Philadelphia Reflections

Let's Give the Supreme Court Some Help

For

Supreme Court, 2017

all the current wrangling about abortion, it continues to be implicit that the U. S. Supreme Court has a problem, which the Court needs to settle. But in fact, the Court didn't create the whole problem. The Court doesn't need to solve all of it.

First of all, privacy. That word doesn't appear in the Constitution, but surely no one is opposed to making privacy a right. Even

James Madison

James Madison wasn't opposed to the idea so much as he wanted to avoid cluttering the Bill of Rights with unnecessary detail. Unfortunately, circumstances have now changed enough to make it useful to be explicit about a strictly defined right to privacy. Since no one is truly opposed, what harm would there be in passing a bill in both the House and the Senate, and then having the required number of states ratify it? Once both sides got over the suspicion that somebody was trying to put something over on them, it should be possible to design simple clear language that creates and defines the right to privacy -- and avoids the temptation for somebody to insert some sly wording that does in fact put something over on somebody else. At the very least, creating a written right to privacy by following the prescribed path for amendment should dispel the idea that the abortion issue is part of an elaborate effort to undermine the Constitution.

By itself, this hypothetical amendment would seem like a rebuke to

Justice Blackmun

Justice Blackmun and the rest of the Supreme Court. It needs something else added in order to look like a compromise, which it is. So, what's proposed further is a declared presumption that state laws written before 1890 which forbid the performance of abortion were written with the intent of protecting the health of the mother.

That seems to be historical fact. There was a forty-year window of time between the invention of anesthesia, which made abortion easy to do, and Lister's invention of aseptic technique,

anti-abortion

which make abortion safe. The anti-abortion crusade, led by the American Medical Association, took place during that window of time. The AMA was alarmed by the medical disasters it was witnessing and urged legal measures to curtail it. When the safety issue was resolved by Pasteur and his followers, the AMA greatly softened its position. It is now surely true that more mothers are protected by abortion than harmed by it. If the courts have a role in untangling this mess, it is to recognize that the original intent of the anti-abortion laws has become lost by ignoring the changed scientific situation.

Well, where would this leave us? It should get privacy out of the issue, by making it clear that the right to privacy in the new amendment is not to be stretched to legitimize

just anything that people want to keep private. Murder, for example, is something everyone might well wish to hide but could hardly be legitimized by a right to privacy. Nor is defecation, which everyone wishes to keep private, to be prohibited just for that reason. Abortion could be constitutionally established as something people have a right to keep private, but abortion -- other than to protect the health of the mother -- is not legitimized or de-legitimized by saying so.

Does teasing out the sophistries then settle the question of abortion? No, but it would reduce the problem to its essence. By the process of teasing away the irrelevance, abortion then becomes a process which is safe, easy to do, and legitimate whenever it protects the health of the mother. Whether to prohibit it when it lacks those features would be a decision for the individual state governments, so long as the threat of public exposure is not used as an enforcement weapon, as every reader of Hawthorne knows it has been.

Perhaps we can even imagine the day when stripped of emotional demons, abortion can be viewed as a rather cumbersome contraceptive method, currently resorted to far more frequently than is sensible.

Twenty Five Years at the Center

Congress met in "Congress Hall" from 1790-1799 First 10 amendments, the "Bill of Rights," were added here.

Philadelphia was the center of the nation from the time of the First Continental Congress (1775) until the nation's capital was moved to the District of Columbia in 1800. For thirteen of those years (from 1775 until the 1788 inauguration of George Washington as the first President under the Constitution) our governing concept was that of a confederation of sovereign states. The framework of our rules was a little vague at the beginning of that period, eventually becoming explicit when the Articles of Confederation were finally ratified in 1781. Until that rather late moment in the eight-year war, the thirteen rebel colonies governed themselves in a manner similar to thirteen nomadic tribes. Later on, when the Constitution was agreed to in 1787, there was another period of ambiguity until the newer rules actually began to apply. Speaking loosely, for thirteen years the country operated according to the Articles of Confederation. For another twelve years, the United States were absorbed in the task of transition from the Articles to the Constitution of a unified nation.

More discrete episodes in the development of the American Constitution start with the long formative period of English law stretching back to the Magna Charta, with a general trend toward greater authority for individual barons and nobles, and later even to the common English peasant. The Magna Carta began the slow evolution toward the Rule of Law, simply stated as making the king obey his own laws. By the reign of Queen Elizabeth I, the legal profession had evolved considerable sophistication, tending in the direction of the Judges handling the law and the King leading the armed forces, and the Catholic Church supplying many of the rules of everyday conflict. King Henry VIII reduced church control of the courts considerably, but the Anglican church still retained the property and legal authority for decades, slowly giving ground to a King who appointed the Archbishop of Canterbury, who controlled the rest of the church. By the time of the first Queen Elizabeth, the legal profession was headed by the Lord Chancellor, who at that time was Sir Francis Bacon. Somehow, word of Galileo's scientific method traveled to London, and Bacon is credited with converting English Law to English Common Law, essentially grafting the scientific method onto the court system. The system was one of observing what happened and developing a theory about why it turned out that way. Experiments were then applied to test the theory, resulting in the modification of the theory. Decisions were standardized for common forms of dispute, and punishments were varied, with varied outcomes. When the courts were satisfied with a uniform result, the situation was then reduced to codified standard laws, and experimental testing was lessened. Common Law gradually emerged and slowly gathered public respect as a sensible guide to running the country. At that point, judges and kings discovered they had less latitude for capricious or ill-founded decisions; the Rule of Law grew stronger.

By the time of the American Revolution, a number of colonies had developed their own charters and rules, and many customs like the right to a jury trial became accepted rules of society. Many such similarities between colonial rules and the final Constitution have been noticed, and it is traditional to give credit to some of them as having "originated" the later Constitutional provisions. Some of this is strictly factual, some of it may only be conjectural; it probably doesn't seriously matter

Eleventh Amendment

There are certainly a lot of Ingersolls in Philadelphia. A lot of Jared Ingersolls, a lot of Charles Ingersolls, and even a lot of Charles Jared Ingersolls. At a dinner party, a lady whose maiden name is Ingersoll was asked about Charles Ingersoll, and was forced to say, "Just how old would you say he is?"

Jared Ingersoll, Jr.,

The one we are talking about here is Jared Ingersoll, Jr., the son of a Tory who had once been tarred and feathered by Revolutionaries in New Haven. Young Jared was in England at the Inns of Court when the Declaration was signed, became a fervent Revolutionary, and represented Pennsylvania at the Constitutional Convention. It was thus difficult to predict where his sympathies would lie in the settling of debts and grievances associated with the Revolutionary War; in fact, he might be as impartial as any lawyer to be found at the time. At their best, all lawyers reach for the peaceful settlement of grievances, serving their clients best by finding a solution that puts an end to reprisals. Furthermore, he had excellent legal training, something which could not be said of most apprentice-trained lawyers of that time, and had faithfully attended every single session of the Continental Congress, while commenting very little about his own views. The first ten amendments are the Bill of Rights which had been promised during the ratification process, so the Eleventh became the first real amendment, in the sense that it specifically reverses some feature of the original design. To present observers it may not be easy to surmise just what the purpose might have been to outlaw the method which had been established for an injured citizen to sue a state. To be blunt about this point, the colonists wanted to welch on paying debts to Loyalists and Englishmen, those hated enemies, without admitting this was their motive. The spin they put on this shabby attitude was that states were now sovereign entities without a king, and since historically a British king could not be sued without his consent, therefore neither could the states. Probably the best that can be said for this cloud of words is the point that suing the government should not be made too easy, for fear of overwhelming the court system with endless clamor. The historical episode surrounding the Eleventh Amendment is an important one in our national struggle to balance the accusations of hypocrisy and chiseling, with the opposite tendency of slavish adherence to procedure, or "due process".

Alexander Chisholm

Ingersoll had attended the Constitutional Convention as part of the most influential state delegation of insiders and was set up to practice law in the capital city of Philadelphia just a few blocks from the heart of government. A case came up. The estate of Captain Robert Farquhar, an Englishman, was owed $169,613.33 for "goods" sold in 1777 to agents of the embattled State of Georgia during the Revolution. The executor of Farquhar's estate, a resident of South Carolina named Alexander Chisholm, then sued the state of Georgia after the war was over for that state's extinguishing the debt by a statute passed after the contract. This had been the rather common treatment of Loyalist debts by other colonies and thus enlisted their sympathies to Georgia in this case. Furthermore, it was the sort of uncivil behavior that had enraged John Jay and George Washington, leading them to press for the Constitutional Convention. On the other hand, the new state governments were hard-pressed for cash and had to contend with highly combative citizens who resented even the suggestion that they play fair with people who had so recently been trying to kill them. Furthermore, it was entirely realistic for them to fear a flood of lawsuits from people they mercilessly pursued under what "everyone" considered the rebellion's accepted rules of engagement. It was thus clever for Georgia to seek the help of Ingersoll in appealing to the Supreme Court, and the previous tarring and feathering of his Loyalist father was not entirely irrelevant. Ingersoll, unfortunately, lost his case of Chisholm v Georgia when the Supreme Court (John Jay, CJ) declared that Chisholm was indeed entitled to sue the State of Georgia. It is hard to see how Ingersoll (and his colleague Alexander Dallas) could have won this case when the Constitution which he helped write plainly provided the rules for citizens of one state suing another state; it seems remotely possible that the officials of Georgia were attempting to shift the blame of an inevitable loss of the suit:

Article III - Section 2 -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 a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

John Jay ultimately revealed the depth of his dismay at dishonoring debts when he negotiated Jay's Treaty during the Adams administration, providing for adjustment of such debts. Adams, in turn, was to reveal where his own sympathies lay by refusing to announce -- for three years -- the reversal of this position by the Eleventh Amendment, stirred up in his own state. Adams' rather flagrant abuse of a technicality might well have led to another constitutional amendment, except for the Supreme Court later ruling that official enactment of amendments did not require Presidential announcement, but took effect upon ratification by the required number of states.

Adams, in turn, had ample political problems in his home state of Massachusetts. John Hancock, then Governor, called a special session of the Massachusetts legislature to propose an amendment to reverse the Constitutional language on which the Supreme Court's decision had relied: It soon became clear, or perhaps Ingersoll was determined to make it seem clear, that Georgia had been smart to employ this political insider. Congress soon enacted, and the necessary states soon ratified the Eleventh Amendment. It stated that a citizen of another state may not sue a State government in Federal Court:

Amendment XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Later decisions included citizens of the same state, so in effect, this amendment stated that no one may sue a State Government unless the state agrees to be sued. That's essentially what is true of the federal government; the states were given the same sovereignty with all of its features, as the federal government and that was an intentional slap in the Federalist faces.

It sounds as though Jared Ingersoll might have been a states-righter, although nothing in his past or future behavior suggests that he was anything but an ardent Federalist. He was even proposed as vice presidential candidate for the Federalist Party. No one called him wishy-washy, or a traitor or a covert anti-federalist, and he never acted like one. He was just a lawyer with a client.

Obamacare's Constitutionality

President Barack Obama

Any idea of a smoothly orchestrated introduction of the new law was jarringly interrupted by the U. S. Supreme Court, which granted a hearing to a complaint by 26 State Attorney Generals, that the ACA Act was unconstitutional. It was big news that the whole Affordable Care Act might be set aside without selling a single policy of insurance. The timing (before the Act had actually been implemented) served to guarantee that the constitutional issue, and only that issue, would be discussed at this Supreme Court hearing. By implication, there might be more than one episode to these hearings.

While many could have declaimed for an hour without notes, about difficult issues perceived in the Obama health plan, questioning its constitutionality had scarcely entered most minds. Then of a sudden, near the end of March 2012, a case testing the constitutionality of mandatory health insurance was granted certiorari and very promptly argued for three full days before the U.S. Supreme Court. Twenty-six state attorneys general brought that case, so it was not trivial. In jest, one Justice quipped he would rather throw out the whole case than being forced to spend a year just reading 2500 pages of it. But Justices are practiced in the art of quickly getting to the heart of a matter; it soon boiled down to one issue: was it constitutional for Congress to force the whole nation to purchase health insurance? Is there no limit in the Constitution about what the federal government can force all citizens to do, even though the federal government itself is severely limited in scope? Even though the Tenth Amendment states that anything not specifically granted to the federal becomes the province of the states? Would a people who fought an armed revolution for eight years over a 2-cent tax on tea, now consent to a much larger requirement which it was not constitutionally authorized to impose? Most people finally wrapped their heads around some formulation of this non-medical concept to a point where they vaguely understood what the Judges were arguing about. This was beginning to look like a topic where We The People made a covenant with our elected leaders, and reserve the sole right to change it.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Tenth Amendment

The Constitution describes a Federal system in which, a few enumerated powers are granted to the national government but every other power is reserved to the state legislatures. The Constitution had to be ratified by the states to go into effect, and the states had such strong reservations about the surrender of more than a handful of powers that they would not ratify the document unless the concept of enumeration was restated by the Tenth Amendment. If states could not be persuaded of the need for a particular power to be national, they might refuse to ratify a document which enabled permanent quarrels about the issue. That wariness explains why The Bill of Rights goes to the extra trouble of declaring certain powers are forbidden to any level of government.

Separation of powers further explains why Mr. Romney's mandatory health insurance plan might be legal for the Massachusetts legislature but prohibited to Congress. After Chief Justice Roberts got through with it, whether that truly remains the case will now depend on whether it is described as a tax, a penalty, a cost, or whatever, and only if the U.S. Supreme Court later agrees that was a proper definition. Because -- to be considered a tax it must be too small to be considered coercion. The law itself apparently does not underline this distinction in a way the Justices felt they could approve. Indeed, while Mr. Obama in his speeches firmly declared it was not a tax, later White House "officials" declared it might be. There was agreement the Federal government could tax, but no acknowledgment that taxes might have any purpose other than revenue.

Under circumstances widely visible on television, however, it was clear that the House of Representatives had been offered no opportunity to comment on this and many other points in this legislation. To a layman, that fact itself seems as clear a violation of constitutional intent as almost any other issue, since the Constitution indicates no idea was ever contemplated that any President might construct laws, nor like the courts, interpret their meaning. The first three Presidents repeatedly raised the question of whether they had the authority to do certain things we now take for granted. And Thomas Jefferson was similarly boxed in by a clever Chief Justice, who said, in effect, Agree to This Decision, or be Prepared to Get a Worse One. The Constitution says it is the function of the Executive branch to enforce the law, "faithfully". Presumably, all of the thousands of regulations issued by the Executive Branch under this law must meet the same test.

Given that the Justices now hold it constitutional for the federal Congress to mandate universal health insurance, based on some authority within taxation, the immediate next issue is paying for it. Millions of citizens, usually young and healthy but sometimes for religious reasons, do not want to buy health insurance and would be forced to do so by this law because the only available alternative is to pay a revenue tax. The purpose of including them is to overcharge people who will predictably under-use community-rated insurance, and thus enable the surplus to reduce costs for those who do want to buy health insurance. (Here, the Court had the pleasure of reducing an unusually opaque law to an unusually succinct summary.) To avoid the charge of a "taking", the Administration must either surrender on the universal mandatory point or else surrender the level premiums of community rating. The lawyers for the complaining attorneys general laid great stress on this particular issue in their arguments, and it occasioned much of the discussion from the bench. However, until the law is in action there is as yet no cause for damages.

Here it will depend on whether you call it a permissible activity for Massachusetts or for the Federal government. The Constitutional point seems to be that it is a legitimate Federal power to tax for the "general welfare", so it now becomes essential to know if the taxes for noncompliance in Obamacare are really a penalty. The Justices seemed to be questioning whether the whole scheme would collapse with the forced subsidy eliminated, and because of that be deemed to have been a "general welfare purpose" adequate to meet the constitutional requirement of a permissible enumerated purpose. Lawyers can generally find such a defined purpose in the words of the Constitution, even if they have to dip into the penumbras and emanations of the words. So the question might just devolve into whether a majority of the Justices wish to declare the penumbra to be within the enumerated powers of Congress. To all of this, the lawyers for the attorneys' general reply that such an enumerated power is impossible because there is no limit to what could be done by this method. Congress would then be allowed to mandate that everyone eat broccoli for dinner, or buy a General Motors car in order to pay for the deficits of rescuing that company from bankruptcy. Almost anything could be mandated by establishing a penalty called a tax; including a mandate that everyone buys a product in order to pay for the deficits of mandating it, illustrates there exists at least one circularity of enumerating something like a power of Congress. According to this reasoning, mandated health insurance cannot, therefore, be an enumerated power of Congress, either now or at any time in the future. The sort of speculative law outlined in this paragraph is exactly the sort of thing the Supreme Court dislikes and shows the utility of denying access to the courts to anyone who cannot claim "standing", defined as a claim of actual injury from a law.

The Justices undoubtedly had to weigh the fact that the American public has a strong distaste for this sort of convoluted reasoning, which sounds like a convention of Jesuit priests having fun. On many other occasions, however, the public has accepted the judgment of people it hired to understand this sort of thing; that's called respect for the law. Eighty years ago in the Roosevelt court-packing case, there was the same sort of collision between the Court and the President, and the Court knuckled under even though the public supported the Court. In both cases, the Court seemed to be yielding to the President, with the unspoken compromise that the President would not pursue his earlier course with quite so much vigor. Since the really central 1937 question of overturning the Interstate Commerce clause ("Commerce among the several states") was left unaddressed, the velvet glove might yet contain an iron fist.

James Madison

James Madison

JAMES Madison was born (1751) a rich Virginia planter, was a major factor in the composition of the U.S. Constitution, became secretary of State and President of the United States for two terms (1812-20), and died (1836) impoverished at the age of 85. Because the Constitutional Convention was conducted in secrecy, we cannot be entirely certain which parts to attribute to him, or even what his personal position had been on many issues. He was Chairman of the Committee of the First Congress and the dominant figure writing the Bill of Rights, which he had declared were unnecessary. These early Amendments to the Constitution were therefore sparsely confined to those rights which met universal approval and excluded the many proposals of rights which were controversial. The surprising outcome is that the Bill of Rights survives as a bedrock summary of the nation's belief system. There is a tendency to review the actions of all Presidents after they leave office, searching for remarks or behavior which clarifies their official actions while President, and in Madison's case his positions on the dominant Constitutional issues of our Republic. However, that later period of his life was marked by many abrupt reversals of inexplicably contradictory positions that often lessen his stature, and embarrass his earlier achievements. Gouverneur Morris, for example, had the lowest possible opinion of Madison, summarizing him as merely a drunkard. Morris was so contemptuous of Madison that during the War of 1812 that aristocratic main editor of the Constitutional document denounced the whole effort in disgust, mainly devoting his own efforts to making money from the Erie Canal, and later going to France in the Bonaparte era. Other close observers refrained from comment about Madison's drinking habits, and we must presently remain uncertain whether the comment explains Madison's erratic behavior, or whether it was merely an emotional exaggeration by Morris who spent most of his own later life, acting entertainingly at social gatherings.

William Penn

On the one hand, and on the other; there is scarcely an episode in Madison's life which could not begin with the same words. Madison had tuberculosis and was sent North to go to college at Princeton, where he was much taken with Quaker beliefs in a state still controlled by William Penn's proprietors, but in a College whose campus thoughts were dominated by refugees from the Scottish Enlightenment. He was a good student and stayed an extra year to study Greek under the famous John Witherspoon. He was soon involved in politics, catching the eye of General Washington with his active promotion of the cause of the unpaid Revolutionary Army. Washington soon enlisted the efforts of this neighboring Virginia planter in organizing a new Constitutional Convention, primarily intended to strengthen central government against the intransigent state legislatures, with a particular effort to enable the central government to levy taxes to service war debts. Neither Washington nor Madison knew much about finance; the ideas about leveraging sovereign debt through a central bank evidently came from Robert Morris, who was a close friend of Washington's and in many ways the acting President of the United States during the Revolution. The young Alexander Hamilton bore the same sort of relationship to Morris as the young Madison bore to the General who was a generation older; in both cases, they supplied their own ideas, but mainly applied time, youth and energy to the concepts of their seniors. Hamilton and Madison became fast friends in a great cause, notably collaborating in the writing of the Federalist Papers to promote the new Constitution. Madison was the great scholar of the Roman Republic, a Washington favorite, and displayed a remarkable innate talent for politics in the finest sense, explaining complicated logic and persuading the unpersuaded. Washington nursed a passionate hatred for partisan politics and collaborated with the daily assistance of Madison in defining the traditions of the American presidency. Washington wanted to avoid the appearance of being a King, which was another Washington hatred but was badly in need of some models for an entirely new concept, the executive branch of a deliberately divided government. In one famous episode, Madison wrote Washington's speech, then wrote the reply to Washington by Congress, then wrote Washington's thank-you note back to Congress. Madison was devoted to his work; he only married Dolley Madison when he was 37 years old. Madison would seem to qualify for the category now called nerd.

John Adams

Hamilton, on the other hand, had many children, legitimate and otherwise, many girlfriends, at least two duels, and flamboyant behavior on the parapets of Yorktown during the final battle. Unlike the aristocratic Madison, he was described by John Adams as the "bastard brat of a Scottish peddler". Although both men seemed to be driven by their short stature, Hamilton never let it get the better of him. Even Martha Washington was amused by his rambunctious behavior, naming her tomcat after him. Both men seemed unduly influenced by their new friends, Hamilton by his rich New York wife's rich friends, and Madison by Thomas Jefferson and Patrick Henry, the big men on campus so to speak, of the Virginia scene. When Hamilton began to favor banks, bankers and obscure financial wizardry -- and particularly after Madison's hero George Washington took Hamilton's side in the establishment of a central bank-- Madison was ready to be courted by his childhood heroes in Tidewater Virginia, particularly Thomas Jefferson, who always wrote prose as if writing poetry. That's about all we really know about the episode, and there is probably more we don't know, but Madison in an instant became Hamilton's mortal enemy, Jefferson's fast friend, an enemy of the bank, and -- the founder of America's first political party. George Washington never spoke to him, again. It seems possible to suspect that Jefferson was jealous of Washington, although he always was very careful not to confront him directly. When Hamilton persuaded Congress to enact a whiskey tax, Albert Gallatin and other friends of Jefferson's party stirred up the Whiskey Rebellion in Western Pennsylvania, and Washington personally led fifteen hundred Federal troops across the mountains to put down the rebellion. General Alexander Hamilton was at his side. James Madison was somewhere else, probably reading a book. Madison was the sort of person who always knew when his enemies had the votes. He was often lost without the assistance of Gallatin, who somehow knew when the enemy had the better argument.

Bladensburg races

Eventually, America split between those who sympathized with the French and their land domination of Europe and those who began to seek a repair of the trade relationship with Brittania which ruled the waves. The Adams presidency was ruined by fallout from this international warfare, an embargo was imposed, and both France and England did their bit to make things worse. At one point, it was uncertain whether America would be going to war with France or with England. Eventually, it was with England in the War of 1812. Jefferson and Madison had become successive presidents dedicated to saving money by disarmament, but in spite of our having no navy and nothing but militia for an army, we blithely set about to conquer Canada, with the plan of trading it for trade concessions from the British Empire. Unfortunately, the War was a several-year series of overwhelming defeats for the Madison administration, culminating in the burning of Washington D.C. and the "Bladensburg races" (for the exits), but celebrated as Dolley Madison rescuing the portrait of George Washington, and Francis Scott Key writing the "Star Spangled Banner" about the bombardment of Baltimore. Indian massacres in Michigan and other western defeats complimented the litany of disaster, which was finally ended when Gallatin negotiated the Treaty of Ghent as status quo pro antebellum with the preoccupied British, and then celebrated Andrew Jackson's defeat of the British army at New Orleans, after the Treaty had been signed but before news of it reached home. As Madison's last acts at the end of his term, he promoted Adam Smith economics, the reconstitution of the Bank, a general rearmament campaign -- and then vetoed the bill when it passed. To say that Henry Clay in Congress was embarrassed is to stretch the limits of language. After he left office, Madison became a senior statesman, making all sorts of pronouncements about current events and the true meaning of some Constitutional point involved, quite regularly reversing his positions and encouraging secession by talking about it so much.

Marbury v. Madison

This sorry tale is too long to present fairly and accurately, while its point can be most simply made by reference to Madison's first involvement as Secretary of State, in the famous Supreme Court case of Marbury v. Madison . When the departing Adams administration made some last-minute inconsequential appointments, one of them was to Marbury. At the beginning of the Jefferson Presidency, John Marshall was the departing Secretary of State, James Madison the incoming one. The appointment to Marbury was duly made and ratified, its certificate lying on the desk of the Secretary of State. Marshall (outgoing) neglected to send the certificate to Marbury, and Madison (incoming) refused to do so, on the advice of Jefferson the President; none of them ends up looking, adult. Instead of recusing himself, Marshall as Chief Justice further entangled himself in a dispute where he was the referee, by devising the concept that the Supreme Court could declare acts of Congress unconstitutional, and trapping Jefferson into a position where he had to agree with it. All in all, it certainly would seem simpler for Madison to have sent over the certificate. The authors of the three most famous documents in the American icon were inaugurating what a recent biographer Kevin R.C. Gutzman, described as the Presidencies of Chicanery.

James Madison deserves the highest praise for his achievements in three documents: the Virginia Plan, which was the forerunner of the Articles portion of the Constitution, that is to say, the basic structural components of our present government. Secondly, the bulk of the Federalist Papers leading to the Ratification of the Constitution. And third, the Bill of Rights, which he saw no need for, and therefore personally rewrote to be miraculously sparing of language, limited to bedrock essentials, and celestial as a statement of American national purpose.

Madison lived a long life, but it is difficult to find anything in the last forty years which justifies his early promise. Or which could be called a disgrace to it, either, if he had only made a more ordinary beginning.

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