Brandeis University

Politics 14b

Lectures

Professor Peter Woll

Introductory lectures.

The Eighteenth Century Model of Government

As Gary Wills has pointed out in his brilliant work, Lincoln at Gettysburg, our18th century governmental system is Roman, not Greek, What does that mean? It means that the Framers looked to the balanced government of Rome and not to the democratic model of Athens as their paradigm in Philadelphia in 1787. Hamilton in particular cites the Roman example time after time in The Federalist as he seeks to persuade the New York delegates to the ratification convention and those who chose them to ratify the Constitution.

By contrast Lincoln's Gettysburg address perfectly reflects what I call the 19th century model of government, by , for, and of the people. We will see that this model coincides with the emergence of political parties as the vehicles for democratic rule, which is rule by the majority, which the framers viewed skeptically to say the least.

The 18th Century Enlightenment

The 18th Century Enlightenment that began in France and spread to America spawned the ideas that form the basis of our political system and politics. Living as we do in a free and open polity we forget the extraordinary minds, events, and courage that ultimately produced our constitutional government with its intricate balance of powers and respect for freedoms of expression and natural rights. James Madison, Alexander Hamilton, Benjamin Franklin, John Adams, James Mason and the other signers of the Constitution are a galaxy of brilliant theoretical and practical leaders unparalleled in history. They gave us the freedom and open society we enjoy today, and their and our Constitution has endured with only a few significant formal changes for over 200 years.

What is the 18th Century Model of Government?

Read James Madison's Federalist papers nos. 47, 48, 51 carefully. Outline his premises and the institutions and processes he derived from those premises.

"Men are not angels," he points out in Federalist 51, a conclusion that John Roche used to call the doctrine of original political sin. That is politics is because of the nature of man a contact sport and one that does not follow Robert's rules of order. Politics is more like the NFL than Haverford cricket.

Now here is an irony. Madison and the framers above all believed that statesmen should govern, that government and particularly a strong national government was essential for the preservation of the national interest. While Madison's Federalist writings appear to support a skeptical view of government in fact Madison and the other framers believed in the Enlightenment and it's faith in reason, progress, and the ability of men to govern in a deliberative and selfless way. Advancement of the national interest was the goal.

The Constitution was a leap of faith rooted in 18th century ideals and ideas. It's mechanism, the separation of powers and checks and balances, reflected a strong belief in the possibility of deliberative government and at the same time was a realistic way of achieving that goal.

In summary then, what we call the Madisonian model and the 18th century model of government are one and the same. Students should not forget the dual aspects of Madisonianism, balanced government first to prevent selfish political interests from ruling including the selfish majority will; and second, balanced government to assure deliberative government that defines and carries out the national interest.

Where do John Locke and Thomas Jefferson Come Into the Picture?

Well, as Thomas Jefferson said, John Locke's "little book," Second Treatise, Of Civil Government is not only perfect but the perfect expression of critical but not all parts of18th century American political philosophy.

Jefferson embodied Locke's ideas in the Declaration Of Independence, almost but not quite word for word in some parts. Locke's work was published in 1689 to give theoretical support to The Glorious Revolution that had occurred in 17th century England resulting not in the disposition of the Monarchy but in parliamentary supremacy.

John Locke wrote that government must be derived from the logic of man's condition in the state of nature. There all men are created equal with natural rights to life, liberty, and property. Does this sound familiar? Jefferson put this Lockean concept into the Declaration substituting "happiness" for property.

Locke next stated that while all mankind possessed natural rights, and all men were created equal, the state of nature was inevitably uncertain because while individuals were not in a state of war there, and life was not nasty, brutish, and short (Hobbes), no institutions existed to protect natural rights.

Men ( I am of course using this term in the classic sense to refer in a gender neutral way to all "mankind") in a state of nature formed governments to protect their rights, resolve disputes among them, repel foreign invasions, and carry out other tasks in the public interest. By definition such governments were defined in a social contract that could always be abrogated if the government did not govern with the consent of the people. Note here for general reference purposes that government with the consent of the people does not necessarily mean that the people govern directly, that the government must follow the will of the majority even though "the people" can overthrow a government that does not act with its "consent."

The Higher Law and Natural Rights

Eighteenth century philosophy posited a higher law, the law of nature or natural law, as a norm or value from which all else flowed. Find the higher law and you have the basis of government. The higher law is, in the words of Sir Edward Coke, the Lord Chief Justice of England in the 17th century, determined by right reason. That is it is logically deduced , in Lockean terms, from man's natural state and in Coke's terms from reason and an understanding of justice to which judges, because of their learning, are privy. I'm introducing you to Coke here because the concept of a higher law in the Anglo-American political and legal tradition is intertwined with support for judicial review of legislative and executive actions to assure their conformity with the higher law. The higher law gives us natural rights, the freedom to consent to government and the right to revolution if governments act without our consent, rights and freedoms in other words that transend written documents whether they be laws or even constitutions. For example, in a modern context, the Supreme Court has proclaimed a right of privacy that supercedes legislative Acts and exists even though the Constitutiion does not define it.

Let's hear directly from Coke in the famous Dr. Bonham's Case in 1610:

"It appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such acts to be void. "

Coke's reference to the common law is particularly noteworthy here. The common law is judge-made law. It consists of general principles or "law" that common law court judges apply for the resolution of cases and controversies that come before them. In 17th century England the King created the common law courts of equity and Chancery but once created the courts proclaimed their independence and amazingly their authority to overrule not only the Parliament but the King himself. The principle of judicial review is deeply rooted in the Anglo-American legal tradition even though the Settlement Act of 1701 established parliamentary supremacy.

To Coke and his brethren judges define common law through "right reason" and through the definition and application of the "higher law." To understand this in a modern context consider Griswold v. Connecticut (1965) and Roe v. Wade (1973), cases in which the Supreme Court through "right reasoning" essentially found a natural right to privacy and applied it. As Justice William O. Douglas wrote for the Griswold majority the fundamental right to privacy predates the Constitution although it is implied in penumbras of parts of the Bill of Rights.

The Nature of the Constitution

The Constitution is the social contract to which we have, in Lockean terms, consented. It is as stated in Article VI the supreme law of the land and no governmental act contrary to it can stand.

So far so good. It seems fairly clear, read the Constitution, compare its terms to executive or legislative actions and those contrary to the Constitution are, in John Marshall's words in Marbury v. Madison (1803), null and void.

The Constitution as an Outline, not a Blueprint

Lawrence Tribe's selection 5 points out that the Constitution, as Chief Justice John Marshall noted in McCulloch v. Maryland (1819), is one of enumeration, not definition. Marshall referred to Article I but the Constitutional generally outlines more than it defines governmental structures and powers. Approximately two hundred constitutional law cases reviewing congressional acts and 1200 reviewing state actions have dealt with defining the framers' grand design. These cases of course arose because parties challenged the constitutionality of government actions that injured them in a sufficiently distinct and direct way to fall within the category of an Article III case and controversy, hence making them justiciable.

But the point is why have so many cases challenged government action on constitutional grounds?

First, because the framers purposely did not define many parts of the Constitution for both political and practical reasons. They wanted a flexible document that would accommodate the politics of the future while preserving basic principles such as the separation of powers and checks and balances. They provided for amendments but the frugal and pliable contract they wrote allowed future generations to adapt the Constitution to change without requiring many formal amendments. Subtracting the Bill of Rights only 17 amendments have been adopted over almost 200 years!

Second, and this is extremely important, the lack of a political majorities and therefore of disciplined political parties during most periods since the early days of the Republic transferred the resolution of political disputes to the courts. Litigation became politics by other means. The arena of greatest political controversy during the nineteenth century was federalism, and the definition of national power over the states. In case after case, such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) , political disputes landed in the Supreme Court. Marshall applied Federalist principles to uphold broad national authority over the states. Taney and later justices upheld states' rights and adopted the doctrine of dual federalism to support broad state reserved powers under the Constitution. As John Roche brilliantly points out in selection 62 at p. 448 the Supreme Court has always known that its power is greatest when there are no monolithic political majorities to oppose it, but has exercised judicial self-restraint when confronting disciplined political parties on the other side as during the Civil War and Reconstruction.

Framing the Constitution

John P. Roche and Charles A. Beard offer an interesting contrast on how and why the Constitution was framed.

Beard suggests the framers conspired to protect their personal property against the mob.

Roche sees the framers as practical politicians who were above all nationalists seeking the necessary compromises to get agreement among themselves and from the people.

Beard's Arguments

Roche's Arguments

While the framers' motives are an interesting topic, and important in terms of original intent, motives are really impossible to aggregate in a micro way. Madison, Hamilton, Franklin and the other delegates wanted a strong national government, as Roche points out. That's the macro picture.

Additional Notes

Montesquieu (French philosopher of the 18th century, widely read in America) develops one of the most coherent statements of this type of government in his enormous work, The Spirit of the Laws. While Montesquieu is often said to have been wrong in his interpretation of British government as a system of separated powers, it is this description that gains the attention of Madison, and is the dominant interpretation in America at the time.

Another important influence of note is John Locke, whose Second Treatise of Government (1689) justified the right of revolution, decried the divine right of kings, and declared the legitimacy of natural law (based on the "right reason" of man), which ensures to all men the natural rights of life, liberty, and property.

Natural law forms the boundaries within which government can legitimately operate. No government can, for instance, take away one's natural right to liberty. In keeping with his conclusions about the nature of government, Locke argued that the people's legislature should be the dominant governmental institution. (It may be helpful to see Locke within the context of English history, which was for years embroiled in a battle between Parliament and the Crown.

Recognize how much closer today's Britain is to our own government than that of the 16th century, and you will be on your way to understanding the import of Locke's theories within his own time.

Locke also laid out a triparte system of government: the legislature to make laws, the executive to enforce them, and the judiciary to solve disputes.

It is important to note the importance of the idea of a social contract, in Locke's writings. Government by the consent of the people is the only means of ensuring the protection of natural rights – but please note that this does not mean majority rule. Instead, whatever rules are established by Parliament are consented to, as long as they respect natural law. When they fail in this respect, the right to revolution of the people is their safeguard. (Think about how Locke and Montesquieu are related – do you think Locke may have been an important influence on Montesquieu? Is the British system as described in the writings of these two thinkers what you think of when you think of government by the people? ( The notorious democrat Rousseau argued that the only time the British people is free is on election day. What do you think this might mean?)

In keeping with these powerful influences of the 18th Century, James Madison developed his theory of government. You should note the theories of some political scientists who say that the Constitution is a product of economic or political interests, and that the end result of the Federal Convention does not measure up to Madison's original theories. In keeping with Montesquieu and Locke, the Constitution set up a system of separated powers, with checks and balances to keep them separate and to prevent one from usurping the rest and turining the government into a tyranny.

Further, note the element of national integration in the Constitution. The purpose of this separation and balance is to create a body of reasoned deliberation, and to prevent the accumulation of powers.

However, contrary to popular interpretations, the Madisonian model is not based on a fear of power, or an attempt to obstruct government. Rather, it is an attempt to regulate power. At times, we do see the government as slow, largely because of Madisonian structures, but think about the larger picture, and what these instances represent. The critique that this model impedes majority rule is based on a 19th Century concept of government.

The theories of Charles Beard and John Roche attempt to explain the Founders and to show how the Constitution is influenced by other interests than pure statesmanship.

For instance, Beard explains the creation of the Senate as an attempt to protect monied interests by creating a semi-aristocratic body to check the leveling impulses of the people. Roche insists that the Senate is the result of the compromise between the large and small states over the issue of representation. The Federalist on the other hand, argues that the Senate is simply good government, that it provides a deliberative check on the lower house which is closer to the passions of the people.

Finally we should recognize that the Constitution is a framework, not a blueprint. As you will see in the Supreme Court case of McCulloch v. Maryland, the Constitution is not defined in many particulars, and there is much room for expansion. In fact, much of American political history can be said to revolve around the litigation of political issues.

Questions:

What does it mean to call the Founders "statesmen"?

Explain how the balance of powers works in the following situations:

-the President acts against the express will of Congress in the enforcement of a law

-the President commits a crime

-Congress passes an education bill

-the President orders military action in Iraq

-the Supreme Court overturns a popular law

What arguments can you think of or have you read that disagree with Roche's or Beard's thesis?

In what way is the Senate an anti-majoritarian body? How has this changed over the years? Whose interpretation do you agree with in this matter?

What does the development of judicial review mean for the Constitutional framework?

The reasons for this are first, the framers as John Roche points out were practical politicians who knew that ratification required a certain ambiguity of phrasing so that both federalists (nationalists) and states's rights advocates could be assured that their respective interests would not be submerged.

The political compromises themselves were often necessarily put into compromising language to gain acceptance in Philadelphia.

Moreover language can be only so precise. Consititutional drafters could not possibly cover all the bases.

Bottom line the Constitution was for both political and linguistic reasons one of enumerated not defined powers.

Examples of Constitutional Vagueness

The most important of these were (1) the commerce power; (2) the power to tax and spend; and (3) the war power, which is the power to raise and support armies and to declare war (not make war which is an executive power).

The Commerce Power

We have used the Commerce power as an example an an enumerated congressional power under Article I that requires interpretation to give it definition.

In Gibbons v. Ogden (1824) Chief Justice John Marshall continued to interpret the Constitution in line with his federalist views. Commerce, he held, was any activity that affects commerce among the states. It is an open-ended power that Congress interprets as sit sees fit. His definition "loosely" interpreted the clause, but if you think about it there is simply no evident textual definition of commerce. Therefore what it means is subject to interpretation, and what we call substantive constitutiional interpretation is required to fill in the details of the commerce power.

Commerce clause interpretation began in Gibbons v. Ogden with Chief Justice John Marshall's expansive view of congressional commerce authority.

Note before we go any further that constitutional interpretation can be:

1. textual;

2. based on "original intent";

3. normative, that is incorporating the values of the justices.

John Marshall, a highly respected lawyer, read the Constitution as a contract, and appeared to interpret it textually. That was his first approach. But he also cited the framers' intent. See if you can give examples of each approach from Marshall's Gibbons and McCulloch opinions.

Substantive Commerce Clause Interpretation

Alexander Hamilton in The Federalist wrote that the commerce power was open-ended. He implied that Congress would interpret it's own authority in this area as with other enumerated Article I powers.

Certainly the framers really had no defined "intent" with regard to specific congressiional commerce powers but rather viewed the clause as a general grant of authority to Congress to do whatever it decided, after due deliberation, to be in the national interest.

But the Supreme Court, somewhat ironically with Marshall's Gibbon's opinion, by taking on judicial review of commerce clause cases, put itself into a position where it had to rationalize either upholding or striking down a congressional act. How could the Court possibly decide whether or not a law was within or outside of the commerce power?

The Court vacillated from 1824-1941 in commerce clause cases, that is cases where the authority of Congress was challenged by injured parties under legislation based on the commerce clause. We will leave the complexities of commerce clause litigation to courses on constitutional law. Suffice it to note here that:

1. Gibbons v. Ogden (1824) held that Congess could regulate under its commerce power any activity directly or indirectly affecting commerce among the states, which included intrastate matters insofar as they affected interstate commerce.

2. In Cooley v. Board of Wardens (1850) the Court held that states could regulate local activities relating to commerce provided no national law had preempted the field.

3. In United States v. E.C. Knight Co. (1895) the Court held that the Sherman Antitrust Act could not be construed to regulate manfacturing which was not per se "commerce." The Court ruled that because intrastate monopolies only indirectly affected commerce among the states Congress could not regulate them. This was a matter to be left to the states' police power, which is the power to regulate the health, morals, and safety of the community. But only judicially defined "reasonable" state actions under the reserved police power could be upheld. See for example Lochner v. New York (1908) .

4. In Schechter v. United States (1935) and other cases the the Court struck down the core of New Deal legislation on the ground that Congress had exceeded its commerce power, the authority used for the legislation.

5. FDR attacked the Supreme Court and proposed legislation that would empower him to "pack" the Court by authorizing him to appoint one new justice for each septuagenarian justice of which there were six at the time of the proposed legislation in 1936. The "Court packing" scheme was a thinly veiled attempt to allow the President to control the Court, clearly a violation of the separation of powers.

FDR's court packing plan failed miserably as Congress, the press, and academics of varying stripes attacked him for violating the Constitution. His party deserted him on this issue as soon as the scheme was announced.

But the Supreme Court considered the plan a shot across its bow, an ominous sign that it had taken too active an approach in reviewing and striking down FDR's legislative program that he had proposed to save the nation from the Great Depression. The Court realized that it was confronting what John Roche calls a monolithic political majority or something akin to it and that the time had come to exercise judicial self-restraint. (See John P. Roche, Judicial Self-Restraint, selection 62.) If the Court refused to take a different tack an emerging majority of justices knew that it would loose credibility with the people, undermining its authority.

6. The new tack appeared in N.L.R.B. v. Jones and Laughlin Steel Corp. (1937) in which the great Chief Justice Charles Evans Hughes wrote a majority opinion upholding the National Labor Relations Act of 1935. Hughes was the swing vote having formerly been in the conservative majority that had actively used substantive commerce clause interpretation to attack the New Deal. Now he wrote an opinion that essentially returned to Marshall's reasoning in Gibbons, that Congress could regulate any activity that affected commerce among the states whether directly or indirectly. Labor strife clearly was a matter of concern to commerce and related to commerce; therefore the Wagner Act was a constitutional regulation of commerce because it was designed to minimize strikes by giving unions the right to organize and bargain collectively. Moreover the Jones and Laughlin Steel Corporation clearly was a sprawling interstate corporation that was involved in commerce among the states.

7. The final blow to substantive commerce clause interpretation came in Wickard v. Filburn (1942) in which the Court held, per Justice Jackson, that Congress could regulate any activity that reasonably might affect directly or indirectly interstate commerce, however remotely. The details of the case are interesting so you might want to bring the case up using your web links on our web page.

8. United States v. Lopez (1995) would appear to be an anomaly in commerce clause adjudication since the New Deal. Chief Justice Rehnquist in this and a few prior cases ( National League of Cities v. Usury [1976] for a plurality and in his dissent in Garcia v. San Antonio [1985] interpreted the commerce power narrowly to preclude congressional regulation that in his view impinged upon state sovereignty and the reserved powers of the states.

Read all the Lopez opinions, Rehnquist for the Court, Kennedy, O'Connor, and Thomas concurring, and the dissents of Stevens, Souter, Breyer (joined by Ginsberg, Stevens, and Souter). The opinions are the best overview of commerce clause clause interpretation you can find.

Examples of other important areas of constitutional interpretation:

1. Scope of congressional authority under Article I enumerated powers. See above discussion of commerce clause interpretation and refer to McCulloch v. Maryland (1819).

2. Presidential power--scope and limits, including presidential immunity. See Youngstown Sheet and Tube v. Sawyer (1952), U.S. v. Nixon (1974), Clinton v. Jones (1997) and precedents referred to therein Morrison v. Olson (1988) deals with the consitutionality of the Special Prosecutor's Office which, while outside of presidential control, exercises the purest of executive powers, the power to prosecute.

3. Delegation of legislative and judicial power by Congress to the executive branch and independent agencies. See Schechter v. United States (1935) and Commodities Future Trading Commission v. Shor (1986).

4. Nature and scope of judicial review as in Marbury v. Madison (1803). See also for example Luther v. Borden (1849 and the doctrine of political questions, relevant also in Colegrove v. Green (1946) and Baker v. Carr (1962).

5. The Bill of Rights and limits upon congressional and, through the 14th Amendment, the states's authority to regulate freedoms of expression, liberty under the due process clauses, and the rights of those accused of crime. See especially the Carolene Products footnote 4, 304 U.S. 144 (1938).

1. Perhaps Chief Justice John Marshall's most famous case, Marbury v. Madison (1803) reaffirmed the Supreme Court's power of judicial review of congressional legislation.

2. Marshall held , quoting Alexander Hamilton in Federaist 78, that " it is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."

3. The reference to judicial review was entirely predictable and at the time unremarkable. Judicial review in the political context refers to court review of legislative and executive actions at the national and state levels of government. The Supreme Court in several prior cases essentially held that it had the power of judicial review of congressional acts. Article 25 of the Judiciary Act of 1789 gave the Supeme Court the authority to review state actions, meaning state legislative, executive, and court actions and decisions.

Marshall's affirmation of the federal judiciary's power of judicial review came in what is called obiter dictum, that is comments extraneous to the merits of the case at hand.

4. Judicial review is inevitably a political act when it extends to the "political" branches of the government even though it is couched in terms of objective application of the law, which means the Constitution when legislative actions are involved and either the Constitution or statutory law in cases reviewing executive actions.

5. Marshall's extraneous remarks on judicial review in Marbury v. Madison were entirely uncontroversial and did not receive press comment. President Jefferson, the target of the other half of the Marbury opinion, said nothing about judicial review which from Dr. Bonham's case in the 16th century to the time of Marbury had been firmly embedded in the Anglo-American legal tradition although the British courts since the Settlement Act of 1701 did not have the power to overturn parliamentary acts.

Colonial and state courts on this side of the Atlantic, however, had long practiced judicial review and as Hamilton stated in Federalist 78 the federal judiciary would exercise judicial review, an inherent judicial power.

6. Marbury v. Madison is remembered and cited for its proclamation of the power of judicial review. And bottom line that is the way you too should cite the case too. However you should note that judicial review was considered to be an inherent power. Interpretation of the law means application of the law.

Once the framers established a federal judiciary it may be assumed that, as Hamilton did, they believed that judicial review would be a component of judicial power. The Federalists saw from the beginning that the judiciary could be an effective instrument of nationalism, just as the states' rights advocates saw a threat to state power in the potential expansion of federal courts.

7. The political question doctrine

He wrote in his Marbury opinion: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are , by the Constitution and laws, submitted to the executive, can never be made in this court."

By the same token Marshall would have extended the political question exemption to matters within the discretion of Congress. Both Hamilton and Madison agreed that Congress alone would interpret its enumerated powers under Article I. One could make an interesting argument that congressional exercise of Article I authority involved policy questions that should be beyond the jurisdiction of the courts. Constitutional limits, if there are any, should be determined through the political and not the judicial process. Alas that was not to be although it was not until Dred Scott that the Supreme Court seriously intervened in the sphere of congressional authority.

Judicial review of state actions was another matter and was used by the early nationalist judiciary to uphold national supremacy . Note that with the exception of Dred Scott all of the controversial Supreme Court decisions during the 19th and much of the first half of the 20 centuries overturned state action on constitutional grounds.

McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) were the seminal early cases that established national supremacy and at the same time broadly and flexibly interpreted the Article I powers of Congress.

8. Read Article III of the Constitutiion carefully. What is the original jurisdiction of the Supreme Court? Marshall's opinion stated that the Court would not, could not, uphold and put into practice that part of the Judiciary Act of 1789 that gave it the authority to issue writs of mandamus in its original jurisdiction. This makes no sense as the writ of mandamus is a prerogative judicial writ that was first used in the 16th century in England. Being a prerogative writ no statutory authority is needed to issue it for it is an intrinsic judicial power. Of course the Supreme Court can issue writs of mandamus or any other prerogative writ in its original jurisdiction. Adding such authority to the 1789 Act was redundant and was put there simply to reinforce existing judicial authority. Noone would have suggested that the Supreme Court lacked the power to issue the writ of mandamus, at least not if they were conversant with common law. Nevertheless Marshall reasoned that the congressional "addition" to original jurisdiction that had been made by textually giving the court the power to issue writs of mandamus in its original jurisdiction was unconstitutional. The was a textual reading and application of the Constitution. Note that jurisdiction has nothing to do with whether or not the court can issue a writ of mandamus or any other writ as such writs are incidental to not an integral part of jurisdiction.

In summary, Marshall confused a number of issues in his Marbury opinion. He wanted to exercise judicial self-restraint and he did for no action was taken. This avoided what would have been a nasty conflict with the newly elected Republican President Jefferson and majorities in both houses of Congress.

At the same time, however, Marshall used his Marbury v. Madison platform to denounce Jefferson for failing to do his duty and deliver Marbury's commission and the commissions of other Federalist-appointed justices of the peace. Marshall by implication encouraged Marbury to pursue his suit in the lower federal courts because mandamus was the appropriate remedy and those courts could issue the writ because Article III textually gave Congress the authority to determine their "jurisdiction."

Jefferson was furious and remembered with hatred to his dying day what he considered to be Marshall's gratuitous attack on him.