Whenever SCOTUS rules, as it did in predictably protecting the status quo of the business world in the Aereo case, or in passing judgment on President Obama’s recess appointment, I am mindful of how it has no right of judicial review in the words of the Constitution, except for the fact that it simply assumed that role without justification.
The Supreme Court‚Äôs power to interpret the Constitution stems from an exceedingly liberal reading of the document. It was simply made up, having no basis in the Constitution‚Äôs words.
Today, we take it for granted that the Supreme Court can strike down laws that it deems unconstitutional, or interpret their adaption as it sees fit. But that was not considered legally possible until more than a decade after the Constitution‚Äôs adoption, when a Virginia frontiersman invented a new role for the judiciary.
‚ÄúIt is, emphatically, the province and duty of the judicial department to say what the law is,‚ÄĚ wrote Chief Justice John Marshall in Marbury vs. Madison, an 1803 Supreme Court opinion that forever changed American constitutional law.
Marshall, a western Virginia woodsman and Revolutionary War hero, had persuaded his fellow justices to declare a federal law unconstitutional, even though the Constitution specifically gave that power to no one.
In assuming a right to decide what the Constitution means, Marshall, then 48, created a legal principle that reached well beyond his 34 years at the helm of the Supreme Court. His work underlies momentous rulings issued generations later, for good or ill.
‚ÄúMarshall had the wit and courage to make the most of his opportunity,‚ÄĚ said former Chief Justice Warren Burger in a London speech in 1972. ‚ÄúHe was the Great Chief Justice on our side of the Atlantic. How could there have been a greater one?‚ÄĚ
It was during his Revolutionary War years that Marshall saw a need for strong central government, a lesson he remembered on the court as he engineered ways to strengthen federal powers.
At age 21, Marshall served with Gen. George Washington during the miserable winter at Valley Forge, when the loosely knit Colonies nearly bungled their bid for independence. Even though clothing, food and ammunition were plentiful, the lack of centralized authority kept the supplies from reaching the soldiers.
Seeing this handicap led Marshall later to write an opinion expanding the power of the federal government to control transportation networks.
Marshall‚Äôs career as a leading federalist began soon after the war. He debated Patrick Henry, the most eloquent anti-federalist, in favor of ratifying the proposed Constitution.
Washington offered him several jobs in the new government, including those of attorney general and minister to France. Marshall declined in favor of making money to compensate for his family‚Äôs losses in the war.
He spent only two months in law school, but his natural skills as a tactician and an incisive speaker made him one of the country‚Äôs highest-paid lawyers, earning more than $5,000 a year. Not intrigued by the philosophical debates of his more educated contemporaries, he preferred the thrill of arguing real cases.
Even so, a few potential clients were put off by Marshall‚Äôs eccentricity. Shunning the powdered wig and satin breeches favored by most lawyers, Marshall wore plain linen clothes and bundled his hair in a ponytail. A bit absent-minded, he sometimes misplaced important court documents, and his eyes wandered during conversations that bored him.
Marshall‚Äôs financial success eventually allowed him the luxury of public office. After stints in the Virginia Legislature and the U.S. Congress, he became minister to France under President John Adams.
As Adams prepared to leave office, the post of chief justice became vacant for the fourth time in 12 years. The Supreme Court was not considered a very important branch of government in its early days, and few were interested in serving on it.
Adams knew that this time he needed a strong federalist in the job ‚ÄĒ someone devoted to a strong central government. Thomas Jefferson was taking over the presidency, and as a staunch anti-federalist he could be expected to weaken much of the federal power gained by Washington and Adams (although he turned out to be far more friendly to power once he had some).
Adams turned to Marshall. In his third year of office the new chief justice entered a showdown with Jefferson in Marbury vs. Madison. Although Marshall‚Äôs invention of the court‚Äôs right to interpret the Constitution escaped immediate notice by the press and public, Jefferson was enraged.
Jefferson warned that letting the court decide what the Constitution means would make the document ‚Äúa mere thing of wax in the hands of the justices.‚ÄĚ He believed that each branch of government ‚Äúhas an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.‚ÄĚ
With the Marbury decision, Marshall began the practice of issuing written opinions. During his next three decades on the court, he often pleased the federalists by using interpretation to expand many powers granted to the federal government under the Constitution.
The jurist‚Äôs immeasurable contribution to federalism led Adams to call his appointment of Marshall ‚Äúthe pride of my life.‚ÄĚ