The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815. Beveridge Albert Jeremiah

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      Five days later, one more Republican Senator, being present, and one Federalist Senator, being absent, the committee was discharged on motion of Senator Breckenridge; and the debate continued, the Federalists constantly accusing the Republicans of a purpose to destroy the independence of the National Judiciary, and asserting that National judges must be kept beyond the reach of either Congress or President in order to decide fearlessly upon the constitutionality of laws.

      At last the steady but spirited Breckenridge was so irritated that he broke away from the Republican plan to ignore this principal article of Federalist faith. He did not intend to rise again, he said, but "an argument had been so much pressed" that he felt it must be answered. "I did not expect, sir, to find the doctrine of the power of the courts to annul the laws of Congress as unconstitutional, so seriously insisted on… I would ask where they got that power, and who checks the courts when they violate the Constitution?"

      The theory that courts may annul legislation would give them "the absolute direction of the Government." For, "to whom are they responsible?" He wished to have pointed out the clause which grants to the National Judiciary the power to overthrow legislation. "Is it not extraordinary," said he, "that if this high power was intended, it should nowhere appear?.. Never were such high and transcendant powers in any Government (much less in one like ours, composed of powers specially given and defined) claimed or exercised by construction only."199

      Breckenridge frankly stated the Republican philosophy, repeating sometimes word for word the passage which Jefferson at the last moment had deleted from his Message to Congress.200 "The Constitution," he declared, "intended a separation of the powers vested in the three great departments, giving to each exclusive authority on the subjects committed to it… Those who made the laws are presumed to have an equal attachment to, and interest in the Constitution; are equally bound by oath to support it, and have an equal right to give a construction to it… The construction of one department of the powers vested in it, is of higher authority than the construction of any other department.

      "The Legislature," he continued, "have the exclusive right to interpret the Constitution, in what regards the law-making power, and the judges are bound to execute the laws they make. For the Legislature would have at least an equal right to annul the decisions of the courts, founded on their construction of the Constitution, as the courts would have to annul the acts of the Legislature, founded on their construction.201… In case the courts were to declare your revenue, impost and appropriation laws unconstitutional, would they thereby be blotted out of your statute book, and the operations of Government arrested?.. Let gentlemen consider well before they insist on a power in the Judiciary which places the Legislature at their feet."202

      The candles203 now dimly illuminating the little Senate Chamber shed scarcely more light than radiated from the broad, round, florid face of Gouverneur Morris. Getting to his feet as quickly as his wooden leg would permit, his features beaming with triumph, the New York Senator congratulated "this House, and all America, that we have at length got our adversaries upon the ground where we can fairly meet."204

      The power of courts to declare legislation invalid is derived from "authority higher than this Constitution … from the constitution of man, from the nature of things, from the necessary progress of human affairs,"205 he asserted. In a cause on trial before them, it becomes necessary for the judges to "declare what the law is. They must, of course, determine whether that which is produced and relied on, has indeed the binding force of law."

      Suppose, said Morris, that Congress should pass an act forbidden by the Constitution – for instance, one laying "a duty on exports," and "the citizen refuses to pay." If the Republicans were right, the courts would enforce a collection. In vain would the injured citizen appeal to the Supreme Court; for Congress would "defeat the appeal, and render final the judgment of inferior tribunals, subjected to their absolute control." According to the Republican doctrine, "the moment the Legislature … declare themselves supreme, they become so … and the Constitution is whatever they choose to make it."206 This time Morris made a great impression. The Federalists were in high feather; even the Republicans were moved to admiration. Troup reported to King that "the democratical paper at Washington pronounced his speech to be the greatest display of eloquence ever exhibited in a deliberative assembly!"207

      Nevertheless, the Federalist politicians were worried by the apparent indifference of the rank and file of their party. "I am surprized," wrote Bayard, "at the public apathy upon the subject. Why do not those who are opposed to the project, express in the public papers or by petitions their disapprobation?.. It is likely that a public movement would have great effect."208 But, thanks to the former conduct of the judges themselves, no "public movement" developed. Conservative citizens were apprehensive; but, as usual, they were lethargic.

      On February 3, 1802, the Senate, by a strictly party vote209 of 16 to 15, passed the bill to repeal the Federalist Judiciary Act of 1801.210

      When the bill came up in the House, the Federalist leader in that body, James A. Bayard of Delaware, moved to postpone its consideration to the third Monday in March, in order, as he said, to test public opinion, because "few occasions have occurred so important as this."211 But in vain did the Federalists plead and threaten. Postponement was refused by a vote of 61 to 35.212 Another plea for delay was denied by a vote of 58 to 34.213 Thus the solid Republican majority, in rigid pursuance of the party plan, forced the consideration of the bill.

      The Federalist organ in Washington, which Marshall two years earlier was supposed to influence and to which he probably contributed,214 saw little hope of successful resistance. "What will eventually be the issue of the present high-handed, overbearing proceedings of Congress it is impossible to determine," but fear was expressed by this paper that conditions would be created "which impartial, unbiased and reflecting men consider as immediately preceding the total destruction of our government and the introduction of disunion, anarchy and civil war."215

      This threat of secession and armed resistance, already made in the Senate, was to be repeated three times in the debate in the House which was opened for the Federalists by Archibald Henderson of North Carolina, whom Marshall pronounced to be "unquestionably among the ablest lawyers of his day" and "one of the great lawyers of the Nation."216 "The monstrous and unheard of doctrine … lately advanced, that the judges have not the right of declaring unconstitutional laws void," was, declared Henderson, "the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy." If the Republican theory of the Constitution should prevail, "better at once to bury it with all our hopes."217

      Robert Williams of the same State, an extreme but unskillful Republican, now uncovered his party's scheme to oust Federalist judges, which thus far had carefully been concealed:218 "Agreeably to our Constitution a judge may be impeached," said he, but this punishment would be minimized if judges could declare an act of Congress unconstitutional. "However he may err, he commits no crime; how, СКАЧАТЬ