A Few Thoughts On the Common Law

Marshall’s Transformation of American Jurisprudence

Apr 15, 2023

As we have been talking quite a bit about the founding fathers we have not mentioned very much about John Jay. Although he did author five of the Federalist Papers, they are not commonly known as they all deal with how the constitution will enable the United States to be able to act in a united way in diplomacy with foreign nations. Although from New York, the aristocratic Jay’s family had owned slaves and were heavily involved in the slave trade. But Jay himself did not actually participate in the Constitutional Convention, although he was a strong proponent. Above all Jay was a nationalist. In many ways he was much more closely aligned with Hamilton’s perspective of the federal government’s supremacy over the states. As our first supreme court justice he should have established the tone of future court jurisprudence. The court only wrote four decisions under Jay but they were strong decisions whose precedents have all been almost set aside by Marshall’s total redirection. As a believer in a very strong central government you might believe he would have been a strong proponent of a strong court, but not so. From its settling days American law had been based on British common law. And I do not believe Jay believed at all we should transform to a society based on civil law. But Jay very much did believe that the constitutional law superseded British common law and he believed the constitution granted the court only powers to judge cases brought before it on the merits of the case based on the constitution and the laws of the United States. With these principles before him in his determination of the law he saw no power for the court to either interpret the constitutional “meaning” or whether a legislative act or presidential action was constitutional. In fact it gave even more weight to a presidential action and in Federalist 64 he argued the senate’s role for advice and consent would only be if the president asked for it. To Jay the Senate was a parochial institution that represented state issues and not federal issues.

If ever there was a case ripe for “judicial review” it was the first case ever heard by the supreme court, West v. Barnes. The case was over a Rhode Island statute allowing for a debt to be paid in paper currency. However instead of determining the case on the legality of the Rhode Island statute, Jay’s court decision was determined only on a procedural timing error. This led the US Congress in its next session to make a legislative correction that altered the procedural writ of error that had caused West to lose his suit. In the next case, Hayburn’s case Jay’s court was divided over a writ of mandamus. Since there was no law allowing for such a writ, Jay simply turned it to congress as a matter of separation of powers. Congress then duly made such writs allowable. The next case was such a blockbuster it sparked the 11th amendment. In Chisholm v. Georgia a South Carolina man sued the state of Georgia because the state had reneged on payment to him. Georgia claimed a citizen from another state had no standing for the suit. The nationalist Jay, in a 4-1 decision ruled Georgia was an “artificial entity” and that all suits were subject to federal authority. Of course the 11th amendment,this time, overruled the Jay court, however nowhere does the amendment actually grant state sovereignty co-equal with the federal government. It merely states a private individual cannot sue a state in which he doesn’t reside. This, in itself, would later be conferred that a group of citizens could sue a company from another state jurisdiction. But the limited sovereignty against residents in other state’s from suits against a state that they were not a citizen ,or for foreign nationals to do so, still it did not shield states from being subject to federal oversight and the reasoning in Chisholm would later be used against proponents from Jefferson through Calhoun who proposed states had the ability to nullify federal laws. States may not be “artificial entities” as Jay would have it, but neither is state supremacy acceptable even though there is a current movement, once again, to make it so.

Now this diversion was to begin our American concept of jurisprudence. That was the original intent of the supreme court, and as we have already mentioned the limits of the constitutional intent as well by a strict reading of article 3 and the only possible reading of article 6. So if article 3 never gave the court judicial review and article 6, for sure, establishes federal supremacy then when the court revokes part of the voting rights act of 1965 the court is not only acting with a judicial review that had not been mandated to the court, but is itself violating the constitution itself any time it exempts or allows a state to challenge a federal statute. Marshall sneakily installed judicial review because he detested Madison but the case had actually no merits to overturn Madison’s dismissal of Marbury and didn’t ,in fact, do so.. Instead Marshall slashed at the law that established the federal courts themselves and declared them unconstitutional. Hailed as a remarkable Chief and great justice, what Marshall actually did was assume extra-judicial powers for itself under common law procedures but under which no civil judge would ever be able to do. But one thing for sure, the powers Marshall assumed for the court in Marbury were neither constitutional, nor judicious. In fact they were a petty onslaught on what judicial authority should be in either common or civil law.

As I am not a terribly huge fan of juries, pretty much likening them to lady-or-the-tiger justice, I nevertheless have no mixed feelings on the efficacious merits of both common and civil law.

Common law becomes distorted when it attempts to adjudicate the meaning or intent of the legislative law and should only adjudicate on the basis of continually expanding precedents that favor common justice, Certainly there is a lot to be said for precedent in common law, but precedent should still need to be established on the principles of constitutional and legislative mandates and when social values alter or new laws are established to reflect contemporaneous situations then granting judicial review to distort the common sense of contemporary legislation negates the very principles of common law itself which, by its nature, is supposed to allow for a case by case determination that reflects both precedent and contemporary values. Precedents should be interpreted through a contemporary lens and if done so, should set it apart as a higher beacon towards justice than civil law. To look backward at precedent cannot be a hallmark of common law and is in fact a negation of all common law which is supposed to allow justice to continue to be just through time. Civil law is tied to the law to the extent that judges ostensibly can only determine law under exact legislation procedure. Common law should allow the judicial interpretation of law to continually update itself.

So while I may find judicial review an attempt to interpret law, if judicial review is utilized to overturn a law or to attempt to determine what the law used to be in the past, or even to decide what the law “intended” it has gone beyond common law and is beginning to confuse itself with civil law via a lens of civil, or common law of bygone eras. Since the time Marshall took out his feud with Madison in a petulant case of judicial malfeasance, American common law has been mired in the twixt and tween area that disallows the progressive of common law and the rigidity of civil law where the judge is the final arbiter. This should of course not be the final arbiter under common law because common law cannot have a final arbiter but must continually move forward and is the only possibility for the steady progress towards justice.

But perhaps no decision was more unpopular or declared an illegitimate usurpation of court authority than Marbury. If the unpopularity of Dodds was substantial enough to possibly turn the tide of an entire election, Marbury was thought as illegitimate by almost every segment and faction of the country, even his own Federalist party. Of course in the end it probably extended the life of the party beyond its natural limits. And of course the principle of judicial review is today considered the hallmark of the role of the court in American order & jurisprudence.

However it is not necessarily the concept itself I find objectionable but the power Marshall extended to the very court he sat upon. As a matter of course, though, Marbury was perhaps the most self-serving and completely politicized decision beyond any merits to any precedential guidelines. Marshall should not even have been sitting on the court at all, due to a direct conflict of interest in his having been a part of the process that led to the case in the first place.

A little background is necessary to support this claim. In the 1800 election ThomasJefferson was elected to succeed John Adams, In the lame duck session before Jefferson was sworn into office the congress, that had been Federalist, passed the Judicial Act of 1801, just weeks before Jefferson was to take office, which called for the creation of 16 new circuit judges as well as the Organic Act meant to establish an unspecified number of other judgeships. At the same time Oliver Ellsworth,who had been appointed by Washington, resigned effective at the end of 1800 and Marshall himself was appointed chief. As secretary of state he had the authority to commission the new judges, including himself. In the rush however, Marbury’s appointment had not been commissioned, and a petulant Thomas Jefferson ordered his secretary of state, James Madison, to deny the commission . Marbury sued under a mandamus writ and Marshall agreed to hear the case. Actually the case should have no standing because the 1801 Judiciary Act was repealed and the unspecified justices of the peace had been reduced so there no longer existed the position to which Marbury had been appointed. Marshall recognized the dilemma that the case posed to the court. If the court issued the writ of mandamus, Jefferson could simply ignore it, because the court had no power to enforce it. If, on the other hand, the court refused to issue the writ, it would appear that the judicial branch of government had backed down before the executive, and that Marshall would not allow. The solution he chose has improperly been termed a tour de force.

From Marshall’s decision:

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

Now let’s parse this case very carefully. Because the case establishes two principles of jurisprudence that are, in essence, in opposition to basic principles of common law that had been the framework for the development of English common law.

The first principle challenged is the growth or progression of English common law towards greater justice. Marshall does utilize Blackburn to establish that legislative acts can be superseded if they retard rather than advance judicial remedies that limit justice. Indeed that is of course the purpose of the mandamus writ. But in Jay’s opinion the remedy of the mandamus writ itself to the federal judiciary had not been established. He did not deny the validity of the mandamus or that a writ could ever be issued and determined by the federal judiciary but he denied that writ could be applied to the judiciary on the grounds that it could not be applied as a remedy by court fiat if the court had not been authorized authority over determination of a specific case. In Hayburn’s case the issue was that the law had granted determination of war pension eligibility to the secretary of war and that the court therefore could not decide on a mandamus bill because the secretary of war had not established procedural authority. The issue became moot as congress remedied the error in the meantime and a full hearing before the court for a judicial decision was mooted. But here lies the problem with Marshall’s interpretation and how it contradicts both the citation from Blackburn and precedent of common law principles of the mandamus. Since the Act of 1801 was repealed and the position to which Marbury no longer existed remedy by mandamus to grant tenure to a non-existing tenure could not possibly require a legal superseding necessity because there was no other legal recourse. If Marshall’s reasoning were followed then anyone who was ever offered a position for any job, public or private, and the offer was rescinded because the position was no longer available then a mandamus remedy could then be used to force the position beyond its need for the position. In fact anyone who ever got laid off because the position was no longer, such as if a business no longer needed the same amount of workers in January that it might have needed in October for a Christmas rush in production, then a mandamus could be issued and the mandamus could be forced upon the company. If an individual can be entitled as a remedy of last recourse for justice every time someone didn’t get their way then it becomes meaningless as a judicial remedy and in fact rather than enhancing liberty and offering a last resort remedy it would become a writ to continually hinder justice and merely a way to grant everyone whatever they chose. Jay sensibly comprehended this and so delayed a decision until congress could clarify the procedural remedies to eliminate endless writs of mandamus.

But of course Marshall was not really interested in the mandamus protections for Marbury but in sticking it to Jefferson. He knew he couldn’t reinstate Marbury’s position and made no effort to enforce Marbury’s defunct position by forcing Congress to reestablish the rushed acts of judicial overload to politicize the courts in the defeated Federalists’ favor, but tried to argue that Jefferson’s actions of non-compliance was itself a political attack that made Marbury’s mandamus a political non-compliance by Jefferson of Marbury’s right and therefore worthy of the mandamus remedy. Of course that was also true. The perversion of justice perpetrated by Marshall was that in reality Marbury had no standing, therefore no right to a mandamus remedy and the case was taken up by Marshall to issue a political polemic against Jefferson that he should have written in a newspaper and not issued as a legal fiat against his own political opponent. In this there was no common law and simply a retreat completely away from it as an effort to turn judicial decisions of the court into a politically charged civil controversy on what the civil law actually should entail. So while it was certainly not based on any point of advancing common law unless you consider Marshall expanded the concept of the mandamus writ beyond the concept of a writ of last resort to mean the last resort to extend to the point that a government can not rescind an offer, even to include a position that no longer existed, then the decision was meaningless drivel, and Marshall admits that he has no authority to do such a thing so as not to make a mandamus writ a meaninglessly overused legal writ that anyone can claim him in need of a mandamus anytime something doesn’t go his own way. It should only be a remedy when no other recourse exists to defend oneself against an actual personal wrong that legal remedies are impossibly being prevented by legal authorities for something that is an established wrong. Since repealing an act of congress and/or eliminating a position authorized to exist is not a legal wrong but a political controversy then there was no actual legal need for a mandamus. Let’s look at the recent bill to authorize 85,000 new IRS agents which has caused upset amongst some republicans. Suppose the republicans muster congressional support to repeal the hiring. If someone has been offered a position and the position is no longer available, do those 85,000 agents hired have a legal claim of mandamus to force a mandamus writ? Of course not, and Marshall knew as much but he wanted to chastise jefferson and the new Congress and he used his new authority to issue a mandamus, not because there was any possible legal remedy that Marbury could pursue at all because there was no legal wrong, and so he needed a mandamus to allow him an alternative to a denied wrong. What Marshall does is chastise the absence of a validity for issuing the mandamus to attempting to make a valid reason for the issuance of such a recourse by saying that once a position has been offered by one administration the next administration cannot vacate the position and while he attempts to say Madison, as the new secretary, has to honor what the last secretary of state had done attempted to establish a precedent not by saying that no executive has no power to change any policy of the last executive, even if congress itself had made the position no longer available. So knowing that by ordering congress to un-repeal a law he himself knew was ridiculous, he scolded the executive that he was still bound by the old act which had been repealed.

The absurdity of Marshall’s argument could not have withstood, and it is nothing more than a politicized editorialization presented as a judicial decision. But not being a complete fool, Marshall needed to have some sort of support so he created the concept that the supreme court had the right to negate the legislative. Of course he couldn’t see his way to say congress had no power to repeal a legislative action so he resorted to the most inane subterfuge and did exactly what Jay had said could not be done due to separation of powers and argued that separation of powers gave the court the right to act legislatively. Marshall created the absurd nonsense of original intent. Okay—original intent was to create a unitary method of inta-economic stability and allow for the ability to raise money to insure the government could both provide this intra-economic stability and both military and police enforcements of that. The states demanded rights to themselves that the federal government could not supersede. The original intent was to make a contract binding the states together and allowing primacy to the states that did not take away any of their own rights of governing their own subjects and allow a separation of state authority and federal authority. The original intent only loosely defined each of the three federal departments. There was a design that forced equal state legislative power within the senate so populous states couldn’t just force smaller states into subjugation and gave taxation authority to a popularly elected (the only directly voted upon branch) but they could be checked by the senate who had to consent to such bills and then the executive could sign or veto the legislature and then the legislature could override the executive. And this system was more to keep state authority so that the federal government could not simply overpower the federal-state balance by becoming more powerful than the states and while the fourteenth amendment later changed this balance, the courts failed to see that it did until the beginnings of the 20th century. So even after the 14th amendment altered the balance and granted rights to all citizens within states it was not commonly accepted for close to sixty years. And this is how common law progresses, case by case.

But what was the original intention of the federal courts? Nowhere in the judicial section does it grant them as a “separate power”. Jay argued the court’s power did reside only in the stated powers of the constitution, basically to regulate relations between the states and because of this Jay claimed the state was an “artificial entity” not just between interstate relationships but between citizens of one state against violations by another state and the eleventh attempted to correct that. The artificial entity concept in Jay’s mind probably existed in that he preferred more federal supremacy all together, however in Chisholm v. Georgia he is basically saying the state was artificially claiming a constitutional authority to not pay a contractor from another state because the constitution gave the court responsibility over interstate relationships, especially commercial regulation and Georgia’s claim it was protected from suits against citizens of other states was artificial. Basically Jay saw the constitutional purpose much as I have described, and saw the court’s role as arbiter to maintain those objectives. Jay did not claim supremacy of the court and yet did develop the separation of powers doctrine referring to the separation of the courts from overriding legislative actions. He felt the framework of the constitution, as not only he, but his co-authors of the Federalist Papers had all argued, the constitutional document was loosely framed in order to meet the continuing needs that the country might face.

So in Marbury, Marshall initiated not just judicial authority commonly granted by common law to be able to establish precedents of justice that would progressively expand justice to be more fair. By progressive, I in no way mean to confer progressive justice with liberal political movements. The progressiveness of the common law is to use past precedents more than legal statutes as the definition of justice. It is progressive in that common law can use prior judicial precedents to expand justice. Marshall’s interpretation of Blackstone in this decision is actually contrary to Blackstone’s meaning. Blackstone was suggesting precedents, rather than statutes, are the foundation of judicial decisions, and once a precedent is established it cannot be overruled but used as a basis for future decisions. But Blackstone clearly indicates that even though precedents are binding, they can be reviewed if future courts find the precedents themselves cannot meet the particular challenges of a particular case and precedents can expand to always meet future needs. This should be done, according to my interpretation of Blackstone, not by throwing out a precedent but by making the precedent fit the particular case thus progressively allowing the body of precedents to move forward and expand. Otherwise the only rights any would have were rights granted by the magna carta and only to those to whom it applied, and I do believe that elsewhere Blackstone wrote exactly that. The beauty of the common law as to civil law, in Blackstone’s mind, was that the common law allowed for precedents to constantly progress when new circumstances arose that required new precedents. In this sense judicial fairness can supersede legislative fiat and judicial review is allowable under common law, where it would not be under civil law which determines exactly what the law is.That is exactly why it is “common” and not civil. The authorities can establish the law in civil authority and whatever they establish is justice. But in common law the precedents establish a pattern that can be expanded by their precedential authority to open up possibilities that might arise in a future that can increase justice that might not have arisen in prior cases. Precedents are not overturned but utilized to adjudicate and expand judicial fairness so it is a never-ceasing definiteness and at the same time an always-binding authority on future authority. I guess, eventually, a precedent could in some ways be overturned but never by simply denying it has no authority, it is simply that when new precedents occur, due to new circumstances , they by nature must expand to meet the needs of the common moment.

Now in Marbury, Marshall, piqued because the attempted court coup that he and Adams had sponsored through the outgoing legislature had failed, so after scolding the new administration editorially through much of the decision had to have some basis for his scolding so he claimed a new constitutional authority of the supremacy of the constitution itself to any actions that the government that the constitution had created was somehow inferior to its creation. With little regard to the original intent for the development of the constitution, he decided the original wording was of all-being godliness and completely and forevermore inerrant. Of course it would not have suited his purpose whatsoever,if he had actually followed that original wording because it certainly gave him no authority to take up the Marbury case in the first place, but by claiming the legislative act of the first congress gave the court more duties than the constitution granted to the courts, it was therefore unconstitutional had by his own reliance on the act being unconstitutional because it granted cases to the court that the constitution had not granted, granted to himself (the court) two rights the constitution hadn’t authorized, the first being acceptance of the case which was not a type of case the constitution authorized the court to adjudicate, and secondly the right to declare a congressional law unconstitutional only because it had not been written in the constitution.. The law itself was not unjust, it did not violate any commonly accepted principles, it merely expanded the court’s duties and good legislation, like good adjudication meets current needs and expands and passes laws to meet those needs If the words of the constitution were as impeccably written in stone as Marshall contends, they would not even have needed a legislature. But whatever perspective Madison may have had in creating a republican government, his, and all the founders created a legislature to meet future needs, else what purpose a legislature or even a president? All you would need was a judiciary with police powers. Of course there was nothing unconstitutional about the first judicial act, any more than the acts of 1800 were unconstitutional and not trying to meet perceived needs. Now if the legislature passed an act that said you had to stand on your head and have your dog lick your face anytime you wanted to exercise your right of speech that would be ridiculous and of course the judiciary should be able to overrule it as an uncommon abuse. But to rule a legislative act unconstitutional because it was attempting to expand the judicial responsibilities because it recognized such needs would be more beneficial is absurd. That would mean the courts themselves could never expand to meet future needs that were not written in the constitution. I once heard Antonin Scalia talk on this very issue. Then he refuted his own argument when someone asked why he voted in favor of denying electronic surveillance. His answer was that even though electronic surveillance was not illegal in the constitution the constitution hadn’t known that electronic surveillance would come to pass. Exactly. That is why both legislation and judicial decisions always expand to meet contemporary needs.

Now besides the precedent setting nonsense that Marbury has been used to establish its own supremacy–not as a separate branch of government but as a supreme branch–Marbury violated common law principles of justice because it did nothing to forward whatever injustice the original act had created, If the act had granted judicial jurisdiction that would have lessened judicial ability to judge each case on its merits it could have been superseded by a decision long established by common law that decisions must expand to meet circumstance, when in fact Marshall wrote the statute granted them more review of circumstance that might not have been thought about when it was originally drafted. And the constitution actually does allow for such expansions in the enabling section.So not only was Marshall wrong in insisting that only the original wording was legal, he totally ignored the original wording of the enabling section of the constitution which allowed the legislature to address future issues that might arise. To tell you the truth I have never understood why Marbury has become acclaimed as the backbone of American jurisprudence. It denies English common law which our system supposedly is based on by declaring a document superior to precedent that progresses with new encounters with circumstance, by regressing to a document as civilly binding. It then contradicts its own reasoning by granting itself more powers than the supposedly sacrosanct document granted it to have. and then goes on to manifest a spitefulness uncalled for by any judicial decision under civil or common law practice. And Marshall himself is the godfather of all judicial decisions (barring extraordinary circumstance) that cite the judiciary’s inability to interfere with legislation, because for the rest of his post-Marbury tenure he almost always refuted the judiciary’s ability to overturn legislation

And of course the only reason Marshall took up the case in the first place, was a vindictive personal vendetta that his side had lost an election and tried to stack the courts with judges who would subvert the new administration before itself departing. When the judicial coup failed politically, Marshall attempted to use the court by writing one of the most ill-conceived contradictory violations of rationality and legal principle to defend that failed judicial coup. Basically Marshall should have been less obfuscatory and simply said what was on his mind. “By god, you damn Jeffersonians have prevented our attempt to judicially destroy your political agenda but I’m damn well going to try to do it anyway.”

The UnUtopian Optimist

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