SUNY series in American Constitutionalism

Clyde H. Ray

• Publisher: SUNY Press
• Year: 2019
• ISBN:
  9781438474427
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

John Marshall's Constitutionalism is an exploration of Supreme Court Chief Justice John Marshall's political thought. Often celebrated and occasionally derided as a force in the creation of American jurisprudence and the elevation of the American Supreme Court, Marshall is too seldom studied as a political thinker. Clyde H. Ray explores this neglected dimension of Marshall's thought by examining his constitutional theory in the context of several of his most important Supreme Court opinions, arguing that Marshall's political theory emphasized the federal Constitution's fundamental legitimacy; its sovereignty over national and state government policy; its importance in defining responsible citizenship; and its role in establishing a Constitution-based form of American nationalism. This cross-disciplinary argument illustrates Marshall's devotion to the Constitution as a new source of national identity during the early national period. Furthermore, Ray argues that Marshall's constitutionalism makes important contributions not only to our understanding of American constitutionalism during his time, but also conveys important lessons for readers seeking a better understanding of the Constitution's role in the United States today.

1

John Marshall, Marbury v. Madison, and the Construction of Constitutional Legitimacy

Perhaps no other Supreme Court decision has offered a more lucid and forceful defense of the Constitution than Marbury v. Madison (1803). There are several explanations for the case’s prominence in American legal history, including the Court’s defense of the vested rights of individuals, its formulation of the “political questions” doctrine, and its assertion of judicial supremacy. For most scholars, the opinion’s articulation of the principle of judicial review continues to loom particularly large.1 All of these factors were indeed important in shaping the future course of the nation, and they are rightfully acknowledged in any assessment of the opinion’s impact. But they do not tell the whole story. To enter into a discussion of Marbury is above all to enter into John Marshall’s discussion of the fundamental authority of the Constitution. For in drafting the Court’s unanimous opinion, Marshall did more than artfully avoid a clash between the Federalist judiciary and its Jeffersonian critics. More important, he offered a detailed justification of the binding authority of the Constitution, mapping out justifications familiar if still undeveloped at the time of the decision. In examining these theories as well as his own, Marbury yields a purchase for surveying the assumptions implicit in contemporary arguments concerning constitutional legitimacy.

Marshall’s own theory of constitutional legitimacy runs deeper than the concepts and language familiar to most Americans of his day. At the heart of his theory is a belief in the Constitution’s moral legitimacy, namely, its ability to provide fundamental law that, while perhaps not ideal, merits the respect and obedience of all citizens. Thus, while more familiar justifications based on rights, popular sovereignty, and the document’s settlement function help orient his view of constitutional legitimacy, Marshall’s theory of it includes at its center a subtle understanding of legitimacy inherent to the document itself. In justifying to his nineteenth-century audience his view of the Constitution’s authority, we find the first evidence of Marshall’s construction of a political theory that is distinctly his own, anchored neither to liberalism’s emphasis on individual rights nor to a republican common good. Instead, as described in Marbury, Marshall’s constitutional legitimacy is rooted in the fundamental importance of constitutional government, an earnest if optimistic belief he hoped his fellow citizens might one day share.

While Marbury’s relevance for understanding the legal development of the United States needs little defense, scholars continue to disagree concerning the motives guiding Marshall’s authorship of the Court’s opinion. In light of the attitudes toward Marshall that we have already surveyed, it should come as little surprise that one’s view of Marshall often corresponds to one’s view of Marbury. The most widespread interpretation of the case casts him as a cunning political operator who wielded the Constitution as a weapon against opponents of the Federalist Party.2 Almost as popular is the argument that he seized the occasion to achieve nonpartisan ends, specifically building the national influence of a weak Supreme Court that lacked the power to enforce its verdicts.3 More recently, a small but emphatic camp of scholars has challenged the consensus opinion that Marbury was a self-interested product of either partisanship or institution building, arguing instead that the decision advanced a fair and neutral interpretation of the Constitution.4 All of these readings, however, acknowledge the boldness of the decision, the finesse involved on Marshall’s part, and the lasting impact of Marbury on American constitutional law. Thus Marshall’s most hagiographic admirer could praise the opinion for its “perfectly calculated audacity” in engineering “a coup” on behalf of written constitutions “as bold in design and as daring in execution as that by which the Constitution had been framed.”5

Absent among these evaluations, however, is a serious discussion of Marshall’s role in establishing the Constitution’s legitimacy. It is true that following its ratification, there was surprisingly little argument as to whether the American Constitution was the nation’s supreme law. No “Anti-Constitution” Party ever took shape. Instead, its Antifederalist opponents swiftly turned from criticizing the Constitution’s new national plan of government to effecting political change through its amendment process.6 Most Americans acknowledged the Constitution as the binding law of the land, as both Federalists and Jeffersonians “accepted the Constitution as their standard,” writes John Murrin, even as the two sides differed sharply on the question of how best to implement the government it created.7 Moreover, as Keith Whittington has argued, despite Federalist fears of the so-called “Revolution of 1800” and the ascendency of Thomas Jefferson to the presidency, many Democratic-Republicans viewed their mission as rescuing the framers’ work from the “constitutional errors” of their Federalist enemies.8 Even so, the devil was in the details: loyalty to the Constitution meant different things to different people, so that long after its ratification, there was no consensus explanation for the Constitution’s binding authority. The question not of whether but of why the Constitution was supreme law remained unsettled. To no small degree, Marshall’s achievement in Marbury lay in his ability to sort through and lend a measure of coherence to these diverse explanations, thereby providing an opinion that organized and clarified the grounds for citizen’s obedience to the Constitution.

Arguments concerning constitutional legitimacy remain alive and well. After all, governments must justify their existence to those who are required to live under them in any age.9 Applied to political institutions such as Congress or the Supreme Court, questions concerning legitimacy typically address the right by which such institutions wield political authority over citizens.10 In relation to constitutions, however, justifications of legitimacy must address an even more difficult question, which is why the words of the constitution should be followed as opposed to an alternative law, authority, or tradition.11 Thus an ongoing conversation among scholars of European integration concerns the question of whether the legitimacy of traditional national constitutions can be made compatible with the legal strictures imposed by the supranational European Union. To answer this question, political thinkers led by Jürgen Habermas have struggled to find new justifications of constitutional authority that look to a constitution’s function in knitting together people who lack a common heritage but share the same constitutionally governed territory.12 Indeed, even in the United States, where constitutional legitimacy would now seem to be self-evident, the concept is much debated and surprisingly little understood. As a result, writes Richard Fallon, “confusion often results—not only among readers and listeners, but also … in the minds of those who write and speak about constitutional legitimacy.”13

A survey of contemporary discussions of the Constitution’s authority reveals that there is seldom any agreement concerning the one element of the Constitution that ensures its legitimacy. Some thinkers argue that the Constitution is a kind of benign straitjacket, an eighteenth-century text that protects individual liberties by constraining the ability of future elected officials and popular majorities to invade individual rights.14 For these thinkers, the Constitution is delicate parchment: secure from the sullying touch of ordinary citizens, it issues its commands from under protective glass. Others contend that the Constitution is a continuing creation that binds citizens, at least for some duration of time, to the conditional consent given by the American people to its rule.15 Their arguments suggest that the Constitution’s actual appearance, frayed and worn, is the best one for a document that should sometimes be edited, marked through, and occasionally rewritten entirely. Finally, there are those who are persuaded that the Constitution binds citizens because of its instrumental role as a settlement device, providing a practical roadmap or set of “focal points” for organizing politics.16 Proponents of this view conceive of the Constitution as a valuable but well-used atlas that continues to prove handy when the nation loses its way. Each of these justifications addresses important principles embodied in the American Constitution, and none of them discounts rights, consent, or the Constitution’s instrumental value as sources of its legitimacy. Yet all too often these approaches look to a single paramount explanation that gives the Constitution its binding authority.17 Today, as in Marshall’s time, while there is virtually no debate among constitutional theorists as to whether the words of the Constitution bind judges and ordinary citizens alike to its rule, the question of why it is legitimate remains a subject of controversy.

The simplest way to provide a more unified approach to constitutional legitimacy would be to embrace each of these views, combining them into a more comprehensive defense of the Constitution’s binding authority. Yet Marshall moved past these approaches to call attention to the Constitution’s fundamental moral legitimacy. In doing so, he did not shrink from announcing his own admiration for the document, irrespective of its protection of rights, popular sovereignty, or the document’s instrumental value. Important as these functions were, they were goods exterior to the Constitution itself. Marshall’s loyalty ran deeper, grounding itself in the inherent benefits of the rule of law in and of itself. Nonetheless, he understood that his lofty fidelity to the document might not be shared by all Americans. To the best of this untrained attorney’s ability, his theory of moral legitimacy is an effort in persuasion, crafted to prevail on the sympathies of the American people. A mix of high ideals and realistic appeals, it was an argument that in its complexity captured the fraught enterprise of convincing true believers and skeptics alike of the Constitution’s legitimacy.

Marbury v. Madison Reconsidered

The facts of the case date back to the final days of the administration of President John Adams in March 1801. Worried that the incoming Jefferson administration and new Democratic-Republican Congress would fill the federal judiciary with party loyalists, Adams nominated a slate of fifty-two candidates to fill various federal judicial offices only days before leaving office.18 Although the nominees were confirmed by the Senate and their written commissions signed by Adams, several commissions belonging to these “midnight judges” remained undelivered (the ultimate responsibility of then-Secretary of State John Marshall) when Thomas Jefferson was inaugurated as the nation’s third President. On discovering the failed deliveries, Jefferson ordered his Attorney General, Levi Lincoln, to disregard Adams’s appointments, basing his decision on the belief that non-lifetime appointments were revocable. After Jefferson sent his own candidates to the Senate for confirmation, a number of the previous appointees, including one William Marbury, petitioned the Supreme Court for a writ of mandamus ordering the new Secretary of State James Madison to recognize their commissions, along with those of the other Adams appointees.19 Opening arguments in Marbury v. Madison began on February 10, 1803, with Attorney General Lincoln appearing on behalf of the government and former Attorney General Charles Lee representing Marbury.20

Notwithstanding able arguments presented by both attorneys, the verdict was unanimous. On February 24, Marshall delivered the Court’s opinion, which was structured as a series of answers to three questions. First, did Marbury possess a title to his commission? Second, was the administration obliged to recognize his appointment? And finally, did the Supreme Court have the power to issue a writ of mandamus compelling the Secretary of State to recognize the commissions? Marshall concurred with the plaintiff’s argument that Marbury did possess a proprietary right to his appointment and, furthermore, that the laws of the nation afforded him a legal remedy for the deprivation of his right. But in a surprising twist, the Chief Justice denied that the Supreme Court was the proper body for issuing a writ, holding that section 13 of the Judiciary Act of 1789, which in broadening the Supreme Court’s jurisdictional authority had permitted the Court to hear Marbury, violated the constitutional provisions governing the Court’s original jurisdiction prescribed in the Constitution. Thus the Court asserted the superiority of constitutional over ordinary law, striking down as invalid section 13, and with it, the legal standing of Marbury and the rest of Adams’s outstanding appointees.

Marshall did not reserve his discussion of the Constitution to the rousing conclusion of Marbury. On the contrary, the Constitution is referenced eloquently and often provocatively throughout his opinion, and its authority is justified from multiple vantage points. Obviously, differences exist between Marshall’s understanding of the Constitution’s role and contemporary ones. But in allowing him to put forth his distinctive understanding of the Constitution’s authority, Marbury provided Marshall with the opportunity to examine and apply what have become some of our most important theories of constitutional legitimacy. He began with a discussion of rights.

Marbury and the Protection of Rights

Among constitutional theorists, many argue that a written constitution’s principal purpose is to secure citizens’ rights.21 For these thinkers, popular majorities, and particularly their elected representatives, are only too willing to override individual liberties if not legally restrained from doing so. Ronald Dworkin has made this case well over the course of several decades. “The constitutional theory on which our government rests is not a simple majoritarian theory,” Dworkin writes. “The Constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make, even when that majority acts in what it takes to be the general or common interest.”22 Working from these assumptions, Dworkin has argued that a legitimate constitution must contain provisions that “disable” majority rule by codifying political and individual liberties alongside provisions that “enable” collective political decisions.23 He goes on to assert that such a theory provides a constitutional conception of democracy that is based on the principle of equality rather than on its traditional association with majority rule. Accordingly, each member of the community is treated “with equal concern and respect,” and citizens’ most basic liberties are protected from infringement by the democratic process.24 The argument is by no means a recent one: the purpose of the Constitution as a bridle on the dangers of popular rule was a prominent opinion voiced by political leaders throughout the founding era. One need only turn to the warnings of James Madison himself in his famous Federalist #10 for evidence of this widespread concern with securing the “public good and private rights” from the special “danger” posed by majority or minority factions.25

Much of the first half of Marshall’s opinion is centered on rights, and specifically on Marbury’s right to assert legal title to his appointment as justice of the peace of the District of Columbia. Here it is important to note that it is unclear whether this matter needed to be addressed at all by the Court, let alone as its starti...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction: John Marshall and the Constitution
• 1. John Marshall, Marbury v. Madison, and the Construction of Constitutional Legitimacy
• 2. John Marshall, McCulloch v. Maryland, and the Concept of Constitutional Sovereignty
• 3. John Marshall, Ogden v. Saunders, and the Character of Constitutional Liberty
• 4. The Native American Trilogy and the Idea of Constitutional Nationalism
• Summation: The Legacy of Marshall’s Constitutionalism
• Notes
• Bibliography
• Index
• Back Cover