EQUAL JUSTICE UNDER LAW

Documentary Films on the Supreme Court

"Equal Justice Under Law"–the motto on the front of the Supreme Court building as well as the title for a long-established and popular booklet produced by the Federal Bar Association–is now also the series title for five documentary films on the American constitutional heritage as exemplified in epochal constitutional cases under Chief Justice John Marshall. The films began showing over Public Broadcasting Service stations throughout the country this fall, as well as to schools and colleges. A "premier" showing of the first film, on Marbury v. Madison, was held at the second annual banquet of the Supreme Court Historical Society last May.

Originally commissioned by the Bicentennial Committee of the Judicial Conference of the United States as part of the federal judiciary's observance of the national bicentennial in 1976, the concept of the film series was soon broadened to achieve a more lasting public interest. In the first place, it was recognized at the outset that there was no two hundredth anniversary for the court system to be marked in 1976 (see "Of Revolution, Law and Order," in YEARBOOK 1976). The judicial article (Article III) of the Constitution was not framed until 1787. Thus the releasing of the films in 1977 was an appropriate commemoration of the 190th anniversary of the work of the Convention at Philadelphia which drafted the Constitution.

In the second place, it was recognized that the best means of recognizing the function of the judiciary in the American constitutional system would be to dramatize the first principles of American constitutionalism for which the War of Independence was fought and for which Marshall's Court became the most articulate spokesman.

Prepared by WQED/ Pittsburgh, the film series deals with a central idea in each of four cases–the renowned judicial review argument in Marbury v. Madison in 1803; the Burr treason trial (see accompanying article on "The Trials of Aaron Burr") in Richmond in 1807, which illustrated two fundamental principles, of executive accountability and of an unpopular defendant's right to a fair trial; the "bank case" of 1819 (McCulloch v. Maryland) defining the "necessary and proper" powers of Congress under the Constitution; and the "steamboat case" (Gibbons v. Ogden) of 1824, defining commerce clause powers.

Film actor E. G. Marshall was selected to narrate the opening and closing commentary on each of the films. His judicial role in the popular television series, "The Defenders," fortuitously complements the dramatized litigation of the Marshall Court portrayed in the present series. The drama department of Carnegie-Mellon University in Pittsburgh worked closely with WQED in preparation of the films, with several professors at Carnegie-Mellon and the Law School at the University of Pittsburgh serving as advisers. Chief liaison between the film makers and the Bicentennial Committee was Dr. William F. Swindler, consultant to the committee on its several anniversary projects and chairman of the publications committee of the Supreme Court Historical Society.

An independent project, but related to the documentary series, is Dr. Swindler's forthcoming book, The Constitution and Chief Justice Marshall, to be published this fall by Dodd, Mead & Co. of New York. The volume provides a narrative account of these cases, as well as containing a complementary chapter on the development of constitutional doctrine on federal-state powers exemplified in the Dartmouth College case (see also "Backstage at Dartmouth College" in YEARBOOK 1977). In addition, the volume reproduces the essential documents on which the litigation in these cases was based. Thus the book will serve as an optional background reading reference for the film series, particularly as it is used in classroom situations.

Already praised for authenticity and dramatic value, the film series is expected to have a long run.

Commissions–Signed, Sealed and Mysteriously Lost

Did William Marbury really want to be a justice of the peace in the new District of Columbia–or was he put up to demanding his commission by Federalists seeking to test the new Jeffersonian administration? Didn't John Marshall know what had become of the undelivered commissions which outgoing President John Adams signed and Secretary of State Marshall sealed–since Marshall had stayed in office for some ten days after Jefferson's inauguration? Was there any similarity between the disappearance of the commissions and the erasing of a famed 181/2 minutes of tape in the byzantine litigation over Watergate? Should Marshall as Chief Justice have disqualified himself in Marbury's suit? Couldn't the famous Section 13 of the Judiciary Act have been construed to confer original jurisdiction on the Supreme Court? And wasn't the jurisdictional issue the threshold question, making irrelevant all the rest of the famous opinion?

If the answer to any or all of these questions is affirmative, the famous case of Marbury v. Madison appears more clearly for what it really was–a titanic contest between Chief Justice Marshall and President Jefferson over the role of the judiciary in the evolving constitutional system. Jefferson forcefully advocated a separation of powers in government that assumed that each branch of government would determine for itself the extent of its constitutional powers. Marshall was equally convinced that such a theory would not work in the practical context of a written constitution which required interpretation by the single branch of government logically qualified for that function–the judicial branch.

A brilliant combination of statecraft and politics enabled the Chief Justice to avoid an impasse in which the Jeffersonian branches would have been able to ignore him. With the anti-Federalists prepared to refuse to enforce any interpretation of the statute, Marshall simply held the statute itself unconstitutional.

Burr? Jefferson? Marshall? Who Was Guilty of What?

The treason of Aaron Burr, said the President of the United States of his former Vice President, was "beyond question." This indiscrete prejudging of an accused man was made in a special message to Congress in February 1807. Did this fatally prejudice the government's case–at least to the extent that John Marshall would demand the complete and literal proof of treason under the terms of the Constitution? For that matter, did Jefferson really believe that Burr was guilty of treason–or was Burr the only available scapegoat for national frustration as the young Republic was buffeted by great powers? If Burr was prepared to foment war against the United States–as his correspondence with Napoleon Bonaparte three years later unequivocally declares–was he bent on the same thing in his mysterious expedition into the Western wilderness in 1806? If the famous cipher letter was prima facie evidence of Burr's treasonable activity, why was Jefferson so adamant about refusing to deliver it to the Court?

The case of United States v. Burr was, of course, a criminal case, never reviewed in the Supreme Court because Burr was acquitted on both the charges of treason (levying war against the United States) and high misdemeanor (planning a military campaign against the possessions of a foreign country with which the United States was at peace). By the terms of the Jeffersonians' own judiciary act of 1802, restoring circuit riding duties to Supreme Court Justices, John Marshall sat on the case in the Circuit Court in Richmond, Virginia along with United States District Judge Cyrus Griffin. It was all intensely personal: Griffin, Marshall, Jefferson, United States Attorney George Hay, Congressman (and later Senator) William Branch Giles, William Wirt, John Wickham–all were Virginians and most had known each other from early Williamsburg days of the pre-Revolutionary and post-Revolutionary legislature and the law program of the College of William and Mary.

Even treason, which has a quaint and archaic sound to modern Americans, and impeachment, which carried less of the opprobrium then than it has now, were essentially devices at hand for vigorous personal combat in the courts or the halls of Congress. Amid all of this welter of legal stratagems, Chief Justice Marshall used the Burr case to lay down two fundamental principles: where evidence is deemed essential to the just administration of a criminal prosecution and defense, all persons, up to and including the highest officials of government, are amenable to judicial process; and however unpopular a defendant, particularly if the "hand of malignity," is suspected, he must be assured a fair and impartial trial under our system of justice.

Was Aaron Burr guilty of a felony or misdemeanor? If so, which or what? Was Chief Justice Marshall, in the question posed by Associate Justice Bushrod Washington, likely to have demanded the same strict accountability in the Chief Executive if that person had been his lifelong hero, George Washington, as when that person was his lifelong antagonist, Thomas Jefferson?

 

The "Supreme Law of the Land" Defines "Necessary and Proper"

What was the purpose of the chartering of the Bank of the United States? If that purpose was manifestly related to the expressed powers of the federal government under the Constitution, did the authority to charter a bank have to be mentioned in the Constitution itself? And if the power to charter a bank by Congress was accepted as analogous to the state legislatures' power to charter state banks, why could not the state taxing authorities levy taxes on the federal bank as Congress levied taxes on the state banks?

The case of McCulloch v. Maryland, like most great constitutional cases, treated the problems of the Maryland branch of the Bank of the United States as incidental to the broader issues. (Whether Marbury was or was not personally entitled to his justice of the peace commission, for example, was decidedly secondary to the doctrine of judicial review for which his case was the springboard.) Hence, the incompetence of the management of the Bank of the United States in its first three years (1816-19) which made it something less than a heroic agent for establishing a great constitutional principle, was both immaterial and unimportant in the "bank case." The basic point was that, in the view of the Marshall Court in 1819, the necessity of having such a bank was a matter for Congress to determine. That disposed of the first question; in Marshall's words, whatever was a legitimate end, and not directly prohibited by the Constitution, was "necessary and proper." The second question was logically answered by the disposition of the first: if the Constitution and the laws enacted under it were the supreme law of the land, no state law could impede the nation in the execution of its Congressionally determined policy. Was this, in the final analysis, a quasi-Jeffersonian doctrine, that Congress should be the effective judge of its powers and their scope under the Constitution?

 

State Burdens on Commerce Between States vs. Free Trade

If no state may burden interstate commerce, does this mean that no state activity in the field of interstate commerce can ever be permitted? And what is interstate commerce–the act of transporting goods from the last point inside one state border to the first point inside the other state border? What of goods being shipped from New York through Pennsylvania, Maryland and Virginia to North Carolina–how does federal authority operate within the borders of the states between the beginning and end of the commerce? And what is subject to the federal power–the act of transporting the goods, the medium by which they are transported, the nature and quality of goods, or the conditions under which they were manufactured? And can Congress forbid the use of interstate commerce to effectuate national policy, as in prohibiting shipments of lottery tickets, firearms, prostitutes, or racially discriminatory activities?

These questions were, for the most part, unknown to the Court in 1824 which handed down the basic decision in Gibbons v. Ogden. But in that case Chief Justice Marshall defined the commerce power of Congress, as Justice Felix Frankfurter later observed, "with a breadth never exceeded." The famous "steamboat case" was one of the most popular ever handed down by the Marshall Court, because of its immediate effect of insuring that the federal union would be a common market without internal trade barriers except as these would be developed by the federal government itself over the years to come. The contemporary significance of the Gibbons case lay in its equipping the national government with an effective instrument for the application of the supreme power with which the Court had invested it in the "bank case" of 1819.