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Prudential argumentation and John Marshall's opinion in Marbury v. Madison (1803).

The 1800 election of Thomas Jefferson as president and of a Republican majority in Congress was a pivotal moment in American history. This election marked the first time in the fledgling republic's existence that a new party took over both elected branches of government. It was also the first (and last) time that the U.S. House of Representatives was called upon to break an electoral vote tie and decide who would serve as president and as vice-president. Part and parcel to these historic firsts, the 1800 election marked the beginning of the end for the Federalist Party and the rise of Jeffersonian Republicanism. Significant changes gripped American politics. At the time, however, political actors from the Republican and Federalist Parties failed to take pause and appreciate their place in history. Instead, the picayune business of partisanship intensified. The election results compelled the outgoing Adams administration and the Federalist Congress to preserve Federalist influence in government. To that end, President John Adams and his terminal majority in Congress turned to the courts.

In the early months of 1801, Federalists engaged in a series of maneuvers that placed the judiciary--the supposed "least dangerous" branch (Hamilton, 1788/2003a, p. 472; see also Bickel, 1962)--amidst the contestation of partisanship. Certainly, the courts were politically-charged prior to 1801. When Jefferson's presidency began on March 4, not a single Republican was seated in any of the federal courts (Malone, 1970, p. 117). However, the contentious election of 1800 isolated the courts as a final battlefield on which Federalists might claim victory. Jefferson, himself observing the war-like maneuvering concerning the courts, claimed that the Federalists had "retired into the judiciary as a stronghold" (Jefferson, 1801/1905, p. 302). The Federalists' first move, and arguably the least contested, was the nomination of then-Secretary of State John Marshall as Chief Justice of the Supreme Court (hereafter, "Court"). The Federalists' second move took the form of two congressional acts: the Judiciary Act of 1801 and the Organic Act of the District of Columbia. On February 13, the Judiciary Act was passed by the Federalist majority, calling for the appointment of sixteen new federal judgeships and reducing the Court from six justices to five. Adams would have the next few weeks to fill judge positions and Jefferson was denied the ability to place a Republican on the Court to replace the ailing Justice William Cushing. On February 27, ten days after the House broke the electoral vote tie between Aaron Burr and Jefferson, the lame duck Congress passed the Organic Act and afforded the president an indeterminate number of justices of the peace for the District of Columbia. Adams nominated forty-two justices of the peace and all were confirmed. In the span of one month, the Federalist courts were thus fortified with fifty-nine more Federalist sympathizers. The duty to deliver the justice of the peace appointments fell upon Secretary of State Marshall. On March 4, at the stroke of midnight, Jefferson's acting Secretary of State, Levi Lincoln, required Marshall to stop, leaving commissions undelivered. As might be expected from hotly-contested political battles, the new secretary of state, James Madison, refused to deliver many of the remaining commissions.

The courts remained a site of ill will among Federalists and Republicans. In 1802, Republicans passed the Judiciary Act to repeal the Federalist-created Judiciary Act of 1801. Worried that the Federalist-dominated Court would overturn the repeal of the 1801 Judiciary Act, another bill was introduced in April of 1802 to abolish the June and December terms of the 1802 Court (see Nelson, 2000, p. 69). During that year, the rancor between the Republican elected officials and Federalist judges persisted. More particularly, Federalist Justice Samuel Chase was a target for Republicans, as Chase was notorious for "[leaving] the bench without quorum in order that he might make political speeches for his party," as well as for "his contempt for the popular will" (Adams, 1889/1986, p. 401). On February 3, 1803, when the Court was able to meet for the first time in a year, Jefferson initiated the impeachment proceedings against John Picketing, a Federalist judge in the U.S. district court in New Hampshire. Jefferson and his ilk employed their own political strategies to counter those of Federalist antagonists.

As partisan wrangling continued amongst the executive and legislative branches, a small number of scorned would-be public servants sought their positions as justices of the peace in the District of Columbia. Of those who were denied commissions, only William Marbury, Dennis Ramsay, Robert Hooe, and William Harper pursued the positions they believed were lawfully theirs. The appointees' lone option to receive the commissions was a writ of mandamus (a court order to a government agency) from the Court requiring Secretary of State Madison to complete the process and deliver the commissions. The men would have to wait for their day in court, however. Having filed for a writ of mandamus weeks before the passing of the Judiciary Act of 1802, Marbury's case would not be heard until the Court's February 1803 term. Adding to the intrigue, Federalist Chief Justice Marshall would hear the case of the Federalist appointees, despite Marshall's role as the agent responsible for the commissions going undelivered.

In 1803, Marshall's opinion in the case Marbury v. Madison faced these personal, legal, and political challenges in rendering the Court's decision. In that case, Marshall's per curiam opinion ("by the court") ruled that the Marbury, Ramsay, Hooe, and Harper had the right to the commissions, but that they did not have standing in the Court. Marshall reached beyond the judiciary acts immediately implicated in the case (i.e., those from 1801 and 1802) and instead argued that section 13 of the Judiciary Act of 1789, which gave the Court original jurisdiction for hearing pleas for writs of mandamus, unconstitutionally broadened the scope of cases heard by the Court. The Court's decision marked a significant and early instance of the judicial branch overturning an act of Congress and exercising the power of judicial review.

Upon glancing at the context of the case, Marshall's opinion seemed to do everything wrong, exercising authority over the legislative branch in a case in which his own self-interest was well known. Jefferson had trained his eye on Federalist judges and needed little cause to try to remove his political foes. The lack of the Court's authority within the tripartite system of the U.S. government confounds Marshall's decision in the case even more. During the decade following constitutional ratification, the Court heard only sixty cases total and made few decisions that challenged the authority of the legislative or executive branches (see Casto, 1995, pp. 175-78; pp. 214-15; and Frankel, 2003, pp.1-13). Thus, Marshall's rationale seemed counterintuitive given the facts of the case and how it traversed uncharted territory in an unstable, highly partisan environment. So, why did Marshall do it? Why did he invoke the notion of judicial review in this case?

In this essay, Marshall's invocation of judicial review is interpreted as the logical completion of his argumentative approach, rather than as a legal principle that needed expounding. Marshall's opinion enacted prudential argumentation in order to moderate the intense partisanship pervasive in the case's context. As an enactment of prudential argumentation, Marshall was able to proclaim that the Court lacked the power to act on the case without appearing powerless. Invoking judicial review was not, by itself, prudent. In fact, such an act could easily be construed as imprudent given the relative weakness of the Court's authority during the early-nineteenth century. Interpreting judicial review as the completion of Marshall prudential argumentation provides an alternative to other explanations that claim judicial review was the goal and that "Marshall had to stretch very far to reach the result that he did" (Kramer, 2004, p. 124; see also Adrian & Press, 1974, p. 172; Berman & Loeb, 1970, 326, Burns, Peltason & Cronin, 1978, p. 29; and Dewey, 1970, pp. 117-20). One such interpretation is offered by Kramer (2004), who claims, "Marshall's goal was, in effect, to get judicial review into the record--not to establish its existence, but to deflect an incipient movement to delegitimate it" (p. 124). Kramer's answer to the "why?" question focuses on Marshall's motives and recontextualizes Marbury in terms of the concept of judicial review. Yet, by reading the case for its relationship to the concept of judicial review, other elements of the context facing Marshall and the Court are sublimated. The "incipient movement" against judicial review was not the only issue surrounding the case. Broader political issues and Marshall's own investment made the case much more than a legal exercise. Yet, as will be demonstrated in the following pages, judicial review was the final component of the overall prudential argumentation strategy that allowed Marshall to respond to numerous contextual constraints.

The present essay proceeds by first, explicating the norms of constitutional interpretation and the possibilities that prudential argumentation provided. Second, Marshall's prudential argumentation is traced through his opinion in Marbury. Thirdly, Marshall's prudential argumentation is understood in relation to its own context, as well of in terms of how Marshall's approach has traveled through time.

THE NORMS OF CONSTITUTIONAL INTERPRETATION AND THE POSSIBILITIES OF PRUDENTIAL ARGUMENTATION

The convergence of law and politics was brought into stark relief by the election results of 1800 and the subsequent appointment of "midnight judges" by the Federalists. Despite Jefferson's appeal to political unity in his first inaugural address--"We are all Republicans. We are all Federalists" (Jefferson, 1801/2003, p. xiv)--and the hiatus of the Court in 1802, partisan pressure on the Court endured. Republicans were out to reclaim the courts. In addition to the forces of partisanship, Marshall also confronted the norms of constitutional interpretation at the time. A brief discussion of those norms provides a foundation for understanding the expectations of judges and their decisions. Then, prudential argumentation is considered as both an extension of and departure from those norms.

Interpretive Norms in the Early Republic

In general, constitutional interpretation in the early American republic emphasized the authority of legislative intent, agreement, and rules. Wolfe (1986) claims that at the time of the Marbury case, the dominant rules for interpreting the Constitution asked the judge to ascertain the will of the legislator (pp. 17-18). This line of thinking owed much to the English jurist Sir William Blackstone (1765-1769/1979), who argued that there were five signs to understanding the intentions of a lawmaker: "the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law" (vol. 1, p. 59). Blackstone's rules resonated with American political leaders as well, as evidenced by numerous passages throughout The Federalist Papers that reflect an acceptance of lawmaker's intent as the purpose of judicial interpretation (see Wolfe, 1986, pp. 20-24).

In the American context, rules of constitutional interpretation were regarded as a means to produce clarity and intelligibility, not confusion. Yet, the creation of a clear opinion depended upon one's ideological disposition. Federalist Alexander Hamilton (1788/2003b) wrote in The Federalist Papers, No. 83, "The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws" (p. 506). Hamilton (1788/2003b) believed that it was "the natural and obvious sense of its [the Constitution's] provisions, apart from any technical rules" that would reflect "the true criterion of construction" (p. 507). The language of common sense facilitated agreement on the general form that constitutional interpretation should take. Yet as Wolfe (1986) observes, such general agreement did not stop individuals from arriving at dramatically different conclusions (p. 25).

Although common sense was an agreed upon criterion for interpretation, partisanship forged new, ideologically-based theories of constitutional construal. For Jeffersonians, the notion of "original intent" became a way to distinguish themselves from Hamilton, Adams, and the Federalist Party. As Powell (1985) explains, the Republican concept of original intent moved the authority of constitutional interpretation to an "extratextual source" and away from the text of the Constitution (Powell, 1985, p. 887). The victory of the Republicans in 1800 led original intent to become "common property of almost all American constitutionalists" (Powell, 1985, p. 887). Marshall's approach to decision making conformed to neither dominant trend. As Kramer (2004, p. 126) and Powell (1985, p. 943) explain, Marshall's approach to constitutional interpretation emphasized a close reading of the text of the Constitution. Not only were the facts of the case in Marbury intensely linked to politics, but the methods by which a judge made decisions were politicized as well.

A brief example from the opinions of Justice Samuel Chase and Justice James Iredell in Calder v. Bull (1798) demonstrates the types of tensions that Marshall faced in Marbury and provides a glimpse into the prior approaches to the question of judicial authority. In that case concerning the application of the ex post facto clause of the Constitution to a probate matter in Connecticut, the Court's decision was unanimous that the clause only applied to criminal proceedings. Chase and Iredell agreed on the decision, but each justice arrived at the decision through different reasoning. Chase challenged the primacy of the legislature in deciding cases, writing, "There are certain vital principles in our flee Republican government, which will determine and over-rule an apparent and flagrant abuse of legislative power ... An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority" (Calder v. Bull 1789, p. 388). Chase's appeal to principles of natural law (i.e., "the great first principles of the social compact") and his recognition of potential abuses of power informed his claim that it was within the authority of the Court to protect those principles. Iredell, agreeing that "a legislative act against natural justice must, in itself, be void," did not believe that the Courts had the authority to make such a declaration (Calder v. Bull 1789, p. 398). Iredell argued that written constitutions "define[d] with precision the objects of legislative power" and "restrain[ed] its exercise within marked and settled boundaries" (Calder v. Bull 1789, p. 399). Chase and Iredell agreed that unjust legislation must be deemed as such. Yet, Iredell's opinion evinced the respect and deference to the legislative branch in these matters. Chase's dogged assertion of the judiciary's authority to confront the legislative branch challenged the dominant paradigm of legal interpretation and the status of the Court in American politics.

Chase's and Iredell's arguments rest on opposite sides of the ideological spectrum concerning the Court's authority and how judges ought to decide cases. Marshall's textualism was not immune from either of these approaches. To get beyond the pitfalls of partisanship, Marshall would need to find a way to make a textually-based argument while avoiding slipping into either previously-articulated position. Marshall's prudential argumentation provided such an approach.

The Possibilities of Prudential Argumentation

Marshall's use of prudential argumentation in responding to the legal, political, and personal challenges of the case moved beyond the partisanship and binary arguments available to him at the time. Displaying prudence in argument has long been an available strategy for political actors. Aristotle's Nichomachean Ethics discusses phronesis--the term from which the word prudence is derived--as "practical disposition" (Aristotle, 1140b5). Marshall's prudence reflected the civic republican tradition discussed most notably by Pocock (1975), who suggests that "'prudence' might be defined as the ability to formulate statutes which will stand the test of time and acquire the authority and antiquity already enjoyed by customs" (p. 24). Yet, as Pocock continues, "prudence is also the virtue displayed by the individual in making his decisions" (p. 24). Thus, prudential argumentation is evident where an arguer applies experience to a particular situation in such a way that the response seems customary.

As simple as prudential argumentation may seem, it is complicated by the moments which necessitate a prudent response. The demand for prudence arises as a response to "public controversy" (Jasinski, 2003, p. 146) or moments where "the republic [is] seen as confronting its own temporal finitude, as attempting to remain morally and politically stable in a stream of irrational events" (Pocock, 1975, p. viii). Called into being by a situation but demanding of the stability of custom, the efficacy of prudential argumentation is the ability to provide a response where knowledge of the past, understanding of the present, and a sense of the future are displayed. Even still, prudential argumentation must stave off claims that a response is merely expedient. As Garver (1987) reminds us: "The problem of prudence ... is precisely to make it into something more than cleverness and opportunism" (p. 9).

The act of prudential argumentation, then, can be seen as the negotiation of two idioms through which an arguer crafts a response to the situation: the idiom of audacity (evident in concepts such as "timeliness, ambition, innovation, daring, risk, energy, and public action") and the idiom of accommodation (evident in concepts "like deferral or delay, hesitancy, circumspection, caution, adaptation, moderation, and restraint") (Jasinski, 2003, p. 149). The audacious and accommodative idioms can manifest in argumentation on many levels, including an arguer's tone, structure, or claims. Within the audacious idiom, the arguer's tone is likely to be passionate, the structure forthright, and the claims bold. By comparison, the accommodative argument is likely to take a demure tone, follow a restrained structure, and make deferential claims. Although this is not a comprehensive cataloging of the audacious and accommodative idioms in argumentation, these characteristics provide a starting point to consider how an arguer might manage both idioms in the act of prudential argumentation. Notably, these characteristics make audacity and accommodation appear as antagonistic, or perhaps even exclusive, argumentation strategies. Indeed, they can be, as demonstrated in the arguments made by Chase (audacious) and Iredell (accommodative) in Calder. In that case, the justices' opinions did not demonstrate the deft negotiation between idioms characteristic of prudential argumentation. Ultimately, the aim is to transcend "the gap between innovation and memory, statute and custom, present, past and future" (Pocock, 1975, p. 25).

Marshall overcame the potential problems of prudence by balancing both idioms in his opinion for the Court. In the next portion of this essay, Marshall's prudential argumentation is revealed. Marshall utilized cultural commonplaces to recognize the prevailing perceptions of authority of the moment, a move that functioned within the idiom of accommodation. From these commonplaces, Marshall transitioned to the idiom of audacity in his defense of the sanctity of the Constitution. By balancing audacity and accommodation, Marshall justified his enactment of the Court's power of judicial review. Additionally, Marshall's prudential argumentation demonstrated the Chief Justice's own virtue in a context where claims to the contrary could be easily made.

PRUDENTIAL ARGUMENTATION IN MARBURY

The Marbury case was argued on February 9 and 10, 1803, in front of only four of the six justices of the Court (Justice Cushing and Justice Alfred Moore did not participate). The proceedings took place in a small committee room in the U.S. Capitol building and then adjourned to Stelle's Hotel to accommodate the ailing Justice Chase. The Court did not hear oral arguments in this case; instead, cases concerning writs of mandamus made the Supreme Court function as the trial court. Curiously, the two people most familiar with the case presided over the case in official capacities: Marshall as the Chief Justice and Levi Lincoln as the Attorney General representing Madison. Within this political and legal context, it seemed as though Marshall and the Court were presented with a simple choice: either grant the writ of mandamus or do not grant the writ of mandamus. The perception of the Court's authority, potential questions of Marshall's virtue given his roles in causing and adjudicating the case, and the overall political climate suggested that not granting the writ of mandamus would be the path of least resistance. To grant a writ of mandamus would be to take an action against the will of the current executive branch, exerting a legal authority in the realm of national politics in a way that was not within the purview of the Court. To grant a writ of mandamus would, thus, invite claims that Marshall was an activist Federalist judge, claims which had been levied against Judge Pickering and Justice Chase

The unanimous decision of the Court was handed down on February 24, 1803, with Marshall writing the opinion for the Court. In that text, the Chief Justice's opinion enacted the unity that a per curiam decision signified. In Marbury, Marshall's prudential argumentation was achieved through the unity of the structure of the opinion and the commonplaces to which Marshall appealed. In order to highlight and appreciate Marshall's prudential argumentation, the structure and commonplaces are treated separately in the analysis below; however, it was the interaction between the two that provided a consistent, and synthetic, response to the political and legal questions implicated in Marbury.

Marshall's Prudential Structure

The structure of Marshall's opinion was not a foregone conclusion. The Chief Justice could have very easily adopted the structure presented on February 10, 1803, by Charles Lee, attorney for Marbury, Hooe, Ramsey, and Harper (henceforth referred to as "the applicants"). Lee argued that upon recognizing that the commissions did exist, he would turn to three questions in the case: First, "Whether the supreme court can award the writ of mandamus in any case." Second, "Whether it will lie to a secretary of state in any case whatever." Third, "Whether in the present case the court may award a mandamus to James Madison, secretary of state" (see Marbury v. Madison, 1803, p. 139; unless noted, all citations to the case are to Marbury v. Madison, [1803]). Opening the Marbury opinion, Marshall explained, "In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that [Lee's] argument" (p. 154). The Court's approach to the case, according to Marshall, was based on three slightly different questions. First, "Has the applicant a right to the commission he demands?" Second, "If he has a right, and that right has been violated, do the laws of his country afford him a remedy?" Third, "If they do afford him a remedy, is it a mandamus issuing from this court?" (p. 154). Marshall's answers to these questions were a significant part of his prudential argumentation. But before moving to his answers, it is important to note how the structure of the opinion coordinated with the claims in order to achieve a prudential opinion.

Structure played an important role in Marshall's opinion and in prudential argumentation in general (Browne, 2003, p. 131; see also Browne, 1993, ch. 1). Marshall's questions served as a practical guide to the reasoning of the Court as well as a display of Marshall's prudence. Regarding the Court's reasoning, a comparison of Lee's argument structure at trial with Marshall's opinion reveals differing approaches that reflect Marshall's prudent choices. Specifically, the first questions posed by Lee and Marshall illuminated the potential significance of structure in prudential argumentation. Both Marshall and Lee asked whether the Court could issue a writ of mandamus and order the executive branch to deliver the commissions, but this question was first for Lee and last for Marshall. Upon presuming that the commissions did exist, Lee leapt to the question of the Court's authority. Beginning with the question of the authority of the Court would negate Marshall's ability to balance audacity and accommodation in any meaningful way. If Marshall recognized that the Court had no authority at beginning of his opinion, then he could be seen as accommodating the executive, the party in power, and prevailing notions concerning the limited authority of the judiciary. Capitulating to the party in power could be read as opportunistic and imprudent. If Marshall's opinion asserted the authority of the Court to instruct the executive branch to take action, the burden of proof would be extraordinarily high and could be see as an opportunistic move by a Federalist judge against the Republican government. Or lastly, if Marshall opened with the claim that he ultimately made in the Marbury opinion--invoking judicial review to overturn part of the Judiciary Act of 1789--the decision could be similarly decried as an odious assertion of judicial authority. Placing the question of the Court's authority last provided Marshall with the opportunity to make and support less contentious claims as a way to build agreement (see Eisgruber, 1993, pp. 52-55). In the structure of the opinion, then, Marshall was able to accommodate other recognizable authorities before moving to his bold assertion of the Court's authority.

Marshall's structure suggested that a careful examination of the facts in the case would lead to the final decision about a writ of mandamus. This reflected well upon Marshall's character. As such, the demonstration of deference and thoughtfulness illustrated "the balanced character" that Howe (1997) describes as the "powerful normative model for what a properly constructed self should be like" in the nineteenth century (p. 260). Marshall took the time in the opinion to demonstrate his ability to balance different interests before announcing his decision. The types of questions he asked and the order in which he asked them facilitated Marshall's demonstration of deliberation. The political questions within the case had called into question propriety, elevating the importance of demonstrating Marshall's virtue. Delaying the decision on a writ of mandamus afforded Marshall the time and space to develop his argument concerning the case, the Court's authority, and the virtue of the Chief Justice.

Commonplaces in Marbury

Inextricably linked to the structure of his prudential argumentation were the answers to the three questions, which further coalesced the opinion into an exemplary enactment of prudential argumentation. Within the three-question structure, Marshall's answers provided a balanced opinion through the use of commonplaces. Marshall used commonplaces to demonstrate deference to the other branches, but also used commonplaces as a means to criticize these same institutions. The coordination of Marshall's structure and use of commonplaces toward a prudential end is understood by following the opinion's three-part movement. First, Marshall initially accommodated the recognized authority of Congress, the president, and individual rights. Then, Marshall transitioned into a more audacious discussion of individual rights and the Constitution. Finally, the sanctity of the Constitution was used to bridge the gap between accommodation and audacity and provided the Court's final decision in the case.

Question 1: Has the applicant a right to the commission he demands? Marshall's answer to the first question traded in common, nearly pedestrian, understandings of executive and legislative power, a useful quality in light of the tenuous matter under consideration. A dimension of Marshall's prudential argumentation functioned, in part, by drawing upon authority of "cultural commonplaces" (see Browne, 2003, p. 128). Cultural commonplaces aid in gaining the assent of one's audience by creating "an effective community of minds" that is "realized at a given moment" (Perelman & Olbrechts-Tyteca, 1969, p. 14). Deploying cultural commonplaces as a dimension of prudential argumentation also positively hues the character of the arguer. Reliance on "common sense, unspoken agreements, and traditional values" in prudential argumentation helps to develop the "conception of the rational actor, that is, someone who is rational while acting" (Hariman, 1991, p. 27). Marshall welcomed rather than repulsed his audience by appealing to the commonplaces of the presidency and Congress to establish agreement (see Fjelstad, 1994, pp. 22-32). Not only were these arguments familiar to Americans, which fostered agreement with Marshall's argument, but his use of commonplaces established the necessary credibility for Marshall to make more audacious claims later in the opinion.

Marshall's exposition of the first question focused on what made a commission complete. The nomination of justices of the peace for the newly-created counties in the District of Columbia was a duty given to the President "with the advice and consent of the senate" (p. 155). From the Court's reading of the Constitution and the laws that created the positions, Marshall discerned three separate operations bound up in the process: the nomination, the appointment, and the commission. The nomination was the sole act of the president. The appointment was an act of the president, but it could only be performed with the consent of the Senate. Though subtle, Marshall demonstrated deference to the executive and legislative branches by emphasizing the authority of the other two branches.

Marshall's explanation of the third operation of the commission--the nature of the commission--was more complicated. The commission was often conflated with the appointment, but Marshall held that the two could not be the same because they were dealt with in separate sections of the Constitution. Marshall argued next that what makes the two operations unique was that the commission contained the final act of the process: the President's signature. The commission contained both the signature of the President and the seal of the United States. The respondent (Madison) had a different view of what made an act complete, namely that delivery was necessary to the process. Marshall contended: "The transmission of the commission is a practice directed by convenience, but not by law" (p. 160). Because the President's signature and the seal of the United States had been affixed to the commission, the answer to the first question in the case was that the applicant did have a right to the commission.

When Marshall asked, "But at what stage does it [the commission] amount to this conclusive evidence?" (p. 157), he tried to derive the point at which the commission had been fully executed. As an example, Marshall used the legislative act that changed the Department of Foreign Affairs to the Department of State to demonstrate. He said, "the signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete" (p. 158). Ultimately, the source of authority for the commission was the signature of the President. This signature motivated action--not the seal nor the delivery of the commission. Marshall argued as much, stating, "[The seal] is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment has been made" (p. 158).

The executive power to make appointments with the advice and consent of the Senate, as set forth in Article II, Section 2, was a traditional value inasmuch as it was prescribed by the Constitution. That Marshall rehearsed these values was not controversial or perhaps even legally necessary, but it helped promote Marshall and the Court as "rational while acting." By accommodating the agreed-upon authority of the Constitution, the President, and the Senate, Marshall demonstrated a sensitivity to the context.

Question 2: If he has a right, and that right has been violated, do the laws of his country afford him a remedy? Where Marshall's answer in the first question accommodated the power of the executive and legislative branches, the answer to the second question shifted the emphasis from the power of government to the power of the individual. In opening his inquiry into the second question, Marshall wrote, "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives injury" (p. 163). Quoting Blackstone, Marshall established the absolute right of citizens to seek legal recourse if a right has been violated, writing, "[W]here there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded" (p. 163). Marshall claimed that any law not "cognizable" by ecclesiastical, military, nor maritime tribunals was "within the cognizance of the common law court of justice" (p. 163). The case before the Court was not ecclesiastical, military, or maritime, therefore the Supreme Court held jurisdiction. Marshall's positing of easily-answerable questions continued to build agreement upon cultural commonplaces.

Similar to the first question, Marshall's opinion deferred authority to existing cultural commonplaces, represented by Blackstone's concept of individual rights. Concerning the role of Blackstonian thought in America, Kramer (2004) writes, "There was only Blackstone, who became important almost by default" (p. 159). Marshall's citation of Blackstone proved ordinary within the context of legal interpretation at the time, a move that helped the opinion further resemble a typical legal decision. With individual rights, Marshall built again his argument from the simplest of premises: that an individual who has been deprived of a right ought to be able to seek redress in a "court of justice." The concept of individual rights, as employed by Marshall, could function within either the accommodative or audacious idioms. On the subject of whether Americans generally had the ability to seek the remedy to lost rights in Court, Marshall stated that the current system contained provisions respecting the rights of individuals. Deference to the status quo represented the measured and moderate norm of accommodation. Yet, the notion of constitutionally-protected rights also referenced the American Revolutionary experience, a time of great innovation and action (Kammen, 1986, p. 21). At the turn of the century, the connection between order and liberty--a pairing that parallels the concepts of accommodation and audacity--was part of common usage (see Kammen, 1986/2001, pp. 73-76). Marshall drew upon the complex meaning of individual rights as a conceptual bridge between his deference to the authority of the other branches of government and his forthcoming challenge to these powers. Prudential argumentation, with an emphasis on the controversies of the moment, provided Marshall with the argumentative savvy to define the loss of a commission as significant harm.

Marshall's discussion of the harm done to the applicants also returned to the appeal to individual rights. Through an analogous case, he equated the denial of the commissions with the denial of pensions to invalid veterans of the Revolution. An act passed in 1794 directed the secretary of war "to place on the pensions list, all persons whose names are contained in a report previously made by him to congress" (p. 164). Marshall asked, "If he should refuse to do so, would the wounded veteran be without remedy?" (p. 164). The rhetorical thrust of Marshall's analogy grew from reverence felt for Revolutionary War veterans, "a mythic people who embodied the spirit of '76, a combination of civic virtue and militant patriotism" (Resch, 1999, p. 65). Marshall's mention of war veterans was also contextually salient, considering that, on Friday, February 11, 1803, the House of Representatives started debating a bill concerning invalid pensions (see National Intelligencer, and Washington Advertiser, 1803, February 25, n.p.). Marshall's analogy proved powerful and timely and elevated the severity of the harm to the applicants.

The final clause in the second question posited, "do the laws of the country afford Marbury a remedy?" On this point, Marshall grappled with the tension between political questions and legal questions. In doing so, he returned to a symbol previously imbued with authority: the presidency. To begin to answer the question of remedy, Marshall seemed to appeal to the austerity and scope of presidential judgment, stating:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. (pp. 165-166)

Marshall appeared to employ the same line of argument advanced in his answer to the first question, namely the recognition of the vested authority of the president. Unlike previous mentions of presidential authority in the opinion, Marshall complicated the issue by applying specific facts of the case. Marshall considered, "But when the legislature proceeds to impose on that officer [the secretary of state] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law ... and cannot at his discretion sport away the vested rights of others" (p. 166; emphasis mine). In Marshall's opinion, a hierarchy emerged amongst the authorities to which he had appealed. Specifically, individual rights began to emerge as the dominant concern in the case. Appealing to rights in this way exposed the audacious idiom of prudential argumentation, a palatable move given the accommodative foundation laid in the first half of the opinion.

Question 3: If they do afford him a remedy, is it a mandamus issuing from this court? Marshall's answer to the third and final question contained two parts: "the nature of the writ" and "the power of this court" (p. 168). To define a writ of mandamus, Marshall turned to the jurisprudential authority of Blackstone and Lord Mansfield. Quoting Mansfield, Marshall wrote, "'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise ... this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy" (p. 170; emphasis mine). According to the "very able judge" Mansfield, a writ of mandamus was an appropriate response for "reasons of justice" and "reasons of public policy," concepts that reflected Marshall's own arguments rooted in individual rights and congressional process. Marshall also addressed whether the writ of mandamus was directed toward the proper official and if there was other legal recourse available to the applicants for the writ of mandamus. Because of the "nature of the thing to be done"--specifically, the delivery of the commission--and that such a duty was given to the secretary of state, Marbury's writ of mandamus directed at Madison, the secretary of state at the time, was proper (p. 170). Also, Marshall found that because "the value of public office cannot be sold," Marbury "has a right to the office itself, or nothing" (p. 173). Therefore, the delivery of the commission served as the only remedy and the writ was the appropriate course of action. The only issue remaining was whether the Court had the authority to issue such a writ.

Before treating Marshall's argument concerning the jurisdiction of the Court, it is necessary to reflect on Marshall's approach to this point in the opinion. Leading up to his last question concerning the power of the court, the answers to Marshall's legal queries seem to favor the applicants: They have a right to the commissions, the laws of this country afford them legal remedy, and a writ of mandamus was the proper course to obtain the justice of the peace appointment. In appearing to support the applicants, the Chief Justice's arguments looked to the authority of Congress, individual rights, and at times, the President to answer the questions. By themselves, each of these commonplaces had a powerful appeal. Used in concert, however, they could be seen as contradictory. For example, Marshall's discussion of the power of the president was focused implicitly on the actions of President Adams. One could just as easily argue against Marshall by invoking the power of President Jefferson. Marshall's use of commonplaces created an initial sense of agreement concerning each point, but such agreement could be easily rebutted using the same commonplaces. Shifting away from the idiom of accommodation, Marshall built from the general sense of agreement toward an audacious defense of the Constitution.

In his consideration of the power of the Court to make the decision, Marshall's opinion built toward the need for action and the idiom of audacity. Departing from the balanced appeals to individual rights, Congress, and the president, Marshall vehemently argued for the superiority of the Constitution as a source of authority. The shift of authority to the Constitution began rather benignly. Having established that a writ of mandamus was the proper action for the applicants, Marshall demonstrated that the issuance of such a writ was a power granted to the Court by the Constitution. He wrote,

The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and the usages of law, to any courts appointed, or persons holding office, under the authority of the United States.' (p. 173)

Quoting the Judiciary Act of 1789, Marshall demonstrated that the Court seemed to have the authority to issue a writ of mandamus. Marshall's challenge to the Act began by elevating the importance of the Constitution through stark and absolute terms. For example, Marshall wrote, "The constitution vests the whole judicial power of the United States in one supreme court" and later, "It cannot be presumed that any clause of the constitution is intended to be without effect" (pp. 173-174; emphasis mine). Having framed the Constitution in such lofty terms, Marshall surmised,

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. (p. 176)

The audacious turn in the opinion established a binary logic where constitutional interpretation became a matter of precision and absolutes. Unlike Marshall's reasoned analysis in his discussion of presidential or legislative authority, Marshall's discussion of the Constitution exuded tension and energy.

The rhetorical force of the arguments pertaining to the Constitution intensified as Marshall emphasized the novelty of the Constitution amongst other legislative acts and the risks of not perceiving the Constitution as novel. As to the novelty of the Constitution, he argued, "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it" (p. 177). He explained the risks associated with viewing the Constitution as "ordinary" through a hypothetical case:

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on a confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? (p. 179)

Treason was punishable by death. Using treason in the example, Marshall exposed the most extreme potential abuse of the Constitution by considering a situation in which the legislature's intervention could potentially risk the death of an innocent person. Marshall's moral indignation became clear as he deplored the person who would swear an oath to support the Constitution and then violate such an oath: "How immoral to impose [the oath] on [judges], if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!" (p. 180). The exclamation point should not be overlooked, as its usage punctuates the moral force Marshall infused into his defense of the Constitution--a force that was certainly absent in his deference to the executive and legislative branches.

Marshall's strident tone demonstrated his fervent defense of the Constitution; yet, it did not lend itself well to clearly articulating the exact finding of the Court. The end of the opinion reads,

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. (p. 180)

From this opinion, Marshall used the power of the Constitution to indict Congress for broadening the scope of the Constitution. Article III, Section 2 of the Constitution stated that the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party." Marshall construed section 13 as an expansion of the definition of the Court's original jurisdiction. Thus, Marshall concluded that the Court cannot issue a writ of mandamus because the law that established this duty was unconstitutional.

The political and legal tension surrounding Marbury left Marshall with a challenge: how could the Court say it lacks the power to order the executive to deliver the commissions without appearing powerless? Marshall's use of prudential argumentation provided such a way. Marshall deferred to the authority of the executive branch and did not attempt to force delivery of the commissions. Yet, the Court exerted its power through the use of judicial review to arrive at its final conclusion. The result is paradoxical, yet prudent: The Court restrained itself by exerting its power.

MARSHALL'S PRUDENTIAL ARGUMENTATION: THE IMMEDIATE AND LONG-TERM IMPACT

In the immediate aftermath of the decision, Marshall seemed to achieve the stability that prudence seeks to provide, as the opinion garnered little attention when announced on February 24, 1803. The National Intelligencer, and Washington Advertiser (1803, February 28) reported Marshall's three questions from the opinion and relayed that "the act of Congress giving the power to the supreme court, to issue a writ of Mandamus in such a case, was unconstitutional, and consequently void" (n.p.) The Maryland Gazette (1803, March 10), Marbury's "hometown" paper, ran the same notice. The Washington Federalist (1803, March 14 and March 16) was the first paper to print the opinion in whole, splitting the opinion between two issues. Neither source expressed criticism or dismay with the decision. The reaction from Congress was similarly unremarkable. Before the opinion was handed down, the Senate considered a petition from William Marbury and others for the deliverance of the commissions (Annals of Congress, 1852, pp. 33-50). The members voted not to proceed in aid of the petitioners--a decision consistent with Marshall's opinion. However, after the Court issued the Marbury opinion, which denounced lawmakers for expanding the Constitution, there was no mention of the decision in congressional debate. The business of the legislative branch proceeded, focusing on bills concerning the navigation rights of the Mississippi River and funding for the printing of government documents (see Annals of Congress, 1852, pp. 207-56; 593-601).

In fact, during the Marshall era of the Court, Clinton (1989) "found only four statements throughout the entire period [of Marshall's tenure on the Court] that take a negative view of the Court's authority to refuse to apply congressional statutes" (p. 107). Rare were the public denouncements of Marbury, such as the views expressed in the Independent Chronicle (1803, March 10) of Boston, which stated:

The efforts of Federalism to exalt the judiciary over the Executive and Legislature, and to give that favorite department a political character and influence ... will probably terminate in the degradation and disgrace of the judiciary ... The attempt of the Supreme Court of the United States by a mandamus to control the executive functions is a new experiment. It seems to be no less than a commencement of war between the constituted departments. The Court must be defeated and retreat from the attack; or march on till they incur an impeachment and removal from office. (n. p.)

The "war" did not materialize in the decisive and public ways that the Independent Chronicle predicted. Even Jefferson, the individual who could have led the charge, kept his contempt private. Writing to George Hay in 1807, Jefferson ruminated, "I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public and denounced as not law" (Jefferson, 1807/1829, p. 76). Lillich (1960) explains that the Marshall's decision "irked" Jefferson, "Yet so careful had Marshall been in his conduct that Jefferson's main avenue for reprisal--impeachment of the Chief Justice--was out of the question" (p. 50). The conduct of which Lillich writes, this essay has argued, was Marshall's prudential argumentation. Marbury's (and Marshall's) public "trial" never arrived; thus it would seem that Marshall's opinion struck a balance in argument and moved the opinion into the realm of custom to which prudential arguments aspire.

The importance of Marshall's prudential argumentation extends beyond its immediate context. From Marshall's opinion one observes the potential for public argument in legal opinions. Marshall's opinion is not free from specialized legal knowledge, but overall the approach is one that relies on publicly cognizable appeals to make its case. Many opinions are technical in nature, owing to the facts of the case, a lack of public controversy, and the tradition of stare decisis in which justices might need to account for centuries of precedent on a given legal subject. Yet in moments of public controversy, the performance of prudential argumentation can be an appropriate and warranted response. "The modern judgment upon John Marshall's judicial opinions is paradoxical," notes Eisgruber (1996). "On the one hand, Marshall's work is regarded as the greatest the American judiciary has produced" and on the other hand, continues Eisgruber, "Marshall is held to have committed technical errors that would shame a first-year law student" (p. 439). Prudence does not speak to the technical dimensions of argumentative practice. In fact, the appeal of prudence, of "practical disposition," is its accessibility: it is practical In law schools the technical dimensions become more pronounced, yet there is another layer to Marshall's writing in Marbury that is distinctly public. Posner (1988) argues, "[A] characteristic of Marshall's opinions, remarkable in our legal culture, is the absence of citations to previous decisions" and "Marshall's avoidance of legal jargon" (p. 290). These characteristics proved critical to Marshall's prudential argumentation within the legal realm. Posner continues: "Whether such a style remains possible in a mature legal system is a matter of doubt; in any event Marshall has had no successful imitators" (p. 290). Although Marshall's "style" may not endure within the technical field of legal culture, as Eisgruber and Posner suggest, the appeal of prudence is oriented toward the public sphere of argument. With prudential argumentation, the character of the adjudicator is premised less on the adherence to technical arguments and more on the arguments connected to widely-held values and arguments for the public good (see Goodnight, 1982).

Although a successor to Marshall's style may not exist, prudential argumentation finds usage in contemporary legal opinions. Most notably, prudential argumentation has been used to address the public controversy in Court opinion concerning race and education. In a number of opinions, Court justices attempt to balance the need to intensely scrutinize the use of racial categories (the hesitancy and caution of the accommodative idiom) with the overarching goals of liberty and equality that such programs aim to create (the expansive energy of the audacious idiom). Justice Lewis Powell's opinion in Regents of the University of California v. Bakke (1978) demonstrated a hesitancy to allow certain types of race-based admissions programs, but praised diversity as necessary in education. In Bakke, Powell argued that the special admissions program at the University of California at Davis Medical School was unlawful, but that the consideration of race in admissions programs was lawful. Powell demonstrated the Court's restraint by discussing the criteria of "strict scrutiny" that must be applied to "precisely tailored" race-based programs (Regents v. Bakke, 1978, pp. 279, 299). Yet, Powell praised diversity and lauded the "flexible" admissions policy at Harvard University that could encourage diversity (p. 317). In the case Grutter v. Bollinger (2003), the admission policy of the University of Michigan Law School were deemed constitutional. In the opinion of the Court, Justice Sandra Day O'Connor extolled the virtues of diversity in education, writing, "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity" (p. 332). O'Connor valued a future that would be open to people of all races; yet, O'Connor also employed the Court's criteria of "strict scrutiny," "limited circumstance," and "narrowly tailored plan" in evaluating Grutter (pp. 333-34).

A third example of prudential argumentation can be found in the 2007 case that considered the race-based policies of two school districts (one in Seattle, Washington and one in Louisville, Kentucky). The balance between cautious application of racial categories and the unqualified praise of diversity in education was evident in the concurring opinion of Justice Anthony Kennedy. Kennedy characterized the tension in the case that invited his prudent response: "To make race matter not so that it might not matter later may entrench the very prejudices we seek to overcome" (Parents Involved v. Seattle School District, 2007, slip op. at 1). In section II of his opinion, Kennedy responded to the majority opinion that held that race cannot be a factor in deciding the composition of primary and secondary schools. Kennedy challenged the majority opinion, arguing "Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded" (Parents v. Seattle, 2007, slip op. at 7). Yet, in section III, Kennedy challenged the dissenting opinions in the case, which argued that current precedent authorized the consideration of race in educational settings. Kennedy became more circumspect: "The dissent's reliance on this Court's precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom" (slip op. at 10). The imprint of prudential argumentation is visible in these cases, as justices attempt to balance the expansive guarantees of freedom and liberty, while acknowledging the need for reflection and caution.

Perhaps most importantly, Marshall's prudent performance in Marbury aided in the rhetorical development of the Court and Constitution in times of public controversy. In the decade after the American Revolution, Americans were overcome with concerns of corruption among political leaders. Pocock (1975) observes,

[O]nce Americans began to talk about corruption, the situation passed out of intellectual control ... The language began to sound that paranoiac note which is heard when men are forced by the logic of mental restriction to conclude that malign agencies are conspiring against the inner citadels of their personalities. (pp. 507-08)

In confronting challenges to virtue amidst the uncertainty of the new republic, Americans lacked an American manner in which to respond. Pocock (1975) writes that within this context, "there was no remedy which Americans could seek short of... a return to the principles of British government" (p. 508). Marshall's response to the situation was to draw upon some elements British common law; but the force of his opinion came from his audacious reinforcement and appreciation of a developing American commonplace: the Constitution. Although the debate concerning virtue played out in legislative deliberations (e.g., Constitutional Convention, state ratification debates, congressional proceedings), the judicial branch had yet to be constituted as a site of such debate. Marshall's balancing of the accommodation and audacious idioms of prudence in response to a public controversy demonstrated the viability of the Court's participation in public matters. And the ability of the Court to enact judicial review and deliberate on important public matters remains a dimension of the Court today.

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Bjorn F. Stillion Southard, Department of English and Communication, Marian College. I wish to thank editor Dale Hample and the three anonymous reviewers for their excellent suggestions. Thanks also go to James F. Klumpp, Shawn J. Parry-Giles, Trevor Parry-Giles, and Belinda A. Stillion Southard for reading earlier iterations of this project. Correspondence concerning this article should be addressed to Bjorn F. Stillion Southard, Marian College, 3200 Cold Spring Road, Indianapolis, IN 46222, or by email to bjorn_southard@yahoo.com
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