UIC Law Review Volume 53 Issue 4 Article 3 2021 Chief Justice John Marshall’s Judicial Statesmanship Amid In Re Burr: A Pragmatic Political Balancing Against President Jefferson Over Treason, 53 UIC J. Marshall L. Rev. 789 (2021) Christian Ketter Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Legal History Commons Recommended Citation Christian Ketter, Chief Justice John Marshall’s Judicial Statesmanship Amid In Re Burr: A Pragmatic Political Balancing Against President Jefferson Over Treason, 53 UIC J. Marshall L. Rev. 789 (2021) https://repository.law.uic.edu/lawreview/vol53/iss4/3 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. CHIEF JUSTICE JOHN MARSHALL’S JUDICIAL STATESMANSHIP AMID IN RE BURR: A PRAGMATIC POLITICAL BALANCING AGAINST PRESIDENT JEFFERSON OVER TREASON CHRISTIAN KETTER* I. INTRODUCTION ............................................................... 791 A. Premise ..................................................................... 794 B. Judicial Statesmanship ........................................... 797 1. Defined ............................................................... 797 2. The Risks of Judicial Statesmanship: Marshall’s Successor Roger B. Taney. ................................ 801 C. John Marshall as a Judicial Statesman ................. 803 II. BACKGROUND ................................................................. 808 A. Relationships at play in In Re Burr ........................ 809 1. Thomas Jefferson vs. John Marshall: Bitter Cousins and American Rivals ........................... 809 2. Judiciary vs. Executive ..................................... 816 B. Judiciary and the People ......................................... 821 1. Jefferson vs. Burr .............................................. 823 2. The Chief Justice and the Marshall Court ...... 825 C. Bollman/Burr Cases ................................................. 828 1. The Incident: Treason? ...................................... 828 2. Ex Parte Bollman: Marshall’s first step ........... 832 3. Burr’s Treason Trial .......................................... 835 a. The Grand Jury is Sworn: May 22, 1807 837 b. The District Court vs. The Executive ...... 841 c. The Grand Jury Indicted Burr ................ 851 d. Bollman versus Burr: A problem in precedent .................................................. 853 e. Burr’s Trial: Public and Political Pressure .................................................... 855 * Professor Ketter is an Adjunct Professor of Criminal Procedure at Morton College. B.A, Communications & Media Studies, cum laude, DePaul University; J.D., cum laude, Dean’s Scholar, The John Marshall Law School. Mr. Ketter is an Associate Attorney with Hervas, Condon & Bersani, P.C., practicing federal civil rights litigation and state tort litigation. He is a former Cook County criminal prosecutor in Chicago, Illinois, having worked as an Assistant State’s Attorney in the Cook County State’s Attorney’s Office’s Criminal Prosecutions Bureau. Prior to this Mr. Ketter served in an internship as a judicial clerk at the United States Court of Appeals for the Seventh Circuit under the Honorable Judge William J. Bauer. He has guest-lectured at Northwestern State University of Louisiana and Morton College respectively on the issues of the career risks for performing artists, rules of evidence and criminal law. Mr. Ketter has written on the subject of constitutional law and gun legislation, first amendment rights, voting rights, administrative law, the Roberts Court, and labor reform. His work has been published in The University of Toledo Law Review, Wayne Law Review, The Arizona State Sports and Entertainment Law Journal, Florida Coastal Law Review, and Cleveland State Law Review. Professor Ketter greatly appreciates the invaluable assistance of Mr. Polatip Subanajouy and Ms. Allison R. Trendle. 789 790 UIC John Marshall Law Review [53:705 f. Final Arguments: August 20-29, 1807 .... 867 III. IN RE BURR: A PRAGMATIC DECISION OF JUDICIAL STATESMANSHIP ............................................................. 872 A. Marshall’s Originalism and Historical Analysis .... 874 B. Marshall’s Textualism: English Jurists and American Judges ....................................................................... 879 C. Marshall’s Structuralism ........................................ 884 D. Marshall’s Common-Law Constitutionalism to Backtrack Bollman. ................................................. 886 E. Marshall’s Living Constitutionalism, Redefining “Treason” in Burr ..................................................... 889 F. Marshall’s judicial statesmanship and public policy concerns .................................................................... 893 1. In the wake of In Re Burr ................................. 898 G. A Political Epilogue: Another Prosecution and Jefferson’s Reprise ................................................... 899 IV. CONCLUSION ................................................................... 905 Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered.1 -Chief Justice John Marshall In Re Burr (1807) It is emphatically the duty of the Judicial Department to say what the law is . If courts are to regard the Constitution . [as] superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.2 -Chief Justice John Marshall Marbury v. Madison (1803) While Burr’s case is depending before the court, I will trouble you, from time to time, with what occurs to me . the case of Marbury v. Madison has been cited, and I think it material to stop . citing that case as authority, and to have it denied to be law . I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention . [its] reverse will be the rule of action with the executive.3 -President Thomas Jefferson 1. In re Burr, 8 U.S. 470 (1807) (hereinafter) United States v. Burr, 25 F. Cas. 55, 165 (C.C.D. Va. 1807). 2. Marbury v. Madison, 5 U.S. 137, 137 (1803). 3. Letter from Thomas Jefferson to George Hay (June 2, 1907), in 10 THE WORKS OF THOMAS JEFFERSON IN TWELVE VOLUMES 396 (Paul Leicester Ford ed., Federal ed. 1905). 2020] A Pragmatic Political Balancing 791 I. INTRODUCTION The effects of Chief Justice John Marshall’s tenure on the Supreme Court from 1801-1835 are still visible today.4 Marshall’s written opinions instruct on American governance, history, law, and politics. The nuances and historical context of those opinions demonstrate that his role on the Court was far more than merely presiding thereover. Marshall shaped modern judicial review.5 As Chief Justice, he quintessentially brought the authority of a political branch, the dignity of statesmanship, and the appearance of total impartiality to the Supreme Court.6 His efforts have been continually minimized, enlarged, and misunderstood by scholars, and yet, there are aspects of his career still to be revealed.7 This Article focuses upon John Marshall’s judicial statesmanship within the case of In Re Burr. Aaron Burr’s treason trial has its notable place in history due to the political climate during the case and the figures involved in the case both in and outside of the courtroom.8 Chief Justice Marshall and the Court felt immense political pressure from President Thomas Jefferson and the public. Marshall’s diplomacy as a judicial statesman, driven by forces facing the Judiciary in Burr, however, necessitate the scrupulous analysis given to other cases in which the Marshall Court averted disabling political pressure.9 At the time of Burr, 4. G. Edward White, Recovering the World of the Marshall Court, 33 J. MARSHALL L. REV. 781, 790 (2000) (noting that Chief Justice Marshall wrote 547 opinions of the Court’s total 574). 5. See Samuel R. Olken, The Ironies of Marbury v. Madison and John Marshall’s Judicial Statesmanship, 37 J. MARSHALL L. REV. 391, 403 (2004) (writing that Marshall is incorrectly attributed to have created judicial review. In reality, Marshall enhanced constitutional powers already present). 6. See G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 12, 15 (3d ed. 2007) (“Consequently[,] under Marshall's guidance[,] the Court became not only an increasingly important force in national politics but also a source of pride and inspiration to the men appointed to its bench.”). 7. Olken, supra note 5, at 403. 8. CHARLES F. HOBSON, THE AARON BURR TREASON TRIAL 1 (2006), www.fjc.gov/sites/default/files/trials/burrtrial.pdf [perma.cc/XXU5-ALVK]. 9. See Id. (“Momentous legal issues were involved, including the scope of executive privilege and the constitutional and common law definitions of treason. The trial’s political dimensions were equally significant: at stake was the reach of Thomas Jefferson’s influence over the federal courts and the power of John Marshall to limit Jefferson’s influence.”); G. EDWARD WHITE, THE MARSHALL COURT & CULTURAL CHANGE: 1815-1835, at 232 (1991) (writing that In Re Burr “was the cause célébre of the early Marshall Court years”); see also