Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (16 page)

The Supreme Court vs. the Constitution

James Madison protested that if Marshall's nationalist decision in McCulloch v. Maryland (1819)
(which said that Congress's powers were not limited to those "expressly delegated") had been
foreseen, the Constitution would never have been ratified.

There remained one more element of the triad of federal judicial power
yet to be established: the federal courts' power to supervise the performance of state judiciaries. An opportunity presented itself in the 1816 case
of Martin v. Hunter's Lessee. The case centered on whether Virginia laws
that had allowed for the confiscation of Loyalist property during the Revolutionary War were rendered obsolete by treaties negotiated between the
United States and Britain that protected Loyalist property. The Virginia
Court of Appeals, Virginia's highest court, had ruled that these treaties
did not conflict with or overrule the Virginia laws.

In Fletcher v. Peck, Marshall had written an outlandish opinion in
order to protect the interests of land speculators generally. In Martin,
most of the land titles at issue belonged to a company whose major shareholders included Marshall himself and his brother. (Marshall had a history of looking out for his brother's interests. After the Republican
Congress's 1801 Judiciary Act, Marshall had tried and failed to get his fellow justices to join him in saving his brother's federal judicial post.)

The Supreme Court took the case from the Virginia Court of Appeals
under Section 25 of the Judiciary Act of 1789, which said that the federal
Supreme Court could hear appeals of federal questions from the states'
top courts. The Supreme Court, in asking the Virginia court to send the
record of the case for review, used peremptory language of a type a superior uses with an inferior, and Virginia's high court responded by saying,
"The court is unanimously of opinion that the appellate power of the
Supreme Court of the United States does not extend to this court, under
a sound construction of the Constitution of the United States." In short, it would not forward the record of the case, so the Supreme Court would
have nothing to review.

Marshall recused himself, so the Supreme Court's opinion came from
Justice Joseph Story, a Marshall ally. Justice Story wrote that there must
be one superintending authority to ensure that the law was applied in the
same way throughout the Union. He reasoned that Article III of the Constitution established that states could be brought before federal courts in
some cases, so there could be no valid objection to Section 25 of the Judiciary Act on that ground.

This argument had been made by the justices in Chisholm v. Georgia,
and the people had instantly corrected it by adopting the Eleventh
Amendment. The federal courts were thus limited to the types of jurisdiction listed in Article III, which did not include appeals from state supreme
courts. The Virginians argued that while the Constitution provided that it
was "the supreme law of the land," it also required that state judges take
an oath to uphold it. In other words, state judges were to enforce the Constitution themselves without the supervision of a federal court.

It would have been odd, indeed, to come to any other conclusion. At
the Philadelphia Convention, remember, the Virginia delegation first proposed, in its nationalist Virginia Plan, that Congress have a power to veto
state laws it judged unconstitutional. This was one of the numerous
nationalist features of the Virginia Plan that the Convention ultimately
omitted from the finished Constitution. The Convention opted for a federal government with limited powers instead of a national government
with unlimited powers. It rejected Hamilton's idea that the president
should appoint state governors and U.S. senators. It rejected Madison's
idea that the Congress should have a general legislative power. It rejected
the idea that the federal courts should have a general jurisdiction. And it
rejected the congressional veto.

How strange, then, that anyone should read the federal Constitution,
with its list of powers of Congress and list of types of jurisdiction federal courts could be given, as giving federal courts a veto over state judiciaries. The same logic applies to this case as applied to Fletcher v. Peck's
claim that federal courts were supposed to superintend the behavior of
state legislatures. In short, the Marshall Court, not the Virginia judiciary,
was violating the Constitution. The result was not only that the Virginia
courts were overruled, and the relevant Virginia laws were voided, but
that the Supreme Court seized the power to supervise state courts, an
entirely unconstitutional usurpation of power.

The Constitution created a federal system in which state governments,
through elections, were held responsible by
the people of the states. The constitutional
model is a decentralized one of the type
envisioned by Thomas Jefferson when he
wrote A Summary View of the Rights of
British America.

What judicial usurpation did to this
model was to replace the authority of
elected state governments with the authority
of a few lawyers, appointed by a president to
positions of lifetime tenure without any
check on their power. Does that sound like
the model of government approved by the
ratifiers of the Constitution?

But if you studied constitutional law in
school, you'll know that the Marshall Court is treated with veneration,
based on the idea that the "law" is the body of Supreme Court decisions,
rather than the Constitution itself (as understood by the ratification conventions). Fletcher and Martin-and our acceptance of those decisionshave given federal judges ultimate authority over wide swaths of our political life that the men who adopted the Constitution on our behalf
never intended them to have.

Supreme Logic:
Fraud Is a Contract

According to John Marshall in Fletcher v.
Peck (1810), a fraudulent land purchase
was a "contract"-and was thus subject to
the protection of the Contracts Clause.
"Coincidentally," Marshall was a substantial land investor.

By the end of the War of 1812, the United States government had run up
a substantial amount of debt. To help manage it, President James Madison asked Congress in 1816 to charter the second Bank of the United
States-which was ironic, as he had been the leading opponent of the
constitutionality of the first Bank of the United States in 1791. He had
then regarded congressional legislation to charter a bank as an unconstitutional threat to American liberties and a telltale sign that Hamilton and
Washington wanted to overthrow the federal government. Only a politician could perform so breathtaking an about-face without feeling even
slightly inconsistent, and Madison was up to the task.

The second bank charter echoed the first in giving the federal government a 20 percent share in the bank. With that in mind, House Republicans, led by Kentucky's Henry Clay and South Carolina's John C.
Calhoun, sponsored the Bonus Bill. They would take the "bonus"-their
name for the federal government's profit as a bank shareholder-and
spend it on "internal improvements." These were what we now call
"infrastructure": a network of roads, bridges, and fortifications, as well
as the clearing of some major harbors and rivers. Madison and Jefferson
had each asked Congress in their State of the Union messages to appropriate money for these purposes. When the Bonus Bill reached his desk,
however, Madison-in his last major act as president-vetoed it.

In his Bonus Bill Veto Message in 1817, Madison explained his veto in
terms virtually identical to those he had used in opposing Hamilton's
bank charter bill in 1791: the Constitution's list of powers of Congress was exhaustive, the Bonus Bill's appropriations were for purposes not
enumerated in the Constitution, and therefore the Bonus Bill was unconstitutional. He had to veto it.

It was true that he had called on Congress to adopt measures like this,
but he had been careful, Madison pointed out, to note that Congress could
make up for any deficiency in its authority by initiating the process of
amending the Constitution. If it wanted to adopt measures such as the
Bonus Bill, that avenue still lay open. Madison said that, as written, the
Bonus Bill violated the basic tenets of Republican constitutionalism, as
had Hamilton's bank bill. The second bank bill, though nearly identical
in content to the first, did not raise similar constitutional concerns, he
said, because of the precedent established by Hamilton's bank.

Madison said that he had made a good-faith argument against the first
bank bill's constitutionality in 1791, but he had lost. Not only had Congress and President Washington considered the bill constitutional, but so
had a succession of other Congresses and presidents-else they would
have acted to repeal it. In Madison's estimation, the constitutionality of
congressional legislation chartering banks had become a dead issue.

Madison's argument boiled down to this: If Congress undertook to
exercise authority reserved to the states (the Bonus Bill), that was unconstitutional. If, however, the president signed Congress's bill exercising
state powers (Hamilton's bank bill) and a string of Congresses and presidents joined in the exercise of those powers, what had been powers
reserved to the states became powers delegated to the federal government.
What Jefferson had called, in the context of King George III and the Declaration of Independence, "a long train of abuses and usurpations, pursuing invariably the same Object" now operated to transfer power from
the states, where the people had intended to leave the power, to the federal government, to which they had meant to deny it! Small wonder,
then, that John C. Calhoun and Henry Clay did not understand the constitutionalism of James Madison.

To some Virginia Republicans, Madison's odd constitutional course as
president came as no surprise. In 1808, John Taylor of Caroline, John Randolph of Roanoke, and other disaffected Republicans who thought Jefferson had strayed from Republican principles-and that Madison was
worse-lit upon James Monroe as their standard-bearer. We need a man
of principle to oppose the Machiavellians in power, they said. To contrast
themselves to the seemingly nationalist Madison and his supporters,
these men called themselves "Old Republicans." It was a group that former president Thomas Jefferson himself sometimes supported. For example, as historians rarely note, Jefferson opposed Madison's bank bill.

Most Old Republicans were in the South. But Republicans in other
parts of the country sometimes joined forces with the Old Republicans to
oppose Madison. Many of them, in fact, opposed Madison's bank, and as
soon as it was adopted, some states passed measures intended to exclude
it from their territory. Ohio was a notorious example. A more prominent
one, by the vagaries of fate, was Maryland.

Maryland decided that it would keep the Bank of the United States
from opening a branch in its territory by imposing a stiff fee on it. The 1818 Maryland banking law said that any bank established "without
authority from the state" must issue only notes of certain denominations,
and then only printed on stamped paper, unless the bank chose to pay an
annual fee of $15,000. The Baltimore branch of the Bank of the United
States failed to comply with these requirements, and so Maryland sued
its cashier (branch manager), James William McCulloch.

Portrait of a Justice