One thought on “The Conflict That Shaped Our Constitutional Order”

1. I just came across your otherwise good article in the National Review on Joel Paul’s Without Precedent. I take issue with Paul’s claim that James and probably John Marshall committed perjury in the Marbury v. Madison case, and your endorsement of it.

   Paul’s argument: John Marshall very much wanted to take part in the Court’s deliberations in the Marbury case, seeing it as an opportunity to establish an important constitutional principle. However, no one in the Jefferson Administration would testify that the commissions had been signed and sealed because they didn’t want a raft of new Federalist magistrates and judges. John Marshall could testify to it, but if he did he couldn’t participate as a judge. So, he asked James to concoct a story about having seen the commissions, signed and sealed, in the Secretary of State’s office. Either that, or James took it upon himself. James affidavit:

   Feeling the need of some justices of the peace in case trouble developed, he went to the State Department and personally picked up a number of the undelivered commissions. He signed a receipt for them, but ‘finding that he could not conveniently carry the whole,’ he returned several, crossing out the names of those from the receipt. (From the reporter’s notes of the case)

   Paul points to a letter John wrote to James in March, 1801, right after Jefferson took office, as the clearest evidence that this affidavit was false:

   I did not send out the commissions because I apprehended such as were for a fixd time to be completed when signd & seald & such as depended on the will of the President might at any time be revokd. To withhold the commission of the Marshal is equal to displacing him which the President I presume has the power to do, but to withhold the commission of the Justices is an act of which I entertaind no suspicion. I shoud however have sent out the commissions which had been signd & seald but for the extreme hurry of the time & the absence of Mr. Wagner who had been calld on by the President to act as his private Secretary.[1]

   Paul interprets this letter as Marshall blaming himself for not delivering the commissions; yet if James’ affidavit were true, John would not have blamed himself because it was James’ fault. Ergo, James must have fabricated the affidavit.

   In your National Review article, you say Paul’s claim is “backed up by the facts.”

   I don’t find any aspect of Paul’s allegation persuasive, starting with the idea that James’ affidavit was the essential proof that the commissions existed. The reporter’s notes of the Supreme Court proceedings summarize several witnesses who testified that the commissions were in the office, signed and sealed. One said that he “had seen commissions of justices of the peace of the district of Columbia, signed by Mr. Adams, and sealed with the seal of the United States.” Another (Wagner) said he hadn’t seen Marbury’s commission, but had been told it was there. Another witness (Brent) said that he “was almost certain, that Mr. Marbury’s and Col. Hooe’s commissions were made out.” It seems to me that this would have been enough evidence for court to find that the commissions were there, duly signed and sealed. James Marshall’s affidavit was icing on the cake, not the sole proof.

   The letter from John to James, which Paul thinks is the clearest evidence of the Marshall conspiracy, says very little to me. John acknowledges that it was his responsibility to deliver the commissions, he neglected it, but thought it was unnecessary. All true: delivery was part of his responsibility, he failed in it, and, as the Marbury opinion says, delivery was unnecessary — the appointments were complete once signed and sealed. How is this inconsistent with James trying to deliver them? James doesn’t say it was his responsibility, or that he told John he would do it but failed to. Neither brother succeeded in getting a commission to Marbury; if either had Marbury wouldn’t have had to file his case; but the fact that James was no more successful than John doesn’t absolve John of his responsibility.

   Paul also doesn’t attack anything in James’ affidavit. He doesn’t argue that there was no “riotous” behavior in Alexandria, or that James did not go to the State Department to get the commissions, or that he didn’t sign a receipt for them. All of these things could have been disproven. People living in Alexandria could contradict the idea of riotous behavior. Presumably, State Department employees were there when James picked up the commissions. If there were no signed receipt, Madison could say so. Thomas Jefferson and John Marshall were antagonists, it is hard to imagine Jefferson passing up an opportunity to expose a Marshall lie. Yet, Jefferson’s new Attorney General, who provided evidence in the case, didn’t dispute any of these facts.

   And think about this: If James’ affidavit were fabricated, would he have loaded it up with facts that so many people could contradict? Why include a false story about riots in Alexandria? Why tell a tale of taking the affidavits and then returning some? Why say you signed a receipt? All of these things could be verified or disproved.

   Paul is suggesting, in effect, that James and John Marshall knew these things were false and put them in an affidavit anyway. In order to conclude that the affidavit was false, you have to believe that the Marshalls were not only dishonest, they were stupid.

   I may be over-sensitive to Paul’s allegation due to the family connection – James Marshall was my great-great-great grandfather. But I keep coming back to the fact that it is no small thing to call anyone a liar. I think Paul either owes the Marshalls an apology, or his readers a far more persuasive argument.

   • August 21, 2019 at 6:25 pm
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