John Marshall (1755-1835)
4th Chief Justice of The United States (1801-1835)
The longest reign as Chief Justice in U.S history
Marbury v. Madison 1803
McCulloch v. Maryland 1819
The importance of the court: We have already discussed in class several times both the importance of the Judicial power in the Constitution, but also how important the court was to the Federalist agenda. Business and commerce depend upon the predicability of law and the enforcement of contracts for their stability and success. The court would also be a weapon against attempts to pass legislation that would hurt the interests of the property-owning classes. See Federalist # 78 for Hamilton's description of the importance of the judicial power.
What we are reading in this case, is two Supreme Court judgements by Chief Justice Marshall. All cases proceed like this, after the judges make a decision, they deliver their decision through their opinion statement. This is where the judges summarize the details of the case and how they came to their judgement. It is supposed to map out their thought process. So as important to focus on these cases themselves for their impact, it also helps you understand how the court actually functions.
The text: I want to say something about the text of the reading itself because it is significant. I should almost say sorry for making you reading something like this, except for the fact that this is done intentionally by those who write documents like this. By the way, this is what you do in law school, you learn to talk and write like this till it becomes more or less natural. Now obviously to some extent this is done to make the administration of justice as rational as possible by eliminating human bias. On the other hand, Hamilton the lawyer and deliberately intending to make government an elitist enterprise, stressed the centrality of the Constitution and the courts, and ensured that lawyers and judges (experts) could be the only ones to manage a system like this. So the language itself is a mechanism, just like the electoral college or something like that, to leave government in the hands of experts. Does this mean that language that is clear and easy to understand is democratic?
The rule of law, as it is sometimes refereed to as a concept, is not the same thing as democracy. In fact rule of law (which descends mainly from the Roman and English influences in American thought) is sometimes seen as a check on democracy. Again, Hamilton saw the court as protecting private property from laws which are made by people voted into office. So just take notice of some of the features of the text, the obviously complicated vocabulary but also notice how things are numbered. This is the law passed part of which Marshall struck down as unconstitutional. I don't expect you to read it, but just skim through it and take notice of the text itself how it is structured and how it is presented.
The background: The background to these cases is probably the most critical thing, in short Marbury v. Madison established the power of judicial review which gives the court power to strike down laws. McCulloch v. Maryland defended the interests of the national bank (another central Hamiltonian idea) and in the process reduced the powers of the state governments even more. Although Jeffersonian Republicans had captured the Presidency and the Congress, the Supreme Court (the only branch that is not elected, remained in Federalist control). By far the more important case is the first one. Marbury was appointed to become a federal judge by John Adams, except that no one ever actually gave the commission, the actual documentation, to Marbury. The person supposed to deliver it, was actually John Marshall (!) who at the time was Secretary of State. When Jefferson became president, seeing that this commission was undelivered and realizing that it was a political power move by the federalists, he simply refused to deliver it, or instructed his secretary of state, James Madison, not to deliver it. So Marbury went directly to the Supreme Court and tried to get the court to order Jefferson and Madison to appoint Marbury a judge. Here is where the political context in the background becomes important: if Marshall ordered Jefferson to make Marbury a judge, Jefferson could simply refuse and then the court would look weak. If Marshall sided with Jefferson it would also make the court look weak since Marbury did have a legitimate claim. He was duly appointed a judge, it was literally was a clerical error that prevented it, they just forgot to send him the paperwork. So what Marshall does is to strike down part of a law, the Judiciary Act of 1789, that gave the courts the power to command other branches of the government. Specifically this passage:
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.--Judiciary Act 1789
A writ of mandamus (which means "we command" in Latin) is a formal order from the court. The phrase "or persons holding office, under the authority of the United States" is the key phrase: Marshall ruled that this was unconstitutional because it would expand the jurisdiction from what is laid down in the Constitution under Article III, which says: "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”--Article III Sec. 2
Original jurisdiction refers to areas where the Supreme Court would hear a case first, they are cases that involve ambassadors, ministers and consuls, and cases where a state would be a party. All other cases it has appellate jurisdiction, in other words you appeal a lower court's decision to the Supreme Court. Well Marbury never went to a lower court,because no lower court could have jurisdiction over something like this so there is nothing to appeal. He is also not an ambassador and he is definitely not a state, so this can not apply to the court's original jurisdiction, so Marbury cannot get a writ of mandamus from the court. The part of the Judiciary Act that seems to give the court this power is thus in violation of the Constitution. So Marshall does three things here: 1) He establishes without doubt the centrality and the supremacy of the Constitution over any other legal form; 2) He exercises judicial review for the first time in the Supreme Court and rules a law unconstitutional; 3) By limiting the power of the Court--he takes power away from the court to command other government officials--he guarantees that his ruling will be followed. Thus, the legitimacy and the strength of the Supreme Court and the Constitution are secured in the long term, even though in this specific case Marshall is actually limiting the power of the courts.
Here's another summary of the case:
McCulloch v. Maryland: Here is a case where the Supreme Court could exercise original jurisdiction since of the parties was a state. As it happened this was an appeal of a decision made in Maryland state court. Notice also that this case is tried in 1819 way after Jefferson (President until 1809) and even past James Madison (4th President, 1809-1817), this is occurring during the administration of the 5th President James Monroe (another follower of Jefferson).
The case: The state of Maryland tried to impose taxes on the 2nd National Bank of the United States with the intention basically of shutting it down or making it unprofitable to stay operating. McCulloch was a banker who issued bank notes to customers without adding in the taxes. The state sued McCulloch, who then appealed to the Supreme Court. The court found in favor of McCulloch. Chief Justice Marshall's opinion paper emphasized: 1) the constitutionality of the bank, a bitter topic dividing Federalists and Republicans; 2) re-emphasized the "Necessary and Proper Clause" of the Constitution Article I Sec. 8, which Hamilton had used to establish the bank in the first place: The Congress shall have power [...] To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
3) It further reduced the powers of the states by taking away their authority to regulate the bank.
Assignment: Summarize and interpret one of the supreme court decisions listed below. Post your summary on your blog. Again, I don't expect you to understand all or even most of the texts, secondary sources will be a big help here, but it wouldn't hurt to familiarize yourselves more with the language of the legal system and how procedures work in the justice system, all of which falls under what we refer to as "due process".
Here are some resources that might help:
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