John Marshall and the Constitution

s War On T

ion-still in the hands of the builders but already sagging and leaking through the shrinkage of the green timber they had used-two or three partially constructed office-buildings, and a few private edifices and boarding houses. Marshall never removed his residence to Washington but occupied chambers in one or other of these buildings, in company with some of the associate justices. This arrangement was prac

nearer completion, in a basement chamber, approached by a small hall opening on the eastern side of the Capitol and flanked by pillars carved to represent bundles of cornstalks with ears half opened at the top, Marshall held court for m

the Court does not seem to have occupied its basement chamber d

rences of character and outlook. As good fortune arranged it, however, each came to occupy precisely that political station in which he could do his best work and from which he could best correct the bias of the other. Marshall's nationalism rescued American democracy from the vaguer horizons to which Jefferson's cosmopolitanism beckoned, and gave to it a secure abode with plenty of

t increasing its numbers; but if so, he got nothing for his pains. The new President seemed particularly bent upon dispelling any idea that there was to be a political proscription. Let us, said he, "unite with one heart and one mind. Let us restore to social intercourse

y this was so have already been indicated, but the most potent reason in 1801, because it was still freshest in mind, was the domineering part which the national judges had played in the enforcement of the Sedition Act. The terms of this illiberal measure made, and were meant to make, criticism of the party in power dangerous. The judges-Federalists to a man and bred, moreover, in a tradition which ill distinguished the office of judge from that of prosecutor-felt little call to mitigate the lot of those who fell within the toils of the law under this Act. A shining mark for

l alterations of the judicial system of the State were pending. In Pennsylvania the situation was even more serious, for though the judges of the higher courts of that commonwealth were usually men of ability, education, and character, the inferior magistrates were frequently the very opposite. By the state constitution judges were removable for serious offenses by

al to add to his normal judicial duties the business of inculcating "sound morals and manners." 1 Addison had at once taken the Alien and Sedition laws under his wing, though their enforcement did not fall within his jurisdiction, and he found in the progress of the French Revolution numerous texts for partisan harangues to county juries. For some reason Addison's enemies decided to resort to impeachment rather than to removal

onwealth, on October 8, 1785, that they ought not to content themselves merely with enforcing the law, bu

questions: first, whether Congress could abolish courts created by a previous act of Congress; and second, whether, with such courts abolished, their judges still retained office. Addressing himself to the first question, Taylor pointed out that the Act of the 13th of February had itself by instituting a new system abolished the then existing inferior courts. As to the second

fferson's letter to A. Stuart of April 5, 1801. See the Com

nstance, said: "You shall not take the man from the office but you may take the office from the man; you may not drown him, but you may sink his boat under him.... Is this not absurd?" Other Federalists, however, were ready to admit that courts of statutory origin could be abolished by statute but added that the operation of Congress's power in this connection was limited by the plain requirement of the Constitution that judges of the United States should hold office during good behavior. Hence, though a valid repeal of the Act

udicial review and the whole trend of the debate abundantly confirmed this implication. Breckinridge, Randolph, and Giles, it is true, scouted the claim made for the courts as "unheard-of doctrine," and as "mockery of the high powers of legislation"; but the rank and file of their followers, with the excesses of the French Revolution a recent memory and a "consolidated government" a recent fe

ed first, the fact nevertheless remained that in realizing their purpose the Republican majority had established a precedent which threatened to make of the lower Federal Judiciary the merest cat's-paw of party convenience. The attitude of the Republican leaders was even more menacing, for it touched the secu

it had not yet been delivered when Jefferson took office. The new President ordered Madison, his Secretary of State, not to deliver the commission. Marbury then applied to the Supreme Court for a writ of mandamus to the Secretary of State under the supposed authorization of the thirteenth section of the Act of 1789, which empowered the Court to issue the writ "in c

f the case is drawn largely upon my Doct

y questionable when he contended that the thirteenth section violated that clause of Article III of the Constitution which gives the Supreme Court original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party." These words, urged the Chief Justice, must be given an exclusive sense "or they have no operation at all." This position is quite untenable, for even when given only their affirmative value these words still place the cases enumerated beyond the reach of Congress, and this may have been their only purpose. Howev

gain, he evaded the perilous responsibility of passing upon the validity of the recent Repeal Act in quo warranto proceedings, such as were then being broached. 1 For if the Supreme Court could not issue the writ of mandamus in suits begun in it by individuals, neither could it issue the writ of quo warranto in such suits. Yet again Marshall scored

e in depriving the judges of all power derived from the act repealed" but not their office, "which is a mere capacity, without new appointment, to receiv

f judicial review will be found anticipated in the debate on the Repeal Act. What Marshall did was to gather these arguments together, winnow them of their trivialities, inconsist

f this part of his opi

in writing if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on which they are imposed, a

ive it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what w

r, 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 either decide that case conformabl

f all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, complet

es is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that in using it the Constitution should not be

person," says the Constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the Constitution is addressed especially to the courts. It prescribes, di

w of the land, the Constitution itself is first mentioned; and not the laws of the United State

the principle, supposed to be essential to all written constitutions, that a law repugnant to the

judicial review but only that it "confirms and strengthens the principle." Granting the finality of judicial decisions and that they ma

ing through its Chief Justice the ineluctable decrees of the law. Ordinarily even Marshall would not have found this achievement an easy task, for there were difficult personalities among his associates. He had in Adams

our republican Constitution ... into a mobocracy, the worst of all possible governments." 1 Considering the fact that the President was still smarting from the Chief Justice's lash and also that Chase himself was more heartily detested by the Republicans than any other member of the Supreme Bench, nothing could have been more untimely than this fresh judicial excursion into the field of "manners and morals," and partisan malice was naturally alert to interpret it as something even more offensive. The report soon came from Baltimore that Chase had deliberately assailed the Administration as "weak, pusillani

ed on Charles Evans's shorthand Report (Baltimor

the defendant's insanity; and so the question at once arose whether an insane man can be guilty of "high crimes and misdemeanors?" Greatly troubled by this new aspect of the case, the Senate none the less voted Pickering guilty "as charged," by the required two-thirds majority, t

00 to dragoon a grand jury at Newcastle, Delaware, into bringing forward an accusation of sedition against a local paper. These seven articles related therefore to transactions already four or five years old. The eighth article alone was based on the address at Baltimore, w

iary-said there was not a word about their independence in the Constitution.... The power of impeachment was given without limitation to the House of Representatives; the power of trying impeachment was given equally without limitation to the Senate; and if the Judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional, or to send a mandamus to the Secretary of State, as they had done, it was the unreserved right of the House of Representatives to impeach them, and that of the Senate to remove them, for giving such opinions,

t and left of the President of the Senate, and in a right line with his chair, there are two rows of benches with desks in front, and the whole front and seats covered with crimson cloth.... A temporary semi-circular gallery, which consists of three ranges of benches, is elevated on pillars and the whole front and seats thereof covered with green cloth.... In this gallery ladies are accommodated.... On the r

, was convicted of manslaughter. In 1805 Martin was the acknowledged head of the American Bar, but at the same time he was undoubtedly a drunkard and a spendthrift. With an income of $10,000 a year, he was always in need. His mediocre stature, thinning locks, and undistinguished features created an impression which was confirmed by his slovenly attire and ungrammatical speech, which seemed "shackled by a preternatural secretion of saliva." Here, indeed, for ugliness and caustic tongue was "the Thersites of the law." Yet once he was roused to action, his great resources made themselves apparent: a memo

But Rodney and Nicholson, both much abler lawyers, openly disavowed such latitudinarian doctrine. In a general way, their view of the matter may be stated thus: Because judges of the United States are guaranteed continuance in office only during "good behavior," and because impeachment is the only method of removal recognized by the Constitution, the "high crimes and misdemeanors" for which impeachment

if he had." Similarly Hay, whose repeated efforts to bring the question of the constitutionality of the Sedition Act before the jury had caused the rupture between court and counsel in Callender's case, owned that he had entertained "but little hopes of doing Callender any good" but had "wished to address the public on the constitutionality of the law." Sensations multiplied on every side. A man named Heath testified that Chase had told the marshal to strike all Democrats from the panel which was to try Callender; whereupon a second witness called to confirm this testimony stated fa

gnitude of the crimes of which Warren Hastings had been accused, and pointed out that, whereas in England only two judges had been impeached in half a century, in America, "boasting of its superior purity and virtue," seven judges had been prosecuted within two years. More loosely wrought, but not less effective was Martin's address, the superb climax of a remarkable forensic career! The accusation aga

g of the distressing exhibition of incompetence which was to follow. "On the reopening of the court," records John Quincy Adams in his Memoirs, "he [Randolph] began a speech of about two hours and a half, with as little relation to the subject-matter as possible ... without order, connection, or argument; consisting altogether of the most hackneyed commonplaces of popula

burst of smiles both from the great central luminary, Jefferson, and his paler satellites, Madison and Gallatin. Invitations to the President's dinners were soon followed by more substantial bribes. Burr's step-son became judge of the Superior Court at New Orleans; his brother-in-law, secretary to the Louisiana Territory; his intimate friend Wilkinson, its military commandant. Then Giles, whose view of impeachment left him utterly shameless in the matter, drew up and circulated in the Senate

t of thirty-four; on the second, only ten; on the fifth, none; on the sixth, four. Even on the last article, where they made their best showing, they were still four votes short of the required constitutional majority. When the result of the last ballot was announced, Randolph rushed from the Senate chamber to the House to

d been obliged to go to Delaware, whence they procured C?sar A. Rodney, one of the House managers against Chase. The two impeachments were thus closely connected and their results were similar. In the first place, it was determined that impeachment was likely to be, in the petulant language of Jefferson, "a farce" not soon to be used again for partisan purposes. In the second place, it was probable that henceforth