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U.S. Constitution Title: The Supreme Court’s early years: When censorship was constitutional? The Supreme Court’s early years: When censorship was constitutional? TweetShare on printShare on emailBy Eric Black | 11/13/12 In the first decade-plus of its history, the U.S. Supreme Court struck down zero congressional enactments. At the risk of being slightly snarky, I would point out that the first two presidents (George Washington and John Adams) were Federalists, the first Congresses were dominated by Federalists, so all of the early Supreme Court appointees were nominated and confirmed by members of the same party that was also passing and signing all the laws and, coincidentally or not, none of the laws were struck down, nor even challenged, as unconstitutional. This is especially noteworthy because in 1798 the Federalist-dominated Congress passed and President John Adams signed the blatantly unconstitutional and highly partisan Alien and Sedition acts which, among other things, made it a crime, punishable by imprisonment, to: “Write, print, utter or publish, or ... cause or procure to be written, printed, uttered or published, or ... knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.” In other words: No criticizing the government (although technically the criticism has to be false, scandalous or malicious). Under this law, 25 men, many of them editors of newspapers supportive of the nation’s first opposition party, the Democratic Republicans led by Thomas Jefferson and James Madison, were arrested and prosecuted. Some went to prison. In many instances, the newspapers were shut down. The First Amendment – “Congress shall make no law … abridging the freedom of speech, or of the press” -- was on the books and in effect. Jefferson and Madison were learned in the law. Madison was the “father of the Constitution” and the chief author of the Bill of Rights, which included the free speech and press guarantees that were so blatantly flouted by the Alien and Sedition Acts. And the acts were clearly intended to intimidate and silence members of the Jeffersonian party. Yet, neither of them, nor anyone else, started a legal action seeking to have the Alien and Sedition Acts overturned by the Supreme Court as unconstitutional. This is hard to understand if, at the time of the drafting and ratification of the Constitution and the Bill of Rights, it had been understood that the Supreme Court had this authority. Instead, Jefferson and Madison redoubled their efforts to win the next election, making the Alien and Sedition Acts an issue against Adams and the Federalists. And they did win, which set the stage for the jaw-dropping developments that lead up to the Marbury v. Madison case, which established or created or made the first use of the Supreme Court’s power strike down congressional enactments that – in the court’s opinion – violated the Constitution. The late professor Alexander Bickel, one of the leading 20th century scholars of constitutional law, once said of the Marbury ruling: “It is hallowed; it is revered. If it had a physical presence, like the Alamo or Gettysburg, it would be a tourist attraction.” In the previous installment, I call the Marbury case “a stinkpot of hardball politics, partisanship, questionable logic and conflicts of interest.” I will attempt to back up that statement, beginning with the factual background of the case: The Midnight Judges John Adams deserves tremendous credit. After losing his bid for reelection in 1800, he became the first president to peacefully surrender power. There are still plenty of countries that can’t take a peaceful transition of power for granted. In the United States, many presidents have been defeated for reelection and never once has there been any question that the incumbent would peacefully accede to the will of the electorate. On the other hand, Adams had several months to serve (in those days, the new president wasn’t inaugurated until March) and he still had a cooperative Federalist-dominated Congress. Adams and the lame-duck Congress used those last months of power to, among other things, pass laws creating a great many new judicial positions and rushing through appointments of loyal Federalist to fill what the Constitution mandated would be lifetime appointments to federal judgeships. This was constitutional, but not really cricket. It’s also another example of a vulnerability that the framers inadvertently built into the system because of their belief that the republic they were designing would operate without the kind of partisanship that almost immediately developed. In addition, Adams nominated and the Federalist Senate quickly confirmed John Marshall as the new chief justice of the Supreme Court. Leader of the Virginia Federalist Party, a rising national star of the pro-Adams party, one of President-elect Jefferson’s least favorite people (although they were cousins), Marshall was at the time of his appointment a young and healthy 45-year-old. Adams’ binge of judicial appointments is known to history as the Midnight Judgeships. Among those appointed were Adams’ son-in-law, Marshall’s brother and two of Marshall’s in-laws. Oh, and while they were vastly expanding the federal judiciary, the Midnight Congress also reduced the size of the Supreme Court from six justice to five, for the undisguised purpose of postponing the day when Jefferson would have an opportunity to fill a Supreme Court vacancy. As I mentioned earlier, the Constitution did not specify the size of the Supreme Court, and it has been altered many times, generally for partisan reasons or to deprive a particular president of appointments. One Federalist upon whom Adams bestowed a midnight judgeship -- actually a mere Washington D.C. justice of the peace-ship -- was William Marbury. In the haste to complete all the paperwork for so many appointments, Marbury was one of several appointees for whom the commission was signed and sealed but not delivered by Inauguration Day. When Jefferson took over the (still-under-construction) White House, he decided not to complete the appointments of the judges that were still in process. Marbury sued, demanding his lifetime sinecure. James Madison (Jefferson’s new secretary of state) was the named defendant in the case, which would become perhaps the most famous in U.S. legal history. Jefferson was furious about the midnight judgeships, writing to a friend that the defeated Federalists had “retired into the judiciary as a stronghold… There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased by a fraudulent use of the constitution which has made judges irremovable, they have multiplied useless judges merely to strengthen their phalanx." In fact, the Federalist Party would soon wither and disappear, leaving behind no serious national political organization. But John Marshall would remain on the court throughout the presidencies of both Jefferson and Madison and several more presidents after them, eventually setting the longevity record that still stands of more than 34 years as chief justice of the Supreme Court. Marshall’s career, in a sense, set a precedent for the recent practice of presidents appointing young, healthy justices who would carry influence of the appointing president and his party and his ideology decades into the future regardless of election results. There is little reason to believe that this is what the Framers had in mind when they decided to make federal judicial appointments good for life. Although he remained ideologically “federalist” in the sense that he believed in a strong national government, Marshall’s key institutional loyalty transferred from a political party to a branch of the government. Marshall built the power of the federal judiciary beyond anything conceived by the Framers. But in 1801, as he and Jefferson faced off across branch lines, Jefferson held the whip hand. In 1802, Jefferson and his allies in Congress passed a bill uncreating many of the judgeships that had been signed into existence by Adams. You could, if you chose, view those repeal bills as unconstitutional. Abolishing federal judgeships has the effect of firing the judges in those positions, which certainly violates the spirit and perhaps the essence of the lifetime tenure provision (although it’s easy to understand why Jefferson might have felt justified in pursuing such a strategy, considering the way the judgeships had come into existence). The repeal issue didn’t result in a constitutional court case (more evidence, by the way, that judicial review wasn’t much in the air). But if it had reached the Supreme Court, and if Marshall had struck down the repeal and ordered Jefferson to reinstate the judges and resume paying them, there is every possibility that Jefferson would have ignored the order, with impunity, which would have resulted in exactly the opposite of establishing the power of judicial review or judicial supremacy over constitutional matters. Marbury’s lawsuit, however, seeking the judicial appointment that had been signed and sealed but not delivered, did come before the court. The Jefferson administration showed its contempt for the proceedings (and for Marshall) by refusing to defend itself or participate in the case in any way. This could be taken as yet another warning to Marshall that if he ordered Madison to hand over Marbury’s commission, the Jefferson administration would disregard the order, thus setting what might be the opposite of the precedent Marshall hoped to set. This will come as a surprise, but it’s an important technical fact. The Supreme Court, with Marshall presiding, didn’t get the case on appeal but conducted the actual trial and heard the testimony, which showed that Marbury had been legally appointed by Adams, confirmed by the lame duck Federalist-controlled Senate and that his commission had been prepared, but that Adams’ secretary of state had failed to get the paperwork delivered by the last day of Adams’ term. Article III of the Constitution assigns the Supreme Court original jurisdiction in a few small categories of cases (such as those involving ambassadors, for example). The Constitution says that the high court will hear appeals in other categories of federal cases “with such exceptions, and under such regulations as the Congress shall make.” In the Judiciary Act of 1789, Congress availed itself of that language about exceptions and assigned the Supreme Court original jurisdiction over cases in which a plaintiff is trying to get the court to order a federal official to do something like, in this case, order Secretary of State Madison to give Marbury his commission. After hearing the case, Chief Justice Marshall devised a clever -- or diabolical or possibly diabolically clever -- solution to his dilemma. He ruled that Marbury was right and should have received his commission. But Marshall’s landmark decision also ruled the Supreme Court could not order Madison to give Marbury’s appointment because Congress, in passing the Judiciary Act of 1789, had exceeded its constitutional authority by assigning the Supreme Court to hear cases like Marbury’s because the Constitution sets out the limited kinds of cases in which the Supreme Court holds original jurisdiction. Now that constitutional language, mentioned above, does empower Congress to make exceptions to the Supreme Court’s role as a trial court. If, in the spirit of Chief Justice John Roberts’ recent ruling on the health care law, Marshall believed that it was his duty to show deference to the elected branches and find a statute constitutional if there was any way to do so, he had plenty of ways to do so. But no, Marshall concluded that the constitutional language didn’t mean Congress could give the Supreme Court jurisdiction over the Marbury case. So Marshall ruled that Marbury deserved to get his commission, but the Supreme Court couldn’t order Madison to give it to him because Congress had violated the Constitution when it assigned additional jurisdiction to the Supreme Court. That portion of the 1789 law was the first ever to be struck down as unconstitutional and that aspect of Marshall’s ruling established or discovered or invented the power of judicial review. Was it unconstitutional? In my haste to introduce Chief Justice Marshall above, I neglected to tell you one important fact of his biography. In 1788, at the tender age of 33, already a minor war hero (who served under Gen. George Washington at Valley Forge), already a member of the Virginia Legislature, Marshall was chosen to serve on the Virginia ratifying convention that ultimately, and narrowly, voted to accept the draft of the Constitution. I mention this because to strict “textualists” like today’s Associate Justice Antonin Scalia, the quest for the “original meaning” of the words in the Constitution is not limited to the meaning intended by those who wrote it, but the meaning as understood by those who ratified it and even by those who voted for those who ratified it. As a member of the Virginia ratifying convention, Marshall’s “understanding” of what the words in the Constitution meant would be of above-average importance. Still, there are some serious problems with Marshall as the explicator of the original understanding of the 1789 law that he struck down. For example… MinnPost illustration by Jaime AndersonHow about this: The act that was adopted in 1789 – by the very first Congress – was signed into law by President Washington, who had presided over the Constitutional Convention itself and who had taken the constitutionally prescribed oath to “preserve, protect and defend the Constitution,” but who had nonetheless signed a law that was (according to Marshall) unconstitutional. And this: That first Congress included 13 members who had also been delegates to the Constitutional Convention, all of whom appear to have supported the 1789 law that Marshall ruled unconstitutional. In fact, the Senate sponsor of the law, Oliver Ellsworth of Connecticut, had not only been an influential member of the Constitutional Convention but had then been Washington’s nominee as chief justice of the Supreme Court, where he had served a few years and retired, creating the vacancy that President Adams had filled with John Marshall. And if you can stand it: Among those joining Marshall’s unanimous opinion that the Judiciary Act violated the Constitution was William Paterson of New Jersey, who had been a member of the Philadelphia Convention in 1787 that wrote the Constitution, then a member of the first Senate in 1789 when it passed the Judiciary Act, which Paterson supported, then an associate justice of the Supreme Court who concurred with Marshall in 1803 that the law (for which he had voted) violated the Constitution (which he had helped draft). But I’ve been saving this for last: (By rights I should have disclosed this several paragraphs ago but I saved it for the big finish.) The reason Madison was the named defendant in Marbury v. Madison is that in those days the secretary of state was in charge of the paperwork for appointments like Marbury’s. So it was the secretary of state in the last days of the Adams Administration who had failed to get Marbury’s commission out the door in time, which gave rise to the whole lawsuit. And that secretary of state was John Marshall. Yes, same John Marshall. In fact, Marshall had been sworn in as chief justice of the Supreme Court and still hadn’t resigned as secretary of state on the last day of the Adams presidency, which is weird enough on its own, but also means that, in his new capacity as chief justice, Marshall was sitting in judgment of his own failure, in his former capacity as secretary of state, to complete Marbury’s appointment. Nowadays, we would call that a conflict of interest requiring Justice Marshall to recuse himself from presiding over the case in which Secretary Marshall played such a large role. Other than to Marbury (whose home in Georgetown, by the way, is now the Ukrainian Embassy to the United States), the question of his justice of the peaceship is relatively unimportant to history. And given the totality of the circumstances described, I think it is reasonable to suspect that Marshall wasn’t exactly calling them as he saw them but rather trying to find a way out of his dilemma while aggrandizing the power of the judicial branch by establishing the doctrine which has come to be called “judicial supremacy,” which means mostly that in deciding issues of the proper meaning of the Constitution, the ruling of the Supreme Court is the final word. If Marshall had ordered Jefferson and Madison to hand over Marbury’s commission, they would almost certainly have defied him, or even ignored him, which would have been a serious blow to the court’s prestige. By giving Jefferson no orders to defy, he seems to have accomplished both purposes and may have succeeded beyond his wildest hopes. In a way, it creates a weird link to the case with which I started the previous installment, the Watergate tapes case. If President Richard Nixon thought he had the option of defying the court and destroying the Watergate tapes, he might well have done so. But two centuries after Marbury, such defiance of a Supreme Court ruling seemed almost unthinkable. This installment has run on too long. But after all the disrespect I have displayed for Chief Justice Marshall’s conduct in this matter, I will begin the next installment with the famous, elegant statement he made in his Marbury ruling explaining the rationale for the power of judicial review.
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#9. To: SOSO (#0)
Bigger Picture: America was then a young, fragile nation, sandwiched on the American continent between lands belonging to the three great Western European power: Britain to the North, France to the West, and Spain to the South in Florida and Cuba. France had gone into revolution, Europe had attacked France...and lost badly. The French Revolution had surged to the Rhine and beyond. Bonaparte had destroyed the Austrians in Italy. The Revolution was on the march against the old monarchic order, and was winning everywhere. And there was America, brought into being by French help, and itself Revolutionary. There was tremendous ideological affinity with France, and the remembrance of France as the ally against Britain, the enemy (and the British were arming the Indians on the frontier too). On the other hand, the monied classes and Federalists were very enamoured of the British and things British, and emotionally favored the British. So, there were two hostile ideological camps forming in America, one pro- British, and one pro-French Revolution. These factions each urged America to move away from neutrality, to favor their favorite side. And agents from both France and Britain were agitating in America for precisely that result. Hence the Alien and Sedition Acts. Yes, there was a domestic political component to them certainly, but the broader context was the trans- Atlantic wars of the French Revolution. Jefferson was pro-French, which certainly aided in the project of purchasing Louisiana from Napoleon. But Jefferson, too, saw the weakness of America and the dangers to America of getting entangled in European war. It fell to Madison's Presidency for the animal spirits in the country to whip up a war and declare it on Britain in the very year that Napoleon surged into Russia. The War of 1812 did not go well for the Americans, although objectively the Americans made huge territorial gains and secured their position, so in completely material terms, it was a major victory. But it didn't FEEL like a victory because of all of the disasters of American arms against the British in Canada and the Great lakes, having Washington burnt, etc. The big losers were the British Indian allies, who were crushed and the land area where Americans could settle was doubled. Also, Andrew Jackson's occupation of Spanish Florida effectively caused it to become American, after a treaty ratified the fait accompli. Canada was a fiasco, to be sure. The war ended because the British mercantile exchanges and traders were falling apart due to the loss of Yankee shipping. As soon as a face-saving way could be found to end it, both sides were eager too. The Americans won a lot, but the British didn't really lose anything other than their Indian allies. And the Americans were certainly badly chastened and had their bell rung. All in all, Jefferson and Adams both were smart to keep the US out of the wars up to that point. Went Madison risked war, he risked the future of the USA. Alien and Sedition Acts were unpopular, but the alternative was to let the British and French passions run amok in America, to have America become a party to the wars of the French Revolution, with all of the incalculable risks that would have entailed.
Who told you that? It went very well for New England yankees who continued to trade with Great Britain and prospered greatly. And it turned out very well for the rest of the United States because without that war, the 'Original Six' would have rotted on the ways, 'Preble's boys' would never have commanded them, American frigates would not have wreaked havoc on the most powerful navy in the world (to the point where English captains were told not to engage American frigates unless they had at least a two to one advantage) and America would not have established itself as a world power. And, of course, the Treaty of Ghent put the ol' kibosh on British ambitions of controlling Detroit, Mackinac Island and the Ohio Valley. I think it worked out pretty well, all things considered, and Americans at the time (even many yankees) agreed.
Who told you that? It went very well for New England yankees who continued to trade with Great Britain and prospered greatly. And it turned out very well for the rest of the United States because without that war, the 'Original Six' would have rotted on the ways, 'Preble's boys' would never have commanded them, American frigates would not have wreaked havoc on the most powerful navy in the world (to the point where English captains were told not to engage American frigates unless they had at least a two to one advantage) and America would not have established itself as a world power. And, of course, the Treaty of Ghent put the ol' kibosh on British ambitions of controlling Detroit, Mackinac Island and the Ohio Valley. I think it worked out pretty well, all things considered, and Americans at the time (even many yankees) agreed. In the War of 1812, the US tried to invade Canada, and the result was a disaster. Detroit fell to the British without a shot being fired. The Americans won a few small sea battles, but ended up either losing their ships to capture or having them bottled up in port. The British occupied the US capital and burnt the White House. The victories of the war consisted of the Americans winning BACK territory they had lost to the British, but the key territorial objective of the war: seizing Canada, ended in abject failure and losses so deep that the Americans took the next 2 1/2 years to climb back out of the hole they dug for themselves. The Americans declared war on the British, were immediately defeated on the main front, and spent the rest of the war fighting back to the starting line. That's not much of a victory. The big victory was over the Indians. They allied with the British, of course, and were smashed, doubling the size of US territory open to settlement. Those territories were nominally American, but were not in fact open to settlement because of large numbers of hostile, British-armed Indians. The war cleaned all that up and opened it. The potential territorial losses to the USA were real. The loss of Detroit meant the loss of Michigan. The Battle of Lake Erie was a near run thing. Had Perry lost it, the British would have controlled the Upper Great Lakes, and Michigan would be part of Canada.
Detroit fell to the British without a shot being fired. Neither was a disaster nor had any lasting effects. As for being bottled up, Constellation required three ships of the line and several frigates to be kept in jail. The frigate Constitution (defeating British frigates HMS Guerriere and HMS Java, as well as a couple of schooners) roamed the Atlantic at will. The United States defeated the HMS Macedonian and made. Chesapeake was a bad luck ship, starting with the Leopard affair a few years earlier and ending with her capture by HMS Shannon. Congress stayed at sea throughout the war but captured few enemy merchant ships. President was a fairly successful commerce raider throughout the war and of course, savaged HMS Little Belt. And while not one of the Original Six, Essex (under the command of David Porter) harrassed, captured and/or sank dozens of British whalers in the Pacific until her capture in 1814 or so. That the nascent American Navy could fight the mightiest navy to standstill was a remarkable feat and was recognized as such at the time. The Treaty of Ghent basically affirmed the status quo of antebellum British-American relations except that America was now a world power, Britain ceased to have designs on Detroit, the Ohio Valley and Mississippi River and impressment largely ended. The War of 1812 made clear to the world that America was to be reckoned with as a world power. The British occupied the US capital and burnt the White House. No, they didn't. They burned a lot of it but didn't occupy it so much as vandalized it as they were passing through. And they burned the President's residence. It wasn't white or called the White House until it was repaired or/rebuilt, iirc. At least, that's the way I heard it.
The lasting effect was that the US failed to capture Canada, and Canada went on to become an independent nation and a major power. Canadian influence on America after the War of 1812 was most keenly felt during the slavery period. As the northern terminus of the Underground Railroad, Canada served as a beacon of freedom for escaping American slaves. If they could make it to British territory, they would be free. After the Fugitive Slave Act began to be enforced in the North, the urgency to get out of the United States and into Canada became ever more acute. Probably 50,000 people made it out of America into Canada, about 1.5% of the total slave population. Tensions with Canada during that period were high. Had the British come in on the Confederate side during the Civil War, they would have opened a second front on the Union, from the North. But of course it was the very fact of slavery's legality in America and abolition in the British Empire, and Canada's role as the land of freedom for escaped slaves that made it unlikely the British would ever actually intervene on the Confederate side. The naval successes of the American frigates were remarkable, but let's not exaggerate: the US frigates did some mischief, and sunk some small British ships. They could not engage British Ships-of-the-Line. By the end of the war, of the original 6 capital ships of the American Navy, two had been captured, and one was out of action, and two were blockaded in port. Two got free, but were limited to raiding commerce. The Americans lost a total of 500 merchant ships to the British during the war. The British lost about 1250 to the Americans. Privateering hurt both sides. Still, the Americans lost 1/3 of their naval strength to the British. British losses were less than 1% of their forces, and by the end of the war, the American coast was blockaded and the American economy was falling apart. Had the war continued, things were not going to get better for the Americans. Napoleon abdicated for the first time in 1814, and for good in 1815. Now the British were free of any threat of European war, and could have concentrated the might of their fleet, AND Wellington's army, on the United States. The New England colonies were moving towards secession by the end of the War of 1812, because the war had been so devastating for them. With France at peace with England and the English able to concentrate their full European might, built up from the European war with Napoleon, on the USA, the American strategic situation did not look good at all. The war ended when it needed to for the Americans, before the British had brought their concentrated forces to bear. Remember, in the American Revolution, the British were also at war with France, Spain and Holland. By 1815, the British were at war with nobody but America, and the British had the full strength army and fleet built up from the war with Napoleon. America needed peace, and Britain wanted it. So peace came. Still, the Americans - the thinking ones anyway - knew how very close the US had come to disaster in the war.
I did not intend the focus of this thread to spill over into 1812 but that's the nature of forums. But it's a good thing. Well, boys and girls, isn't this intersting. We have disagreement about historical events that happened just a mere 200 years ago. Events that happened in our native land, involving native peoples and recorded and reported upon in our native language. Whodathunkit? It might be instructive, if not fun, to compare the historic accounts of events as contemporaneoulsy was being reported and written about by participants in the events and observers from American, British, Canadian, and, even French sources. I am willing to take bets that we would get significantly different accounts of the same historic event, certainly with respect to the significance of what happen and what that would mean for the future. Perhaps we need to convene a Council of Saskatoon?
Is that Iroquois or Apache?
#33. To: redleghunter (#32)
American and the Queen's English.
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