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Friday, January 20, 2012


Political institutions do not spring from the heads of their founders fully formed like so many well-oiled Athenas to guide the ship of state: that the Constitution of the United States recognizes its own inherent mutability is due only to the particular genius of its framers. Over the course of its history, both explicit amendment and a body of unofficial, customary policy has shaped the practical usage of the American Constitution. (Those who would make arguments that focus on “original intent” might do well to recall that, in its earliest days, many of the operational features of the new government remained obscure. Prior to Washington’s assumption of office, no one was even clear as to what the new president of the Republic should be called—“his majesty” and “his excellency” were two Old World styles of address he brushed off with characteristic republican modesty.)
The judiciary branch was the last branch of the United States government to come into its own: The young country passed more than a decade before its highest court assumed something like the function envisioned for it in 1789. The 4th Chief Justice of the Supreme Court, John Marshall (1801–1835), did more than anyone else to raise judicial reality to a level approaching its Constitutional ideal. Though Marshall had, in fact, turned down an appointment as an Associate Justice in 1797 and he wasn’t President Adams’ first choice for the job in 1801—ex-Chief Justice John Jay declined a reappointment on the grounds that the Court lacked “energy, weight, and dignity”—his nomination would prove momentous. Marshall’s longevity—thirty-five years in office—may have guaranteed the great weight of his jurisprudential imprimatur, but two of his most fundamental contributions to posterity came early in his career.
Shortly after taking up the gavel, Marshall revolutionized the way in which Supreme Court decisions were handed down to the public. Previously, following English common law, each judge on the American high court had penned his own opinion in any given case (a practice known as seriatim opinion). Marshall did away with seriatim opinions, and instituted the practice of handing down a single majority opinion. While, in the short term, this allowed him to become the sole mouthpiece for the Supreme Court, in the long run it has had the effect of creating forceful legal precedents, unclouded by multiple opinions.
It would be unforgivable to write about Marshall and ignore the landmark case ofMarbury v. Madison of 1803. Marbury established the doctrine of judicial review, which is based on Article III of the Constitution and grants the court power to uphold or overturn the legality of any action undertaken by a public body, president or legislature. In essence, Marshall’s interpretation created what we have come to see as the major “check” the judicial branch exercises over the other branches of government.
So, taken all-in-all, we might just say that Marshall managed to provide the Supreme Court with plenty of the energy, weight, and dignity it hitherto had lacked.

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