The View From 1776

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Judicial activism can be arbitrarily divided into three broad periods. 

The first of these was the assertion in 1803 by the Supreme Court of the power to declare acts of Congress or of the President unconstitutional.

The second period followed the end of the Civil War in 1865 and the ratification of the 13th Amendment (1865), 14th Amendment (1868), and the 15th Amendment (1870).  Between 1865 and 1901, huge interstate corporations came into existence, the nation expanded rapidly westward, and finance capitalism made Wall Street bankers major influences in economic decisions affecting every part of the nation.  The Federal government began to regulate interstate businesses and undertook many functions that earlier generations would have thought outside the scope of powers delegated by the Constitution to Congress or to the President.

The Federal courts, on balance, were a restraining force.  In the eyes of liberals, the Court of this period was engaged in judicial activism by impeding implementation of social-justice, welfare-state policies.

The third period arrived during the first decade of the 20th century, when today’s controversies developed over the Court’s subordination of property rights, its discovery of hitherto unknown personal rights, and its sanctioning welfare-state socialism, solely on the basis of what the Justices think the law ought to be. 

Phase one of judicial activism consisted of a single action, the famous 1803 case of Marbury v. Madison, in which Chief Justice John Marshall, almost by sleight of hand, enunciated the doctrine that the Supreme Court was to be the final judge of the constitutionality of actions by the other two branches of government.  No act of Congress had ever been declared unconstitutional prior to Marbury v. Madison, and no other act of Congress was declared unconstitutional for another 52 years thereafter.

Understanding the import of the decision requires a brief recitation of the specific facts of the case, as well as of the political situation in which the case came before the Court.  The latter, by the way, was remarkably similar to today’s confrontation between liberals and traditionalists over Senate confirmation of judicial and executive appointments by the President.

From the time the Constitution was ratified, until the election of Thomas Jefferson as President in 1800, the founders’ Federalist Party controlled the government.  Jefferson’s Republican Party (from whom the Democrats claim descent) opposed Alexander Hamilton’s policies that promoted manufacturing and a strong central bank to stabilize the currency and facilitate financing the Federal government.  They preferred instead an individualistic economy of independent farmers and artisans.

John Marshall had been appointed to the Supreme Court and made Chief Justice by John Adams, a Federalist, just two months before Jefferson took the oath of office.  People at the time considered that Adams had made the appointment in order to keep some measure of Federalist policy influence in opposition to the new administration under Jefferson.  Remember, in that connection, that judges are appointed for what effectively amounts to life terms, one reason for liberals’ die-hard opposition today to judicial nominations by President Bush.

As another measure to retain Federalist influence, even though nearly all Federal judges then were Federalists, the outgoing Adams administration passed a judicial reform bill to increase the number of Federal circuit court judges and other judicial officials.  This act became law at the same time as Marshall’s appointment to the Supreme Court, just two months before Jefferson’s inauguration.

A handful of officials were not appointed under the reform bill until the final days of John Adams’s term, and commissions for four of these appointments, who became known as the “midnight judges,” were not signed by Adams until the final day of his tenure in office.  Their commissions of appointment remained undelivered on his desk, and incoming President Jefferson refused to deliver them to the four men. 

William Marbury, one of the four appointees who was to have been made a county justice of the peace, found his name appended as plaintiff in one of the most famous cases ever to come before the Supreme Court.  Defendant Madison was James Madison, a principal author of the Constitution and President Jefferson’s new Secretary of State.

Plaintiffs, represented by Marbury, petitioned the Court to order President Jefferson to deliver their judicial commissions to them and to install them in office.  For two years, Jefferson simply ignored the case.  Madison never even answered the complaint and never appeared before the Court, since both he and Jefferson regarded the case as simply a political ploy by the defeated Federalists.  Most voters sided with Jefferson.

Chief Justice Marshall confronted a thorny problem.  If he simply asserted the Federalist political position and issued an order for the President to deliver the judicial commissions, Jefferson would ignore him and make public relations capital of such blatant political interference with the executive branch.  There would be nothing that Marshall could do to compel compliance, and the Court, already in low esteem among the voters because of the circumstances of Marshall’s appointment to the Court, would be further diminished in stature.

Jefferson and Madison were adamant that the Court had no constitutional authority to issue orders to the executive branch or to the Congress.  Conceding that power to the Court would make it, in their assessment, the single supreme power of the land, which clearly was not the intention of the Constitution.

The only relevant part of the Constitution is Article III, Section. 2:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Chief Justice Marshall dealt with his dilemma ingeniously.  Marshall opined, first, that Marbury had been duly appointed and was entitled to his commission and that Jefferson’s refusal to honor the appointment was a violation of law; second, however, it is not within the Constitutional powers of the Supreme Court to issue the requested order, because Article III, Section 2 gives the Court only appellate jurisdiction over such matters (see text above); third, the act of Congress establishing the Federal courts in question, under which the Supreme Court is given original jurisdiction to issue such orders, is therefore unconstitutional.

Marshall’s judicial opinion effectively enabled him to eat his cake and keep it.  On the one hand, he avoided a direct confrontation with the President.  On the other, he was able to lecture Jefferson at length on the illegality of his refusal to honor Marbury’s appointment and, finally, to claim for the Court an immense power not explicitly granted by the Constitution’s language, but arguably implicit within the powers explicitly granted.

Of greatest import in the long run has been the concept of implied powers upon which Marshall relied.  His fellow Federalist Hamilton was a firm proponent of this doctrine, because it could be relied upon to support Federalist policies, for instance, to maintain a sound government fiscal policy and a strong currency via measures such as the first Bank of the United States.  Such measures, while not expressly mentioned in the Constitution, were, said Hamilton, necessary to carry out express powers of the Constitution “To coin Money, regulate the Value thereof...” appearing under Article I, Section 8.

Implied powers are thus a matter of prudential judgment.  How far is far enough?  Maintenance of civility in civil government requires that most people agree on fundamental principles and that political arguments be confined to what are appropriate means to implement fundamental principles.  The vitriolic skirmishing between Federalists and Jefferson’s Republicans was over means more than basic principles.

For 112 years both Congress and successive Presidents were fairly careful not to overreach.  But in 1901, when President McKinley was assassinated and Theodore Roosevelt became President, difficulties started.  Teddy was the liberal-socialists’ dream President, a man who would simply implement what he and his fellow intellectuals thought appropriate, and the Constitution be damned.  Figuratively speaking, when Teddy the Rough-Rider got to the top of San Juan Hill, he never stopped.

This was the beginning of the third phase of both executive and judicial activism noted at the beginning of this article. 

Teddy Roosevelt favored liberal social-justice causes and appointed Oliver Wendell Holmes, Jr., a man similarly disposed, to the Supreme Court.  Thus arrived in the United States the head-on, irreconcilable collision between Western civilization’s principles of Judeo-Christian morality and the secular and materialistic religion of socialism.

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