First Among Equals Read Online Free PDF Page A

confined to the powers enumerated in the Constitution had failed to carry the day during Washington's two terms. Jefferson then lost a hard-fought, bitter contest to John Adams in 1796. But Jefferson was tenacious, determined to best the centralizing forces of the Federalist Party epitomized by his adversary, now President Adams. In 1800, his defeat of Adams, a virtuous, principled man lacking in political skills, finally brought the states’ rights advocates—the so-called Anti-Federalists—to power. The “Revolution of 1800,” as Jefferson dubbed the election, occurred after twelve successive years of Federalist domination.
    The business of the Supreme Court now began to pick up. Not only was there more work to do at the Court itself, but the justices often found themselves “riding circuit.” They would literally ride on horseback or take coaches to various cities and preside at trials.
    Not surprisingly, the Court, stocked as it was with Washington's and then Adams's appointees, was strongly pro-Federalist. Chief Justice Oliver Ellsworth's resignation in late 1800 gave the Federalists the opportunity to deepen their influence upon the judiciary. Notwithstanding his lame-duck status, President Adams took advantage of the Ellsworth resignation and nominated a brilliant, loyal Federalist from Virginia, John Marshall, to become chief justice. Adams also rushed through nominations of other judges to the lower courts. The “midnight appointees,” as they came to be known, were destined to dominate the federal courts for years to come. But no other appointment in history had the enduring impact of John Marshall's.
    More than any other figure save for Washington himself, John Marshall gave shape to the national government. In particular, Marshall affirmed the power of the nation's highest court to interpret the Constitution and federal law. Known as the power of judicial review, it was first given full expression in the 1803 case of
Marbury v. Madison.
The underlying dispute was simple: Was William Marbury entitled to a commission that, upon delivery, would permit him to take the oath of office as a justice of the peace in the new District of Columbia? From that tiny legal dispute a mighty doctrine grew.
    The issue is this: In a constitutional democracy, the Constitution is the ultimate authority, binding on all branches and levels of government. But the Constitution, since it is a written document, must be interpreted. Who is to do that? May each branch of government interpret the Constitution for itself? What if the president or Congress reads the Constitution differently from the Supreme Court? Which branch prevails?
    In the case that resolved this issue, William Marbury invoked a measure passed by Congress and signed into law by George Washington. The statute was the Judiciary Act of 1789. That law, among other things, created the attorney general's office. It created the United States Marshals. It created lower federal courts.
    But another provision of that law—and one invoked by would-be Justice of the Peace Marbury—said that the Supreme Court could hear as an “original” matter (that is, without any lower court passing on the case) certain legal actions, namely lawsuits seeking a writ of mandamus. Mandamus is an ancient writ at common law and is still in active use today. To “mandamus” someone is to secure an extraordinary directive requiring an official (including judges) to take certain action, or to cease and desist from a court taking certain action (called in bygone years a writ of prohibition).
    Invoking the mandamus provision, William Marbury filed a petition in the Supreme Court to mandamus the incoming secretary of state, James Madison, to deliver the justice-of-the-peace commission that had been authorized by outgoing President John Adams and signed by then Secretary of State John Marshall. Marshall, who hadn't delivered Marbury his commission, was now chief justice.
    Marbury doubtless entered