Thursday, July 29

“Marbury” And Me — An Autobiography

I originally intended to publish a column on the 1803 Supreme Court decision Marbury v. Madison last week, 22 November. In fact, I had the column finished, edited, and scheduled when Diane read what I had written and suggested that, instead of publishing the Marbury column then, that perhaps I should preface the Marbury column with a much more autobiographical “Skeptic’s Collection” column (1) narrating how I had become interested in that landmark case in order to (2) give some context for the Marbury column itself, and then (3)  subsequently publish the Marbury column the Thursday after – as it turns out, 6 December. Diane’s suggestion was very astute. So the following is a kind of intellectual autobiography of my very-much-ongoing love affair with Marbury v. Madison. Quixotic as it no doubt sounds in a culture where, according to NewsMax, 10% of college graduates believe Judge Judy is an Associate Justice of the Supreme Court, I hope that my story will somehow stimulate interest in, not only Marbury itself, but in the role of the courts in the American political culture, and perhaps most of all, in investigating the reasons why an independent Judiciary, despite being hated with such incendiary passion by the Trump Administration, is so life-or-death vital to the health of the American Republic.

I do not have time or space even to synopsize how my interest in the history, framing, and interpretation of the US Constitution became such a ruling passion of my life. Suffice to say that it all started when I saw the great movie Gettysburg and walked away from the theater deeply dismayed that the only character I recognized in the movie was Gen. Robert E. Lee. Not Gen. James "Old Pete" Longstreet. Not Gen. George Pickett. Not Col. Joshua Lawrence Chamberlain. I knew nothing about Little Round Top. Or the Peach Orchard. Or the Wheat Field. Or Bloody Run. I did not even know when the Battle occurred. So thus chastised, the day after the movie, I embarked on what grew into a multi-year program of reading everything I could get my hands on about the Civil War, Abraham Lincoln, slavery, I was – and to this day remain – swept up in that larger-than-life story. I have stood on Cemetery Ridge and let my eyes mist over as I imagined the horror of what happened there and the price that was paid.

Somewhere along the way, I encountered Abraham Lincoln and his almost religious reverence, not only for the Constitution, not only for the Declaration of Independence – but supremely for his deep and awestruck appreciation of the intimate connection between them. More than any President before or since, Abraham Lincoln understood that those two founding Documents are inextricably related.  So I began to read about the American Revolution. Which led to the history of the Founding. Which led to a study of the deliberations at the Constitutional Convention at Philadelphia in 1787. Then to the histories of the State ratification conventions, about which nothing greater has been written than the book Ratification by the late professor of history at MIT Pauline Maier. But along the way, I noticed something else. Article VI of the Constitution says with naked explicitness that the Constitution is the “supreme law of the land”: the “supremacy clause”But nowhere does the Constitution specify a procedure to be followed in case laws are passed that are in conflict with the Constitution.  Reading the proceedings of the Philadelphia Convention, which are quite sparse, I saw that this subject was raised several times, but nowhere was seriously debated. What to do with laws that were arguably unconstitutional seems to be an issue that was raised several times, only to be later tabled. Nor had the issue been resolved by the time the requisite number of States had ratified the Document in 1788.

John Marshall
James Madison

The issue continued to nag me as I plowed through all this material, comprising literally many hundreds of books. Nowhere did I find more than a vagrant suggestion of an answer or allusion to what we would later call “judicial review” – a term that did not even exist during ratification. It seemed an obvious question to ask, but no one, not even among that august company of Olympian immortals at Philadelphia, had an answer. From time to time, someone would suggest something called a “committee of revision” or a “committee of review,” whose function would be to examine doubtful laws and assess  their constitutionality or the lack thereof. Problem was, all such committees comprised members of Congress, i.e., the very body that had passed the dubious statute in the first place. And it seemed to me, and to those debating the issue at the time, that this involved an obvious conflict of interest: how could Congress impartially judge the constitutionality of its own legislative “product”? As the old legal maxim expresses it nemo iudex in causa sua – “No one may be a judge in their own case”. In other words, the fox may not guard the hen-house.

The only clue I found was in Alexander Hamilton’s “Federalist No. 78”, part of that great exposition of the Constitution called The Federalist, co-authored by James Madison, Alexander Hamilton, and John Jay. If you have never read the The Federalist, you owe it to yourself and to the Nation to get a copy – dirt-cheap, free or almost-free copies may be downloaded to your Kindle from Amazon – and invest some time in burrowing through it. I have done so repeatedly, and still do so from time to time. I would be willing to wager that what strikes you first will be the same thing that first impressed me:  the The Federalist was written under the assumption that the Constitution is intended to be understood.  Not just by tenured Yale Law faculty or professional scholars. But by anyone and everyone. All you have to do is refuse to be lazy. So much for the The Federalist in general.

Alexander Hamilton

The second thing that struck me pertains to Hamilton’s “Federalist No. 78,” where Hamilton addresses the issue of the courts. In retrospect, I realize that this is where dawn began to break over the mountaintops.  Says Mr. Hamilton:

The complete independence of the courts of justice is peculiarly essential to a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority:  such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. … No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal. [boldface added]

Hamilton then goes on to argue that the power of what we today know as “judicial review” does not imply that the Judiciary is superior to the Legislature, only that the will of the People, as expressed in a duly ratified Constitution, is superior to both. Furthermore, his insistence, argued earlier in “Federalist No. 78,” that judges should be appointed for life, subject only to good behavior, is intended to isolate the Judiciary from the pecuniary influence of politics and thereby ensure the judges’ impartiality. Today, we would say that Mr. Hamilton was attempting to “de-Trump-ify” the Bench.

But the main point, the real “take-away,” is not that laws contrary to the Constitution are null and void, with which principle even Matthew Whitaker would agree.  Where Messrs. Hamilton and Whitaker part company is the former's assertion that the Judiciary is the natural tribunal to declare laws such. This is the core of Chief Justice Marshall’s majestic argument in Marbury v. Madison. And that is the question which separates Whitaker from the Marshall Court.

The Constitutional Convention, Philadelphia, 1787

So I continued reading, this time with the actual decision, penned by Chief Justice Marshall’s own hand, of Marbury v. Madison. It was easy to find. Just download it for free from any Supreme-Court-related web site like Justia.  (Call me a masochist if you will, but I always recommend downloading and reading the entire text of the case, not just the syllabus [summary] so as to miss no detail.) Some of my fondest memories of Starbucks are of me sitting sipping my frap’ and doing a close reading of the actual Marbury decision. At last, upon dealing with Chief Justice Marshall's argument in meticulous detail, and given the context of Mr. Hamilton's Federalist paper, the light dawned. It all began to make sense. It was a brain orgasm. I finally got it.  I finally understood.

Mr. Marbury and his co-litigants had been awarded commissions as justices of the peace, back then a quite significant office, during the waning days of the Adams administration. Those commissions had been duly signed by President Adams and co-signed by John Marshall, Mr. Adams’s Secretary of State at the time. Then came the election of 1800. During the last few days of his Administration, President Adams nominated his friend the arch-Federalist John Marshall to be Chief Justice – the first Chief Justice, John Jay, having resigned to make a successful run to be Governor of New York – and the lame-duck Federalist Congress duly confirmed Mr. Marshall. Mr. Madison took over the duties of Secretary of State … and the commissions sat gathering dust on Mr. Madison’s desk at State. The past is prologue:  Mr. Marbury et al brought suit against Mr. Madison petitioning the Supreme Court to issue a writ of mandamus directing the latter to deliver the commissions to the plaintiffs – which the Supreme Court had been empowered to do by the Judiciary Act of 1789. The stage was thus set for Marbury v. Madison. (Strictly speaking, Chief Justice Marshall, as the Secretary of State at the time who co-signed the commissions, should have recused himself under the principle of nemo iudex in causa sua.) For the rest, read next week’s “Skeptic’s Collection” column.

I well remember being in intellectual warp drive once the light dawned at that Starbucks on Benson Road a couple of miles from my house. Now I read everything I could get my hands on about that particular case-of-all-cases Marbury v. Madison. I borrowed books. I downloaded books from Amazon. Eventually, I ended up auditing three courses on advanced constitutional law at the UW Law School. I was voracious, insatiable. Now I understood why it is not uncommon for graduate schools in American history and constitutional history to devote entire quarters, entire semesters, to Marbury alone.

But at that point, a second wind of my ongoing perfect storm began to blow. In parallel with my reading about the US Constitution, I had been reading about the history of the European Enlightenment, beginning with the best single-volume study of the Enlightenment I know of:  Jacques Barzun's From Dawn to Decadence, a doorstop of a book I could not put down, including the histories of the great religious wars in Europe in the 1500s and 1600s.  Something clicked. It occurred to me that Messrs. Hamilton and Marshall, probably unintentionally, had independently hit upon the salient advantage of what came to be known as judicial review. And I understood this advantage in terms of the religious wars that devastated Europe two centuries before:  the absence of a standard for assessing the truth value of statements.

Say what you will about the Catholic magisterium -- body of essential teaching -- agree with it, disagree with it, praise it, revile it, as you will. It is indisputable that the magisterium indisputably does possess one overwhelming virtue:  it is a standard for evaluating the theological validity of statements about religious faith and morals. The Protestant Reformation did away with the magisterium, and Europe was the bloodier for it. After the middle of the 16th century, there was no longer any standard to which to appeal in assessing religious truth. Every denomination, every sect -- every individual's conscience, according to Martin Luther -- had its own standard of truth, and there was no objective criterion for determining which were true and which were false. (I have written about this here and here.) This lack of a common criterion meant that there was no way to establish a religious or theological orthodoxy peacefully. The only alternative was to draw the sword. Which Protestant Europe did.  With a vengeance. 

Scene from 30 Years War
Battle of Gettysburg

The theory and practice of judicial review provides for jurisprudence what the pre-Reformation Catholic magisterium provided for theological doctrine:  a final court of appeal to settle disputes among competing religious teachings. Once the buck has passed to the magisterium and has been assessed by Church authorities, the buck has nowhere else to go. (I repeat:  you may like this, you may hate it, but if you disagree with the magisterium, there is nowhere to go except to the sword.) Similarly, once the jurisprudential / constitutional buck has been passed to the Supreme Court and that Court has issued its judgment, there is nowhere else for the legal buck to go. The matter has been decided. For, as Chief Justice Marshall said in the Marbury decision, "it is the province and duty of the Judicial Department to say what the law is." Period. Full stop. Only once in American history has the authority of the Supreme Court to authoritatively interpret the Constitution ever been seriously questioned. We usually call the result "the Civil War". I think I could make a pretty good case, in fact, that, in terms of the way it dealt with authoritative texts -- the Bible in the case of Christianity; the Constitution in the case of jurisprudence -- the American Civil War was the last major Catholic / Protestant war in European history. Many contemporary conservative evangelical Protestants seem determined to forget the lessons of the religious wars of Europe and favor a return to hermeneutical "diversity". This amounts to advocating for re-fighting the 30 Years War. The Union victory in the Civil War reestablished the authority, not only of the US government, but of the Supreme Court in particular, specifically its role in interpreting the Constitution.

That is why Marbury is of such critical importance:  it keeps the US from repeating, on a jurisprudential level, the same fatal error that the European nations committed in the 16th and 17th centuries on a religious level. Matthew Whitaker is more than welcome to light a candle at an altar dedicated to John C. Calhoun. I prefer to revere Mr. Chief Justice Marshall.

James R. Cowles

Image credits

"Marbury" quote ... Flickr ... Creative Commons Attribution-Share Alike 2.0 Generic
James Madison portrait ... John Vanderlyn ... Public domain
John Marshall portrait ... Henry Inman ... Public domain
Alexander Hamilton portrait ... John Trumbull ... Public domain
Thomas Jefferson portrait ... ... Public domain
Supreme Court building ... Daderot ... Public domain
Portrait of Constitutional Convention ... John H. Froehlich ... Public domain
Constitution ... ... Public domain
Scene from 30 Years War ... Ernest Crofts ... Public domain
Battle of Gettysburg ... Library of Congress ... Public domain
Chief Justice John Marshall portrait ... ... Public domain

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