Part 3

Was Marshall’s Misquote Intentional? Yes

Winfield H. Rose, Ph.D.

My contention that Chief Justice John Marshall’s misquote of Article III, Section 2, paragraph 2 of the Constitution in Marbury v. Madison[1] was intentional will always be a matter of opinion, but I believe the evidence is persuasive. The reader should go to my original article or to the original sources and read the texts for himself.

We have here a man who is Chief Justice of the United States but does not copy correctly a short and simple paragraph from the document upon which he is basing his entire argument. Then it turns out that his rewritten version rather than the original version reads exactly the way he needs it to read to sustain the argument he wanted to make. And we are now supposed to believe that this was just an innocent mistake.

Perhaps I have watched too many Perry Mason programs on television, but I will always believe this was an intentional sleight of hand rather than an inadvertent or irrelevant error.

Why Marshall Did It

This contention is based on three closely related premises. The first is the extreme political necessity of the situation in which Marshall found himself. The second consists of certain character traits exhibited by Marshall on several occasions that show him capable of ethically questionable behavior. The third is the ease with which he could have quoted the passage correctly had he desired to do so.

Space limitations prohibit extensive treatment here of Marshall’s difficult political predicament. This was covered in my original article and in my response to critics, and it also may be found in any good history of the period. Suffice it to say that his failure to deliver Marbury’s commission in his last days as John Adams’s secretary of state early in 1801 precipitated a severe political crisis for Marshall, the results of which could have ranged from extreme public embarrassment for him and the Supreme Court to the complete clearing of the Supreme bench by impeachment by the Jeffersonians in Congress.[2] This Marshall understandably wanted to avoid, and if he could embarrass and outfox his distant cousin and nemesis President Thomas Jefferson and strike a coup d’etat for the Supreme Court at the same time, so much the better. That he succeeded in this task is beyond question, but how he did it is another matter.

Then there is the matter of certain ethical ambiguities in Marshall’s early career on the bench. He served as both secretary of state and Chief Justice at the same time, continuing in the former after he had been sworn in as the latter until the end of Adams’s term. The Marbury case never would have arisen had he, as secretary of state, not failed to deliver Marbury’s commission, and that tells me Marshall should have recused himself from the case. He had absolutely no business participating in a case his own negligence had caused. Yet he did so.

There is also his biography of Washington, which he undertook as a money-making venture shortly after becoming Chief Justice. Speaking of the first volume, Beveridge says that “the volume is poorly done; parts are inaccurate. … Marshall admits that every event of the Revolutionary War has been told by others … and that he had copied these authors, sometimes using their very language.”[3] Beveridge also observes, “It would seem that for a long time Marshall tried to conceal the fact that he was the author; and, when the first volume was about to be issued, strenuously objected to the use of his name on the title-page.”[4] Thus, parts of the book were inaccurate; in some instances he had copied the words of other authors verbatim, and he wanted the money from the venture but not his name on the title page. That is understandable.

The Aaron Burr treason trial in 1807 was another controversial episode. Of its many parts, the most relevant here is what is called the Wickham dinner party in Richmond, Virginia. Marshall was presiding over the case while riding circuit and had released Burr on bail. Wickham was an old friend and Burr’s chief counsel; during the trial he had a dinner party at his home to which he invited both Marshall and Burr, and they both attended. There is disagreement about whether Marshall knew beforehand that Burr had been invited; Beveridge says that it was “most improbable that he knew that Burr was to be at the Wickham dinner,”[5] but Thayer says that Marshall “accepted the invitation before he knew Burr was to be of the company” but then learned that Burr was going to be there and attended anyway.[6] Thayer continues that Marshall sat “at the opposite end of the table from Burr, had no communication with him, and went away early.”[7]

Regarding Burr, I cannot fully determine what Marshall knew and when he knew it, but I can state that he knew, when he accepted his invitation, that Wickham was Burr’s chief counsel. They may have been old friends who had known one another for years, but it was highly improper for Marshall to attend such a function in Wickham’s home at that time. And, if Marshall did know that Burr would be present, his breach of ethics was even more severe. Thayer says Marshall “was sometimes curiously regardless of conventions.”[8]

Can’t Deny the Misquote

I do not believe that Marshall’s misquote of Article III, Section 2, paragraph 2 is accidental. It is not that the source was obscure. It is not that the relevant passage was long or convoluted. It is not that he had little time to prepare the opinion. To the contrary, the source was readily available, it is short in length, and he had plenty of time (a year or so, since Congress had given the Court a 14-month vacation) to prepare the opinion. Moreover, if he could quote the Constitution correctly in several other places, he could have quoted the Constitution correctly in this instance had he wanted to.

Marshall’s defenders cannot deny the misquote, but they deny its relevance. I maintain that it is relevant because it changes the meaning of the sentence to the way Marshall needed it to read to accomplish his objective of finding an option in addition to the unacceptable options of denying Marbury’s petition for want of jurisdiction or issuing the writ of mandamus to Madison. The most effective way to do that was to find Section 13 unconstitutional by removing the exceptions clause from Article III. If this is not true, why did Marshall not quote it correctly? How hard would it have been to get it right? Was he simply careless and sloppy? I think not. Beveridge says that “Marshall determined to annul Section 13 of the … Judiciary Act of 1789.”[9] To do so, he rewrote the relevant part of the Constitution to establish the pretext that Section 13 violated the Constitution. It is really quite simple, his defenders to the contrary notwithstanding. Necessity was the mother of invention once again.

Marshall revealed his intentions two paragraphs prior to the misquote:

The act to establish the judicial courts of the United States authorizes the supreme court, “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States.” The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of this description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional.

Res ipsa loquitur: The thing speaks for itself.

Marshall’s conclusion about Section 13 is itself ridiculous, because there is no compelling reason the Constitution would not have allowed Congress to grant the Supreme Court the mandamus power under its original jurisdiction, and there is a very compelling reason for it to do so: The Court might need it. The mandamus power is one of the most basic powers any court has to do its work and, apart from the volatile political ramifications of the case, it was absurd of Marshall to strip that power from the Supreme Court. Indeed, the mandamus power could be said to be an inherent power of any court under either its original or appellate jurisdiction.

Furthermore, the Framers proved themselves capable of prohibiting that which they wished to prohibit. For example, they prohibited tariffs on exports, bills of attainder, ex post facto laws, and religious tests for office, but it would have been silly for them to deny the mandamus power to the Supreme Court under its original jurisdiction, and they did not do so. In addition, it seems to me that Section 13 could have been sustained by means of the Necessary and Proper Clause had that been congruent with Marshall’s purpose, but we know, of course, that it was not.

A Machiavellian Hoax

In my two earlier articles on this subject I cite several other scholars who take the same position. The noted historian Samuel Eliot Morison says, “By a legal twist, which the Jeffersonians considered mere chicanery, the Chief Justice managed to deliver an opinion which has become classic.”[10] Another is from Beveridge: “It was not, then, Marshall’s declaring an act of Congress to be unconstitutional that was innovating or revolutionary. The extraordinary thing was the pretext he devised for rendering that opinion—a pretext which, it cannot be too often recalled, had been unheard of and unsuspected hitherto.”[11] Beveridge continues: “Nothing but the emergency compelling the insistence, at this particular time, that the Supreme Court has such a power, can fully and satisfactorily explain the action of Marshall in holding this section [13] void.”[12]

Max Lerner puts it this way:

By a maneuver he managed to administer a public spanking to the administration, assert judicial supremacy, yet leave Jefferson helpless to strike back. … It mattered little to Marshall that if his conclusion was valid and the Court had no jurisdiction, everything before it was superfluous—a vast obiter dictum that was sheer political maneuver. It mattered little to him that none of the opposing counsel had argued that the section of the Judiciary Act was unconstitutional, and that in order to declare it so he had to wrench it beyond all principles of statutory interpretation.[13]

“Legal twist,” “pretext,” “emergency,” “maneuver.” Thus, in derivation but not influence one may conclude that Marbury v. Madison is a gigantic hoax—carefully, intentionally, and shrewdly planned and executed by a Machiavellian jurist of the first order.

[2] See my original article cited in footnote #1 above and my reply to critics “Further Thoughts on Marbury v. Madison,” PS: Political Science and Politics 37 (July 2004): 391–95.

[3] Albert J. Beveridge, The Life of John Marshall, vol. III. (Boston and New York: Houghton Mifflin Company, 1919, 242–43 (emphasis added).

[4] Ibid., 228.

[5] Ibid., 396.

[6] James Bradley Thayer, “John Marshall,” part I in James Bradley Thayer, Oliver Wendell Holmes, and Felix Frankfurter on John Marshall (Chicago and London: Phoenix Books, University of Chicago Press, 1967), 64.

[7] Ibid., 65.

[8] Ibid., 62.

[9] Beveridge, The Life of John Marshall, 132.

[10] Samuel Eliot Morison, The Oxford History of the American People (New York: Oxford University Press, 1965), 363 (emphasis added).

[11] Beveridge, The Life of John Marshall, 133 (emphasis added).

[12] Ibid. (emphasis added).

[13] Max Lerner, “John Marshall and the Campaign of History,” Columbia Law Review 39 (1939): 407 (emphases added).

NEXT: Jeffrey H. Anderson responds to Winfield H. Rose.