The Tempting of America Read online

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  Creation and Fall

  The First Principles of the Social Compact

  The Constitution was barely in place when one Justice of the Supreme Court cast covetous glances at the apple that would eventually cause the fall. The occasion was the Supreme Court’s 1798 decision in Calder v. Bull.1 A probate court of Connecticut refused to accept a will, but the legislature invalidated the court’s refusal. The court then accepted the will, and those who would have inherited under the first decision appealed to the Supreme Court. They lost, but two Justices took the occasion to disagree profoundly about the scope and nature of judicial power. Justice Samuel Chase of Maryland was prepared to strike down laws that violated no provision of any constitution, federal or state. His extraordinary opinion was supported less by legal reasoning than by frequent recourse to the typographic arts.

  I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control·, although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State… . The purposes for which men enter into society will determine the nature and terms of the social compact. … An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority… . The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them… . To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.

  One gathers that Justice Chase felt strongly, and he certainly gave judicial activism an emotional, if not an intellectual, heritage. No modern Court has been quite so candid in claiming a power beyond any written law. But then no modern revisionist Court has offered any better explanation of its power than did Chase’s italics. Chase was an intemperate and highly partisan judge, a trait that later led to his impeachment by the House, though he escaped conviction in the Senate. Given his later behavior, it seems likely that Chase identified the “great first principles of the social compact” with the politics of the Federalist Party. By 1798 the Jeffersonian Republicans had become an obvious threat at the polls, and it is possible Chase was preparing a rationale for defeating their legislation by summoning up an unwritten social compact known only to himself.

  Justice James Iredell of North Carolina answered Chase.

  If, then, a government … were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess the power to declare it so… . The ideas of natural justice are regulated by no fixed standard: the ablest and the purest of men have differed upon the subject… .2

  In this case, the emphasis is mine, not the Justice’s. It is noteworthy that the impulse to judicial authoritarianism surfaced and was resisted at the beginning of our constitutional history. The Justices’ exchange did not affect the outcome of the case, but it set out opposing philosophies that remain with us today. It is somewhat disheartening, indeed, that, while the debate has grown increasingly complex, in almost two centuries the fundamental ideas have not been improved upon.

  The Divided John Marshall

  John Marshall, commonly thought the greatest judge in our history, was named the fourth Chief Justice of the United States in 1801. Thomas Jefferson had just won the presidency but had not yet been sworn in, and President John Adams, fearful of Jefferson’s principles, wished to preserve the national judiciary as a Federalist Party stronghold. The appointment of Marshall, who was Adams’s Secretary of State, did much to accomplish that. The Federalists and the Republicans had very different ideas about how the young nation should develop. The Federalists stood for a much stronger national government than did the Jeffersonians. Today, it seems difficult to see the point in the struggle to draft and ratify the Constitution if Jefferson and his followers were correct. This conflict of visions probably does much to explain Marshall’s performance as Chief Justice.

  An explanation of some sort is required, for even those of us who deplore activism admire Marshall, and it is clear that Marshall was, in some respects, an activist judge. But his activism consisted mainly in distorting statutes in order to create occasions for constitutional rulings that preserved the structure of the United States. Although he may have deliberately misread the statutes, he did not misread the Constitution. His constitutional rulings, often argued brilliantly, are faithful to the document. Marshall’s tactic may perhaps be understood, for the survival of the Union was probably in some part due to the centralizing and unifying force of Marshall and his Court. The threat was posed by the Jeffersonians’ insistence upon an extreme version of state sovereignty. For a time Jefferson viewed the Constitution as a mere compact among the states, leaving each state with the right to decide for itself whether actions of the national government were unconstitutional. Jefferson’s view of the power of judicial review was of a piece. He accepted judicial review that included review of the acts of the President and Congress, but he thought those branches had a right to decide for themselves whether to accept the Court’s ruling.

  These positions would certainly have made the national government unworkable. Indeed, the centrifugal forces in the new nation were so great that at times Marshall and others despaired of the Union’s survival. Congress often behaved more like a bevy of ambassadors from separate nations than a national assembly. The Federalist judiciary was the one strong, centralizing branch of government. Marshall knew that and used his powers accordingly. Jefferson knew it too, and was determined to destroy the courts’ independence. It is against this backdrop that one must evaluate Marshall’s performance.

  The Jeffersonians chose impeachment as the weapon to reduce the Federalist redoubt in the judiciary. They began with an easy target: John Pickering, a federal district judge in New Hampshire, who was apparently both insane and a drunkard. These characteristics may not, oddly enough, be sufficient grounds for impeachment. (Article II, section 4 requires “Treason, Bribery, or other high Crimes and Misdemeanors”3 for the removal of civil officers. But article III, section 1 states that judges “shall hold their Offices during good Behavior,”4 and it is not settled whether that standard is different from the standard stated under the general impeachment provision.)5 The House impeached Pickering nonetheless, and the Senate convicted, thus removing him from office. The Federalists feared, correctly, that this was a trial run for the pursuit of more substantial prey. The Jeffersonians did in fact move on to the impeachment of a Justice of the Supreme Court, Samuel Chase. Chase, as we have seen, claimed the power to strike down laws that violated no provision of the Constitution but were, in his view, “contrary to the great first principles of the social compact.” One wishes the House had impeached and the Senate convicted him for those sentiments. He was chosen instead as a likely opening for a full-scale assault on the Court because he seemed, for other reasons, the most vulnerable of the Justices. A fierce Federalist, he displayed a raging partisanship both on and off the bench. In the event, the Jeffersonians could not muster the two-thirds of the Senate necessary to convict, and Jefferson, calling impeachment “not even a scare-crow,” realized that it was not a weapon that could reach John Marshall and the other Federalist Justices.6

  The Jeffersonian threat to the Court, which was obvious before the attempt on Chase, may have led Marshall to the then much-criticized opinion that has become his most famous. Marbury v. Madison,7 the 1803 decision that rationalized, though it was not the first to ass
ume, the Court’s power of judicial review, is a curious blend, an essay resting the power to invalidate statutes of Congress on the original understanding of the Constitution and yet reaching the question of that power without justification.

  Marshall himself precipitated the case. While serving both as Chief Justice and Secretary of State, he neglected, in his latter capacity, to deliver commissions to some Federalist judges appointed in a rush at the end of Adams’s administration. One who failed to receive his commission was William Marbury, confirmed by the Senate for the post of justice of the peace for the District of Columbia. Jefferson, annoyed at Adams’s last-minute packing of the courts, directed his Secretary of State, James Madison, to withhold the undelivered commissions. Marbury and four others in the same situation brought an action in the Supreme Court, where Marshall now presided, seeking a writ of mandamus to compel Madison to deliver the commissions. (A writ of mandamus is a court order directing an official to perform his duty.) It was a very odd lawsuit, one with no chance of success, and it may have been a Federalist political gambit to embarrass the Republicans. Madison was so contemptuous of the suit that he did not even respond.

  Marbury had clearly brought his case in the wrong court. Article III of the Constitution, which structures the federal judiciary, places certain classes of cases within the appellate jurisdiction of the Court. These are cases that originate in lower courts and come to the Supreme Court for review. Other classes of cases are placed within the Court’s original jurisdiction. These cases begin and end in the Supreme Court. Cases placed in the original jurisdiction are those likely to be especially politically sensitive, such as cases affecting ambassadors or cases in which a state is a party. Though Marbury had filed directly in the Supreme Court, his claim obviously did not qualify to be placed in its original jurisdiction and should have been dismissed out of hand.

  Instead, Marshall delivered a long opinion, part of which was designed to embarrass the Jeffersonians for not delivering Marbury’s commission, to which he had a legal right, according to Marshall. The other part was a lengthy disquisition on the power of the Court to strike down statutes that were inconsistent with the Constitution. In order to reach that issue, Marshall had not only to ignore the fact that his Court had absolutely no jurisdiction, he had as well to distort the statute in order to make it a fit subject for a holding of unconstitutionality. Congress had authorized the Supreme Court “to issue writs of mandamus, in cases warranted by the principles and usages of law,” to officers of the United States. There was nothing in the least controversial in this humdrum and inoffensive power to require an officer to do his duty. But Marshall argued, quite incorrectly, that a writ of mandamus could be issued only in the exercise of the Court’s original jurisdiction; hence, Congress had added to the Court’s original jurisdiction, which was defined by the Constitution, and had thus impermissibly attempted to alter the Constitution by statute. The statute must, therefore, be struck down.

  None of this made much sense. Congress had clearly not attempted to do what Marshall claimed. Mandamus is a well-known writ and had long been used by courts of appellate jurisdiction. There might well, for instance, be cases on appeal in which the Court would wish to issue mandamus to prevent an officer from taking an action that would render the case moot before the Court could decide it. Before and after Marbury, courts have found that and other occasions for the issuance of mandamuses in aid of appellate jurisdiction. In fact, the language that supposedly tried to add to the Court’s original jurisdiction came at the end of a sentence in which Congress was explicitly dealing with the appellate jurisdiction of the Court. Marshall and his Court had, apparently, deliberately misread a clear statute in order to write an essay on the constitutional power of the Court to declare an act of Congress void.

  Contrary to common belief, it was not the first time members of the Court had asserted that power. Eleven years before, in Hayburn’s Case,8 most of the Justices had refused to comply with a statute because it assigned them duties not of the judicial nature specified by the Constitution, but no extensive explanations had been given. Marbury was decided after Pickering’s impeachment but before his removal. Perhaps Marshall, knowing Jefferson’s plans for the Court and the nation, was concerned to assert the Court’s power more vigorously than the Justices had done in Hayburn’s Case and to provide an intellectual foundation for judicial supremacy. If so, many commentators since have thought the foundation inadequate to support the structure. That is not to deny that the power claimed exists; there are better arguments than Marshall’s for the legitimacy of judicial review.

  The good news about Marbury is that Marshall placed the Court’s power to declare laws unconstitutional directly upon the fact that the United States has a written Constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”9 He said that the theory of every government with a written Constitution “must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution… .” Moreover, “it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” Chase’s speculations in Calder v. Bull were ignored.

  Yet only seven years later, Marshall appeared to adopt, almost in passing, something very like Chase’s position on principles of natural justice as a source of judicial power. The Georgia legislature, all but one of whose members appear to have been corrupted (and that member happened to be absent), sold millions of acres along the Yazoo River for prices that ranged between one cent and one and one-half cents per acre, an extraordinarily inadequate price. The Yazoo land fraud, as it came to be called, was the only issue in the next election; the rascals were relieved of any further concern with the people’s affairs, and the next legislature rescinded the land grant. In the meantime, however, many of the original purchasers, who had themselves corrupted the prior legislature, resold to others who were apparently innocent. A purchaser sued his seller because the rescission of the grant deprived him of the land and the seller held his money. The case, Fletcher v. Peck,10 eventually came to the Supreme Court.

  Marshall thought the rescinding statute necessarily rested on a proposition he was unable to accept. “The principle is this; that a legislature may, by its own act, devest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient.” Before coming to the conclusion that that principle was foreclosed by article I, section 10 of the Constitution, which provides that “No State shall … pass any … Law impairing the Obligation of Contracts,”11 Marshall suggested another ground of invalidity: “It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation[?]”12 He said it was “well worthy of serious reflection” whether transferring the property of an individual to the public “be in the nature of the legislative power.” Marshall speculated that a court might enforce an inherent, but unwritten, limit on the legislative power arising from the nature of society and government. This is a remarkable performance, since Marshall, who intended to rely upon a provision of the federal Constitution, had to go well out of his way to float the idea that a court might strike down a statute even where “the constitution is silent.”

  But Marshall’s speculations are tepid compared to the opinion of Justice William Johnson of South Carolina. He began with the sweeping pronouncement: “I do not hesitate to declare that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things: a principle which will impose laws ev
en on the deity.”13 Marshall at least had suggested extra-constitutional power only over the legislature and left God alone. Given Johnson’s extravagant beginning, one reads on with considerable anticipation. Unfortunately, the principle that controls both Georgia and the deity seems too confused for general application.

  When the legislature have once conveyed their interest or property in any subject to the individual, they have lost all control over it; have nothing to act upon; it has passed from them; is vested in the individual; becomes intimately blended with his existence, as essentially so as the blood that circulates through his system. The government may indeed demand of him the one or the other, not because they are not his, but because whatever is his is his country’s.