The Activist
Page 31
27 Levy, Original Intent, p. 100.
28 Farrand, v. 2, p. 177.
29 Ibid., v. 2, p. 590.
30 Morris himself never let on.
31 Quoted in Storing, v. 2, p. 39. Emphasis from the original.
32 Elliot, v. 3, p. 22.
THREE: TO THE STATES: THE STRUGGLE TO RATIFY BEGINS
1 The record of the Pennsylvania incident is extensive and detailed in McMaster and Stone, p. 64. The authenticity of the New Hampshire lunch may be apocryphal, but is nonetheless lavishly recounted in McDonald, E Pluribus Unum, pp. 353–54.
2 Except for Pennsylvania, these were all “small” states that had come to the Constitutional Convention opposed to scrapping the Articles until the Connecticut compromise ensured their support by granting by-state voting in the Senate.
3 It was also the home of ferocious opponents of the Constitution, such as Patrick Henry, George Mason, and Richard Henry Lee.
4 Elliot, v. 3, p. 626.
5 The lunch at which Anti-Federalist delegates were allegedly given copious amounts of spirits may or may not have enabled the Federalist victory.
6 On June 25, the record in the Virginia ratifying convention reads: “New Hampshire does not approve of the Constitution as it stands . . . North Carolina is decidedly against it . . . New York, we have every reason to believe, will reject the Constitution, unless amendments be obtained . . . Rhode Island is not worthy the attention of this house. She is of no weight or importance to influence any general subject of consequence” (Elliot, v. 3, p. 628).
7 Times change. Fauquier County, only about forty miles west of Washington, D.C., is now filled with upscale bedroom suburbs, populated largely by men and women who work in the capital.
8 Marshall never produced a full autobiography but, in 1827, at age seventy-two, penned an abbreviated account of his life for his friend and fellow justice Joseph Story.
9 In the late seventeenth and early eighteenth centuries, eligible women of good breeding far outnumbered men. As a result, there were any number of opportunities for solid, hard-working men like Thomas Marshall to improve their lots.
10 J. Smith, p. 23.
11 Marshall, p. 13.
12 Ibid.
13 J. Smith, p. 64.
14 When Marshall was sixteen, Thomas took a newly arrived pastor into his home; this man helped tutor the boy, introducing him to Livy and Horace. Marshall, p. 13.
15 J. Smith, p. 33.
16 Marshall, p. 15.
17 J. Smith, p. 61.
18 Ibid., p. 64.
19 Marshall, p. 15.
20 Ibid., p. 16.
21 J. Smith, pp. 84–85.
22 Ibid., p. 75.
23 The Virginia House of Burgesses was renamed in 1776 and became the lower house of the Virginia Assembly.
24 Beveridge, v. 1, p. 205.
25 Marshall, p. 16.
26 To differentiate it from Henry’s “populist” faction (J. Smith, p. 90).
27 Quoted in J. Smith, p. 95. The entire affair is also from Smith, pp. 93–96. Bev-eridge, as Smith points out with obvious satisfaction, “apparently was unaware of the council of state’s decision.”
28 William Blackstone, Commentaries, Introduction, Sec. III, pp. 90–91; www.yale .edu/lawweb/avalon/blackstone/introa.htm#3.
29 Ibid.
30 Ibid.
31 Charles de Secondat, Baron de Montesquieu, the great eighteenth-century political philosopher.
32 Montesquieu, Spirit, Book XI, Section 6; www.constitution.org/cm/sol_11.htm.
33 Ibid.
34 J. Smith, p. 95.
35 Ibid., p. 96.
36 Marshall’s use of the council as a vehicle for personal advancement caused Thomas Jefferson to propose abolishing the body “so that it would no longer provide a stepping-stone for ‘young and ambitious men’ ” (quoted in J. Smith, p. 97).
37 Beveridge, v. 1, p. 212.
38 As Jean Smith points out, this was to be his only judicial experience until his elevation to the Supreme Court (p. 105).
FOUR: MAKING A NEW NATION: RATIFICATION IN VIRGINIA
1 McDonald, E Pluribus Unum, p. 357.
2 Elliot, v. 3, p. 60.
3 Ibid., v. 3, p. 86.
4 Ibid., v. 3, p. 517.
5 Ibid.
6 Although he would not cite these debates in his opinion, this was precisely the reasoning that Chief Justice Marshall would employ in his Marbury decision.
7 Elliot, v. 3, p. 551.
8 Ibid., v. 3, p. 552.
9 Ibid.
10 Ibid.
11 Many would argue that the federal judiciary has done just that.
12 Elliot, v. 3, p. 553. Emphasis added.
13 Ibid., p. 554.
FIVE: UNITING A NEW NATION: RATIFICATION IN NEW YORK
1 Ford, v. 34, p. 281.
2 Yates had also cast the sole dissenting vote against the Northwest Ordinance the year before.
3 Ford, p. 282.
4 According to Forrest McDonald, Anti-Federalists held a 46–19 majority when the convention began (E Pluribus Unum, p. 360).
5 Elliot, v. 1, p. 480.
6 Brutus 1. October 18, 1787. http://www.liberty-page.com/foundingdocs/antifedpap/brutus/1.html.
7 Ibid.
8 Ibid.
9 It never was revealed. Although no definitive evidence has been uncovered, it is now generally assumed that Brutus was that same Robert Yates who had left Philadelphia in anger the previous July.
10 Unlike Brutus’s essays, all of which appeared in the Journal, the Publius essays appeared in a number of different periodicals, including the Independent Journal, the New York Packet, the Daily Advertiser, and McLean’s Edition.
11 Clinton Rossiter in Madison et al., The Federalist or The New Constitution, p. vii.
12 Chernow states, “The Federalist is so renowned as the foremost exposition of the Constitution that it is easy to forget its original aim: ratification in [New York]” (p. 261).
13 Hamilton’s attribution of specific essays turned out to be somewhat inaccurate. He ascribed numbers 2–5 and 54 to Jay, when it should have been 64; but far more significantly, he took credit for fourteen essays that had almost certainly been written either entirely or in large part by Madison. The controversy as to who actually wrote what has raged for the better part of two centuries.
14 Madison et al., p. 33.
15 Ibid.
16 Brutus 11. January 31, 1788. http://www.liberty-page.com/foundingdocs/antifedpap/brutus/11.html.
17 Brutus 15. March 20, 1788. http://www.liberty-page.com/foundingdocs/antifedpap/brutus/15.html.
18 Ibid.
19 Brutus 11. January 31, 1788. http://www.liberty-page.com/foundingdocs/antifedpap/brutus/11.html.
20 Ibid.
21 Madison et al., p. 464.
22 Ibid., pp. 465–66.
23 Ibid., p. 467.
24 Ibid., p. 468.
25 Ibid., p. 469.
26 Elliot, v. 2, pp. 410–11. Emphasis in original.
27 Ibid., p. 412.
28 Ibid., pp. 413–14.
SIX: TRANSITION: CONGRESS IS TRANSFORMED AND SO IS MADISON
1 In addition, both states had submitted a bill of rights, Virginia’s containing an additional twenty articles.
2 Ketcham, p. 275.
3 Ibid.
4 Madison to Edmund Randolph, November 23, 1788. http://memory.loc.gov/cgibin/query/r?ammem/mjmtext:@FIELD(DOCID+@lit( jm050100)).
5 Madison to Madison Sr., December 18, 1788. http://memory.loc.gov/master/mss/ mjm/03/0800/0871.jpg.
6 Nicholas to Madison, January 2, 1789. http://memory.loc.gov/cgi-bin/query/D?mjm:11:./temp/~ammem_kMZz::.
7 Madison to Eve, January 2, 1789. http://memory.loc.gov/cgi-bin/query/D?mjm:12:./temp/~ammem_kMZz::.
8 According to Article II, Section 1, each elector was allowed two votes, one for president and one for vice president, although he was not required to specify which office each of his votes was for. That vo
ting scheme would result in a good deal of mischief in the election of 1800.
9 Pennsylvania’s other senator was the financier Robert Morris, one of the best-known men in America, while Maclay was a virtual unknown, a surveyor, politician, and judge from the countryside. While Morris was a committed Federalist, Maclay was the opposite. Maclay would spend only two years in the Senate but, during that time, would keep a journal that has become a classic of American political history. Alternately scabrous, ironic, witty, self-righteous, and insightful, Maclay’s journal provides as much a quotidian account of the First Congress as Samuel Pepys did with respect to Restoration London. Why the obscure Maclay rather than Morris was appointed to these committees is unknown, but history is richer as a result.
10 Senate Journal, April 7, 1789.
11 Izard, Lee, and Wingate had no legal training or experience at all. Carroll, Maclay, Few, and Bassett had either studied the law or practiced it, but none was in any way a scholar or theoretician (Goebel, p. 458).
12 Most of what we know of the committee’s early progress has been gleaned from Maclay’s journal and letters written by various members to friends back home, although even here information is scant (ibid., pp. 459–61).
13 Maclay, p. 33. Maclay did not name the members, but there is other evidence of their appointment, not the least of which is that the bill that emerged was in the handwriting of the three men.
14 Ibid., p. 75.
15 Goebel called it “a playbill.”
16 The bill was lengthy, consisting of thirty-five sections, and contained numerous ambiguities and controversial provisions. Entire books have been written analyzing this piece of legislation. This study, however, will confine itself to those portions of the bill that will bear on the events of 1801–1803.
17 Quoted in Goebel, pp. 472 f.
18 Baker, Supreme Court Historical Society, 1977 Yearbook. http://www.supremecourthistory.org/myweb/77journal/baker77.htm.
19 Maclay, p. 85.
20 Ibid.
21 Ibid.
22 Ibid., p. 95.
23 Ibid., p. 91.
24 Quoted in Goebel, p. 504.
25 The national debate over amendments and the eventual passage of the Bill of Rights are fascinating, but are beyond the purview of this book. For a good narrative history, see Labunski; or, for a deeper, more scholarly take, see Amar, Bill of Rights.
26 Hamilton’s attempt in 1804 to deny Madison’s authorship of many of the Federalist essays is completely understandable in this light.
27 These amendments involved a good deal more than individual liberties. Some were structural and some related to issues of federalism. Before the amendment debate was finished, virtually every article of the Constitution was reexamined. In some respects, the amendment debate was the de facto second convention that Anti-Federalists had been clamoring for.
28 Annals, v. 1, p. 441.
29 Ibid., v. 1, p. 447.
30 Ibid., p. 448.
31 Ibid., v. 1, pp. 685–86.
32 During this debate, Roger Sherman proposed that any amendments be included as a supplement, so that the original wording of the Constitution would remain for posterity. His motion passed on August 19.
33 Annals, v. 1, p. 755.
34 The first two, one dealing with congressional size and the other with congressional compensation, failed, although the 27th Amendment reinstituted the second. Thus, the current first amendment was originally the third.
35 Annals, v. 1, pp. 812–15.
36 Ibid., pp. 826–51.
37 Ibid., p. 835.
38 Ibid., p. 851.
39 Ellsworth, Paterson, Madison, Robert Morris, Roger Sherman, Elbridge Gerry, Rufus King, Pierce Butler. Other, less important, Philadelphia delegates were present as well, including Abraham Baldwin, Thomas Fitzsimons, Nicholas Gilman, John Langdon, George Read, George Clymer, Hugh Williamson, Richard Bassett, Daniel Carroll, William Few, William Samuel Johnson, and Caleb Strong.
40 Except for the brief period discussed in subsequent chapters, the Judiciary Act of 1789 remained in force until supplanted by the Judiciary Act of 1891. Circuit-riding was thus not permanently abolished until that year.
SEVEN: A LONG AND FRUSTRATING RIDE: JAY TAKES THE REINS
1 Quoted in Warren, v. 1, p. 34.
2 Quoted in ibid., v. 1, pp. 32–33.
3 Ibid., p. 32.
4 Ibid., v. 1, p. 37.
5 With North Carolina joined, Washington was thus able to line up the three circuits with two resident justices for each.
6 Rutledge stewed over the slight for the next five years, even carping in letters to friends, none of which prevented Washington from nominating him for chief justice when Jay resigned in 1795.
7 Previously the Royal Exchange.
8 www.supremecourthistory.org/02_history/subs_sites/02_d.html.
9 Warren, v. 2, p. 86.
10 Ibid., v. 1, p. 58.
11 The Supreme Court would take up much the same question five years later in Ware v. Hylton, perhaps the most important pre-Marshall case extant, if for no other reason than that Marshall, appearing for the defense, argued against supremacy of the national government.
12 Warren, v. 1, p. 66.
13 When Marshall, in another of his landmark cases, McCulloch v. Maryland, permanently established the primacy of the national government over the states in 1819, he pointedly avoided using any of the Jay court’s decisions as precedent. Marshall was notorious about wanting to be seen as creating his sculptures from scratch, fundamental law, and logic, so perhaps he simply avoided giving Jay credit. Equally possible, however, was that he did not consider any of these precedents sufficient to buttress his argument.
14 Federal Judges Association, Tuesday, May 8, 2000. www.supremecourtus.gov/publicinfo/speeches/sp_05–08–01.html.
15 So minimal was his participation that he is not even listed as an associate on the Supreme Court Historical Society Web site.
16 There was neither a Constitutional nor statutory prohibition against his doing so.
17 Statutes, 2nd Congress, 1st Session, p. 253.
18 But only after some fancy legal footwork. See Casto, pp. 175–76.
19 2 US 409.
20 Ibid. Other circuit courts had attempted to alternately express grave doubts about the propriety of the role and dance around the issue.
21 Johnson made a sound decision, as it turned out, since he lived for another twenty-six years, dying at the age of eighty-six in 1819, Supreme Court justices continuing to ride circuit all the while.
22 Statutes, 2nd Congress, 2nd Session, p. 333.
23 By statute, this amount was equal to $500,000.
24 Casto notes that Iredell’s “entire opinion may be plausibly explained as a determination to hold the states immune without regard to the apparent meaning of the applicable constitutional and statutory provisions” (p. 190).
25 2 US 453.
26 Casto, p. 192.
27 2 US 471.
28 Ibid., p. 474.
29 Which of the three branches of government represented “the people” had been a continuing question. Almost no one used that term with respect to the indirectly elected executive. Republicans tended toward the legislative, but Federalists, particularly when advocating judicial oversight, would apply the term to the courts. Representing “the people” would thus become a prime justification for Marshall in declaring that the courts were the branch “to say what the law is.”
30 Senate Journal, February 20, 1793.
EIGHT: ONCE AND FUTURE CHIEFS: JAY AND MARSHALL COLLIDE
1 In 1789, Marshall serviced more than three hundred clients (J. Smith, p. 145).
2 Marshall’s role is ably defined in J. Smith, pp. 155–56.
3 Quoted in Stahr, p. 298.
4 Ibid.
5 Beveridge, v. 2, p. 188.
6 Marshall’s performance was roundly praised, including a high compliment from a British aristocrat who happened to be in the audience (J. Smi
th, p. 157).
NINE: A QUESTION OF PRIORITIES: THE ABSENT CHIEF JUSTICE
1 Chernow, p. 434.
2 Another of the four cases concerned state sovereignty, again featuring Georgia. With the Eleventh Amendment working its way through the system, Jay this time ruled in Georgia’s favor.
3 Warren, pp. 116–17.
4 Ibid.
5 There is ongoing disagreement as to whether Jay accepted eagerly or with reluctance. Stahr (pp. 324–25) and Warren (v. 1, p. 125) indicate the latter, but other sources, including former Chief Justice Warren Burger, suggest the former (http://www.supremecourthistory.org/04_library/subs_volumes/04_c12_e.html). Subsequent events would demonstrate that Burger was probably correct.
6 The regular Senate session had ended on March 4, but a special session, by the newly elected 4th Congress, had been called on June 8 to discuss the treaty; it ran until June 26.
7 Warren, v. 1, p. 129.
8 Ibid., v. 1, pp. 130–31. Tales of Rutledge’s mental state became more and more outrageous. One rumor had him eating gavels.
9 Rutledge did not resign until December 28, before which there were reports that he attempted suicide. He left public life and died five years later.
TEN: A TASTE OF THE FUTURE: MARSHALL VISITS THE COURT
1 3 US 210.
2 Ibid., pp. 210–11.
3 Ibid., p. 213.
4 Ibid.
5 Ibid.
6 Iredell submitted an opinion based on notes, asserting once more that the plaintiffs had no recourse to the individual, but only to Virginia.
7 3 US 244–45.
8 Ibid., p. 282.
9 Marshall, p. 22.
ELEVEN: YANKEES WIN: ELLSWORTH AT THE HELM
1 Stephens Mason of Virginia was the only nay, significant because Mason, a soon-to-be Republican, demonstrated the fault lines in Washington’s Federalism that would rupture in the coming years.
2 Warren, v. 1, p. 153.
TWELVE: AS SIMPLE AS XYZ: MARSHALL ASCENDANT
1 Elkins and McKitrick, p. 542.
2 Marshall, p. 23.