The Conflict That Shaped Our Constitutional Order

Portrait of John Marshall. (Photo: Wikimedia Commons)
A new biography explores the long-running rivalry between the Federalist chief justice John Marshall and his Democratic–Republican second cousin, President Thomas Jefferson.

In the American republic’s early days, a seat on the United States Supreme Court was not the coveted plum that it is today. The first three chief justices each served for an average of less than four years, and associate justices were also likely to leave the Court while still in the prime of their working lives. The reason? The Court had limited jurisdiction, heard few cases, and did not pay particularly well. For a talented lawyer, private practice or political office was usually preferable to a judicial backwater convened in an unused committee room in the basement of the Capitol.

In Without Precedent, law professor Joel Richard Paul tells the story of John Marshall, the man who changed all that. Appointed to the court by the last Federalist president in the waning days of his administration, Marshall was seated at a time of his Jeffersonian opponents’ ascendance. He would spend the next 34 years leading a Court that became much closer to a co-equal branch of government than any of the Founders had anticipated. In doing so, Marshall imposed a Federalist vision on often-reluctant Democratic–Republican political branches, cementing his own vision of what the United States should become: one nation, rather than a confederation of disparate sovereignties.

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Paul frames his story as a long-running battle between Marshall and Thomas Jefferson. Both men were Virginians of the founding generation, and both were great-grandsons of William Randolph I, but there the similarities end. While Jefferson grew up rich, surrounded by slaves and powerful family members, Marshall grew up on the frontier, one of 15 children of a father who was a poor farmer, rather than a planter. (Marshall would also come to own slaves, which Paul attempts, without much success, to downplay in comparing him to Jefferson.)

Paul gives more attention to Marshall’s early life than previous biographers, and that portion of the book reads almost like a dual biography of Marshall and Jefferson. Despite their differences, both men came to pursue careers in the law and both embraced the cause of American independence when the Revolution began. But while Marshall spent the war in the Continental Army, enduring the privations of the common soldier through the grueling winter of 1777–1778, Jefferson won elective office and served as governor of Virginia. Paul makes much of Jefferson’s inept handling of the British invasion of his home state, a point that, while true, does not have much to do with Marshall. Yet the contrast is still noteworthy, and it goes to one of Paul’s themes: Marshall was a practical man of the world who could get things done, while Jefferson was a pie-in-the-sky theorist and dilettante.

It is a message to which Paul returns often. After the adoption of the Constitution — something both men endorsed — Jefferson found himself in the cabinet while Marshall returned to Richmond to practice law and serve in the state legislature. Marshall’s reputation as an advocate grew, and George Washington tried repeatedly to entice him into government service. Washington’s successor, John Adams, succeeded in that effort when he appointed Marshall as a member of a three-man team of diplomats sent to France in 1798. On his return, Marshall showed an admirable independent streak, opposing the Alien and Sedition Acts that his party supported. Despite that dissent from the party hierarchy or possibly because of it, Washington convinced Marshall to run for Congress, which he did successfully later that year.

Marshall’s loyalty to Washington and Adams and vision of a stronger central government made him a Federalist. Jefferson’s opposition to Washington and desire to keep power in state capitals led him to be among the founding members of the Democratic–Republicans.

Marshall thereby joined in the early days of what political scientists now call the First Party System: the rise of the Federalist and the Democratic–Republican parties. Marshall’s loyalty to Washington and Adams and vision of a stronger central government made him a Federalist. Jefferson’s opposition to Washington and desire to keep power in state capitals led him to be among the founding members of the Democratic–Republicans. The partisan squabbling between the two sides was, as Paul aptly illustrates, every bit as personally rancorous as it is today.

After some initial success, the Federalists began the decline that would lead to their demise as a party, with Adams being the last Federalist president. On his way out, however, Adams made some personnel decisions that would shape the course of the republic, and of Marshall’s life. After a brief term as secretary of state in the Adams administration’s final year, Marshall was appointed to the Supreme Court in 1801.

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Marshall had turned down Adams’s offer of a seat on the Court in 1798, but in 1801 he saw things differently. Why the change of heart? Paul believes that the impending inauguration of Jefferson imbued Marshall with a new purpose. “Destiny had preordained that Marshall would struggle with Jefferson for the soul of the Union,” he writes. “Marshall was committed to stand vigil over the principle of federalism, keep the country on the path of moderation, and resist ideology with pragmatism.”

There is something to this. The election of 1800 featured the overheated rhetoric we know well today, and in the defeat of the Federalist party, Marshall may well have seen the beginning of the end for America, a descent into French-style radicalism and terror. This seems hyperbolic now, as no doubt some of our 21st-century political doomsayers will seem to future generations. But in the midst of great political change, men often perceive their duty differently, and it is not unreasonable to suppose that Marshall saw himself as taking a noble stand by accepting a thankless job.

While it would have been reasonable to think that way in 1801, it is less so in 2018. One major flaw in Paul’s otherwise-excellent book is how he portrays the relationship between Jefferson and Marshall in shades of black and white. Federalists, no less than Republicans, were ideologues, cleaving to principal at times, surrendering to expediency at others. It is hard to see how Marshall, by taking the seat, both stood for principle and resisted ideology, except to say that we all see our own opinions as principles or morals and our opponents’ as mere ideology or politics. Paul’s description of events would likely have squared with Marshall’s thoughts at the time, but with the remove of two centuries, it lacks nuance.

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One example of the Federalists’ relative lack of principle would lead to Marshall’s most famous opinion as Chief Justice in Marbury v. Madison. In the lame duck session of the Sixth Congress — the last in which the Federalists would have majorities — Adams and his allies vastly expanded the federal judiciary, staffing all of the new positions with party loyalists. They expanded the federal courts’ jurisdiction while establishing 16 new circuit-court judgeships — the so-called Midnight Judges — as well as authorizing as many justices of the peace for the District of Columbia as the President wished to appoint. (Adams appointed 42, who were all quickly confirmed by the Senate.)

One might imagine the outrage of the incoming Democratic–Republicans as they learned that the losing party in the last election had packed the courts on its way out of office. One might also imagine the pleasure Marshall took in the process when, as secretary of state, it fell to him to deliver all of the commissions to the new federal officers. (Marshall served simultaneously as secretary of state and chief justice from January 31 to March 4, 1801.) When the incoming administration discovered that Marshall had not delivered all of the commissions to the D.C. justices of the peace, the new secretary of state, James Madison, declared the commissions incomplete, and refused to deliver them.

William Marbury and three other Adams nominees sued for their commissions. Paul’s prose is at its best when he delves into the legal theories that Marshall espoused and he gives the reader a thorough analysis of the facts and the law at issue in Marbury. Some of the circumstances are astounding to the modern observer. Although the case was filed directly to the Supreme Court in 1801, it was not heard until 1803 because the Democratic–Republican Congress had cancelled the Court’s 1802 session. And though Marshall was a key figure in the case, as his job had been to deliver the commissions, he declined to recuse himself.

The trial itself was no less bizarre. Madison ignored it entirely and did not send a representative from the government, claiming that the Court lacked jurisdiction. The testimony was a problem, since the person best qualified to establish the chain of events surrounding Marbury’s commission was sitting on the bench and unable to testify. The solution was to call Marshall’s brother, James, to testify about how he had been the one assigned to deliver them. Paul, in comparing this tale to Marshall’s correspondence from the period, notes that the story “made no sense” and that “it is apparent that James Marshall perjured himself in the Supreme Court and that the chief justice not only knew this but probably asked him to lie.”

That is a bold claim, but it is one backed up by the facts. Though it is shocking that Marshall, heretofore portrayed as a paragon of virtue, should stoop to commit a fraud on his own court, it is also believable. In a time of political strife, thinking that the fate of the nation rested on his shoulders, Marshall did what many enthusiastic partisans do against their better judgment: He lied for the greater good as he saw it. The episode illustrates the lengths to which partisanship drives otherwise decent people, and shows that the founding generation was no less susceptible to temptation than our own.

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It was the direct filing to the Supreme Court on which the case ultimately turned. The Judiciary Act of 1789 had granted the Court jurisdiction over writs of mandamus concerning federal officials; that is to say, if a federal official refused to do his job, you could ask the Supreme Court to make him do it. Marshall, writing for a unanimous Court, found that Marbury did have a right to the commission, but that the remedy he requested — the writ of mandamus — was unavailable, as Congress did not have the right to expand the Supreme Court’s original jurisdiction to include granting it.

The ruling was, as scholars have long recognized, a smart one. While holding that the Jefferson administration was in the wrong, he claimed that he could not stop it and so imposed no penalty or order. This left Jefferson and Madison nothing to which they might object. Had he ordered Madison to deliver the commission, Madison would likely have ignored him, just as he had ignored the case from the beginning. The Court’s authority would be diminished and the theory of judicial review weakened. Instead, he told Madison to do nothing, and Madison, by default, complied.

The decision was also, as Paul explains, too clever by half. Jurisdiction, then and now, is the first thing a court considers, not the last. If Marshall and his fellow justices had truly believed the Judiciary Act of 1789 to have unconstitutionally broadened the Court’s jurisdiction, they should have said so immediately, avoiding the ultimate issue of Marbury’s right to a commission altogether. The jurisdiction issue was, in short, contrived. As Paul writes, “Marshall invented a conflict between the Constitution and the Judiciary Act in order to create the opportunity to assert the power of judicial review.”

And it worked! Although the Court would not strike down another federal law until 1857, the principle became well-established. So too did Marshall’s leadership of the Court which, despite the continual addition of Jeffersonian judges, often issued unanimous opinions written by its chief justice. The force of Marshall’s reasoning and the charm of his personality were such that ideological opponents on the bench sooner or later came around to his way of thinking.

While we now speak of the Founding Fathers as a group, the steady stream of conflicts in Marshall’s life reminds us that their time was no less disputatious than our own. Marshall, as one of the younger and longer-lived members of that generation, got into more than his share of disputes, carrying his version of the ideals of the revolution into practice long after Jefferson and Madison were retired from public life. Their conflicts resolved into the political theory we now think of as American constitutionalism, and the result was the federal union that has endured until today.

Kyle Sammin — Kyle Sammin is a lawyer and writer from Pennsylvania.

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