Thomas Jefferson and the Court

WARREN E. BURGER

Editor's Note.- Chief Justice Burger delivered this address as the Society's Annual Lecture on June 3, 1991.

My story begins on a brisk spring morning in 1801, March 4. A group of men were waiting in the Capitol for the President-Elect of the United States to take the oath of office. One of the two men waiting was John Marshall. Marshall had just taken office as Chief Justice of the United States by President Adams's appointment but, at Jefferson's request, he was still holding the office of Secretary of State. Waiting with Marshall was a short, slim fellow about the same age, 45 or 46, named Aaron Burr, who had just taken the oath as Vice-President of the United States. (Remember at that time we had no formalized political parties as such. Men filed as candidates for President and the candidate who received the most votes became President and the runner-up became Vice-President.) John Adams, the incumbent President, came in third. Neither Jefferson nor Burr had secured the required majority in the Electoral College and the election went into the House of Representatives where, on the 36th ballot, Jefferson was elected by a margin of one vote.

Another carriage drew up with Mr. Jefferson and some of his friends. Jefferson was a widower, his wife having died a number of years before. The men greeted each other formally and John Marshall administered the oath of office to Jefferson. Jefferson's inaugural speech was brief and conciliatory: "We are all Republicans and all Federalists."

That meeting of Marshall and Jefferson alone deserves a footnote in history. Although they were cousins, Thomas Jefferson did not like John Marshall--to put it mildly--and John Marshall did not have all that much respect for Thomas Jefferson. Here another footnote tells something of the politics of 1800:

Alexander Hamilton had written to John Marshall during the campaign that, as much as he distrusted and disliked Thomas Jefferson, the choice between Thomas Jefferson and Aaron Burr was clear, and he hoped Marshall would do what he could to develop support for Jefferson, the lesser of two evils. Now Hamilton's "lesser" was President. It was probably a surprise to Marshall that Jefferson asked him to administer the oath.

The odds are that Jefferson never cared much for Aaron Burr and, on that day, it must have rankled him that the man who almost took the Presidency away from him was going to be his Vice President. What was Burr thinking about while he was waiting for Jefferson's arrival? What was going through Burr's mind about their relationship? That if he had not killed Hamilton in a duel he might be President? Did he rue his failure to solicit votes in the House? And John Marshall, did he think back to the time when Thomas Jefferson, then Governor of the State of Virginia, handed Marshall his certificate to practice law?

Our story now moves on to one of the great cases in Supreme Court history, Marbury v. Madison. And it is a great case, just as John Marshall was the Great Chief Justice even though the immediate cases were small. Mar-bury, a local political figure, was appointed a justice of the peace by Adams, a position that has long since been abolished. Adams had sent Marbury's nomination to the Senate, the Senate had unanimously approved it, and the nomination went back to the White House, where the President signed and Secretary of State John Marshall attested Marbury's commission. Jefferson recites in one of his letters that, when he took office, he found that Marbury's commission had not yet been delivered, and he destroyed it.

At that time there was a statute of the United States, Section 13 of the Judiciary Act of 1789, which had been largely drafted by Oliver Ellsworth, who was later to become the third Chief Justice. Section 13 provided in part that, if a member of the Executive Branch did not do what the law required, any person injured by that failure could bring an original action in the Supreme Court of the United States to compel performance. Relying upon this statute, Mar-bury sued Jefferson's Secretary of State James Madison in the Supreme Court to get his commission.

We know, of course, that the Constitution carefully defines what actions may originally be brought in the Supreme Court, and it does not include the kind of action that Marbury brought pursuant to Section 13 of the Judiciary Act. Marshall's 1803 opinion for the Supreme Court in Marbury v. Madison is remarkable for a number of reasons, but principally because it is generally viewed as the case that established the principle of "judicial review," the authority of the Supreme Court to invalidate a legislative act if it is in conflict with the Constitution. Although Marbury was the first Supreme Court decision to declare an Act of Congress unconstitutional, the principle of judicial review had been established previously, in a different context, in the Court's 1796 opinion in Ware v. Hylton.

Coincidentally, Ware was the only case that John Marshall ever argued in the Supreme Court, and he lost. I cannot believe that the fact that Marshall lost Ware explains his failure to cite to it in Marbury. I have speculated on that omission for some time, but the only explanation that suggests itself is that Ware was factually distinguishable, in that Ware struck down a state statute on the grounds that it conflicted with the 1783 Treaty of Peace between the United States and Great Britain. The state statute in question--which had been passed when Jefferson was Governor of Virginia at the beginning of the Revolution--called for Virginia debtors to pay debts owed British creditors into a fund, and provided that the impounded funds would be paid to the British creditors when the War was over.

John Marshall, remarkable lawyer that he was, knew very well that the Treaty Clause of the Constitution, like the Constitution itself, was the supreme law of the land, and that any state or federal legislative act that conflicted with the terms of a federal treaty was void. So Marshall avoided the point. Remarkably, Marshall's entire oral argument was taken down in shorthand and has been preserved for history. The substance of Marshall's argument to the Court--which can be found in Professor William Swindler's fine work on Marshall and the Constitution--was that since the debts were incurred and the funding mechanism was created before the Constitution was framed and adopted, the Treaty Clause had no application. It was a good argument but, given Marshall's views on Article III, he could not argue otherwise, because the Treaty Clause is perfectly clear. Marshall lost the case and, in my view, as a judge I think he would have reached the same result that the Court did. It seems curious, however, that he did not cite to Ware in Marbury, or at least make some tangential reference to it, for in that time setting aside a state law was, in the minds of many people, more serious than setting aside a law passed by the Congress.

After Marbury v. Madison was decided, Thomas Jefferson referred to the Supreme Court Justices as "thieves in the night." Curiously, there were times when he seemed to acknowledge that the Supreme Court held the power of judicial review over legislative action, but he did not agree with that idea if it threatened to obstruct something he wanted done. In the 17,000 or more letters that Jefferson left to posterity, there is no real explanation for his view of judicial supremacy. Many scholarly works have exhaustively reviewed all of Jefferson's letters, yet there is no explanation of why Jefferson was so bitter toward the Supreme Court. Possibly it was because, although Jefferson did not love England, he was an admirer of the parliamentary system, and he espoused the idea that the hardy yeomen of America, not six or nine non-elected Justices, should run the country. It deserves mention that Marshall went out of his way to scold--even excoriate--Jefferson's petty handling of Marbury's commission. But here we see Marshall the teacher -- although not yet the sophisticated teacher of later years.

Jefferson's close friend and recognized spokesman, William Branch Giles, was a member of the U. S. House of Representatives from Virginia and later became a member of Senate. He wrote:

In other words, the Supreme Court was supposed to do what the President and the Congress told the Justices to do. In one letter written in 1801--two years before Marbury-Giles said to Jefferson:

Of course, men close to Virginia politics knew that John Marshall had made his position clear on this subject long before anyone thought of his being a member of the Judiciary. As a young man still in his thirties at the Virginia Ratification Convention in 1788, Marshall responded in debate to Patrick Henry's opposition for a strong Judiciary saying:

Marshall's view was the prevailing view among lawyers of that day. Indeed, even Thomas Jefferson's favorite judge, Spencer Roane, the Chief Justice of Virginia, whom Jefferson likely would have appointed as Chief Justice had the opportunity arisen, held a Virginia statute unconstitutional on the grounds that it conflicted with the Virginia Constitution.

The record is clear that Jefferson wanted to destroy or at least curtail the independence of the federal courts, but he decided to go about it gradually. In 1800, there were only thirteen federal district judges in the country, one for each State, and the six Justices of the Supreme Court who had to go out on circuit trying cases and hearing appeals. John Pickering, the District Judge from New Hampshire, suffered from poor health, exacerbated by his excess use of spirits. He had not done any work or shown up at his court a long time, and was obviously not fit to carry on the work of a federal judge. In that day, however, there was no provision for the retirement of federal judges for medical reasons. Pickering was impeached by the House in the morning under the guidance of William Branch Giles, Jefferson's close associate, and the Senate trial was conducted in the afternoon. Pickering made no appearance in person or by counsel, and put in no defense. He was swiftly convicted and removed from office.

It is accepted by many historians that a major purpose of the Pickering impeachment proceedings was to condition the American mind to the idea that "lifetime" federal judges were not really appointed for life, but only "during good behavior," and could be removed from office for something less than "high crimes and misdemeanors." Congress can hardly be faulted for removing a judge whose health prevented him from performing his duties, but the use of the impeachment process in this manner set a pattern.

Jefferson's next step was use the impeachment process against a Supreme Court Justice. This time, Jefferson selected another somewhat vulnerable member of the Judiciary, Justice Samuel Chase of Maryland. Chase was a very able lawyer who had signed the Declaration of Independence and had been a member of the Continental Congress, but as a Justice he was somewhat injudicious, especially when riding circuit hearing cases as a trial or appellate judge. He lacked judicial temperament and, while riding circuit, he mistreated lawyers, especially, it was said, Jeffersonian lawyers. None of Chase's conduct really amounted to high crimes and misdemeanors sufficient to support an impeachment, but Jefferson was out to make a point.

Some of the great lawyers of that day, and there were many great ones, saw the impeachment of Chase as an attack on judicial independence, not just on Chase. They viewed the proceedings as the second step in a plan to subjugate the Judiciary, and they believed that the third step would be an attempt at removal of Chief Justice John Marshall--indeed, this is what Marshall and other members of the Supreme Court thought. Accordingly, some of the ablest lawyers of the day got together and defended Chase and he was acquitted by a narrow margin. John Marshall and his brother Thomas Marshall were witnesses on behalf of Chase. Here was one time in his career when John Marshall was subject to criticism by his peers. He testified so mildly and meekly and in such a tentative way that his own brother criticized him. He would answer questions by saying "I don't respond to hypothetical questions," or "I was not there, I cannot respond." Marshall's performance during Chase's trial was not important in the long run, but it is interesting to note that these great men--Jefferson and Marshall--showed weakness at times.

At the end of Jefferson's first term in office, Jefferson did not want any part of Aaron Burr in his administration, and it is reasonable to assume that Burr did not want any part of being Vice-President. Jefferson had totally ignored him during the early years and the only time he got any attention was when he presided over the Senate impeachment trial of Justice Chase. Interestingly, while Burr was presiding over the trial of a Supreme Court Justice, he was under indictment for murder in New York and New Jersey as a result of his duel with Alexander Hamilton. Duelling was against the law in those states. Even Burr's critics conceded, however, that he presided fairly in the Chase trial, uninfluenced by Jefferson's sudden flood of patronage.

We turn to Burr now. He was a very astute politician, an extraordinary lawyer, very successful in his own career. He had been Attorney General of New York, Senator from New York and then Vice President. With nothing to do after 1804, his fertile mind turned to ideas about the development of the West. First he explored ideas with various American leaders and then he went off to Europe, ostensibly to get financing. None of the chiefs of state in the countries of Europe would see him, but he encountered other leaders in the countries of Europe exploring ideas for financial support for expansion and development of our West.

When he returned to the United States he went out West and Jefferson, who was always suspicious of him, finally ordered General James Wilkinson, the military commander of the western territory, to check up on Burr and follow him. Wilkinson did that and sent regular reports to Jefferson. There are about twenty or more pages in Professor William Swindler's book on Marshall and the Constitution covering Wilkinson's reports on Burr's activities.

Burr had assembled up to 100 men, and they had supplies and flat boats coming down from Pittsburgh, ultimately into the Mississippi. Wilkinson's reports led Jefferson to send a series of messages to Congress. In that day they did not have press releases and press conferences, but Jefferson's messages were filled with very damaging accusations against Burr. There was a proclamation in 1806 saying that Burr and a group of people were "conspiring and confederating" together to plan an invasion of Mexico, and that this was a "criminal enterprise." Rumors circulated of Burr's aspirations to become "conqueror" of the Southwest territory. Jefferson's formal message to Congress recited that Burr's group was "organized and officered by people with military background," and he called upon all officers of the government and all judges to watch out for Burr and take him into custody.

There is page after page of that kind of language in Jefferson's messages to Congress. The essence of it was that Burr was a traitor and should be hanged. Jefferson was talking about his former Vice-President, a man who served as a colonel on George Washington's staff in the Revolution, and who served in the United States Senate. Then, acting on the basis of the information he had received and his messages to Congress, Jefferson had the United States attorneys in one of the districts in the South try to get an indictment against Burr. A grand jury heard the evidence against Burr but refused to return an indictment on the grounds that the evidence did not warrant such action. Jefferson then went to another district and the grand jury said the same thing, "not enough evidence." Then the military arrested Burr and brought him back in chains to Virginia and in Richmond he was hauled before the grand jury again.

In those days, John Marshall, like the other Justices, was trying cases and overseeing grand juries as well as sitting on temporary courts of appeals. Grand jury hearings on Burr went on for weeks with Marshall presiding. The record of the Burr case would be almost as large as Professor Swindler's entire book. Here was John Marshall, not only the judge, but John Marshall the jurist-statesman and John Marshall the teacher. He moved very slowly. It was very difficult to find people to sit on the grand jury because of the campaign against Burr that Jefferson had waged for months in Congress and in the press. For months the country had been saturated with messages and reports that Burr was a traitor, a treasonous plotter, and a criminal. However, they finally got a grand jury and the grand jury did indict. Then it went to a jury of 12 for a trial on charges of treason and, again, it was very difficult to get a jury that had not heard much about the claims and had no fixed opinions. But they finally secured a jury to try the case. Then the Constitution came into play, and John Marshall instructed the jury on the Treason Clause, which provides that "[n]o person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt act, or on Confession in open Court." The history of the Treason Clause begins in England where it had been rather easy in earlier times for the Kings to secure a treason conviction against some fellow who was not keeping in step politically. Only one witness for the prosecution was enough. Our delegates at Philadelphia were very conscious of this.

In Burr's case, there was some evidence of overt acts that might look like treason, or at least a plan to commit treason. There were some overt acts that might suggest some people were preparing to get into armed activities with Mexico. But the fact they all had guns was of course no evidence of treason. In those days people did not go ten miles out of Richmond or Charleston without a gun, either to get a deer, or turkey or pheasant, or simply to protect themselves from highwaymen or roving Indians. Marshall was precise and clear in his jury instructions, especially on the constitutional requirement that there be two witnesses to the same overt act. And there was no such evidence. During the trial, Burr, the lawyer that he was, said that he wanted to see all of General Wilkinson's reports. As it turned out, Jefferson and his people did not want to call Wilkinson as a witness, but Marshall granted Burr's request and Marshall reviewed the reports. When they got through cross-examining General Wilkinson there was no reputation left in that man. He was torn to shreds as a falsifier and there was nothing left of his credibility. In response to Burr's request to see the military reports, Jefferson at first objected and argued that the reports could not be released because they were reports from a military commander to the Commander-in-Chief, and that such release would pose a threat to national interest. Jefferson was asserting what we call today "executive privilege." Marshall responded stating that he would decide whether there was anything in the reports that might endanger the national interest. The first reports that Jefferson sent in, over objection, had what we would call today asterisks and Marshall wanted to know what "these things were." "Omissions." "Omissions by whom?" By the President in the national interest. Marshall then said he would look at all the omitted material in camera and decide on its admissibility. By that time, Burr and his very brilliant set of lawyers had milked the issue for all it was worth; General Wilkinson, the major witness against him, had been torn to shreds, and the jury acquitted Burr.

In Washington, or perhaps Monticello, wherever Jefferson was, he raged, saying John Marshall had directed a verdict in favor or Burr. But no one could seriously think that Marshall was biased in favor of Burr. Marshall's close friend and wartime and political comrade, Alexander Hamilton, had been killed by Burr in a duel. Indeed, Burr would have had a reasonable basis to challenge Marshall's impartiality in the case because of his friendship with Hamilton.

But when we look at these three remarkable men, Thomas Jefferson was an aristocrat with a huge plantation, who wrote eloquently about the dignity of every human being while he was farming his vast estate with two or three hundred slaves. He was on record against slavery in principle, but he was locked in along with the others in the South. The plantation economy was locked in with slavery; it was pretty difficult to get away from it. But when you think of his conduct, particularly his statements about the Supreme Court and judicial independence, his conduct in the Burr case, it's a far jump, but one I am willing to make. Jefferson's conduct there was reminiscent of the late unlamented Senator Joseph McCarthy from Wisconsin. McCarthy did not send messages to Congress as devastating as the messages Jefferson sent regarding Burr, but his technique was the same. In reality, Jefferson's conduct was even worse than McCarthy's, because what he said and wrote carried more weight with the people than the words of one United States Senator.

John Marshall was one of 14 children who grew up in the backwoods. He had a tutor who moved around and lived with families in those days. And then for one year he lived at a tutor's home with a number of students. While Jefferson's scholarly attainments, and they were very great, are often commented on, we have all tended to overlook that John Marshall read the great works in Latin and Greek but he never made a point of this. In those days there were no law schools. He studied law privately and spent only a few months at the College of William and Mary in Williamsburg under the great teacher George Wythe. He left when he was 26 to marry Polly Ambler who was 17. They in turn had six or seven children. It was never attributed to Jefferson himself, but some of his entourage said that Marshall was a backwoods bumpkin country lawyer. He in-deed came from the backwoods, but "country bumpkin lawyer" hardly fits the mind that we see in those monumental opinions of his. One of the least unfavorable things that Jefferson said about Marshall was, and it was really an unconscious compliment, was that "whenever I talk to John Marshall I am very careful." If you concede his first premise, no matter how innocuous or innocent, "you are lost." He didn't put it quite that way, but he said you find at the end of a conversation with Marshall that you have agreed to something that you don't agree with at the start. Pretty good compliment.

Now, as to Burr, what would have happened if he had done a little campaigning and been elected President? He might have been a great President. He was a man of extraordinary political skills and experience, an extraordinarily able lawyer; in that sense in the same class with Marshall and Jefferson. A man eager to do something to expand the country, a true activist. He, like Jefferson, would have been in favor of carrying out the Louisiana Purchase, even though Jefferson himself acknowledged that the Louisiana Purchase was an unlawful act. In one of his letters responding to criticism about the Louisiana Purchase, Jefferson said that "there are times when a leader must rise above the law in the overall national interest." Burr would have done the same. We wouldn't want that as a general rule, but Franklin Roosevelt had to do much the same to carry out the Lend Lease program, and he probably saved England and thereby saved the whole world from a lot worse.

So as we look at these men with all of their talents and virtues, and some flaws, the conclusion I have long since reached is in the form of a question. Who would want to be governed by angels and judged by saints?

For my part, I will let the angels and saints stick to their regular jobs.