Friday, 7 November 2014

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 19th 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: 

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