Thursday, May 2, 2013

Book Review: The Activist

I picked up The Activist: John Marshall, Marbury V. Madison, and the Myth of Judicial Review as part of an informal study of American politics in the Adams/Jefferson years.  It was a much better read than I expected.  Ostensibly about the road to Marbury vs. Madison, Goldstone details the critical role of partisan machinations in early American politics. 

The Constitutional Convention was not expected to produce anything of significance and most participants attended meetings sporadically.  That the convention produced a new constitution reflected the skill and determination of a core of Federalists, particularly James Madison.  They had a specific agenda to strengthen the federal government at the expense of the states, there was nothing "bipartisan" about them.

Once the Constitution was passed it faced pitched ratification battles in the states, particularly in Virginia and New York.  Again those debates were anything but bipartisan, with anti-federalists striving desperately to derail the constitution or to approve it subject to amendment, which since it would require every other state to agree amounted to the same thing.

Nothing shows the role of partisan considerations better than the career of James Madison.  He bested Patrick Henry in debate and got Virginia to ratify the constitution.  In retaliation Henry blocked him from a Senate appointment and recruited Monroe to run against Madison for a house seat.  Monroe drew popular support with his call for amendments to the constitution, enough to pose a serious threat to Madison.  Madison had spent all of the Constitutional Convention and the ratification debate in Virginia fighting off such amendments, but now in order to earn a seat he flip flopped and embraced amendments himself.  He switched from being among the most ardent Federalists, writing with Hamilton and Jay the seminal Federalist Papers, to being an anti-Federalist and ultimately Jefferson's right hand man. 

Madison was truly brilliant, understanding first that popular disdain for the Articles of Confederation created leeway for an aggressively Federalist constitution, and then in betting correctly that the political center was shifting south and west and that expansion territories would not be Federalist.

Goldstone shows how narrow partisan interests were attached to broader conflicts over the role and strength of the federal government.  The Judiciary Act of 1801 for instance served a narrow purpose by allowing Adams to pack the courts with Federalist judges, but it also expressed a political view that the Federal courts should have broad authority and required a broad presence.  Jefferson attacked the courts both because they were federalist and because he wanted to disable federal courts so that state courts would take more responsibility.

This was the context in which the Federalist John Marshall confronted Marbury vs. Madison.  Had he ruled for Marbury he almost certainly would have been impeached.  He struck a balance by ruling against Marbury using a selective reading of the constitution as pretext, and using the opinion to excoriate Jefferson for not delivering the commission.  This was the high art of politics, incorporating partisan calculations and the broader principle of constitutional review.

Ruling the Judiciary Act of 1789 unconstitutional was certainly a means to an end.  But how strongly did Marshall believe in the concept of judicial superiority, and the idea that the court stood above Congress?  He never again struck down an act of Congress and it wasn't until Dred Scott that another court would do so.  A question for further reading.

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