding Fathers had even been born. Habeas corpus and trial by jury were staples of English common law that had evolved over the course of centuries, and the supremacy of the people’s representatives (embodied in Parliament) over the arbitrary authority of the Crown had been secured via a long series costly wars. In short, Englishmen had wrestled their rights into existence and shed blood to ensure they were recognized and protected.

Members of the American Founding Generation fought for these same rights in the 1770s and 1780s no less valiantly than their predecessors, and for decades afterword continued to look to British history and philosophy for insight and illumination. This, in essence, is the other point I’d like to make, and which Yates perhaps unintentionally called attention to in Brutus II. The American Revolution and the political changes that it wrought were certainly innovative in many extremely important aspects, but the sense the revolutionaries had of natural rights and natural law arguably wasn’t one of them. In many ways, then, the American colonists’ conflict with Parliament was really a continuation of Parliament’s own struggles with the Crown in centuries past. By demanding that a bill of rights be included in the proposed federal constitution, Yates was in a sense helping to re-enact and rejuvenate the debate over natural rights and the limits of authority that had essentially been settled in Britain at the end of the 17^th century by the Glorious Revolution.

Anti-Federalist Papers: Brutus II, Part II: Common Ground and Continuity

            When Brutus (or Robert Yates, as was almost certainly the scribe’s true identity) set out to confront the advocates of the United States Constitution in a series of essays publish in the New York Journal and the Weekly Register in 1787 and 1788, he did so very much in the spirit of opposition. The Massachusetts compromise, which allowed ratification to be linked to eventual amendment, had yet to take place and the object of most Anti-Federalists was at that time to entirely defeat the ratification effort and force either a second constitutional convention or an abandonment of the effort altogether. Yates, therefore, had little reason to be conciliatory or show any admission to the Federalist point of view. Consequently the tone of the majority of his essays is quite scathing (perhaps a factor in why they are so memorable), showing a degree of contempt for the at-times vague language employed by the Constitution and a desire to expose what he perceived as the Framers self-interest and corruption. Nevertheless, Yates and him opponents were a part of the same generation of Americans. They’d been raised and educated in much the same intellectual environment, and in spite of their economic or cultural distinctions (being wealthy or middling, Dutch or English, Puritan or Quaker) most drew from the same basic philosophical well. There are, accordingly, more than a few appeals in Yates’ Brutus II to what would almost certainly have constituted common ground among members of the Revolutionary Generation.

            Among the first of these common references that Yates made was in the second paragraph of Brutus II, and concerned the notion of a social contract and natural rights. Like John Adams or Thomas Jefferson, Yates seemed keen to endorse the basic philosophical concept that all societies are based on an unspoken contract between rulers and ruled. Government is the reaction to perceived needs; people need protection, from each other and from outsiders, and so they form communities that provide certain services in exchange for a voluntary surrender of a portion of each member’s personal sovereignty. “The common good, therefore,” Yates wrote, “is the end of civil government, and common consent, the foundation on which it is established.” This is a classic example of social contract theory, and a concept fundamental to contemporary Western European philosophy. Though I know I’ve discussed this very concept in a previous post, some time has passed since then. For that reason, I’d like to take a moment to delve into a somewhat expanded refresher on the topic of the social contract.

            Natural law, natural rights and the social contract have been topics of discussion for centuries, perhaps millennium, among the foremost minds of their respective generations. From Ancient Greece and India, to Republican Rome and Renaissance Italy; they were hardly new ideas by the time of Yates and the Anti-Federalists. That being said, social contract theory as it was understood by the Revolutionary Generation in America was very much a product of the 17^th and 18^th centuries. The thinkers that would likely have resonated for them the most were Hugo Grotius, Thomas Hobbes and John Locke. Grotius (1583-1645) was a Dutch jurist, philosopher and statesman who theorised that every individual possessed certain rights that were not granted to them by monarchs or political institutions but were inherent to their existence as human beings. These rights were part of a moral framework that was not based on a specific religious doctrine, but rather stemmed from a sense of social acceptability that was born out of consensus. People, Grotius argued, were the prime sovereign actors in society and their actions were constrained by what they and their neighbours agreed was suitable behaviour. Hobbes (1588-1679), English philosopher and polymath, expanded on these ideas in the 1650s and formulated a more structured social framework than Grotius had imagined in the 1620s. While Hobbes was willing to endorse the notion of natural rights and was the first to describe the political arrangement between the governed and their governors as a “social contract,” his description of the concept was quite rigid. While Hobbes believed that individuals did cede some of their rights when they recognised the authority of law and government, he did not believe that these rights remained with the individual. Living within a society, he asserted, was tantamount to endorsing the authority that made that society possible; the only way to completely recapture ones rights would be to exit the social contract completely by living outside society in a state of complete anarchy.

            Locke (1632-1704), the great English republican luminary, was the social contract theorist that most educated American in the late-18^th century would have been familiar with and sympathetic towards. It was Locke that described the more flexible social contract that men like Jefferson fully endorsed, and that recognised rights and responsibilities on behalf of both the ruled and the ruler. He believed that the purpose of the state was to act as a neutral judge between individuals and communities, and to protect the life, liberty and property of those within its borders. A government that violated these terms was guilty of breaking the social contract, and thus offered itself up to be overthrown and replaced. Lockean social contract theory was very much at the heart of the rights-based ideology expressed by the American Founding Fathers and was prominently featured in the Declaration of Independence. Locke’s was not, however, the most recent articulation of the concept that the Founders would have had access to. Swiss thinker Jean-Jacques Rousseau (1712-1778) had developed his own formulation of social contract theory in his 1762 treatise, the aptly titled Social Contract. While not as widely known and read in America as Locke, perhaps because he was both radical and French, Rousseau was still highly influential among a certain (particularly well-read) percentage of the Revolutionary Generation. His argument was somewhat more abstract that any of his predecessors, and regarded the social body as almost an entity unto itself. Law and government, he wrote, were the product of social consensus and functioned best when individuals surrendered their wants and desires to the greater good. Representative government was, to Rousseau, a step in the right direction, but still created a barrier between people and their government and would need to be eventually transcended. To most of the Founders, who as they matured had been inundated by British rights culture, this self-abnegation was a bridge too far. Locke was their yardstick, and it was in a Lockean mode that Yates set out the beginnings of his argument in Brutus II.

            Though the Anti-Federalist Papers were certainly an instrument of opposition, in this case to the proposed Federal Constitution, they were also, like the Federalist Papers, a tool of persuasion. Yates and his fellow Anti-Federal authors wrote for an audience whose minds they were intent on swaying to their cause. Because of the way the Constitution had to be ratified by specially-formed conventions prior to its adoption this was far from an ineffective tactic. And in Brutus II Yates demonstrated one of the simplest ways he appealed to the reason of his readers, by establishing a sense of agreement and consensus between them and him. The social contract was a commonly understood concept among the class of men who were in attendance at the state ratifying conventions. If Yates could show how aligned the opinions of his audience already were with his own, convincing them to overcome the remaining differences was hopefully made all the simpler.

            It was doubtless in this mode that Yates also argued for the inclusion of a bill of rights in the federal constitution by citing past examples taken from both the British and American contexts. This was, in fact, the main object of Brutus II. Yates, among many others, felt the Constitution’s lack of a clearly defined series of legal protections for individual rights was highly suspect. For something that had formerly been highly revered in America (as the idea of a bill of rights certainly was), such a conspicuous absence struck many of the document’s critics as a naked attempt by those that stood to wield the powers granted to the new government to erase any legal roadblocks to their eventually assuming tyrannical authority. As the Anti-Federalists and Yates in particular were quick to point out, there existed in the 1780s much precedent to be found in favour of the inclusion of a bill of rights, or something like it. English legal history furnished two influential examples, the Magna Carta and the 1689 Bill of Rights. The former was drafted by a collection of rebellious barons in 1215 and forced on a reluctant King John I in exchange for allowing him to maintain his throne. Among other things, most having to do with now-obscure feudal privileges, the Magna Carta guaranteed certain rights to free-men (people not in service to a feudal lord) and the church, ensured standard practises in trial matters, and restricted the levying of fines so as not to endanger a person’s livelihood.

In spite of the fact that it remained in force until well into the 19^th century, however, the significance of the Magna Carta is largely symbolic. Indeed, the charter that was forced on John I in 1215 was almost immediately annulled by the crown; subsequent versions were issued by later monarchs in an attempt to placate the nobility, though these later Magna Cartas no longer contained the provisions that represented a direct challenge to the power of the monarchy. For example, the earliest drafts of the document included a provision that would have allowed the creation of a council of nobles who could meet in order to review the monarch’s behaviour. If it was found that the king/queen was in violation of the rights granted by the charter, the council could authorise the seizure of crown property. This clause was highly objectionable to John I and his successors, and subsequent versions of the Magna Carta (most notably the 1297 draft that was submitted to and approved by parliament) omitted it entirely. Nevertheless, the idea of the Magna Carta, that even monarchs were not above the rule of law and could be bound by their subjects to respect certain rights, proved highly influential both in Britain and in America. Among other things, it came to be regarded as the cornerstone of what’s known as the unwritten British Constitution, and led to the emergence of Parliament as a body that represented the interests of the kingdom apart from the crown and wielded significant legal authority on its own.

Over the centuries that followed the distinct legal authority and identity of Parliament grew and evolved, and the British tolerance for unchecked monarchical power waned. In 1689, the overthrow of James II and the installation of his daughter Mary and son-in-law William as joint monarchs witnessed yet another evolution of the British Constitution in the direction of codifying the rights of the people and the restrictions placed on the crown. The subsequent Bill of Rights was, as previously discussed, the culmination of nearly fifty years of conflict between Parliament and the monarchy. As a piece of legislation, it enshrined a variety of individual protections into British law; among them were guarantees of the freedom to bear arms, freedom of speech, freedom from cruel and unusual punishment, and prohibitions against royal interference in function of the law. Symbolically, its significance was perhaps more far-reaching. For Englishmen in the late-17^th century the Bill of Rights confirmed what they already felt in their hearts; that they were among the freest people in the world and the most conscious of their rights. Over the course of the 1600s they had faced down the spectre of absolute monarchy and slain it, and the Bill of Rights was the great symbol of their victory. Americans, who in the main were of British heritage, felt this sense of pride no less than their brothers across the Atlantic. Among the Founding Generation, the Bill of Rights was one of the most highly regarded and widely cited examples of the British freedoms the revolutionaries felt had been taken from them and which they hoped to reclaim.

            By pointing to both the Magna Carta and the 1689 Bill of Rights as objects of inspiration Yates was affirming his and his countrymen’s legal heritage, harkening back to the founding of the United States (as a revolt over the violation of established rights) and once more attempting to establish a common ground between himself and his readers.

Anti-Federalist Papers: Brutus II, Part I: Context

            Having thus far devoted quite a bit of ink to examining and commenting on some of the many essays that make up the Federalist Papers, it occurred to me that it would be only fitting and proper to also explore the other side of the 1787 ratification debate. By this I mean the Anti-Federalist Papers, a collection of essays written by opponents of the proposed Constitution who took their case to the public via newspapers in an attempt to counter the writings of Alexander Hamilton, James Madison and John Jay. Unlike the effort led by Hamilton, which was organized and cooperative, the Anti-Federalists did not work in concert or necessarily see themselves as representing a united front. To that end, some made use of pseudonyms (like Brutus, Plebian, Federal Farmer and Sydney) while others published under their own names (like Patrick Henry or Melancton Smith), and attempts at producing collections of their writings have varied significantly in size because there is no mutually agreed-upon list of who is actually considered an Anti-Federalist. Regardless, there are under the broad Anti-Federalist umbrella various series of essays that cover a wide range of topics to great effect. Those written under the name Brutus are among the best regarded, and compose together sixteen parts. That which will be examined here is the second in the series, and concerns itself with the necessity of a bill of rights.

            As ever, I’d like to take a moment before diving into the text itself to establish a few points of context; in this case mainly having to do with the nature of Anti-Federalism and the identity of Brutus himself.

            As already mentioned the Anti-Federalists were a diverse group, almost to the point that referring to them as a group would seem misleading. They couldn’t be easily defined geographically or economically; some were men of wealth and establishment while others were of decidedly middling status, and they came from states across the Union. The root of their opposition to the Constitution was similarly varied: some believed that the proposed federal government would inevitably threaten the liberties and prestige of the various states; some argued that the creation of a centralized executive branch would lead to a rebirth of the tyranny that the recent Revolution had attempted to cast off; some felt, as individuals, that their fundamental rights were at risk; and some believed that the Articles of Confederation were an adequate means of governance, or that the proposed constitution was simply too strong to be trusted. Within this rather broad spectrum there were moderates and extremists, from those that believed the Constitution was simply in need of amendment before it was ratified to those that believed it represented the greatest threat to American liberty since the passage of the Intolerable Acts in the 1770s. As the ratification debate got underway and as the Federalist Papers began their print run the Anti-Federalists made themselves heard in kind, and set about dissecting both the Constitution itself and the arguments presented Hamilton and his co-authors.

            It would be difficult to say, beyond a shadow of a doubt, how effective the efforts of the Anti-Federalists really were. Obviously the Constitution was ultimately ratified, thereby completely dashing the hopes of a decent portion of their number. More to the point, I should say, it was ratified without any alterations or amendments. This did not remain the case for very long, however, and therein lays perhaps the greatest legacy of the Anti-Federalist movement. Amendments to the Constitution were considered by many to be absolutely essential, even among those that generally favored its adoption. Where disagreement most often took root concerned how far the amendment process should go, and whether it should pre-date ratification or post-date it. Initially, most who favored the inclusion of some kind of bill of rights argued that its inclusion must come before ratification. This was perhaps in hope that the issue would not be swept under the rug once the Constitution was formally established, but rather be made an absolute pre-condition. Though this position was overcome by pro-ratification elements in some states, in Massachusetts it proved almost completely intractable. After protracted negotiation, and at least one instance of physical violence, an agreement was reached whereby approval of the Constitution came only with the provision that a bill of rights would be among the first amendments recommended to the newly minted Congress. The “amendment-before-ratification” supporters had become “amendment-after-ratification” advocates, likely out of fear of being left out of the new government if it was eventually adopted, and similar transformations followed suit in New Hampshire, Virginia and New York. Still, resistance proved so strong in Rhode Island and North Carolina that neither state endorsed ratification until after the Constitution was adopted, elections held, the President and Congress inaugurated and amendments approved (North Carolina joined the Union in 1789, Rhode Island in 1790).    

                      

While there has been a degree of speculation over the centuries as to the identity of Brutus, most authorities on the matter now agree that one Robert Yates was almost certainly the author of the sixteen essays published under the name. This is a conclusion to which I agree, and on that note I’d like to take a moment for a brief overview of Yates’ life and career up to the late 1780s. Born in Schenectady, New York in 1738, Yates was the son of a merchant who initially pursued a career in surveying before taking up the law in the 1750s. He did not appear to have attended any of the colleges then operating in the colonies (such as the College of New Jersey, Kings College in New York, or Virginia’s College of William & Mary), but studied law under future Governor of New Jersey William Livingston and was licensed in 1760. In subsequent years he supplemented his income by continuing to operate as a surveyor and cartographer, and in the 1770s was elected as an alderman for the city of Albany. Having been involved in the organized resistance to the Stamp Act in the 1760s, Yates also took an active part in Revolutionary politics as they emerged in New York after 1775. A member of the Albany Committee of Correspondence (a kind of alternate government to the royally approved colonial administration), and the Provincial Congress (the colonial/state legislature) he helped coordinate New York’s war effort, and in 1776/77 served in the convention that drafted the state’s first constitution. In 1777 he was appointed to the state Supreme Court, and during his tenure there became an ally of longstanding New York Governor George Clinton and his anti-federalist faction. In 1787 he was appointed, along with John Lansing Jr. and Alexander Hamilton, to represent New York at the Philadelphia Convention. It was his belief that the purpose of the convention was to amend the Articles of Confederation so as to make them more effective; when it became clear to him that the majority of delegate were in favor of tossing the Articles altogether and drafting an entirely new governing charter he chose, along with Lansing, to depart. When the finished Constitution was subsequently presented to the states for ratification Yates was selected to attend the resulting convention in Poughkeepsie as a supporter of the anti-federalist position.     

            As to the name “Anti-Federalist,” it was certainly not of their choosing. During the Revolution it had become common for a person who supported the union of the states under the Articles of the Confederation to refer to themselves and those of like mind as federalists. At the conclusion of hostilities in 1783, however, critics of the Articles and the ineffective government they created appropriated the term to signify those in favor of measures that would enhance the power and efficacy of the federal government. These measures included the drafting of an entirely new constitution, opponents of which were summarily dubbed “Anti-Federalists.” Meant to imply a lack of patriotism and/or opposition to Congress, the label was roundly rejected by many state and local groups who objected to the Constitution, and who attempted to recapture the federalist moniker for themselves. They were ultimately unsuccessful, despite the efforts of authors like “A Federal Farmer” and organizations like the Federal Republican Committee, and the terms Anti-Federalism and Anti-Federalist have since completely solidified as referring to the late 18^th-century unorganized opposition to the United States Constitution.

Marbury v. Madison, Part III: Partisanship & Power

While it would be pointless to deny the legal implications of Marbury v. Madison, the fact that it arose out of a complicated sequence of administrative manoeuvres on the part of the President Adams, his Federalist allies and their Republican foes belies its intense political significance and informed a great deal of how Marshall approached the case and how his decision was interpreted. This is not to say that the facts of the case, the how and why of Marbury, his petition and the responsibility of Secretary Madison to perform his duties, are unimportant. Nor is the most obvious result, the cementing of judicial review as the exclusive purview of the Supreme Court. But it ought to be remembered that the events of Marbury v. Madison took place amidst perhaps the most bitterly partisan era in pre-Civil War American history. Despite the conceit that judges are not to profess any overt party loyalty Marshall was a long-standing Federalist, as were all his fellow justices on the Court. He’d been appointed by a Federalist president with whom he’d developed a close working relationship, and confirmed by a Federalist-dominated lame-duck Congress. The principles in the case before him were another Federalist and the Republican Secretary of State whose basic political principle, it was no secret, he fundamentally disagreed with. While I would not dream of calling into question the ethical standing of John Marshall or his ability to make an impartial decision, his actions in Marbury v. Madison could not help but be political. Of this, I believe he was aware.

But before I delve too deeply into the partisan meaning of Marbury v. Madison, I think a review of its more obvious significance is in order. As previously outlined, Chief Justice Marshall took it as his task to answer at least two basic questions concerning Marbury’s petition. The first had to do with whether a mandamus directed at the head of the State Department was called for by the nature of the supposed injury visited on the Maryland Federalist. This Marshall answered in the affirmative, making use of precedents taken from both British and American jurisprudence. The second, and perhaps more important question, revolved around the apparent conflict between the Judiciary Act of 1789, which granted the Supreme Court original jurisdiction over mandamus petitions, and the Constitution, which did not. Marshall believed this inquiry was, “Deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest.” The best way to answer it, he argued, was to, “recognize certain principles” that were fundamental to basic underpinnings of American republicanism.

The government of the United States, the Chief Justice believed, was essentially a limited one. The powers of the federal legislature were strictly defined and constrained, and so that those constraints were not mistaken or forgotten they were recorded in a formal constitution. Congress was of course at liberty to write whatever laws that expediency and the demands of the people made necessary, but it could not alter (without the use of an amendment) the basic form and character of the Constitution itself. What would have been the purpose of a written charter at all, Marshall asked, if the body meant to be controlled could at any time surpass the limits formally set for it? Either the Constitution was the final word or it was nothing, he concluded. And if it was the latter, why did the Framers bother to write it at all? Choosing not to believe that those men who gathered in Philadelphia in 1787 did so in vain, Marshall asserted that, “All those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.”

And as to the duty of the courts to investigate and determine the constitutionality of such laws supposed to be “repugnant,” Marshall further expounded that, “It is emphatically the province of the Judicial Department to say what the law is.” This was the most basic function of the courts, whether via original or appellate jurisdiction. If a case is brought before the courts, and it is plain that two laws are in conflict, “the Courts must decide on the operation of each.” If one of the laws in question is that of the Constitution itself the courts must be free to explore that document. And if the Constitution truly is the paramount law of the land then there could be no other conclusion than to declare the conflicting statute null and void. In putting forward this argument Marshall made sure not to make it seem as though he was merely defending the prerogatives of the courts or their officials. That federal judges in the United States were appointed rather than elected and could serve for life (during good behavior) had been a sticking point for many Anti-Federalists during the debates surrounding the ratification of the Constitution, and continued to be for many Republicans in the early 19^th century. Rather than speak in defense of their constitutionally granted, but still controversial, authority, the Chief Justice instead attempted to portray the Courts’ ability to engage in judicial review as inexplicably tied to the concept of constitutionalism. Described by Marshall as, “the greatest improvement on political institutions,” written constitutions had come to be viewed in America, “with so much reverence,” and it would not have done to allow an assembly of lawmakers to alter or undue the nation’s fundamental charter at their own discretion. The principle having been established, Marshall thereafter concluded that because the Supreme Court was the legal authority of last resort in the United States, above which there can be no appeal, it must inevitably fall to that Court to hold the final say on all questions touching on the constitutionality of ordinary laws.

In all this talk of legal prerogatives and constitutions it can be easy to lose track of poor Marbury and his urgent petition. In the end, Marshall found that Madison was indeed in violation of his duties by refusing to deliver the commissions, and though the plaintiff was entitled to a mandamus as a means of compelling the Secretary it fell outside of the jurisdiction of the Supreme Court to grant it. This was because the piece of legislation that granted original jurisdiction over writs of mandamus to the Court, the Judiciary Act of 1789, was in part unconstitutional because it contradicted Article III of the Constitution. Marbury’s efforts were thus defeated, and he subsequently did not assume his office as justice of the peace for the District of Columbia. Though seemingly a victory for the Republicans, for they’d succeeded in their scheme to withhold offices from Federalist appointees, the decision in fact aroused a great deal of ire from the Jefferson administration. There were several reasons for this.

As mentioned in my previous posts about Jefferson’s Kentucky Resolutions, his preference in 1798 was that the states would be ultimately responsible for determining the constitutionality of laws as equal members of the federal compact. Because Jefferson reasoned that the central government derived its authority from that states, who voluntarily gave up a portion of their sovereignty, it was his belief that conflicts between federal and state law should always be decided in favor of the latter. If it was agreed that the states had effectively created the Union by ratifying the Constitution, how could they then be totally beholden to it? Could they not take their sovereignty back? These were complex questions, but Jefferson believed in 1798 that he knew the answers. When Marshall instead gave the final say to the federal judiciary he effectively weakened the ability of the states to continue to operate as distinct legal and political entities and rendered them largely subordinate in matters of law to the federal government. The Jefferson of 1798 would no doubt have been incensed by this turn of events as was the Jefferson of 1803, though for different reasons.

Indeed, by 1803 Jefferson was the President of the United States. Having ushered in what he regarded as the “Second Revolution” with his victory at the polls in 1800, Jefferson and his Republican allies in the House and Senate set about transforming the Federalist-crafted government they’d inherited. Eager to erase the fingerprints of Alexander Hamilton and his conception of a European-style financial/military state, Jefferson drastically cut down on federal expenditures, downsized major departments, cut taxes and eliminated all but a handful of overseas embassies. It was his hope that Federalism would eventually fade away, remembered only as a brief aberration in the history of American liberty, and that Republicanism would grow to be embraced by all. Consequently, Jefferson no longer saw the need for a strong, state-based anti-federal resistance as he’d called for in 1798. Without a stubborn, authoritarian federal government to oppose, he was more willing to see the authority of constitutional review vested in the office of president. This might seem shamelessly opportunistic of Jefferson, to have changed his mind at a time when it suited him, but there was a more substantial logic at work. If the federal government was no longer the threat that the Republicans painted it as in the 1790s, then the presidency was in many ways the ideal office to vest with final discretion over constitutional questions. Unlike the federal judiciary, who were all appointed, or Congress, whose members were elected to represent different districts of different sizes and sometimes by different means, the president was the only officer of the federal government that had a truly national mandate. Voters from every state took part in electing a president, and however slim his margin of victory it could always be said that more people in American from across a wider spectrum voted for the winner of the contest than for any other elected official.

Federal judges, Jefferson lamented, enjoyed no such democratic approval. They were awarded their positions by Presidents and Senators and could keep them for as long as their stayed out of trouble. They were thus accountable to virtually no one, and though they could be removed via impeachment they never had to submit to regular elections. Given the added responsibility of constitutional review Jefferson argued that they would mold the law with impunity to mean whatever they pleased, and effectively stymie the efforts of the democratically elected servants of the American people. Though he doubtless would have disagreed with the terms Jefferson used, Marshall was quite aware of the President’s criticism and to an extent perhaps even agreed. Federal judges were highly independent, as the Constitution outlined and as later events would reinforce. They acted on their own discretion, were theoretically impervious to ordinary corruption, and their longevity in office ensured that they could not be easily replaced during moments of partisan hysteria. For these reasons, and because they had little choice at the time, the judiciary made for the perfect stronghold from which the defeated Federalists could continue to exert influence over the tenor and direction of the federal government after 1800. Marshall was complicit in this scheme, partially because he was as partisan as any other public servant of his day, but also because he truly believed that his country was in need of what the Federalists had to offer. And John Marshall was a Federalist; he believed in a strong central government, banking, taxes, and property rights, and that a firm hand was sometimes required to keep the people’s emotions from infecting their political institutions.

Because Marshall saw judicial review as the ultimate prize, as the best way of preserving the values that he held most essential to republican government in American, he was willing to award the Republicans with an apparent victory in Marbury v. Madison. He reinforced the Jefferson administration’s attempt to rob Federalist nominees of their offices, and even lessened the power of the Supreme Court by claiming that its Congress-granted right to hear mandamus petitions was unconstitutional. But of course that wasn't the point. Its basic circumstances aside, Marbury v. Madison was a political decision. It represented the opening of another front in the war between Federalism and Republicanism, and the Chief Justice was as aware of this as anyone could be.

Few as they may be, several paragraphs of the Marbury v. Madison decision seem to attest to this awareness and show a degree of political sensitivity that is otherwise absent from the dry legalese that predominates. Specifically, I refer to the section in which Marshall discusses whether or not Madison was the proper official to be targeted with a mandamus. In it, the Chief Justice drew a careful distinction between the role of the Secretary of State as a minister and confidant to the president and his function as the head of a government department. As advisers to the chief executive, Marshall admitted, all cabinet secretaries should enjoy a certain degree of protection from outside interference. Their conferences with the president are strictly confidential, and it would have thus been presumptuous and improper for even the Supreme Court to claim a right of access. However, as the heads of government departments cabinet secretaries exercise a number of duties which do not require the authority or confidence of the president and thus fall outside the purview of executive privilege. In this capacity, Marshall argued, the federal courts could indeed exercise investigative or disciplinary authority. While this argument might have been essential to prove the validity of Marbury’s petition and Madison’s culpability, the fact that Marshall ultimately ruled against Marbury (more or less) indicates that he had perhaps another purpose in mind.

This purpose was, I feel, to send both a warning and an assurance to the Jefferson administration. If the Supreme Court was to become a bastion of Federalism in post-1800 America, it would be necessary to ensure that its jurisdiction was sufficiently defined in order to allow the Court to affect real change. At the same time, it was essential to also limit the power and authority that the Court claimed for itself so as not to invite accusations of abuse or overreach. It was admittedly something of a tightrope act, but a necessary one. As secure as the Court’s independence was, constitutionally speaking, justices could still be removed via impeachment if they stepped too far over the line. They served, after all, during “good behaviour,” and that is such a vague phrase. Marshall, I’d warrant, wished to make it clear to President Jefferson and his Republican allies that while he was prepared to respect certain boundaries, his court would not shrink from taking on an active role in law and politics.

His call for judicial discretion in certain matters was, I would say, appropriately adamant. Of claims that the Court intended to interfere in cabinet affairs, Marshall wrote:

“It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.”

By the same token his warning seems rather blunt:

“If one of the heads of departments commits as illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgement of the law.”

Though again I would not presume to cast doubts as to Marshall’s judicial ethics, it would be exceedingly difficult to imagine that his decision in Marbury v. Madison wasn't politically motivated in some way. He had, it should be remembered, been Secretary of State during the tail end of John Adams’ term as president and had helped deliver at least a portion of the commissions awarded to some of Marbury’s contemporaries. He was also, it should be remembered, a dedicated Federalist who believed in strong central authority and nurtured a long-standing enmity with his fellow Virginian, Thomas Jefferson. He had been chosen in 1801 in a fit of desperation to head up Federalism’s last ditch effort to maintain its relevance. He was a political appointee, and however much his cases may have concerned themselves with the finer points of this statute, that writ, or those precedents, they couldn't help but be political as well.

The significance of Marbury v. Madison, then, is twofold. First and most obvious is the way it solidified judicial review as a cornerstone of American constitutional law and raised the profile and influence of the federal judiciary. Before 1803 it was still only a matter of theory whether or not the courts possessed the right to review legislation and strike down statutes they found unconstitutional. Indeed, some prominent American statesmen went so far as to suggest that the privilege should be open to every state in the Union. Before 1803 the Supreme Court was also considered by many jurists to be a distinctly inglorious posting, to the point that the first Chief Justice voluntarily resigned and declined to be reinstated when the offer was made again a few years later. Marshall forever changed the balance of power and responsibility within the federal government, the effects of which have been incalculable. At the same time, below the surface, below the dry facts and recitations of precedent and principle, Marbury v. Madison is a testament to the lengths to which partisan conflict in the early years of the American republic was ultimately extended. This becomes abundantly clear if one only follows the chain of events that led to Marshall hearing the case.

The Federalists, defeated in the elections of 1800, sought to make use of the federal judiciary as a stronghold against the supposed radicalism of the victorious Republicans. To this end, outgoing President Adams had the lame-duck Congress vote on a series of bills that greatly increased the number of vacancies on the courts and proceeded to fill them all, along with the empty chair of the Chief Justice, with loyal Federalists. When they finally take office, the Republican administration of Thomas Jefferson attempted to invalidate a number of these appointments by refusing to deliver the appropriate commissions. One of the spurned nominees, a fellow by the name of Marbury, took issue and resolved to claim his rightful office via a Supreme Court-issued writ of mandamus. Rather than simply ruling in Marbury’s favour, Chief Justice Marshall took the opportunity to greatly increase the power of the courts and establish a strong counterweight to rising tide of Jeffersonian Republicanism. Marbury’s hopes were dashed, but Federalism ultimately triumphed. If Adams had not felt threatened by Jefferson’s victory in 1800, he perhaps would not have bothered trying to pack the court with Federalist allies. He also might not have appointed Marshall, instead taking the time to find someone less convenient but more qualified. If neither of these circumstances had come to pass, however, Marbury v. Madison would not have happened and American political and legal history would have played out in a drastically different form then that with which we are familiar.

It is, of course, entirely possible that my thoughts on the matter are entirely off-base. By all means, see for yourself: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=5&invol=137