Judicial Review Ain Bicentennial Louisiana:By Prof. Paul R. Baier and Minute Georgia Chadwick Entry

This court, and every court in this state, not only possesses the right, but is duty bound, to declare void every act of the legislature which is contrary to the constitution.

— François-Xavier Martin, Busts of François-Xavier Martin, foreground, and John Marshall at the Louisiana Supreme Court 1828 Museum. Photo by David Rigamer, courtesy of curator’s office, Louisiana Supreme Court Museum.

480 April / May 2013 Préface: 1812-2012 tions, that a law the leg- repugnant to the islature, No scholar of Louisiana’s public law constitution is you attempt that we can find has trumpeted a “general void [.]” Mar- worse than a provision” of Louisiana’s Constitution of bury v. Madison, vain thing; for, 1812 that has since disappeared. This was a 1 Cranch 137, although, you long time ago. Louisiana joined the United 180 (1803). cannot succeed, States of America on April 30, 1812, exactly After 200 you set an ex- nine years after the Louisiana Purchase of years we pro- ample, which 1803 — the year of Marbury v. Madison. pose a Bicen- may convulse John Marshall was Chief Justice of the tennial Minute society to its United States in 1812. War with Britain entry essaying centre. Nay raged. General Andrew Jackson triumphed the origin of ju- more, if the in the Battle of New Orleans. But the dicial review in whole legisla- Constitution triumphed over the General. Louisiana. We ture, an event to This was the last skirmish of the War of throw Bicen- be deprecated, 1812, another Bicentenary to celebrate — or tenary light on should attempt to lament — depending on one’s view of the what is a vital, to overstep the facts and the law. Here is an early chapter, yet completely bounds, pre- the earliest we can find, in the annals of overlooked, now scribed to them judicial review in Louisiana. We mean lost, provision by the people, I, judicial control by way of the Great Writ of Louisiana’s in administering first “Constitu- The 1812 Constitution of Louisiana, originally the public jus- of Habeas Corpus of the executive branch, written in French, was printed in English and of the commander in chief. tion ou Forme de sent to Washington to satisfy requirements set tice of the coun- Gouvernement by Congress for statehood. The eagle is a nod to try, will meet the Louisiana becoming the 18th state of the Union. Le Texte de L’État de La united powers at Louisiane.” Provided by the Law Library of Louisiana. my seat in this Article VI. Sect. 25. The lost provision is tribunal; and, the last of 25 “Dispositions Générales,” to François-Xavier Martin, pointing to the constitution, will say, to quote the French version. It appears almost them, here is the limit of your authority; George Wythe 2 as an afterthought: “All laws contrary to this and, hither, shall you go, but no further. Constitution shall be null and void.” Or, to Doubtless there was talk of Montes- Virginia’s Chancellor Wythe also taught quote the French version: “Les lois contraires quieu’s De l’esprit des lois in Vieux Carré à cette Constitution seront nulles.” law at the College of William and Mary; for coffeehouses in the founding days of Loui- a brief time, one of his students was John siana’s public law. François Martin, a jurist Marshall. The Lost Provision of indefatigable scholarship, undoubtedly nursed himself on Montesquieu and John Section 25 disappeared from Loui- Marshall. He hardly slept for all the books Il Emperor Napoleon, siana’s public law with the adoption of he read. He spent his nights preparing his General Andrew Jackson the Constitution of 1845. It has never astounding Orleans Term Reports (1809- appeared in any Louisiana Constitution 1812) and his Louisiana Term Reports The Civil Law celebrates legislation — thereafter. Why? We suppose that after (1813-1830), to say nothing of his night “c’est mon Code civil,” says Napoleon. But a generation on the books, by 1845, it watches reading law tirelessly, endlessly. We whence judicial review in Louisiana? What was generally accepted that Louisiana’s can easily imagine François Martin reading enables a common-law judge to hold General fundamental law, voiced by the judiciary, George Wythe’s monumental opinion in Andrew Jackson in contempt? United States controls the legislative and the executive Commonwealth v. Caton1 by candlelight in District Court Judge Dominick A. Hall of magistracies. François-Xavier Martin in his Vieux Carré lodgings. We are sure he New Orleans so held. This was the fiery his painstaking History of Louisiana, read it. Here is Chancellor Wythe’s renowned judicial climax of the War of 1812. Jackson From the Earliest Period (Vol. I, 1827; passage announcing judicial condemnation ordered Judge Hall arrested for issuing a writ Vol. II, 1829) blithely passes over Section of a legislative act: of habeas corpus challenging the General’s 25 in his detailed description of the provi- declaration of martial law. Jackson con- sions of Louisiana’s first Constitution. To I shall not hesitate, sitting in this place, to sidered New Orleans his military camp. us, it jumps off the page. It reminds us of say, to the general court, Fiat justitia, ruat The General was above the law. He was John Marshall’s immortal principle, “sup- cœlum; and, to the usurping branch of beyond judicial control, according to the posed to be essential to all written constitu- Jurisprudence of the Camp.

Louisiana Bar Journal Vol. 60, No. 6 481 Judge Dominick A. Hall be shadows, their laws delusions, and Monday next the 13th instant — their liberty a dream; but it should be why the parties should not proceed Not so at all. Judge Hall had the last exercised with the utmost caution, in this case notwithstanding the act word — for the moment at least — duly and when great and serious doubt passed by the Legislature on the 18th recorded in United States v. Major General exists, this tribunal should give to the december last[.] 3 Andrew Jackson. Jackson’s arrest of Hall people the example of obedience to was held a contempt of court. The General the will of the legislature.5 We quote the minute entry of March 7, was fined $1,000. 1815. The case is James Johnson v. Duncan Here, then, is the earliest chapter in the A Bicentennial Minute Entry et al.’s Syndics. life of judicial review in Louisiana, recently On the same page of the Minute Book ap- revisited as a highlight of the Bicentennial We come full circle, back to the future, pears the entry of Monday, March 13, 1815: of the United States District Court, Eastern back to Cases Argued and Determined in The parties aforesaid having appeared District of Louisiana, New Orleans, online the Supreme Court of the State of Louisiana, by their attorneys in conformity with at: www.laed.uscourts.gov/200th/main.php. Eastern District. February Term, 1815, 3 Martin (1813-1815). We mean the clash be- a rule taken in this case on the 7th Louisiana’s tween the General instant & the ar- guments thereon Marbury v. Madison and the Judge pre- viously rehearsed. being closed the Mayor v. Morgan4 is Louisiana’s This time, however, Court took time Marbury v. Madison. François Martin we draw the legal to decide. — assuredly, Louisiana’s John Marshall historian’s attention — delivered the opinion of the Court. to the Minute Book Next, on the The case: The mayor and City Council of of the Louisiana same leaf of the New Orleans refused obedience to a writ Supreme Court. It Minute Book, this of mandamus issued by a court of first plainly shows that for Monday, March instance commanding the mayor et al. to Louisiana’s Judge 20, 1815: seat a person on the Council whose election François Martin, was drawn into question. An act of the not United States The Court now Legislature declared that the City Council District Court Judge delivered their “shall be the judge” of the election of its Dominick Hall, first opinion in writ- members. Judge Martin reasoned that if trumpeted the au- ing on the motion the Legislature had the power to grant to thority of judicial made in this cause the municipal corporation of New Orleans review in the an- on the 7th instant the right to determine the validity of the nals of Louisiana’s and ordered that elections of its members, the district court public law. The title page of the original Minute Book of the same be over- was without jurisdiction to issue the writ Here are the the Louisiana Supreme Court. Photo courtesy of ruled. Historical Archives of the Supreme Court of Louisiana, of mandamus. Held: The Legislature had facts, a matter of Earl K. Long Library, University of New Orleans. What is this case the power to render the City Council the reported chronol- about? “judge of the validity of their elections, and ogy. Martin, J., explains the case in his report, prohibit courts of justice from interfering At the opening of the February Term, 3 Martin 530. Remember, the din of war with its decisions;” the provision of the Act Eastern District, 1815, a commission was raged. Here is the terse opening of Judge of 1816 in question was constitutional. Thus read by which François Martin, then at- Martin’s opinion of the Court: the writ of mandamus was void. Morgan, torney general of the state, was appointed the sheriff, who seized the revenues of the a judge of the Supreme Court of Louisiana, Martin, J. A motion that the Court City in execution of the judicial orders, was a together with a certificate of his having taken might proceed in this case, has been trespasser liable in damages. There is plainly the oaths required by the Constitution and resisted on two grounds: an echo of John Marshall in Judge Martin’s law, whereupon he took his seat. “The din 1. That the city and its environs opinion in Mayor v. Morgan: of war prevented any business being done, were by general orders of the officer, during this term.”6 A month later, at the This court, and every court in this commanding the military district, put opening of the March Term 1815, before state, not only possesses the right, on the 15th of December last, under the Hon. Pierre Derbigny and the Hon. F.-X. but is duty bound, to declare void strict Martial Law. Martin, the Minute Book shows: every act of the legislature which 2d. That by the 3d sec. of an act of assembly, approved on the 18th of is contrary to the constitution. The On motion of Mr. Duncan of counsel due exercise of this power is of the December last, all proceedings in any for the appellees it is ordered that civil case are suspended. utmost importance to the people, and the appellant — to show cause on if it did not exist their rights would

482 April / May 2013 Judge Martin first addresses the Here is the closing part of Judge Mar- order that we can find. argument of General Jackson. Listen to tin’s rejection of Major General Jackson’s 4. 7 Martin (N.S.) 1 (1828). 5. Id. at 7. the voice of Louisiana’s Judge François claim: “How preposterous then the idea 6. 3 Martin V 3 [529]. Martin — Bicentennial fireworks on the that a military commander may, by his own 7. Ex parte Bollman and Ex parte Swartwout, 4 levee (3 Martin 532-533): authority, destroy the tribunal established Cranch 75 (1807). by law as the asylum of those oppressed 8. 3 Martin at 537. 9. The original Minute Book of the Louisiana We are told that the commander of by military despotism!”8 the military district is the person Supreme Court, which includes the minute entries in Johnson v. Duncan, is housed in the archives of the who is to suspend the writ, and is End of the Journey Supreme Court of Louisiana, Earl K. Long Library, to do so, whenever in his judgment University of New Orleans. In celebration of the the public safety appears to require We reach the end of our Bicentennial Bicentennial of the Louisiana Supreme Court, the Law it: that, as he may thus paralyze the sojourn, a final minute entry. Library of Louisiana has had the first two minute books reprinted (Book 1, 1813-1818; Book 2, 1818-1823) and arm of the justice of his country in the The Minute Book of the Louisiana 9 catalogued. They are now available to the public and most important case, the protection Supreme Court shows that Judge Martin interested scholars in the Law Library of Louisiana. of personal liberty of the citizen, it rendered judgment on Monday, March 20, 10. Françis-Xavier Martin, History of Louisiana, follows that, as he who can do the 1815. On the other hand, the contempt pro- From The Earliest Period, Vol. II (1829), p. 416; Pelican ceedings against Major General Andrew Pub. Co. Reprint 1975, p. 405. The Hill Memorial more can do the less, he can also Library of Louisiana State University holds two original suspend all other functions of the Jackson commenced the next day, March editions of Martin’s History under lock and key, and civil magistrate, which he does by 21, 1815.10 Amazingly, our Bicentennial under the watchful eye of Elaine Smyth, curator of his proclamation of Martial Law. Minute Entry shows that Judge Martin books. The Law Library of Louisiana holds an original appears first in the chronology of judicial edition of Vol. I of Martin’s History. The Law Library This mode of reasoning varies toto celo of Louisiana has recently acquired a copy of Vol. II of review in Louisiana. F.-X. Martin’s contemporaneously written history of from the decision of the Supreme Court of Judge Martin himself, in his Louisiana the earliest years of Louisiana’s sovereignty. the United States, in the case of Swartout Term Reports, appends a note (3 Martin See Eberhard P. Deutsch, “The United States [sic] and Bollman, arrested in this city in 557) to his report of Johnson v. Duncan Versus Major General Andrew Jackson,” A.B.A. 1806 by General Wilkinson. The Court J. 46: 966 (Sept. 1960), for the chronology of the et al.’s Syndics. We leave the last word to contempt proceedings with New Orleans’s precision there declared, that the Constitution had Reporter F.-X. Martin — his enduring gift and scholarship. Mr. Eberhard is identified in the exclusively vested in Congress the right to the American Republic: “The doctrine A.B.A. J. as “of the Louisiana Bar (New Orleans).” of suspending the privilege of the writ established, in the first part of the opinion We commend his home-grown article to the reader. of Habeas Corpus, and that body was of the Court, in the above case, is corrobo- Paul R. Baier is the George the sole judge of the necessity that called rated by the decision of the District Court of M. Armstrong, Jr. Professor for the suspension. “If, at any time,” said the United States for the Louisiana District, of Law at Louisiana State the Chief Justice, “the public safety shall in the case of United States v. Jackson, University Paul M. Hebert require the suspension of the powers Law Center. A graduate in which the defendant, having acted in of Harvard Law School, vested in the Courts of the United States opposition to it, was fined $1,000.” (Our he teaches constitutional by this act, (the Habeas Corpus act,) it is Bicentennial emphasis — corroborated.) law. He is in his 40th year for the Legislature to say so. This question Requiescat in pace, F.-X. Martin. of teaching, filmmaking depends on political considerations, on and theater production at LSU. His play, “Father which the Legislature is to decide. Till the The full version of Professor Paul R. Baier’s and Georgia Chadwick’s article, titled “Judicial Review in Chief Justice”: Edward Legislature will be expressed, this Court Louisiana: A Bicentennial Exegesis,” was published Douglass White and the Constitution,” has been can only see its duties, and must obey the in a Bicentennial edition of the Journal of Civil performed in several state and national venues. law.” 4 Cranch 101. Law Studies, Vol. 5, No. 1 (2012), the publication He is secretary of the Supreme Court of Louisiana of the Center of Civil Law Studies, Louisiana State Historical Society. (LSU Paul M. Hebert Law Center, Swartwout and Bollman,7 you might University Paul M. Hebert Law Center. The Louisiana Baton Rouge, LA 70803-1000) surmise, is the voice of Chief Justice John Bar Journal thanks Professor Olivier Moréteau with the Center for allowing publication of this excerpt. Georgia Chadwick, head Marshall. librarian with the Law Thus, John Marshall is brought home to FOOTNOTES Library of Louisiana, our Bicentennial table as a surprise guest. earned her BA degree at Newcomb College, New The Great Chief Justice is here courtesy 1. 4 Call 5 (1782). 2. Id. at 8. Orleans, and her MA of Louisiana’s great jurist François Martin. 3. No. 791, United States District Court, Dist. of La. degree at the University of It is a nice touch to our way of seeing (1815), unreported. Judge Hall’s handwritten orders in Denver Library Science things that John Marshall and F.-X. Mar- Andrew Jackson’s contempt proceedings are preserved School. She is the executive director of the Supreme tin’s marble busts face each other, today, in digital copy, U.S. National Archives & Records Admin., ARA’s Southwest Region (Fort Worth, TX), Court of Louisiana after 200 years, guarding the portal to the ARC Identifier 251606, a cover page and four pages of Historical Society and Louisiana Supreme Court Chamber, fourth digital copy of Judge Hall’s rulings. The authors have curator of the Supreme Court of Louisiana Museum, floor, 400 Royal St., in the heart of the Vieux examined these documents carefully. To their chagrin, 400 Royal St., New Orleans (open to the public). For a tour, contact Chadwick at (504)310-2402. (400 Carré — open to the public. there is no written finding of contempt and imposition of a fine of $1,000 by Judge Hall in any manuscript Royal St., 2nd Flr., New Orleans, LA 70130-2104)

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