Sweet Irony—Conservative High Court Coup Enshrined Judicial Activism

The main dramatis personae of the 1801 Marbury v Madison case--Brand new Federalist Chief Justice and frormer Secretary to State for John Adams, John Marshall and his fellow Virginian and long-time political enemy Democratic Republican President Thomas Jefferson

On February 24, 1802 Chief Justice John Marshall handed President Thomas Jefferson a narrow political victory by asserting a power that Jefferson was convinced the Court did not have in the case of Marbury v. Madison.  

The details of the case were as convoluted and tiresome as Marshall’s hair-splitting decision.  Those of you who have not been tortured in first year Constitutional law will undoubtedly find it confusing. 

The case had its origins with John Adams’ famous “Midnight appointments” of judges aimed at packing the Federal bench with avowed Federalists before Jefferson and the new Democratic-Republican Congress could do anything about it.  The new Circuit Court judges and Federal justices of the peace appointed needed receipt of an official commission from the Secretary of State before taking office.  

Outgoing President John Adams precipitated the crisis by spending his last hour in office furiously making out  judicial appointments--the so-called Midnight Judges and the churlishly left town before his bitter enemy Jefferson's inauguration--the only sitting president ever to boycott the swearing in of his successo

John Marshall had been Adams’ Secretary of State before accepting appointment as Chief Justice and was still acting in that position in lieu of a new appointment.  He rushed as many certificates as possible to the new officers of the court, but he could not finish the job.  He left it to the incoming Secretary, James Madison to routinely process the rest of the documents.  But Jefferson believed that the unfulfilled appointments had expired with the Adams administration and directed that no action be taken on them.  

William Marbury, a prominent Maryland businessman and staunch Federalist did not receive his credentials as Justice of the Peace for the District of Columbia and, believing the job his legal due, sued Secretary of State Madison to compel him to issue his commission.  Meanwhile the new Congress overturned the Judiciary Act of 1801 under which Adams had acted and largely re-instated the previous Judiciary Act of 1789.  

The official litigants--Federalist judge wanna-be William Marbury and Jefferson's Secretary of State James Madison.

Marshall, now Chief Justice, did not recuse himself from hearing the case despite his personal involvement in the appointments. Instead the Federalist and sworn political enemy of Jefferson wrote the opinion in the case.  It was a doozy.  

First, he held that Marbury had a right to receive a legal appointment and suffered an injury for which there must be a judicial remedy.  So far it looked like Marshall was going to affirm the case and the old President’s authority to make the appointments.  

But then Marshall answered an unasked question:  did the Supreme Court have the authority to provide Marbury the remedy he sought through a writ of mandamus?  After examining the Article III of the Constitution which sets forth the power of the Supreme Court and the Judiciary Act of 1789, Marshall concluded that the Court does not have original jurisdiction over writs of mandamus and therefore had no power to issue an order.  Score one for Jefferson who did not want to seat the judges.  

Then Marshall threw his best curve ball.  He declared that Section 13 of the Judiciary Act, which seemed to allow the court to take original jurisdiction, was at odds with the Constitution and therefore “unconstitutional and invalid.”  

A cartoon that sums up what Marshall did.

The results:  Marbury didn’t get his job, Jefferson wasn’t stuck with judges he didn’t want, and the Court had boldly asserted co-equal power with the Executive and Legislative branches of government and indeed had the power to overturn actions by either or both of the others when those actions were unconstitutional. 

The expansion of judicial power appalled and frightened Jefferson who believed that moneyed interests would always control the Court and stymie democracy.  

Thus began the judicial activism which modern Conservatives so abhor—except when that activism advances their own ideology.  

Lawyers, law students, and pettifoggers among my readers are invited to tear my summery of the case to pieces.  I’m sure they will be right.

Giant Naked Stalk of Asparagus or Phallus—A Monument Rises to Washington

Today is not only George Washington’s Birthday, it is also the anniversary of the dedication of that object in his honor that so dominates the landscape of the nation’s capitol. With elaborate ceremony the Washington Monument was finally dedicated on February 22, 1885, 37 years after the corner stone was laid.

The story behind the Monument and its construction, like almost everything else in Washington, D.C. is fraught with drama, political intrigue, the occasional whiff of scandal and posturing politicians out the wazoo.

The hero of the Revolution and First President was hardly in his grave on the grounds of his Mount Vernon estate when calls to memorialize him began to heat up.  Despite his exalted status, however, these plans were not unanimously applauded. 

The Federalists, the party of “responsible” state power and authority, which had sprung from Washington’s closest circle including Alexander Hamilton and President John Adams, were eager to use Washington as a mantle of legitimacy.  They promoted the celebration of his birthday as a civic celebration, paraded in the streets with black cockades in their hats, and staged elaborate banquets. 

Thomas Jefferson, father of the newly minted Democratic Republicans, had always deeply admired Washington and craved his attention and respect.  Not only was he stung by Washington’s evident preference for Hamilton, especially in his second term, but he was deeply wounded when the old general rebuffed his efforts at reconciliation back in Virginia after the President’s retirement.

So perhaps it was understandable that the Democratic Clubs originally organized to support the French Revolution and which eventually became the local building blocks of the new Jeffersonian party, derided the birthday celebrations as aristocratic or even monarchical.  With their tri-color cockades they sometimes tried to interfere with Federalist celebrations.  They preferred to take to the streets behind a Liberty Pole and Cap on other occasions, particularly the Fourth of July, a date identified with their own hero and founder.

The crypt under the Capitol Rotunda remains unfilled and no monumental statue ever erected, but Washington eventually  was commemorated in the painting under the Dome known as the Apotheosis of Washington.

Within days of his death, staunch Virginia Federalist John Marshall proposed creating a tomb for Washington under the Rotunda of the Capitol Building accompanied by a suitable statue of the great man.  Congress approved the proposal but a shortage of funds and a reluctance of Washington’s heirs to move his body amid political uncertainty delayed the project.  When the Jeffersonians came decisively to power after the Revolution of 1800, they promptly killed the plan outright.

Other than the honor of having the whole new Capitol city named for him, Washington was officially without a memorial in the Federal District.

In the intervening years Washington’s fans and the Federalists floated several proposals but their power and influence were rapidly waning after the defeat of John Adams for a second term and the duel death of the party’s Machiavellian leader Hamilton. 

Then the emergency of the War of 1812 interrupted any progress.  Worse for them, the secessionist plots by New England Federalists during the war, finished the party as a national force.  By the so called Era of Good Feelings ushered in with election of Democratic Republican James Monroe in 1816 the Federalists were just a feeble regional rump in New England and ever there were only keeping the support of the educated commercial and religious elite.

But old John Marshal, by now the Chief Justice of the Supreme Court, never gave up his dream of a monument.  A revived interest in the Father of the Country on the occasion of the 100th anniversary of his birth in 1832 gave the old man the opportunity he was looking for.  He also benefited from the continuing popularity of Parson Weems’s 1800 spurious biography of Washington—the one that invented such wild yarns as chopping down the cherry tree, throwing a dollar across the Potomac, and the Vision at Valley Forge.  Peddlers sold cheaply printed copies to the barely literate frontier farmers and urban poor who were ordinarily Republicans helping to elevate the General to folk hero status even in the hearts of his enemies.

Marshal began circulating letters in the hope of establishing a memorial association and obtaining support in Congress for the erection of a monument.  Although he was able to get the support of old Federalists, the scheme had no chance of getting crucial Congressional approval unless the Republicans changed their spot.

Then in 1834 the ancient and infirm James Madison one of the heroes of the Republican pantheon and Jefferson’s closest political associate, in a moment of sentimental regard and genuine generosity, agreed to endorse his ancient foe Marshal’s plans.  The damn was broken and other old Republicans, now known as Democrats, followed suit.  The Washington National Monument Society was formed and began to raise money for the project.

By 1836 an impressive $28,000—about $600,000 in modern currency—was raised and a design competition launch specifying that the construction “…should blend stupendousness with elegance, and be of such magnitude and beauty as to be an object of pride to the American people, and of admiration to all who see it. Its material is intended to be wholly American, and to be of marble and granite brought from each state, that each state may participate in the glory of contributing material as well as in funds to its construction.”

The original design for the Monument.

The winner of the competition, to no one’s surprise was the recently appointed Architect of the Capitol, Robert Mills who had experience with monuments, including the design of an elegant one to Washington in the city of Baltimore.  Mills, by the way, was my mother’s maiden name so he might possibly be some kind of ancestor to me.

Anyway, Mill’s plans were certainly stupendous, elegant, and above all grand.  He proposed building an enormous nearly flat topped obelisk to be surrounded circular colonnade with a statue of Washington as a charioteer over an elaborate entry gate.  Inside the ring would be 30 additional life size statues of Revolutionary heroes and notables. 

It was apparent that far more than the money they had at hand would be needed to bring this vision to life—over a million dollars in fact.  So the Association returned to fund raising while starting construction of the obelisk alone in the hopes that seeing it rise would bring further donations to finish the whole project.

The original location was supposed to be on a point originally designated for an un-built equestrian statue of Washington authorized by the Continental Congress way back in 1783 in a line between the Executive Mansion and the Capitol Building. But the marshy ground there proved to be far too unstable to support the massive weight of the proposed structure.  Eventually Congress designated a spot in what is now called the National Mall for the project.

After many delays, the Monument Society finally began work on the foundation in the spring of 1844.  And on July 4 of that year the corner stone was laid in Masonic ritual, of which Washington, the Master Mason would no doubt have approved.

Work went on steadily with the outer walls sheathed in smooth light gray quarry stone and the interior with a variety of marble, granite, limestone, and other blocks.  For ten years it rose course by course until the Society ran out of funds.  Congress agreed to contribute $200,000 toward the completion in 1854.  But it also stipulated that cities, states, and organizations be solicited to contribute memorial stones to be used in the interior construction.  The idea was both to save money on building materials and to get the public engaged in the completion of the monument.

At first the donation scheme seemed to be working perfectly.  Enormous blocks, cut to rigid specifications, poured in from all directions in addition to governmental bodies, organizations, including a Temperance society, churches, fraternal organizations and even foreign governments sent stones.  Then disaster struck in the form of a stone sent as a gift from Pope Pious IX.  This outraged the ascendant Protestant establishment and the American Party a/k/a the rabidly anti-immigrant and anti-Catholic Know Nothings, then at the height of their brief moment in the sun of American history.  Outraged, Know Nothing hooligans stole the offending stone from the construction site and reportedly threw it into the Potomac.

Worse, with the collusion of a minority on the Society Board which called an illegal special election, the Know Nothings wrestled control of the Society.  They hoped to use the prestige of Washington’s name to add patriotic luster to their xenophobic and nativist program.

Disgusted by the turn of events, Congress withdrew its support before a dime was ever spent. 

The Know Nothings retained control until 1858 by which time they had expired as a political force.  During their tenure they did manage to add 13 courses, but the construction was so shoddy and sub-par—they would not use highly skilled, mostly Catholic and immigrant stone masons—that those additions had to be removed.  When they finally returned the Society’s books and papers to the legitimate board that year, finances were in a shambles.  Some of the Know Nothings seem to have had very sticky fingers.

By that time sectional differences were heating up to a frenzy leaving little room in the nation’s attentions to raise funds for the completion of the project.  All the way through the Civil War the Monument sat as stump less than a third of its intended height in a weedy and over grown field, often surrounded by the encampments of soldiers.

It was not until well after the Civil War that attention returned to the monument with an eye on making it a symbol of national identity and re-unification.  After engineers re-examined the ground and foundation to make sure that it could stand the weight, Congress authorized a new $200,000 to resume construction in connection the country’s Centennial observances in 1876.

Mills, still Architect of the Capitol, pressed for the completion of his original design.  But skeptics believed it was far too expensive and old fashion in design.  Many wanted to simply complete the obelisk.  Others thought that it was to plain to honor the First President.  Mills complained that the obelisk without the colonnade would look like a bare, “stalk of asparagus.”

The society commissioned yet another completion to complete a re-design.  Congress considered five designs in addition to retaining Mills’s original.  The winner was William Wetmore Story.  He eliminated the colonnade and statue, redesigned the base, and made the obelisk conform to classic Egyptian proportions crowned with a pyramidal rather than flat top.  It emphasized the great height of the structure, destined to be the tallest in the world, along with sleek, clean lines, and almost Spartan simplicity.

Actual work on the project resumed under the supervision of Lieutenant Colonel Thomas Lincoln Casey of the U.S. Army Corps of Engineers in 1879.  After first removing the shoddy work, he was unable to exactly match the color of the original quarry stone.  Above the level abandoned in 1856, the stone blocks are slightly darker than the originals.  Casey, at the direction of Congress, also found use in the interior for all of the dedication stones that had littered the construction site for decades.

Setting the aluminum cap stone.

Construction went quickly.  In December 1884 a specially cast aluminum capstone was set on top completing the pyramid top.  Aluminum was then rare and as expensive as silver.  Setting the cap with such a precious material captivated the interest of the nation.

On that day in February a crowd of   800 gathered for the formal dedication and to listen to speeches by Ohio Senator John Sherman, William Wilson Corcoran Monument Society, Col. Casey, and President Chester Arthur. After the speeches Senator Sherman’s brother, General William Tecumseh Sherman led a procession of the dignitaries and the crowd, to the east main entrance of the Capitol building, where the President reviewed passing troops.   The popular illustrated national newspaper/magazines of the day captured the pomp in elegant engravings.

The monument was a hit with the public and an immediate tourist destination.  Even before it was officially opened to the public in 1888, thousand flocked to laboriously climb the 897 steps and 50 landings to the top where they could peer out of horizontal slit open windows and take in the Capitol and White House as well as all of the District of Columbia and far into surrounding Virginia and Maryland.  That number grew even further when a freight elevator used during construction was converted for passenger use.

The setting of the Monument in the National Mall was completed when the Lincoln Memorial was constructed and dedicated on May 30, 1922 at the opposite end of the long park from the Capitol Building and the completion of the Reflecting Pool a short time later.

In 1933 the Monuments and Mall came under the direction of the National Forest Service which manages, provides visitor services, and acts a police force.  Under its auspices, then first restoration work on the monument was undertaken to seal material leaking from between the heavy stones and clean the structure by sandblasting.  

The Monument has often loomed over giant protests like this one against the Vietnam War.

The iconic structure loomed over the hundreds of thousands who gathered to hear Dr.  Martin Luther King, Jr. gave his I Have a Dream speech from the steps of the Lincoln Memorial in 1963.  It also occasionally became the focus of protests, most dramatically in 1983 when Norman Mayer took the monument hostage along with eight tourists.  He was protesting the nuclear arms race and claimed he had large bomb in the van that he drove to the base of the structure.  During a stand-off covered live on television, the tourists were allowed to evacuate unharmed before Park Service police shot and killed Mayer.  No bomb was found.

After a massive fundraising campaign which included the soliciting of corporate sponsors including Target stores, a $5 million dollar restoration was begun in 1996.  A giant scaffolding enclosed the exterior which was examined for cracks and damage, tuck pointing, and cleaning.  The interior, which had suffered significant damage from the humidity brought in by tens of thousands of visitors annually, was also restored, although the historic stairway was closed to the public.  Work last more than four years.

In 2004, after the 9/11 attacks, the Monument, considered an attractive symbolic terrorist target, was closed again for another $15 million dollar upgrade, mostly to security systems, aircraft warning lights, and new landscaping that would disguise barriers that would prevent the approach of a bomb laden vehicle.   The monument itself reopened in April 2005 and the surrounding grounds were reopened that August.

The monument received a one-two punch in when the D.C. area was shaken by a rare earth quake followed a few days later with being slammed by the high winds and driving rains of Hurricane Irene.  After the storm water was discovered in the interior where it shouldn’t be and an exterior inspection revealed significant cracks in the structure, especially to the pyramidal top.  Large stones were also dislodged in the interior.  The monument was once again closed to the public.   After 32 months of repairs, the Park Service and the Trust for the National Mall reopened the Monument to visitors on May 12, 2014.

If you go to Washington you can still see it rising magnificently against a clear blue sky, if you are lucky, or illuminated and gleaming in the darkness.  It’s is suitably awe inspiring.  And yup, you’re gonna think of a phallus.  You won’t be able to help yourself.