The Story of America: Marbury v. Madison and the Power of the Court [Ep. 17]

Speaker 1 (00:09):
This is Lee Habeeb and this is our American Stories,
the show where America is the star and the American people.
Up next, another installment in our series about Us, the
Story of America series with Hillsdale College professor and author
of the terrific book Land of Hope. We’re talking about
Bill McLay. The election of eighteen hundred was one of

(00:33):
many closely contested elections in American history, and it ended
with Thomas Jefferson in the White House. Let’s get into
the story. Here’s McLay.

Speaker 2 (00:46):
When Jefferson was finally inaugurated, was not in New York City,
it was not in Philadelphia.

Speaker 3 (00:54):
It was Washington, d C.

Speaker 2 (00:59):
I’m small town, more like a village than anything, although
built according to a great plan by the French architect
and planner of Pierre Lafant.

Speaker 3 (01:12):
So Jefferson assumes the presidency.

Speaker 2 (01:15):
And remember Washington is laid down a marker about what
a president should be like. Adams more or less tried
to follow as best he could. Jefferson dropped that his
style was different. It was more informal, almost casual at times.

(01:36):
Being a person of Republican sensibility, he did not want
to exude the aura of a king.

Speaker 3 (01:45):
He wanted to be a man among common men.

Speaker 2 (01:50):
There were no fancy carriages drawn by teams of fancy horses, as.

Speaker 3 (01:55):
Washington had insisted on.

Speaker 2 (01:57):
Instead, Jefferson walked to the capital on the day of
his inauguration. But one should be careful taking symbols for
being identical to the things they symbolize. And actually Jefferson
was a party man. He used the executive office to

(02:22):
advance the interests of his party in a way that
neither of his two predecessors had done.

Speaker 3 (02:28):
Certainly not to the same degree.

Speaker 2 (02:30):
John Adams did to do some of it, but not
as well, not as efficiently and effectively as Jefferson did.
He established Republican dominance in the legislature, He appointed his
people to the cabinet. He managed to make what had

(02:51):
been a Federalist government into a Republican dominated one, and
in fact, thanks to Jefferson’s efforts, would only be a
few years later that the Federalist Party would disappear completely.
So there’s one area though, where Jefferson was not as effective.

Speaker 3 (03:11):
The Federalists kept hanging on to one part of the
national government, the judiciary.

Speaker 2 (03:21):
This was sort of symbolically appropriate because Jefferson hated judges.

Speaker 3 (03:26):
Why well, think about it.

Speaker 2 (03:28):
What is the least democratic institution in the government, What
branch is the least answerable to public sentiments? Representatives and
even senators. Presidents too, can be voted out of office.

Speaker 3 (03:43):
But you can’t do that with the Supreme Court.

Speaker 2 (03:46):
You can yowl and scream and jump up and down
and curse and otherwise fulminate against the Supreme Court. You
can demand impeachment of justices. That is a workable constitutional option,
but this is just.

Speaker 3 (04:01):
About the only one.

Speaker 2 (04:03):
Otherwise there shielded from public opinion, the shield from the
vagaries of public sentiment. So Jefferson didn’t like them. He
thought the government should be answerable to the people. Jefferson
even thought there ought to be revolutions periodically, and the

(04:26):
Constitution should be rewritten, should be replaced. He didn’t like
the idea of venerating the Constitution like it was the
arc of the Covenant, as he sometimes said, it was
a document that represented popular sentiment at a particular moment,
but not to be venerated beyond that. He had a

(04:47):
rather low view in that sense of the Constitution, which,
by the way, he had no role in drafting.

Speaker 3 (04:52):
Not coincidentally.

Speaker 2 (04:54):
So Jefferson didn’t like judges, distrusted judges. He was infuriating
with Adams when in his last days in office, Adams
appointed a Federalist named John Marshall to be Chief Justice
of the Supreme Court, and Adams managed to get through
the Congress the Judiciary Act, which greatly strengthened the Federalist

(05:20):
control over the judiciary. These are familiar things, presidents giving pardons,
shoving through last minute legislation before the ends of their terms.
It’s not new. It’s been going on all along. So
who was John Marshall, this new Chief Justice? What was

(05:42):
his experience being a judge?

Speaker 3 (05:46):
Well, he had almost no experience.

Speaker 2 (05:49):
He was a relative of Jefferson what he did not like,
and he was coming into a place where the constitutional
guidelines were not clear.

Speaker 3 (06:01):
What was the role of the Supreme Court.

Speaker 2 (06:03):
The Constitution specifies that there is to be a Supreme Court,
doesn’t really say what it does. But in any event,
there needed to be someone, some enforcer of free speech,
of the Bill of Rights, something to serve as a
check on other branches of the government. And this is
where we come to what was probably the most consequential

(06:27):
decision rendered by Marshall’s court, and this is a case
called Marbury versus Madison, and Marbury versus Madisine creates the
doctrine of judicial review that the Serene Court has the
power and responsibility to declare acts of Congress and constitutional,
although it can’t just do it out of the blue.

(06:48):
It’s an appellate court. It’s an appeal has to be
brought to the court that the Court can rule on.

Speaker 3 (06:55):
That’s what Marbary versus Madison was.

Speaker 2 (06:57):
It was a case, extremely clever example of Marshall’s judicial
brilliance that it created the basis for judicial review. I
need to give a little background about this case. It’s complicated.

Speaker 1 (07:15):
When we come back more of the story of Marbury
versus Madison here on our American Stories, leeh Habib Here,
as we approach our nation’s two hundred and fiftieth anniversary,
I’d like to remind you that all the history stories

(07:35):
you hear on this show are brought to you by
the great folks at Hillsdale College. And Hillsdale isn’t just
a great school for your kids or grandkids to attend,
but for you as well. Go to Hillsdale dot edu
to find out about their terrific free online courses. Their
series on communism is one of the finest I’ve ever seen. Again,
go to Hillsdale dot edu and sign up for their

(07:56):
free and terrific online courses. And we returned to our
American stories and our series about us, the Story of
America series. When we last left off, we found out

(08:17):
that Jefferson completely recreated the federal government, not only in
his image, not only with his values, but his parties
image and values, except for one branch, the judiciary, that
would set up a massive fight over an undelivered letter.
Let’s return to the story.

Speaker 2 (08:42):
Okay, Adam’s appoints John Marshall, a distant cousin of Jefferson,
and we did disliked Chief Justice. And then Adams passes,
has Congress passed the Judiciary activates, you know, one which
creates six new federal circuit courts. There’s nothing of constitution.

Speaker 3 (08:59):
About this, and he staffed them.

Speaker 2 (09:01):
All with federalists, from the judges down to the clerks
one percent federalists.

Speaker 3 (09:09):
It’s a very crafty move, mister Adams.

Speaker 2 (09:12):
He was looking at creating a federalist stronghold for years
to come. Here’s what happens. Jefferson discovered that some of
the this is crafty politicians all the way down. Jefferson
discovered that Adams these appointments to the circuit courts had
not always gone through, that the documents appointing Justices of

(09:36):
the Peace in the District of Columbia had not been
mailed out by accidents. They’d been signed by Adams, but
Jefferson held on to them. He stopped delivery of the
appointments themselves. In response to that, one of the appointees,
named William Marbury, sued for a court order that would

(09:58):
demand that Madison, who was Jefferson’s Secretary of State, would
deliver Marbury’s commission. This logical, So what does Marshall do
this comes before the Supreme Court.

Speaker 3 (10:13):
He’s got a dilemma.

Speaker 2 (10:15):
If he refused to issue the order, it would avoid
a collision with the new administration, but it would appear
he was giving in to Jefferson, and that would set
a bad precedent.

Speaker 3 (10:27):
It would undermine the separation of powers.

Speaker 2 (10:30):
It would also deprive the judiciary of another federalist judge
on a technicality.

Speaker 3 (10:35):
But what if.

Speaker 2 (10:37):
Marshall had agreed to issue the order to grant Marbury’s commission,
what would happen to? Jefferson ignored him. The country was
very sour towards the Federalists at this point. This would
be a disaster for the Court because it would advertise the.

Speaker 3 (10:53):
Court’s lack of power.

Speaker 2 (10:56):
That too, would undermine the separation of powers. So he
had a dilemma. As I say, either way that he went,
he was looking at some very real problems, a likelihood
of damaging the institution of which he was a part.
So his strategy to deal with this was utterly ingenious. First,

(11:24):
he argued that Marburie had a right to his commission
under his reading of the Judiciary Act of seventeen eighty nine,
which set up the Federal Court system in the first place.
But the clause that Marbury invoked was unconstitutional. Congress could
not legally grant the Supreme Court the power to issue

(11:46):
ritz of ben daemus, you know, demands such as the
one they were seeking. This, in turn meant that the
law that Marbury was invoking was invalid and could not
be used. So Marbury would not be able to receive
his commission. Okay, you follow that. It’s the brilliance of

(12:10):
it might not be a parent to the average person.
It’s important to keep in mind the courts, particularly courts
of appeal, operate on the basis of precedent legal precedent.
What was done before is the basis for what’s to

(12:31):
be done now and in the future. The way I’d
like to put it is that Marshall was playing a
game of chess here and sacrificing one of his pawns,
one of his lesser, less valuable pieces, in order to
secure a more enduring victory. He sacrificed Marbury’s commission to

(12:55):
break hold of something larger. He gave up one thing
judge in exchange for a precedent. They could be used
again and again and again, because they established the independent
power of the Supreme Court to rule.

Speaker 3 (13:10):
An Act of Congress unconstitutional.

Speaker 2 (13:14):
So he gave Jefferson the outcome he wanted, the decision
he wanted, but by means of reasoning that Jefferson did
not want it at all, and there was nothing he
could do about it because the immediate result of the
decision was in line with what.

Speaker 3 (13:33):
Jefferson had wanted.

Speaker 2 (13:35):
It was the reasoning, not the result, that was more
important in the end. So Marbury versus Madison, and the
results of it are in a sense part of the Constitution,
even though they weren’t written into the Constitution. They are
part of our unwritten constitution in a sense. And we

(13:59):
have of the sense that our Constitution is a written
document which we revere. But there are all sorts of
things that have been added to it, both by way
of amendment and by way of the extension of its
provisions into areas that may not have been envisioned by

(14:23):
the framers. Some of that has been good, some of
that has not been good. I leave it up to
you to decide where you come down on one issue
or another, but we.

Speaker 3 (14:37):
Do revisit these things.

Speaker 2 (14:38):
The Constitution has an organic quality about it. It’s susceptible
of growth without abandoning its nature, without the addition of
things that are not intrinsic to it. So when people
talk about the concept of a living constitution, there’s one

(14:59):
sense in which it certainly true the Constitution is a
living thing. But in another sense, it’s living derives from
the roots that is sunk deep into the soil of
American life. You don’t want to claim for living constitutions
something that’s going to violate those roots, that’s going to
pull them up and put the entire operation into danger.

(15:24):
So that’s something that when we think about the sort
of extra constitutional character of Marv versus mad Yes it’s
extra constitutional, but it’s like the scaffolding, like the flying
buttress that holds up the building. We need it as
much as we need the things that are written in
the Constitution. And I think these debates over the role

(15:48):
of the Court are just as current today as they
were in the seventeen nineties and early eighteen hundreds, just
the way that Jefferson felt, for ideological reasons but also
political reasons, the Supreme Court shouldn’t have the power to
tell me what I can and can’t do.

Speaker 3 (16:08):
But it’s a nature of the system.

Speaker 2 (16:10):
The Constitution is not a document designed to produce harmony
and peace at all times. It’s a document that teaches
us how to fight, how to fight constructively, how to
channel our aggressions into avenues that will result in constructive
good and avoid the prospect of civil war or discord.

Speaker 3 (16:36):
And I think it still plays that role.

Speaker 2 (16:38):
I think it can play that role if we will
grant to it the power to do so. So, when
you think about the fractiousness of the politics of our
own time, think about the fact that we’ve been there
before many times.

Speaker 1 (16:57):
And a terrific job on the production, editing, and story
telling by our own Monty Montgomery himself a Hillsdale College graduate.
Special thanks to Bill McLay, author of Land of Hope
Pick it Up, pick the Young Reader’s edition up to
wherever you get your books, and Professor McLay teaches at
Hillsdale College as well. Hillsdale is the place all of

(17:18):
you should go to to study the finer things in life,
the good things in life, the beautiful things in life.
And you can go without going because they have terrific
online courses that are available for free their Constitution one
oh one series. I learned more from that class, that
online class, than I did at three years at the
University of Virginia Law School. And what a story being

(17:39):
told here, the fight over power and judicial power and
Marbury being the most important Supreme Court case ever and
we’re still arguing about the power of the courts today,
the story of Marbury v. Madison Here on our American
Stories