Men in Black

by Levin, Mark R.

  The biggest problem with the Judiciary Act of 1801 was timing. The bill was introduced before the presidential election of 1800, but was not passed by the Federalist-controlled Congress until after the election, and while the deadlocked presidential election was being determined by the House of Representatives. President John Adams signed the bill on February 13, 1801, just three weeks before the end of his term of office. He also sent to the Federalist-controlled Senate nominees for the sixteen new judgeships, and they were confirmed shortly before the end of the Adams administration. These judges came to be called Adams’s “midnight judges”—some of whom became the subject of the Marbury v. Madison case.20

  On March 8, 1802, just days after Thomas Jefferson’s followers—the Republicans—took control of both houses of Congress, Congress repealed the Judiciary Act of 1801. On April 29, 1802, Congress enacted the Judiciary Act of 1802, which, among other things, abolished the sixteen new judgeships created by Adams and the Federalists.21

  In its 1803 Marbury v. Madison decision, the Supreme Court determined that it had the power to decide cases about the constitutionality of congressional (or executive) actions and—when it deemed they violated the Constitution—overturn them. The shorthand label given to this Court-made authority is “judicial review.” And this, quite literally, is the foundation for the runaway power exercised by the federal courts to this day. What is far less recognized is that Marbury started out as anything but the ominous precedent it has become.

  Marbury was a brilliantly conceived political strategy crafted by John Marshall, a master politician. Marshall, the chief justice of the Supreme Court, wrote the decision not to set a revolutionary precedent but to deny the new president, Jefferson, his longtime political rival, an opportunity to rebuff a Supreme Court controlled by Jefferson’s Federalist opponents.22

  Marbury was precipitated by the election of 1800, in which Thomas Jefferson, the incumbent vice president and leader of the Republicans,23 ran for president against the incumbent president, John Adams, leader of the Federalists. The Federalists controlled both houses of Congress, but were torn between the followers of Adams and Alexander Hamilton. Hamilton’s faction withheld its support for Adams’s reelection bid in 1800, and the race ended in an electoral college tie between Jefferson and his vice presidential running mate, Aaron Burr. Adams came in third. The election was then thrown into the House of Representatives.24

  Realizing he would not win reelection, Adams moved to solidify his party’s influence in the federal government. The passage of the Judiciary Act of 1801, creating sixteen new federal circuit judgeships, was part of his strategy. Just prior to leaving office, Adams selected, and the Federalist-controlled, lame duck Senate confirmed, nominees to fill the posts. Adams’s term ran out, however, before John Marshall, who was then secretary of state, could actually deliver the commissions of office to some of the designees.25 Marshall’s successor as secretary of state, James Madison, refused to deliver the commissions (at President Jefferson’s direction) and William Marbury, among others, filed suit in federal court seeking an order(writ of mandamus) directing Madison to deliver his commission as justice of the peace. 26

  Marshall, long a rival of Jefferson’s in Virginia politics, was one of the most articulate leaders in the Federalist Party. Marshall had served in the Virginia state house, the U.S. House of Representatives, as one of President Adams’s representatives to France in 1797, and then as secretary of state.27 He was nominated to be chief justice by President Adams and assumed the post on February 4, 1801, exactly one month before Adams’s term ended.28

  With a Republican majority elected to both houses of Congress in 1800, Marshall realized that Jefferson and his Republicans could denude the Supreme Court of authority and that he, as chief justice, could be impeached and removed from office. Marshall understood that, in the Marbury case, if he ordered Secretary of State Madison to deliver Marbury’s commission to office, Jefferson would order Madison to ignore the Supreme Court’s writ, and the Court’s authority would be seriously weakened.29 Marshall was also concerned that he not be seen as protecting the interests of Federalist jurists like Marbury, who had assumed his position as a justice of the peace and had been hearing cases and issuing judgments for a year.30

  Bearing all this in mind, Marshall’s decision in Marbury—while upsetting the Constitution’s balance of power and the relationship between the federal government and the states—was a master political stroke. Marshall stated that Marbury, consistent with legal doctrine at the time, had something akin to a property right to the office to which he had been nominated and confirmed. Marshall also said that the federal judiciary should be able to issue an order directing the appointment of Marbury, but because the Constitution did not enumerate such an original right for the Supreme Court, the Court was powerless to do so.31

  Marshall went well beyond the specific issues in the case. He said that the Court had a responsibility to set aside acts of Congress that violate principles enumerated in the Constitution:

  Between these alternatives there is no middle ground, the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

  If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

  Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. 32

  The judicial power of the United States 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 looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.33

  Marshall’s Federalist Party had lost the presidency and Congress, but Marshall was determined to fight back. And so the doctrine of judicial review was born. Yes, the Constitution is indeed the supreme law of the land. But now the Court, by its own fiat, would decide what is or is not constitutional. The Constitution’s structure, including the balance of power between the three branches, was now broken.

  Although Jefferson is claimed by modern Democrats as the father of their political party, he was a leading opponent of judicial activism. After Marbury, Jefferson became an even more vocal critic of what he viewed as the overreaching of the judiciary under Marshall’s leadership.

  To Abigail Adams, John Adams’s wife, Jefferson wrote a year after Marbury: “The Constitution…meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”34

  Jefferson’s concern about judicial power grew stronger as he passed into old age. From Monticello, in 1820, the author of the Declaration of Independence wrote to William C. Jarvis:

  To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made a
ll the departments co-equal and co-sovereign within themselves.35

  Neither the history of our founding nor the establishment of our government supports the current arrangement in which the judiciary rules supreme. Indeed, Marshall’s ruling in Marbury was nothing short of a counter-revolution. For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.

  CHAPTER THREE

  IN THE COURT WE TRUST?

  “The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray.”

  Ronald Reagan1

  The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”2 The framers thought that religious faith was important to our system of government. They believed in the protection of religious minorities and sought to avoid the intolerance and threat to religious liberty that might arise from a nationally established church.

  But we’ve come a long way since the First Amendment was ratified. As Chief Justice William Rehnquist has written, the Court “bristles with hostility to all things religious in public life.”3 For the last several decades, the Court, based on a misreading of Thomas Jefferson’s now famous letter to the Danbury Baptists4 (which we will discuss in due course), has seized on the mistaken idea that the Constitution requires a severe “wall of separation” between church and state.

  As a result, the Supreme Court’s cases involving the religion clauses are hopelessly complicated and riddled with inconsistent conclusions. But there is one conclusion we can draw: The Supreme Court has simply abolished your right to the free exercise of your religion in public. And unless the courts are called to account on this, religious freedom in this country is seriously endangered.

  Many of the men who founded America came here to escape religious persecution, and when the Constitution’s Bill of Rights was drafted, their goal was to make sure every American maintained his right to practice his faith free from government interference and with no federal favoritism to a particular creed. So the federal government was prohibited from establishing a religion and equally prohibited from interfering with the people’s free expression of their religion.

  What does it mean to “establish” a religion? Liberals today believe the government establishes religion if a nativity scene is placed on a town square at Christmas. But the framers had a much different understanding. They had in mind the Church of England: a formal union of political and ecclesiastical authority in the hands of the state.

  The First Amendment’s establishment clause—“Congress shall make no law respecting an establishment of religion”—was written to prevent the federal government from establishing a national church. States, however, retained the right to have established churches—and in fact, several of them did. The Puritans (later the Congregationalists), for instance, were the officially established church in Massachusetts.5

  Not only did many colonies collect taxes for maintaining established churches, religious orthodoxy was upheld as well. When the doctrines of a church were enforced by the state, the results could be quite severe. The punishment and execution of religious heretics continued in the New World in Massachusetts, with the expulsion of Roger Williams and Anne Hutchinson in the 1630s and the execution of Mary Dyer and other Quakers in the 1660s.6

  The Quakers found similar treatment at the hands of the Anglicans, the established church in Virginia, where a series of anti-Quaker laws passed in the late 1600s criminalized the refusal of Quakers to baptize their children, prohibited their assembly, and provided for their execution if they returned after expulsion.7

  The nonconformists in the colonies continued to suffer under the established churches during the Revolutionary era and beyond. In Virginia, non-Anglican preachers were required to obtain a license from the state. Baptists refused as a matter of principle, and more than forty-five Baptist ministers were jailed for this offense in Virginia between 1765 and 1778.8 Among the Virginians who took notice of the Baptists’ suffering was James Madison. As a result, he became one of the strongest advocates of disestablishment.

  In Connecticut, the union of religious and political interests between the Congregationalists and the Federalists was known as “The Standing Order.”9 Professor Daniel L. Dreisbach of American University has written, “[A]ll citizens, Congregationalists and dissenters alike, had to pay taxes for the support of the established church, civil authorities imposed penalties for failure to attend church on Sunday or to observe public fasts and thanksgivings, and positions of influence in public life were reserved for Congregationalists. Dissenters were often denied access to meetinghouses, their clergy were not authorized to perform marriages, and dissenting itinerant preachers faced numerous restrictions and harassment by public officials.”10

  These religious dissenters, such as the Danbury Baptists, weren’t exempted from supporting Connecticut’s established church until the Toleration Act of 1784.11

  Against this backdrop, the framers contemplated the role of religion in the new republic. Although the original Constitution did not include a Bill of Rights, in 1789 Congress proposed twelve amendments to the states, ten of which were ratified in 1791, including the First Amendment with its establishment and free exercise clauses. James Madison, the primary author of the Bill of Rights, believed the intent of the religion clauses to be quite clear. He “apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”12

  But neither Madison nor Jefferson, the framers most secular in outlook, were hostile to religion. It was widely believed at the nation’s founding that faith was a necessary predicate to liberty. As Jefferson wrote in the Declaration of Independence, human beings have certain unalienable rights endowed by God. Rights are not conferred on us by a monarch or the state. Without faith, he later wrote, liberty was vulnerable: “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not violated but with his wrath?”13

  Furthermore, Madison wrote near the end of his life that belief in God was “essential to the moral order of the world.”14 Opposition to an established church is not opposition to religion in general—though this concept has been completely lost on today’s secularists.

  Madison interpreted the “free exercise” of religion, according to American Enterprise Institute scholar Vincent Phillip Muñoz, “to mean no privileges and no penalties on account of religion.”15 The establishment clause, Muñoz writes, was “intended to end things like special religious taxes, religious qualifications for public office, and the enforcement of religious orthodoxy through Sabbath-breaking laws.”16 The establishment clause was never intended to ban the invocation of God in public forums or the voluntary participation in “ceremonies or rites that recognized God.”17 In other words, it was never intended to create a strict wall of separation between church and state (a phrase, of course, that appears nowhere in the Constitution).

  In fact, Madison noted how avoiding the establishment of one religion had actually helped religion in general. He wrote, “Religion flourishes in greater purity, without than with the aid of government.”18

  At the time of the ratification of the Constitution, America was an extremely religious nation. The framers never envisioned a time where the mention of God in the public square would be controversial, let alone illegal in certain circumstances. The historical record is filled with examples of officials of the federal government invoking God during the same period that the Bill of Rights was ratified.

  Chief Justice William Rehnquist has written of one exceptionally persuasive example: “On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative
Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day proclamation. Boudinot said he ‘could not think of letting the session pass over without offering an opportunity to all citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.’”19

  Within two weeks, President Washington issued the following proclamation:

  Now therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general for all the great and various favors which He has been pleased to confer upon us.

  And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.20