Published in Being Libertarian 10/1/2020
Justice Ruth Bader Ginsburg’s death has created a frenzy over her successor in the U.S. Supreme Court (SCOTUS). Democrats are outraged, as if the sky were falling, that President Trump may get three SCOTUS appointments in a single term. Republicans are chomping at the bit to get the opportunity to, what they believe will, tip the balance of power in their favor, although many will be eating their words after the whole Merrick Garland episode. The controversy is all the media will be talking about over the next week, possibly up until the November election.
Why so much fixation on one government position? In the Roberts era (2005-present) alone, a single judicial vote has been the deciding factor in major issues such as gun rights, Obamacare, immigration, warrantless data collection, same-sex marriage, contraception, Environmental Protection Agency regulation, and voting rights. SCOTUS regularly strikes down actions by the President, Congress, and the states. Opinions from the same justices are hard to reconcile with in different cases, because they are partisan hacks that will use whatever “interpretation” they want to get their desired political outcome. The unfortunate truth is that nine oligarchs with life terms determine the rules over 300 million people have to live by, permeating every aspect of life with no check on their power, and no ability to vote them out.
Does this sound contrary to the republican form of government the framers and ratifiers had thought they had put in place and millions of Americans are taught in school that they live under? Didn’t the Constitution put in place three co-equal branches of the federal government, with the sovereign states as an equal check on federal power? King George III’s rule in America never rivaled that of a contemporary federal judge. We can thank John Marshall for tipping this balance of power when the ink was barely dry on the Constitution.
John Marshall was the fourth SCOTUS Chief Justice and the longest-serving Chief Justice in U.S. history (1801-1835). An ardent nationalist, but lesser known than his ally Alexander Hamilton, who I recently wrote about here, the two shared a very similar vision for the United States and willingness to engage in duplicity to see their vision come to fruition. Marshall was so much a Hamiltonian that some of his opinions nearly echoed Hamilton verbatim.
Marshall is often revered as “the Greatest Justice in American History” and “the Man Who Made the Supreme Court.” He certainly made the Supreme Court – made it despotic, that is. Most law schools and law professors have never-ending adoration for him. Like many mainstream American “heroes,” this is because Marshall made a tremendous impact still felt today. Like these “heroes,” this impact is generally negative.
While the prior three Chief Justices left little mark on the political landscape of the United States, Marshall would elevate the importance of the position to ensure his nationalist vision took effect. Marshall assumed his seat on the SCOTUS after appointment by President John Adams in 1801 and would make sure to make his impression felt with the most impactful decision in U.S. history, Marbury v. Madison in 1803.
The First Landmark Case
President John Adams and his centralizing Federalists had worn out their welcome by 1800, in large part due to high taxes, the quasi-war, and the draconian Alien and Sedition Acts. This led to the opposition Jeffersonians, who supported decentralization, taking over the federal government in that year’s election. Adams appointed as many Federalists as possible to the judiciary during the final days of his lame-duck term in an effort to hold on to whatever power they could – including John Marshall as Chief Justice of the Supreme Court.
The Secretary of State was responsible for delivering the commissions of Adams’ appointees, but due to laziness, figured his successor could worry about it. The commissions never did get delivered. Who was the Secretary of State that shirked this duty? None other than John Marshall.
When the Jeffersonians took office the following year, the new Secretary of State, James Madison, refused to deliver the undelivered commissions waiting on his desk. It was determined by Madison and President Thomas Jefferson that the commissions were void since they hadn’t been delivered in time, preventing their political rivals from holding these appointed positions.
One of those appointed for justice of the peace who hadn’t received his commission, William Marbury, was persuaded by Federalists to challenge this in court. John Marshall, the one who created this debacle, now sat as Chief Justice of the SCOTUS hearing this case. If he had any integrity at all, he would’ve recused himself.
SCOTUS struck down part of the Judiciary Act as unconstitutional, giving the SCOTUS the power of judicial review. This ability to strike down any and all actions of the other two branches of the federal government deemed “unconstitutional” gave SCOTUS the ultimate authority with no check against it. Marshall and his court had unilaterally shredded the balances in the Constitution and made the SCOTUS the superior branch of government.
Many of the founding generation were shocked by the decision, as this wasn’t a power delegated at ratification. Jefferson decried the outcome in a letter to Abigail Adams in 1804. He wrote many more times criticizing the opinion, including, “… certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches,” in 1815.
Smashing the States and Stretching the Constitution
Now that Marshall had opened the door for the SCOTUS to rule unchecked, he used the newly-created power to fulfill his nationalist agenda.
Even though Marshall promised that federal courts couldn’t overturn state law prior to ratification, he pulled the Hamiltonian bait-and-switch as Chief Justice. Marshall delivered the opinion the first time a state law was declared unconstitutional, in Fletcher v. Peck (1810). In Martin v. Hunter’s Lessee (1816) and Cohens v. Virginia (1821), the Marshall Court established that federal courts could hear appeals from state courts, destroying the sovereignty the states believed they had retained at ratification. This blow to the knees of federalism made the states no longer the interpreters of their own laws. The trend continued throughout the 19th century until the states were relegated to the status of mere corporations they are today.
Marshall wouldn’t stop at defeating the states en route to his nationalist dream. He needed to expand the federal government’s power by “interpreting” the Constitution to fit his political aims, a practice that has been done countless times ever since. In McCulloch v. Maryland (1819), he determined that creation of a national bank was constitutional. Where did this power lie? It was an “implied power” in the necessary and proper clause, opening the door for it to become the “everything and anything” clause it is today. One of Marshall’s other crowning achievements was holding that navigating intrastate waters was “interstate commerce” in Gibbons v. Ogden (1824) and therefore could be regulated by Congress by virtue of the commerce clause.
SCOTUS was not intended to penetrate every aspect of American life. The federal judiciary wasn’t supposed to be that important at all. Alexander Hamilton even said it would be the weakest part of the government in Federalist 78.
The position was so lacking in prestige, that John Adams only turned to Marshall to fill the position after several others had already turned it down. Marshall decided to give the position the importance it has today. He realized it would be much easier to get his nationalist agenda in place by forcing it down America’s throat through judicial fiat as opposed to waiting for the legislature to enact policy.
Marshall’s legacy has stood the test of time. He destroyed federalism and helped take the federal government’s powers from “few and defined” to “anything and everything.” Thanks to Marshall, the commerce clause has been expanded for the federal government to regulate everything in existence. Wickard v. Filburn (1942) and Gonzalez v. Raich (2005) took his conclusion to the logical extreme, establishing that Congress can regulate crops in one’s own backyard, for one’s own use, even when the “commerce” is purely intrastate.
Those paying homage to “the Notorious RBG” celebrate her as “a woman that fulfilled her vision on the Court.” That’s the entire problem – that isn’t what the judiciary is for at all. That’s the legislature’s role. Ginsburg wasn’t the first to wield her power on the bench to create desired policy outcomes, nor will she be the last. Nearly every SCOTUS justice has. We owe all of that to the first to do it, John Marshall.