By Allen C. Guelzo, Ph.D., Gettysburg College
As the first Chief Justice of the Supreme Court from 1790–1795, John Jay wrote opinions on only four cases in that capacity. Part of Jay’s frustration was rooted in the brevity and vagueness in the way the Constitution described the Supreme Court’s powers. Part of it was also rooted in the boiling controversies over what law and judges were supposed to do.
Law and Order Before the Revolution
Before the Revolution, lawyers had more to do with supervising community morals, determining tax assessments and issuing licenses, appointing road commissioners, and the like. Judges had been crown appointees, settling disputes through the invocation of English common law, its great interpreter, Sir William Blackstone, and, on the strength of the celebrated William Murray, the First Earl of Mansfield, strictly limiting the discretion of juries.
The Revolution, however, was nowhere more revolutionary than its overthrow of these practices. Common law, little more than the accumulated precedents set by English courts, was now anathema to the new American order.
Blackstone, whose whole theory of law was based on the monarch’s sovereignty and the glories of Parliament, was rejected as a hold-over of Toryism. Nathaniel Chipman’s Sketches of the Principles of Popular Government attacked Blackstone’s ideas on sovereignty as “wholly inadmissible in a democratic republic.”
This is a transcript from the video series America’s Founding Fathers. Watch it now, on Wondrium.
Making Up Laws Is Difficult
Every dictate of Enlightenment reason, and every respect for America as a republic demanded—or seemed to demand—an entirely new kind of jurisprudence for Americans. A jurisprudence free from all-powerful judges, respectful to the right of juries to interpret the law for themselves, and based entirely on clearly written statutes adopted by the legislatures as the voice of the people, where real sovereignty resided.
The principal difficulty with this overthrow of common law was that it was easier said than done. An entirely new republican jurisprudence could not be invented whole-cloth by even the most diligent state legislature, and none of them were going to tolerate the federal government doing it.
Learn more about Thomas Jefferson’s political philosophy.
Jeffersonians Versus Federalists
The Jeffersonians feared both the extension of common law and the authority of judges in using it. “Of all the doctrines which have ever been broached by the federal government,” Jefferson asserted in 1799, “the novel one of the common law being in force and cognizable as an existing law in their courts, is to me, the most formidable.”
It would make “the constitution, on this hypothesis, a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” And this became all the more urgent because the Constitution was never vaguer than in describing where the line between state judicial authority and federal judicial authority lay.
In one of Jay’s cases, Chisholm v. Georgia in 1793, Jay unwisely declared that the state of Georgia could be sued by citizens of other states; the state legislatures howled in protest over this, and in 1798, an 11th amendment was added to the Constitution preventing the federal judiciary from claiming authority in “any suit in law against one of the United States by Citizens of another State.”
John Marshall and the Question of Supreme Court’s Power
But the Jeffersonians would not be able to go to the amendment pump every time an aggressive Chief Justice tried to clip the states’ wings, and John Marshall, the Chief Justice at the time, was nothing if not aggressive.
Never mind Blackstone’s dubious praise of Parliament and monarchy; this veteran of the Continental Army would devise a national judicial sovereignty to match the national constitutional sovereignty envisioned by Madison and the national economic sovereignty proposed by Hamilton. Just how aggressive he would be in this regard became apparent in the Marshall Court’s first major decision, Marbury v. Madison.
Learn more about James Madison’s war.
Marbury v. Madison
After his inauguration on March 4, 1801, Thomas Jefferson had found, “lying on the table of the Department of State,” a pile of John Adams’s last-minute appointment letters for “some federal justices of the peace for Alexandria.” Although the appointment letters had been signed and sealed, they had not yet been delivered, and reasoning that “delivery is one of the essentials to the validity of a deed,” Jefferson “forbade their delivery.”
One of these JPs, William Marbury, a Federalist who lived in Georgetown, filed suit on December 21, 1801, directly in the U.S. Supreme Court, requesting an order to correct an oversight and thus force delivery of his commission. Marshall handed down his response for a unanimous Court on February 24, 1803. It was a gem of judicial tight-walking. Marbury’s suit was, technically, invalid. Only because the Supreme Court is an “appellate jurisdiction,” Marbury, in other words, had filed at the wrong court level.
But as for the nub of the suit—that Marbury had been entitled to an appointment which the Jefferson administration had wrongly denied him—Marshall was entirely in agreement with Marbury, and “having this legal right to the office; he has a consequent right to the commission. A refusal to deliver is a plain violation of that right for which the laws of the country afford him a remedy.”
Marshall thus, with one hand, established the principle that the federal courts have review power over both the actions of the presidency and the Congress, and with the other removed any incentive for Republicans in Congress to attempt further tinkering with the Constitution because it was an invalid suit.
Common Questions about How John Marshall Helped Supreme Court’s Power Grow
Judges settled cases by referring to the English common law. But after the Revolution, cases were settled by the new constitution and the Supreme Court.
After Thomas Jefferson declined to send several appointment letters that John Adams had signed, William Marbury, who wanted to force his commission to be sent, filed a suit for this purpose. The case went on to establish the Supreme Court’s power thanks to John Marshall.
Marshall’s opinion was that the case had been filed at the wrong court level. Nevertheless, he also agreed with Marbury that it was his legal right to receive the commission. With such careful judicial tight-walking, the Supreme Court’s power was increasingly recognizable.
