Madison's Music (23 page)

MARBURY V. MADISON
: A CONSTITUTIONAL FARCE IN THREE ACTS

Prelude to a Farce

Marbury v. Madison
unfolds against the comic-opera backdrop of the election of 1800, the nation's first contested electoral transfer of presidential power from one political faction to another.
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Before
the adoption of the Twelfth Amendment in 1804, each presidential elector cast two votes in the Electoral College without designating which was for president and which for vice president. The candidate garnering the most Electoral College votes became president. The runner-up became vice president.
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The only restriction on electors was that at least one of the two candidates for whom he voted had to be from a different state than the elector. That's how it worked during Washington's two terms. That's how it worked in 1796, the first contested presidential election, when Jefferson lost to Adams in the Electoral College by three votes and became Adams's vice president. Although the 1796 election featured slates for the first time—John Adams and Charles Pinckney for the Federalists versus Thomas Jefferson and Aaron Burr for the Democrats—the relatively large number of candidates receiving electoral votes (thirteen) acted to prevent ties between running mates. In the election of 1800, the voters were confronted with the same rival slates as in 1796, Adams/Pinckney versus Jefferson/Burr. Electors pledged to the Jefferson/Burr slate won a close but clear 73–65 victory in the Electoral College, but Jefferson almost blew the election by failing to ensure that at least one of his electors withheld his second vote from Aaron Burr to prevent a tie. The Federalists got it right. One Federalist elector from Rhode Island withheld his vote from Pinckney and cast it for John Jay, so that the Adams/Pinckney electoral vote was 65–64. Not only did the Jeffersonian electors fail to withhold a vote from Burr, but Anthony Lispenard, an elector from New York, actually sought to cast both of his votes for Burr. Lispenard eventually was persuaded that he couldn't cast both votes for someone from his own home state, so he cast his two votes for Jefferson and Burr. Ironically, while Lispensard was constitutionally disabled from casting two votes for Burr, he could have swung the election from Jefferson to Burr by merely casting his second vote for someone other than Jefferson, but he didn't seem to realize it. If he had done so, Burr would have been elected president by a vote of 73–72.

When the Electoral College ballots, including Lispenard's, were all counted in December 1800, Jefferson and Burr were tied at 73
votes each.
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Once the 73–73 tie was announced, Burr infuriated Jefferson by failing to take affirmative steps to withdraw his candidacy for president, thereby throwing the formally tied presidential election into the House of Representatives, where, under Article II, section 1, clause 3, each of the then sixteen state congressional delegations was entitled to cast one vote. The votes of nine states were needed to elect the president.
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Although the Jeffersonian Democrats had won a 68–38 majority in the new House of Representatives, under the Constitution as originally written, the newly elected Congress did not take office until March 4, 1801, leaving the Federalist-controlled lame-duck House of Representatives with the power to choose the next president. Although the Federalists controlled the lame-duck House by a popular vote plurality of 60 percent to 45 percent, they controlled only eight of the sixteen state delegations. Jeffersonian Democrats controlled seven. Vermont was evenly split.

In an effort to break the Electoral College tie, the House conducted thirty-five presidential ballots from February 11 to 17, 1801. The vote was always 8–6–2. Jefferson consistently carried eight states: the seven controlled by Jeffersonians—Kentucky, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, and Virginia—plus Georgia, whose sole surviving Federalist congressman (Benjamin Taliaferro) voted for Jefferson as a matter of conscience.
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Six Federalist states—Delaware, South Carolina, Connecticut, Massachusetts, New Hampshire, and Rhode Island—voted consistently for Burr. The Vermont delegation, evenly split, cast a blank ballot. The Maryland delegation, controlled by Federalists, also maneuvered to cast a blank ballot.

The deadlocked presidential voting revealed that more was at stake in 1800 than the transfer of power from one president to another. Jefferson was viewed by many as a dangerous egalitarian radical committed to the principles of the French Revolution. Burr, a successful New York lawyer, was considered a much safer bet by conservatives. Some Federalists actually hoped that a sustained deadlock would result in the reelection of John Adams as a
compromise candidate. The irony of viewing Thomas Jefferson, a slaveholding Virginia planter with a voracious taste for luxury (he died more than $100,000 in debt), as a dangerous radical seemed lost on the eighteenth-century mind.

Barely two weeks before the scheduled March 4, 1801, inauguration, on the 36th ballot, James Bayard, the sole Federalist congressman from Delaware, persuaded Federalist allies in the evenly split Vermont and Maryland delegations to cast blank ballots, throwing both states to Jefferson. At the same time, Bayard shifted his Delaware vote from Burr to blank and persuaded the South Carolina Federalist delegation to similarly switch from Burr to blank. Although the final vote for Jefferson was 10–4–2, it was a close thing.

On February 17, 1801, when Jefferson's election was finally announced, the Supreme Court's prestige was at a low ebb, in large part because the six justices
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decided only a small number of appellate cases (the Supreme Court decided only fifty cases in its first decade) and were routinely assigned to “ride circuit” throughout the country to serve as judges in the trial courts, a demanding task requiring arduous travel.
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Washington's first chief justice, John Jay, had resigned in 1795 to become governor of New York, in part because the Supreme Court did so little and circuit riding was so exhausting.

Under the Judiciary Act of 1789, which had created the lower federal courts, federal courts were divided into three familiar tiers—district courts, circuit courts, and the Supreme Court. But the original circuit courts were not classic intermediate appeals courts. There were no permanent circuit judges. Initially, a circuit court consisted of two Supreme Court justices sitting twice a year with a local district judge. In 1793, the burden was lessened by requiring only one Supreme Court justice, although that created the possibility of a split two-judge circuit court. The two judges sat as multimember original trial courts for certain important cases and as an intermediate appeal forum for certain other cases.

After Jay's resignation in 1795, John Rutledge of South Carolina received a recess appointment in July 1795 as the second chief
justice, only to have the Senate deny confirmation after he had presided for less than six months. Rutledge, who appears to have suffered a mental breakdown after the death of his wife, was said to have been so distraught at his rejection by the Senate that he attempted suicide by jumping into the St. James River. One of his slaves jumped in to fish him out.

Washington finally appointed Oliver Ellsworth in 1796. Ellsworth served as chief justice for four uneventful years.
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He was in Europe negotiating a treaty with Napoléon when news of Jefferson's likely election victory reached him. Ellsworth wasted no time in immediately sending a resignation letter, dated September 30, 1800, to Adams to give the outgoing president time to nominate a successor.
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Adams received Ellsworth's resignation on December 15, 1800, and immediately nominated John Jay, without bothering to ask him whether he would serve once again. Jay was quickly confirmed by the Senate on December 19, but declined the nomination on January 2, 1801. Adams didn't receive Jay's declination until January 19, 1801. The next day, Adams turned to his recently appointed secretary of state, forty-five-year-old John Marshall, who had been leader of the Federalists in the House of Representatives but had never served as a judge.
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The Senate confirmed Marshall as chief justice on January 27, 1801, the one-week delay probably attributable to the unhappiness of certain conservative High Federalist senators from New England who viewed Marshall as too moderate.

Marshall took office on February 4, 1801, thirteen days before Jefferson was finally named president-elect. At Adams's request, Marshall agreed to continue serving as acting secretary of state as well as chief justice for another month until the close of Adams's term on March 4. In February 1801, the State Department was where the real power lay. It was Federalist patronage headquarters.

Building the Set: A Large Patronage Trough

The facts of
Marbury
unfold during the charged two weeks between Jefferson's delayed election as president on February 17, 1801, and
his inauguration on March 4, as Federalists scrambled for patronage jobs before their party lost control of the national government it had dominated since 1789. The patronage bonanza was fueled by congressional passage of the District of Columbia Organic Act on February 27, 1801, just five days before the Federalists went out of power, giving the outgoing president the ability to appoint an entire government from scratch for the new District of Columbia. The D.C. Organic Act provided for a full complement of officials, ranging from an unlimited number of justices of the peace to marshals, notaries, surveyors, lawyers, and military officers. Well over a hundred new jobs were created.

On March 2, Adams nominated forty-two justices of the peace for the new District of Columbia, as well as a full complement of notaries, federal marshals, and other executive officials. The five-year low-level justice-of-the-peace posts were unsalaried. Compensation was based on charging fees for the issuance of legal writs. Jurisdiction was capped at $20. The judicial position appears to have been partly honorific but carried the general duty to maintain public order. The population of the District of Columbia in 1801 was approximately 10,000 whites and 4,000 blacks, including 800 freedmen, so 42 justices of the peace—one for every 240 residents—seems excessive. Jefferson eventually settled on 30.

The D.C. Organic Act also provided for a prestigious Article III three-judge circuit court with lifetime terms. Marshall's younger brother, James, received one of the plum circuit judgeships, as did Abigail Adams's nephew, William Cranch. But with only four days to perform the task, time ran out on Marshall's effort to find a chief judge for Adams to appoint. Adams's first choice, ex–Supreme Court justice Thomas Johnson, unexpectedly said no, leaving the coveted appointment to Jefferson. Jefferson promptly appointed a staunch supporter, William Kilty of Maryland.

The judicial patronage scramble didn't stop at the District of Columbia. On February 13, 1801, four days before Jefferson was named president-elect and just under three weeks before the Federalists went out of power, President Adams persuaded the
lame-duck Congress to pass the so-called Midnight Judges Act, creating sixteen new lifetime Article III circuit judgeships throughout the country, in addition to the three for the newly created District of Columbia two weeks later. While they were at it, as part of the Midnight Judges Act, Congress prospectively reduced the number of Supreme Court justices to five (in an apparent effort to deny Jefferson an appointment), abolished circuit riding by the justices as no longer necessary (since there was now a permanent corps of nineteen new lifetime circuit judges), and granted power to the lower federal courts to decide questions of federal law (federal question jurisdiction), in addition to the already existing power to decide cases involving citizens of different states (diversity jurisdiction). The abolition of circuit riding, creation of permanent circuit intermediate appellate courts, and the grant of federal question jurisdiction were needed judicial reforms. Each was eventually adopted.
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But the claimed justification for moving from six to five Supreme Court justices—a desire to avoid ties—seemed a transparent effort to deny Jefferson a Supreme Court nomination. It poisoned the entire bill, causing the legislation to be widely viewed as a partisan effort to perpetuate Federalist power through the judiciary after the party's defeat at the polls.

The entire Midnight Judges Act was repealed a year later on March 8, 1802, by the newly elected Jeffersonian Congress, returning the Supreme Court to six members, reinstating circuit riding, revoking the grant of federal question jurisdiction to the lower federal courts, and throwing sixteen of the new “lifetime” circuit judges out of work. No similar effort was made to repeal the 1801 Organic Law for the District of Columbia, leaving the forty-two low-level five-year justices of the peace and the three lifetime D.C. circuit judgeships unscathed.

Enter the Players

In 1801, John Marshall, wearing his secretary-of-state hat as chief of patronage for the outgoing Federalists, faced intense, ongoing pressure to produce patronage jobs. The pressure apparently affected
Marshall, who was also serving as chief justice. In late February 1801, Marshall botched the delivery of a federal district-court commission
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to Federalist senator Ray Greene of Rhode Island, who had resigned from the Senate to accept Adams's judicial nomination. Greene had been named to the district court, but his commission incorrectly called it a circuit court. After he took office, Jefferson claimed that the transcription error voided Greene's appointment, and he named a new district judge for Rhode Island over howls of outrage from New England Federalists. Greene wound up losing both his Senate seat and the district-court judgeship. Adams paid a price as well. Greene's Rhode Island Senate vacancy was filled by Christopher Ellery, a Jeffersonian who voted in 1802 to repeal the Midnight Judges Act. Because repeal barely passed the Senate by a vote of 16–15 (with Vice President Burr in the chair in opposition), the botched Greene nomination probably cost Adams his sixteen midnight circuit judges.
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