Marshall v. Madison: Part II (To Say What the Law is)

In my first post on Gordon Lloyd’s journal article “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835,” I looked at the impressive data he analyzed on the Marshall Court’s use of Founding sources in its constitutional cases. Of note is Lloyd’s definition of a Madisonian Originalism: “[T]he meaning of the Framers’s understanding is to be discovered in the decisions of the State Ratifying conventions, the records of the Federal Convention and the First Congress, and such contemporaneous expositions as the Federalist. Moreover, the Constitution requires a “liquidation of meaning” over time; put differently, Madisonian Originalism requires both “initial consent” and “recurring consent.””

Lloyd, however, goes beyond this in the second part of the article in order to engage John Marshall’s reasoning in some of the most significant constitutional cases during his tenure.

In Fletcher v. Peck, the Marshall Court declared that the Georgia legislature’s 1796 Rescinding Act was unconstitutional under Article I, Section 10’s prohibition of the states “impairing the obligation of contracts.” The Act declared the sale of public land in Georgia in 1795 to be illegitimate because of bribery and corruption it believed had been part of the bargaining. It had the effect of invalidating a land conveyance made by John Peck to Robert Fletcher. Lloyd notes that market capitalism, rather its morality, must be tied to republicanism. Madison and others understood this clearly, so the Georgia legislature’s Act passes muster. If force and fraud were present in the 1795 public land sale, then it is no good. The state legislature was trying to correct this problem and was not aiming at impairing the obligations of private contracts.

The Marshall Court, Lloyd notes, issued the first opinion declaring an action of a state legislature unconstitutional in favor of private contract. But what kind of a cite did Marshall make to the Founding to support his holding? His opinion made a “generic cite” to the Founders that

“Whatever respect might have been felt for state sovereignties, it is not to be disguised that the Framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are disposed.”

All of that is fine and good. State legislatures were altering contracts in favor of debtors and otherwise imperiling property rights in the years prior to the Constitution’s ratification. Madison, among others, was deeply unsettled by such acts, sundering as they did the connection between property and republican morality, Lloyd observes. But, Lloyd argues, the Georgia legislature was aiming at something else in its legislation: rejoining property and republican morality. Was it not trying to uphold the rule of law?

So Marshall finds constitutional logic to support his holding, but misfires in his application of it, and in doing so he restricts state sovereignty, i.e., the ability of a state legislature to correct the injustice of a past act of the same body. An interesting sidebar is the concurring opinion by William Johnson who cited to The Federalist to argue that the Framers may not agree with Marshall’s reasoning. In short, Marshall should’ve refrained here, but was unable to because he led with a principle not balanced by the full weight of the Founding on capitalism and free exchange and fraud that undergirded Federalist 10. There were other ways to balance what the Georgia legislature had done and reconcile it with the Constitution’s prohibition on states’ altering private contracts.

Marbury v. Madison

Marbury is not about judicial review, Lloyd tells us. This process had already been legitimated by being affirmed on 3 separate occasions in the Constitutional Convention, Hamilton in Federalist 78 defends judicial review on grounds that a limited constitution demands a tribunal to declare when its bounds have been crossed, and Marshall also defended the need for judicial review in the Virginia Ratifying Convention of 1788. Both Madisonian Originalism and Marshallian Originalism support judicial review, the author notes. So what’s going on?

Lloyd dismisses partisan politics, it’s always there in big cases. Moreover, it teaches us nothing to dismiss an opinion simply as the result of politics. Is it the rule of law? Maybe, but whose rule of law? Lloyd argues:

I believe that the high ground argument is that Marshall decided that it was critical in Marbury to establish the premise that the Constitution did not belong to Congress and/or the President. . . . Both in Marbury and in the other leading cases . . . Marshall determined that it was the role of the Judiciary to protect the Constitution from the partisan activities of the states as well as the Congress and the Executive. In doing so, however, he opened up the possibility that the meaning of the Constitution is what the Court says it is. That is the lesson of the 30-year journey through the Marshall Court.

In Marbury, there is nothing singularly compelling that ordered Marshall to rule in the manner that he did. Lloyd looks to Publius in Federalist 78 to argue that the “manifest tenor” of the Constitution had not been violated by the Judiciary Act of 1789, which accorded to the Court the authority to issue a mandamus in “cases warranted by principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” Marshall held that the Court, however, didn’t have original jurisdiction because the authority to issue a mandamus was not listed in the original jurisdiction clause of Article III, Section 2 of the Constitution. So the Court does not have the capability to issue the mandamus, Marshall holds. But, Lloyd asks, the Judiciary Act was debated and passed in the First Congress, many of its members were a part of the Convention. Surely they believed that it was constitutional to have the Court issue a writ of mandamus in certain specified situations. Why not defer?

In Cohens v. Virginia, Marshall gave the Judiciary Act utmost respect because the First Congress had passed it. The constitutionality of it was seemingly above reproach, solicitude to the Convention and all that. Madison himself, Lloyd notes, supported the mandamus provision in the 1789 Act. Why couldn’t Congress have understood itself to be filling in the details of Article III to structure the courts and install proper procedures? Why is the bestowal of original jurisdiction to issue a mandamus by the First Congress certainly unconstitutional, violating the “manifest tenor” of the Constitution?

Ultimately, Lloyd argues that one can both uphold the constitutionality of the Judiciary Act and not require the mandamus to be issued. It was a political question and not a judicial one. After all, “Article III states unambiguously that judicial appointments are outside the control of the judiciary and is a matter to be dealt with by the Senate and the President.” Marshall intervened in a political question, even though he stated that he was not intervening in this manner.

I am left wondering, though, that seeing Marshall the activist unfairly bypasses that he understood himself to be operating within the confines of limited government and the rule of law. Still, greater restraint could’ve been displayed, and Lloyd’s impressive contribution makes this case well. I think Marshall understood his tenure to be connected to upholding the architectonic objectives of our constitutional order when they were still being tested. Aren’t they always? Lloyd points to his later statement in Marbury “it is emphatically the province and duty of the judicial department to say what the law is” as more troubling evidence that Marshall believed that the paramount law, the Constitution, is what the Court says it is.

Maybe, or this is a statement made problematic with the intervention of pure possibility or seeing the Constitution as a springboard for power, remaking society in pursuit of equality? In short, progressivism and its belief in government as unlimited to achieve its egalitarian ideals makes Marshall’s dictum a problem. Beware of progressives with Marshallian dicta in tow.

Richard Reinsch

Richard Reinsch is the editor of Law and Liberty.

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  1. Kevin R. Hardwick says

    I agree with much that Richard Reinsch writes above. The devil, as so often, is in the details. I found the following sentence odd: “[Marshall] led with a principle not balanced by the full weight of the Founding on capitalism and free exchange and fraud that undergirded Federalist 10. ” To my reading, Federalist 10 does not mention capitalism, free exchange, or fraud, and is not concerned in any direct fashion to expound definitively on matters of economic policy. Federalist 10 is concerned to rebut the small republic argument advanced by Montesquieu, and is not concerned in any explicit fashion with economic issues. The model of competing factions canceling each other out in an extended republic far more plausibly is grounded in Madison’s own experience in the 1780s with religious politics.

    For framers who endorsed the Scottish Enlightenment cosmopolitanism derivative from the moral philosophy of guys like Adam Smith, the more plausible authority is James Wilson. You do find the kind of thinking that Reinsch alludes to in this sentence in Wilson’s law lectures. But Wilson, whatever his merits as a foundational authority (he too was present at the Philadelphia Convention, he led the effort to ratify the Constitution in the controversial Pennsylvania ratifying convention, and his argument in his “Statehouse” Speech of October 1787 against the need for a bill of rights was widely read in most of the states during the ratification contest) was not one of the authors of the Federalist Papers.

    None of the founders, not even Hamilton, were explicit advocates for free market capitalism per se. That is because the terms of debate about economic affairs were quite different than they are today. Basic economic notions like, for example, “factors of production” had been articulated only in prototypical fashion. In the 1780s, thoughtful men read Adam Smith for his moral philosophy, not for his economic thought. The terms did not exist to articulate anything like a full bored modern understanding of the working of a capitalist economy, let alone a defense of it. It is anachronistic to read into Madison or any of the other founders the economic thought of guys like Hayek, Friedman, or Von Mises.

    Madison was much disturbed to express (following the title of Calvin Johnson’s new study) “righteous anger at the wicked states.” But that anger encompassed much more than concern for breach of contract. In the Virginia ratifying convention, for example, the most important pertinent argument turned on ex post facto criminal law, not on the state’s failure to secure law of contract. Madison’s anger at the wicked states is nowhere explicit in Federalist 10. To get at that Madisonian concern, we have to examine others of Madison’s writings.

    • gabe says

      Another good piece and response!
      But where did either Lloyd or Reinsch cite Federalist 10? I see reference to fed 78 but no 10!

  2. Kevin R. Hardwick says

    Mr. Riensch (probably Dr. Riensch–not that titles matter all that much, but I intend no disrespect either way) wrote: “An interesting sidebar is the concurring opinion by William Johnson who cited to The Federalist to argue that the Framers may not agree with Marshall’s reasoning. In short, Marshall should’ve refrained here, but was unable to because he led with a principle not balanced by the full weight of the Founding on capitalism and free exchange and fraud that undergirded Federalist 10. ” It is in roughly the seventh paragraph (one of the “paragraphs” is a block quotation, in italics, that likely should be read as part of the preceding paragraph).

    Well wishes,

  3. Richard ReinschRichard Reinsch says

    Kevin, Thanks for your comments. Federalist 10’s crucial part is that property is the most divisive element of the republican regime owing to our various capabilities to acquire it. To always have the Cadillac keys jangled in front of you and not be able to get a set yourself could lead to all sorts of mischief in government, for example. So, in that regard, you want to minimize faction by having the federal government guarantee a continental free trade regime. That is a significant piece of extend the sphere, the feds hopefully will take care of business. So you give them Article I, Section 10 powers over the states to ensure that factions at the state level don’t impede commerce. Of course they hadn’t read the Austrians. But that isn’t the point. They understood property rights, markets free from undue government intervention, or at least that intervention Madison saw in VA and other states in the years following independence where state legislatures were captured and used against property owners and capital owners.

    My whole point was that Marshall was correct in the principle in Fletcher v Peck, but the GA legislature was actually trying to uphold the morality of the market and was not interfering for special interests to invalidate prior contracts on their behalf. So the element of force, fraud re: property rights in Fed. 10 is a subtle reading and connects market capitalism with its preconditions.

    • gabe says


      I should like to return to a question I posed in Part I:
      “Who shall provide this recurring consent?” assuming that Madison, in fact, would have proposed such a thing.
      Both PartI & II as well as comments provide an excellent history and hint at a proper course of interpretation, yet the essential question remains unresolved. (Perhaps, it shall always be so). Not having been schooled in the law, this remains unsatisfactory to me – as well as somewhat disturbing.
      “Recurring consent” and “liquidation of meaning” – may lead us to our ultimate undoing (if we are not already there). Would not Madison have preferred that the “majority” play some part in this consent – rather than “Five Robed Figures.”
      The opportunity for mischief is far too great and real to have left this uncertainty.
      I am interested in what you think the remedy should be.
      (BTW – this is a great site)

  4. Kevin R. Hardwick says


    Thank you for the followup, and I certainly much agree with you about the framer’s concern for property rights.

    Madison had a hard time making the argument in the Virginia convention that the state government had acted to jeopardize property rights, in part because Virginia’s government had been reasonably responsible in the 1780s. In the Virginia Convention, Federalists turned to an episode that occurred during the war, in which Thomas Jefferson, then a legislator–Patrick Henry was governor–drew up a Bill of Attainder against a notorious royalist leader. I believe this happened in 1778, but I would need to review the literature to confirm that. Amusingly, pretty much everyone on all sides at the Virginia Convention botched the facts of the episode. John Marshall delivered a dandy of a speech in which he laid out the rationale for condemning the procedure–that one is well worth reading, if you have the time to look for it.

    I should hope it is clear that I find a great deal of value in your blog and in those of others contributors at this site. I hope my comments, such as they are, do not come across as cavils–I intend them constructively and tender them in what I hope is an appropriately respectful fashion.

    Many thanks, once again,

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