Just how long is the long arm of the law, and to whose body is it attached? And how can the fallout from a bitter political feud between John Adams and Thomas Jefferson possibly illuminate the constitutional expectations concerning the reach, scope, and authority of the Grand Ducal Court of Westarctica?
In this inaugural piece, we’re going to explore the historical origins of one of the signal prerogatives of Westarctica’s high court, namely, the power of judicial review. In order to do so, we’ll be taking a trip to another place and time. To be precise, we are going to head to the mid-Atlantic region of the American east coast at the turn of the 19th century, ending up in a boggy, undeveloped little backwater of a town on the Potomac River known to its profoundly inconvenienced inhabitants as “Washington City”.
We’ll take that trip in just a bit. Before we embark upon that rustic journey “back east”, however, allow me to invite you to put on your parka and goggles and to let your mind transport you for a moment to the South Pole and into the future.
When you contemplate the distant future of Westarctica, you may conjure up images in your mind’s eye of a portion of the Antarctic settled and inhabited by your children or your children’s children. You might very well envision a relatively small settlement, at first, which, over time, develops into something like a town, which perhaps, further down the line, transforms into a city from which future Westarcticans might, then, radiate to establish new settlements, new towns, and new cities throughout the territory claimed by our intrepid Grand Duke.
The scenario you imagine would not, apart from the climate, be utterly unlike the scenario unfolding in the young United States in the year 1803, to which we now travel.
From the cities established during colonial days along the Eastern Seaboard, Americans were radiating outward, heading further and further west. This westward expansion of the American republic would greatly expand and accelerate, as we know, beginning with the U.S. Government’s purchase of the Louisiana Territory from France in this interesting year that we now find ourselves in.
The great westward expansion notwithstanding, the corridors of power and influence would remain back east, for the time being, principally in places like New York City, Philadelphia, and in the new capital city of Washington, DC, where a large white neoclassical building on a hill, given the novel yet entirely fitting name of “Capitol”, was being erected to house two of the three branches of the young American government.
Imagine, if you will, the scene, one of brick masons, stone masons, master carpenters, skilled laborers…and slave foremen, directing enslaved men, women, and children about…to help build the temple of democracy in this self-styled “land of the free”.
If, while all the noise and clatter of construction on Capitol Hill is going on, we should venture to take a bumpy carriage ride about one and a half miles west (always heading west), we will find standing near a window inside yet another large white neoclassical structure a remarkably talented, energetic, and rather cerebral man who, despite owning slaves, had once upon a time held it to be a “self-evident” truth that “all men are created equal”.
President Thomas Jefferson, more so than any of his fellow countrymen, perhaps, was looking west. As we walk into the recently finished and still, at this point, rather empty-looking “President’s House”, we can probably smell the new plaster and paint as we behold America’s third chief executive lost in a momentary reverie while staring westward out his window. In a moment, the president will be interrupted by his personal secretary, U.S. Army Captain Meriwether Lewis, who will inform him that Second Lieutenant William Clark has arrived.
Together, Jefferson, Lewis, and Clark will make their way to the elliptical salon on the state floor to greet guests assembled for the commissioning of the president’s “Corps of Discovery”, an expedition devised to explore the vast new territory west of the Mississippi recently gotten from Napoleon Bonaparte at a bargain price.
Although we can sense the electricity of the moment in the air, we haven’t been invited to this momentous ceremony, and so we shall importune the presidential party no further.
As the president passes by with his secretary and Lieutenant Clark, we shall make our apologies to the steward, who graciously bids us exit via the north door. We will not find ourselves on Pennsylvania Avenue as we exit, however, since the stretch of the avenue passing by the north lawn will not be cut through the President's Park for another year.
Departing the great whitewashed executive mansion, we will hop back into our carriage and check in to a hotel adjacent to Capitol Hill, only to find ourselves a bit bewildered to notice that the lobby has been transformed into a makeshift courtroom.
The manager explains, to our astonishment, that the United States Supreme Court will be hearing oral arguments in this space later in the week at Chief Justice John Marshall’s request, since there simply aren’t any convenient areas in the unfinished Capitol for the justices to occupy in order to hear the next case on the court’s docket.
This remarkable case, the briefs for which had been filed back in 1801, centered upon a group of frustrated judicial appointees who had sued the Jefferson administration for obstructing their appointments.
These discomfited appointees, led by Mr. William Marbury, had been nominated by Jefferson’s predecessor, John Adams, in the final hours of the latter’s presidency.
Back then, there was a very different kind of electricity in the air in the new capital. Following his narrow Electoral College defeat in the highly contentious election of 1800, a spiteful President Adams had resolved to thwart Jefferson’s “dangerous” Republicans by packing the judicial branch with Federalist appointees.
Although the Democratic-Republicans had taken the White House and the Congress by storm (much to the Federalists’ horror), Adams was intent upon ensuring that the judiciary, at least, remained a Federalist stronghold for years to come.
Unfortunately for the Federalists, but conveniently for Jefferson, a number of the appointments, although signed and sealed, were never delivered. Adams’ secretary of state, as it happens, wasn’t able to get to all of them in time.
The new secretary of state, James Madison, discovered these sealed appointments in the State Department and asked Jefferson what should be done with them. “Nothing,” the new president ordered.
And so the instruments sat, collecting dust in the secretary of state's office, never delivered to their intended recipients. As far as Jefferson was concerned, the appointment instruments lacked any potency without delivery.
William Marbury et al saw things a bit differently, however, petitioning the Supreme Court to issue a writ of mandamus against James Madison, commanding the secretary of state to deliver the outstanding appointments.
With that lawsuit, the story of the U.S. Supreme Court as we know it effectively begins, and the effects of this landmark case ripple through the ages to the present day, making an imprint, however unintentionally, upon even the Constitution of Westarctica.
At present, the Grand Duke of Westarctica holds court at his personal residence in the great conflagration which is the State of California. His prime minister handles the day-to-day affairs of government from his home office, also in the American West, and the rest of the government is scattered hither and thither about the globe (as are we, the populace of Westarctica).
One day, however, we anticipate a central place on the map of Antarctica wherein the functions of the central government will be carried out, with each of the primary elements of the constitution operating in close proximity to one another much as they do in any other capital city.
As a Westarctican citizen, you may perhaps have paused a moment to imagine what a future Westarctican capital city might look like. If so, you have more than likely envisioned basic temporary pre-fab structures giving way, over the decades, perhaps, to permanent and grander structures.
These latter would likely be rather less like the ornate gothic and neoclassical halls and palaces of the capitals of Europe or the Americas, and perhaps more modern and more aesthetically (and realistically) harmonious with the Antarctic topography, climate, and circumstances.
In the very early days of Westarctican development, one could easily imagine just a couple of multi-purpose public structures springing up, assembled for the purpose of housing the offices and meeting spaces of the officials of the various branches of government during the summer months.
At summer’s end, the earliest Westarcticans would depart the continent entirely, of course, to return to more temperate climates before the onset of the Antarctic winter.
At the time that William Marbury and his band of frustrated Federalist judicial appointees brought their suit against Secretary of State James Madison, the American capital at Washington was similarly abandoned for much of the year, with much of the business of government going on in just a couple of different structures during those months when the elected politicians and appointed bureaucrats found themselves in town to conduct the peoples’ business.
The president, as we have already seen, although grandly situated at the White House (too grandly, in Jefferson’s estimation), was always happy to get out of Dodge to return to Monticello. Senators and members of Congress, likewise, although they deliberated in dignified legislative chambers in the single finished wing of the Capitol, were forced to lodge in hotels or boarding houses not exactly of five star quality, far removed from their families, and were likewise happy to flee the swampy purgatory of DC before the heat of summer made the place an unbearable, mosquito-infested hell.
The United States Supreme Court, however, had no fixed permanent home of its own. The court, in fact, would borrow space in the Capitol until the 1930s, when the imposing temple-like structure we are familiar with today was erected thanks to the vision and persistent lobbying of Chief Justice William Howard Taft (and in no small part on account of the endless complaints of Charles Evans Hughes about the lack of adequate facilities in the Capitol).
The Supreme Court at the time of Marbury vs. Madison was a rather obscure and only slightly regarded entity--something of an afterthought, really--afforded none of the reverence it enjoys today. Although created by the Constitution, America’s high court was not actually treated as an institution with a status co-equal to that of the presidency and of Congress.
The justices in those days were not lettered in the law. As it happens, no justice of the U.S. Supreme Court would have a law degree until Benjamin Robbins Curtis in 1851 (and until the 21st century, most high court justices would not have a doctorate in law, only a bachelor's degree). John Marshall, the "Great Chief", studied law for all of six weeks and had almost no formal education. As late as 1941, in fact, James F. Byrnes, who had never attended college much less law school, was appointed an associate justice of the Supreme Court (by contrast, all the current justices of the Roberts court boast law degrees from Ivy League universities).
The job of a Supreme Court justice, as it happens, was not an enviable one, either. Not much came before the court in the early days, for one thing. In fact, in the first year the Supreme Court sat, not a single case was brought before it. The justices of the high court, furthermore, were expected to ride the circuit during their down time, in the days when travel was perilous, inconvenient, and unpleasant (to this day, as a matter of fact, each justice is assigned to a federal circuit).
America’s first Chief Justice, John Jay, despite his lifetime appointment, was so bored and nonplussed by the Supreme Court gig that he quit after less than six years on the bench to run for governor of New York.
The Supreme Court of Marbury’s time sometimes met in a borrowed Senate committee room in the Capitol (if it happened not to be in use). The landmark Marbury v. Madison case, however, as we are discovering, was actually heard in the lobby of a hotel.
Following the outcome of the Marbury case, though, things would begin to look up for the Supreme Court thanks to the almost Solomonic shrewdness of America’s fourth Chief Justice, John Marshall.
John Marshall, who had, in fact, been President Adams’ secretary of state--yes, the very one who had failed to deliver all of those eleventh hour judicial appointments in time--was nominated to preside over the high court by Adams and was confirmed in that post while still serving as secretary of state. Marshall’s failure to deliver all the appointments of Adams’ “midnight judges” had now come back to haunt him.
The Marbury case had put the young Supreme Court, struggling for relevance, between a rock and a hard place, and the institution was going to suffer a major blow no matter which way the case went, or so Marshall supposed at first. So had everyone supposed, at first, as a matter of fact. Plenty of prognosticators were predicting the Supreme Court’s eternal damnation into constitutional obscurity over this matter.
Federalist John Marshall, furthermore, did not relish the prospects of a run-in with Republican Thomas Jefferson, his second cousin. The old adage notwithstanding, blood is not always thicker than water, and politics had made enemies of the two men.
They frankly couldn’t stand each other at this point, and Marshall had already endured the dubious honor, in 1801, of administering the presidential oath of office to Jefferson. To give yourself a realistic sense of the tension involved, imagine, perhaps--if you will be so good as to indulge--a vice president-elect Kamala Harris being sworn-in by Brett Kavanaugh.
With the Marbury case, Marshall and Jefferson were met once again, eyeball to eyeball, although this time they were suiting up to do battle against each other. Marshall’s armor, however, appeared to have plenty of vulnerabilities in it compared to that of a triumphant president who, in addition to being cloaked in the mantle of founding fatherhood, had just doubled the size of the United States.
The opening salvo in the skirmish was volleyed by Jefferson’s Republican-controlled Congress, which passed a bill cancelling the Supreme Court’s 1802 session, entirely, thereby postponing any action by the court until 1803. Congress had the power to do that, you see. Round one went to Jefferson, therefore, who was only too happy to knock Marshall’s Federalist bastion down a peg or two.
That action by the Republican Congress did nothing, of course, to enhance the court’s prestige in the eyes of Americans at the time and the upcoming Marbury case seemed poised to further diminish it.
Were the Marshall court to decide against Marbury and in favor of the administration, the court would come across looking like the weak sister it was already imagined to be. If, on the other hand, the court should decide in favor of Marbury and against the administration, the court’s decision would without a doubt have been ignored by Jefferson, thus decimating, entirely, the court’s authority and prestige, making it the laughing stock of the republic.
At this stage of the game, every action taken, every decision made was setting a precedent for the future, and Marshall was keenly aware of it. It was his task not only to prevent the court from receding into irrelevance, but to strengthen the judiciary for the greater good of the American experiment. Marbury, therefore, posed significant challenges.
In a stroke of sheer genius, however, Chief Justice Marshall came up with a solution that would manage to increase the court’s footprint on the constitutional landscape while at the same time giving Jefferson exactly what he wanted. Was Thomas Jefferson, however, familiar with the old caution that says “Be careful what you wish for”? If not, he was about to become very familiar with it.
The solution lay in the Marbury brief’s reference to the Supreme Court’s jurisdiction in such matters, according, at least, to the provisions of the Judiciary Act of 1789. On this point, Marshall found his opportunity for a master stroke that would serve not only to repair the damage which the court’s reputation had just sustained, but to turbo charge its authority, going forward.
And since we have, by sheer luck, chosen the right DC hotel to stay at, we’ll get to watch it all unfold downstairs in the lobby. The gavel having dropped, let us all now rise as their honours enter the room.
“The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States! Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”
In Marshall’s brilliantly crafted opinion, the court sided with Marbury in no uncertain terms, entirely agreeing with the plaintiff’s contention that the undelivered appointment instruments were valid, potent, and binding, even though they had not been delivered to their intended recipients. The administration's refusal to deliver the instruments, therefore, was illegal. The court further determined that the Marbury brief was entirely correct in its insistence that, according to the Judiciary Act of 1789, the Supreme Court had the power to order James Madison to deliver the appointments.
The Chief Justice, sitting at his makeshift bench here in our hotel’s rearranged lobby, and flanked by three of the five associate justices (two were not in attendance that day), very likely relished reading the passages of his opinion in which he publicly took the Jefferson administration to task for illegally withholding the Federalist appointments.
While publicly chastising Jefferson may have given Marshall a certain degree of personal satisfaction, however, the court’s master stroke came next. Marshall declared in the court’s unanimous opinion that the jurisdiction granted to the Supreme Court by the Judiciary Act was, as it so happened, unconstitutional, conflicting, as it did, with the provisions of Article III of the United States Constitution.
The Supreme Court, therefore, while sympathizing with Marbury, was not in a position to grant relief to the plaintiffs, Marshall said. The unconstitutional provisions of the Judiciary Act, furthermore, referenced by the plaintiffs in their brief, were declared null and void.
I would wager that you could hear a pin drop in that lobby. The Marshall decision settled upon the room, upon Washington, and upon the now vastly expanded country like a great, bewildering question mark, confounding just about everybody. “What just happened?” was the question in everyone’s mind across the length and breadth of the nation.
On the surface, it appeared to be a victory for Jefferson and the Republicans. The newspapers were saying so. Jefferson’s supporters were saying so. And why not? The court had not compelled the administration to activate the Adams appointments, after all, and Marbury and his associates left disappointed.
Thomas Jefferson, himself, however, rather more astute than the average frontier rustic, and now staring out of a window of the East Room towards Capitol Hill, very quickly understood what had just happened. He had been bested by his cousin in the contest, with the Supreme Court ceding to Jefferson the battle in order to win the war.
The court had just magnified itself, creating for itself a brand new power that would enable it to hold its own in the capital, alongside Congress and the presidency. In taking the bold step of striking down an act of Congress as unconstitutional, the Supreme Court assumed for itself, for the first time, the prerogative of judicial review.
The high court’s essential holding in Marbury greatly vexed Jefferson. For one thing, the Supreme Court’s power of judicial review was not to be explicitly found in the Constitution. Where was it written that the high court could strike down an act of Congress? Jefferson argued that the power to nullify a federal law should belong only to the democratically-elected Congress which enacted the law to begin with, and not to a tribunal of six appointed men with lifetime tenures.
John Marshall, however, decided that the Constitution was a legal document and not merely a political document, and that it was the exclusive province of the judiciary, therefore, to decide what was and what was not constitutionally kosher. If the Supreme Court, therefore, should opine that a law was not constitutional, then the law was no valid law at all, no matter that Congress had passed it and the president had signed it.
The Supreme Court’s power of judicial review, furthermore, according to Marshall, existed in the Constitution because the Supreme Court said it existed in the Constitution. Since the Constitution was law, it was for the court to interpret it.
Associate Justice William O. Douglas, the modern Supreme Court’s formidable champion of the environment (to whose uninhibited jurisprudence this blog is unofficially dedicated), would, in the 20th century, write famously about constitutional “penumbras, formed by emanations” from innate principles of liberty, but John Marshall found the inherent prerogatives of the court in the implications of American constitutional principles long before “Wild Bill” Douglas ever opined about penumbral emanations.
“It is emphatically the province and duty of the Judicial Department,” Marshall thundered in his opinion, “to say what the law is.”
The only way Jefferson could have countered would have been to surrender to the Federalists’ demands that the remaining Adams appointees be given their appointments, thereby undercutting the premise of the Marshall decision. Jefferson was not about to yield to the Federalists, however, and Marshall knew he wouldn’t. The Supreme Court had thus arrived.
Going forward, the Marshall Court would guard its newfound prestige and its newly assumed prerogative very carefully, treading lightly and going to great pains not to agitate Jefferson further or to attract the ire of the Republicans. Marshall and his colleagues would, for example, abandon the regal red judicial robes so hated by Jefferson on account of their Anglophile overtones, instead donning simple black robes, a custom which has persisted to the present day.
The power to strike down an act of Congress as unconstitutional, furthermore, would not be wielded by the court again for many years to come, thereby reassuring the Republicans that the high court could be trusted to exercise this newfound prerogative of the judiciary safely and rarely.
By 1810, the days of the high court hearing oral arguments in hotel lobbies and cramped committee rooms was over, the Supreme Court having scored for itself a splendid permanent chamber in the Capitol.
The framers of Westarctica’s constitution, whether wittingly or unwittingly, have steered clear of the historical kerfuffle of Marbury v. Madison, explicitly investing the high court with the power of judicial review from the start; it is written into our fundamental document in no uncertain terms.
Article 21, Section 1 (a) of the Constitution assigns to the Grand Ducal Court “the interpretation of laws to set legal precedent,” and goes on in Section 1 (d) to invest the court with “final opinion and authority regarding the constitutional viability of specific laws and processes.” Article 22, Section 6 (f) reinforces the prerogative of judicial review when it says that the Grand Ducal Court shall be charged with “serving as the ultimate authority on issues regarding the Constitution.” No ambiguity there.
It so happens, in fact, that Westarctica’s Grand Ducal Court is endowed with certain prerogatives not enjoyed even by the United States Supreme Court. The Westartican Constitution, for example, permits the Grand Ducal Court the right to serve, in a general sense, “as an advisory body on Westarctican governance” (Article 22, Section 6 [a]), and even permits the Chief Justice to serve on the Royal Council “as the Sovereign’s chief legal advisor” (Article 22, Section 4 [a]).
John Marshall, ambitious for the prestige of his court though he was, would never have coveted such a scenario for himself in his wildest dreams. If we travel up north to Canada, however, we may observe a somewhat similar scenario whereby the Chief Justice of the Canadian Supreme Court does, in fact, enjoy a seat on the Queen’s Privy Council for Canada (and is thereby entitled to the style “The Right Honourable”).
The language cited in Article 21, supra, and in Article 22, supra, also seems to establish (along with precedent, I am told) the GDC’s prerogative to opine on what the Canadian legal system calls “reference questions”. Reference questions are a means by which the government avoids the prospect of tabling unconstitutional bills before Parliament, to begin with, by getting the high court to rule on their constitutional viability in advance.
Such a custom is unheard of (and utterly unthinkable) in the United States, but elsewhere it is common enough, and seems to make sense when you think about it. This option arguably fosters the crafting of better and more constitutionally sound legislation, thus reducing the likelihood of the rise of the kind of vicious and divisive constitutional battles that so often plague the American federal judiciary.
In Canada, Supreme Court decisions on reference questions are not binding, however: the court can neither prevent the government from proposing a bad bill nor can it compel Parliament to refrain from enacting one. To date, however, the court's opinion issued on a reference question has never been ignored. My reading of the Constitution of Westarctica tells me that the binding or non-binding nature of the GDC’s rulings on reference questions posed by the government is something that will need to be clarified one day by subsequent legislation (or perhaps simply by custom or observed precedent).
What landmark cases lie ahead for Westarctica’s high court to settle, I wonder, either before or after her Antarctic settlements, towns, and cities begin to take shape? Will Westarctica see anything like its own Brown v. Board, its own Roe v. Wade, its own Miranda v. Arizona, or perhaps even its own Bush v. Gore?
Certainly, as Westarctica grows and develops and as time goes by, important landmark cases will eventually arise and make their way to the high court…cases that will dramatically impact the Westarctican experience in unexpected ways, shaping and defining it for better or for worse for generations to follow.
THE AUTHOR OF THIS BLOG IS THE FIRST AND CURRENT
CLERK OF THE GRAND DUCAL COURT OF WESTARCTICA
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