Establishing Judicial Review? Schooner Peggy and the Early Marshall Court

• Author: Mark A. Graber
• Published date: 01 March 1998
• Date: 01 March 1998
• DOI: http://doi.org/10.1177/106591299805100110
• Subject Matter: Articles

221

Establishing

Judicial

Review?

Schooner

Peggy

and

the

Early

Marshall

Court

MARK

A.

GRABER,

UNIVERSITY

OF

MARYLAND

United

States

vs.

Schooner

Peggy

supports

claims

that

the

Marshall

Court

twisted

law

to

reach

rulings

that

would

not

antagonize

political

adversaries.

Federalist

justices

at

the

turn

of

the

nineteenth

century

followed

the

election

returns.

Ellsworth

Court

justices

consistently

reached

conclusions

congenial

to

Federalist

party

interests;

the

Marshall

Court

in

its

first

years

always

reached

the

result

favored

by

the

Jefferson

administration.

Schooner

Peggy,

Marbury,

and

other

early

Court

rulings

belie

the

common

assertion

that

the

justices

became

independent

of

the

executive

branch

during

the

Jefferson

adminis-

tration.

Both

Schooner

Peggy

and

Marbury

seek

to

preserve

judicial

power

by

asserting

its

existence,

thus

establishing

precedents

for

future

use,

while

not

actually

attempting

to

challenge

executive

or

legislative

authority

in

any

con-

troversial

way.

The

real

test

for

a

more

independent

judicial

power

would

come

later,

when

the

justices

began

ordering

some

elected

officials

to

take

actions

they

did

not

want

to

take.

Powerful

Chief

Justices

make

their

mark

immediately

Earl

Warren

takes

over

the

reins

of

the

Supreme

Court

and

suddenly

school

segregation

is

de-

clared

unconstitutional.~

Roger Taney

replaces

John

Marshall

as

Chief

Justice

and

the

Court

soon

issues

a

series

of

decisions

that

lead

Daniel

Webster

and

Justice

Joseph

Story

to

complain

that

&dquo;the

Supreme

Court

is

gone&dquo;

(Baxter

1984:

444).~

Marshall

apparently

epitomizes

the

strong

Chief

Justice

who

1

Brown

v.

Board

of

Education,

347

U.S.

483

(1954).

For

descriptions

of

Warren’s

immedi-

ate

impact

on

the

Court’s

deliberations

in

Brown,

see

Ulmer

1971:

690;

Kluger

1975:

657-99.

2

The

decisions

are

New

York

v.

Miln,

36

U.S.

102

(1837);

Briscoe

v.

Bank

of

Kentucky,

36

U.S.

257

(1837);

Charles

River

Bridge

v.

Warren

Court,

36

U.S.

420

(1837).

David

Currie

describes

these

cases

as

the

"Three

Bombshells

of

1837."

Currie

1985:

204.

222

promptly

places

his

imprimatur

on

the

federal

judiciary.

No

sooner

had

Marshall

taken

over

a

tribunal

that,

according

to

former

Chief

Justice

John

Jay,

would

permanently

lack

&dquo;energy,

weight,

and

dignity&dquo;

(Jay

1893:

285),

than

the

jus-

tices

in

Marbury

v.

Madison

(1803)

established

the

power

of

judicial

review.

The

constitution

is

&dquo;the

fundamental

and

paramount

law

of

the

nation,&dquo;

Marshall’s

bold

unanimous

opinion

declared.

The

Supreme

Court

must

deter-

mine

what

the

constitution

means,

he

added,

because

&dquo;it

is

emphatically

the

province

and

duty

of

the

judiciary

to

say

what

the

law

is&dquo;

(5

U.S.

at

177).3

3

This

article

questions

the

common

view

that

Marshall

during

his

first

years

on

the

federal

bench

’firmly

established

the

Court’s

authority

to

review

and

strike

down

government

actions

that

were

incompatible

with

the

Consti-

tution&dquo;

(Epstein

and

Walker

1995:

65)

(emphasis

added)

by

examining

United

States

v.

Schooner

Peggy

(1803),

a

controversial

but

forgotten

Marshall

Court

decision

handed

down

two

years

before

Marbury.

Schooner

Peggy

seems

to

anticipate

Marbury’s

assertion

of

judicial

power.

When

ruling

that

the

Peggy

should

be

returned

to

its

original

French

owners,4

the

Marshall

Court

clearly

indicated

that

federal

justices

would

not

be

bound

by

any

treaty

provision

that

deprived

American

citizens

of

their

constitutional

rights

(5

U.S.

at

110).

Nevertheless,

when

read

in

its

political

context,

Schooner

Peggy

supports

re-

cent

revisionist

readings

of Marbury

(O’Fallon

1992;

Knight

and

Epstein

1996)

which

maintain

that

the

decision

in

the

latter

case

reflected

the

relative

politi-

cal

weaknesses

of

the

early

Marshall

Court.

Marshall’s

opinions

in

Schooner

Peggy

and

Marbury

may

claim

a

judicial

power

to

challenge

the

constitutional

pretensions

of

transient

democratic

majorities,

but

the

bottom

line

in

both

cases

is

a

ruling

in

favor

of

the

incumbent

Jefferson

administration.

The

jus-

tices

in

Marbury

refused

to

issue

a

writ

of

mandamus

that

the

Jefferson

admin-

istration

probably

would

have

ignored

(McCloskey

1994:

26)

and

in

subsequent

cases

found

various

excuses

to

avoid

declaring

unconstitutional

the

1802

Re-

peal

of

the

Judiciary

Act

of

1801.5

The

Schooner

Peggy

Court

responded

to

potentially

strong

political

opposition

in

a

similar

way

Jeffersonian

Republi-

cans

had

previously

condemned

the

Supreme

Court

for

supporting

Federalist

party

positions

in

admiralty

cases

decided

before

the

election

of

1800.

An

influential

Jeffersonian

journal

even

threatened

impeachment

should

the jus-

3

For

classical

statements

that

the

history

of

the

Supreme

Court

begins

for

all

practical

purposes

with

the

accession

of John

Marshall,

see

McCloskey

1994:

19;

White

1988:

8.

4

Or,

to

be

more

precise,

that

the

proceeds

from

the

judicial

sale

of

the

Peggy

should

be

given

to

that

ship’s

original

French

owners.

5

Stuart

v.

Laird,

5 U.S.

299

(1803);

United

States

v.

More,

7

U.S.

159

(1805).

See

O’Fallon

1992:

240-41;

O’Fallon

1993.