Madison's Music (37 page)

12
. Circuit riding was limited in 1869 and abolished in 1891. Act of April 10, 1869, 16 Stat. 44; Act of March 3, 1891, 26 Stat. 826. The appellate courts were restructured in 1887–88, 1891, 1911, and 1925. Act of March 3, 1887, 24 Stat. 552, corrected by Act of Aug. 13, 1888, 25 Stat. 433; Act of March 3, 1911, 36 Stat. 1087 (formally abolishing mixed circuit courts); Act of February 13, 1925, 43 Stat. 936 (providing for discretionary review by Supreme Court). Federal question jurisdiction was granted in 1875. Act of March 3, 1875, Section 1, 18 Stat. 470.

13
. Commissions were written records of appointment, signed and sealed by
the appointing officer. In 1801, it was unclear whether receipt of a commission was merely a record of appointment or constituted an integral part of the appointment itself. The botched effort to nominate Ray Greene as a district judge is discussed in Edward A. Hartnett, “Recess Appointments of Article III Judges: Three Constitutional Questions,”
Cardozo Law Review
26, no. 2 (2005): 377 at n66 and relevant text. See also Hiller B. Zobel, “Those Honorable Courts—Early Days on the First First Circuit,”
Federal Register Digest
73 (1977): 511, 522.

14
. Just before New Year's Day 1803, Senator Ellery was the subject of a brutal caning and physical assault by John Rutledge, a Federalist congressman from South Carolina and the son of Justice John Rutledge, who had attempted suicide when his nomination as chief justice was rejected. I guess madness ran in the family.

15
. Given Marshall's insistence in
Marbury
that delivery of the commission was not required to complete the judicial appointments process (5 U.S. at 157–59), it is unclear why Marbury needed the commission in the first place.

16
. John Marshall later expressed regret to his brother about his failure to deliver the commissions. See
The Papers of John Marshall
, ed. Charles F. Hobbs (Chapel Hill: University of North Carolina Press, 1990), 6:90, letter dated March 18, 1801, John Marshall to James Marshall.

17
. Boisterous street demonstrations had greeted Jefferson's election on February 17, 1801. A large crowd marched through Georgetown demanding that houses be illuminated to celebrate Jefferson's victory. Marbury adamantly declined to illuminate his house.

18
. Marbury's nomination on March 2, 1801, as one of twenty-three JP nominees for Washington County is recorded in the
Senate Executive Journal
, March 2, 1801, at 388, reprinted in Martin P. Claussen, ed.,
Journal of the Senate
(1977), vol. 5, p. 198. Poor Marbury. They couldn't even spell his name right on the nomination papers. He's listed as William Marberry.

19
. For a detailed account of Marbury's life, political background, and history of financial speculation, see David Forte, “Marbury's Travails: Federalist Politics and William Marbury's Appointment as Justice of the Peace,”
Catholic University Law Review
45 (1996): 349 (hereafter “Marbury's Travails”). In addition to fitting the mold of financial speculator (a Jefferson bête noire), Marbury had actively but unsuccessfully sought to change Maryland's electoral college voting procedure to a winner-take-all system in order to deny Jefferson any Maryland electoral votes. Because a swing of five electoral votes was involved, had Marbury succeeded, Adams would have won the election 70–68. The unsuccessful effort to alter Maryland's system is recounted in “Marbury's Travails” at 395–97. As David Forte notes at 402, “. . . Marbury must have been one of the easiest cuts for Jefferson to make.” It was not the only cut aimed at Marbury. On July 9, 1801, in the wake of substantial cost overruns at the Washington Navy Yard, Jefferson's secretary of war dismissed Marbury as naval agent. “Marbury's Travails” at 385.

20
. Ramsay, Hooe, and Harper had been appointed to serve in Alexandria County. Marbury was to serve in Washington County. Ramsay had been one of the six army comrades to serve as honorary pallbearers at Washington's funeral. Harper had wintered at Valley Forge and had commanded an artillery company at
Washington's funeral. When off duty, he fathered twenty-nine children. Hooe was a successful real estate speculator and former sheriff of Fairfax County.

21
.
Stuart v. Laird
, 5 U.S. 299 (1803).

22
. See ibid. Marshall sat as the circuit judge in
Stuart
, rejecting the constitutional arguments. He recused himself on appeal to the full Court. Marshall's lower court ruling is not officially reported, but is described in the headnotes to
Stuart v. Laird
at p. 302.

23
. Presumably, that is why only three of the original four petitioners in
Marbury
presented their claims to the Court. By that time, Harper had dropped out.

24
. Levi Lincoln would eventually testify that he never turned the commissions in
Marbury
over to Madison.

25
. Justices Cushing and Moore were absent.

26
.
United States v. Nixon
, 418 U.S. 683 (1974).

27
. The Court record indicates that “on a subsequent day, and before the Court had given an opinion” Lee offered the Hazen Kimball affidavit as proof of the Marbury commission. The record does not indicate whether the untimely affidavit was accepted. 1 Cranch 137, 146. Kimball was never formally examined. 1 Cranch 153.

28
. One assumes that Marshall, a stickler for fair procedure, would have provided an opportunity to challenge the untimely Kimball affidavit if the Court were inclined to rely on it. The recitation of the Kimball affidavit in
Marbury
occurs solely in the introductory material prepared by William Cranch in his capacity as court reporter, not in Marshall's opinion itself.

29
. 5 U.S. 154–55.

30
. 5 U.S. at 163–73.

31
. Ibid., 173–81.

32
. See Richard H. Fallon Jr., “Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension,”
California Law Review
91, no. 1 (2003): 1, 52, finding it “highly doubtful” that the D.C. Circuit would have asserted authority to issue a writ of mandamus in 1803.

33
. 5 U.S. at 167–68.

34
. Even the historic standard-bearers for parliamentary supremacy—Great Britain and France—have adopted a form of judicial review. See Human Rights Act of 1998 (1998, c. 42), subjecting British courts to review by European Court of Human Rights, and Organic Law 2009-1523 (December 10, 2009), establishing expanded procedure for presentation of constitutional claims to the French Conseil Constitutionnel. Virtually every democracy established since the end of World War II has adopted a variant of judicial review, usually involving a specialized court with the authority to enforce the constitution against the political branches. My informal, unscientific survey reveals fifty-eight constitutional courts, although I do not warrant the efficacy of them all.

35
. See
Cooper v. Aaron
, 358 U.S.1, 18 (1958), quoting
Marbury
at 5 U.S. at 177.

36
.
National Federation of Independent Businesses v. Sibelius,
132 S. Ct. 2566 (2012).

37
. Antonin Scalia, “The Rule of Law as a Law of Rules,”
University of Chicago Law Review
56 (1989): 1175.

38
. See generally Antonin Scalia,
A Matter of Interpretation: Federal Courts and the Law
, ed. Amy Gutman (Princeton, NJ: Princeton University Press, 1999), an essay by Antonin Scalia with commentary by Amy Gutman, Gordon S. Wood, Laurence H. Tribe, and Ronald Dworkin.

39
. Nor does it provide a guide to reading religious texts. Beware of fundamentalists of any faith claiming to speak directly to god through a literal reading of religious texts composed many centuries ago. See Laurence Wood,
Theology as History and Hermeneutics: A Post-Critical Conversation with Contemporary Theology
(Lexington, KY: Emeth, 2005). As I've suggested,
infra
, literalism isn't much good in reading poetry, either.

40
. Jefferson was in Paris as ambassador to France during much of the drafting of the Constitution. He commented on every stage of the proceedings, using his special relationship with Madison to learn about events and seek to influence them. Hamilton was a delegate to the Constitutional Convention, but often seemed curiously uninterested in the process.

41
. Stephen Breyer,
Active Liberty: Interpreting Our Democratic Constitution
(New York: Oxford University Press, 2006).

42
.
Brown v. Board of Education
, 347 U.S. 483 (1954).

43
.
Prigg v. Pennsylvania
, 41 U.S. 539 (1842).

44
. Article IV, section 2, clause 3 of the Constitution (the Fugitive Slave Clause) provides:

           
No person held to Service or Labour in one state, under the Laws thereof, escaping into another shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

           
The moral cowards didn't even have the courage to use the word
slavery
.

45
.
Plessy v. Ferguson
, 163 U.S. 537 (1896).

46
.
Giles v. Harris
, 189 U.S. 475 (1903).

47
. See Mark Curriden and Leroy Phillips Jr.,
Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism
(New York: Anchor, 2001).

48
.
Santa Clara County v. S. Pac. RR Co.,
118 U.S. 394 (1886).

49
.
Smyth v. Ames
, 169 U.S. 466 (1898).

50
.
Adair v. United States,
208 U.S. 161 (1908).

51
.
Hammer v. Dagenhart
, 247 U.S. 251 (1918);
Lochner v. New York
, 198 U.S. 45 (1905).

52
.
Schechter Poultry Corp. v. United States
, 295 U.S. 495 (1935);
Carter v. Carter Coal Co.
, 298 U.S. 238 (1936).

53
.
NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937).

54
.
Korematsu v. United States
, 323 U.S. 214 (1944).

55
.
Roe v. Wade
, 410 U.S. 113 (1973).

56
.
Planned Parenthood v. Casey
, 505 U.S. 833 (1992);
Gonzales v. Carhart
, 550 U.S. 124 (2007).

57
.
Regents of Univ. of California v. Bakke
, 438 U.S. 265 (1978).

58
.
Schuette v. Coalition to Defend Affirmative Action
, 134 S. Ct. 1623 (2014).

59
.
Sherbert v. Verner
, 374 U.S. 398 (1963).

60
.
Employment Division v. Smith
, 494 U.S. 872 (1990).

61
.
Lemon v. Kurtzman
, 403 U.S. 602 (1971).

62
.
Zelman v. Simmons-Harris
, 536 U.S. 639 (2002).

63
.
Brandenburg v. Ohio
, 395 U.S. 444 (1969).

64
.
Garcetti v. Ceballos
, 543 U.S. 1186 (2005).

65
.
Mapp v. Ohio
, 367 U.S. 643 (1961);
Miranda v. Arizona
, 384 U.S. 436 (1966).

66
.
United States v. Leon
, 468 U.S. 897 (1984).

67
.
Buckley v. Valeo
, 424 U.S. 1 (1976).

68
.
Citizens United v. FEC
, 130 S. Ct. 876 (2010).

69
.
District of Columbia v. Heller
, 554 U.S. 570 (2008).

70
.
Heart of Atlanta Motel v. United States
, 379 U.S. 241 (1964).

71
.
United States v. Morrison
, 529 U.S. 598 (2000).

72
.
Cooper v. Aaron
, 358 U.S. 1 (1958);
United States v. Nixon
, 418 U.S. 683 (1974);
City of Boerne v. Flores
, 521 U.S. 507 (1997);
Boumediene v. Bush
, 533 U.S. 723 (2008).

73
.
United States v. Husdon & Goodwin
, 11 U.S. (7 Cranch) 32 (1812).

74
.
Garrison v. Louisiana
, 379 U.S. 64 (1964).

75
.
Ex parte Merryman
, 17 F. Cas. 144 (C.C.D.Md. 1861).

76
. In 1863, faced with widespread rioting over military conscription, Congress finally authorized Lincoln to suspend habeas corpus throughout the United States, in effect placing the entire nation under potential military rule.

77
.
Ex parte Vallandingham
, 68 U.S. 243 (1863).

78
. At least Lincoln didn't carry a grudge. In 1864, Vallandingham returned to the United States and attended the Democratic Party's National Convention in Chicago. He wrote the party's “peace plank” opposing the continuation of the Civil War.

79
.
Ex parte Milligan
, 71 U.S. 2 (1866).