As the brief for this initial blog post was quite inclusive, I have decided to take you back a few centuries.

Whether it be COVID-19 and schools or Afghanistan and Sept. 11th, there is always fuel for the American furnace of policy, politics and rage. Distressing though it may be, the fire of politics is inseparable from the American tradition. It is for this reason that I thought now would be a good time to remind ourselves of our rich past. Thus, I invite you to the politicking of 19th century America as observed in constitutional law.

Imagine its 1800. After years of Federalists presidents, Thomas Jefferson, an Anti-Federalist, took the White House. His predecessor, President John Adams, was on the way out. These luminary contemporaries were constantly feuding because their visions for the country were different. Adams foresaw a brimming republic with a strong federal government. Jefferson envisioned a future of independent farmers living life largely uninterrupted by a central power (we’ll overlook the overreach of the Louisiana Purchase).

When the time came, power passed hands peacefully for the second time. However, Adams could not pass up the chance to reaffirm his political beliefs. After the people had voted him out, he used his waning authority to appoint judges to lower courts throughout the country. One such judge was William Marbury.

Fast-forward to 2020. We have recently seen a situation quite similar to this. In September of last year, a month before the national election, President Trump appointed Amy Coney Barret to the Supreme Court. With polls favoring now President Biden, Democrats in Congress were vivified with a new sense of anger. How could a president likely to be voted out of office make such a lasting change to the country?

Now, transplant the atmosphere of last year to that of 1800. Jefferson was livid. His predecessor had taken advantage of the last moments of his presidency to appoint judges throughout the federal court system. Upon entering office in 1801, Jefferson was reluctant to send a commission to an Adams appointee, William Marbury. The former secretary of state under Adams, John Marshall, was unable to send the signed commission to Marbury before Jefferson took office. This commission evidenced William Marbury’s appointment as a magistrate and bore President Adams’ name.

Sound trivial? I hope not. This little oversight actually led to one of most well-known Supreme Court cases in history: Marbury v. Madison. Marbury petitioned the Court for a writ of mandamus. Under this writ, the Supreme Court could compel James Madison, Jefferson’s secretary of state, to extend the commission granted under Adams to Marbury. Spoiler alert: it did not happen. Marshall struck down the clause of compulsion within the writ of mandamus on constitutional grounds.

Does it at least sound straightforward? Let me just say that it was not. Behind the scenes, this case and the events that led to it were bleeding with the familiar signs of American politics.

The chief justice who wrote the opinion in Marbury v. Madison was none other than Adams’ former secretary of state: John Marshall. A conflict of interest you might ask? Yes. John Marshall, a staunch Federalist, was embroiled in a severely complex situation. On the one hand, he could opine that it was Madison’s duty to deliver the commission to Marbury. However, he knew that such a decision would not have led to action; the judiciary has no powers of enforcement. Fearing the loss of judicial legitimacy, Marshall knew that this was not an option. On the other hand, he could have just allowed Jefferson to deny Marbury his commission. This would have indubitably made the Supreme Court look weak. In a twisting convergence of political maneuvering and legal genius, Marshall, a Federalist, denied Marbury, the appointee of a Federalist, the commission while establishing an unenumerated power of the Supreme Court: judicial review.

Adams attempted to militarize the judiciary on the eve of losing the presidency. Jefferson responded harshly and, according to Marshall, unconstitutionally. Walking a narrow line, Marshall affirmed the Supreme Court’s legitimacy in the young republic while rebuking Jefferson’s actions. In his opinion, Marshall stated that Jefferson’s denial was illegal. He also declared that the compulsory writ of mandamus was unconstitutional. Courts denying constitutionality doesn’t sound new to us. However, in 1803, when the case was officially decided, it was brand new. Jefferson, hoping to interrupt Marshall’s progress, wielded his political power to cease the regular session of the Court, forestalling it for two years. Prior to this ruling, the Court did not change laws on matters of constitutionality. Many view Marshall as having granted the Court this power through Marbury v. Madison. Without his calculated actions, the role of the Supreme Court would not have been the same. Brown v. Board of Education would never have happened because the Court could not have opined on the constitutionality of “separate but equal.” This country would be a very different place.

1801 and 2021 are very different years. I personally have the habit of romanticizing history (especially those pesky years surrounding the birth of a delicate democracy). However, it’s important to remember that no time is free from calculating politicians and crafty legal writers; even the great minds of the first years weren’t spared. That’s America. Politicking seems ubiquitous nowadays, suffocating even. Don’t let it get you down. Remember, it’s nothing new.

What about Jefferson and Adams? These fervent political opponents died on the 50th anniversary of the nation’s founding. With his last breath, Adams thought only of Jefferson saying, “Thomas Jefferson still survives.”

If you are interested in looking to the original case, please click here: Library of Congress and Marbury v. Madison