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Introduction and Orientation
This is the first of ten essays describing the political and legal climate of the United States from 1800-1803. I consider these three years to be as significant as any in the history of America, with the possible exception of the first three years of the Civil War or after the Civil War. In this and the next essay I present my reading of the Marbury v Madison (decided February 1803) case. These two essays are followed by several essays describing the run-up or historical background to that seminal case. My third essay gives a detailed chronology of December 1800-March 1801. The fourth looks at three crucial Judiciary Acts (1789, 1793, and 1801), while the fifth introduces the new Circuit Judges appointed under the Judiciary Act of 1801. The sixth and seventh consider in detail the time between the passage of the Judiciary Act of 1801 and its repeal and replacement by the Judiciary Act of 1802. The eighth essay considers provisions of the Judiciary Act of 1802, while the ninth and tenth focus on the Supreme Court Justices' communications to each other about all of this in the Spring of 1802. When I originally wrote these essays in November 2007, they were four mini-essays (you can easily see my format from those days) describing the Marbury and Stuart decisions, which in 2020 become my first two essays. I have edited and, I hope, improved all these essays in 2020.
Understanding Marbury v. Madison, First Mini-Essay
Events in 1801-Early 1803 Determine the Outcome
More ink has been spilled on the interpretation of the seminal case of the US Supreme Court, Marbury v. Madison, 5 US 137 (February 24, 1803), than on probably any other issue in American law. Along with recognizing the centrality of Marbury for developing the doctrine of judicial review (i.e., determining constitutionaltiy of statutes), a rather dominant strand of interpreting that case as well as its companion issued a week later (Stuart v. Laird) stresses the "capitulation" of the Court to the forces of the Jeffersonian "revolution" sweeping over the land at the time. Sometimes the adjectives or nouns describing the Supreme Court's action are provocative: it might be a "collapse," a "retreat," a "craven" collapse, a "cowardly" retreat, or any combination of these or other adjectives or nouns. The purpose of these two essays/four mini-essays is to lay out four factors or events from Dec. 1801-Jan. 1803 that set the context for understanding these decisions and the reasons for my disagreement with the dominant perspective. Subsequent essays describe the events of 1800-1803 in greater detail.
My thesis is this: when we patiently review significant events from 1800-1803, we see that the Court not only made decisions that they really had to make in these two 1803 decisions but that, in the process, they salvaged a future for the Court which would eventually lead it to be able to exert its influence both toward the White House (Executive) and Congress (Legislative). Thus, my thesis is that use of military metaphors such as "retreat" or "capitulation" are highly-charged and incorrect ways of seeing these times. More neutral descriptive language will aid understanding and yield clarity.
Event # 1--Ignoring the "Show Cause" Hearing in December 1801
After the Jeffersonians swept into office in the election of 1800, the lame-duck Federalist Sixth Congress passed the Judiciary Act of 1801, and John Adams signed it into law on February 13, 1801. Jefferson took office on March 4, 1801, and the oath of office was administered by what one source calls "one of the two men he hated" in life--Chief Justice John Marshall, whose appointment as Chief Justice had only been confirmed late in January 1801.*
[*Who was the other man whom Jefferson "hated?" Was it John Adams? What were the actual reasons for the Marshall-Jefferson hatred? Explanations I have seen to the effect that they were distant cousins and therefore hated each other, don't by themselves carry much weight. Anyone know?]
Congress also passed another law in its waning hours, on February 27, 1801, called An Act for the District of Columbia (later known as the Organic Act). One of the provisions of that Act was to authorize the President to appoint as many Justices of the Peace for this new District of Columbia as he saw fit. Adams sprang into action, and in the next few days appointed 42 men as District of Columbia Justices of the Peace. One of them was a certain William Marbury. His commission was signed by then-President Adams on the evening of March 3; the Great Seal of the US was affixed to it by John Marshall (in his capacity of Secretary of State--he didn't give up that position until James Madison was sworn in) also on that same evening; but the clerk failed to deliver the commission to Marbury before Jefferson's term began on March 4 at noon. As Jefferson would later state, the commission was lying on a table in the Department of State when he took office. So, it was never delivered. When Marbury asked James Madison, the new Secretary of State, for his commission, Madison, on Jefferson's instruction, refused to deliver it. Partisanship being what it was, Marbury therefore never got his commission and could not serve as Justice of the Peace in the District of Columbia.
Marbury, along with three other men whose names history has largely forgotten (Dennis Ramsay, Robert Townsend Hooe, William Harper), hired attorneys to try to get the commissions delivered so that they could assume their positions in the District of Columbia. The attorneys brought an action before the US Supreme Court, requesting that the Court order Secretary of State Madison to show cause why the commissions were never delivered. Though the Supreme Court met in June 1801, it wasn't until its December session (the Court met in only in June and December under the Judiciary Act of 1801) that Madison was required by the Court to appear. On December 16, 1801, the Supreme Court sent a notice to Madison ordering him to appear before them the next day to show cause why the commissions to these four men were never delivered. The "weapon" that the Court was considering using against Madison was a common law action called a mandamus, literally "we order," which would be an order from the Court compelling some action. Thus, if Madison didn't show convincing cause why the commissions were not delivered, the Court could issue a mandamus to Madison requiring him to deliver the commissions. At least, that was how the theory went. . .
Well, Jefferson ordered Madison not to show up on December 17 at the Supreme Court. Thus, Madison now had two "orders" he had to obey, orders which contradicted each other. He, predictably, followed Jefferson's order and never showed up at the Court. The Court now was in a pickle. It, like the Pope, commanded no army, and so couldn't compel the Secretary of State's appearance. So, the case didn't move forward in the December term of the Court. Then, all hell broke loose in Congress and the Judiciary Act of 1801 was repealed on March 8, 1802; the replacement Judiciary Act of 1802 was signed by Jefferson on April 29, 1802. This replacement Act only allowed the Supreme Court to meet one term a year, in February. Thus, the Supreme Court, which hadn't met so far in 1802, wouldn't convene at all in 1802--the only year in American history where it didn't convene. The Marbury case would not be decided until February 1803, but no one knew this back at the "show cause" hearing, where Madison didn't "show," in December 1801.
I have "belabored" this event because I think it gave the Supreme Court a "clear-as-a-bell" signal about the political realities in which it had to make its decisions. The basic point is that the Adminstration wasn't going to cooperate with the Court. The Court, therefore, couldn't compel anything out of the Administration. As events would show, Jefferson was going to act not simply as if the Court didn't exist but as if he could dismantle the Federalist-controlled Judiciary through impeachment actions (he commenced the first in January 1803--against a Federalist judge that even embarrassed the Federalists; he would play for much higher stakes in 1804 when going after a Supreme Court Justice--Samuel Chase).
So, Marshall and the Court realized, beginning on December 17, 1801, that the White House simply wouldn't cooperate with it. And, if anything, this lack of cooperation would become more pronounced as the Republicans consolidated their power even more. Thus, John Marshall, a remarkable political realist, though he had strong Federalist commitments, realized that he could never order the Administration to do anything. He had to craft his decisions in Marbury and Stuart (he recused himself in Stuart, but his influence is evident in the decision), the two "big" cases of 1803, in such a way that those political realities were honored. For, if he overstepped himself and ordered the White House to do something, and the White House refused, the Court would simply have to slink back into its relatively powerless position.
That, then, was the political/legal reality as 1801 moved to 1802. But there are three other things we should note--in the next mini-essay.
Understanding Marbury v. Madison II, Second Mini-Essay
Events of 1802-early 1803 Determine the Outcome
Event # 2--The Justices' Consultation in April-May 1802
If the events of December 1801 taught the Court that they could expect no cooperation or even recognition of any kind from the White House, events of 1802 further limited the Court's possible range of decisions when it convened again in February 1803. While the Judiciary Act of 1802 was awaiting Thomas Jefferson's signature (he would sign it on April 29, 1802), the Supreme Court Justices began a remarkable series of letter exchanges on whether and to what extent they should 'obey' this new law. The Judiciary Act of 1802 would, among other things, require the Supreme Court Justices to return to circuit riding, a practice begun with the Judiciary Act of 1789 but discontinued under the Judiciary Act of 1801. In addition, the new law would negate the appointments of the 16 Circuit Judges under the Judiciary Act of 1801, only 12 of whom were now Federalists (the three from the Fifth Circuit had never been properly appointed and so Jefferson appointed them, and one died in office, to be replaced by Jefferson, in May 1801).
As I will argue in greater length in a subsequent essay, Chief Justice John Marshall saw, through the letter exchange, that he wouldn't have a majority of Justices in his Court who would actively oppose the Judiciary Act of 1802. Four of his colleagues (Cushing, Paterson, Washington, Moore) actually supported the return to circuit riding. Only Chase agreed with Marshall in opposing circuit riding [Note: the Judiciary Act of 1789 established six Supreme Court Justices: the Chief and five Associates as well as their duties to ride circuit, described in more detail in a later essay]. The central argument supporting circuit riding was that the practice had been so long-established, from 1789-1801, with Congressional acquiescence, that declaring such a practice "unconstitutional" in 1803 would have sounded hollow indeed. The Court needed credibility; opposing the Judiciary Act of 1802 on this point, when the Court desperately needed credibility, would have resulted in its becoming a marginalized laughing-stock.
So, even though Marshall wanted to contest the law on the circuit-riding point (he actually framed it in terms of needing two commissions if they were to be required to do Circuit Court duties, too), he accepted his colleagues' opinions. All the Judges returned to the arduous duties of circuit riding. This act alone would, in my judgment, have almost precluded them from declaring unconstitutional the 1802 Act when they returned to the Court in February 1803. Well, if that argument didn't work, perhaps the Supreme Court could invalidate the Judiciary Act of 1802 on the grounds that it removed vested rights from 16 men--Circuit Judges appointed under the 1801 Act. But, see event # 4 below. Before we get to # 4, I need to pause briefly on event # 3.
Event # 3--The Congressional Elections of Fall 1802
In the Fall 1802 Congressional elections, the Republicans extended their gains over the Federalists. To give some perspective.
Sixth Congress (March 1799-March 1801) Senate: Federalist 21- Republicans 11
House of Representatives: Federalist 56-Republicans 49
Seventh Congress (March 1801-March 1803) Senate: Republicans 17-Federalists 15
House of Representatives: Republicans 67-Federalists 38
Eighth Congress (March 1803-March 1805) Senate: Republicans 22-Federalists 9
House of Representatives: Republicans 113-Federalists 26.
Note that after the 1800 census results were in, and after reapportionment took place, the 1802 elections added considerably to the number of US House members. Unlike in 2020, where the number of House Members is capped at 435, according to the US Constitution of 1789 there would be one House member for every 30,000 population. Thus, the 1800 Census had increased the size of the House nearly 40% from the previous years; most of the new seats were won by Republicans.
In a word, a Republican landslide, with Thomas Jefferson on the top of the ticket, had swept the country. The Court was the last bastion of the Federalist-controlled days (all six of its members were Federalists). Make no mistake about it, however. The Court could not ignore the elections of 1802. The power differential between the Republicans and the Court was now running so strongly against the Court at this point that they would be fortunate if their voice was even able to be heard above the pro-Jefferson "din" that filled the air.
Event # 4--the Appearance of the Removed Judges in Washington, DC in January 1803
By January 1803, it seemed as if there was only one possible ground on which the Court might invalidate or seriously question the Judiciary Act of 1802--and that was because they might argue that the Judiciary Act of 1801, appointing 16 new federal judges, conferred "vested" rights through Presidential appointment, rights that Congress couldn't undo even by the Judiciary Act of 1802. It was this precise point that was at issue at the end of January-beginning of February 1803 in the Congress.
Robert Ackerman, in his Failure of the Founding Fathers, is helpful in giving some of the text of the Congressional debate here, even though he says that it began on January 27, 1802. Nope, his editor didn't catch the error because editors in general don't know history, and Ackerman's legion of law students and faculty colleagues didn't catch the error because they probably didn't read the book carefully. Well, it was January 27, 1803 that the debate took place. In a memorial supported by many of the Circuit Judges deposed by the 1802 Act (deposed as of 7/1/02; Ackerman gives the impression that several Judges supported the measure), Judge Oliver Wolcott, formerly of the Second Circuit, wrote:
"In virtue of appointments made under the constitution of the United States, the undersigned became vested with the offices so created, and received commissions authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior..."
I don't need to quote any further. We have the "theory" here before us. The Judges' positions were "vested" as of appointment; therefore a subsequent Congress can't "divest" them of their appointments. That is what the Judiciary Act of 1802 tried to do, as I will show in more detail in a subsequent essay.
The House quickly rejected the appointment of a select committee to consider the issue, and buried it in a party-line vote. Then, the issue moved over to the Senate. The Senate appointed a select committee, which returned to the floor on February 3, 1803, with a resolution asking that a quo warranto writ be filed by the Attorney General against Richard Bassett, one of the deposed judges, for the purpose of reaching a judicial decision on these claims. But when this came to the whole Senate, it rejected this recommendation of the committee by a 15-13 vote.
Thus, Congress wasn't going to support the deposed judges. And, recall, this is the lame-duck Seventh Congress. When the Eighth Congress (i.e., the "Republican landslide" Congress) took office in one month, it would have a much larger Republican majority. If the appointed, and then deposed, judges had the smallest whisper of a prayer from the Seventh Congress, they would have had no sympathy at all in the Eighth Congress.
The Supreme Court returned to work early in 1803, after a 14-month hiatus, at the same time the Senate was rejecting the plea of the deposed judges. That is, the issue was so clear and so evident to the Supreme Court that there was no remedy for these men that if the Court had the effrontery to give them relief, the Court could be assured that no one in Government would pay them the slightest heed. Thus, when the Court was ready to hear and consider Marbury and Stuart that very month, it did so in the context of this latest rejection.
All grounds for rejecting the Judiciary Act of 1802 were now cut out from under the Justices--if, that is, they wanted credibility for future decisions they made. In addition, they knew that the President (and probably the Congress) would do nothing that the Supreme Court required them to do. If the Supreme Court was going to try to make any kind of positive statement for itself in these two cases (Marbury v. Madison and Stuart v. Laird) it would have to be through the articulation of some principle that needed no Administration or Congressional approval. With these constraints, then, the brilliance of Marbury becomes immediately apparent.
The next two mini-essays will summarize briefly these two cases; they are almost anti-climactic now that you know all these things...