Academic journal article Argumentation and Advocacy

Prudential Argumentation and John Marshall's Opinion in Marbury V. Madison (1803)

Academic journal article Argumentation and Advocacy

Prudential Argumentation and John Marshall's Opinion in Marbury V. Madison (1803)

Article excerpt

The 1800 election of Thomas Jefferson as president and of a Republican majority in Congress was a pivotal moment in American history. This election marked the first time in the fledgling republic's existence that a new party took over both elected branches of government. It was also the first (and last) time that the U.S. House of Representatives was called upon to break an electoral vote tie and decide who would serve as president and as vice-president. Part and parcel to these historic firsts, the 1800 election marked the beginning of the end for the Federalist Party and the rise of Jeffersonian Republicanism. Significant changes gripped American politics. At the time, however, political actors from the Republican and Federalist Parties failed to take pause and appreciate their place in history. Instead, the picayune business of partisanship intensified. The election results compelled the outgoing Adams administration and the Federalist Congress to preserve Federalist influence in government. To that end, President John Adams and his terminal majority in Congress turned to the courts.

In the early months of 1801, Federalists engaged in a series of maneuvers that placed the judiciary--the supposed "least dangerous" branch (Hamilton, 1788/2003a, p. 472; see also Bickel, 1962)--amidst the contestation of partisanship. Certainly, the courts were politically-charged prior to 1801. When Jefferson's presidency began on March 4, not a single Republican was seated in any of the federal courts (Malone, 1970, p. 117). However, the contentious election of 1800 isolated the courts as a final battlefield on which Federalists might claim victory. Jefferson, himself observing the war-like maneuvering concerning the courts, claimed that the Federalists had "retired into the judiciary as a stronghold" (Jefferson, 1801/1905, p. 302). The Federalists' first move, and arguably the least contested, was the nomination of then-Secretary of State John Marshall as Chief Justice of the Supreme Court (hereafter, "Court"). The Federalists' second move took the form of two congressional acts: the Judiciary Act of 1801 and the Organic Act of the District of Columbia. On February 13, the Judiciary Act was passed by the Federalist majority, calling for the appointment of sixteen new federal judgeships and reducing the Court from six justices to five. Adams would have the next few weeks to fill judge positions and Jefferson was denied the ability to place a Republican on the Court to replace the ailing Justice William Cushing. On February 27, ten days after the House broke the electoral vote tie between Aaron Burr and Jefferson, the lame duck Congress passed the Organic Act and afforded the president an indeterminate number of justices of the peace for the District of Columbia. Adams nominated forty-two justices of the peace and all were confirmed. In the span of one month, the Federalist courts were thus fortified with fifty-nine more Federalist sympathizers. The duty to deliver the justice of the peace appointments fell upon Secretary of State Marshall. On March 4, at the stroke of midnight, Jefferson's acting Secretary of State, Levi Lincoln, required Marshall to stop, leaving commissions undelivered. As might be expected from hotly-contested political battles, the new secretary of state, James Madison, refused to deliver many of the remaining commissions.

The courts remained a site of ill will among Federalists and Republicans. In 1802, Republicans passed the Judiciary Act to repeal the Federalist-created Judiciary Act of 1801. Worried that the Federalist-dominated Court would overturn the repeal of the 1801 Judiciary Act, another bill was introduced in April of 1802 to abolish the June and December terms of the 1802 Court (see Nelson, 2000, p. 69). During that year, the rancor between the Republican elected officials and Federalist judges persisted. More particularly, Federalist Justice Samuel Chase was a target for Republicans, as Chase was notorious for "[leaving] the bench without quorum in order that he might make political speeches for his party," as well as for "his contempt for the popular will" (Adams, 1889/1986, p. …

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