Steve Russell :
Antonin Scalia was a Federalist, sort of,

and therefore would not approve of President Obama making a lame duck appointment to replace him, right? Wrong.

Antonin Scalia DonkeyHotey

The late Justice Antonin Scalia. Caricature by DonkeyHotey / Flickr.

By Steve Russell | The Rag Blog | March 31, 2016

Once upon a time, in the late 20th and early 21st centuries, there was a patriotic organization of lawyers and academics called the Federalist Society. They were alarmed by federal court decisions that appeared to favor non-white persons and prefer human persons over corporate persons.

Over the years, they gained virtual veto power over judicial appointments by one of the major political parties and they opened chapters in every major law school, to catch new lawyers before deviant ideas could take hold. By 2012, four justices of the Supreme Court were Federalist Society members — Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.

They preached that the “plain language” of the Constitution in light of the “original intent” of the Founders could answer all constitutional questions. Their hero was one of the Founders, the first great Chief Justice of the United States, the Federalist John Marshall.

Picture a presidential election that makes Bush and Gore appear to be politics-as-usual.

Picture a presidential election that makes the Bush and Gore 2000 election appear to be politics-as-usual and you have some approximation of the 1800 election.

One party, the Federalists, had controlled the U.S. government since the revolution. Modern history teaches us that the acid test of a revolution comes not in seizing power, but in governance and the peaceful transition of that power to legitimate successors. The king is dead; long live the king. In 1800, there had been other revolutions but there were no role models.

The Alien and Sedition Acts had been used against critics of the government, the Democratic-Republicans. Let’s be clear: people were locked up for criticizing the government. Still, newspapers of the day were as biased as Fox News in our times, and they were willing to sling any mud handy and make up some if mud were scarce.

George Washington, the military hero of the revolution, had declined the open opportunity to rule for his biological life, King George I of the Americas replacing King George III of England. His chosen successor, John Adams, faced unrelenting attacks by the intellectual father of the Democratic-Republicans, today’s Democratic Party, Thomas Jefferson.

In those days, the president was the winner of a plurality in the Electoral College and the vice president was the man who came in second, regardless of party. There were slates, of course, and the Democratic-Republican slate was Jefferson for President and Aaron Burr for Vice President.

Jefferson and Burr tied in the Electoral College, sending the election to the House.

Jefferson and Burr tied in the Electoral College, sending the election to the House of Representatives, as some expected might happen with the Bush and Gore election in 2000.

In the House, Jefferson’s difficulty became not Adams but Burr, who lacked the party loyalty to put his support behind Jefferson. Burr could deny Jefferson the nine of 16 states required to win, and Burr would not back down.

While the House voted and re-voted without result, the deadline to seat a new President came and went. This led the Adams supporters to float the legal position that because no successor had been lawfully qualified, Adams was still president for another term and the attempted election was moot. Pennsylvania and Virginia mobilized their militias, and the American Revolution appeared doomed.

The Federalists blinked and threw enough of their support to Jefferson (the lesser of the evils by their lights) to deny the presidency to Burr after 36 deadlocked ballots. This placing of country before party did not, however, mean an end to bad feelings from the nasty and personal campaign.

Adams and the lame duck Federalist Congress set about entrenching as much Federalist power as possible in the waning days of his administration. Congress created judgeships to be appointed by Adams and therefore denied to Jefferson. This is where our political lexicon gained the phrase “midnight appointments.”

One of these midnight appointments was the Federalist Secretary of State, John Marshall, to be Chief Justice of the United States, a lifetime appointment he assumed while still functioning as Secretary of State. Another went to a lowly justice of the peace, one William Marbury.

Jefferson was predictably outraged and instructed his newly appointed Secretary of State, James Madison, to withhold commissions from as many midnight appointees as possible.

Marbury, who was denied his commission, sued James Madison in the Supreme Court for a writ of mandamus ordering Madison to deliver it. Chief Justice John Marshall had, as Secretary of State, been responsible for the fact that the commission was not delivered in the first place. That would seem an ethical bar to Marshall sitting on the case, since his impartiality appeared compromised, but these were different times. Marshall’s impartiality would be as questionable by modern standards later, when he crafted one of the foundational decisions in federal Indian law.

Jefferson held a view of the Constitution now dismissed by all but Newt Gingrich.

Jefferson held a view of the Constitution now dismissed by all but Newt Gingrich: that Congress and the President and the Supreme Court all have a duty to interpret the Constitution but none have authority to require the other branches to comply with their interpretation, except that the president has the army and the Congress has the purse and the Supreme Court has… nothing but the persuasion of a well written opinion.

The expected scenario was that the Federalist Marshall would rule in favor of the Federalist Marbury and the Democratic-Republicans Jefferson and Madison would invite Marshall to urinate up a rope. This would end the controversy, although plainly it could cause many others.

Marshall had nothing but his wits, which were more than up to the task, and this is why American Indians caught in the webs he wove should never underestimate his ability. We can learn from his writings that every legal blade has at least two edges.

Marshall asked whether the common law entitled Marbury to a writ of mandamus, an order requiring an officer to act. It plainly did. Marbury’s appointment was a discretionary act, which cannot be the subject of mandamus. A court could not order the President whom to appoint. But the delivery of Marbury’s commission was a mere ministerial act, involving no discretion, and this situation is the very stuff of mandamus.

So Marbury won the lawsuit and Jefferson refused to enforce the decision, right? Just like Andrew Jackson would later refuse to enforce Worchester v. Georgia and unlawfully send my people on the Trail of Tears.

Wrong. The Supreme Court’s authority to issue the writ of mandamus, Marshall opined, was based on the Judiciary Act of 1789. That act conflicted with the jurisdiction of the Court set out in the Constitution AND WAS THEREFORE VOID, what we call today “unconstitutional.” In our times, the word “unconstitutional” is thrown around routinely in all sorts of political debates, but in Marshall’s time the power of a court to overrule Congress was not at all as clear as Marshall made it sound.

Jefferson, nobody’s fool, saw the power Marshall had arrogated to the Court, and was fit to be tied.

Jefferson, nobody’s fool, saw the power Marshall had arrogated to the Court, and was fit to be tied. But what could he do or say? He had won the case on the merits. He won the right to appoint his own justice of the peace and lost a critical point of constitutional theory that lives to our times, when the Supreme Court found the Florida recount in 2000 to be “unconstitutional” and handed the election to the political descendants of Marshall at the expense of the political descendants of Jefferson.

John Marshall went on to be the longest serving Chief Justice in U.S. history, but he never again used the power he had crafted against an act of Congress. Overruling Congress, remember, came in the midst of an election dispute that threatened civil war. The second use of the power was by Marshall’s successor, Roger Taney, in Dred Scott v. Sandford, and it did indeed touch off a civil war.

All Americans should know the story of Marbury v. Madison, but few do.

All American Indians should know the story for a whole other set of reasons.

John Marshall, the architect of Marbury who used it to arrogate the power of judicial review from next to nothing is also the man who, in three seminal cases, crafted the foundations of federal Indian law from next to nothing. Those foundations would, long after Marshall had gone to his reward, support the arrogation of “plenary power” to Congress over Indian nations.

Before he set about the task of constructing what most academics call federal Indian law but many Indian academics call federal Indian control law, Marshall made clear that the same power to overrule unconstitutional laws applied to the states. In Fletcher v. Peck (1810), Marshall’s Supreme Court declared unconstitutional Georgia’s attempt to rescind the sale of lands ancestral to the Cherokee and Creek peoples (among others) in spite of the fact that virtually the entire Georgia legislature had been bribed to accomplish the sale in the first place.

Indians were bystanders in Fletcher v. Peck, but they did get sideswiped when Marshall wrote “the majority of the court is of the opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to… (state ownership).”

Indians were hit head-on 13 years later, in a Marshall opinion full of imagined facts.

Indians were hit head-on 13 years later, in a Marshall opinion full of imagined facts, made-up law, and ethical questions. This was Johnson v. M’intosh, the first case in the three-legged stool that supports all of modern Indian law.

The nature of Indian right, Marshall opined, was the right of occupancy, not ownership. This finding rested principally on his apprehension that Europeans were Christians and Indians were not. At this time, the Book of Mormon had not yet revealed that Jesus Christ visited North America.

One imagined fact was that all Indians were hunter-gatherers when Europeans showed up. Marshall was innocent of the Cahokia Mounds, Chaco Canyon, and other physical evidence of sedentary peoples with substantial agricultural surplus, but he should have been familiar with the Six Nations and the Cherokee, both of which produced agricultural surplus at the time of the European invasion.

Probably the most famous words from Johnson v. M’intosh are after the assumption that the “savages” (his word) were not farmers: “We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right on abstract principles to expel hunters from the territory they possess or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny…”

This blunt statement was really in our best interests, because “…the tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness…” Everyone knows wilderness is not of any use.

An ethical question arises from this opinion in our times because the legal issue was whether title granted by the U.S. government was superior to title granted by an Indian tribe, and the answer was that the U.S. government title prevailed. John Marshall and his immediate family, at the time, claimed over half a million acres of land under the same chain of title his opinion endorsed. In modern times, we call that a conflict of interest and we don’t let the judge hear the case. The conflict could have been repaired if Marshall had ruled against his own interests — but he did not.

In 1831, Marshall finally laid out, in so many words, the constitutional status of Indian nations.

In 1831, Marshall finally laid out, in so many words, the constitutional status of Indian nations. The state of Georgia had passed acts nullifying Cherokee laws on Cherokee land and providing, among other things, that Indians were not competent to testify in Georgia courts. The Cherokee Nation sued Georgia in the Supreme Court to stop this.

The Supreme Court has authority to hear cases between states or states and a foreign state. In Cherokee Nation v. Georgia, Marshall decided that the Cherokee Nation was not a “foreign state” but rather a “domestic, dependent nation,” and therefore could not bring the lawsuit.

However, one of the anti-Indian laws passed by the state of Georgia required white people residing within the Cherokee Nation to get a license from the state. Samuel Worcester, a Baptist missionary, refused to get a state license and as a result was sentenced to four years at hard labor. The Cherokee Nation took up his defense as a method of raising the same issues Marshall had turned away in Cherokee Nation v. Georgia.

Reaching the merits this time in Worcester v. Georgia, Marshall held that the Cherokee Nation had inherent sovereignty such that Georgia had no authority to nullify Cherokee laws and Georgia laws had no force within the Cherokee Nation. Some historians believe that Marshall had watched in horror as his opinions in Fletcher and Johnson were cited as justification for the oppression he decisively rejected in Worcester.

Justice Joseph Story, probably Marshall’s most distinguished colleague on the Supreme Court, wrote in a letter to his wife in 1832: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.”

While the justices may have thought their hands needed washing, President Andrew Jackson had no such queasiness about violating Indian rights, and all of the Southeastern tribes had their own trails of tears. My people just named it, and lost more citizens on the way to Indian Territory.

John Marshall built the foundations for a claim of  ‘plenary power’ over Indian property.

John Marshall built the foundations for a claim of “plenary power” over Indian property, although subsequent courts had to get around the respect for Indian treaties Marshall expressed in his Worcester opinion.

In an ironic twist, Congress’s failure to discharge the obligations imposed by plenary power, combined with the authority that spins out of Marbury, has laid the most odious recent colonial usurpations of federal Indian law at the door not of Congress, the possessor of the power, but of the Supreme Court, the creator of it.

In our times, there is more Indian fighting on the Supreme Court than in Congress, weaving more policy from the threads originally spun by the brilliant old Federalist, John Marshall.

Antonin Scalia was a Textualist, sort of,

and a direct descendant of Federalist judges who would never make up things not in the Constitution, right? Wrong.

The Constitution (1787) said about the power of the Supreme Court:

Article III, Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…

John Marshall wrote about the power of the Supreme Court:

Marbury v. Madison, 5 U.S. 137 (1803). The Supreme Court has the power to declare acts of Congress void for being “repugnant to” the Constitution, what we now call “unconstitutional.”

Fletcher v. Peck, 10 U.S. 87 (1810). The Supreme Court has the power to declare state laws unconstitutional.

The Constitution said about Indians:

Article I, Section 2
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States….
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Article I, Section 8
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

John Marshall wrote about Indians:

Johnson v. M’Intosh, 21 U.S. 543 (1823). Indians do not own the land beneath their feet, but rather have a right of occupancy that may only be extinguished by the United States. This is based on the Doctrine of Discovery, understood to mean the right of Christians to take the property of non-Christians.

Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Indian nations are not foreign states that can bring lawsuits in the Supreme Court, but rather “domestic, dependent nations.”

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Indian nations have inherent sovereignty, which includes the right to make laws for their own governance, and state laws have no force on Indian land.

Read more articles by Steve Russell on The Rag Blog.

[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. Steve, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today Media Network. He can be reached at ]

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