John Marshall to Henry Clay on legal matters - American History 1493-1945 - Adam Matthew Digital

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Field name	Value
Collection Reference Number	GLC00141
From Archive Folder	Documents Relating to 1823
Title	John Marshall to Henry Clay on legal matters
Date	22 December 1823
Author	Marshall, John (1755-1835)
Recipient	Clay, Henry
Document Type	Correspondence; Government document; Legal document
Content Description	Briefly mentions a legal issue in Kentucky. Comments at length on Senator Richard M. Johnson's proposal that more than a simple majority of supreme court justices must agree in order to declare a law unconstitutional. He disagrees with Johnson's effort to weaken the court's ability to deliberate on the constitutionality of federal laws (which had been established in Marbury v. Madison). In the course of refuting Johnson, he also argues against expanding the size of the supreme court.
Subjects	US Constitution Supreme Court Judiciary Law Government and Civics
People	Marshall, John (1755-1835) Clay, Henry (1777-1852) Johnson, Richard Mentor (1780-1850)
Place written	Richmond, Virginia
Theme	Government & Politics; Law
Sub-collection	The Gilder Lehrman Collection, 1493-1859
Additional Information	When John Marshall became the nation's fourth Chief Justice in 1801, the court lacked prestige and public respect. Presidents found it difficult to get people to serve as justices. The court was considered so insignificant that it held its sessions in a clerk's office in the basement of the Capitol. During the 34 years he served as Chief Justice, he transformed the Supreme Court into a vigorous third branch of government. Marshall was born in the foothills of the Virginia's Blue Ridge Mountains in 1755, far from the wealthy tobacco and slave Tidewater region of the state. During the Revolution, he led a company of riflemen and spent the terrible winter of 1777 at Valley Forge. Out of his Revolutionary war experiences he became a staunch nationalist who distrusted state governments, which, he believed, had failed to support the soldiers. Marshall delivered his first landmark opinion two years after joining the court. John Adams had appointed a loyal Federalist, William Marbury (1761?-1835), to a judgeship at the very end of his term. Although approved by the Senate, Marbury never received his letter of appointment. When Jefferson became president, Marbury demanded that the new Secretary of State, James Madison, issue the commission. Madison refused and Marbury sued, claiming that under section 13 of the Judiciary Act of 1789, the justices could issue a court order compelling Madison to give him his judgeship. The case threatened to provoke a direct confrontation between the judiciary and the Republicans. If the Supreme Court ordered Madison to give Marbury the judgeship, the secretary of state was likely to ignore the court and Congress might limit the high court's power. In his opinion in Marbury v. Madison, Marshall ingeniously expanded the court's power without directly provoking the Jeffersonians. He conceded Marbury's right to his appointment, but ruled that the court had no authority to order the Secretary of State to act, since the section of the Judiciary Act that gave the court the power to issue an order was unconstitutional. A landmark in American constitutional history, the decision asserted the power of federal courts to review the constitutionality of federal laws and to invalidate acts of Congress when they are found to conflict with the Constitution. This power, known as judicial review, provides the basis for the important place that the Supreme Court occupies in American life today. In fact, the Supreme Court did not invalidate another act of Congress for half a century. But the assertion of this power proved enormously controversial. In 1823, Senator Richard M. Johnson (1781-1850) proposed that more than a simple majority of judges must agree in order to declare a law unconstitutional. Here, Justice Marshall responds.
Copyright	The Gilder Lehrman Institute of American History
Module	Settlement, Commerce, Revolution and Reform: 1493-1859
Transcript	Show/hide Richmond Decr. 22d. 1823 Dear Sir Your favour of the 11th. reached me in due time and I can assure you that its perusal gave me no "trouble". With an abatement, which I dare say you are prepared to expect, that is - that few non residents of Kentucky will concur with the citizens of that state in opinion, either on their laws respecting the occupants of lands, or what is miscalled their "relief system". I had a sort of half way disposition to think with you on several points, till that section of my mind which was disposed to arrange itself with you was completely routed by Mr. Johnsons proposition in the senate. That gentleman, I perceive has moved a resolution requiring a concurrence of more than a majority of all the Judges of the supreme court to decide that a law is repugnant to the constitution…. It is the privilege of age to utter wise sayings somewhat like proverbs, in the shape of counsel, as a substitute for that powerful and convincing argument which it has lost the faculty of making; but this privilege is [2] more than countervailed by another which is possessed and generally exercised by the middle aged as well as the young - it is to disregard entirely the wise sayings of the old. When I exercise my privilege, I am not quite so old or so unreasonable as to suspect that you are not in perfect readiness to exercise yours also. But for the apothegm. If I do not come to it quickly you will think I waste more time in preparing for it than it is worth after being introduced. I will say then at once that it is among the to effect most dangerous things in legislation to enact a general law of great and extensive influence with a particular object; or to legislate for a nation under a strong excitement which must be suspected easy to influence the judgement. If the mental eye be directed to a single object, it is not T for the legislator, intent only on that object, to look all around him, and to percieve and guard against the serious mischiefs with which his measure may become. I am perhaps more alive to what concerns the judicial department, and attach more importance to its organization, than my fellow or citizens in the legislature of T executive, but let me ask if serious inconvenience is not to be not apprehended from a very numerous supreme court? It ought T to be too small; but the one extreme is as much to be avoided as the other. Let me ask too, and I put the question very seriously, if a regulation requiring a concurrence of more than a majority of all the Judges to decide any case, ought not to be well considered in all its bearings, before its adoption? To say nothing of the influence of [ask] such a rule on the business of the courts, let me [3] T your attention to the inquiry whether it accords with the spirit of the constitution? If it goes to defeat an object which the constitution obviously designs to accomplish, I need not say to you that, although the judiciary may be bound by it, a conscientious legislator can never assent to it. It is I think difficult to read that instrument attentively without feeling the conviction that it intends to provide a [illegible] tribunal for every case of collision between itself and a law, so far as such case can assume a form for judicial inquiry; and a law incapable of being placed in such form can rarely have any extensive or pernicious effects. If this be the obvious intention of the constitution, can the legislature withdraw such cases from that tribunal without counteracting its views and defeating its Object? If congress should say explicitly that the courts of the union should never enter into the enquiry concerning the constitutionality of a law, or should dismiss for want of jurisdiction, every case depending on a law deemed by the court to be unconstitutional, could there be two opinions respecting such an act?…And what substantial difference is there between such a law, if law it may be called, and one which makes the decision to depend on an event which will seldom happen? What substantial difference is there between withdrawing a question from a court, and disabling a court from deciding that question? Thou only, I should think, who were capable of drawing the memorable distinction as to tenure of office, between removing the Judge from the office, and the Judge, removing the office from T can take this distinction. That the measure proposed in the senate has this tendency is not, I presume, doubted by any person; that it will very [4] often have this effect practically is, I think, as little to be questioned. When we consider the remoteness, the numbers, and the ages of the Judges, we cannot expect that the assemblage of all of them, when they shall amount to ten, will be of frequent recurrence. The difficulty of the questions, and other considerations, may often divide those who do attend. To require almost unanimity, is to require what cannot often happen, and consequently to disable the court from deciding constitutional questions. A majority of the court is according to … the common understanding of mankind, as much the court, as the majority of the legislature, is the legislature; and it seems to me that a law requiring more than a majority to make a decision as much counteracts the views of the constitution as an act requiring more than a majority of the legislature to pass a law. act decision as much counteracts the views of the constitution as an law T requiring more than a majority of the legislature to pass a law. But I will detain you no longer with my prosing & will only add that I am with great respect & esteem your obedt. servt J Marshall

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