Readers may recall the October column in which we discussed James F. Simon's What Kind of Nation. That text was basically a historical review of Thomas Jefferson's Republican battle with Federalists and against John Adams in the Presidential election of 1800. It explained how John Marshall, appointed by Adams as Chief Justice of the Supreme Court, eventually made that Court a co-equal with both the Congress and the Presidency. Despite much animosity between Jefferson and his Virginia cousin, John Marshall, it was Marshall who made the Court the supreme interpreter of the Constitution.

As this column was written shortly after the two political conventions — before we knew the November election outcome — it was evident that a major political issue of the 21st century will remain that of Constitutional interpretation and the role of courts. The common political theme, "We don't want the Courts to legislate from the bench" dates back to the 18th century. In Simon's book, the famous case of Marbury v. Madison ignited the Court's (and Marshall's) ire. Marshall should have disqualified himself from the case, yet it was he who wrote the decision — in fact, virtually all of the decisions — of the Court in his early years as Chief Justice.

In the very last days of John Adams' administration, Adams attempted to "pack the courts" with Federalist judges. At the time, John Marshall served as his Secretary of State. As such, Marshall signed the appointments, making them official. Marbury, a minor Federalist politician from Northern Virginia, was appointed to a minor justice of the peace position, but the appointment was never delivered before Adams left office. The incoming Secretary of State, James Madison, found the appointment. However, Madison allegedly did not deliver it, per Jefferson's instruction. Marbury therefore sought a writ of mandamus under the Judiciary Act of 1789 against Madison to enforce the appointment. The action was brought in the Supreme Court before a court that was, at the time, entirely stuffed with Federalists, including the most disagreeable Samuel Chase. It's been said that Chase had delighted in fining and sentencing anti-Federalist journalists to jail for violation of the Sedition Act. The Sedition Act fortunately expired as a Republican Congress took over, although it was obviously unconstitutional.