The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah
words: the Supreme Court shall have the power to declare invalid any act of Congress which, in the opinion of the court, is unconstitutional.
In establishing this principle Marshall was to contribute nothing new to the thought upon the subject. All the arguments on both sides of the question had been made over and over again since the Kentucky and Virginia Resolutions had startled the land, and had been freshly stated in the Judiciary debate in the preceding Congress. Members of the Federalist majority in most of the State Legislatures had expressed, in highly colored partisan rhetoric, every sound reason for the theory that the National Judiciary should be the ultimate interpreter of the Constitution. Both Federalist and Republican newspapers had printed scores of essays for and against that doctrine.
In the Virginia Convention of 1788 Marshall had announced as a fundamental principle that if Congress should pass an unconstitutional law the courts would declare it void,334 and in his reply to the address of the majority of the Virginia Legislature335 he had elaborately, though with much caution and some mistiness, set forth his views.336 Chief Justice Jay and his associates had complained that the Judiciary Act of 1789 was unconstitutional, but they had not had the courage to announce that opinion from the Bench.337 Justices Iredell and Paterson, sitting as circuit judges, had claimed for the National Judiciary the exclusive right to determine the constitutionality of laws. Chief Justice Jay in charging a grand jury, and Associate Justice Wilson in a carefully prepared law lecture, had announced the same conclusion.
Various State judges of the Federalist faith, among them Dana of Massachusetts and Addison of Pennsylvania, had spoken to like effect. At the trial of Callender338 Marshall had heard Chase deliver the opinion that the National Judiciary had the exclusive power to declare acts of Congress unconstitutional.339 Jefferson himself had written Meusnier, the year before the National Constitution was framed, that the Virginia Legislature had passed unconstitutional laws,340 adding: "I have not heard that in the other states they have ever infringed their constitution; … as the judges would consider any law as void which was contrary to the constitution."341
Just as Jefferson, in writing the Declaration of Independence, put on paper not a single new or original idea, but merely set down in clear and compact form what had been said many times before,342 so Marshall, in his opinion in Marbury vs. Madison, did nothing more than restate that which had previously been declared by hundreds of men. Thomas Jefferson and John Marshall as private citizens in Charlottesville and Richmond might have written Declarations and Opinions all their lives, and to-day none but the curious student would know that such men had ever lived. It was the authoritative position which these two great Americans happened to occupy and the compelling emergency for the announcement of the principles they expressed, as well as the soundness of those principles, that have given immortality to their enunciations.
Learned men have made exhaustive research for legal decisions by which Marshall's footsteps may have been guided, or which, at least, would justify his conclusion in Marbury vs. Madison.343 The cases thus discovered are curious and interesting, but it is probable that Marshall had not heard of many of them. At any rate, he does not cite one of them in the course of this opinion, although no case ever was decided in which a judge needed so much the support of judicial precedents. Neither did he know anything whatever of what was said on the subject in the Constitutional Convention, unless by hearsay, for its sessions were secret344 and the Journals were not made public until 1819 – thirty years after the Government was established, and sixteen years after Marbury vs. Madison was decided.345 Nor was Marshall informed of the discussions of the subject in the State Conventions that ratified the Constitution, except of those that took place in the Virginia Convention.346
On the other hand, he surely had read the Judiciary debate in Congress, for he was in the Capital when that controversy took place and the speeches were fully reported in the Washington press. Marshall probably was present in the Senate and the House when the most notable arguments were made.347 More important, however, than written decisions or printed debates in influencing Marshall's mind was The Federalist, which we know he read carefully. In number seventy-eight of that work, Hamilton stated the principle of judicial supremacy which Marshall whole-heartedly adopted in Marbury vs. Madison.
"The interpretation of the laws," wrote Hamilton, "is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, … the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."348
In this passage Hamilton merely stated the general understanding of nearly all the important framers of the Constitution. Beyond question, Marshall considered that principle to have been woven into the very fiber of the Nation's fundamental law.
In executing his carefully determined purpose to have the Supreme Court formally announce the exclusive power of that tribunal as the authority of last resort to interpret the Constitution and determine the validity of laws by the test of that instrument, Marshall faced two practical and baffling difficulties, in addition to those larger and more forbidding ones which we have already considered.
The first of these was the condition of the Supreme Court itself and the low place it held in the public esteem; from the beginning it had not, as a body, impressed the public mind with its wisdom, dignity, or force.349 The second obstacle was technical and immediate. Just how should Marshall declare the Supreme Court to be the ultimate arbiter of conflicts between statutes and the Constitution? What occasion could he find to justify, and seemingly to require, the pronouncement as the judgment of the Supreme Court of that opinion now imperatively demanded, and which he had resolved at all hazards to deliver?
When the Republicans repealed the Federalist Judiciary Act of 1801, Marshall had actually proposed to his associates upon the Supreme Bench that they refuse to sit as circuit judges, and "risk the consequences." By the Constitution, he said, they were Judges of the Supreme Court only; their commissions proved that they were appointed solely to those offices; the section requiring them to sit in inferior courts was unconstitutional. The other members of the Supreme Court, however, had not the courage to adopt the heroic course Marshall recommended. They agreed that his views were sound, but insisted that, because the Ellsworth Judiciary Act had been acquiesced in since the adoption of the Constitution, the validity of that act must now be considered as established.350 So Marshall reluctantly abandoned his bold plan, and in the autumn of 1802 held court at Richmond as circuit judge. To the end of his life, however, he held firmly to the opinion that in so far as the Republican Judiciary Repeal Act of 1802 deprived National judges of their offices and salaries, that legislation was unconstitutional.351
Had the circuit judges, whose offices had just been taken from them, resisted in the courts, Marshall might, and probably would, have seized upon the issue thus presented to declare invalid the act by which the Republicans had overturned the new Federalist Judiciary system. Just this, as we have seen, the Republicans had expected him to do, and therefore had so changed the sessions of the Supreme Court that it could not render any decision for more than a year after the new Federalist courts were abolished.
Certain of the deposed National judges had, indeed, taken steps to bring the "revolutionary" Republican measure
See vol. i, 452, of this work.
The Virginia Resolutions.
Address of the Minority, Jan. 22, 1799,
Jay to Iredell, Sept. 15, 1790, enclosing statement to President Washington,
See
Wharton:
Jefferson to Meusnier, Jan. 24, 1786,
Jefferson to Meusnier, Jan. 24, 1786,
For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaration of Independence in May, 1776, Virginia set forth most of the reasons stated by Jefferson a few weeks later in similar language.
For these cases and references to studies of the question of judicial supremacy over legislation, see Appendix C.
See vol. i, 323, of this work.
See
Elliot's
Until very recently Justices of the Supreme Court often came to the Senate to listen to debates in which they were particularly interested.
John Jay had declined reappointment as Chief Justice because among other things, he was "perfectly convinced" that the National Judiciary was hopelessly weak. (See
Washington offered the place to Patrick Henry, who refused it. (See Henry:
Jefferson considered that the government of New Orleans was "the second office in the United States in importance." (Randal, iii, 202.) For that matter, no National office in Washington, except the Presidency, was prized at this period. Senator Bailey of New York actually resigned his seat in the Senate in order to accept the office of Postmaster at New York City. (
The weakness of the Supreme Court, before Marshall became Chief Justice, is forcibly illustrated by the fact that in designing and building the National Capitol that tribunal was entirely forgotten and no chamber provided for it. (See Hosea Morrill Knowlton in
See vol. iv, chap. ix.