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Monday, March 11, 2013

March 11, 2013: Supreme Contexts: Marbury and Balance

[Later this month, the Supreme Court will hear its next two landmark cases, these related to the issue of same-sex marriage. So this week I’ll be highlighting five significant 19th century SC decisions, and more exactly analyzing one key contextual frame for each. That’ll lead up to a special weekend post on the upcoming decisions. Add your judicious thoughts and takes in the comments, please!]
On the foundational decision that helped turn a revolutionary theory into reality.
On the list of strikingly ahead of their time features of the government and laws created by the Constitution, the complete separation of church and state and the guarantee of habeas corpus would have to be 1 and 1a. The creation of three distinct branches of government was somewhat less revolutionary; both Britain and France, the two closest parallels to the new American state, likewise had a monarch, a parliament of some sort, and a court system. But nonetheless, the Constitutional emphasis on the separation and equity of those branches, on the checks and balances of powers distributed between them, did indeed represent a new idea: a government that would be eternally dominated not by a monarch or any locus of power and influence, but by competing and complementary forces, working as much to limit each other as to impact the nation more broadly.
An important idea and theory, but not necessarily an easy one to implement in practice. In particular, given the more day to day activities of the executive and legislative branches, it stood to reason that the judicial branch would take a more secondary role; what could the Supreme Court truly do, in season and out, to check and balance the President and Congress? In the Court’s first dozen years of activity (1789-1801), under its first three Chief Justices (John Jay, John Rutledge, and Oliver Ellsworth), the answer was “Not a lot.” Jay’s court, for example, heard only four cases in his six years as Chief Justice, and was generally more concerned with delineating the Court’s rules and procedures, as well as its relationship not to other branches of government but to lower courts within the judicial system. By 1800, when President John Adams nominated John Marshall to serve as the Court’s fourth Chief Justice, that subsidiary relationship seemed well established; Marshall was already serving as Adams’ Secretary of State at the time, and continued to do so for his first few months as Chief Justice, making it hard to argue that he or the branch were in any way separate from the executive.
By the time Marshall passed away in 1835, having served what remains the longest term of any Chief Justice, nobody could argue that the Supreme Court was anything other than an equal to the other two federal branches. While that shift comprised many distinct cases and moments, none was more defining and seminal than Marbury vs. Madison (1803). The case itself concerned the largely meaningless question of whether a John Adams appointee (Marbury), commissioned in the final moments of that presidency, could be guaranteed his appointment even if the subsequent Thomas Jefferson administration (and his secretary of state James Madison) refused to deliver it. But in deciding that question, Marshall extended his reach far beyond its specifics, making the clearest and most compelling argument ever advanced for the idea of “judicial review”—that the Supreme Court could declare actions of the other branches unconstitutional and overturn them. By cementing this concept with his ruling, Marshall helped create a genuine system of checks and balances that has endured for the two centuries since.
Next landmark case tomorrow,
PS. What do you think?

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