Academic journal article Political Research Quarterly

Establishing Judical Review? Schooner Peggy and the Early Marshall Court

Academic journal article Political Research Quarterly

Establishing Judical Review? Schooner Peggy and the Early Marshall Court

Article excerpt

United States vs. Schooner Peggy supports claims that the Marshall Court twisted law to reach rulings that would not antagonize political adversaries. Federalist justices at the turn of the nineteenth century followed the election returns. Ellsworth Court justices consistently reached conclusions congenial to Federalist party interests; the Marshall Court in its first years always reached the result favored by the Jefferson administration. Schooner Peggy, Marbury, and other early Court rulings belie the common assertion that the justices became independent of the executive branch during the Jefferson administration. Both Schooner Peggy and Marbury seek to preserve judicial power by asserting its existence, thus establishing precedents for future use, while not actually attempting to challenge executive or legislative authority in any controversial way The real test for a more independent judicial power would come later, when the justices began ordering some elected officials to take actions they did not want to take.

Powerful Chief Justices make their mark immediately Earl Warren takes over the reins of the Supreme Court and suddenly school segregation is declared unconstitutional.1 Roger Taney replaces John Marshall as Chief Justice and the Court soon issues a series of decisions that lead Daniel Webster and Justice Joseph Story to complain that "the Supreme Court is gone" (Baxter 1984: 444).2 Marshall apparently epitomizes the strong Chief Justice who promptly places his imprimatur on the federal judiciary. No sooner had Marshall taken over a tribunal that, according to former Chief Justice John Jay, would permanently lack "energy, weight, and dignity" (Jay 1893: 285), than the justices in Marbury v. Madison (1803) established the power of judicial review The constitution is "the fundamental and paramount law of the nation," Marshall's bold unanimous opinion declared. The Supreme Court must determine what the constitution means, he added, because "it is emphatically the province and duty of the judiciary to say what the law is" (5 U.S. at 177).3

This article questions the common view that Marshall during his first years on the federal bench `firmly established the Court's authority to review and strike down government actions that were incompatible with the Constitution" (Epstein and Walker 1995: 65) (emphasis added) by examining United States v. Schooner Peggy (1803), a controversial but forgotten Marshall Court decision handed down two years before Marbury. Schooner Peggy seems to anticipate Marbury's assertion of judicial power. When ruling that the Peggy should be returned to its original French owners,4 the Marshall Court clearly indicated that federal justices would not be bound by any treaty provision that deprived American citizens of their constitutional rights (5 U.S. at 110). Nevertheless, when read in its political context, Schooner Peggy supports recent revisionist readings of Marbury (O'Fallon 1992; Knight and Epstein 1996) which maintain that the decision in the latter case reflected the relative political weaknesses of the early Marshall Court. Marshall's opinions in Schooner Peggy and Marbury may claim a judicial power to challenge the constitutional pretensions of transient democratic majorities, but the bottom line in both cases is a ruling in favor of the incumbent Jefferson administration. The justices in Marbury refused to issue a writ of mandamus that the Jefferson administration probably would have ignored (McCloskey 1994: 26) and in subsequent cases found various excuses to avoid declaring unconstitutional the 1802 Repeal of the Judiciary Act of 1801.5 The Schooner Peggy Court responded to potentially strong political opposition in a similar way. Jeffersonian Republicans had previously condemned the Supreme Court for supporting Federalist party positions in admiralty cases decided before the election of 1800. An influential Jeffersonian journal even threatened impeachment should the justices not adopt a more pro-French position. …

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