American Experiment (35 page)

On the other hand, moderate Republicans were loath to assault the judiciary, in part because they respected a measure of judicial
independence, in part because they had little stomach for confronting John Marshall. Jefferson, moreover, was still intent on winning over and retaining the support of moderate Federalists, and nothing would drive them back into the hands of the Federalist party faster than a determined attack on the Supreme Court.

Typically, the President faced this problem by taking one step at a time. The first was obviously to repeal the partisan Federalist Judiciary Act of 1801. When Senator John Breckinridge of Kentucky, an old ally of Jefferson’s from the days of the Virginia and Kentucky resolutions, introduced a repeal bill in January 1802, a furious battle broke out, as the Federalists accused their adversaries of seeking to destroy the independence of the judiciary. Clearly the Federalists would defend their bastion to the last man, but in the Senate voting the Republicans had the last man on the floor, as the bill passed 16 to 15. Giles and Randolph mobilized a strong vote for the bill in the House. Republicans in Congress relied not only on traditional arguments against “judicial tyranny” but on the fact of Jefferson’s clear support for the measure; this was the
President’s
bill.

The Republicans’ next step was even more controversial—a bill that by manipulating the scheduling of Supreme Court terms would in effect delay the next session of the high court for over a year, until February 1803. This maneuver would thwart any effort by the court to invalidate the repeal act before it could take effect. This bill passed too. Incensed and indignant, the justices considered the extreme step of refusing again to ride circuit and thus declaring the act unconstitutional. Chase in particular wanted to fight back, on the ground that this kind of meddling by President and Congress in the internal functions of the court would cripple it. Marshall was tempted to follow the strategy of defiance, but other members of the court took a more conciliatory position, he needed a united bench behind him, and he had to be sure of his ground. He waited for a better opportunity to strike back.

That opportunity was already developing in the form of a routine plea by a Washington-Federalist named William Marbury. An applicant for the position of justice of the peace, Marbury had had the misfortune to be one of Adams’ midnight appointments, the commission for which had fallen into Jefferson’s hands. What could be more natural for Marbury than to turn for relief to the court headed by the very man, John Marshall, who had neglected to deliver him his commission? Marbury went directly to the high court with a plea that the court order the Secretary of State—now James Madison—to deliver him his commission, on the ground that the original Judiciary Act of 1789 authorized the court, in situations when federal officials were not carrying out required “ministerial” acts, to issue
writs of mandamus requiring those officials to perform the said duties.

Marshall pondered his dilemma. If he granted Marbury’s plea and issued the mandamus, Jefferson and Madison could ignore or reject it, on the grounds that the judicial branch was now interfering in the executive’s internal affairs. The court would then be powerless—no court official could make Madison deliver up a commission—and the federal judiciary would appear more impotent than ever. But if the court refused to issue the writ of mandamus, it would seem even more impotent, unable to perform one of its most elementary functions. What could Marshall do? Only a supreme judicial strategist could snatch victory from such a weak position.

On February 24, 1803, the members of the high court took their seats in the dingy basement chamber. “Oyez, oyez, oyez!” cried the clerk, as he admonished all gentlemen having business with the court to draw near and give attention. The clerk concluded sonorously: “God save the United States and this Honorable Court.” Marshall was about to do the latter. The Chief Justice was hardly a striking presence, with his tall, meager frame, sober dress, and hard, dry voice, but to many his logic seemed commanding. He began to read.

After a perfunctory start he reviewed the facts of the case. Then he posed three questions: Did Marbury have a right to the commission? If he had such a right, did he have a remedy under law against Madison’s denial? And if he had such a remedy, was it a mandamus from the Supreme Court? Marshall’s answer to the first two questions came in an hour-long lecture in which, using judicial language, he scolded the President and the Secretary of State for failing to conform to the law. Withholding of Marbury’s commission was an act “not warranted by law,” the Chief Justice stated flatly, “but violative of a vested legal right.” And certainly Marbury had a remedy. “The very essence of civil liberty” consisted in the “right of every individual to claim the protection of the laws, whenever he receives an injury,” Marshall intoned. Presidents and Secretaries of State, in short, had to obey the law just like anyone else. That raised the third question: Could the Supreme Court properly demand that Madison turn over the commission to Marbury?

The answer obviously seemed yes, and the moment seemed to have come for a dramatic confrontation between Jefferson and Marshall, between Republicans and Federalists, between the elected branches of the government and the appointed. But no; Marshall appeared to be off on another tack. Marbury had brought his case under an article of the 1789 Judiciary Act giving the Supreme Court original jurisdiction in certain cases. The Constitution, however, granted original jurisdiction to the court only in very limited kinds of cases and this, said Marshall, was not
one of them. If the court followed the act, he said, it had jurisdiction, but if the court followed the Constitution, it did not have jurisdiction. Then the Chief Justice proceeded to what struck his Republican auditors as a patriotic stump speech, filled with self-evident statements and self-answering questions, all of which served his political purposes.

The people, he said, had “an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness.” In short, the people had a right to draw up a constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” No one had doubted this. In a series of positive and sweeping sentences, the Chief justice argued the obvious—that the law must give way to the Constitution—and he largely assumed the far less obvious—that it was up to the
courts
to rule whether another branch of the government had exceeded the Constitution. As J. W. Peltason has written, in typical fashion Marshall stated the question in such a way that the answer was obvious. Should the Supreme Court enforce an unconstitutional law?
Of course not.
Should the Supreme Court decide, when Congress or President had violated the Constitution?
Of course.
So: Congress in the Judiciary Act of 1789 had sought to grant the court a power prohibited by the Constitution; that section of the act was unconstitutional; thus the court had no power to act in this situation, even though Madison had acted improperly; case dismissed.

There were two immediate and sharp reactions to the opinion. One was Marbury’s; the poor wretch had been denied his commission once because of Marshall’s evident negligence; now he was being denied his commission again, even though Marshall said he had a right to have it. The other was that of Republican leaders, and it was pure indignation. Jefferson and Madison could hardly be oblivious to their young rival who, from the sanctity of the bench, was lecturing them as to how they should conduct their executive department. The sharpest reaction came from the Republican press, which also saw Marshall’s opinion simply as a Federalist attack on the two Republican-controlled branches.

“The efforts of
federalism
to exalt the Judiciary over the Executive and Legislature,” said the Boston
Independent Chronicle,
“and to give that favorite department a political character & influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other, but will probably terminate in degradation and the disgrace of the Judiciary.…The
attempt
of the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the
constituted departments. The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office.”

But the
Chronicle
, and most Republicans, had missed the point. The court had not invaded the executive, only upbraided it. Indeed, it had invalidated the congressional act granting power to the court to take original jurisdiction in certain matters. What the Chief Justice had done was far more important, and its significance dawned only slowly on many Republicans. Marshall, in voiding an act of Congress signed by the President that gave the court a small power, was creating the great precedent of judicial invalidation of congressional action, and—the supreme strategic triumph for Marshall—was doing so in a way that the executive could not thwart. If Marshall had demanded that the executive take certain action, such as giving that commission to Marbury, Jefferson and Madison could have—and probably would have—coolly refused. But how could Jefferson & Co. stop the court from
declining
to exert power? The Republicans were helpless. To add salt to their wounds, the action of the court in reviewing one of its own alleged powers even comported with Jefferson’s notion of coordinate constitutionality by each branch in its sphere.

Of course,
Marbury
was only a weak precedent for judicial invalidation of laws passed by Congress and signed by the President. But that precedent was destined to become a time bomb, ticking away for half a century, until it would explode amid the most grievous crisis in American history.

It was ironic that it was Jefferson who should have failed to overcome the judicial bastion, for otherwise he was displaying a brilliance of political leadership that would hardly be matched in two hundred years of nationhood. If that brilliance blinded some Republicans to potential weaknesses in his leadership, its full import would not be evident for some years.

Jefferson led, first of all, as chief executive. Those who feared—or hoped—that the relaxed, ruminating, casual Virginia aristocrat would let others run his administration could hardly recognize the decisive figure in the White House. Jefferson did not need to bestride a white charger or bark out orders to assume the role of chief executive. He had a quiet air of authority, a steadfastness of purpose, a superb sense of timing, and the capacity to look ahead. His historic actions, such as the purchase of Louisiana, turned on many smaller decisions. Thus in sending Monroe abroad he did not waste time asking his friend whether he would like to go; knowing of Monroe’s public-spiritedness, he informed the retiring Virginia governor that public necessity demanded he go, that he was putting
his nomination through the Senate, and that he expected to see him in Washington promptly. In moving quickly to dispatch Lewis and Clark to an area beset by imperial ambitions, he was risking heavy censure if the explorers met some disaster, but the luck of the audacious was with the President as well as with the expedition.

He defended executive independence and executive prerogative—withholding certain presidential papers, for example—as compatible with the system of checks and balances, and indeed as required by it. Only the President could command the necessary overview of the government, he felt; the President alone provided a “regulating power which would keep the machine in steady movement.” He demanded unity within the executive. He asked understanding from those who did not, like the chief executive, “command a view of the whole ground.” No Hamiltonian, he held as firm a conception of executive leadership as did Hamilton.

Still, this was collective executive leadership, with the President soliciting and responding to the advice of his Cabinet. Years later he boasted that his Cabinet of six persons had presented an example of harmony without parallel in history. “There never arose, during the whole time, an instance of an unpleasant thought or word between the members.” Harmony was produced by a modifying of one another’s ideas. “But the power of decision in the President left no object for internal dissension, and external intrigue was stifled in embryo by the knowledge which incendiaries possessed, that no division they could foment would change the course of the executive power.”

The leadership of the legislative branch that Jefferson had so indirectly but firmly exerted during his first two years in office carried on through the rest of his term. The basis of that leadership continued to be party solidarity, and the role of party was expanded after the Republicans gained strength in the “off-year” elections midway through the term. Party membership was still a bit ambiguous, but Jefferson estimated that Republicans outnumbered Federalists 103 to 39 in the House and 25 to 9 in the Senate. He continued to exert party influence more by persuasion than dictation, far more by skillful use of patronage and the party press than by public efforts to impose his ideas. He picked his way through the minefields of schismatic state politics by tolerating differences. “His ability to hold the Republican party together nationally when it was rocked by state party divisions and to retain the attachments of virtually all sides involved in the internal divisions of state politics,” Noble Cunningham concludes, “was an accomplishment that only a superb politician could achieve.”

The Jeffersonians’ party strategy continued to be the pre-emption of the middle ground, where all but “sweeping” Republicans and the highest of
“high Federalists” could meet and join hands. The President carefully doled out appointments to Republican moderates, while leaving Federalist moderates in office where feasible. But Jefferson’s appeal transcended party. His ultimate political strategy was to turn to the people—or at least the active citizens among them—because he respected them and believed in them and expected much from them. He was one of those rare leaders who, in responding to people’s fundamental wants and needs, aspirations and expectations, and in pursuing some powerful vision or goal, transcend the passing eddies of public opinion, and even more, educate the popular will, sensing authentic but unexpressed wants and needs in the people. That is the ultimate engagement between leader and led, and that kind of leadership Jefferson demonstrated in his program, his methods, and his
persona.