A Patriot's of the United States - Judiciary Waterloo for Minimalist Government 

While the Federalists in Congress and the bureaucracy ran before this flood of Jeffersonian democrats, one branch of government defiantly stood its ground. The lifetime appointees to the judiciary branch - the United States federal courts and the Supreme Court - remained staunchly Federalist. Jefferson thus faced a choice. He could let the judges alone and wait for age and attrition to ultimately create a Republican judiciary, or he could adopt a more aggressive policy. He chose the latter course, with mixed results.

Much of Jefferson’s vendetta against Federalist judges came from bitterness over John Adams’s last two years in office. Federalist judges had unfairly convicted and sentenced Republican editors under the Sedition Act. Adams and the lame-duck Congress added insult to injury by passing a new Judiciary Act and appointing a whopping sixty new Federalist judges (including Chief Justice John Marshall) during Adams’s last sixty days in office. Jefferson now sought to legally balance the federal courts.

The Virginian might have adopted an even more incendiary policy, because his most extreme advisers advocated repealing all prior judiciary acts, clearing the courts of all Federalist judges, and appointing all Republicans to take their place. Instead, the administration wisely chose to remove only the midnight judges and a select few sitting judges. With the Amendatory Act, the new Republican Congress repealed Adams’s 1801 Judiciary Act, and eliminated thirty of Adams’s forty-seven new justices of the peace (including a fellow named William Marbury) and three federal appeals court judgeships. Attempts to impeach several Federalist judges, including Supreme Court justice Samuel Chase, met with mixed results. Chase engaged in arguably unprofessional conduct in several of the Sedition Act cases, but the attempt to remove him proved so partisan and unprofessional that Republican moderates joined the minority Federalists to acquit Chase.

Congressional Republicans won a skirmish with the Amendatory Act, but the Federalists, under Supreme Court chief justice John Marshall, ultimately won the war. This victory came thanks to a subtle and complex decision in a case known as Marbury v. Madison (1803), and stemmed from the appointment of William Marbury as a midnight judge. Adams had commissioned Marbury as a justice of the peace, but Marbury never received the commission, and when he inquired about it, he was told by the secretary of state’s office that it had vanished. Marbury then sued the secretary of state James Madison in a brief he filed before the United States Supreme Court itself.

Chief Justice Marshall wrote an 1803 opinion in Marbury that brilliantly avoided conflict with Jefferson while simultaneously setting a precedent for judicial review-the prerogative of the Supreme Court, not the executive or legislative branches-to decide the constitutionality of federal laws. There is nothing in the U.S. Constitution that grants the Supreme Court this great power, and the fact that we accept it today as a given has grown from the precedent of John Marshall’s landmark decision. Marshall sacrificed his fellow Federalist Marbury for the greater cause of a strong centralized judiciary. He and fellow justices ruled the Supreme Court could not order Marbury commissioned because they lacked jurisdiction in the case, then shrewdly continued to make a ruling anyway. The Supreme Court lacked jurisdiction, Marshall ruled, because a 1789 federal law granting such jurisdiction was unconstitutional; the case should have originated in a lower court. While the ruling is abstruse, its aim and result were not. The Supreme Court, said Marshall, was the final arbiter of the constitutionality of federal law.

In Fletcher v. Peck (1811), Marshall’s court would claim the same national authority over state law. Chief Justice Marshall thus paved the first segment of a long road toward nationalism through judicial review. In the Aaron Burr treason trial (1807), when the chief justice personally issued a subpoena to President Jefferson, it sent a powerful message to all future presidents that no person is above the law.

Equally as important as judicial review, however, Marshall’s Court consistently ruled in favor of capitalism, free enterprise, and open markets. Confirming the sanctity of private contracts, in February 1819 the Supreme Court, in Dartmouth College v. Woodward, ruled that a corporate charter (for Dartmouth College) was indeed a contract that could not be violated at will by the state legislature. This supported a similar ruling in Sturges v. Crowninshield: contracts are contracts, and are not subject to arbitrary revision after the fact. Some of the Marshall Court’s rulings expanded federal power, no doubt. But at the same time they unleashed market forces to race ahead of regulation. For example, five years after Dartmouth, the Supreme Court held that only the federal government could limit interstate commerce. The case, Gibbons v. Ogden, involved efforts by the famous Cornelius Vanderbilt, who ran a cheap water-taxi service from New York to New Jersey for a steamboat operator named Thomas Gibbons. Their service competed against a New York firm that claimed a monopoly on the Hudson River. The commodore boldly carried passengers in defiance of the claim, even offering to transport them on his People’s Line for nothing if they agreed to eat two dollars’ worth of food on the trip. Flying a flag reading NEW JERSEY MUST BE FREE, Vanderbilt demonstrated his proconsumer, low-price projects over the next thirty years and in the process, won the case.

Lower courts took the lead from Marshall’s rulings. For thirty years American courts would favor developmental rights over pure or pristine property rights. This was especially explicit in the so-called mill acts, wherein state courts affirmed the primacy of privately constructed mills that required the owners to dam up rivers, thus eroding or destroying some of the property of farmers having land adjacent to the same river. Emphasizing the public good brought by the individual building the mill, the courts tended to side with the person developing property as opposed to one keeping it intact.⁹⁸ Legal historian James Willard Hurst has labeled this propensity toward development “release of energy,” a term that aptly captures the courts’ collective goal: to unleash American entrepreneurs to serve greater numbers of people. As policy it pleased neither the hard-core antistatists, who complained that it (rightly) put government authority on the side of some property owners as opposed to others, nor militant socialists, who hated all private property anyway and called for heavy taxation as a way to spur development.⁹⁹

A final pair of Marshall-like rulings came from Roger B. Taney, a Marylander named chief justice when Marshall died in 1835. Having established the sanctity of contracts, the primacy of development, and the authority of the federal government over interstate trade, the Court turned to issues of competition. In Charles River Bridge v. Warren Bridge, the Charles River Bridge Company claimed its charter implicitly gave it a monopoly over bridge traffic, and thus sued Warren Bridge Company which sought to erect a competing crossing. Although many of the early colonial charters indeed had implied a monopoly power, the Court took a giant step away from those notions by ruling that monopoly powers did not exist unless they were expressly stated and delegated in the charter. This opened the floodgates of competition, for no company could hide behind its state-originated charters any longer.

Then, in 1839, in Bank of Augusta v. Earle, a debtor from Alabama, seeking to avoid repaying his debts to the Bank of Augusta in Georgia, claimed that the bank had no jurisdiction in Alabama. Appreciating the implication for stifling all interstate trade with a ruling against the bank, the Court held that corporations could conduct business under laws of comity, or mutual good faith, across state lines unless explicitly prohibited by the legislatures of the states involved. Again the Court opened the floodgates of competition by forcing companies to compete across state boundaries, not just within them. Taken together, these cases “established the framework that allowed entrepreneurs in America to flourish.”