[The author of a companion book to the series is interviewed here. Early on, a couple of the taped segments of the first episode were showed, and it was a good touch. Problem is most of it involved the talking heads. Another thing is that the author notes one good thing about the shows is that we get a look at the people involved. We do learn a bit about the characters but very little on nominal parties here.]
C-SPAN, in honor of the first Monday in October (official start of the USSC term), has begun a Landmark Cases series with the first one Marbury v. Madison on this week. The first episode was largely a talking heads segment with an author of a book on the case (which I have recently read) and Prof. Akhil Amar, a popular voice on television on constitutional matters. A few "C-SPAN on the road" type segments from the homes of CJ Marshall and so forth are intermixed along with a bit of a few statements from justices and apparently other parties (here a member of Congress). And, some calls are taken.
Those who are new to the case might have found it novel but basically nothing new was introduced for me personally. Letters from Jefferson and Adams, for instance, provide an intimate flavor but I'm familiar with them -- including Jefferson telling Abigail Adams that he thought the midnight judges was personally particularly hurtful. Reading the author's book and being familiar with Prof. Amar's style (looking at things in a somewhat novel way that he sort of portrays as kind of obvious ... why didn't others see it this way? ... in an "isn't this fascinating/exciting" nerd love sort of fashion) didn't help. Compare this to a 1970s PBS mini-teleplay where the events were re-enacted quite well. Or, another where the ratification of the Constitution became a televised political campaign. Again, I have the disadvantage of being more familiar with most of these cases (after all, I wrote papers about two of them!) than many others. Still, sort of disappointed.
Agree with Prof. Amar that the case was not quite as seminal as some suggest. The importance of the case was an official statement of something that was already in the air -- judicial review, including in the federal courts up to congressional action -- was already repeatedly cited and in some fashion even applied. A federal carriage tax was challenged by some Jeffersonians (along with the Alien-Sedition Acts opposition, I wonder about the evenhanded opposition the critics their had as to striking down the law -- did they accept even the latter could only be overturned by legislative action or perhaps jury nullification?). It was upheld by the USSC, but there was no suggestion of legislative supremacy. In the right case, judicial review might strike down federal law, just as it did in a few state cases. A few justices also refused to serve as pension hearing officers in a judicial capacity since they found it unconstitutional to be liable to be overturned by an executive officer. An attempt by Washington to get in effect an advisory opinion was also rejected, if unofficially.
Judicially striking down a congressional law might have upset "high" Jeffersonians, though by the 1820s even they were accepting, but the main problem in this case was the belief that this was in effect a political question. The President had the power to not deliver commissions pursuant to his discretion. The determination Jefferson did something wrong rankled for the rest of his life, even if the net result of the opinion was that the Supreme Court found that it could not offer relief. Some find problems with various aspects of the holding; one thing that seemed the case for me is that the Judiciary Act of 1789 provision need not be found unconstitutional. The wording is somewhat opaque but it seems to me that it could have simply been interpreted not to have applied in this situation. In effect, like Chief Justice John Roberts centuries later in the PPACA Case, a bit of constitutional avoidance would have been quite possible.
But, the genius of the guy has been long deemed to be his strategic use of the Supreme Court to promote a certain judicial vision. Merely applying the law, granting my reading is possible, would not be as useful as making clear the Court had the power of judicial review, even if it requires striking down a provision passed by the First Congress, one with various signers of the Constitution in it (including James Madison), signed into law by George Washington, who presided over those proceedings of the Constitutional Convention. It also allowed as was noted in the episode in effect the top Federalist remaining, now that Adams lost the election, the most popular one at least -- John Marshall, to shake a finger at the Jefferson Administration with only a mild shaking of the head at the challengers. They (there being four, even if three are mostly forgotten) didn't even misapply the provision in question not meant to apply to this situation; it was simply unconstitutional. The power to strike down a federal law not applied apparently (I have saw reference to one or two maybes involving technical issues) again until the 1850s, but it was there for the taking.
Prof. Amar noted that the opinion pointed to the importance of the Constitution for all government actors, not just the judiciary. A notable point even though the author was right to note the importance of the courts was specifically the point here. Note, for instance, that not striking down a federal law (or perhaps only doing so in a blatant case, much clearer than many of the times these days) does not make courts potted plants. Putting aside that statutory interpretation and oversight of local action is a big part of their duties, federal courts still would have the responsibility to protect persons from wrongdoing of executive officials. For instance, when a person was charged with a crime, they would have various rights that would rarely be interfered with by explicit congressional laws (an ex post facto law would be a situation where the courts would directly run into Congress). The Bill of Rights is largely open-ended, but executive action was probably assumed (outside of the First and Second Amendments) to be the biggest concern there.
The basic idea of judicial review was expressed in Federalist No. 78 and accepted as a logical application of constitutional text by a range of people by the time of the ruling. There was some dissent, but again, the holding that judicial review exists was not as revolutionary as sometimes implied. Opinions do however serve as markers and forthrightly hold things that often are only expressed in a more limited fashion. Griswold v. Connecticut is an example. The "right to privacy" was not totally newly applied in the mid-1960s in a 7-2 holding. Various other opinions spoke of a "right to privacy" in various respects, the right both a matter of state law (privacy torts) and constitutional law in various respects, particularly in the Fourth Amendment context. And, various opinions spoke of specific things now deemed as private that were protected "liberty" including family matters over children. These were useful later on.
But, such a clear expression of a right to privacy, particularly to protect private choices over not just spaces but actions in those spaces in this fashion and to do so as an opinion of the Court was special. And, something comparable is in place with the opinion at issue here though as Prof. Amar. noted the power of the courts to use it become much more important later on. Ditto the assurance of the courts to act, even when internal executive department matters are involved. In fact, Marshall himself would in a few years have an opportunity there while presiding over the treason trial of Burr and his alleged conspirators. This aspect of "judicial review," usually applied to examining the constitutionality of laws as such, was very important too. A trial where presidential clerks and even the Attorney General was involved showed the power of the judiciary as did the treason trial where interrogatories to Jefferson himself was involved.
So, the case was important, both for the national drama involved, but as to the particulars. It was not completely novel, since judicial review was "in the air" and even applied in a few cases, but the Supreme Court actively using the power in this fashion was of special significance. More so as judicial review was widely accepted, even by past critics, the debate now more over details. There still would be great debates over political questions and proper usage. The USSC, however, in a major way won the ultimate battle early on back in 1803.
But, it wasn't and still isn't all crystal clear, and this series should help inform the public at large to understand and further debate matters. Perhaps, later episodes will seem a bit more novel for me personally though.
C-SPAN, in honor of the first Monday in October (official start of the USSC term), has begun a Landmark Cases series with the first one Marbury v. Madison on this week. The first episode was largely a talking heads segment with an author of a book on the case (which I have recently read) and Prof. Akhil Amar, a popular voice on television on constitutional matters. A few "C-SPAN on the road" type segments from the homes of CJ Marshall and so forth are intermixed along with a bit of a few statements from justices and apparently other parties (here a member of Congress). And, some calls are taken.
Those who are new to the case might have found it novel but basically nothing new was introduced for me personally. Letters from Jefferson and Adams, for instance, provide an intimate flavor but I'm familiar with them -- including Jefferson telling Abigail Adams that he thought the midnight judges was personally particularly hurtful. Reading the author's book and being familiar with Prof. Amar's style (looking at things in a somewhat novel way that he sort of portrays as kind of obvious ... why didn't others see it this way? ... in an "isn't this fascinating/exciting" nerd love sort of fashion) didn't help. Compare this to a 1970s PBS mini-teleplay where the events were re-enacted quite well. Or, another where the ratification of the Constitution became a televised political campaign. Again, I have the disadvantage of being more familiar with most of these cases (after all, I wrote papers about two of them!) than many others. Still, sort of disappointed.
Agree with Prof. Amar that the case was not quite as seminal as some suggest. The importance of the case was an official statement of something that was already in the air -- judicial review, including in the federal courts up to congressional action -- was already repeatedly cited and in some fashion even applied. A federal carriage tax was challenged by some Jeffersonians (along with the Alien-Sedition Acts opposition, I wonder about the evenhanded opposition the critics their had as to striking down the law -- did they accept even the latter could only be overturned by legislative action or perhaps jury nullification?). It was upheld by the USSC, but there was no suggestion of legislative supremacy. In the right case, judicial review might strike down federal law, just as it did in a few state cases. A few justices also refused to serve as pension hearing officers in a judicial capacity since they found it unconstitutional to be liable to be overturned by an executive officer. An attempt by Washington to get in effect an advisory opinion was also rejected, if unofficially.
Judicially striking down a congressional law might have upset "high" Jeffersonians, though by the 1820s even they were accepting, but the main problem in this case was the belief that this was in effect a political question. The President had the power to not deliver commissions pursuant to his discretion. The determination Jefferson did something wrong rankled for the rest of his life, even if the net result of the opinion was that the Supreme Court found that it could not offer relief. Some find problems with various aspects of the holding; one thing that seemed the case for me is that the Judiciary Act of 1789 provision need not be found unconstitutional. The wording is somewhat opaque but it seems to me that it could have simply been interpreted not to have applied in this situation. In effect, like Chief Justice John Roberts centuries later in the PPACA Case, a bit of constitutional avoidance would have been quite possible.
But, the genius of the guy has been long deemed to be his strategic use of the Supreme Court to promote a certain judicial vision. Merely applying the law, granting my reading is possible, would not be as useful as making clear the Court had the power of judicial review, even if it requires striking down a provision passed by the First Congress, one with various signers of the Constitution in it (including James Madison), signed into law by George Washington, who presided over those proceedings of the Constitutional Convention. It also allowed as was noted in the episode in effect the top Federalist remaining, now that Adams lost the election, the most popular one at least -- John Marshall, to shake a finger at the Jefferson Administration with only a mild shaking of the head at the challengers. They (there being four, even if three are mostly forgotten) didn't even misapply the provision in question not meant to apply to this situation; it was simply unconstitutional. The power to strike down a federal law not applied apparently (I have saw reference to one or two maybes involving technical issues) again until the 1850s, but it was there for the taking.
Prof. Amar noted that the opinion pointed to the importance of the Constitution for all government actors, not just the judiciary. A notable point even though the author was right to note the importance of the courts was specifically the point here. Note, for instance, that not striking down a federal law (or perhaps only doing so in a blatant case, much clearer than many of the times these days) does not make courts potted plants. Putting aside that statutory interpretation and oversight of local action is a big part of their duties, federal courts still would have the responsibility to protect persons from wrongdoing of executive officials. For instance, when a person was charged with a crime, they would have various rights that would rarely be interfered with by explicit congressional laws (an ex post facto law would be a situation where the courts would directly run into Congress). The Bill of Rights is largely open-ended, but executive action was probably assumed (outside of the First and Second Amendments) to be the biggest concern there.
The basic idea of judicial review was expressed in Federalist No. 78 and accepted as a logical application of constitutional text by a range of people by the time of the ruling. There was some dissent, but again, the holding that judicial review exists was not as revolutionary as sometimes implied. Opinions do however serve as markers and forthrightly hold things that often are only expressed in a more limited fashion. Griswold v. Connecticut is an example. The "right to privacy" was not totally newly applied in the mid-1960s in a 7-2 holding. Various other opinions spoke of a "right to privacy" in various respects, the right both a matter of state law (privacy torts) and constitutional law in various respects, particularly in the Fourth Amendment context. And, various opinions spoke of specific things now deemed as private that were protected "liberty" including family matters over children. These were useful later on.
But, such a clear expression of a right to privacy, particularly to protect private choices over not just spaces but actions in those spaces in this fashion and to do so as an opinion of the Court was special. And, something comparable is in place with the opinion at issue here though as Prof. Amar. noted the power of the courts to use it become much more important later on. Ditto the assurance of the courts to act, even when internal executive department matters are involved. In fact, Marshall himself would in a few years have an opportunity there while presiding over the treason trial of Burr and his alleged conspirators. This aspect of "judicial review," usually applied to examining the constitutionality of laws as such, was very important too. A trial where presidential clerks and even the Attorney General was involved showed the power of the judiciary as did the treason trial where interrogatories to Jefferson himself was involved.
So, the case was important, both for the national drama involved, but as to the particulars. It was not completely novel, since judicial review was "in the air" and even applied in a few cases, but the Supreme Court actively using the power in this fashion was of special significance. More so as judicial review was widely accepted, even by past critics, the debate now more over details. There still would be great debates over political questions and proper usage. The USSC, however, in a major way won the ultimate battle early on back in 1803.
But, it wasn't and still isn't all crystal clear, and this series should help inform the public at large to understand and further debate matters. Perhaps, later episodes will seem a bit more novel for me personally though.
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