…continued from previous post…

At stake in Marbury v. Madison (1803) was a conflict between the Federalists and the Democratic-Republicans. While they were not quite the kind of political parties common today, they were severely divided factions within the ruling elite. Federalists such as John Adams, Alexander Hamilton, and John Marshall, believed in strong central government. Democratic-Republicans like Thomas Jefferson and James Madison were concerned about many of the policies of the Federalists. Their political battles raged during the First Party System between 1792 and 1824.

In Marbury, the Supreme Court was asked to determine what was the nature of an appointment and commission by the President (in this case, John Adams), and if the Judiciary Act of 1789 allowed someone denied their commission the ability to obtain it when a new President (Thomas Jefferson) refused to deliver the delayed paperwork.  One of Adams’s last acts as President had been to make John Marshall the Chief Justice of the Supreme Court, who would oversee the case.  The Court was in a somewhat dangerous position.  If Marshall pressed too hard, the judiciary might be permanently handicapped in its dealings with the other two branches.  His decision reverberates down to today.  John Marshall’s decision first determined that the law did provide for Marbury to receive his commission, and that the Court had the right to order James Madison, as Secretary of State, to issue it.  Then he did something that was not quite expected: Marshall declared that the portion of the Judiciary Act of 1789 giving the Supreme Court jurisdiction was unconstitutional because it altered the jurisdiction given to the Court under Article III of the Constitution.  It is important to quote Marshall’s decision at length, as the decision set the stare decisis precedent for the Court:

It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound, and interpret the rule.  If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case.  This is of the essence of judicial duty.

Marshall firmly established judicial review with those words. It was no longer an ambiguous abstract that might be in the Constitution but was not established law.  The Marshall Court was not finished with its work, however.  The Court then focused primarily on state laws, just as Madison had anticipated.  In United States v. Peters (1809), the Court declared that a state could not annul the decision of a federal court.  Article I Section 10 of the Constitution places strict limits on the powers of the states, and the Court decided in Fletcher v. Peck (1810) that a state could not interfere with private contracts because of Article I Section 10.  The Court expanded on Peters with Martin v. Hunter’s Lessee (1816).  In Martin, the court ruled that a state court could not rule on the constitutionality of a federal law – that it was the sole power of the federal judiciary to make such a ruling.

Expansive limits on judicial review were set by the Marshall Court in McCullough v. Maryland (1819).  The Court expanded the definition of the Necessary and Proper Clause of the Constitution to virtually grant the federal government the right to undertake nearly any action, so long as the Supreme Court insured that such actions did not violate the “spirit” of the Constitution.  Federal action is not limited to the enumerated powers.  Quoting Marshall’s decision at length:

The Constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that Constitution, are to be discussed; and an opinion given, which may essentially influence the great operation of the government…by this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitution of our country devolved this important duty. (Marshall, page 412)

[T]he question respecting the extent of the (federal government’s) powers actually granted is perpetually arising, and will probably continue to arise as long as our system shall exist. (Marshall, page 415)

[T]he government of the Union, though limited in its powers, is supreme within its sphere of action. (Marshall, page 415)

[T]here is no phrase in the (Constitution) which, like the articles of confederation, excludes incidental or implied powers (Marshall, page 416)

Marshall has set the stage.  The Constitution does not limit the federal government to powers only expressed in it.  Doing so would make the document too long and drawn out:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. (Marshall, page 416)

[A] government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. (Marshall, page 417)

The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means. (Marshall, page 418)

[A]ny means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government (are) in themselves constitutional. (Marshall, page 424)

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. (Marshall, page 426)

The sovereignty of the state…is subordinate to, and may be controlled by, the Constitution of the United States. (Marshall, pages 429-430)

Marshall’s decision was not met with universal approval.  James Madison, in a letter to Spencer Roane, the chief justice in Virginia’s Court of Appeals, on September 2, 1819 took exception with how Marshall had expanded congressional power beyond the enumerated powers.  This is consistent with Madison’s views as a Democratic-Republican.  However, Madison (and no one since) has ever moved to limit the impact of McCullough.  It became law by stare decisis that the federal government has power not listed in the Constitution, primarily because the Constitution does not place limits on national powers like the Articles of Confederation did.  Further, the experience of the country under the Articles of Confederation revealed that the country needed a strong national government.

Finally, Thomas Jefferson was also writing back and forth with Spencer Roane.  In a letter to Roane dated September 6, 1819, he declined to take a position on McCullough.  He preferred relegating such decisions about what the Constitution meant “to the generation now in place.” (Jefferson, page 1428).  Jefferson believed that “[t]hey are wiser than we were (the Founders), and their successors will be wiser than they.” (Jefferson, page 1428)  It was firmly in Jefferson’s mind that the Constitution was a fluid document, to be interpreted by each succeeding generation.  The rest of the remaining Framers agreed, as none took action to change that perception.  The Constitution as a living document, to be renewed, reviewed, and reinterpreted by future Americans, is exactly what the Framers intended.