In its first couple of decade of existence, the new Constitution faced many problems and challenges. The first major challenge came in 1800 when Thomas Jefferson was elected President, defeating incumbent John Adams. The two were of different parties and the country held its breath to see if power could switch between two parties peacefully. When it happened, the Constitution overcame its first major hurdle and showed its viability.
The next major challenge came later in 1801 in the
case of Marbury v. Madison. William Marbury was one of many Federalist
supporters of Adams to be appointed to new courts created by the lame-duck
Federalist Congress. His nomination was approved on March 3, 1801,
one day before Jefferson was confirmed. His appointment and those
of three other people were unable to be delivered by Secretary of State
John Marshall; who was himself being appointed as Chief Justice of the
Supreme Court. The new Secretary of State, James Madison; under orders
from President Jefferson; refused to give Marbury his commission and deny
him his seat on the bench. Marbury asked the Supreme Court for a
writ of mandamus to force Madison to give him his commission. Marbury
asked for the writ under the original jurisdiction given to the Supreme
Court under the Judiciary Act of 1789. The portion being referred
to reads:
Sec. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which the latter case it shall have original, but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have and exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by all ambassadors, or other public ministers, or in which a consul, or a vice-consul shall be a party. And the trial of issues in fact in the Supreme Court in all actions at law against citizens of the United States, shall be a jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or person holding office, under the authority of the United States.[Emphasis added]1[bold emphases added by this writer]
Marbury presented Marshall with a quandary. Should he defy
Jefferson and take the consequences that would follow? Or should he defy
Adams and risk alienating his own party? His decision was one that walked
that very fine line. He declared, quite correctly, that Jefferson
and Madison were wrong in denying Marbury his commission. However,
the Court could not issue the writ because Section 13; which gave the Supreme
Court the necessary jurisdiction; was unconstitutional because Congress
could not enlarge the powers of the Supreme Court due to the fact that
its powers were delineated in Article II of the Constitution. This
opinion; although not the first to recognize judicial review; put the Supreme
Court on equal footing with the rest of the government.
For years, states asserted their rights and insisted that they were in fact sovereign over the national government and could leave the union whenever they felt like it. In 1806, several northeastern states threatened to leave the Union over the admission of Louisiana to the Union. In 1845, several northern states threatened secession over the admission of Texas. But by far the most serious conflict was the Nullification Crisis of 1833.
The Nullification Crisis occurred because Congress
raised the tariff rates several times between 1820 and 1832 over the protests
of the southern states. John Calhoun, then Vice-President to Andrew
Jackson, developed the doctrine of Nullification. The doctrine stated
that states could “nullify” a federal law, yet stay within the Union.
This doctrine would have torn the Union asunder and return it to Article
of Confederation era government. As Alexis de Tocqueville noted
[t]he entire doctrine of Nullification is comprised in a sentence uttered by Vice-President Calhoun, the head of that party in the South, before the Senate of the United States, in 1833 : “The Constitution is a compact to which the States were parties in their sovereign capacity: now, whenever a compact is entered into by parties which acknowledge no common arbiter to decide in the last resort, each of them has a right to judge for itself in relation to the nature, extent, and obligations of the instrument.” It is evident that such a doctrine destroys the very basis of the Federal Constitution and brings back the anarchy from which the Americans were delivered by the act of 1789.2
The split of the Union was barely averted by Henry Clay, Calhoun,
and Daniel Webster. The tariffs were lowered, but Congress also passed
the Force Act. This Act allowed the President to use force to enforce
the laws of the nation.
Alexis de Tocqueville was a young French aristocrat who came to the United States to look at the penal system. While he was in the new nation, he became interested in the government and wrote a work that would change the landscape of American political society. In this work, entitled Democracy in America, de Tocqueville noted how American democracy worked, including its advantages and its dangers. He was a young aristocrat, who had, as Daniel Boorstin says, “little experience…[with]… politics or the world.”3 De Tocqueville was in America for nine months, from May 11, 1831 to February 28, 1832. While he was in America with his companion, Gustave de Beaumont, he traveled all over the country looking and learning about the penal system. He was simultaneously observing the political machinations that the young country was involved in. His insights were published in Democracy in America. Volume I of Democracy in America was published in 1835 and volume II was published in 1839. Democracy in America was arguably the most influential work about early American democracy and our nation. De Tocqueville “tells us about ourselves…[f]or him, America was an enticing object and the universal symbol of the New World.”4
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1 Charles R. Ducat, Constitutional Interpretation, Sixth Edition, (New York: West Publishing Company), 1996. p. 9 ff.