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Imagine what would be, if history had occurred a bit differently. Who says it didn't, somewhere? These fictional news items explore that possibility. Written by Alternate Historian

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February 11

In 1803, the law of the young United States was only a little more than a decade old since its formal establishment with the ratification of the Constitution.

Marshall Forced to Recuse Himself Older law stretched back by precedent in the days of the Articles of Confederation and even colonial charters, creating the base of English common law that would judge how the basic affairs of personal matters could be handled. However, the highest echelons of the government were new and undecided. In a pivotal case for the Supreme Court, Congress won its position as highest power of the land, outranking even the Constitution itself, out of the character assassination of Chief Justice John Marshall.

The matter at hand was that of the "Midnight Judges" who had been appointed in the last hours of the Federalist Party controlling the government. Jeffersonian Republicans had won the elections in 1800 handily, meaning that the power of the Federalist Congress and President John Adams would simply disappear. In order to maintain what they felt as a sense of sanity for the young nation, John Adams used the newly passed Judiciary Act of 1801 to appoint Federalist-leaning men to some 58 positions as circuit judges and justices of the peace. After approval by the Senate, Secretary of State John Marshall (who had also been appointed Chief Justice of the Supreme Court, but stayed in his executive position at Adams' request) was able to deliver the majority of the appointments. A few would-be judges, however, were unable to be reached, and upon March 4, Jefferson was formally sworn in as president. Among his first actions to Levi Lincoln, Attorney General and acting Secretary of State, ordering him not to deliver the remaining appointments.

One of the ousted appointees was wealthy Marylander financier William Marbury, who demanded his position. He petitioned the Supreme Court, whose position was stalled as the new Democratic-Republican Congress limited the Court to one session the next February. As the court finally convened to hear the case, the questions at hand stretched further than whether they could order the Executive Branch to give Marbury his appointment. The legal issues seemed clear enough with Marbury to win, but lawyers opposing decided a radical strategy of removing the Federalist influence. They argued that Marshall could not sit as he was currently Secretary of State during the delivery and cited English Chief Justice Edward Coke's 1610 opinion that "no person should be a judge in his own case".

The legal standing of the citation was questionable, but public outcry driven by Jeffersonian newspapers gave the Federalist Party a blemish as ignoble tyrants holding any position they could grab. Due to the outpouring of disdain, Marshall sat aside.

Two weeks later, the split decision would be handed down as affirmative toward Marbury. However, Marshall's intended interpretation of judicial review for law fell short. Instead, legal precedence would build so that the Supreme Court's position would be to judge the Executive Branch and that Congress would sit atop a platform described by the Constitution. The so-called "Supremacy Clause" of the Constitution would be interpreted more to support the position of the federal government over those of states in the judicial system, a point that would be used to solve the Nullification Crisis in 1832 and deem secession only legal if approved by Congress. The federal government would be a "living government" rather than one restrained by an unchanging piece of paper.

Marshall, though upset, would continue as Chief Justice and do his best to support Federalist ideals. He challenged Jefferson in declaring Aaron Burr free from any overt act of treason in 1807. In 1810's Fletcher v. Peck, he judged that the Georgia government must support its dealings of its former legislature (unless authorized by the US Congress, now seen as equivalent to the Constitution). He also affirmed the position of the Executive Branch in international dealings, especially with those of the Native Americans.

Decades later, the matter of Congressional Supremacy would be key to the 1857 Dred Scott case proving that Congress had the right to prohibit slavery in US territories. With the substantial legal victory, the matter of slavery came to congressional attention, spurring the Emancipation Act of 1859 that prescribed the methods for a slave to free himself while paying his worth to his master, thus preventing any deprivation of property. The act is widely believed to have headed off a war as it was widely known Congress held the right to abolish slavery. Societies throughout the North (and South) collected money to be given to slaves, many of whom returned to work for former masters for wages.

Through the latter course of the nineteenth century, however, rampant corruption would bring about the Progressive Revolution led by, among others, General Theodore Roosevelt as renewed State Militias defending the Constitution, especially its Second Amendment, clashed with Federal troops.






© Today in Alternate History, 2013-. All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.