How to Win a War While Wearing a Frocked Wig

In the election of 1800, there was a fight for the soul of the country.  Was it going to be won by the Federalists, led by John Adams, or by the Democratic-Republicans, led by Thomas Jefferson? Of course, Jefferson won.

Adams decided to give the country one last full kiss on the lips with tongue of Federalism before he checked out.  In his lame duck last days, he appointed a number of Federalist judges to new posts, much to the fury of the Democratic-Republicans.

However, not all got in under the wire.  One, in particular, William Marbury, did not get delivered his appropriate documents before the Adams administration was run out of town. When the new administration came in, Secretary of State James Madison refused to deliver them.  In true American fashion, Marbury sued to get seated. Thus ensued the court case, Marbury v. Madison, one of the most famous court cases in US history.

John Marshall, the supreme court justice, was in a pickle. He was an ardent Federalist, so his natural inclination was to support Marbury.

However, he was also a pragmatist.  After 12 years of government, the US Supreme Court still was defining its position in relationship to the executive branch and the legislative branch. The court could not make laws nor execute laws.  It had no army or navy at its disposal. What was its relevance?

At this juncture in US history, if the court ruled against the government and forced it to seat Marbury, there was a very real possibly that Jefferson would have told it to go pound sand and ignore it, which would have rendered the Supreme Court totally irrelevant.

So, Marshall went crafty.  He first of all refused to seat Marbury on pure technical grounds, so there was no need to risk having the government override him.  He then went on and said that even though in this case, the court is not compelling the government to seat him, it had the authority to do so.  It had the authority to review all laws passed by the legislature, and if any of those are found to be in violation of the constitution, that it could over-rule it.  It was the final arbiter on what was and was not constitutional.

Although the Jefferson administration disagreed with the logic, ultimately since they obeyed it, the legal precedent of judicial review was established.  While it drives many people crazy (right of privacy…where the fuck does the phrase right of privacy appear in the constitution?), it is still in place.  Obviously, the US Supreme Court is still…um…supremely relevant today.

A classic case of how lose a battle but win a war.


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