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,
Ben
PS.
What do you think?
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