The Activist

by Lawrence Goldstone

  The next day, June 20, Madison opened with a lengthy speech discussing each of the areas of jurisdiction, both original and appellate, of the proposed Supreme Court. In more than two hours, he never mentioned Edmund Pendleton’s assertion that Congress was prohibited from altering the rules of the Court’s original jurisdiction, nor did he mention the power of the judiciary to refuse to enforce a law on the grounds of unconstitutionality. Indeed, to this point in the proceedings, the immense power of judicial review had not come up.

  After Henry once again took the floor to rail against the unspeakable horrors that would inevitably spring from a national judiciary—the ruination of state courts, the abolition of trial by jury, crippling lawsuits by foreigners—Pendleton attempted without much success to rebut him. George Mason spoke briefly in counter-rebuttal. Then John Marshall was granted the floor.

  “Mr. Chairman,” Marshall began, “this part of the plan before us is a great improvement on that system from which we are now departing.”7 He spoke for the better part of two hours. Employing the same Socratic techniques he would later use on the bench, Marshall refuted each of Henry’s and Mason’s assertions, first by restating them, then by subjecting their arguments to a series of withering rhetorical questions, rendering each of the points a reductio ad absurdum.

  Marshall began with Mason’s charge that “the federal courts will not determine the causes which may come before them with the same fairness and impartiality with which other courts decide.” To that, he replied,

  What is it that makes us trust our judges? Their independence in office, and manner of appointment. Are not the judges of the federal court chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more, independent? If so, shall we not conclude that they will decide with equal impartiality and candor? If there be as much wisdom and knowledge in the United States as in a particular state, shall we conclude that the wisdom and knowledge will not be equally exercised in the selection of judges?8

  To answer Henry’s charge that a fair trial could never be assured in a national court, Marshall replied, “Is there not the utmost reason to conclude that judges, wisely appointed, and independent in their office, will never countenance any unfair trial?”9

  Marshall then turned his attention to the inflammatory issue of judicial expansion. Henry, and particularly Mason, had continually made the point that, because Article III was so vague on how many national courts could be created, a federal judiciary would ultimately overwhelm state courts. Marshall turned the issue on its head. Citing another of Henry’s objections, that a national court would be so remote for many citizens as to make justice unattainable, Marshall asserted, “But I did not conceive that the power of increasing the number of courts could be objected to by any gentleman, as it would remove the inconvenience of being dragged to the centre of the United States. I own that the power of creating a number of courts is, in my estimation, so far from being a defect, that it seems necessary to the perfection of this system.”10

  Then Marshall came to judicial review.

  Mason had insisted that Article III gave federal courts unlimited jurisdiction. As a result, state courts would eventually be rendered impotent, since, as the laws of the United States were superior, federal courts could simply extend their reach to any case they so chose.11 Marshall’s reply went straight to the question of who says what the law is:

  With respect to its cognizance in all cases arising under the Constitution and the laws of the United States, [Mason] says that, the laws of the United States being paramount to the laws of the particular states, there is no case but what this will extend to. Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.12

  A bit later in his speech, Marshall added, “To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.”13

  Neither Henry nor Mason responded to Marshall’s declaration. Certainly, Mason had asserted this very position on judicial review at the Convention. No one in the Federalist camp commented either. Judicial review, after one ephemeral appearance, was buried in the avalanche of rhetoric.

  Except for one brief comment, Marshall did not speak for the remainder of the convention. For the final week of debate, the battle was between Madison and Henry. Would the inclusion of amendments be a condition of Virginia’s ratification? Henry, whose main argument was the necessity of state sovereignty, had the emotions of patriotic Virginians to play upon. But Madison had practicalities on his side. If the Constitution was rejected, how then would the United States be governed? What did Henry propose as an alternative? The status quo? Keep the Articles of Confederation? That was suitable to no one.

  The prospect of continuing under a failed system finally persuaded undecided delegates to vote Madison’s way. On Wednesday, June 25, 1788, two votes were taken. The first, a motion by Henry to make the inclusion of amendments conditional to Virginia’s ratification, failed, 88 votes to 80. The second, to ratify the Constitution, but also include amendments as non-binding suggestions for revision, passed, 89–79. A list of twenty proposed amendments to be attached to Virginia’s certification to Congress was agreed to two days later.

  Unbeknownst to the delegates, Virginia had not created a new union, but simply joined one that had been in existence for less than a week. In mid-July, word finally arrived in Richmond that New Hampshire had already ratified the Constitution.

  * He worked at every fear, especially those of slave owners. “They’ll take your niggers,” he said famously.

  † Henry’s adherents were less a supporting cast than simply others who coincidentally shared his position. George Mason, for example, who could have matched Madison in classical rhetoric and logic, never coordinated with the diva, Henry, and in the end it cost them dearly.

  FIVE

  UNITING A NEW NATION:

  RATIFICATION IN NEW YORK

  CONGRESS, STILL MEETING under the Articles of Confederation in New York, received word of New Hampshire’s ratification earlier, on Wednesday, July 2. That same day, Congress issued a directive “that the ratifications of the constitution of the United States transmitted to Congress be referred to a committee to examine the same and report an Act to Congress for putting the said constitution into operation in pursuance of the resolutions of the late federal Convention.”1 In the vote to authorize the committee, only one congressman voted against, New York’s Abraham Yates.2 With only one other member of its delegation present, New York’s vote was thus left as “divided.” Although word of Virginia’s ratification had yet to arrive, the state’s three delegates all voted “aye.” Of the other two holdouts, North Carolina was not present and the Rhode Island delegates, who were in the chamber, were marked “excused.”3 Thus, the states that had yet to ratify were already being forced to grapple with a nation that had chosen to move on, either with them or without them.

  While in North Carolina and Rhode Island sentiment remained firmly against the Constitution, seventy-five miles up the Hudson River from the congressional chamber, at the New York ratifying convention in Pough-keepsie, the battle for ratification was raging. The convention was an exercise in high drama as the brilliant, mercurial (and outnumbered) Alexander Hamilton tried to wrest victory from the leader of the Anti-Federalists, Governor George Clinton.4 Although the New York ratifying convention lasted longer than that in any other state—June 17 to July 28—what makes the struggle for ratification in New York so memorable was not
the slugfest in Poughkeepsie, but rather the ethereal debate in New York City that had occurred in the months before the convention convened. Remarkably, not only did the participants never meet, they never even knew each other’s identities, as the debate was conducted entirely through pamphlets published in rival newspapers. Yet nowhere was the contest between those who would opt for the Constitution and those who would reject it conducted with more intensity, more intelligence, or more lasting impact than between these pamphleteers. They left America with perhaps its most enduring legacy of constitutional theory and analysis.

  New York was an unlikely scene for a philosophical discourse over government. Other than Rhode Island, which had not even sent a delegation to Philadelphia, New York’s three Constitutional Convention delegates had exhibited less enthusiasm for the proceedings than those of any other state. Two of the men—Robert Yates, a New York judge and Abraham Yates’s younger brother, and the politician Robert Lansing Jr., to whom Yates was related by marriage—shared an ardent opposition to abdicating state authority to a central government. Yates and Lansing were appointed to go to Philadelphia in large part to ensure that New York’s third delegate, the archnationalist Hamilton, did not try to hijack the Convention and overstep the bounds of the mandate to merely reform the Articles of Confederation.

  In early July, when it became clear that the Convention intended to replace the Articles with a much more powerful central government, Yates and Lansing left, writing in a letter to Clinton that “for so important a trust as the adopting of measures which tended to deprive the state government of its most essential rights of sovereignty, and to place it in a dependent situation, could not have been confided by implication,” and “our powers could not involve the subversion of a Constitution which, being immediately derived from the people, could only be abolished by their express consent.”5

  Hamilton, after giving a six-hour speech in June during which he advocated, among other measures, the elimination of the states as political entities and an executive that sounded suspiciously like a monarch, left even before Lansing and Yates and eventually missed nearly two months of the Convention. When Hamilton returned to stay, at the end of August, he thought it wrong that any state’s vote should be cast by only one delegate and New York abstained on all questions until the Convention rose. Still, although it fell far short of his ideals, Hamilton became an enthusiastic supporter of a plan that he saw as a vast improvement on the status quo.

  On October 18, 1787, less than a month after the text of the Constitution was published in the Pennsylvania Packet, an article appeared in the New York Journal signed by “Brutus.” It was addressed “To the Citizens of the State of New-York,” and began “When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result.”6

  After noting “We have felt the feebleness of the ties by which these United-States are held together, and the want of sufficient energy in our present confederation, to manage, in some instances, our general concerns,” Brutus went on to observe, “if the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed.”7 Then, for the remainder of the essay and in fifteen additional essays that stretched into April of the following year, Brutus persuasively and elegantly detailed why the new Constitution would achieve none of those aims, but rather would centralize power and overwhelm state governments, which would, in turn, “lead to the subversion of liberty,” and threaten “to establish a despotism, or, what is worse, a tyrannic aristocracy.”8

  Brutus had chosen his pseudonym with care. Although now popularly associated exclusively with the man who committed the ultimate betrayal of Julius Caesar (in the name of saving the republic from tyranny), late-eighteenth-century readers were also well aware of the earlier Lucius Junius Brutus who, in the sixth century B.C., led a successful revolt against the last Roman king, Tarquin the Proud, and became one of the founders of the Roman republic. As was the custom at the time, the New York “Brutus” did not reveal his true identity.9

  Nine days after Brutus’s essay appeared in the Journal, another essay was published in a rival newspaper, the New York Independent Journal, this one addressed “To the People of the State of New York,” and signed by “Publius.” That this essay was in response to Brutus there could be no doubt. Pub-lius Valerius was an eminent statesman of the Roman republic, whose fame and power crested after Lucius Junius Brutus died in battle trying to prevent Tarquin from retaking his throne. So popular was Publius Valerius with the citizenry of Rome that he was granted the additional honorific, “Publicola,” which according to Plutarch meant “people-cherisher.”

  Publius would write eighty-five essays, the last of which would appear in May 1788, all of them extolling the virtues of the new Constitution.10 Just after the final essay appeared, the entire body of work was published as a two-volume set titled The Federalist. The essays were translated into French soon after—just in time for the revolution—and eventually into almost every other language. The Federalist has been in print ever since.

  The Federalist essays have been called the “most important work in political science that has ever been written, or is likely ever to be written, in the United States.”11 While the essays are certainly brilliant dissertations on both political theory and the permutations and ramifications of the new Constitution, they were written to persuade, to advocate for ratification, not to even-handedly discuss or dissect Constitutional issues.12

  Like Brutus, Publius did not reveal his identity and, even as editions of The Federalist began to be read throughout Europe in the 1790s and early 1800s, the author’s anonymity was maintained. Finally, in July 1804, as his duel with Aaron Burr drew near, Alexander Hamilton, in putting his affairs in order, included a brief note that revealed that the Federalist essays had been written on his initiative and that Publius was in fact three men— himself, James Madison, and John Jay. Jay had written five of the essays, and Madison and Hamilton had split the rest.13

  That the Publius essays had abruptly ended although ratification in New York was still very much in doubt had been a cause of consternation to Federalists. Why had Publius put down his pen just as the most crucial time was upon them? The timing of the termination was not explained until the identity of the authors was revealed. Hamilton and Jay had to be off to Pough-keepsie as delegates to the very New York ratifying convention they had been trying to influence; and, most importantly, Madison had been forced to leave the state and return to Virginia in an attempt to thwart Patrick Henry.

  Publius’s first essay, written by Hamilton, began in the same manner as his opponent’s. “You are called upon to deliberate on a new Constitution for the United States of America,” he wrote. “The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.”14 Publius agreed with Brutus that arriving at the correct decision was vital. “It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice.” Publius further agreed that the stakes involved all humanity, present and future. “The crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.”15

  Alexander Hamilton />
  While Publius spent significant time on every aspect of the plan, as well as the philosophic underpinnings of democratic government in general, Brutus targeted only those aspects that were most threatening and would therefore rouse the most Anti-Federalist sentiment. As such, he devoted fully five of his sixteen essays to the branch of government that had been defined the most vaguely in the Constitution: the judiciary.

  On January 31, 1788, Brutus’s eleventh paper opened, “The nature and extent of the judicial power of the United States, proposed to be granted by this constitution, claims our particular attention.” Although Anti-Federalists were both at the time and subsequently accused of fear-mongering, Brutus 11 proved to be eerily prescient of the post-Marbury judiciary. Noting that the judiciary under the new Constitution would “be placed in a situation altogether unprecedented in a free country,” Brutus explained that judges “are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries,” which turned out to be exactly the constitutional necessity that Chief Justice Marshall would insist upon in the Marbury opinion.16 The effect, Brutus would warn in his fifteenth essay, was “that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control.”17

  Article III, to Brutus, “vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law,” which will necessarily involve “a certain degree of latitude of explanation.” Supreme Court justices will therefore “give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.”18 Where were the checks and balances, he wondered, when “the opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal.” He added later, “And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort.”19 Thus, to Brutus, judicial review, as conceived by Marshall in the Virginia debates, was nothing more than usurpation of a power that rightly belonged in the other branches.