John Adams and the Federalists had been soundly
defeated. Thomas Jefferson would be the next president of the United States of
America. Then, suddenly, Providence smiled on the Federalists again. Chief
Justice Ellsworth resigned his position.
2 “I have an opportunity to provide a check on the
mischief of Jefferson and his Republicans,” Adams thought. “I need a loyal
Federalist with the discernment and strength to oppose whatever pernicious
devices these people are planning to introduce when they have taken over here.”
3 After considering a number of alternatives, he first
offered the position to the man whom Washington had appointed as the first
chief justice, John Jay. Jay, however was not interested in returning to
captain an institution which he (along with almost everyone else) felt was weak
and ineffectual.
4 The President turned to Secretary of State John
Marshall for advice. “Do you have any suggestions?” he asked. “William Paterson
would be a good choice,” Marshall replied. “That appointment might offend
some,” the President countered. Then Adams turned and walked away from
Marshall. “I suppose I will have to nominate you!” he exclaimed.
5 Marshall was surprised, but he did not decline the
appointment. “I will do my best, Sir,” was all that he could muster. “That is
just what I wanted to hear,” Adams smiled.
6 By the end of January, the Senate had confirmed the
nomination, and Marshall had assumed his place on the bench in February. The
court was meeting in a room on the first floor of the capitol building at the
time, but everyone in Washington was too preoccupied with the preparations for
the inauguration of the new president to take much notice of Marshall or his
new accommodations at the capitol.
7 A few days before the event, the President-elect
wrote to the new Chief Justice: “Will you do me the honor of administering the
oath of office?” “The honor would be mine,” Marshall replied. Adams, however,
refused to suffer the further humiliation of seeing his political nemesis
formally elevated to the position that he felt should have been his for another
four years, and he quietly slipped out of town the night before the ceremony
was to take place.
8 “We are all Republicans – we are all Federalists,”
Jefferson proclaimed in his inaugural address. “I hope that he means that,”
Marshall thought. There would no doubt be plenty of opportunities to test his
sincerity over the months and years that followed.
9 One such opportunity presented itself almost
immediately. In the final hours of his administration, President Adams had
signed and sealed a number of appointments to Federalists and left them with
the Department of State (which had the actual responsibility for issuing them).
Thomas Jefferson, however, did not like the idea of delivering the commissions
made by his predecessor. As a consequence, Adams’ appointees did not receive
their commissions and were very unhappy.
10 “This is an outrage, and it must not be allowed to
stand,” one of the appointees for justice of the peace proclaimed. His name was
William Marbury. Still, he waited for several months to see what the new
administration would do. Finally, after it became abundantly clear that
Jefferson had no intention of issuing the commissions or personally
reappointing the men in question, Marbury (and a few others) petitioned the
Supreme Court to require Secretary of State James Madison to explain why the
commissions had been withheld.
11 In the meantime, while Federalists and Republicans
squabbled over which side would prevail in receiving the justice of the peace
appointments, John Marshall was beginning to see an opportunity to make a much
more profound and consequential statement with this case. As he listened to the
attorneys’ arguments in the case, the conviction grew within him that it had
the potential to set a big precedent for the role that the judiciary would play
in the new republic.
12 The Judicial Act of 1789 had given the Supreme
Court the power to issue a writ of mandamus to government officials (an order
requiring them to perform the legal requirements of their office). In this
case, the writ would compel the Secretary of State to issue the commissions.
13 “The Constitution, however, does not give that
power to the court,” Marshall protested. The real question for Marshall was: “whether
an act of the legislature can supersede or negate a provision in the
constitution, and everyone should know the answer to that.”
14 Hence, although he could order Madison to deliver
the commissions to the Federalists and score a minor triumph for his party, the
Chief Justice chose to play this one for history. “The Constitution is either
paramount, or it is equal to legislative acts and can be altered at the whim of
the legislature. If the Constitution is paramount, then any legislative act
which contradicts it is not law,” Marshall explained. “The court must,
therefore, be the final arbiter in deciding whether or not some act of the
legislature conforms to the superior standard of the Constitution,” he
concluded.
15 Thus, the provision in the Judicial Act of 1789
that had given the Supreme Court the power to issue a writ of mandamus in these
circumstances was unconstitutional and could not be used. The writ would not be
issued. Technically, the Jefferson Administration had won the point; but the
Federalist Chief Justice had cannily established the precedent of judicial
review for all future acts of the other two branches of government. In short,
Marshall’s court would be the check (which Adams had envisioned when he had
appointed him) on any Republican actions that threatened the republic he had
helped to found and shape.
16 Moreover, the various justices had been in the
practice of issuing separate opinions prior to the arrival of Marshall as their
chief. “Hereafter, the Court will present one opinion to the people,” he had
declared. As a consequence, John Marshall transformed the court in just a few
short years from a weak and ineffectual appendage of the government to be a
truly coequal partner with the executive and legislative branches.
17 Thomas Jefferson was furious with Marshall for what
he regarded as overreach. “We need more of our people in the judiciary!” he
declared. Then, as if on que, Associate Justice Alfred Moore resigned the
following year and gave the President the opportunity to nominate his first
justice to the Supreme Court.
18 “The opinion that it is the prerogative of these
judges to declare certain acts of the executive and the legislature as
unconstitutional has the potential to make the judiciary a despotic branch of
government,” Jefferson told his nominee, William Johnson. “I would also like to
see separate opinions in these cases, but the Chief Justice will only allow us
to see one,” he added in frustration.
19 John Marshall, however, was just getting started.
And Thomas Jefferson wouldn’t be the last President to disagree with his
decisions or be frustrated by his “meddling.”
20 Now John Marshall was the great grandson of Thomas
Marshall and Martha Sherwood, who were the parents of Mary and John Marshall.
21 Mary married Thomas Camp, and they had a son also
named Thomas. It was this Thomas Camp who was the father of the two brothers
who had served in the Revolutionary War.
22 Mary’s brother John was also the forefather of
General George C. Marshall.
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