Charlie Rose

REMant  04/15/2009 12:30 AM Report

This is a perennial. Marbury is one of many Marshall court decisions, which further the Court Whig view of government as an alliance of monarch and people directly protected from tampering by aristocratic Tories and Real Whigs alike through the inviolability of contracts.

The Constitution says little about the third branch, and while it is possible to read into this that the Convention was afraid to, didn't have time to, or didn't know what to do and so postponed it, it is as likely that they didn't feel it all that important, and expected the courts to be as they were under the Confederation. The Judiciary Act, itself, offers some proof of this. But Gouverneur Morris, who as a member of the Committee of Style, actually drafted the final document remarked in an 1814 letter to Timothy Pickering that "Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of what related to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which expressing my own notions would not alarm others, nor shock their selflove, and to the best of my recollection, this was the only part which passed without cavil." Still it is fair to say that the absence of discussion in the Convention about the common law, is the dog that didn't bark.

The Federalists had been trying to push the govt into the British balanced or mixed mode, even before the Convention, of which the Antifederalists were well aware. But the Constitution contemplates no such govt despite all that has been written about it. The Congress is supreme, and the executive and judiciary, subordinate. This is partly because it reflects Hume's idea of a perfect commonwealth that reduced faction and influence by extent, championed by Madison and James Wilson, but mostly because it was decided that the govt was to remain federal and not consolidated.

The British constitution in contrast comprises the monarch and the courts, out of which the Houses of Parliament were the beginnings. These wrested the power to legislate from the monarch and and the statutes became an adjunct to the feudal common law. The House of Commons position was strengthened when the monarch needed money to preserve his power, and the monarch's authority became known technically as that of the King-in-Parliament. By the mid-18th c the common law included the idea of contract promoted by Lord Mansfield and the Court Whigs, who were held responsible for corruption and the creation of a plutocracy. Both Jefferson and Madison believed the attempt to retain the common law the single most obnoxious feature of the Federalist design. There was of course judicial review in the United Kingdom, but the legislature was the ultimate court of appeal there.

Thus modern monarchy was not Tory as American revolutionaries were given to call the opposition, but Court Whig, tho Hamilton was the only one to argue in the Convention that the monarchy required the sale of places, etc, to maintain power and as such would be required in an American govt to overcome the power concentrated in the states.

On the other hand, Morris, who appears most in Madison's Notes, despite having been absent the entire month of June, and was responsible for the phrase "We the People," argued strenuously, similar to Adams, for a Tory-like natural aristocracy, monarch and all, just as the colonies had earlier appealed to the king directly over the heads of Parliament. Many ppl are surprised to discover that monarchy was contemplated during the revolution, but it was, and there was even a proposal on the table to grant titles as an incentive to army service during the dark days when the Congress was forced to flee Philadephia. In the 1780's a proposal was floated to offer the country to some European noble. Adams is assailed for his flirtation with monarchy, but it was for both a matter of considering the mixed constitution the best option, and Adams considered all banks pernicious. Morris later supported the Hartford Convention move to split the country, but later came to see that extent had in fact had some salutary effect.

As Jefferson wrote Adams in 1813 natural aristocracy was, however, too often a pseudo-aristocracy based on the rule as he put it "you tickle me and I'll tickle you" and that rather than establishing them in a branch of govt by themselves, it would have been better to have made their station open to free election. But TJ was an utopian in this, as in his belief in free-trade and natural law, both of which were ridiculed by the Federalists and even some Antifederalists. The southern gentry were at heart aristocrats, and the Federalists among them later voted for Jackson.

While Marshall did not suggest that in the adoption of the Constitution citizens alienated their rights and made them into subjects in the manner absolutists had argued for a century or more, he did believe, in accordance with Whig philosophy that it had a special status while at the same time arguing for the inviolability of all contracts. Once a contract was struck, govt could not modify it even if the govt had made it. So a commission (such as the justices') or a corporate charter (such as Dartmouth's) were inviolable. He was not opposed to govt having the power initially, but only with respect to removing it once vested, and he considered this broadly. By bringing the common law regarding contracts in Federalists of Marshall's persuasion could demolish any idea of a polity, and replace it with a society made up of contracts, with respect to which monarch and legislature could have nothing to say. In so doing, they saw it as preventing tyranny and promoting liberty. It cannot tho be said to be govt of, for and by the ppl. It is telling that Morris was opposed to the impairment of contracts clause, while Jefferson thought Mansfield, Blackstone and Marshall devils incarnate.

What has become known as the "Contracts Clause" prohibiting states from abrogating them was not introduced until very late in the Convention by Rufus King, a NY Federalist. His friend Morris, however, thought it extraneous, while the middle-of-the-road Federalist Roger Sherman thought it would not reach its object, which was tied to the relief of debts believed wrongfully contracted, particularly in regard to speculations in the Revolutionary War debt, but Madison and Wilson on the other side acquiesed in it, probably because they saw it as bolstering the sound money policy addressed in three other provisions of the same clause. This view is strengthened by the fact that JM thought that a "Council of Revision" should have instead the power to negate all state laws, which it is doubtful any Court Whig would have tolerated, and that unlike other parts of this clause, it does not also apply to the Federal govt, despite that suggestion having been introduced.

In holding that govt was a sort of contract, but then not allowing it any real power, which went far beyond Locke's conception of the preservation of lives, liberties and fortunes, and ignoring his observation that the state of nature "wants a known and indifferent judge," the Court Whigs' involved a twisted and self-serving logic, as was Marshall's in Marbury. Despite the fact that Article 3 gives the Court jurisdiction in matters such as this, Marshall ruled the Judiciary Act "unconstitutional" for its inclusion of such a provision. It might be seen that he was trying to walk a fine line between Federalists and Republicans - this was also a political potboiler - but it should be noted that the decision gave a Pyrrhic victory to the latter, while retaining the plum for himself. It should have been the other way 'round. The commission should have been allowed if valid under the statute, but consideration of the Judiciary Act was either an impertinence, or should be seen as a stalking horse for the establishment of an independent legal authority not contemplated by the Constitution, and which has been nibbling away at it in one way or another ever since.