THE PENNSYLVANIA STATE UNIVERSITY SCHREYER HONORS COLLEGE

DEPARTMENT OF HISTORY

YOUNG FEDERALIST: THE INFLUENCE OF JOHN MARSHALL’S EARLY LIFE ON MARBURY V. MADISON

FRANCIS J CANAVAN SPRING 2017

A thesis submitted in partial fulfillment of the requirements for baccalaureate degrees in History & International Politics with honors in History

Reviewed and approved* by the following:

Anne C. Rose Distinguished Professor of History and Religious Studies Thesis Supervisor

Michael J. Milligan Senior Lecturer of History Honors Adviser

* Signatures are on file in the Schreyer Honors College

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ABSTRACT

Influential scholarly analyses of Chief Justice John Marshall’s opinion in the U.S.

Supreme Court case Marbury v. Madison (1803) tend to focus on the immediate politics of the time, with a lack of emphasis on earlier developments in the life of Marshall. This study seeks to trace the growth of Marshall’s Federalist ideology long before the formal establishment of the political party to which he declared his allegiance. The influence of his father, his experience in the Revolutionary War, and his service in Virginia state government all powerfully shaped

Marshall. The principle of judicial review stated by the Supreme Court in Marbury had already been developed in Marshall’s mind decades prior. Historians have long argued about whether a partisan motivation existed for the Supreme Court’s decision in Marbury; however, significant attention has not been directed towards what can be seen as parallels between the formative years of Marshall and his opinion written in 1803. Marshall’s decision in Marbury was the product of an early life typified by tireless advocacy in favor of the policies put forth by his ideological counterparts in favor of a stronger central government.

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TABLE OF CONTENTS

ACKNOWLEDGEMENTS ...... iii

Introduction ...... 1

Chapter 1 The Marshall Family, Educational Influences, & Wartime Experiences.....11

Chapter 2 Marshall in State Government & the Virginia Ratifying Convention ...... 27

Chapter 3 Marshall and the Partisanship of Marbury v. Madison ...... 53

BIBLIOGRAPHY ...... 81

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ACKNOWLEDGEMENTS

I would like to Professor Annie Rose for her tireless efforts in pushing me to make my thesis the best product possible. I am deeply indebted to her for spending countless hours reading and rereading my drafts in order to create the strongest finished product possible. Without her, my thesis would be nowhere near where it stands now.

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Introduction

The goal of this study is to examine the link, if one exists, between John Marshall’s early life as a strong central-government partisan and the potential partisanship of his decision in

Marbury v. Madison (1803). Appointed Chief Justice in 1801, Marshall issued this ruling in what scholars identify as the first landmark Supreme Court case. As its author Marshall articulated the principle of judicial review of laws against the standard of the supreme law of the land – the

Constitution- as the prerogative of the Supreme Court. While the Federalist Party did not officially come to exist until the mid-1790’s, the label “Federalist,” for a lack of a better term, will be used to describe Marshall’s political orientation well before the party’s official recognition. Before analyzing any potential partisanship in Marshall himself, it is important to begin by defining exactly what Federalism as an ideology entails. By using this definition, I will then examine Marshall’s potential partisanship in Marbury as a direct extension of his experiences as a young man.

For the period following ratification of the United States Constitution in 1791, the legal scholar James F. Simon describes the overarching goal of Federalists as “consolidating the power of the newly constituted government.”1 Such policies included strengthened relations with Great

Britain at the expense of France, enhanced national government economic power, and favored

judicial independence. The results of the election of 1800, in which the Federalist Party lost control of both the executive and legislative branches, sparked a political crisis that impelled

Federalists to look for other ways by which to retain influence in the federal government. In this context, my study examines if Marshall’s actions in Marbury possibly served a partisan purpose

1 Simon, What Kind of Nation, 28. 2 of consolidating power within a Federalist-dominated branch of central government – that is,

Supreme Court.

Historical scholarship has covered Marshall’s career as a national figure extensively, and

rightly so; but there has been much less focus on his early life and the development of his

political ideology. The Federalist Party did not officially exist until 1792-1794, yet Marshall

espoused core tenets of the party’s philosophy over the previous decade by way of his activity in

Virginia. Many scholars view Marshall’s opinion in Marbury in the immediate context of the

circumstances of the time; however, it is quite possible that the ideas developed in the Court’s

decision share many parallels with ideas embodied and practiced by Marshall early in life. For

this study, I understand “Marshall’s early life” as beginning with his childhood (born 1755) through his attendance at the Virginia Ratifying Convention in 1788. This study hopes to shed a greater light on a period of Marshall’s life for which admittedly few primary documents authored by Marshall himself remain. Marshall recorded little about his early life until 1818, when he drafted a biographical sketch, and thus by faults of human memory and self-interest, his recollections may not be entirely accurate.2 Nonetheless, this document serves as a powerful

firsthand account of Marshall’s beginnings. Marshall was meticulous about periodically destroying his personal files throughout his life. Thus the amount of material that remains may not be nearly enough to accurately draw definitive conclusions on what may have been politically motivated actions during his lifetime. This lack of conclusive evidence does not entirely handicap a study focusing on Marshall’s early life in relation to later partisan actions, but it does seem to have caused scholars to focus their attention elsewhere towards potentially more reliable areas of research.

2 Marshall, An Autobiographical Sketch, xii. 3 The present study makes no attempt to take away from the clear importance of the 1790’s in regards to the development of American politics, Marshall’s political orientation, or the rise of

Marbury as a legal case. Rather, I seek to demonstrate how Marshall’s arguments in Marbury expressed a partisan framework for his thinking and actions well before his rise to national prominence in the 1790’s. By 1788 Marshall had reformulated the theory of judicial review multiple times, and more or less committed himself to the Federalist Party a decade before it came to exist as a formal political unit. The contentious political climate of the period was vital in contributing to the substance of Marshall’s opinion in Marbury; however, as Robert K.

Faulkner, professor of political science at Boston College, cautions, Marshall was a strong proponent of judicial review well before the election of Thomas Jefferson elicited its promulgation.3 From this perspective, Marshall’s early life experiences served as a launch pad, so that by the time he had reached national prominence in the 1790’s, his partisan Federalist beliefs had already crystalized. Further events only served to harden his political resolve and allow Marshall ample practice to hone his craft as a skillful partisan on the national stage.

Simply declaring Marbury a partisan decision and offering evidence in support of its partisanship is not a sufficient analysis. In order to point to any particular Court case as potentially partisan, it must first be stated how partisanship could appear within the confines of a judicial opinion. No legal decision emanating from the Supreme Court will not on its face be partisan; to look for explicit proof of political intentions would be difficult. Instead, the context of the case must be considered in order to unpack potential motivations which may or may not have driven a decision in a particular direction.

3 Faulkner, The Jurisprudence of John Marshall, 201-202. 4 In this case, William Marbury filed his suit at a particularly fragile time in American history. For the first time, the party in power would peacefully hand over control of the government to the opposition party. To say that the Federalists did so willingly is false. As the election of 1800 neared, President Adams’s support within his own party can be described as tepid at best. Federalist leaders in government recognized their predicament and began politically maneuvering every which way to ensure the Republican candidate, Jefferson, would not win the election. Quite possibly the clearest example of the politically toxic environment out of which

Marbury emerged is the Bill For Settling Disputed Presidential Elections (1800). This bill, originating from the Federalist-controlled Senate and authored by James Ross of Pennsylvania, proposed a commission made up of six members chosen from both houses of Congress, along with the Chief Justice, to independently certify and declare the winner of the presidential and vice presidential elections.4 In what appears to be Federalist leaders’ sense of their party’s electoral weakness, a more appropriate name for the bill would have been the “Beat Jefferson

Bill.”5 While it ultimately failed to pass, the bill would have effectively given the Federalist- controlled legislature the ability to declare its own candidates the victors by a process of no oversight and no appeal. Thomas Jefferson best described Republican outrage at this attempt by the Federalists to influence the upcoming election in a letter to James Monroe in which he remarked the electors hoped to “shut themselves up, and decide who is elected President

...without appeal & Congress to have no power to dissolve them.”6 The eventual results of the election of 1800 – that is, the Federalists loss-- served to increase the fervor with which the lame- duck Federalist administration pursued a deeply partisan agenda.

4 Jefferson, “From Jefferson to Monroe, February 16, 1800.” 5 Dewey, Marshall versus Jefferson, 39. 6 Jefferson, “From Jefferson to Monroe, February 16, 1800.” 5 With Jefferson’s inauguration getting ever closer, President Adams and Federalist leaders in Congress worked at a feverish pace in the final months of his administration to both pass the

Judiciary Act of 1801 and fill the numerous posts the act established. Adams hoped to erect a

lasting legacy by naming Chief Justice Marshall as its crowning achievement and installing

whole slew of Federalist judges to lifetime posts.

Besides enhancing the authority of his own position, Marshall had other incentives to

work for increasing the power of the judiciary. Marshall succeeded in providing several of his

family members with new positions in the judicial branch as a result of the patronage doled out

by President Adams in the waning moments of Adam’s presidency. Marshall’s younger brother

was commissioned as a judge, as were two of his brothers-in-law, with a third named attorney

general for Kentucky.7 Available evidence suggests that the eventual repeal of the Judiciary Act

of 1801 only further convinced Marshall of the necessity to stake out increased power for the

judiciary branch in order to fight back against the perceived excesses of Republicanism. Thus in

considering the political climate behind the Marbury ruling, I conclude that it would have been

extremely difficult and personally damaging on Marshall’s part to disentangle partisan

motivation from his logic. Marshall might well have avoided articulating judicial review in this

decision. The Court might not have agreed to the hear the case at all. Moreover, within the

structure of Marshall’s opinion, there was not logical necessity to set out the idea of judicial

review. His decision to do so suggests his commitment to importing this Federalist-supported

principle into the decision. The case offered an opportunity that was tactically convenient and

advantageous. To understand that Federalists, including Marshall, strongly supported the notion

of judicial review, one need only consider Federalist 78 by Alexander Hamilton, published in

7 Dewey, Marshall Versus Jefferson, 59. 6 1788, along with the rhetoric employed during the congressional debates over the repeal of the

Judiciary Act of 1801. Hamilton’s passionate defense of the federal judiciary, in which he sought

to gain increased support for ratification of the Constitution, positioned judicial review as a

hallmark of the proposed national court system and served as the philosophical inspiration for

many Federalists wishing to articulate the theory. In the repeal debates, several Federalist

Congressmen articulated the theory of judicial review to criticize what they believed to be the

legislature’s encroachment on the judiciary by removing rightful officeholders from their

positions.

There is no shortage of scholarship when it comes to John Marshall. These critical

estimates are the background of my own interpretation. Albert Beveridge’s expansive biography

The Life of John Marshall, is the starting point for those interested in learning about Marshall;

but its dated nature and hagiographic stance make its scholarly worth dubious. What it does

provide, however, is a wealth of primary source documents that greatly assist any study of

Marshall. Recently, several stronger biographies of Marshall have been published, which

contribute to this study. Some of the most useful were John Marshall: Definer of a Nation by

Jean Edward Smith, John Marshall Professor of Political Science at Marshall University, and

John Marshall: The Chief Justice Who Saved the Nation by award-winning biographer and former Distinguished Visiting Fellow in American history at Mount Vernon, Harlow Giles

Unger.

Along with full biographies of John Marshall, the catalogue of scholarship specifically focusing on Marbury is equally vast. Historians have taken several positions on the Marbury decision, ranging from interpreting it as an ingenious political coup to being an affront to the

American legal system. When it comes to declaring Marbury an outright partisan-driven 7 decision, biographers seem much more willing to state the case affirmatively. In this group of biographies one finds David Robarge, author of A Chief Justice’s Progress. In contrast, those who have studied the Marbury decision specifically have recognized potential partisanship yet remain skeptical of this argument. Faulkner sums up this camp when he states the evidence at hand at best can lead to “persuasive inferences [about Marshall’s political motivations]…yet to be accompanied by other evidence.”8 Nearly all of the relevant scholarship on Marshall in regards to Marbury remains focused on his immediate circumstance around 1800, only going back a handful of years.

My study is more ambitious in that it seeks to look beyond the immediate connections between Marshall in the 1790’s/ early 1800’s and his opinion in Marbury. I draw parallels between his logic in Marbury and ideas expressed much earlier in his life. Because analyses focused only on Marbury tend to omit Marshall’s earlier life, I relied to a greater extent on general biographies to widen my scope of study.

In particular, by far the most useful biography for this study has been David Robarge’s A

Chief Justice’s Progress. Robarge, chief historian at the Central Intelligence Agency and former professor of history at Georgetown and Columbia, employs an all-encompassing biographical approach to trace Marshall’s life from his birth to his time as Chief Justice. Robarge presents

Marshall as a passionate Federalist (at times too an exaggerated degree) shaped by his experiences in the Revolutionary War and his frustrating service in Virginia state government.

Despite the occasional rhetorical flourish, Robarge does a dutiful job of backing up nearly all of his declaratory statements with copious references to credible primary and secondary sources.

Robarge explicitly notes when he makes an inference based on the information available and

8 Faulkner, The Jurisprudence of Marshall, 202. 8 notes when he speculates beyond what can be proven. His description of Marshall’s actions in

Marbury can most succinctly be described as a “counterattack,” by Federalists via Marshall,

where Marshall performed “an adroit tactical retreat from the blatant partisanship of the national courts during the Adams administration.”9 Robarge does seem a little quick to attribute

Marshall’s opinion purely to political motivations; however, this text’s primary contribution to my study is its meticulous chronicle of Marshall’s early life, especially in regards to his father

Thomas Marshall.

A second source of primary importance, and my chief text used in regards to the Marbury

decision specifically, is Donald O. Dewey’s Marshall Versus Jefferson: The Political

Background of Marbury Versus Madison. Widely cited in nearly every work examining

Marshall’s potential partisanship on the Court, Dewey is Professor Emeritus of Constitutional

History at California State University, Los Angeles, and was previously editor of the Madison

Papers. Dewey’s focused interpretation of the Marbury case is prefaced with the author’s own

admission that Marshall’s motivations in crafting his decision still remain too mysterious to state

definitively any particular conclusion. Rather, Dewey’s argument that the decision was one

motivated by politics is simply one potential explanation, backed up by the intense partisan

environment in which it was delivered. Dewey frames his political explanation of Marbury in the

context of a mysterious quote offered by Marshall in 1830, when Marshall referring back to the

rationale of his logic saying, “nothing is unknown or can be misunderstood by intelligent men,

unless it be the motives which compelled the court to give its opinion at large on the case of

9 Robarge, A Chief Justice's Progress, 280. 9 Marbury v. Madison.”10 With Marshall himself offering no explanation for the rationale of his opinion, scholars are left at best with educated inferences.

An alternative explanation for the style and substance of Marshall’s opinion in Marbury rejects the notion that judicial review was employed as a clever strategic move. The concept that

Marshall engineered judicial review into his decision as a way to avoid conflict with Jefferson, while still declaring a philosophical victory, is refuted by Lee Epstein, distinguished professor of constitutional law at Washington University in St. Louis, and Jack Knight, professor of law and political science at Duke University School of Law. Rather, Epstein and Knight see Marshall’s opinion as something that was “allowed” by the Jefferson administration. There was nothing bold about Marshall’s decision, in their view he: “was able to write the opinion he did, to establish judicial review, because it was a politically viable step at the time.”11 They go on to explain its viability in that sense that Jefferson supported Marshall’s pronouncement of judicial review, and Marshall, recognizing their agreement, carried through with his opinion.12 This

explanation is a bit confusing in that Jefferson did not necessarily “support” judicial review, but

rather he believed that each branch of the government should be vested with the power to review

the constitutional issues within their own sphere. Jefferson wrote about this separation of powers

in a letter to Abigail Adams a year after Marbury in 1804, remarking, “the opinion which gives judges the right to decide what laws are constitutional ... for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”13 It would seem, then, Jefferson

10 Marshall, Papers, XI: 73. 11 Epstein & Knight, Marbury v. Madison, 41. 12 Ibid. 13 Jefferson, “From Jefferson to Adams.” 10 was strongly opposed to the judiciary over-extending its authority into the realm of the executive and legislative branches.

Observing Marshall’s motivations for how he crafted his opinion in Marbury has long been the subject of study for many scholars, and yet too much is unknown to offer definitive

conclusions. The catalogue of scholarship which exists currently offers various explanations on how to interpret Marbury, this study seeks to further the cause of one argument in particular. By focusing on Marshall’s early life as an impetus for his later partisanship I have taken a more unique, nuanced approach than past studies in relation to partisanship in Marbury. Beginning with Marshall’s early education and intellectual influences, I have traced his growth through the

Revolutionary War into his time serving in the Virginia state government, culminating with his role in the Virginia Ratifying Convention (1788). Beyond his limited formal education, the influence of John Marshall’s father had a deep impact on the ideological growth of Marshall the politician equipping him with a belief system primed to blossom into a proponent of Federalist rhetoric. As Marshall grew into a man his personal loyalty to General George Washington stemming his service in the Continental Army along with his increasingly inter-state economic interests seem to have pushed Marshall towards Federalist circles while most Virginians became decidedly Republican. Upon being named Chief Justice in 1801, Marshall inherited an office with little prestige at a time when partisan feeling was about as high as it had ever been in the young nation. Facing a growing surge of Republican sentiment following the election of 1800 it would seem that the Federalists turned to the judiciary as their last hope for influence. The surrounding context of the day, along with the early life experiences of Marshall, has led this study to argue that a portion of Marbury and Marshall’s subsequent usage of judicial review may have been motivated by partisanship. 11

Chapter 1

The Marshall Family, Educational Influences, & Wartime Experiences

Contemporary historical analyses of Marbury v. Madison tend to focus on one of two

angles, the first being that Chief Justice John Marshall issued a partisan ruling grounded in his

experience as a member of the Federalist Party. The second commonly studied angle portrays

Marshall as a genius judicial activist who succeeded in creating the theory of judicial review,

impacting our judiciary irreversibly. Neither of these positions is entirely accurate and fails to

take into account the true ideological background from which Marbury sprung.

In order to understand the origins of the strong Federalist position expressed by Marshall

in Marbury, one must begin by looking at the life of his father. To say the influence of Thomas

Marshall (1730-1802) on his son’s life was profound is surely an understatement. Inheriting a meager amount of poor land from his own father, Thomas Marshall traveled west in search of a better life, and by adulthood had become one of the largest landowners on the Virginia frontier.14

While Thomas Marshall’s ambition and intelligence were first-class, much of his success can be

attributed to his relationship with his childhood friend, George Washington, and their employer,

Lord Thomas Fairfax (1693-1781). Lord Fairfax was far more than their employer; however, he

served as a patron opening his home to Thomas Marshall, who utilized this access to one of the

largest libraries in the colonies as he borrowed many books for himself and his son.15 Besides the

enormous financial and academic compensation Lord Fairfax supplied Thomas Marshall, the

status of being an agent of the Fairfax estate gave Marshall immediate social standing on the

14 Smith, John Marshall, 31. 15 Ibid, 28. 12 Virginia frontier. At a time when the social structure of the Virginia piedmont was still very fluid, working as a surveyor for the largest landowner in the area gave Thomas Marshall a privileged social standing that his lineage could not.16 Thus it was this fruitful relationship early on in his career as a surveyor and land speculator that allowed Thomas Marshall to earn his way into the gentry class and provide for his children a first rate upbringing.

Thomas Marshall’s social standing allowed him to be appointed justice of the peace and county surveyor for Fauquier County by 1759, despite only having lived there for four short years.17 With the birth of his first son, John, in 1755 Thomas Marshall began a life of public service which continued virtually until his death. As a colonial-era justice of the peace, Thomas

Marshall served as an official of the county court, settling small disputes and ruling on matters of local importance such as land titles and licenses.18 For many ambitious members of the gentry, serving as a justice of the peace was the first step to a successful career of public service in

Virginia. It was an office Thomas Marshall would hold for most of the period leading up to the

Revolutionary War. In this era, the homes of the gentry class served as a training grounds for the future leaders of Virginia, as fathers instilled in their children from a young age the importance of public service.19 The primary method of training was direct exposure to the inner workings of government institutions and thoughtful discussion of politics and the law at home.

When discussing the social standing of the gentry in colonial Virginia, it is important first to note that the term “gentry” within the scope of this study refers to about two-to-five percent of the total population of colonial Virginia, consisting of the wealthiest planters, merchants,

16 Greene, Society, Freedom, and Conscience, 20. 17 Robarge, A Chief Justice's Progress, 4. 18 Ibid. 19 Greene, Society, Freedom, and Conscience, 31. 13 lawyers, and landowners.20 By virtue of his ties to Lord Fairfax and skills as a frontier

speculator, Thomas Marshall quickly shot into this upper stratum of Virginia society. There was

a widely held belief that members of the gentry should aspire to public office not only for the social and economic gains but out of a responsibility to govern due to their privileged position in society.21 The Marshall household was no different. It is almost certain that Thomas Marshall,

when returning from his sessions at the County Court, told his young son stories of his cases and

likely brought him to watch several sessions. It was common custom of the time for the gentry to

raise their sons to fill the numerous public offices and thus immersing one’s children in public

affairs from a young age offered them invaluable experience.22

Capitalizing on his experience in local government, Thomas Marshall used his standing

to achieve election to the House of Burgesses, taking his seat in November 1761. At the time,

there were only one hundred and twelve Burgesses, with two representing Fauquier County.

Marshall’s office shows the important position in society that he held during John Marshall’s

formative years.23 As a representative from the Virginia uplands, Thomas Marshall developed

anti-British sentiments early on and did not share the close connection to the Crown that heavily

indebted Tidewater planters displayed.24 With British authority limiting the power of the House

of Burgesses and the resistance to the Stamp Act by Fauquier County in 1765, it is no wonder

Thomas Marshall grew to develop anti-British feelings.25 In addition to representing Fauquier

County in the House of Burgesses, Thomas Marshall also served as county sheriff from 1767 to

20 Ibid, 17. 21 Ibid, 29. 22 Sydnor, Gentlemen Freeholders, 3. 23 Kennedy, "Journals of the House of Burgesses." 24 Smith, John Marshall, 41. 25 Robarge, A Chief Justice's Progress,, 22. 14 1769. At the time this was the most powerful and most lucrative position in the county, because he was in charge of collecting local fees and running local elections.26

In view of his tenure in these various public offices, it is clear that Thomas Marshall was one of the most important men in Fauquier County, if not the entire Virginia frontier. From this position of privilege, John Marshall grew up with a robust education for the time period and was constantly exposed to the current affairs of the day. Surrounded in the legislature by the likes of

Patrick Henry, George Washington, and George Mason, it is no stretch of the imagination to say that Thomas Marshall had reached the pinnacle of Virginia politics by the late 1760’s. From this pinnacle, Thomas Marshall filled his son with the knowledge expected of a boy in Marshall’s position, as John learned both the strengths and the weaknesses of the Virginia colonial government. Reflecting back on his childhood in his brief autobiography, written at the request of his colleague Justice Joseph Story in 1827, Marshall remarked, “My father, was a far abler man than any of his sons.”27 It was in 1775 when, serving as a delegate at the second Virginia

Convention (a precursor to the state constitutional convention in 1776), that Thomas Marshall witnessed Patrick Henry’s famous “give me liberty or give me death” speech as a call to arms.28

Almost immediately after the convention, Thomas Marshall joined the neighboring Culpepper

County militia as a captain with his eighteen-year-old son following in his footsteps.29

In shaping the future political views of his son, one of the most important things Thomas

Marshall achieved, second only to directly exposing Marshall to the inner workings of colonial government, was providing him with a first-rate education. Despite living on the relatively unsettled Virginia frontier, Thomas Marshall was determined to provide his children, even his

26 Ibid, 7. 27 Marshall, An Autobiographical Sketch, 4. 28 Gott and Triplett, Fauquier County in the Revolution, 55. 29 Unger, John Marshall, 15. 15 eight daughters, with the classical education that he had never received.30 Much of John

Marshall’s early education was at home under the tutelage of his parents, primarily by means of

books borrowed from the library of Lord Fairfax; but as Thomas Marshall’s wealth grew, so did

John’s educational opportunities. Of the texts that Marshall had contact with as a young boy, the

most influential of these was the writings of English poet Alexander Pope (1688-1744). An

eighteenth-century English satirist, Pope was highly critical of the dangers of political corruption

and stagnation in the English government, ideas that would become very attractive to many

colonists in America.31 Despite his youth, Marshall took the wisdom of Pope’s words to heart

and recalled them with great admiration in his autobiography many years later.32 When looking

at Marshall’s later strong support of Federalist ideology, we can ascertain that from Pope he

began to understand the value of a government with strong checks and balances in which the

competing interests of different actors create the balanced “music of a well-mixed State.”33

By the time Marshall was fourteen, his father’s increasing wealth allowed John to attend

the prestigious Campbelltown Academy one hundred miles away, reputedly one of the best

schools in colonial Virginia.34 Run by the learned Reverend Archibald Campbell, Campbell instructed his pupils in a variety of classical subjects such as history, Latin, and French – subjects

with which young gentlemen were expected to be familiar. One of Marshall’s fellow classmates,

James Monroe, said of Campbelltown Academy, “so high was its character that youths were sent

to it from the more distant parts of the then-colony.”35 That Marshall was able to attend such a

highly respected institution of that day and age puts into perspective how well-established

30 Smith, John Marshalll, 30. 31 Bailyn, Ideological Origins, 48. 32 Marshall, An Autobiographical Sketch, 4. 33 Pope, Essay on Man, 56. 34 Robarge, A Chief Justice's Progress, 9-10. 35 Unger, John Marshall, 13-14. 16 Thomas Marshall was among the Virginia gentry. After studying under Reverend Campbell for

one year, Marshall returned home in 1770, where by this time his father had been appointed head

of the vestry for the local parish.36 Part of this responsibility involved recruiting a minister, who

in return for a room at the Marshall home, supervised the education of the Marshall children.

Under the tutelage of Scottish-trained Reverend James Thomson, Marshall’s formal education

continued for another year. In the early stages leading up to the Revolutionary War, Reverend

Thomson was known for delivering numerous anti-British sermons, calling for unity among the colonists to defend their way of life.37 It is almost certain that Thomson, in his time with the

Marshall family, shared these same sentiments with them, especially considering it was a

position similarly supported by Thomas Marshall. This would be the extent of Marshall’s formal

education leading up to the Revolutionary War. In the crisis, Marshall put the classics aside in

favor of preparation for war.

Just as Marshall ascended into manhood, the conflict with Great Britain had become so

tense that it dominated every aspect of daily life. Marshall noted in his autobiography that in lieu

of continuing his studies, he “devoted more time to learning the first rudiments of military

exercise… and to the political essays of the day.”38 Thomas Marshall’s decision to volunteer as a

member of the Culpepper Minutemen undoubtedly encouraged Marshall to sign up as well.

Presumably the rhetoric of the day also inspired him. In colonial America, the primary method of

mass media was the distribution of small booklets of various lengths loosely stitched together

known as pamphlets.39 Pamphlets published immediately leading up to the war largely dealt with

the events of the day such as the Boston Massacre, the Tea Party, the Coercive Acts, and the first

36 Smith, John Marshall, 35. 37 Meade, Old Churches, Ministers, and Families of Virginia, 219. 38 Marshall, An Autobiographical Sketch, 5. 39 Bailyn, Ideological Origins, 2. 17 meeting of the Continental Congress. It was these pamphlets that an eighteen-year old Marshall devoured. They filled him with the spirit of the Revolution. Many pamphlets discussed the growing attack on liberty around the world, assaulting European countries such as Denmark and

Sweden and now slowly corrupting England and by extension the colonies.40 The English had always been particularly strong through the centuries at defending liberty, but there was an ever- growing belief in the colonies that America, which had been founded as a “purer and freer

England,” was being deprived of its liberty by the English Parliament.27 Threatened by the loss of their liberty, the colonists chose open conflict with the very force attempting to deprive them of everything they cherished most. Bombarded as the colonists were by all of this information on proper forms of government and treatises on liberty and individual rights, we can be nearly certain by this point that Marshall’s views on the matter began to shape. He seems to have joined the war effort out of a genuine desire for a free and independent America.

The extent of colonial Virginia’s military forces prior to the war was a handful of inexperienced militia units which were poorly equipped and even more poorly trained. The militia units prior to the war very much captured Virginia’s social order of the time, as members of the gentry were awarded officer’s commissions and the yeoman was left with little incentive to follow the lax militia laws.41 Due to the various structural deficiencies exhibited by the colony’s militia, at the outbreak of the war many enthusiastic well-off youths (such as Marshall) formed independent companies, in which each man provided his own equipment and uniform and had no command structure answerable to the government.42 The inadequacy of these units became clear when several independent units gathered in the capital of Williamsburg in June

40 Ibid, 65-66. 41 Robarge, A Chief Justice's Progress, 23. 42 Ibid, 29. 18 1775, and defying their officers’ orders, committed all kinds of violent acts against innocent

bystanders. Thus, Marshall’s first experience of war was colored by disarray and chaos.

Following this brief crisis, the acting Virginia convention moved to establish a proper militia

force with sixteen battalions of Minutemen. Even so, supplies and organization failed to improve

by much. In mid-September 1775, the leader of the state militia, Patrick Henry, ordered the

Culpepper Minutemen (of which both Marshall and his father were part) to Williamsburg. Being

totally unprepared for such orders, it took the battalion weeks to assemble and make the one-

hundred fifty mile march.43 The Minutemen received no pay for their troubles, had no tents, and

very few blankets to go around. To say that Marshall was frustrated by Virginia’s initial handling

of the war effort is certainly an understatement. This frustration with the Virginia militia would

continue, as their success at the Battle of Great Bridge caused Lord Dunmore to abandon the

Tory-filled town of Norfolk and retreat to British ships in the Norfolk harbor. British evacuation

of the city emboldened the Minutemen to set fire to the town and loot Tory property on a grand

scale.44 On the burning of Norfolk, Marshall seemed to show immense regret for the actions of

his fellow soldiers saying, in his later biography of George Washington, “its destruction was one of those ill-devised measures, of which the consequences are felt long after the motives are forgotten.”45 Marshall’s early experiences as a member of the militia undoubtedly left him

frustrated with the lack of discipline and a strong desire for more centralized, effective

leadership. In many respects, the free spirit of the militia, often touted as its greatest strength,

more or less impaired its effectiveness and reduced it to little more than an unruly mob.

Marshall’s wish for law and order was granted as the minutemen battalions were demobilized in

43 Smith, John Marshall, 46. 44Ibid, 51. 45 Marshall, The Life of George Washington, 69. 19 the summer of 1776 and the state convention responded to the Continental Army’s plea for reinforcements, sending six regiments (including first lieutenant Marshall) under the command of General Washington.46

As a member of the Continental Army, Marshall initially served under Colonel Daniel

Morgan, the perfect role model for the young lieutenant. Next to Washington, Morgan was the most esteemed military figure in Virginia history, known for his bravery in battle and ability to bring out the best in his men. Marshall would serve under Morgan for almost the entirety of his time in the war, and shortly after joining he was promoted to regimental adjutant at the age of only twenty-one beginning his rise in the officer corps of the Continental Army.47 As adjutant,

Marshall was in charge of the regiment’s administrative paperwork, processing Morgan’s directives to the rest of the soldiers under his command. More important than the actual responsibilities he was assigned, as a member of the officer corps Marshall became much more aware of the diverse logistical difficulties involved in keeping the Continental Army afloat.

Looking back in his biography of Washington, Marshall recalled that by the end of 1776, he recognized that the fatal flaw in the war effort was the Continental Congress’s excessive reliance on the individual states to supply troops for the Continental Army.48 This would prove to be a problem that frustrated General Washington to no end. Marshall repeated Washington’s criticism in his biography of the first president. In addition, Marshall also noted later that the continued overreliance on militia forces caused the same issues that had plagued the Virginia militia in his days as a Minuteman.

46 Smith, John Marshall, 52. 47 Robarge, A Chief Justice's Progress, 30. 48 Marshall, The Life of George Washington, 104. 20 Nothing better encapsulates the struggles that the Continental Army faced or the

frustration that Marshall felt with the war effort than the winter spent at Valley Forge in 1777-

1778. The choice of Valley Forge as winter quarters was already difficult enough away from

major supply sources. To compound matters, the supplies on hand were pitiful compared to the

needs of Washington’s men. The occupation of the city of Philadelphia by British troops from

September 1777 to June 1778, however, made it necessary to set up winter quarters in the

countryside. By Christmas of 1777, desertions, disease, starvation, and exposure to subzero

temperatures had decimated the Continental Army, reducing its numbers from eleven thousand

to five thousand men.49 Washington’s own quartermaster ignored his requests to order supplies,

and even Washington’s direct appeals to the Continental Congress largely fell on deaf ears. The

Articles of Confederation had just been approved by Congress (November 15, 1777) and would

not be ratified by the states until 1781. Under its provisions, Congress could not levy taxes in any

case, and was thus at the mercy of the states. In a letter to his close friend Benjamin Harrison,

Washington lamented the situation of his men, decrying that many prominent men seem to have

lost interest in the war and were more interested in personal wealth than supporting the war

effort. In particular, he even questioned why Thomas Jefferson had resigned from Congress.50

By the close of 1777, Washington had become so desperate for help that he sent personal pleas to

each of the governors, begging for supplies to refurbish his ragtag army. While the problems

afflicting the army as a result of the states’ individual policies, they were far from the only issues

of concern. Marshall was as appalled as his commander at the lack of support for the war effort

and placed the blame squarely on the states lamenting a decade later “the failure of the states to

49 Unger, John Marshall, 23. 50 "George Washington to Benjamin Harrison, 18–30 December 1778." 21 comply with requisitions rendered our resistance less efficient than it might have been.”51

Marshall makes no attempt to mince words when discussing who was to blame for the struggles of the Continental Army, the states. In his view the lack of a strong central authority with the ability to properly guide the war effort was the chief reason why the Continental Army continued to struggle against its British counterpart. This would be far from the last time Marshall would become overly frustrated with ineffective state government.

While the Continental Army as a fighting force hit a low point during its encampment at

Valley Forge, Marshall received another promotion. Serving admirably as Colonel Morgan’s adjutant, Marshall was appointed as deputy judge advocate general and served as General

Washington’s chief legal officer at Valley Forge.52 In this role, Marshall’s first experience in

law, he served as a judge responsible for prosecuting violations of military law. Presiding over

daily court-martials, Marshall became intimately aware of the lack of order within the

Continental Army, largely due to the poor training of volunteers and general apathy among them.

Marshall’s position put him in intimate contact with General Washington as a member of his officer corps, and as his later biography of Washington attested he grew to greatly admire his

commander-in-chief and shared many of his views on proper governance expounding upon them in later years moving past the noble political neutrality with which Washington carried himself.

Upon leaving winter quarters at Valley Forge, Marshall was actively involved in the war only a

brief while longer, when a reorganization of Virginia’s troops left Marshall without a command

and he was furloughed and ordered to return home.53 The proverbial “nail in the coffin”

regarding Marshall’s frustration with the state’s handling of the war effort came in late 1779-

51 Marshall, Papers, I: 262. 52 Robarge, A Chief Justice's Progress, 33. 53 Smith, John Marshall, 68. 22 1780, as Thomas Jefferson, recently elected governor of Virginia, chose to ignore General

Washington’s warning that the British were planning to invade Virginia in the coming months.54

With the conscriptions of most of Virginia’s soldiers expiring, there was scarcely anyone to defend the state; however, Jefferson refused to ramp up recruitment efforts or allocate money to the Continental Army for additional supplies. Jefferson’s handling of the invasion of Virginia was criticized both by those in the army and by the Virginia legislature, and nearly resulted in his impeachment. He resigned the governorship instead.

As one of the many subordinate members of the Virginia officer corps, Marshall, disempowered by Jefferson’s policies, resigned his commission in the army to pursue other matters.55 However, Marshall decided to leave the army prior to the conclusion of the war for several reasons beyond his personal frustration with the government. In addition, during the time he awaited the recruitment of a new company to command, he began the romantic pursuit of his future wife, Mary “Polly” Ambler56. Before he could even think of marrying anyone Marshall needed to help shore up his family’s finances, which had been badly affected by the war effort, not unlike most men involved in the conflict whose service took them away from home and business for long periods. It is hard to explain for certain why someone who was so self- professedly committed to the war effort left during a time when victory was far from certain.

Looking at Marshall’s own words leaves the impression that the time had come to focus on courting Polly Ambler and on his future career.57 Even so, Marshall’s prior allegiance to the army and his disdain for those who refrained from military service make it hard to accept his stated motives for leaving the army. One suspects that ulterior motives lost to history were at

54 Unger, John Marshall, 31-32. 55 Smith, John Marshall, 84. 56 Unger, John Marshall, 33-34. 57 Marshall, An Autobiographical Sketch, 6. 23 play. Nonetheless, what is certain is that upon returning to civilian life, Marshall’s wartime

experience had left with him a very strong belief in the need for national unity and a central

government with substantial authority to govern. Reflecting on his time in the army, Marshall

describes a very nationalistic young man when he recalled, “I was confirmed in the habit of

considering America as my country, and Congress as my government.”58 Marshall was certainly

a strong supporter of the Continental Congress but was frustrated by its lack of supreme

authority over the states and believed that a more federal system would ensure the success of

America. Nothing would go on to color Marshall’s belief in Federalist ideology more than his

experience serving in the Revolutionary War aside from his experiences in state government.

Marshall made good use of the time in which he was placed on furlough. Not only did he begin

his courtship of Polly Ambler, but he also made arrangements for his future by studying law at

William and Mary. Marshall’s time at William and Mary allowed him to develop as an

intellectual and let him transfer his wartime experiences into distinct personal ideologies.

Marshall spent the first half of 1780 while on furlough studying law at William and Mary

under the tutelage of the venerable George Wythe (1726-1806). Wythe had been among the leading jurists in Virginia holding numerous judicial offices and running a thriving law practice for nearly thirty years by the time he met Marshall.59 Established by Governor Jefferson in 1779,

the study of law at William and Mary was the first such program in America.60 The law lectures

first pioneered by Wythe sought to address what was seen as the failure of the prevalent method

of studying law at the time, training that failed to teach law as a series of interconnected

principles. In colonial America, the dominant method of acquiring a legal education came via

58 Ibid, 9-10. 59 “George Wythe.” 60 MacGill and Newmyer. Cambridge History of Law in America, 45. 24 apprenticeship under an established lawyer. Under the master’s watch, an aspiring lawyer read

law in the English tradition, memorizing various precedents and decisions generally for a period

of three years before joining the bar following an oral examination.61 In 1772 the arrival of Sir

William Blackstone’s Commentaries on the Laws of England provided American lawyers with a

comprehensive, accessible “bible” of the English common law which would become the

cornerstone of legal education in the late 18th century.62 Marshall was almost certainly intimately

familiar with Blackstone by the time he obtained his law degree, not only because Thomas

Marshall is listed as one of the first purchasers of Blackstone’s Commentaries in America, but

also because much of Wythe’s curriculum was grounded in Blackstone.63

When Marshall enrolled at William and Mary, he attended only the second series of law

lectures ever offered, and Wythe hoped to remove the drudgery of studying law by getting rid of

the mindless reading of an apprentice and engaging his students in the classroom. In addition to

lecturing, Wythe immersed his students in moot courts and mock legislative sessions in order to

debate the current issues which faced Virginia.64 By combining theoretical lectures with real- world application, Wythe engaged his students in law in a way that revolutionized legal education in America. Marshall benefited handsomely from Wythe’s tutelage, learning the finer

points of legal theory while sharpening his writing and debating skills. Wythe successfully

wedded the ideas of past thinkers to the issues of the day drawing on philosophers such as

Montesquieu to champion the virtues of republicanism.

Specifically, by focusing on treatises such as Montesquieu’s The Spirit of Laws,

Marshall gained a very clear understanding of the theory of separation of powers, a doctrine

61 Ibid, 37. 62 Smith, John Marshall, 77. 63 Ibid. 64 Robarge, A Chief Justice's Progress, 55. 25 which would naturally appeal strongly to him.65 Montesquieu’s main argument centered on the necessity of balanced, equal government in order to successfully preserve liberty, specifically an independent judiciary. Persistently frustrated during the war by an apathetic legislature at the state level and a powerless legislature in the Continental Congress, Marshall passionately believed in Montesquieu’s ideas. In Marshall’s view, the war effort could have gone much smoother if there had been a better balance of power between the states and the Continental

Congress. Marshall’s time as a student under Wythe allowed him to gain a very focused understanding of the theoretical tenets which made up the ideal government and what laws went along with them. The teachings of Wythe would prove invaluable for Marshall who would go on to utilize his understanding of these teachings to shape the federal government in the years to come.

In addition to his experiences in the classroom, Marshall also got involved in extracurricular activities during his time at William and Mary. He was recommended for membership to Phi Beta Kappa in May of 1780, and records show he regularly attended their meetings.66 These early meetings of the Phi Beta Kappa Society were largely academic affairs,

consisting of debates on topics of government, philosophy, and current political affairs. At one

meeting, Marshall was engaged in a spirited debate over whether or not a commonwealth is the

most favorable form of government in the name of public virtue.67 While no transcript of the

debate survives, Marshall’s involvement in such a weighty debate shows that despite his youth

he was already thinking deeply on matters of proper governance. Armed with the experiences of

a life-changing war and a license to practice law, Marshall was poised to enter professional life

65 Smith, John Marshall, 78. 66 "Original Records of the Phi Beta Kappa Society," 236. 67 Ibid. 26 with a strong belief in a set of principles that would soon come to be defined as Federalist in nature.

27 Chapter 2

Marshall in State Government & the Virginia Ratifying Convention (1782-1788)

The 1780’s would prove to be a formative decade for Marshall who would enter a battle- tested youth and emerge as a rising political star. This period of time served to show Marshall the defects with the current system of governance as several events of the period would test his resolve towards serving in government. Several moments, detailed below, go to show that despite his willingness to operate within the system, Marshall quickly and increasingly became frustrated with what he saw were deficiencies in the state and federal governments. This frustration, which had grown out of his distaste for the state’s handling of the war effort, coupled by personal economic motivations and his growing political friendship with the likes of James

Madison prompted Marshall join the coalition pushing to amend the Articles of Confederation.

The idea of judicial review and judicial independence as political tools first appear in

Marshall’s life during his time on the Virginia Council of State. In a 1783 decision, which will be returned to later, Marshall speaking for the Council sharply rebuked the actions of Virginia’s governor declaring that the power given to him by the legislature to remove judicial officers from their posts was repugnant to the Virginia Constitution and should be void. This usage as a political tool would reappear in 1788 at the Virginia Ratifying Convention as Marshall used the theory of judicial review in order to calm the fears of those who rightfully worried the central government would become an all-powerful monarchy. To quell these concerns and swing undecided delegates towards ratification, Marshall explained judicial review as a way for the judicial branch to protect the individual rights of the people and ensure no branch becomes too powerful. The 1780’s proved to be rather transformative for Marshall who paired his prior 28 experiences in the Revolutionary War with experience in state government to rise to national prominence in the following decade.

The brief period of time in between Marshall receiving his law license in August 1780 and entering the Virginia House of Delegates in May 1782 seems to have passed by rather inconsequentially. Benedict Arnold’s invasion of Virginia had caused the state courts to close in

January 1781, so the little work Marshall might have found as a lawyer was likely restricted to estate planning and drawing wills68. While serving in the Virginia legislature was not itself a lucrative position, it served as a critical stepping stone for a man not yet thirty. From the newly established capital of Richmond, Marshall came in daily contact with Virginia’s most influential politicians and lawyers, an invaluable source of support and advice. While it is certainly a story of local legend, the tale goes that during his initial election to the House of Delegates, Marshall received all but one vote, for which his father strictly punished the lone dissenter.69 The validity of such a story is open to question, yet it does tell a great a deal about the influence Thomas

Marshall wielded in Fauquier County in 1782, which could be utilized by his son.

Upon entering the legislature Marshall began his professional association with some of

Virginia’s most established political figures. Surrounded by the likes of Patrick Henry, Richard

Henry Lee, and George Mason, a young Marshall stood to gain an enormous amount simply by being in the presence of these elder statesmen. The political makeup of the Virginia legislature at the time was very different from what one would expect today. Party factions had yet to truly develop in Virginia, and the legislature was relatively disorganized from 1782-1784, with senior delegates such as Henry and Lee commanding personal followings.70 Rather than strict

68 Robarge, A Chief Justice’s Progress, 59. 69 Ibid, 60. 70 Risjord and Denboer, “Evolution of Political Parties,” 963. 29 ideological factions which tend to pervade politics today, delegates in the Virginia legislature in the early 1780’s tended to vote in shifting alliances depending on the specific issue at hand.71 If one were to split the assembly into two loose groups, one cluster represented the Virginia establishment and another the stiff opposition to this old bastion of power, the latter supporting populist measures led by Henry.72 Henry consistently advocated for “popular” measures supported by large segments of his constituent base largely in regards to debtor relief measures.

In the period immediately before and after the Revolutionary War, the issues that faced the assembly largely dealt with debtor relief, repayment issues, and taxation.73 In attempting to remedy these already tall tasks, the assembly was further hampered by a high turnover rate and frequent absenteeism.

In this somewhat chaotic environment, Marshall immediately found himself a champion for his former brothers-in-arms and attempted to use his position to improve their condition.

Reflecting on his first experience with state government, Marshall wrote to his later Supreme

Court colleague Joseph Story in 1827, “the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government.”74 Marshall’s very first foray into state government had left him with the impression that the existence of a successful republic would be impossible without a shift in the balance of power between the state and central governments. The constant bickering and leisurely pace of the legislature greatly frustrated Marshall, who desperately wanted to improve the condition of the Continental Army and end the war as soon as possible. Marshall’s frustrations were not necessarily rooted in political frustration, but rather frustration with the

71 Robarge, A Chief Justice's Progress, 61. 72 Smith, John Marshall, 89. 73 Risjord and Denboer, “Evolution of Political Parties,” 964. 74 Smith, John Marshall, 88. 30 institutional culture. The slow Virginia plantation culture pervaded into the legislature often

greatly extending discussion and personal family rivalries often left delegates deadlocked with

each other.75 In a letter in 1783 to William Pierce, his former classmate at William and Mary,

Marshall lamented of his fellow legislators, “tis sometimes difficult to determine whether some other end is not nearer the hearts of those who guide our counsels.”76 Despite his personal

frustrations with the system, Marshall carried on, hoping to affect change. He found several

allies among the Virginia establishment drifting into their circle of allegiance. This

“establishment” faction, made up of men such as Edmund Pendleton and Edmund Randolph,

were quick to welcome young Marshall into their fold both due to their respect for his father and

his personal support for a stronger Confederation government. Thus Marshall’s first term as a

member of the Virginia House of Delegates, while marred by disorder and inaction won for him

several influential friends with like-minded priorities.

Marshall’s first stint in the House of Delegates was cut short as the influential friends

with whom he had come to surround himself elected him to fill a vacancy on the Council of

State. He first appeared as a signatory on the Council’s notes in the fall of 1782.77 The Virginia

Constitution of 1776 greatly lessened the power the Council had enjoyed prior to the Revolution,

but it nonetheless remained a critical part of the state’s executive branch. The 1776 Constitution required that the governor seek the advice and consent of his Council, which or more less functioned as the governor’s cabinet.78 While typically more experienced statesmen served on

the Council, there are likely several reasons as to why Marshall was chosen at such a young age.

Firs, to underestimate the strong impression that Marshall certainly left on his colleagues in his

75 Ibid. 76 Marshall, Papers, I: 93. 77 Hall, Journals of the Council. 78 Robarge, A Chief Justice's Progress, 63. 31 time as a member of the assembly would be an insult to his character. But more than that, it can

be inferred that Marshall’s family connections are the likely the reason he was chosen to the

Council in 1782. Along with the ever-present influence of Thomas Marshall, the younger

Marshall gained another powerful family member in state treasurer Jaquelin Ambler (1742-

1798), his soon-to-be father-in-law. Marshall and Mary “Polly” Ambler did not marry until

January 1783, but by the fall of 1782 Marshall’s courtship of the Virginia socialite had long

concluded.79 The Ambler family belonged to an exclusive group of Virginia families known as

the “First Families of Virginia,” and by marrying into such a socially prominent family, Marshall

cemented his place at the highest level of the gentry class. As the controller of the state’s

finances, Ambler was one of the most powerful men in the state and wielded this influence to

ensure that his son-in-law had access to both the steady income and status the Council

afforded.80 The social prestige with which Jaquelin Ambler bestowed upon Marshall truly gave

him the unquestionable gentry status that Thomas Marshall had fought most of his adult life to

acquire.

Two issues of great importance arose during Marshall’s tenure on the Council in regards

to the development of his later Federalist views. In February of 1783, Governor Benjamin

Harrison requested that the Council join him in authorizing the removal of a county magistrate

from office for violating a 1778 law.81 Marshall, joined by Samuel Hardy and Beverly Randolph,

offered a sharp rebuke to the 1778 law in language that seems to foreshadow his Marbury

decision decades later.82 Also anticipating Marbury, Marshall and his colleagues seized on a minor issue at hand in order to question a much larger issue of fundamental importance in the

79 Robarge, A Chief Justice's Progress, 64. 80 Smith, John Marshall, 92. 81 Robarge, A Chief Justice's Progress, 63. 82 Marshall, Papers, I: 97. 32 name of proper governance. The Council declared “the Law authorizing the Executive to enquire into the Conduct of a Magistrate…is repugnant to the Act of Government contrary to the fundamental principles of our constitution.”83 In declaring the law a direct violation of the

Virginia Constitution, Marshall attached his signature early in his career to the idea that a constitution is paramount to laws passed by the legislature. While not necessarily an example of judicial review, considering Marshall was a member of the executive branch, his position nonetheless shows strong support for an independent judiciary early on in his career. This concept is the cornerstone from which the theory of judicial review is derived. The Council, and

Marshall by extension, found Governor Harrison’s attempt to remove the county magistrate from office as a gross violation of the balance of power between the separate branches of government.

The Council felt the executive branch had no right to remove judicial officials from their position, nor did the legislature have the authority to grant the executive branch this power.

Interestingly, Harrison had been Speaker of the Virginia House of Delegates when the law empowering the governor to remove officers of the judiciary was passed. Thus, he had a strong incentive to support and utilize the power despite the condemnation of his Council. Marshall and

Harrison were far from ideological allies, as Harrison would go on to strongly oppose ratification at the Virginia Constitutional Convention allying with the Anti-Federalists. In addition to

Marshall’s belief that the legislative and executive branches had infringed upon the independence of the judiciary it may have also been the case that Marshall specifically sought to limit the power of an Anti-Federalist governor with whom he ideologically differed.

The position taken by the Council reaffirming the need for the Constitution to be paramount to acts of legislation similarly appeared in Richmond the year before the Council’s

83 Ibid. 33 decision in Commonwealth v. Caton (1782). The highly publicized case, decided by Marshall’s law mentor George Wythe and political ally Edmund Pendleton, was certainly familiar to

Marshall and involved a discrepancy between the Virginia Constitution and The Virginia

Treason Act passed shortly after constitutional ratification.84 The Virginia Constitution gave pardoning power to the governor while the Treason Act vested it in the legislature.85 The case itself arose as the House of Delegates voted to grant a pardon to John Caton on June 18, 1782 and sent it to the Senate for confirmation which they refused, prompting Caton to seek his pardon through the courts to which the attorney general decried the validity of the legislative pardon.86 Despite ultimately ruling that the act was consistent with the spirit of the Constitution,

Wythe’s judicial commentary at the end of his opinion made it very clear how he felt about the supremacy of the Constitution and the court’s role in protecting it. Directing his words at the legislative branch, Wythe thundered “should [it] attempt to overleap its bounds…pointing to the constitution [I] will say to them, here is the limit of your authority: and hither, shall you go but no further.”87 Wythe espoused his theory of judicial review only two years after he had Marshall as a student, and it is quite likely this view was in Wythe’s mind then as well and may have even come out during his lectures. The Caton case helped intellectually stimulate Marshall and his colleagues, who seizing on the thoughts of Wythe, once again argued in favor of the supremacy of the Constitution. Caton arose in the first place as the Constitution did not explicitly place itself above the acts of the legislature and thus left it vulnerable to manipulation by individual actors.88

The Council was far from alone in this belief that the Virginia Constitution should be paramount

84 Smith, John Marshall, 94. 85 Ibid. 86 Call, Reports of Cases, 5. 87 Ibid, 8. 88 Robarge, A Chief Justice's Progress, 64. 34 to laws passed by the legislature as Madison, in a letter to Thomas Jefferson, observed a growing fear among the public that state legislatures could be susceptible to abuse of power and change their constitutions at will.89 This fear stemmed from what was seen as a lack of quality legislation along with the overall contentious character of state politics in the 1780’s; two things which Marshall experienced firsthand in the House of Delegates.90 This fear of ineffective and potentially conflicting policies set forth by the states began a movement in Virginia led by

Madison for a stronger Confederation government. However, within Virginia itself nonetheless the whole country, strong resistance to any change in the Articles of Confederation existed most powerfully displayed by Patrick Henry. It would take until the end of the decade before these issues were finally put up for consideration at the Constitutional Convention and subsequent state ratifying conventions.

The second issue of great importance concerning Marshall’s time on the Council came only a month after this disagreement over the governor’s actions. In March 1783 Marshall and his fellow council member James Monroe reported on the state solicitor general’s efforts in settling Virginia’s wartime accounts with the Confederation.91 Analyzing all of the available documents at their disposal, Marshall and Monroe found enormous misuse of the state’s money and a general failure to properly ensure that the money reached the Confederation government.

Criticizing the actions of the solicitor general and his staff, they reported to the Council, “we have reason to suspect great abuses have taken place and very dishonorable misapplications of the public money.”92 In concluding their findings, Marshall and Monroe recommended to the rest of the Council and the governor that appropriate legal action be taken against those

89 Madison, Papers, X:163-164. 90 Ibid, 29. 91 Hall, “Journals of the Council”, 234. 92 Ibid, 235. 35 responsible for misappropriating the state’s funds. This abuse of state funds, especially funds

meant to be sent to the Confederation Congress, clearly did not sit well with Marshall and is

another example of his frustration with ineffective state-national government relations. Several months later, the House of Delegates similarly inquired into the progress being made in regards to settling the states wartime accounts. The committee established found that it was Leighton

Woods, Virginia’s solicitor general, who was holding up any potential progress as he was dragging his feet on handing over the accounts to the commissioners tasked with making the financial settlements on behalf of the state.93 Marshall’s early efforts in the House of Delegates

focused on providing the Continental Army with badly needed resources and now his time on the

Council brought to light one of the reasons Virginia had been struggling to support the Union.

One of the reasons that this challenge ever occurred in the first place was because the

Confederation Congress lacked the power of collecting taxation and thus relied on the

contributions of the individual states.94 The system of taxation established by the Articles of

Confederation called for each state to forward to the Confederation government a sum in proportion to the value of the state’s surveyed land.95 This method proved very messy as the

competing land claims among states (especially Virginia) made it nearly impossible to determine

what amount should be sent to the Confederation government. The actual authority to collect

taxes, with a revised system, would have compelled Virginia (and the other states) to submit a

specific amount of money to the national government with officials ensuring payment. However,

the memories of being taxed by a far-off central power were still very much fresh in the minds of

Americans at this time, and enacting a system of direct taxation under the Articles likely would

93 Morris, Papers, 374. 94 Rakove, Original Meanings, 25. 95 “Articles of Confederation.” 36 have never passed. Nonetheless it is clear that the current method was much too flawed to be an effective source of revenue and warranted serious changes. At this time in April 1784, with his new bride and their first child on the way, Marshall had a great incentive to improve his financial circumstances and thus resigned his seat on the Council.96 With Marshall’s formative years in state government marred by inefficiency and tenuous state-national government relations, he chose to retire from the Council in order to focus on his legal practice.

Financial considerations aside, the chief reason that Marshall resigned from the Council was due to the conflict of interest it presented. The Virginia General Court, worried about the mixing of the executive and judicial branches, banned those on the Council from arguing cases in state courts.97 Marshall’s income on the Council was paltry compared to what he stood to earn as a lawyer, and thus the decision was a clear one. Despite receiving his license to practice law in

1780, Marshall did not truly engage in the profession until 1784, and his success was immediate.

Several factors contributed to the immediate success of Marshall the lawyer, the most prominent of those was the inheritance of Edmund Randolph’s law practice in 1786, when he assumed the governorship.98 In addition to inheriting Randolph’s large clientele, he also handled the plentiful legal matters of the Ambler family. Thomas Marshall as head of the survey office in the

Kentucky territory also used his son as a go-between for eager investors.99 Lastly, many of

Marshall’s former war colleagues offered a sizable client base from the outset, as claims for back pay and pension disputes were naturally causes dear to Marshall. Correspondences between

Marshall and his old war pals such as Leven Powell and James Monroe involved Marshall updating his friends on the status of their land claims out west and the progress of their various

96 Marshall, Papers, I: 118. 97 Robarge, A Chief Justice's Progress, 74. 98 Smith, John Marshall, 90. 99 Ibid, 91. 37 pending suits.100 Marshall’s stint in the House of Delegates and his time on the Council gave him

a strong understanding of the deficiencies of the current system, but it was his success as a

lawyer that prepared him for his future on the Supreme Court. His growth as a lawyer allowed

him later in life to properly execute the ideology which he so fervently came to believe in.

On top of utilizing his personal relationships to quickly become one of the top lawyers in

Richmond, Marshall tailored his approach to perfectly suit his lack of depth in regards to legal

statutes focusing on logic instead. Marshall recognized that his strength was in analyzing the

argument of his opponent and then using simple principles he would chip away at their argument

until he had turned it on his head.101 Instead of relying on a bottomless knowledge of precedents

to overwhelm opposing counsel, Marshall stuck to simple yet effective logical arguments

relevant to the case at hand to win over judges and members of the jury alike. Marshall’s

argumentative approach was so well regarded that aspiring lawyers often packed courtrooms just

for the chance to hear him speak, with the most notable account coming from Francis Walker

Gilmer. Gilmer, on the advice of his father-in-law William Wirt (the longest serving attorney

general in US history and under Democratic-Republican administrations) was captivated by

Marshall’s skills remarking, “the characteristic of his eloquence is an irresistible cogency, and a luminous simplicity in the order of his reasoning.”102 This homage is especially telling in that it

comes from a man who was raised in part by Thomas Jefferson following the death of his own

father as the two had been dear friends throughout their lives.103 By honing this approach to

perfection, Marshall grew to become one of the most authoritative legal minds of his time.

100 Ibid, 97-98. 101 Robarge, A Chief Justice's Progress, 70. 102 Walker and Wirt, Sketches, 24. 103 “Francis Walker Gilmer.” 38 The desire to build his law practice had forced Marshall to resign from the Council, but

this by no means extinguished his desire to serve in public office. Motivated to improve the

quality of Virginia’s government and keen to stay in daily contact with Virginia’s governing

elite, Marshall immediately made plans for his reelection to the House of Delegates mere weeks

after resigning his seat on the Council.104 Marshall rejoined the assembly at a time when the

Treaty of Paris (1783) had been signed only a year before, formally ending war with Great

Britain and finalizing the terms of peace. The most pressing of the issues debated by the

assembly was the repayment of prewar debts owed to British businessmen by Virginians.105 The

issue proved to be so heated it began to split the assembly into two clear blocs, one supporting a

creditor-national agenda led by James Madison and the other a debtor-friendly agenda led by

Patrick Henry. Those supporting the creditor-national agenda believed that blocking payment to

British merchants would ruin America’s international reputation by violating both the sanctity of private contracts and blatantly ignoring the obligations of the Treaty of Paris.106 Those in support

of the debtors argued that Virginians should not be compelled to square their debts with British

merchants until the British evacuated their forts in the Northwest Territory and until they

received compensation for slaves seized by the British army.107 There is no doubt to which camp

Marshall sided. He stated, “I ever considered [the repayment law] as a measure tending to weaken the federal bands which in my conception are too weak already.”108 Supporters of

repaying Virginia’s debts to Great Britain were in the minority, and attempts to lessen

impediments on repaying British debts put in place by the legislature were defeated by large

104 Marshall, Papers, I: 120-121. 105 Risjord and Denboer, “Evolution of Political Parties,” 967-968. 106 Risjord and Denboer, “Evolution of Political Parties,” 965. 107 Robarge, A Chief Justice's Progress, 75. 108 Ibid. 39 majorities in 1783 and again in 1784.109 Marshall believed that for Virginians to renege on their debts to Great Britain would irreparably harm the Confederation as a whole and serve as a pretext for the British never to leave their forts thus threatening America’s frontier. On a personal level, a British presence on the frontier served as a threat to the extensive land holdings in Kentucky owned by Marshall and his father, giving the son great incentive to settle the debt issue as quickly as possible.110 It is reasonable to conclude that Marshall feared a weak national government would be unable to protect his western interests, if hostilities escalated on the frontier, motivating him to strongly support increasing the power of Congress.

During this term a delegate, Marshall worked on two noteworthy pieces of legislation meant to increase the strength of the national government. In a house session dated May 19,

1784, Marshall and several of his assemblymen recommended to the rest of the House to change the method of apportioning the debts Virginia owed the national government from land values to population.111 This proposed change would have increased payments to the national government, as the old system had never functioned as an effective method of raising money for the

Confederation due in part to confusion over state boundaries and conflicting land claims.

However, popular opinion was still very much against the repayment of debts and Henry rallied his supporters to defeat the bill. A second bill, meant to give Congress greater authority regulating trade, called for giving Congress the power to pass retaliatory trade laws on “any foreign state, Kingdom, or Empire” for a period of fifteen years.112 This bill faced little opposition from the likes of Henry and his supporters, as it did little negatively to impact

Virginia’s plantation economy. For all his efforts, Marshall remained deeply frustrated by the

109 Risjord and Denboer, “Evolution of Political Parties,” 965. 110 Marshall, Papers, I: 204-206. 111 White, “Journal of the House of Delegates”, 11. 112 Ibid, 12. 40 legislature’s failure to adequately address critical issues such as debt repayment. Writing to

Monroe in December of 1784, Marshall bitterly reported “not a bill of public importance, in

which an individual was not particularly interested has passed.”113 A month later Marshall left

the House of Delegates hoping for a stronger national government better equipped to handle the

numerous issues plaguing the young nation. The worsening of several critical problems in the

coming years affirmed in Marshall the need to reform the Confederation. A push begun by

Virginia’s very own creditor-national leader, Madison, turned a modest reform effort into a total

overhaul of American government giving Marshall the chance to fight for an effective

government in which he could believe in.

Those who pushed for the gathering of a convention in Philadelphia in 1787 called it in the name of critical yet limited goals. The intended goal of the convention was to amend the

Articles modestly in order to enable Congress to effectively govern.114 It is very unlikely anyone

could have predicted the convention would adjourn presenting America with an entirely new

government. However, by the time the convention opened in May 1787 recent events had shown

those in favor of amendments that sufficiently amending the Articles was not possible, and

leaders such as Madison recognized the only way to save the republic was to save it from

itself.115 Conversely, many prominent politicians remained very wary of any attempt to give the

national government more power and rightly so following decades of British rule. Attempting to

amend the Articles required the unanimous approval of all the states, making it a herculean task

which had yet to be achieved since its adoption. Additionally, before any amendment could even

be sent to the states for approval, it had to be approved by Congress, whose reputation had fallen

113 Marshall, Papers, I: 130. 114 Rakove, Original Meanings, 24. 115 Rakove, Original Meanings, 34. 41 so low that their approval effectively gave any amendment the kiss of death.116 The origins of the

Constitutional Convention, as it came to be known, began in the Virginia assembly, of all places,

which passed a resolution in 1786 for a gathering of the states to consider giving Congress more

power to regulate interstate commerce.117 Virginia became the driver for the Annapolis

Convention as Madison and his political allies wished to build up the Virginia merchant class

which could be competitive with the likes of the great financiers in Baltimore and

Philadelphia.118 Giving Congress more power to regulate interstate commerce would standardize

legislation across the states thus making financial transactions between states simpler and more

competitive. While only five states ultimately attended the Annapolis Convention, before

adjourning the delegates present agreed upon a second convention for the following year in

Philadelphia.

While the exigency which allowed for the Constitutional Convention in Philadelphia was

certainly based upon issues of national importance, alone they could not have generated the level

of turmoil which gave support to changing the Articles. In this period of time, politics was still

very much a local affair, and the widest breadth most ever stopped to consider was chiefly at the

state level. When the majority of Americans thought about politics, they did not think about the

happenings of Congress, as we might today but rather looked to their state legislatures.119 To call

anyone from this era a “Nationalist,” in the way the term is defined today would be fundamentally inaccurate. Rather, those who believed in a stronger national government can accurately described be as the future members of the Federalist Party, who sought to fix the complex shortcomings of the various state governments rather than focus on just the obvious

116 Ibid, 31. 117 Ibid, 32. 118 Robarge, A Chief Justice’s Progress, 76. 119 Rakove, Original Meanings, 29. 42 problems afflicting Congress. This state-national government relationship is at the very heart of federalism as an ideology. The problems of Congress were clear, such as the inability to tax the people directly; however, the problems of the state governments were far more nuanced. The legislator-citizen relationship had become a tense one, with voters demanding their elected officials immediately remedy the crises of the day, and legislators complaining that their constituents had unreasonable expectations.120 Thus it came to be recognized by many that

strengthening the national government began at the state level with Madison writing to Jefferson

in September 1787 that the states, “contributed more to that uneasiness which produced the

Convention…{than}the inadequacy of the Confederation.”121 Even someone as nationally-

minded as Madison, who had served in the Continental Congress and would be the chief

architect of the Constitution, still viewed the reform process in terms of the states.

Marshall certainly had a more nationalistic view than most during this time period as

evidenced by his extensive family land holdings in the Kentucky territory, but that by no means

classifies him as a nationalist. At heart, Marshall was still a Virginian but was firmly of the mind

that it was in the state’s best interest to support a stronger national union.122 In Marshall’s view,

by supporting a stronger national government Virginia would be in turn supporting itself which

had recently been wracked by instability which he feared would cause “another revolution,” and

prove, “that man is incapable of governing himself.”123 These fearful words, penned in January

of 1787, came in the midst of Shays’ Rebellion in Massachusetts, which Marshall feared could

spread across the states especially into Virginia. The conditions which caused Shays’ Rebellion,

including declining prices, indebtedness, high taxes, veteran pension claims, and frustration with

120 Ibid, 30. 121 Madison, Papers, X:163-164. 122 Newmyer, John Marshall, 49. 123 Marshall, Papers, I:199-201. 43 the legislature, similarly existed albeit to a lesser degree in Virginia.124 Congress’ inability to deal with the crisis unable to fund an army to quell the rebellion greatly alarmed Marshall, who worried that the rebellion could very well sink the Union and the virtues of republicanism. In

Virginia, the near collapse of tobacco prices in 1785 led to enormous levels of debt among planters and businessmen who defaulted in large numbers in a short period of time.125 Marshall viewed both the rebellion in Massachusetts and the weak economic conditions across Virginia as threats to the chief essence of government, the preservation of law and order.126 For Marshall, hand in hand with preserving order was the preservation of property rights and contracts. This economic crisis created a situation in Marshall’s view which shared a similar assault on property rights as the crisis in Massachusetts which had precipitated its rebellion and assuredly motivated him to support modifying the Articles.

Overindulging in republicanism had certainly threatened the stability of the Union by the late 1780s, and it was understood by Madison and his allies something had to be done; but the document which came out of Philadelphia in 1787 and arrived in front of Marshall and his fellow delegates at the Virginia Ratifying Convention in June 1788 was a radical departure from the

Articles. Prior to the Ratifying Convention, preparation on both sides was intense, as Virginians of enormous influence fell on both sides of the debate with “Federalists,” as they would come to be known supporting, and “Anti-Federalists,” pushing for its rejection/ numerous additional amendments. Prominent Federalists included Madison and Henry “Light-Horse Harry” Lee, while the Anti-Federalists were largely led by Patrick Henry and George Mason. Two of

Virginia’s most eminent figures, George Washington and Thomas Jefferson, remained absent

124 Robarge, A Chief Justice's Progress, 99-100. 125 Newmyer, John Marshall, 47. 126 Smith, John Marshall, 110. 44 from the convention yet their voices still loomed over the assembled delegates. From his position in Paris, Jefferson offered a lengthy analysis of the proposed constitution concluding, “as to the new Constitution, I find myself nearly a neutral.”127 Jefferson saw the value in erecting a stronger national government but fell among the group of Virginians who supported adding amendments to the Constitution before ratification. From his home in Mount Vernon,

Washington remained in correspondence with the likes of Madison offering his full support for ratification.128 A stamp of approval from General Washington could prove to go a long way towards ratification. Virginia’s prominence as one of the most populous and wealthy states in the

Union would prove to make or break the new constitution. A new government without Virginia would be severely discredited. Prior to the ratifying convention, and even during, those most involved in the debate could not accurately guess which way the vote would go.129 While many delegates went to the ratifying convention looking to be convinced one way or the other, there was no question on which side Marshall stood. Marshall’s account book notes that he purchased the entirety of The Federalist Papers as soon as they were available in April 1788 and most likely read them in Virginia newspapers as they were released previously.130 In a preconvention poll taken by William Short, one of Marshall’s classmates at William and Mary, he lists Marshall as “strongly federal,” a clear sign that even at the age of thirty-three, Marshall’s personal ideology was already recognized by his colleagues.131 Marshall stood for election to the ratifying convention from decidedly Anti-Federal Henrico County, and despite his known support for the

Constitution, he was elected by a slim margin. He remarked, “I was at that time popular, and

127 Jefferson, Papers, 446. 128 Robarge, A Chief Justice’s Progress, 104. 129 Ibid, 122-123. 130 Marshall, Papers, I:409. 131 Newmyer, John Marshall, 51. 45 parties had not yet become so bitter as to extinguish the private affections.”132 From Marshall’s own account, it can be concluded that despite a clear and growing division between Federalists and Anti-Federalist, the deferential politics of yesteryear had not disappeared entirely, and people could still be swayed across ideological lines. Upon entering the Ratifying Convention,

Marshall and his Federalist allies were committed to showing their fellow Virginians that it was in their own self-interest to support a stronger national government.

Marshall’s support for the proposed Constitution was nothing short of fervent, yet his junior status among Virginia icons such as Edmund Randolph, Edmund Pendleton, and George

Wythe on the Federalist side greatly limited his role in floor debates. However, Virginia’s

Federalist leaders recognized the value of a youthful, dynamic lawyer and war hero, and thus

Madison ranked Marshall fifth in importance among the Federalist coalition for securing ratification.133 During the three-plus weeks when the Ratifying Convention was in session,

Marshall was chosen to speak on three separate occasions, and although he is most remembered for his speech in support of the federal judiciary, all three of his speeches shed a critical light into his development as an ardent Federalist. When Marshall finally entered the debate on June 10 the fate of the proposed Constitution was hanging on by a thread, due to repeated rhetorical assaults by Virginia’s most spell-binding speaker, Patrick Henry.

Marshall’s first speech came directly after an eloquent speech filled with historical references by his close friend and Anti-Federalist Monroe. Their two speeches could not have been more diametrically opposed, with Marshall taking the simple logical approach he had perfected as a lawyer to respond to Henry’s previous attacks point by point.134 Marshall began

132 Marshall, Autobiographical Sketch, 10. 133 Madison, Papers, XI: 102. 134 Smith, John Marshall, 131. 46 his speech with a political tour de force declaring that those in favor of ratification simply wished

to ensure the sincerest form of government via “a strict observance of justice and public faith,”

which he felt had become threatened under the Articles.135 In an opaque shot at Henry, Marshall

alluded to the plight of Josiah Phillips, who during Henry’s governorship was convicted and

hung without due process of law because of a bill of attainder passed by the Virginia legislature.136 For Marshall, such an egregious violation of justice which had been permitted to occur under the previous government was one of several reasons why change was needed.

Bringing up the Josiah Phillips affair was little more than an attempt by Marshall to discredit

Henry’s speech and cast doubt on his authority. He went on to use more inflammatory rhetoric to point out several additional perceived flaws in Henry’s argument, showing that while Marshall

did not participate in the first week of the Ratifying Convention, his mind was furiously at work

in support of the Federalist cause.

Most of Henry’s speech to which Marshall was replying had revolved around attacking

the proposed federal governments revenue power and decrying the absence of Constitutional

safeguards against arbitrary power.137 While Henry called for several revisions to the proposed

Constitution before ratification Marshall stressed a need for experiencing the document in

practice and then amending it if necessary. Marshall then launched into an extended discussion

on the concept of separation of powers in response to Henry’s assertion the Constitution failed to

protect against arbitrary powers. Marshall also panned Henry’s assertion that the unwritten

British constitution was greater than the proposed document at hand, because it separated the power of the purse from the power of the sword. Seeking to both discredit Henry’s argument and

135 Marshall, Papers, I:256-257 136 Ibid 137 Smith, John Marshall, 132. 47 highlight the benefits of the proposed Constitution, Marshall offered several rhetorical questions pointing out dangers to individual rights in Britain’s constitution: Would it be better if only one- hundredth of the population elected a majority of the House of Representatives? If Senators served for life? If the President answered to no one?138 Each of these questions referred to

aspects of the British government, which Henry had argued was superior to the proposed

government at hand. Firing back at Henry’s criticisms, Marshall asked his fellow delegates

whether it would be better if they erected a British-type government with a Senate (House of

Lords) chosen by heredity and a President (King) above the law. By turning Henry’s argument

on its head, Marshall showed his fellow delegates that while the British system of government

was viable, the proposed government at hand was much better suited to protect the rights of the

people due to its numerous safeguards against arbitrary power. Marshall details several of these

safeguards, the absence of which had been Henry’s main rallying cry, pointing out “no tax can be laid without the consent of the House of Representatives…if the checks in the Constitution be compared to the checks in the Virginia Constitution, he {Henry} will find the best security in the former.”139 While Henry firmly believed the proposed Constitution should not be adopted until

significant revisions were made, Marshall argued that it would be a grave improvement over the

defunct Articles of Confederation and any improvements which needed to be made could be

done following ratification. In this speech, Marshall did well to mitigate the arguments of Henry,

who throughout the Ratifying Convention warned his fellow delegates that the proposed

Constitution was as an attempt to sap the power of the states in favor of a central government

which would dominate all aspects of daily life.

138 Marshall, Papers, 268-269. 139 Ibid, 264-265, 266-267. 48 Marshall’s second speech of the Ratifying Convention, while not groundbreaking in substance, is proof of his deep understanding of key Federalist theory despite his young age and lack of theoretical training compared to his fellow delegates. Rising to counter arguably the most scholarly of the Anti-Federalists, William Grayson, Marshall stood in defense of the militia clause contained in Article I Section 8. Marshall was the perfect man to stand in support of the national government having the power to call on the militia (a terrifying idea in the wake of past events) with his firsthand experience dealing with the deficiencies of state militias as the sole fighting force of the Union and his personal involvement with the frontier security concerns.

While Grayson had cast this section of the Constitution as a way for the national government to put state militias under its sole control, Marshall reminded his fellow delegates of the nature of the federal arrangement of the proposed government.140 Showing his grasp of Federalist ideology, Marshall explained, “The State Governments did not derive their powers from the

General Government. But each Government derived its powers from the people; and each was to act according to the powers given it.”141 In this concise phrasing of federalism as a theory of government, Marshall explained that the national government would not take control of state militias, as this power was by the will of the people vested in the states. The Constitution would allow Congress to call forth the militia in instances of insurrection and foreign invasion; however, this did not strip control of the militia from the individual states since “when a power is given to the General Legislature, if it was in the State Legislatures before, both shall exercise it.”142 Marshall’s clear yet largely self-serving explanation of a federal system of government shows that he fully understood the benefits of Federalist doctrine which he would utilize to his

140 Smith, John Marshall, 134. 141 Marshall, Papers, I:272. 142 Ibid 49 advantage years later on the Supreme Court. More importantly for ratification purposes, his

speech certainly assuaged the fears of many undecided delegates who rightfully worried about

the loss of state control over the militia and the presence of a standing army.

Marshall’s final speech, and the one he is most known for, came on June 20 in the final

week of the Ratifying Convention. For the purpose at hand, this speech is the most important in

detailing Marshall’s growth as a Federalist and his later application of those principles in

Marbury v. Madison. The concept of a federal judiciary was the one of the most controversial

aspects of the proposed Constitution, and it would set the stage for the last great battle of the

Ratifying Convention, with Marshall right in the middle of the fray. Led by Mason and Henry,

the Anti-Federalists stoked popular fears of what may come to fruition should a federal judiciary

come to exist. They worried national courts would sap the strength of the states, taking over

many cases which were presently tried in state courts and would become unresponsive to local

needs imposing rules from a far-off central Congress.143 Much of Henry’s speech cautioned against allowing the creation of a national judiciary which would become a tool of oppression used by the other branches of the national government to impose their will on the states. Henry’s worries were far from outlandish, the past few decades had provided the people with plenty of experience living under the rule of a far-off government unresponsive to local concerns. Henry accused the Federalists of being too liberal with the language of the Constitution arguing that its language could be construed by future governments so as to infringe upon the people’s liberties.

He passionately concluded his speech declaring to those in attendance, “[a] Constitution, sir, ought to be, like a beacon, held up to the public eye, so as to be understood by every man.”144 To

143 Smith, John Marshall, 134. 144 Elliot, Debates, 579. 50 allay these deep concerns, into the spotlight stepped Marshall one final time to counter the venerable Henry.

Marshall’s Federalist-friendly explanation of Section III of the Constitution made its complicated wording seem much more appealing to many delegates on the fence and his ability to rally final support for the Constitution should not be underestimated. While Marshall aimed to dispel the Anti-Federalist argument point by point, his speech further developed the idea of judicial review, which he had first offered during his time on the Council of State. With a sense of determination and language remarkably similar to his opinion in Marbury fifteen years later,

Marshall declared to those in attendance “if they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the

Constitution…They would declare it void.”145 Marshall’s pronouncement of the doctrine of judicial review was meant to rebut Henry’s claim that the judiciary would be a mere tool of the other branches of the government. Marshall argues that not only would the judicial branch operate with full independence, but it would also guard the Constitution against encroachment from the other branches. In response to Mason’s assertion that the creation of a national judiciary would deprive the state courts of their present jurisdiction, Marshall once again relied on a basic tenet of federalism, explaining that the two courts will, “have a concurrence of jurisdiction with the Federal Courts in those cases, in which the latter have cognizance.”146 Marshall concurrently employed a more practical explanation grounded in his familiarity with Virginia’s court system, explaining the national courts’ only effect would be to relieve the intense overcrowding which currently plagued state dockets. In concluding his argument for both support of a national judiciary and the implementation of judicial review, Marshall asked his fellow delegates if the

145 Marshall, Papers, I:277. 146 Ibid 51 purpose of the judiciary was to execute the laws of government, “To what quarter will you look

for protection from an infringement on the Constitution, if you will not give the power to the

Judiciary?”147 Prior to Marshall’s speech, it was likely due to a combination of personal fears

and the inspired speeches of Henry and Mason that many delegates viewed a potential national

judiciary as a terrifying source of unchecked national power. Following Marshall’s detailed

summary filled with Federalist rhetoric of how the federal court system would act as a watchdog

against central tyranny, public opinion among the delegates had certainly been influenced.

Madison in a letter to his father shortly after Marshall’s speech noted that attacks on the judiciary

“have apparently made less impression than was feared.”148 The Anti-Federalists’ inability to land a strong blow against the proposed national judiciary was in no small part due Marshall’s speech, the only Federalist to speak at length during the debate over Article III. Marshall even won applause for his efforts from Henry himself, who briefly responded to the speech when the ratifying convention reconvened offering “I have the highest veneration and respect for the honorable gentleman and I have experienced his candor on all occasions.”149 For Henry, largely regarded as Virginia’s most respected statesman, to pay Marshall such a high compliment showed that his talents were well recognized by the entirety of the Virginia political elite by the conclusion of the ratifying convention. Henry’s praise of Marshall was certainly exaggerated to a point for rhetorical effort but even though the two disagreed ideologically, professionally their respect was mutual as they would go on to collaborate on numerous legal cases, such as the

Bizzare murder inquest (1792-1793) and Ware v. Hylton (1796).150 Marshall’s efforts would not

be in vain as he recounted in his autobiography that the new Constitution passed by a majority of

147 Ibid. 148 Madison, Papers, XI:400. 149 As Quoted in Smith, John Marshall, 138. 150 Smith, John Marshall, 148. 52 eight votes thus affixing Virginia’s stamp of approval to the new government and ensuring the survival of the Union.151

Marshall emerged from the ratifying convention no longer a junior statesman and would become a leading member of the soon-to-form Federalist Party in Virginia. His rhetorical performance at the convention had been a major reason why the Federalists succeeded but their political victory would be short-lived. While supporters of the Constitution had succeeded in successfully adopting the document as their new form of government, the battle had just begun.

Marshall became active in this battle to shape the government from behind the scenes at his home in Richmond following ratification. However, with the turn of the century a mix of circumstances would draw Marshall into a more active role in which he put to use the political belief system which he had embedded into his very soul as a result of the first thirty-three years of his life.

151 Marshall, Autobiographical Sketch, 11.

Chapter 3

Marshall and the Partisanship of Marbury v. Madison

If there is to be one thing grasped from the early life of John Marshall, it can be ascertained that his experiences left him a deeply loyal, partisan man. Despite being roughly the same age as James Madison and Alexander Hamilton, Marshall was far from being a political philosopher on the level of these contemporaries at the time of the ratification of the

Constitution. Rather, Marshall’s experiences had made him a staunch partisan willing fiercely to defend the Federalist principles developed and espoused by his colleagues. Alfred North

Whitehead once remarked, “Shakespeare wrote better poetry for not knowing too much.” The same can very much be said for Marshall.152 His genius was in taking established ideas and using

forceful, simple logic to cut through even the foggiest of concepts. Marshall used this ability to

rise to the top of his profession in Virginia, develop a national identity in the following decade,

and ascend to the highest judicial office in the country. In this sense, Marshall was a builder, as

opposed to a inventor, a creative adapter of ideas. In the landmark case Marbury v. Madison, he

utilized them to advance partisan Federalist orthodoxy. One commentator about the early court

noted of Marshall, “[H]e hit the Constitution much as the Lord hit the chaos, at a time when

everything needed created.”153 Marshall shaped his decision in Marbury the way in which he

interpreted the meaning of the Constitution and the intent of its Framers. He took a very

Federalist-oriented perspective, which positioned the judiciary -- not the legislature -- as the final

arbiter of the Constitution.

152 Schwartz, A History of the Supreme Court, 36. 153 Frank, Marble Palace, 62. 54 In order fully to understand the partisanship expressed by Marshall in his Marbury

opinion, a brief survey on the formation of political parties in the 1790’s and a discussion of

Marshall’s activities during this period are necessary. While not within the scope of this study,

the enormous changes to politics in America during this critical decade are essential background

for any analysis of Marbury. As the notion of clear partisanship developed, the concept of

judicial review which had been a tenant of Federalist logic since the ratification debates,

continued to feature prominently in party rhetoric. Early Federalist support for judicial review

before it was utilized by Marshall most notably appears as a central theme of Alexander

Hamilton’s Federalist 78 published in 1788. The Federalist Papers, initially written by the trio of

Hamilton, John Jay, and Madison to influence ratification in the deeply Anti-Federal New York, quickly took on importance across all of the states republished in numerous newspapers. In number 78, Hamilton argued that concerns over too much power vested within the proposed federal judiciary were unfounded as it would be the weakest of the three branches because, “it may be truly said to have neither force nor will, but merely judgment.”154 Hamilton went on to

state the Federalist position on judicial review declaring that judges must have the power to

declare acts of the legislature unconstitutional or risk Congress abusing its power and becoming

answerable to no one.155 Just as Marshall argued at the Virginia Ratifying Convention Hamilton

declared judicial review to be a fundamental aspect of the checks and balances of the federal

government. As the ideological leader of the Federalist Party, Hamilton’s stance on judicial

review was widely read and adopted by his political supporters.

The political debates which had sprung up across the country both in the state legislatures

and in the newspapers only intensified following the ratification of the Constitution. While

154 Hamilton, “The Judiciary Department.” 155 Ibid. 55 George Washington was a unanimous choice to lead the new government, just about everything

else still remained unclear with Federalists and Anti-Federalists scrambling to lay claim to the levers of power and exert their will on the new system. Despite Washington’s best efforts to remain above the fray of politics and put together a cabinet of diverse political thinkers, it quickly became clear that if Anti-Federalists were to have any influence at all it would be through the legislature.

The Virginia Ratifying Convention had hardly adjourned when the Anti-Federalist coalition immediately went to work drafting a whole slate of amendments meant to curtail the power of the new federal government by drafting a resolution in the Virginia legislature calling for a second convention.156 The debate over ratification had served to put the focus on specific

issues rather than personalities, creating deeply separated opinions and increasing the importance

of the opinion of the electorate as never before.157 This focus on polarizing issues would serve as

the bedrock upon which America’s first two political parties would be formed during the 1790’s.

With the advocates for a stronger central government winning the fight over ratification, the next

big battle began over control of the new national government. Virginia’s decidedly Anti-

Federalist legislature elected two of its own as senators to Congress to serve in the new

government. The same faction manipulated the congressional districts so as to benefit the Anti-

Federalist candidates as much as possible.158 At the national level, President Washington had

been a unanimous choice and assembled a politically diverse cabinet that included Alexander

Hamilton and Thomas Jefferson. These cabinet members would soon come to epitomize the

156 Beeman, The Old Dominion, 11. 157 Rsjord, The Evolution of Political Parties, 971. 158 Ibid, 973. 56 political divide which would split the new nation.159 Thus in the period immediately after

ratification, Virginia, much like its fellow southern states, adopted a strong Anti-Federalist position rather hostile to the new government. Much of this hostility stemmed from what southern Anti-Federalists felt was a new government heavily predisposed to favoring the northern states. The new federal government, in their view, had taken too much power without expressly guaranteeing individual liberties and in Virginia, state legislators proposed a series of amendments aimed at curtailing the central governments authority.160 Additionally, southern

congressmen in the new federal government rightly worried that their northern counterparts

would use their regional majority to further their own goals at the expense of the South. This fear

is best epitomized by the attempt of Northern congressmen to place the capital near Philadelphia,

firmly in Federalist territory.161 Thus, not only would the new central government be sapping the

power of the southern states, but it would be wielding this power from far up north. Much of the

reason prominent Virginians especially acceded to this new national government was because of

George Washington becoming its first leader. As the infallible “Father of the Nation” was far

beyond reproach and could do no wrong in the eyes of most Americans. Their acceptance of the

Constitution only slightly improved after the proposal of a Bill of Rights in 1789 and its passage

in 1791.

In the aftermath of the Virginia Ratifying Convention, Marshall had sworn renewed

devotion to his law practice; but the escalation of hostilities towards the national government

forced him to enter the political arena yet again. The Virginia legislature had become a hotbed of

Anti-Federalist sentiment, and Marshall’s reputation and his powerful rhetoric were sorely

159 Smith, What Kind of Nation, 32-33. 160 Beeman, The Old Dominion, 58. 161 Ibid, 59-60. 57 needed to improve the image of the Washington administration. On his decision to reenter the state legislature in late 1789, Marshall later wrote in his autobiography, “I found the hostility to the government so strong in the legislature as to require from its friends all the support they could give it.”162 For Marshall, his extensive involvement speculating on land in Kentucky may have in part convinced him to support what would later become the Federalist Party. Unlike many of his fellow Virginians who so heavily relied on the plantation system to make their livelihood, Marshall was much more cognizant of inter-state financial pursuits. His deep involvement with the Philadelphia based financier Robert Morris motivated him to look beyond the interests of Virginia and advocate for those polices which strengthened the central government and by extension his financial standing.163 Marshall’s personal loyalty to

Washington, dating back to his childhood, pushed him back into the spotlight where he would become Virginia’s strongest advocate for the policies pursued under Washington, specifically the economic programs authored by Hamilton. Hamilton’s first program, Report on the Public

Credit, served to enrage Virginians the most, as it stood potentially to enrich entrepreneurial

Northern merchants who had bought up war bonds for next to nothing. Under Hamilton’s plan, these would now be redeemed at face value plus four percent accumulated interest.164

Additionally, Hamilton proposed that the national government assume the funding of all state debts. Opponents of Hamilton’s program quickly recognized that his motivation for assuming state debts was much more politically motivated than financially, and only acceded to the plan by agreeing to locate the nation’s capital on the Potomac River in return.165 Critics charged that

Hamilton’s debt assumption program would serve to make the states even more dependent on the

162 Marshall, Autobiographical Sketch, 12-13. 163 Robarge, The Great Chief Justice, 170-171. 164 Beeman, The Old Dominion, 68. 165 Ibid, 68. 58 national government, hence tightening its grip on the Union. Many in the Virginia legislature saw Hamilton’s policies as incredibly detrimental to Virginia, both because of its perceived bias towards Northern merchants and the fact that Virginia had largely paid off most of its war debts and felt it should not be taxed even further by the national government.166 Marshall stood among thin company in his steadfast support for Hamilton’s programs in the Virginia legislature, which far from being in the state’s interest, Marshall still believed they were critical to improving the nation’s economic welfare as a whole and ensuring the political success of the Washington administration.167

The first half of the 1790’s brought with it two critical developments that would firmly demarcate the positions of America’s First Party System. At the turn of 1790-1791, with

Hamilton’s Report on Public Credit having been debated for months and the recent introduction of his Report on a National Bank, two coherent political factions began to form, becoming more or less recognizable in Virginia especially.168 Marshall found himself very much on the fringe of

Virginia politics upon the conclusion of the 1791 session of the House of Delegates and had few pro-Hamilton allies he could count on. Politically isolated in the Virginia legislature and having rhetorically defended Hamilton’s first financial program as it passed in Congress, Marshall saw fit to retire from state government once more.

If the debate on Hamilton’s economic program’s drew the battle lines for an emerging national party system, the debate over Jay’s Treaty beginning in 1794 firmly set them in stone.

The intent of the treaty was to settle the outstanding issues left from the Treaty of Paris between the United States and Great Britain. Hamilton saw economic cooperation with Great Britain as

166Risjord, Evolution of Political Parties, 974. 167 Robarge, The Great Chief Justice, 116. 168 Risjord, Evolution of Political Parties, 975. 59 vital to the success of the American economy, but the outbreak of war between Britain and

revolutionary France put the United States in an awkward position. With Jefferson pushing

Washington to honor the prior agreement of the United States to France, and Hamilton warning

that doing so would spark war with Great Britain, the president issued a proclamation of

neutrality.169 This schism in foreign policy, with Jeffersonians favoring France and Hamiltonians

favoring Great Britain, became a basis upon which the two parties formed. In debating the treaty,

Hamiltonians accused Jeffersonians of overindulging in republicanism and advocating anarchy,

while Republicans responded in kind, declaring Federalists were nothing more than monarchists

binding the new nation back to its former rulers.170 This sequence of policy decisions by the

Washington Administration proved to be the final straw for Jefferson, who resigned from

Washington’s cabinet at the end of 1793, fully aware that his influence on Washington had taken

a backseat to Hamilton’s power. Writing to his fellow Virginia Republican James Monroe,

Jefferson credited the French Revolution and its effects as the catalyst for America’s First Party

System noting, “[it] kindled and brought forward the two parties with an ardour which our own

interests merely, could never excite.”171 Thus, it was a series of foreign events that served firmly to bring about the first true national opposition party in the history of America.

Identification as either a Republican or a Federalist solidified further as a result of the

presidential election of 1796, with the retirement of Washington and the narrow victory of the

“official” Federalist leader John Adams over Jefferson. While Adams was the political leader of

the new Federalist Party, Hamilton was its ideological soul. Increased disagreement between the

169 Smith, What Kind of Nation, 33. 170 Ibid, 32. 171 Hofstadter, The Idea of a Party System, 89. 60 two divided the party between moderates and the High Federalists.172 In Virginia, Marshall’s

passionate defense of Jay’s Treaty won him few friends, where support for its ratification was

among the lowest in the country. Despite its overwhelming unpopularity even among many

Virginia Federalists, Marshall maintained his personal and ideological loyalty to the Washington

administration and stood firm defending the beliefs of his emerging party. His loyalty did not go

unnoticed, as his support won for him a role as an informal advisor to Washington on matters

such as Supreme Court appointments. He became the preferred legal representation for the administration in cases arising from a new carriage tax.173

Marshall’s political career in the latter half of the 1790’s can be characterized by a series of appointments (and one election), each more grand in scale and ultimately culminating in his appointment as Chief Justice of the Supreme Court. While his activity during this period of time is outside the scope of this study, Marshall’s handling of the XYZ Affair, his term in the US

House of Representatives, and his faithful service as Secretary of State confirmed in President

Adams’ mind Marshall’s unerring loyalty to Federalist principles. At a time when any attempt on the part of the Adams administration to make peace with France was viewed by the High

Federalists as kowtowing, Marshall’s diplomatic conduct during the XYZ Affair assured Adams where his loyalties were. Upon Marshall’s return from France, Adams remarked, “of the three envoys, the conduct of Marshall alone has been entirely satisfactory.”174 During a period when

Adams purged anyone from his administration whom he suspected of being a High Federalist,

Marshall’s ability to continue holding the president’s ear is quite telling. Marshall’s political

activity in this period largely consisted of strenuous efforts to keep the Federalist Party from

172 Ibid, 104. 173 Robarge, The Great Chief Justice, 158. 174 As quoted in Dewey, Marshall Versus Jefferson, 7. 61 splitting in half as High Federalists became increasingly disenchanted with Adams leadership and his moderate policies.175 During his time in the House of Representatives, Marshall tried his best to adopt a middle course and encouraged his more hardline Federalist colleagues from New

England to do the same. While most High Federalists supported outright military action against

France, Marshall played to both sides supporting President Adams announcement of a second diplomatic mission while simultaneously calling for a defense buildup.176 Marshall was keenly aware that a divided Federalist Party would give Jefferson and his Republican allies the perfect chance to gain control of the government in the Election of 1800 and his active efforts to promote party unity, while unsuccessful, typified his political activity prior to becoming chief justice.

The tumultuous events of the Election of 1800 dealt a political blow to the Federalist

Party marking the passing of the pinnacle of the party’s power, over the next few decades it would never again win control of the national government. The most prominent position of authority for Federalism across the first few decades of the nineteenth century stood powerfully on the Supreme Court in the form of Chief Justice Marshall. To understand how Marshall got there, one must analyze the steps Federalists took in the aftermath of the Election of 1800 to preserve their influence over the federal government.

Having been voted out of both the executive and legislative branches, Federalist leaders looked to the judicial branch as the best way to lessen the perceived dangers of republicanism.

The lame-duck administration hurriedly passed the Judiciary Act of 1801, creating an entirely new lower level of federal appellate judgeships which would relieve the Supreme Court justices of their traveling circuit-court duties and allow Adams to make a whole slew of new

175 Robarge, The Great Chief Justice, 210-211. 176 Ibid, 206-207. 62 appointments.177 Up until the night Adams left office, he appointed scores of Federalist allies to lifetime judgeships, known as “midnight judges,” in order to ensure Federalist influence would survive well into the Jefferson administration.178 Republicans saw right through the Federalists strategy, blasting the outgoing administration for subverting democracy. Marshall helped Adams with many of these judicial appointments. In his capacity as Secretary of State, Marshall was responsible for the handling and delivery of the numerous commissions.

Upheaval in the judicial branch was further compounded by the surprise resignation of

Chief Justice Oliver Ellsworth in December of 1800, mere months before Jefferson assumed the presidency. No one predicted Marshall would be chosen to replace Ellsworth -- not even

Marshall himself, who was intimately involved in helping Adams find a replacement and had made the case for Associate Justice William Paterson.179 Adams’ first choice, former Chief

Justice John Jay, turned down the offer a month after receiving Adams’ request, making time of the essence in finding a new candidate to lead the judicial branch. The notion that Marshall had even remotely considered himself for the position can be put to bed, because he declared in a letter written to Charles Pinckney in December 1800, “I shall never again fill any political station.”180Poised to hand control of the legislature and the presidency to the Republicans,

Federalists of all stripes increasingly viewed the chief justiceship as a political office with

Marshall no different. Marshall could have made much more money and been much closer to his family had he chosen to resign as secretary of state upon Jefferson’s inauguration. His appointment as Chief Justice tangibly benefitted Marshall very little, the position had little glamour and he would be forced to spend weeks at a time circuit riding. Marshall had previously

177 Nelson, Marbury v. Madison, 54. 178 Ibid. 179 Marshall, Autobiographical Sketch, 30. 180 Marshall, Papers of John Marshall, VI: 41. 63 refused a nomination as an associate justice in 1798, his reasons for accepting an appointment this time around likely had less to do with fulfilling a personal ambition of continuing a career of public service and more so motivated by the political realities of the day.

Despite the conviction of these words, there are several reasons as to why Marshall chose to accept his nomination as Chief Justice. In analyzing the numerous times Marshall went in and out of the Virginia House of Delegates as a young man, Robarge, one Marshall biographer, notes that Marshall “did not seek office to advance himself…but usually to help political allies or defend policies in which he strongly believed.”181 For Marshall, especially early on in his life, participating in public office served as a drain on his potential ability to earn more money as a lawyer and thus if an office proved too time-consuming he chose to decline the position more often than not. For instance, Marshall declined President Washington’s appointment as district attorney for Virginia in 1789 and declined the mayor’s office of Richmond in 1794 citing both as too distracting from his law practice. While these offices could have benefited Marshall’s career immensely, the situation did not require his political services and thus he chose to remain within the comforts of his legal practice. This pattern holds true in regards to his choice to accept the position of chief justice as well, Marshall knew full well how weak Federalist influence would soon be in the federal government. Despite its perceived inferior status, Marshall assuredly saw the potential value in using the judicial branch as a counterweight against what would otherwise be a Republican dominated government. The judiciary branch still remained far and away the least defined of the three offering some of the most grueling work in the federal government and the least prestige. If the Federalists were to continue to exert their influence on the federal government from the judicial branch and one day regain control of the presidency, they would

181 Robarge, The Great Chief Justice, 155. 64 need a Chief Justice who was not only an excellent jurist but a crafty statesman. For President

Adams, Marshall was that man. Upon accepting his new role, Marshall likely recognized both the great opportunity and great challenge he had assumed. The prestige of the Supreme Court was essentially nonexistent, best exemplified by the lack of a separate building for the court which met in a committee room in the Capitol Building until 1935. 182 However, a man as committed to preserving Federalism as Marshall recognized at the same time that in capable hands, the Supreme Court could shape constitutional development for generations to come. The position of Chief Justice presented Marshall with his best opportunity to shape American government according to the values he had acquired as a result of his earlier life experiences. In what may have been Marshall’s way of accepting the role of Chief Justice as both a jurist and

Federalist, in his acceptance letter to President Adams Marshall concluded saying, “[I] never

[hope] to give you occasion to regret having made this appointment.”183 While his true motives cannot be understood for certain, his acceptance of the chief justiceship and subsequent decision in Marbury would enshrine a principal Federalist belief into the very fiber of American jurisprudence.

Marshall assumed his duties as Chief Justice in January 1801 but it would be some time before he got his chance properly to exercise his authority as the head of the judicial branch.

President Jefferson and the newly elected Republican-controlled legislature wasted little time in getting to work repealing the Judiciary Act of 1801, which in their view had stunk of Federalist desperation to control the judiciary. In his first speech to Congress on December 8, 1801,

Jefferson declared in semi-opaque language, “The judiciary system of the United States…will of

182 Schwartz, A History of the Supreme Court, 33. 183 Marshall, Papers, IV: 188-189. 65 course present itself to the contemplation of Congress.”184In this statement, Jefferson seems to be speaking to his fellow Republicans declaring that under his administration the judiciary will be subservient to the legislative branch with the final authority to rule on the constitutionality of laws vested in the legislature. Jefferson made his feelings regarding the Judiciary Act of 1801 even more clear in a letter to John Dickinson dated December 19, 1801, decrying that the

Federalists had “retired into the Judiciary as a stronghold…from that battery all the works of republicanism are to be beaten down and erased.”185 These two statements taken together, one shrouded in political rhetoric, and the other clear as day make it explicit which side of the repeal debate Jefferson fell on. Republicans rightly felt that the actions of the Adams administration in the waning days of his presidency had been entirely self-serving. As the new government in power, Jeffersonians were determined to expunge Federalism from the government. By March

1802, both the Senate and House of Representatives had voted to repeal the Judiciary Act of

1801, voting on party lines after months of bitter debate on both sides.186 These debates foreshadowed Marbury, as much of it centered on the question of who was vested with the power to void legislation for constitutional reasons. The theory itself had been floating around for many decades, coming up in debate during ratification and most prominently addressed in

Federalist 78.

The repeal debates further utilized Hamilton’s ideas in The Federalist Papers as

Federalists in Congress put up a spirited resistance effort with Gouverneur Morris leading the charge. Morris was confident in the face of repeal that the Supreme Court would not “neglect

184 Jefferson, “First Annual Message to Congress.” 185 “From Thomas Jefferson to John Dickinson.” 186 Dewey, Marshall Versus Jefferson, 68-69. 66 doing the great mischief of saving this Constitution.”187 Federalists, and worried Republicans, clearly saw the potential political value of the Supreme Court following the repeal of the

Judiciary Act of 1801. On the floor of the House of Representatives in the heat of the debates,

James A. Bayard implored his fellow delegates, “Do gentlemen perceive the consequences which would follow from establishing the principle that Congress have the exclusive right to decide upon their own powers?”188 Bayard concluded his remarks by explaining that the judiciary was the only institution which could properly rule on the validity of the country’s laws, to place this power in the hands of anyone else would destroy the Constitution. With grim rhetoric, Bayard solemnly declared that if the power of judicial review “does not belong to the courts of the

United States, where does it lead the people? It leads them to the gallows.”189 In Bayard’s view a court bound to unconstitutional laws lacking the power to invalidate them would be forced to punish its own people even if they rightfully defied unconstitutional laws. Only three weeks before Marshall delivered his opinion, Senator James Ross delivered a synthesized defense of judicial review before Congress nearly predicting Marshall’s words stating, “The Court, when pressed for its judgment, must declare which shall prevail…a law at variance with the

Constitution is utterly void.”190 The rhetoric of Federalist Congressmen during this period powerfully echoed Hamilton’s sentiments in Federalist 78 and served as an outline for the theoretical base with which Marshall would shape his pronouncement of judicial review.

Contrary to this Federalist view that the Courts were the final arbiters of the Constitution,

Republicans in Congress shuddered at the thought of judicial review with Senator John

187 As quoted in Dewey, Marshall Versus Jefferson, 65. 188 “Annals of Congress,” 7th Congress, 1st Session, 644. 189 Ibid, 647. 190 “Annals of Congress,” 7th Congress, 2nd Session, 70-71. 67 Breckenridge declaring it a “pretended power of the Courts.”191 Rather, many Republicans who had previously supported the Virginia and Kentucky Resolutions (1798-1799) which declared that the states had the authority to declare acts of Congress unconstitutional in response to the

Federalist passage of the Alien & Sedition Acts began changing their tune. Now firmly in control of Congress, Republicans led by Breckenridge, who had helped introduce the Kentucky

Resolutions into his own states legislature, now argued that the Constitution gave Congress the exclusive right to interpret the Constitution.192 The debate over voiding legislation seems much more of a political issue ground in circumstance rather than one backed by firm ideology.

Breckinridge accused his Federalists colleagues of using the Courts simply to advance their own partisan agenda, questioning, “[what if] the courts were to declare your revenue, impost, and appropriation laws unconstitutional?”193 In this, it seems that Breckinridge is accusing

Federalists of potentially flip-flopping based on what is politically more advantageous for them.

Thus while Federalists argued in support of judicial review in order to protect those Federalists who had been named to positions under the Judiciary Act of 1801, if the Court was to question the constitutionality of one of Hamilton’s economic programs its opinion would be discarded.

One need not look much further than these Congressional debates to see that the debate over judicial had two divided sides with Federalists strongly in favor of advancing the practice.

President Adams position on the debate is unknown but one might infer that based on the removal from office of scores of political allies he had previously put there, he would be keen for the Court to declare the Repeal Bill unconstitutional. Additionally, Adams called for a strong, independent judiciary in his Thoughts on Government (1776). This influential essay penned by

191 “Annals of Congress,” 7th Congress, 1st Session, 179. 192 Ibid. 193 Ibid, 180. 68 Adams proved to be very influential on the drafting of the various state constitutions at the time and is an indication at the very least of Adams strong support for a judiciary fully independent of the other branches.194 In close proximity to the whole debate, Marshall adeptly chose not to challenge the much more explosive Judicial Act of 1801. Federalists would have to be content with losing the political battle at hand in order to successfully entrench the practice of constitutional review as a power delegated to the judiciary branch.

The bitter partisan nature of the political climate during this time served as the driver for

Marbury, as Marshall and his fellow Federalist justices would have had much less incentive to make such a ruling without the pressure of the politics of the day. In light of this pressure to maintain some semblance of Federalism across the government, Marshall’s motivation for his decision in Marbury can be explained in part by Frank Nash Professor of Law at the University of Oregon School of Law James F. O’Fallon, when he states the case was, “born out of political defeat…victors are not the likely authors of restrictions on their success.”195 Previously,

Federalists had had no need to actively assert doctrine by way of the courts doing so comfortably from the other branches of government but the Election of 1800 served as the catalyst for a change in methodology. In response to the repeal, Federalists were up in arms lamenting the

Republican destruction of the Constitution, with the decidedly partisan newspaper the

Washington Federalist declaring, “A long farewell to all our greatness.”196 As a result of the repeal, the Supreme Court justices were once again expected to take up circuit riding with the passage of the Judiciary Act of 1802 in March, which effectively reinstituted the 1789 act of the

194 Adams, The Writings of John Adams, 88. 195 O’Fallon, Marbury Versus Madison, 38. 196 As quoted in Dewey, Marshall Versus Jefferson, 69. 69 same name.197 The one change was that the court would now only have one annual session

meeting in February. With this change, the Republican-dominated legislature succeeded in

putting the court out of work for thirteen months, stifling any attempt to respond to the repeal of

the Judiciary Act of 1801.198 This extended recess had a direct effect on Marbury, as Charles

Lee, the lawyer representing William Marbury and his co-plaintiffs, had initially sought from the

Supreme Court in December 1801 a writ of mandamus commanding the Secretary of State to deliver his clients their rightful commissions as justices of the peace.199 Such a writ is a court

order to a government official enjoining him to perform a specified act consistent with the proper

duties of their office that they previously failed to carry out.200 In response, the court requested

that James Madison, Jefferson’s Secretary of State, show cause why a writ of mandamus should

not be issued against him. Marbury and his co-plaintiffs initially expected their claim to be ruled

upon in the following August session before Congress reorganized the judicial calendar.201

Marbury was in many respects the perfect pawn for Marshall to utilize in constructing judicial

review into his decision. A prominent member of the Federalist Party, Marbury was a successful

investor who had capitalized on inherited wealth by speculating on land throughout the District

of Columbia.202 Marbury’s influential connections with other prominent Federalists in the

Virginia/Maryland area would on the surface lead one to believe that the Supreme Court, filled

with Federalists such as Marshall, Samuel Chase, and Bushrod Washington, would naturally be

more inclined to support Marbury. However; events would unfold differently and with the stage

197 Nelson, Marbury v. Madison, 58. 198 Ibid. 199 Dewey, Marshall Versus Jefferson, 96. 200 Nelson, Marbury v. Madison, 57. 201 Dewey, Marshall Versus Jefferson, 96. 202 Ibid, 83. 70 set, Marshall and his fellow justices could do nothing but wait until the February 1803 session to hear Marbury’s case.

Initially, in light of this standard request to Madison to show cause, no one could have expected the final result of Marbury. Likely not even Marshall himself could have predicted his eventual opinion in 1801. Many predicted a constitutional showdown between the Jefferson administration and the Marshall Court, but not with Marbury as the mechanism to do so, and not in such a subtle yet decisive way. Thus, Marshall’s decision in the case is far from the brilliant development of judicial review as it is commonly understood and taught in secondary school, but rather, as Donald O. Dewey, Professor Emeritus of Constitutional History at California State

University, Los Angeles and former editor of The Papers of James Madison, surmises, “it was political necessity, not the necessity of the case which dictated the use of judicial review in

Marbury v. Madison.”203In many respects, the decision did not give rise to the theory of judicial review for which it is most famous, but rather the Federalist theory of judicial review gave rise to the political importance of the decision itself. Marbury’s denied commission and subsequent legal action arose from the Act Concerning the District of Columbia (1801). This unmemorable act had given President Adams the ability to appoint a necessary number of justices of the peace across the district with William Marbury, a well-connected Federalist from Alexandria, set to receive one of those commissions. In his oral argument before the court, Marbury’s attorney

Charles Lee (a prominent Virginia Federalist and younger brother to Henry “Light-Horse Harry”

Lee) conceded that Marbury’s claim “may seem trivial at first view”; however, he seemed to grasp the potential implications of the case, concluding it was nonetheless “important in

203 Ibid,120. 71 principle.”204 While many Federalists and Republicans alike had expected a challenge from the court to arise out of the Judiciary Acts, it would be from this nearly ignored piece of legislation that Marbury brought his case to the Supreme Court. Particularly appealing was the relative ease with which Marshall could flex his authority, the act under which Marbury had been granted his commission concerned the federal District of Columbia and thus Marshall did not have to confront the complicated national-state relationship. On its face, this case seemed to be a rather trivial matter involving the disputed commissions of four justices of the peace already two years into a five-year term; but in a fashion he had honed many years earlier during his time on

Virginia’s Council of State, Marshall argued a powerful overarching principle from what had been seen as narrow insignificant issue resulting in one of the great coups of early American history.

While Marbury has gone down in history as a court case, even that classification is very much up for dispute as the defendant Madison did not once respond to the court’s requests, nor did he appear in court for the trial itself. In fact, Lee stood unopposed for the entirety of the case.

It is likely the Jefferson administration paid scant attention to the proceedings of Marshall’s courtroom and chose not to rise in defense of their actions as they refused to legitimize the case with the presence of the acting secretary of state. Jefferson’s administration believed so strongly in the illegitimacy of Marbury’s claim that Attorney General Levi Lincoln, who had been summoned in the case as a witness, declined the chance to argue for the defense. As Marshall brought the proceedings to a close, he issued this invitation to anyone in attendance: “[is there] any other gentleman of the bar who might wish to offer any observations?”205 The entirety of the

Marbury trial lasted mere days, with Lee’s core argument revolving around first proving the

204 Cranch, “Marbury v. Madison.” 205 As Quoted in Dewey, Marshall Versus Jefferson, 107. 72 existence of the disputed commissions, for which he summoned a total of four witnesses, and

then providing answers to three pivotal questions.206 The easiest way to prove the existence of

the commissions would have been to ask Marshall, who as Secretary of State at the time had

affixed the Great Seal of the United States to them. Marshall’s role as both being party to the

development of the case and the decider of the case created a clear conflict of interest, which he

could have used to recuse himself from the trial but ulterior motives dictated otherwise. To prove

the existence of the commissions, Lee instead relied on the testimony of two clerks in the State

Department who had handled the commissions while they were being processed. Additionally,

Levi Lincoln appeared as a witness, as well for his role as interim Secretary of State upon

Jefferson’s inauguration. While these testimonies did confirm the existence of the commissions

at one time, what had happened to them was left unanswered. All three officers of the executive

branch excused themselves from the inquiries of the court as a matter of executive privilege.207 A

fourth witness, Marshall’s brother, James, who had acted as courier for the commissions,

testified that the commissions in question did exist but he had been unable to deliver all of them

in a timely manner and remembered that of the undelivered commissions at least two of them belonged to the plaintiffs in Marbury.208 Having established the existence of the commissions,

Lee then proceeded into his argument for why the court should issue a writ of mandamus

compelling Madison to deliver his clients their rightful commissions.

The three questions posed by Lee served to build off of each other, and the answers he

supplied to each question formed the crux of his argument as to why the court should rule in

favor of his clients. First, Lee answered the issue of whether or not the Supreme Court could

206 Dewey, Marshall Versus Jefferson, 101. 207 Ibid, 102. 208 Clinton, Marbury and Judicial Review, 85. 73 award a writ of mandamus in any case. Lee argued that the English legal tradition provided for a writ of mandamus in cases of this nature and that Section Thirteen of the Judiciary Act of 1789 had vested the Supreme Court with this very power. Under Section Thirteen, Congress gave the

Supreme Court power to issue “writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the

United States.”209 In a manner that seems to anticipate the logic of the court’s decision, Lee then proceeded to list a previous case, US v. Lawrence (1795), in which mandamus had been sought, though unsuccessfully, in a similar fashion to show the court’s power to issue such a writ had not been questioned previously.210 Having argued the Supreme Court’s ability to issue a writ of mandamus, Lee moved further into his argument arguing whether such a writ would fall to the secretary of state. Three of Lee’s witnesses had resisted questions concerning their actions as members of the executive branch, arguing that they had been acting under the discretion of the president and thus a writ of mandamus could not be issued in this instance. Lee agreed that when acting as an agent of the President, the secretary of state effectively had the same discretionary privileges as his superior; but in his ministerial capacity recording the laws, commission, and deeds of the United States, he remained an officer of the people.211 In this capacity, Lee argued that when the secretary of state acted as a public official carrying out the duties bestowed upon him by Congress, his actions clearly fell under the law.

Lastly, having posited that the Supreme Court could issue writs of mandamus and that they could be issued to a secretary of state when performing his ministerial duties, Lee argued why, in the present case, a writ of mandamus should be issued to James Madison specifically. To

209 Cranch, “Marbury v. Madison.” 210 Ibid. 211 Ibid. 74 this question, Lee referred to the Act Concerning the District of Columbia, which established justice of the peace positions for a period of five years. Under this legislation, Marbury and his co-plaintiffs by way of their commissions were given the right to “hold their offices independent of the will of the President.”212 Once Congress had confirmed their appointments, the commissions signed by the President, and then sealed by the secretary of state, the commissions were complete and irrevocable. At this point, it became purely the ministerial duty of the secretary of state to deliver the commissions to their rightful recipients. As Lee saw it, the very principle of judicial independence was at stake if the executive branch would be allowed to reach into the District of Columbia and deny rightful officers of the judicial branch from taking up the positions they deserved. With no one to refute Lee’s argument, the court concluded oral arguments to prepare the decision they would deliver with remarkable speed less than two weeks later.

Upon the conclusion of the case, on its face it seemed that Marshall was left with an impossible situation. If he ruled in favor of Marbury and demanded delivery of the commissions, his order would almost certainly be ignored by the administration, laying waste to any credibility the Supreme Court had. However, if he ruled against Marbury it would be an affront to

Federalists everywhere and would have affirmed the administration’s ability to remove the judicial officeholders displaced by the repeal of the Judiciary Act of 1801. It would seem then that with either decision Jefferson was positioned for a political victory. In light of this situation,

Marshall recognized that embroiling the Court in this sort of politics would only serve to sully its reputation and provide Federalists a victory that would last but a fleeting moment. By avoiding

212 Ibid. 75 the obvious political fight of the current day, Marshall cleverly positioned the Court for a much

subtler long-term victory.

Out of this grim picture, Marshall managed to produce a legal decision that on paper

resulted in a defeat for the Federalists at hand but ideologically secured a victory for Federalists

everywhere. Despite the subsequent fame the decision accrued, it has not been without criticism

due to the backwards fashion Marshall employs in his opinion, to which constitutional law

scholar William Van Alstyne likened the decision to, “a lack of legal integrity bordering on

fraud.”213 These harsh words refer to Marshall’s proclivity throughout the decision for stretching

the law in order to fit his partisan goals. Faced with the enormous challenge of both refusing to

bow to Republican pressure and preserving the integrity of Federalism, Marshall found a useful

remedy in the theory of judicial review. The ingenuity of Marshall’s decision was not in its

pronouncement of judicial review, but rather the method in which he managed to engineer the

principle into the decision in a way that no one could have predicted at the outset of the case.

Similar to Lee’s oral argument, the decision is organized by a series of three questions and their answers. However, Marshall noted in the opening, “there will be some departure in form, though not in substance, from the points stated in that argument.”214 By rearranging the

order in which the Court reviewed Lee’s argument, Marshall was able to construct an argument

with a course set forcefully to collide with the administration, only to sidestep danger at the last

second in a creative stroke of reasoning. While Lee’s argument went from broad in scope to

specific to the case at hand, Marshall’s opinion did just the opposite. First, the Court considered

whether Marbury had a right to the commission he demanded, to which Marshall whole-

heartedly answered yes. The first part of his answer more or less restated Lee’s argument that

213 As quoted in Clinton, Marbury and Judicial Review, 87. 214 Marshall, “Marbury v. Madison,” 155. 76 under the Act Concerning the District of Columbia Marbury and his co-plaintiffs had been granted commissions as justices of the peace and as such were entitled to the office for a period of five years independent of the will of the President. To this end, Marshall appears to chastise the Jefferson administration reminding the president of the separation between his duty as a public official and his right to exercise his personal discretion. Speaking in what could be seen as directly to Madison and Jefferson, Marshall’s distaste for their actions is best summed up when he states, “Some point of time must be taken when the power of the Executive over an officer, not removable at his will must cease.”215 In line with the logic used by Lee, Marshall’s opinion declares that once a commission has been signed by the President and affixed with the seal of the

United States it passes from the realm of politics into a ministerial function the secretary of state is bound by law to carry out.216

Having confirmed that Marbury had a right to claim his commission and after remarking on the actions of the administration for failing to deliver them, Marbury moved on to the next question at hand, do the laws of the United States offer Marbury a proper remedy? Referring back to Blackstone’s Commentaries, Marshall quoted the English jurist saying, “when there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.”217

Since it was already established that Marbury had a legal right to seek his commission, under the law it followed that since his right was denied, he is entitled to legal remedy. Marshall built upon this declaring that, “The government of the United States has been emphatically termed a government of laws, and not of men.”218 Thus, despite the personal opinion of the administration regarding the officeholders, the law affords them independence from the executive branch in a

215 Ibid, 158. 216 Ibid, 163. 217 Blackstone, Commentaries, III, 23. 218 Marshall, “Marbury v. Madison,” 163. 77 manner such that if the secretary of state fails to carry out the duties placed upon him under law he is most certainly answerable to a court of law.

Having posed affirmative answers to the first two questions at hand, Marshall seemed ready for an inevitable showdown with the administration requesting Madison deliver the commissions in question. Marshall’s response to the third question posed is the most well-known section of his opinion and its usage of judicial review as a politically expedient tool demands close attention. Compared to potential opinions in which Marshall could have ruled in line with the logic used by Lee or simply declared the Court had no standing, Marshall’s usage of judicial did the least to accomplish the most. Marshall concluded the opinion of the Court with a version of the question first posed by Lee, if Marbury deserves a remedy is it a writ of mandamus from the Supreme Court? Based on the prior close reasoning between Lee’s argument and Marshall’s opinion, it would follow that Marshall reached the same conclusion that the Court must issue a mandamus. But it is here that Marshall broke in thought with his Federalist colleague. Rather than issuing a blatant partisan decision that would have achieved a brief, unenforceable

Federalist victory, Marshall looked beyond the scope of the case to set a much wider precedent in favor of Federalism. Marshall made no attempt to deny Marbury’s right to seek a remedy and agreed that the appropriate action was a writ of mandamus. But the question then became, can such a writ be issued from the Supreme Court?219 To this question, Marshall refers to both the language of Section Thirteen of the Judiciary Act of 1789 and the language of Article III Section

Two of the Constitution. As mentioned previously, under section thirteen Congress authorized the Supreme Court to issue writs of mandamus in cases involving persons holding office under the authority of the United States, with the secretary of state being such an officeholder.

219 Ibid, 174. 78 According to Marshall, the only way in which the Court would not be permitted to issue a writ of

mandamus to Madison would be if the law itself was unconstitutional. To answer this question,

Marshall pointed to the language of the Constitution, noting its limited ability as a court of

original jurisdiction, quoting “[It] shall have original jurisdiction in all cases affecting

ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all

other cases, the Supreme Court shall have appellate jurisdiction.”220 By contrasting an act of

Congress, which had previously been accepted since its adoption, with a section of the

Constitution, Marshall set the stage for utilizing the theory of judicial review for the first time in

the Supreme Court’s history.

Contrary to Lee’s argument, Marshall reasoned that if Congress had the ability to apportion judicial power between the Supreme Court and its inferior courts, then “the distribution of jurisdiction made in the Constitution is form without substance.”221 Under this

logic, if the legislation in question conflicts with relevant sections of the Constitution, then it

must be struck from the law with the Constitution taking precedent. In a matter of paragraphs,

Marshall had articulated the theory of judicial review in a way that both changed everything

from a historical standpoint and yet did nothing in the context of 1803. As Marshall declared

Section Thirteen of the Judiciary Act of 1789 unconstitutional, Marbury had come to the wrong

court to seek a writ of mandamus, ultimately declaring Madison the “victor” in the case.

Upon highlighting the disparity, as Marshall saw it, between section thirteen and the

Constitution, he then launched into a rather brief exposition of judicial review offering no

precedent or other judicial authority instead relying on common Federalist logic. In exercising

the Court’s right to practice judicial review, Marshall did not launch into a long defense of the

220 Ibid, 175. 221 Ibid. 79 legal mechanism, but rather declared it “not of an intricacy proportioned to its interest,” and that

it is “supposed to have been long and well established.”222 Rather than use precedent to support

his decision, Marshall used his characteristic crystal-clear logic to reason that all those who have

sought written constitutions invariably wrote them as the fundamental law of the nation by which

no act of future legislatures could undermine.223To this end, then, Marshall ultimately declared,

“an act of the legislature repugnant to the Constitution is void. This theory is essentially attached

to a written Constitution.”224 Like the ardent Federalist he was, Marshall forcefully argued their

position stating the implicit and obvious reality of the court’s power to review the

constitutionality of acts of the legislature. The fundamental difference between Federalists and

Republicans in regards to who was responsible for safeguarding the Constitution, was that

Federalists believed the limits imposed by text of the Constitution were a proper protection,

while Republicans put their faith in the hands of the people by way of constitutional

interpretation by the legislature.225 As it has been shown several times prior, the concept of

judicial review was far from anything novel, and if Marshall had needed inspiration for his

opinion, he need look no further than the debates on the repeal of the Judiciary Act of 1801.

When considering the apparent political orientation of Marshall’s opinion, it is equally as

important to take note of the structure of his opinion alongside its substance. By rearranging the

substance of Lee’s argument, Marshall allowed the Court to accomplish two self-serving political goals in both pronouncing judicial review while simultaneously avoiding direct conflict with the administration. Jefferson especially found fault with Marshall’s decision, later referring to it as “not law” and a gross usurpation of power by the unelected, lifetime office holding

222 Ibid, 177. 223 Ibid. 224 Ibid. 225 O’Fallon, Marbury Versus Madison, 37. 80 judiciary.226 Despite the administration’s refusal to accept Marshall’s ruling, there was little that

could be done. The Jefferson administration had technically won the suit, and the Federalist

victory, if indeed Marbury successfully advanced Federalist principles, was one of principle not

practice. In waiting until the very end to declare that the Court had no jurisdiction, Marshall had

been able to set federal precedent for the use of judicial review while also detailing the executive

branch’s division of responsibility between its political functions and its capacity as a ministerial

office. From a legal perspective, Marshall’s extended discussion of Marbury’s right to seeking

his commission and his discussion of the proper functions of the executive branch was, “strictly

speaking, unnecessary, and therefore improper.”227 And yet, it was this presentation of his

argument which was the most politically beneficial method of deciding the matter at hand. Not

only did it avoid an encounter with the Jefferson administration (which the Court would have

surely lost damaging Federalist credibility) but it allowed the Court to enhance its own power

and truly grow into its position as a third co-equal branch of government. In order to diffuse the political pressures of the period, Marshall was likely aware the Supreme Court could represent the best chance Federalists had to prolong their hold on the levers of government. Thus, from his position as Chief Justice, Marshall took on an even bigger role which, “called for the talent and the insight of a statesmen capable of looking beyond the confines of strict law.”228 From what initially appeared to be an untenable situation, Marshall drew on the principles garnered throughout his development as a Federalist to deliver a creative opinion that while on its face delivered a victory to the Republican administration, vindicated the theoretical validity of a

Federalist championed idea.

226As quoted in O’Fallon, Marbury Versus Madison, 29. 227 O’Fallon, Marbury Versus Madison, 17. 228 Schwartz, A History of the Supreme Court, 36. 81 BIBLIOGRAPHY

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Academic Vita of Francis J Canavan Fjc5088@psu,edu 14 Glenn Circle Erdenheim, PA 19038

Education

Schreyer Honors College The Pennsylvania State University Paterno Fellows Program The College of Liberal Arts Bachelor of Arts in International Politics, National Security Option Bachelor of Arts in History

Work Experience Donnelly & Associates, P.C. Conshohocken, PA (Summer 2016) Insurance Law Intern • Attend depositions and client meetings to gain real world experience • Study and file past case materials to learn proper brief writing and legal procedures

The Office of Representative Stephen McCarter Glenside, PA (Summer 2015) Public Policy Intern • Review potential legislation and conduct background research to formulate educated positions on pressing policy issues • Engage in constituent outreach and provide daily support to citizens.

Leadership and Activities Dean’s List, 2013, 2014, 2015, 2016 International Fraternity of Phi Gamma Delta, Gamma Phi Chapter Phi Beta Kappa, Lambda of Pennsylvania Chapter Phi Alpha Theta Honors Society, Epsilon Upsilon Chapter Penn State IFC/Pan-Hellenic Dance Marathon 2014 and 2015 Rules and Regulations Committee Member, 2016 Merchandise Committee Member Penn State Greek Week 2015 and 2016 Rules and Regulations Captain

Relevant Research Experience “Young Federalist: The Influence of John Marshall’s Early Life on Marbury v. Madison” (April 2017)