The Significance of the
Marshall Court (1801-1835)
The Changing Role of the Judiciary
• Colonial courts were not an independent entity or
separate branch of government (e.g., Thomas
Hutchinson in Massachusetts had simultaneously been
chief justice of the superior court, lieutenant governor,
a member of the council, and judge probate of Suffolk
County)
• Judges were appointed because of social and political
rank, not due to legal expertise
• Court performed administrative and executive tasks
• In the 1780s, the modern idea of judiciary as a equal
and independent branch of government took root.
The federal judiciary
• Article III creates a
Supreme Court and
allows for the creation
of “such inferior courts
as the Congress may
from time to time
ordain and establish.”
• The Judiciary Act of
1789 creates the
hierarchical three tiered
federal court system
Establishing Judicial Independence
• Life terms during good behavior
• Guaranteed Salary
• Removal only by impeachment
The Significance of Jurisdiction
• Original
• Exclusive versus Concurrent
• Appellate
• District Courts had jurisdiction over admiralty cases, petty crimes, and
revenue collection
• Circuit Courts served as major trial courts for cases involving out-ofstate or foreign citizens, and over appeals from the district courts in
admiralty cases; also had concurrent jurisdiction with state courts in
cases with more than 500 hundred dollars at stake and in those with
diversity of citizenship (i.e., citizens from different states)
• Supreme Court—justices rode circuit and initially heard few cases (only
87) before the 1801 term. Also had a rule that the justices would drink
wine only on rainy days.
Do federal courts have jurisdiction
over common law crimes?
• For example, can you punish seditious libel
without Congress passing a sedition act?
• Federalists and Republicans provided different
answers to this question in the 1790s.
• The Supreme Court finally resolved this issue
in United States v. Hudson (1812)
The Retirement of Oliver Ellsworth
• What’s a President to do?
• The Political Environment in mid December
1800
• How does John Adams decide?
Overview
“The most important achievement of the Marshall Court
(1801-1835) was not particular landmark rulings but rather
its elevation of the Court’s stature. Had the justices not
begun aggressively exercising the power of judicial review
when they did, the Court might never have become a
coordinate branch of the national government. In 1801, it
certainly was not. That year, John Jay declined President
John Adams’s offer to reappoint him chief justice, observing
that the federal judicial system was “so defective” that it
could never obtain “the energy, weight, and dignity which
are essential to its affording due support to the national
government.”
– Michael Klarman
The Final Days of the Adams
Administration
• Interregnum
• The Judiciary Act of 1801: 16 new circuit
court judges; blanket power to appoint
justices of the peace for the District of
Columbia; and changing the number of
Supreme Court Justices
• Secretary of State John Marshall, a moderate
Federalist who had opposed the Alien and
Sedition Acts, becomes Chief Justice John
Marshall.
The Republicans Respond
• President Jefferson and Secretary of
State James Madison Refuse to Send
Commissions
• The Republican Congress passes the
Repeal Act of 1802 and abolishes the
1802 term of the Supreme Court
The Fragile State of Judicial Independence
•
•
•
•
The Threat of Impeachment
How to use this power?
Impeaching Judge John Pickering
The Impeachment of Justice Samuel
Chase
Marshall’s Dilemma
• Although Jefferson and Marshall are cousins,
they intensely dislike one another.
• If the Supreme Court declares the 1802 repeal
of the Judiciary Act of 1801 unconstitutional,
then the Republicans in Congress might
destroy the judiciary.
• What would happen if the Supreme Court
ordered President Jefferson to issue Marbury’s
commission, but he refused?
The Eloquence of Marshall
• “All of his eloquence consists in the apparently deep self conviction
and emphatick earnestness of his manner; the correspondent
simplicity and energy of his style; the close and logical connexion of
his thoughts; and the easy gradations by which he opens his lights
on the attentive minds of his hearers.
The audience is never permitted to pause for a moment. There is
no stopping to weave garlands of flowers, to hang in festoons,
around a favourite argument. On the contrary, every sentence is
progressive; every idea sheds new light on the subject; the listener
is kept perpetually in that sweetly pleasurable vibration, with which
the mind of man always receives new truths; the dawn advances in
easy but unremitting pace; the subject opens gradually on the view;
until, rising, in high relief, in all its native colours and proportions,
the argument is consummated, by the conviction of the delighted
hearer. . . .”
– William Writ
The Sophistry of Marshall
• “[W]hen conversing with Marshall, I never admit
anything. So sure as you admit any position to be
good, no matter how remote from the conclusion
he seeks to establish, you are gone. So great is
his sophistry you must never give him an
affirmative answer, or you will be forced to grant
his conclusion. Why, if he were to ask me
whether it were daylight or not, I’d reply, ‘Sir, I
don’t know, I can’t tell.”
– Thomas Jefferson
Marshall and Order
In the order in which the court has viewed this subject,
the following questions have been considered and
decided.
1. Has the applicant a right to the commission he
demands?
2. If he has a right, and that right has been violated, do
the laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus
issuing from this court?
A Political Interpretation
• The decision is an ingenious way to criticize President
Jefferson, while simultaneously preventing him from
retaliating.
• “By posing the questions in this unusual order Marshall
was able to make his point without having to suffer the
consequences. As Jefferson and other Republicans
pointed out, the Court in its final question disclaimed
all cognizance of the case, but in the first two questions
declared what its opinion would have been if it had
cognizance of it.”
– Gordon Wood, Empire of Liberty, 441.
The Immediate Aftermath
• Jefferson angered by Marshall’s
“twistifications”
• Six days later, the Court hands down its
opinion in Stuart v. Laird
• The Marshall Court never again declares an
act of Congress unconstitutional
The Marshall Court
before the War of 1812
1.
2.
3.
4.
5.
The Role of the Chief Justice
From seriatim opinions to the Court speaking with an unitary
voice (During the first four years of his tenure, the Court handed
down forty-six written opinions. They were all unanimous.
Moreover, Marshall participated in 42 of them and wrote the
opinion in all 42; between 1801 and 1815 Marshall, in fact, wrote
209 of the Court’s 378 opinions!)
Avoiding a confrontation with the Republicans, while
simultaneously establishing the right to review and reverse state
court decisions
Separating Law from Politics
Making questions of vested property rights into exclusively judicial
issues
American Nationalism
• The War of 1812
• The Rise of Nationalism
• Martin v. Hunter’s Lessee (1816):
The Court rejected the claim that
Virginia and the national
government were equal
sovereigns. Reasoning from the
Constitution, Justice Story
affirmed the Court's power to
override state courts to secure a
uniform system of law and to
fulfill the mandate of the
Supremacy Clause.
Looking Forward
“Never was there a more glorious opportunity for the
Republican party to place themselves permanently in power. .
. .Let us extend the national authority over the whole extent
of power given by the Constitution. Let us have great military
and naval schools; an adequate regular army; the broad
foundation laid of a permanent navy; a National bank; a
national system of bankruptcy; a great Navigation act; a
general survey of our ports, an appointment of port wardens
and pilots; Judicial Courts which shall embrace the whole
Constitutional powers; national notaries; public and national
justices of the peace, for the commercial and national
concerns of the United States. “
Associate Justice Joseph Story, 1815
The Marshall Court and
Constitutional Nationalism
• Who made the
Constitution?
• The People
• How should the
Constitution be
interpreted?
• Broadly
• Who should interpret the
Constitution?
• Federal Courts
• What powers does the
Federal Government have?
• Necessary + Proper =
Enumerated + Implied
The Bank Question Revisited in 1819
Washington’s Cabinet in 1791
Chief Justice John Marshall
and Associate Justice Joseph
Story
The McCulloch Questions
• The first question
made in the cause is
-- has Congress
power to
incorporate a bank?
•
The power now contested was exercised by the first Congress
elected under the present Constitution. The bill for
incorporating the Bank of the United States did not steal upon
an unsuspecting legislature and pass unobserved. Its principle
was completely understood, and was opposed with equal zeal
and ability. After being resisted first in the fair and open field
of debate, and afterwards in the executive cabinet, with as
much persevering talent as any measure has ever
experienced, and being supported by arguments which
convinced minds as pure and as intelligent as this country can
boast, it became a law. The original act was permitted to
expire, but a short experience of the embarrassments to
which the refusal to revive it exposed the Government
convinced those who were most prejudiced against the
measure of its necessity, and induced the passage of the
present law. It would require no ordinary share of intrepidity
to assert that a measure adopted under these circumstances
was a bold and plain usurpation to which the Constitution
gave no countenance. These observations belong to the
cause; but they are not made under the impression that,
were the question entirely new, the law would be found
irreconcilable with the Constitution.
Who made the Constitution?
•
In discussing this question, the counsel
for the State of Maryland have
deemed it of some importance, in the
construction of the Constitution, to
consider that instrument not as
emanating from the people, but as the
act of sovereign and independent
States. The powers of the General
Government, it has been said, are
delegated by the States, who alone are
truly sovereign, and must be exercised
in subordination to the States, who
alone possess supreme dominion.
•
It would be difficult to sustain this proposition. The
convention which framed the Constitution was indeed
elected by the State legislatures. But the instrument, when
it came from their hands, was a mere proposal, without
obligation or pretensions to it. It was reported to the then
existing Congress of the United States with a request that it
might be submitted to a convention of delegates, chosen in
each State by the people thereof, under the
recommendation of its legislature, for their assent and
ratification.
•
This mode of proceeding was adopted, and by the
convention, by Congress, and by the State legislatures, the
instrument was submitted to the people. They acted upon it
in the only manner in which they can act safely, effectively
and wisely, on such a subject -- by assembling in
convention. It is true, they assembled in their several States
-- and where else should they have assembled? No political
dreamer was ever wild enough to think of breaking down
the lines which separate the States, and of compounding
the American people into one common mass. Of
consequence, when they act, they act in their States. But
the measures they adopt do not, on that account, cease to
be the measures of the people themselves, or become the
measures of the State governments.
Marshall’s Broad Reading of Necessary and Proper Clause
• 1st. The clause is placed among the powers of Congress, not among the
limitations on those powers.
• 2d. Its terms purport to enlarge, not to diminish, the powers vested in the
Government. It purports to be an additional power, not a restriction on
those already granted. No reason has been or can be assigned for thus
concealing an intention to narrow the discretion of the National
Legislature under words which purport to enlarge it. The framers of the
Constitution wished its adoption, and well knew that it would be
endangered by its strength, not by its weakness. Had they been capable of
using language which would convey to the eye one idea and, after deep
reflection, impress on the mind another, they would rather have disguised
the grant of power than its limitation. If, then, their intention had been, by
this clause, to restrain the free use of means which might otherwise have
been implied, that intention would have been inserted in another place,
and would have been expressed in terms resembling these. "In carrying
into execution the foregoing powers, and all others,“ &c., "no laws shall be
passed but such as are necessary and proper." Had the intention been to
make this clause restrictive, it would unquestionably have been so in form,
as well as in effect.
The McCulloch Test
We admit, as all must admit, that the powers of the Government
are limited, and that its limits are not to be transcended. But we
think the sound construction of the Constitution must allow to
the national legislature that discretion with respect to the means
by which the powers it confers are to be carried into execution
which will enable that body to perform the high duties assigned
to it in the manner most beneficial to the people. Let the end be
legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the letter and
spirit of the Constitution, are Constitutional.
The Rejoinder: Compact Constitutionalism
• Who made the
Constitution?
• The States
• How should the
Constitution be
interpreted?
• Strictly
• Who should interpret the
Constitution?
• The States
• What powers does the
Federal Government have?
• Enumerated only (10th
Amendment)
The Marshall Court and
the Legacy of Federalism
“By the end of Marshall’s tenure, the situation was very
different. The Court had established its authority to
invalidate state and congressional legislation and to review
state court decisions involving federal law issues. It had
rejected compact theory, authorized a vast increase in the
power of the national government, and imposed significant
constraints on the ability of states to interfere with national
markets and with contract rights. In 1830 the astute French
observer Alexis de Tocqueville noted, “The peace, the
prosperity, and the very existence of the Union are vested
in the hands of the seven Federal judges [of the Supreme
Court].” Twenty years later, unable to resolve the nation’s
most contentious political issue, congressional leaders
invited the Court to determine the fate of slavery in the
federal territories. One cannot imagine Congress in 1800
entrusting the justices with such responsibility.”
– Michael Klarman
Further Readings
Richard E. Ellis, Aggressive Nationalism: McCulloch versus Maryland
and the Foundation of Federal Authority in the Young Republic
(Oxford University Press, 2007). The most comprehensive history of
this landmark decision.
George Lee Haskins and Herbert A. Johnson, History of the Supreme
Court of the United States. Vol. 2: Foundations of Power: John
Marshall, 1801-1815 (MacMillan, 1981). This volume is part of the
Oliver Wendell Holmes Devise History of the Supreme Court of the
United States.
G. Edward White, The Marshall Court and Cultural Change, 1815-1835
(MacMillan, 1988). This volume places the Marshall Court into a
larger cultural context.