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(1) The timing of the appointment of Amy Coney Barrett to #SCOTUS has got me thinking about one of the earliest notable Supreme Court cases in American history: Marbury v. Madison. Suffice it to say, controversial election yr appointments are an American tradition
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(2) Most lawyers and many normies have heard of the seminal opinion by Chief Justice John Marshall, Marbury v. Madison. This is the case where it was articulated that the Supreme Court had the power of judicial review over acts of Congress and that the Constitution was
(3) supreme over such ordinary Acts (laws). But the context surrounding this case is probably more interesting to most than the case itself. The election of 1800, only the 3rd election in our young republic ousted John Adams and resulted in an electoral college tie (!)
(4) Thomas Jefferson and Aaron Burr, both from a rival party to incumbent President Adams, each received 73 electoral votes. Adams received 65. So he’s out. But who is in? And why are two men from the same party now both vying for the presidency in the general election?
(5) The tie was due in part to an early constitutional quirk, wherein the President and Vice President were not on the same “ticket.” Instead, the recipient of the most electoral votes was elected President, and the one who received second most became Vice President, regardless
(6) of party (and even if they hated each other). The 12th and eventually changed this, but suffice it say what followed in 1800-1801 was a tumultuous affair for the new United States republic.
(7) When Jefferson and Burr tied, the election was thrown to the House of Representatives, as provided by Article II, Section I of the new Constitution. The House, which was comprised of mostly (now ousted) members of Adams’ party hostile to both Burr and Jefferson, was to decide
(8) The House voted 36 times in an effort to break the tie and finally, on the 36th ballot, Jefferson prevailed. And now we return to Marbury v. Madison. While all this was going on, that very same lame duck Congress and the lame duck President (Adams) passed a new law...
(9) The Judiciary Act of 1801 as it was called, allowed for the appointment of a litany of federal judges and officers to various areas of government. The last of these officers was Mr. Marbury.
(10) His commission was signed and sealed, but never delivered, by none other than outgoing Secretary of State (and ongoing Chief Justice) John Marshall. That’s right, Justice Marshall sat on the court to decide the constitutionality of his own procedurally defective appointment
(11) It turned out that the Marbury had no standing to bring the case — “standing” answers the question of whether a party has the right to bring a claim. The rest is history (and precedent). But what is amazing is how bitterly contested the new republic’s third election was.
(12) And how the young republic withstood it all the same. Recall that this was the first election where an incumbent president was ousted (Washington relinquished the presidency voluntarily after two terms). So it was notable that Adams (fairly) peacefully left office.
(13) Moreover, the newly constituted electoral college failed to elect a President or VP by majority vote, thus sending the vote to an openly hostile House of Reps actively working to pack the newly burgeoning bureaucracy and courts with men loyal to the outgoing administration.
(14) What’s more — and here’s the interesting legal angle — Jefferson, who ultimately won the election, was no big proponent of the Constitution and thought it went too far in consolidating power in in the federal government.
(15) But thru some judicial wizardry, Chief Justice Marshall established supremacy of the Constitution over regular acts of Congress in a way that Jefferson couldn’t challenge. (Because under Marshall’s interpretation, Jefferson got the result he wanted). In a word: Brilliant.
(16) So take heart. While this election and the politics of appointments surrounding it may seem like an outlier only capable in our times, the reality is its far from the most wild thing our country has seen. The constitutional apparatus is strong, and has survived much. I’ll
(17) end this thread with a quote (again from Chief Justice Marshall):
“[A] constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always he tranquil.”
/end
“[A] constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always he tranquil.”
/end
