Men in Black (27 page)

2.
“Delegates at Philadelphia must have known that the state constitutions were regarded as law by the state courts. When the Federal Convention assembled, the nature of a written constitution, emanating from an authority outside the government, had already been made manifest by several judicial decisions. In New Jersey, as early as 1780, the court refused, in the case of
Holmes v. Walton
, to regard as valid an unconstitutional act of the legislature. Two years later a similar doctrine was laid down in Virginia, and in 1786, the Rhode Island court announced the same principle. Just as the convention was assembling at Philadelphia, the Superior Court of North Carolina asserted that the legislature could not by passing any act “repeal or alter the constitution, because if they could do this, they would at the same instant of time, destroy their own existence as a legislature, and dissolve the government thereby established.” Andrew C. McLaughlin,
The Confederation and the Constitution, 1783–1789
(New York: Crowell-Collier Publishing Company, 1962), 169.

3.
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Clinton Rossiter, ed., Federalist 78,
Federalist Papers
(New York: Penguin Books, 1961).

4.
The Constitution of the Commonwealth of Virginia §7, June 12, 1776. The Avalon Project at the Yale University School of Law. Available at www.yale.edu/lawweb/avalon/states/va05.htm.

5.
Articles of Confederation.
Documents Illustrative of the Formation of the Union of the American States
(Washington, D.C.: Government Printing Office, 1927), 27.

6.
Variant texts of the Virginia plan presented by Edmund Randolph to the Federal Convention, May 29, 1787,
Documents Illustrative of the Formation of the Union of the American States
, 953.

7.
Ibid., 955.

8.
Debates in the Federal Convention of 1787 as reported by James Madison,
Documents Illustrative of the Formation of the Union of the American States
.

9.
Ibid. Madison then inserted in his notes a verbatim account of the language of his amendment. “Every bill which shall have passed the two houses, shall, before it become law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, with either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.”

10.
Debates in the Federal Convention of 1787 as reported by James Madison,
Documents Illustrative of the Formation of the Union of the American States
.

11.
Documents Illustrative of the Formation of the Union of the American States
.

12.
Madison’s notes,
Documents Illustrative of the Formation of the Union of the American States
, 551.

13.
Ibid.

14.
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States.” U.S. Constitution, Article III § 1. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” U.S. Constitution, Article III § 2. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Constitution, Article III §1 and §2.

15.
Federalist 78.

16.
Robert Yates, “Essay No. 11,”
Anti-federalist Papers
, first published in the
New York Journal
, March 20, 1788. Available at www.constitution.org.

17.
Ibid.

18.
Ibid.

19.
Robert Yates, “Brutus 15,”
Anti-federalist Papers
. Available at www.constitution.org.

20.
William E. Nelson, Marbury v. Madison,
The Origins and Legacy of Judicial Review
(Lawrence, KS: University Press of Kansas, 2000), 54.

21.
It is somewhat ironic that the Judiciary Act of 1802 led to the
Stuart v. Laird
decision by the Marshall Court just a few days after the
Marbury v. Madison
decision was handed down.
Stuart v. Laird
upheld the right of Congress to abolish the judgeships established under the 1801 act. This decision also implicitly upheld the right of the court to review acts of Congress. At the time,
Stuart
was considered a major retrenchment by the Marshall Court from the stance it had taken at the time of the
Marbury
decision.
Stuart v. Laird
, 5 U.S. 299 (1803).

22.
William Peters,
A More Perfect Union
(New York: Crown Publishers, Inc., 1987), 55.

23.
The Republican Party, as led by Jefferson at the time, is the forerunner of the modern day Democratic Party.

24.
For a brief account of the presidential election of 1800 see www.archives.gov/exhibit_hall/treasures_of_congress/page_7.html#.

25.
William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper were the four named in
Marbury v. Madison
, 5 U.S. 137 (1803).

26.
A writ of mandamus is an order from a court directing a party to a suit to perform a specific function. In
Marbury v. Madison
, Marbury asked the court to order Madison to deliver his commission to the federal bench, allowing Marbury to assume the office to which he had been nominated and confirmed.

27.
Peters, 55.

28.
Jack Shepherd,
The Adams Chronicles, Four Generations of Greatness
(Boston: Little, Brown and Company, 1975), 213.

29.
The Jeffersonian Congress had moved aggressively to undo previous acts of the Federalist Congress. The previous Congress, in the waning days of President Adams’s term, had passed the Judiciary Act of 1801, which added several federal judicial positions and significantly changed the structure of the federal judiciary. The Judiciary Act of 1802 repealed the 1801 act. “Congress also postponed the next term of the Supreme Court until 1803 so that the Court could not rule on the constitutionality of the 1802 act [the Judiciary Act of 1802] before the act went into effect.” Nelson, 69.

30.
Page Smith,
The Constitution, A Documentary and Narrative History
(New York: William Morrow and Company, Inc., 1978), 318.

31.
Marbury v. Madison
, 5 U.S. 137 (1803).

32.
Ibid.

33.
Ibid., 178–79.

34.
Letter from Thomas Jefferson to Abigail Adams, 1804. Available at etext.lib.virginia.edu/jefferson/quotations/jeff1030.htm.

35.
Letter from Thomas Jefferson to William C. Jarvis, 1820. Available as cited above.

Chapter Three: In the Court We Trust?

1.
Ronald Reagan, Radio Address to the Nation, September 18, 1982, reprinted in
The Quotable Ronald Reagan
(Peter Hannaford, ed., Washington, D.C.: Regnery, 1998), 247.

2.
U.S. Constitutional Amendment I.

3.
Santa Fe Independent School District v. Doe
, 530 U.S. 290, 318 (2000).

4.
This is the letter in which Jefferson introduced the phrase “wall of separation between Church & State,” but in a context, as we’ll see, that has been misappropriated by judges.

5.
Everson v. Board of Ed. of Ewing
, 330 U.S. 1, 8–10 (1947).

6.
See Edwin Scott Gaustad,
A Religious History of America
(1990), 67–68, Timothy L. Hall, “Roger Williams and the Foundations of Religious Liberty,” 71 B.U.L. Rev. 455, 464 (May 1991).

7.
Thomas Jefferson,
Notes on Virginia
, in
The Life and Selected Writings of Thomas Jefferson
(Adrienne Koch & William Peden, eds., Modern Library, 1993), 173, 252–253.

8.
Michael Novak,
On Two Wings: Humble faith and common sense at the American founding
(San Francisco: Encounter Books, 2002), 52.

9.
Daniel L. Dreisbach,
Thomas Jefferson and the Wall of Separation Between Church and State
(New York: New York University Press, 2002), 32–33.

10.
Ibid.

11.
Ibid., 33.

12.
During the Constitutional Convention, Madison opposed a Bill of Rights. He was concerned, like most others at the Convention, that by listing certain rights, it might be misconstrued as leaving unprotected, from the federal government, those rights not listed. George Mason, also a delegate to the Constitutional Convention from Virginia, had authored the Virginia Declaration of Rights in 1776. He insisted on the adoption of a federal Bill of Rights. It was voted down. For this reason, among others, Mason voted against the Constitution. Madison later supported amending the Constitution to include most of the rights protected in the Virginia Declaration of Rights, and as the primary author of the Bill of Rights, Madison borrowed liberally from Mason’s writings. For the quote, see:
Wallace v. Jaffree
, 472 U.S. 38, 95 (1985) (Rehnquist J. dissenting, citing J. Elliot,
Debates on the Federal Constitution
659 (1891), 730).

13.
Novak, 33.

14.
Joseph Loconte, “Faith and the founding: the influence of religion on the politics of James Madison,”
Journal of Church and State
, September 22, 2003, 7.

15.
Vincent Phillip Muñoz, “Establishing Free Exercise,”
First Things
, December 2003, 14, 18.

16.
Ibid.

17.
Ibid.

18.
Joseph Loconte, “James Madison and Religious Liberty,” Heritage Foundation Reports, Executive Memorandum, No. 729, March 16, 2001.

19.
Wallace v. Jaffree
, 472 U.S. 38, 100-01 (1985) (Rehnquist J. dissenting, citing 1 Annals of Cong 914 (1789)).

20.
Ibid., 102–03.

21.
Ibid., 103.

22.
Everson v. Board of Ed. of Ewing
, 330 U.S. 1 (1947).