Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (15 page)

While the Pickering matter was pending before Congress, the Federalist Supreme Court under Chief Justice John Marshall rebuked the Jefferson administration in the landmark decision of Marbury v. Madison. This
case affirmed that federal courts could review congressional legislation
(and gratuitously lecture elected officials).

William Marbury had been nominated by John Adams for a very minor
judicial post in the District of Columbia. The Senate had confirmed his
appointment. President Adams had signed his commission. Then secretary of state and soon to be chief justice John Marshall had failed to
deliver it to him. Thus, Marbury could not enter into his office.

Because the case focused on Marshall's own incompetence as secretary of state, presumably he should have recused himself, but he did not.

Marshall's Republican successor as secretary of state was none other
than James Madison, and he had no intention of delivering Marbury's
commission. Marbury responded by suing Madison in the Supreme
Court.

Despite what most legal scholars will tell you, "judicial review" was
uncontroversial before Marbury v. Madison. During the ratification of the
Constitution, Federalists had said federal courts would have the power
of judicial review, and Republicans (specifically Patrick Henry) said they
hoped they would use it. Besides, both lower-level federal courts and the
Supreme Court had at least implicitly exercised this power before. The
repute granted Marbury rests more on Marshall's ringing claim on behalf
of the powers of the Supreme Court-which he took directly from
Alexander Hamilton's Federalist 78-than on judicial review's novelty.

Of more importance was the political element of Marshall's decision.
In the federal system, we have two kinds of courts: courts of general jurisdiction (state courts) and courts of limited jurisdiction (federal courts).
Before a federal court involves itself in a case, it must decide whether that
case falls under its constitutional jurisdiction.

Marshall, however, did not begin with this question (or with the question of whether there was a federal law requiring Madison to give Marbury
his commission). Instead, he asked, "Does Mr. Marbury have a right to his
commission?" To ask the question, Marshall knew, was to affirm it. And
Marshall duly argued that to deny Marbury his commission was to wrong
him gravely. Nevertheless, the Court's authority to issue a writ of mandamus (forcing Madison to deliver the commission) rested in the judiciary
Act of 1789, which, Marshall said, was itself unconstitutional because it
granted the Court jurisdiction beyond what the Constitution permitted.
Therefore, the relevant portion of the Judiciary Act was null and void.

This was the first time the Court had declared a congressional act
unconstitutional, and some have argued that Marshall's motivation was
more political than anything else: he wanted to say that Marbury was
right, but was fearful of a direct confrontation with Jefferson and Madison (because how, if it came down to it, could he force them to give the
commission to Marbury?).

Chief Justice Marshall Touts The Federalist

Marshall never referred directly to the ratification debates in his opinions. He preferred to rely on
The Federalist. But The Federalist's nationalist explanations of the Constitution were rejected at
the Philadelphia Convention and during the ratification debates.

The real precedent established by Marbury v. Madison was not for judicial review, but for the presumed right of the Court to lecture elected officials even when the Court had no jurisdiction over the question at hand.

Next on the congressional docket was justice Samuel Chase. Republicans
accused Chase, an ardent Federalist, of abusing his office in the interest
of partisan politics. One notorious and illustrative case was the Sedition
Act prosecution of James Callender, a journalist who had written scurrilous attacks on President John Adams. As one of the articles of impeachment against him put it, Chase, the presiding judge, showed "an indecent
solicitude ... for the conviction of the accused ... highly disgraceful to the
character of a judge, as it was subversive." (Emphasis added) As Raoul
Berger, the greatest of American legal historians, put it, Chase's behavior
in the Callender trial went against his judicial oath-which said, in part,
"I will faithfully and impartially discharge and perform all the duties
incumbent on me."

Chase was far from impartial. He had "selected the victim, announced
his intention to punish him for his `atrocious and profligate' libel, procured his presentment by the grand jury, refused to excuse jurors who confessed their bias against the accused, at every step identified himself
with the prosecution, and [taken] every means to disconcert, discredit,
and disable counsel for the defense."

Chase's behavior in this and other cases had made him notorious in
Republican circles. The House of Representatives believed that Chase's
behavior warranted his removal from office and impeached him (making
Chase the only Supreme Court justice ever impeached). It was proven
beyond any doubt that Chase had conducted himself in a prejudiced, partisan way that made him unfit to serve as a judge, trial or appellate. But,
in one of the great, reverberating mistakes in the history of American law,
the Senate acquitted him.

Why?

His counsel argued that Chase had never committed "treason, bribery,
or other high crimes and misdemeanors." Without an indictable criminal
offense by Chase, his counsel argued, the Senate could not remove him
from office. The Senate accepted this argument. But the argument is
wrong.

Legal Latinisms

Mandamus: Latin for "we command." A
type of writ that a court can issue to
compel performance of a mandatory duty
when the right, the duty, and the absence
of an alternative remedy are all clear.

In the English law tradition that shaped the Constitution, a "high
crime" or "high misdemeanor" was different from an indictable "crime"
or "misdemeanor." "High" was a category of misbehavior associated with
high office and with political misbehavior.

Thus, in 1757, Sir William Blackstonewhose Commentaries on the Laws of England formed the bedrock of American legal
education in the late eighteenth centurywrote that "the first and principal [high misdemeanor] is the mal-administration of such
high officers, as are in the public trust and
employment. This is usually punished by
the method of parliamentary impeachment."
As Berger notes, maladministration did not imply an indictable offense. In fact, among "high crimes and misdemeanors," as a historian of English law has pointed out, were cases in
which "judges mislead their sovereign by unconstitutional opinions" as
well as "attempts to subvert the fundamental laws, and introduce arbitrary power"-purely political offenses that would not be tried before an
ordinary court.

Chase had certainly committed high crimes and misdemeanors, if not
indictable offenses, by these standards. The Chase verdict forced Jefferson to conclude that impeachment was a farce and was no check at all on
judicial misbehavior. At the end of his life, Jefferson wrote that "they [federal judges] consider themselves secure for life; they sculk from responsibility to public opinion, the only remaining hold on them .... A
judiciary independent of a king or executive alone, is a good thing; but
independence of the will of the nation is a solecism, at least in a republican government."

The Chase acquittal set the precedent that a federal judge may disobey
his oath (because it is not an indictable criminal offense) by ignoring or
effectively rewriting a statute or the Constitution, and nothing will come
of it.

The Marshall Court soon took advantage of the Chase verdict.

In Article I, Section 10 the Constitution protects contracts from any state
tampering: "No State shall pass any... Law impairing the Obligation of
Contracts." This is the so-called Contracts Clause. The original motivation behind the clause was to prevent states from adopting "stay laws"
(as they sometimes had during the Revolutionary period) that prohibited
lenders from collecting debts for stated periods of time. A provision similar to the Contracts Clause was included in the Northwest Ordinance of 1787, stating that "in the just preservation of rights and property, it is
understood and declared, that no law ought ever to be made or have force
in the said territory, that shall, in any manner whatever, interfere with or
affect private contracts, or engagements, bona fide, and without fraud previously formed."

The first time the Supreme Court considered a case under the Contracts Clause was in Fletcher v. Peck (1810). This case arose out of the
notorious Yazoo Scandal, one of the great public swindles in the history
of the world. In that case, a group of land investors had bribed all but one
member of the Georgia legislature to sell them an enormous area of public land-most of what is now the states of Alabama and Mississippivirtually for nothing. The sale was completed in 1795 as a grant of land
to a private company, but then repealed-and the bribed legislators cast
out-in 1796. John Peck bought his title to some of that land in 1800, then
sold it in 1803 to Robert Fletcher. Fletcher next sued Peck for the purchase price, saying that his supposed title had been negated by the legislative repeal of the original sale, and thus was worthless.

Chief Justice Marshall, for the Court, decided that the nub of the issue
was whether a legislature's grant of public land qualified as a contract
under the Contracts Clause. He and his fellow justices decided that it did.
So the Supreme Court ruled the state law-Georgia's repeal of the 1795
land grant-unconstitutional and void, which in practical terms meant
that, according to the Supreme Court, the people had no democratic remedy to correct the bribed action of a corrupt legislature!

Not only was Marshall's equivalence of grants and contracts dubious,
but he also skipped over a crucial point, which was whether Georgia ever
had a contractual "obligation," given that the land grant was the result of
bribery, in the first place. As the Northwest Ordinance's contracts clause
illustrates, the obligation of contracts was understood to be dependent on
the absence of fraud (as well as coercion). This legal understanding was
universal. But Marshall ignored it, with dire results.

The revolutionary-one might say anti-constitutional-nature of the
Fletcher decision should not be overlooked. The Constitutional Convention had denied Congress the power to veto the acts of state legislatures.
The Convention certainly did not mean such power to be assumed by the
Court instead. During the entire debate on ratification in Virginia, where
extremely able men teased out the meanings-and potential dangerslurking unsuspected in each clause of the proposed Constitution, no one
ever said, "And the least responsible institution of the federal government
is to have a veto power over the everyday enactments of each of the state
legislatures." Had anyone suspected that it did, he certainly would have
pointed it out. No one intended to grant federal courts such authority.

Marshall had two incentives to rule as he did in the Fletcher case, one
personal and one institutional. From a personal point of view, he was
himself a substantial investor in unsettled lands, and so he might be
expected to favor people who claimed to have received state grants. Institutionally, Marshall saw in the Georgia lands case an opportunity to buttress the position of the judicial branch in the federal system-and to
help make national what had been intended as a federal constitution.

In Marbury v. Madison, Marshall had staked out the Supreme Court's
authoritative claim to the power to review congressional enactments for
constitutionality. In Fletcher v. Peck, he grabbed at the chance to claim what ultimately would prove to be a far more significant right: that of federal courts to supervise enactments of state legislatures. If in Marbury he
had exceeded the limits of his authority by lecturing the president on the
merits of a case that he admitted the Supreme Court had no constitutional
power to decide, in Fletcher he and his colleagues, in deciding the case
incorrectly, forced Georgians to accept the validity of an enormous fraud.