Albert Beveridge - The Life of John Marshall, Volume 3 - Conflict and construction, 1800-1815

"Politics are more improper and dangerous in a Court of Justice, if possible, than in the pulpit. Political charges, prosecutions, and similar modes of official influence, ought never to have been resorted to by any party. The fountains of justice should be unpolluted by party passions and prejudices.

"The attempt of the Supreme Court of the United States, by a mandamus, to control the Executive functions, is a new experiment. It seems to be no less than a commencement of war between the constituted departments.

"The Court must be defeated and retreat from the attack; or march on, till they incur an impeachment and removal from office. But our Republican frame of Government is so firm and solid, that there is reason to hope it will remain unshaken by the assaults of opposition, & the conflicts of interfering departments.

"The will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions of federal monarchists and aristocrats to the contrary notwithstanding." ( Independent Chronicle , March 10, 1803.)

Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in the Chronicle was probably sent while Marbury vs. Madison was being argued.

Dodd, in Am. Hist. Rev. xii, 776. Under the law Marshall's successor must come from Virginia or North Carolina.

As President of the Court of Appeals of Virginia he later challenged Marshall and brought about the first serious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he assailed Marshall and his principles of Nationalism with unsparing rigor. (See vol. iv, chaps. iii, and vi, of this work.)

For example, in Fletcher vs. Peck, Roane would have held that the National Courts could not annul a State statute; in Martin vs. Hunter's Lessees and in Cohen vs. Virginia, that the Supreme Court could not review the judgment of a State court; in McCulloch vs. Maryland, that Congress could not exercise implied powers, but only those expressly granted by the specific terms of the Constitution, etc. All this we know positively from Roane's own writings. (See vol. iv, chaps. iii, vi, and vii, of this work.)

It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin: Doctrine of Judicial Review , 10-11; Beard: Supreme Court and the Constitution , 16-18; McLaughlin: The Courts, the Constitution and Parties , 32-35.)

In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." ( Records of the Federal Convention of 1787 : Farrand, i, 97.) Rufus King of Massachusetts – later of New York – was of the same opinion. ( Ib. 109.)

On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." ( Ib. )

Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." ( Ib. ) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." ( Ib. ii, 93.)

George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void… He wished the further use to be made of the Judges of giving aid in preventing every improper law." ( Ib. 78.)

Gouverneur Morris of Pennsylvania – afterwards of New York – dreaded "legislative usurpations" and felt that "encroachments of the popular branch … ought to be guarded agst." ( Ib. 299.)

Gunning Bedford, Jr., of Delaware was against any "check on the Legislative" with two branches. ( Ib. i, 100-01.)

James Wilson of Pennsylvania insisted that power in the Judiciary to declare laws unconstitutional "did not go far enough" – the judges should also have "Revisionary power" to pass on bills in the process of enactment. ( Ib. ii, 73.)

Luther Martin of Maryland had no doubt that the Judiciary had "a negative" on unconstitutional laws. ( Ib. 76.)

John Francis Mercer of Maryland "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void." ( Records, Fed. Conv. : Farrand, 298.)

John Dickinson of Delaware "thought no such power ought to exist," but was "at a loss what expedient to substitute." ( Ib. 299.)

Charles Pinckney of South Carolina "opposed the interference of the Judges in the Legislative business." ( Ib. 298.)

The above is a condensed précis of all that was said in the Constitutional Convention on this vital matter.

See vol. i, 452, of this work.

The Virginia Resolutions.

Address of the Minority, Jan. 22, 1799, Journal of the House of Delegates of Virginia, 1798-99 , 90-95.

Jay to Iredell, Sept. 15, 1790, enclosing statement to President Washington, Iredell : McRee, 293-96; and see letter of Jay to Washington, Aug. 8, 1793, Jay : Johnston, iii, 488-89.

See supra , 40, footnote 1.

Wharton: State Trials , 715-18.

Jefferson to Meusnier, Jan. 24, 1786, Works : Ford, v, 31-32.

Jefferson to Meusnier, Jan. 24, 1786, Works : Ford, v, 14-15. (Italics the author's.)

For instance, the Legislature of Rhode Island formally declared Independence almost two months before Congress adopted the pronouncement penned by Jefferson, and Jefferson used many of the very words of the tiny colony's defiance. In her Declaration of Independence in May, 1776, Virginia set forth most of the reasons stated by Jefferson a few weeks later in similar language.

For these cases and references to studies of the question of judicial supremacy over legislation, see Appendix C.

See vol. i, 323, of this work.

See Records Fed. Conv. : Farrand, i, Introduction, xii.

Elliot's Debates were not published until 1827-30.

Until very recently Justices of the Supreme Court often came to the Senate to listen to debates in which they were particularly interested.

The Federalist : Lodge, 485-86. Madison also upheld the same doctrine. Later he opposed it, but toward the end of his life returned to his first position. (See vol. iv, chap. x, of this work.)

John Jay had declined reappointment as Chief Justice because among other things, he was "perfectly convinced" that the National Judiciary was hopelessly weak. (See supra , 55.) The first Chief Justice of the United States at no moment, during his occupancy of that office, felt sure of himself or of the powers of the court. (See Jay to his wife, Jay : Johnston, iii, 420.) Jay had hesitated to accept the office as Chief Justice when Washington tendered it to him in 1789, and he had resigned it gladly in 1795 to become the Federalist candidate for Governor of New York.