Chapter 6 Justice Marshall's vision
Brother Lu: Hello!
Letter received.You said that I have mentioned more than once in previous letters that the judicial branch of the US government has a "judicial review power", and you really want to know more about it.In your letter, you also said that you really want to know how a "Watergate incident" that has ended can only become the "beginning" of a big story.
Let me talk about the "judicial review right" you asked about first.Your question reminds me involuntarily of my first trip to the United States Supreme Court.
It was not only cold that day, but also very windy.I just came from the Library of Congress next door.The main building of the Library of Congress is a very magnificent building, especially its atrium, which can be described as beautiful and beautiful.When we walked to the adjacent Supreme Court, it gave us a completely different feeling.
That day, the building of the Supreme Court gave me a very special impression, not only because it was a very simple imitation of a Greek temple building, but also because the extremely cold wind blew away all the idlers and so on.So, a picture appeared in front of my eyes. Under the cold blue sky, a huge temple-like white marble building was firmly seated. Under the steps in the middle, there stood a man with his legs slightly apart. Black guards in dark uniforms.Compared with the mass of the building, the scale of this guard is insignificant, but you can still feel his strength.At that moment, the cleanness and cleanness of the space, the contrast between scale and black and white made this specific scene deeply freeze in my mind.
I hesitated, and then I started walking into the frame, and as I approached the black guard, I began to wonder if he was going to come over right away and ask me to go away.Because I also know that the Supreme Court and the Library of Congress that I just came out of are not equal in nature.Therefore, the closer I got, the more I hesitated and lacked confidence in my steps.It wasn't until I finally stood in front of the black guard that I realized that he was actually quite large.
At this time, in the picture in front of me, the blue sky has already withdrawn, and the background of the burly guards is the countless white steps extending horizontally, and the large vertical colonnade with typical Corinthian capitals. To be honest, I have almost given up on it at this time. The idea of going in and taking a look felt that this was really impossible.But, already standing here, decided to ask.
So, when the guard politely asked me what I wanted to see, I froze for a moment.He smiled and added, do you want to visit the exhibition hall or go to the courtroom.I said, can I go into the courtroom and have a look?His answer was, "Of course, please come in." He didn't ask me for my name, didn't ask for an ID card, didn't need anything, and I was allowed in.Only then did I see the famous words "All are equal under the law" engraved on the top of the colonnade.
I climbed straight to the top of the steps, and as I walked, I thought, this time I can see what the court of the Supreme Court of the United States will look like.Passing through the six-and-a-half-ton bronze gate, I enter the hall, flanked by marble busts of successive Lord Chancellors.Hurrying through the entire empty hall, I could only hear the echo of my own footsteps in the empty hall.At the other end of the hall, I was standing outside the courtroom of the Supreme Court.A well-dressed young man stopped me and asked softly in a low voice, are you a public visitor?I say yes.He gently opened a door and let me in.
As soon as I entered the court, I was surprised that I didn't have the time to take a good look at the interior decoration design of the building according to my original plan.It was not the silent courtroom with rows of empty seats that I had expected.This is actually a formal workplace where a hall full of spectators is going through tense court hearings.The first thing I saw was the famous nine Supreme Court justices!
This is a hall surrounded by a marble colonnade, with a high ceiling of more than ten meters.In front of the fuchsia curtain, the justices were dressed in black robes and sat in a row on the bench.Chief Justice Ryquist sits in the center, and Thomas, the first black justice I've known in televised hearings, sits to the right.There is also the newly appointed female justice Ginsburg.When I carefully identified the nine justices who hold the highest authority of the judicial branch of the US federal government, the other observers were obviously more concerned about the cases being debated in the courtroom. quiet.
Only then did I realize that, as I have seen before, according to the "case law" of the United States, it is stipulated that the court is a "public place" and "must be open to the outside world", which has its real meaning.I later learned that when the weather is good, there are many people who want to enter the courtroom of the Supreme Court, including many teenagers who are receiving legal education.Usually, people in the gate square line up in two lines. One line intends to listen carefully from the beginning to the end, and the other line intends to listen for three minutes to gain insights. The last two rows of public seats in the court are only allowed to listen for three minutes. people.According to the law, the public and journalists can only be refused to attend the hearing if the judge and both parties agree unanimously.The hearing of the Supreme Court is usually carried out in this way in a hall full of people of all colors.Anyone, if you want to listen, you can listen.
So, what cases does the Supreme Court usually hear?In fact, the Supreme Court of the United States receives nearly 7,000 petitions every year, and it is impossible for the justices to handle them all.The cases they handle generally range from one hundred to one hundred and twenty cases each year.Therefore, the cases were selected in advance.The principle of selection is that these cases generally involve disputes over the interpretation of the Constitution and laws.The case does not depend on its size, nor on the status of the people involved, but on whether the case is representative.
In fact, although the Supreme Court of the United States handles limited cases, it is precisely because these cases are representative in the sense of interpreting the law, and its precedents can be cited by courts at all levels as the basis for judgment.Therefore, these limited judgments often play a role of diversion.That is to say, after a typical case is decided by the Supreme Court, many cases smoldering on the same legal difficulty will be solved across the United States.This is what the U.S. Supreme Court does.In other words, the work of the justices of the U.S. Supreme Court is not so much "judging cases" as it is to make use of typical "cases" to question the law itself, and to constantly make their rational interpretations and judgments on existing laws. .
The situation mentioned above is the work of the Supreme Court on the existing law.At the same time, there is also the legislative branch of the government, that is, Congress. When new laws are disputed, it is up to the Supreme Court to decide whether these new laws can be established.The judgment and interpretation of various laws is usually measured by the Constitution in the United States.Because the essence of the U.S. Constitution is the most fundamental contract for the American people to maintain the existence of this country.Therefore, in the United States, when any existing law or new law is in doubt, the Supreme Court uses the "ruler" of the Constitution to measure it.This is judicial review.
Here, you can also see that since the Constitution has become the only criterion, it will naturally lead to disputes over how to interpret the Constitution itself.The right to interpret the Constitution rests with the nine justices of the Supreme Court.Now, you must understand why I was so surprised when I saw nine justices.They are really the most important people in this country.
In this way, the triangular structure of government power becomes fundamentally stable like a pyramid.Congress has the power to make legislation, but its legislation is limited by the other two branches, especially the crucial constraint of judicial review.At the same time, after the Congress has enacted legislation, it has no power to enforce the law.As for the executive branch headed by the president, although it has the "real" power to enforce the law, it cannot arbitrarily establish laws that are beneficial to itself, and it has no right to arbitrarily interpret and distort the law in the implementation of the law.As for the nine justices, they make judgments on all laws and interpret the Constitution, but apart from that, they do not have any other powers, and they have nothing to do with legislation or administrative operations of the government.
This triangular structure is basically balanced.However, historically, the judicial branch was relatively weak.You must have also realized that one branch is weak, which means that the other two branches are relatively strong.Therefore, its problem is not just a branch problem, but whether the entire structure can maintain balance, whether a stable whole will be destroyed, and the embankment of a thousand miles is also worried about being destroyed by an ant's nest.
In March 1789, the U.S. Constitution was passed by the states and came into force, and the government gradually became normal.Don't imagine America at that time as it is now.At that time, the nascent government of the United States was just beginning to try to operate, and many practical problems that arose during operation were gradually put on the agenda of how to solve them.
In this "primary stage", the task of the justices of the Supreme Court is to "judge the case" there.On the one hand, under the provisions of the Constitution, they have become an independent branch of power to exercise judicial power.But on the other hand, when the Constitution was formulated, it was only considered that the Congress is the representative of the people, and it is reasonable for them to make laws, but it did not further create problems for the laws themselves.For example, several laws may contradict each other.As another example, a specific law may go against the spirit of the Constitution.
That is to say, the power of the Congress at that time was too strong, and when there were problems with its legislation, it lacked a limiting power.
Perhaps, it is precisely because this is a chaotic situation that has just been established, with many cases pending in various places, and the level of local courts is still very uneven, the assistance of the Supreme Court has become a very important task for the justices.Congress stipulated in the legislation that the justices must spend a long time in the country "touring trial".Looking back now, everyone doubts whether this legislation of the Congress has a selfish intention to strengthen their own power, whether they deliberately want to expel the justices from the capital.Because the executive branch is the executive body, it can't get in the way of major legislative matters, and the guys in the Supreme Court who are full-time in charge of "law" will really come out to "manipulate the head and feet" if they don't make it right.
Therefore, in the first years, the justices of the Supreme Court of the United States were on the road for almost half of the year.At that time, there were no highways and cars. They bumped in the carriage during the day and settled in the simple and simple inn in the countryside at night.Therefore, in that year, some people in the United States resigned from the post of chief justice because their physical condition was unbearable for long-distance toil.It sounds unbelievable like a fairy tale today. The chief justice of the Supreme Court is a position that many people envy today.It can be seen that the entire state of the United States at that time, including the government, was still in a preliminary stage of establishment.
The original imbalance between Congress and the Supreme Court, I think, may have something to do with its history.Before the independence of the United States, the government system in many places was modeled after the United Kingdom.At that time, the "House of Representatives", which had a similar function to the Congress, also performed part of the judicial function. Although there were courts, the judiciary was not completely independent.Now, although the founding fathers of the United States were keenly aware that the judiciary must be completely independent in this new country and become a force equal to the other two branches of power, and the Constitution also has this aspect, but because there is no Historical precedents, at the beginning, they were still groping about how to realize this design.
However, the strength of the U.S. Congress and the relative weakness of the Supreme Court at that time had aroused uneasiness among some people of insight.At the beginning of the 19th century, the operation of the US government had only started for a decade or so. Most of the original founders were still strong and working in various positions.However, according to their own constitution, none of them has the power to make a single statement and surpass the constitution.Like everyone else, they only participate in the thinking and discussion of these issues as government officials or parliamentarians.Throughout the discussion, basically the same as when the constitution was drafted, there were two opinions, the so-called federal faction and the anti-federal faction.
These two factions have always existed. The Federalists advocate strengthening the power of the federal government, and some of them also advocate strengthening the strength of the Federal Supreme Court.The anti-federalists hope that the states will have real power and the federal government will not interfere.Therefore, they have little interest in strengthening the Federal Supreme Court.For example, former President Washington, who had retired at that time, held the views of the Federalists, and Thomas Jefferson, who was about to become the first new president of the United States in the 19th century, was anti-Federalists.Washington and Jefferson remained friendly despite the bitter and sometimes hurtful years of debate between the two factions in the early days of the United States.
When the 19th century began, 1800 was also an election year in the United States, and the federalist President Adams lost the election.His successor would be the anti-Federalist Thomas Jefferson.At this time of regime change, the most famous case in American judicial history came out. This case was actually caused by the change of regime.
Now it seems that these politicians at that time had less personal selfish ambitions, so there were no stories of power struggles about arranging cronies and forming cliques for personal gain.But they are serious about their political ideals.The fact is that once they leave office, they really return to the countryside.However, for them, their respective political ideals are a major issue concerning the future of the United States, and they will spare no effort to promote them during their term of office.That's how this story happened.
The Federalists, President Adams and his Secretary of State Marshall, were worried about the state of the judicial branch of the federal government, which they had been working for years to strengthen.But no real progress has been made.Just before President Adams was about to leave office, there was a vacancy for Chief Justice of the Supreme Court.President Adams nominated his Secretary of State Marshall to take up the post after nomination twists and turns.
President Adams himself was a scholar-lawyer with a degree from Harvard University.Yet Marshall had no formal legal education, although he had served as a member of Congress and as U.S. ambassador to France before becoming his secretary of state.Not only was he nominated, but he was vetted by Congress.This is unimaginable today.On the one hand, this reflects the reality of the North American continent. For a long time, there has been a lack of legal talents here; academic qualifications.It can be said that this is an opportunity for the times to create a hero, but is Marshall, who has no formal education, really competent?
Marshall, like President Adams, was least assured that the Federalists would take over the country's executive branch, that they would not attach importance to the strengthening of the judicial branch.Originally, with Adams' defeat, Secretary of State Marshall had no choice but to go home without fulfilling his ambitions.Now, this sudden appointment made him very excited, and he could finally take on the responsibility of strengthening the judiciary that no one else had taken up.He wrote in a letter to President Adams, "I can't wait to move into my new office and take up my new role, giving you no chance to regret making this nomination."
What was the office that Marshall was eager to move into?At that time, the Supreme Court of the United States did not have the majestic and majestic courthouse we have seen.Strictly speaking, the justices do not even have any office space.It was only after Marshall's repeated efforts that the planning committee of the capital negotiated with Congress whether it could temporarily lend a place to accommodate the Supreme Court.Congress agreed, but chose a slightly larger room, only twenty-two feet, and it was in the basement.In this regard, Marshall has been very satisfied.
Before President Adams left office, he had proposed judicial reform to Congress under Marshall's suggestion.This reform, called the "Jurisdiction Act of 1801", if passed by Congress, will produce 16 new circuit judges in the United States to undertake the task of circuit trials across the country.That way, the justices of the Supreme Court can be relieved from the exhaustion that Marshall believes is a prerequisite for the Supreme Court to be able to do something.
From this, you can see that at the beginning of the 19th century, the United States was still far from the ideal of true judicial independence and judicial supervision.With the constitution, there must be the efforts of future generations under the spirit of the constitution.
However, President Adams did not respond to Marshall's request and let him immediately move to the small basement to go to work.It wasn't that the president regretted his nomination, but that he was leaving office in two weeks, and he needed Marshall to hold on to his post of secretary of state for another two weeks.One of the important tasks of these two weeks is to assist the president in completing the appointment of 42 lower-level judges in the capital area, who will serve five-year terms.This is also their effort to strengthen the judiciary, because President Adams wants to nominate some capable judges as much as possible.
Therefore, in order to finish the appointment procedures of the 42 judges at the last moment before Adams left office, they were busy almost every day until late at night.So much so that people later dubbed these judges "midnight judges".By the last night, Marshall had finally finished.Exhausted, he left his secretary of state's office with a pile of papers on his desk.This pile of documents includes the letters of appointment of the last twelve judges, all of which have been signed by the president and sealed in envelopes.For Marshall, he felt the appointments were done.
Unexpectedly, it was the last appointment letter left in the Secretary of State's office that triggered the most famous case in American history.
The next day, all the officials sent by the federal government to the executive branch left the capital Washington with President Adams, leaving only the new Chief Justice Marshall.For him, it was not just a matter of changing offices. He jumped from the executive branch to the judicial branch, and he faced a completely new challenge.But he certainly did not expect that the first big challenge he faced was caused by the letter of appointment of a judge left in his last night as Secretary of State.
What's going on here?It turned out that Madison, the Secretary of State who took over from President Jefferson, did not think that these appointments had been completed after getting these appointment letters on the predecessor's desk.Now that they are in power, if he does not send out the letter of appointment, it means that they have not yet been appointed. Can these judges be appointed by the new president?Here comes a question that no one has ever thought about, that is, do you think the appointment will take effect after the president signs it, or will it count when it is sent to the appointee?
Originally, this problem would not have arisen. Now that the president signed it, the letter of appointment would of course be sent out, all the way to the appointee.However, these appointment letters have not been sent away, so they "change the dynasty"!So, the problem came out like this.
For more than half a year at the beginning, the problem was not made public.Because those judges who lost their chances of being an officer, since they didn't get their appointment letters, didn't know that they had a cooked duck flying away.Therefore, they still live as usual, without any imbalance in their hearts, and they will not think of "seeking justice".But at the end of the year, a man named Marbury finally got the news, and learned that a letter of appointment about him had not been delivered.He didn't think that the appointment signed by the president could be voided, so he decided to find a lawyer to seek justice for him.
The lawyer made a beeline for the Supreme Court.Why did he take it to the Supreme Court as soon as he sued?What kind of judicial process is this?He has his reasons.Because in the "Judicial Act of 1789" passed by the US Congress, there is Article 13, which stipulates that the Supreme Court is granted an additional power, that is, the Supreme Court can directly issue enforcement orders to administrative officials.Perhaps, this is an attempt made by Congress in 1789 to implement "judicial restraint administration".
Since this law expressly stipulates that the Supreme Court has the power to directly force the new Secretary of State to send out the letter of appointment.So, of course, Mulberry's lawyers went straight to the Supreme Court.However, I wonder if you see such a problem?This "Article 13" only stipulates that the Supreme Court has the power to issue enforcement orders, but it does not solve the problem of "how to enforce".
The Supreme Court of the United States has only those few justices, and it has neither the military power possessed by the executive branch nor the financial power possessed by the legislative branch.In other words, if the justice really issues an injunction, if the executive branch does not obey, then the justice can neither send troops to enforce it, nor threaten to cut off the expenditure of the executive branch. What can he do? To ensure the enforcement of the injunction?
When reading this story, you must always think that this happened two hundred years ago.In the United States, it was still a rather "wild" era.You only have to think about those American Western movies to get a rough idea.What's more, at this time even the large-scale development of the west has not yet started.Therefore, the Supreme Court, which has just found a temporary small office, still looks weak.It does not have as many resources as the legal culture of modern America to draw on.In other words, the Supreme Court in the United States at that time was far from establishing the authority it has today.Therefore, before its authority was established, it was at a crossroads with the other two branches of government power. The situation was like a confrontation between an immature teenager and two strong men, and the situation was very tense.At that time, the United States did not have television, not even a radio, so ordinary people could not care much about these things.However, at least in Washington, the capital of the political center, everyone's attention is easily attracted to this case.
What's more, this case is so dramatic: the accusation is that the new Secretary of State has suppressed the appointment left by the old Secretary of State, and the old Secretary of State has also served as the justice who tried the case.Is there anything better to watch than this?But I often think that this incident happened in the early days of the founding of the People’s Republic of China, which gave people a chance to watch a good show. If it happened today, maybe a "party" like Marshall should avoid it as soon as the court takes over the case.
But this was two hundred years ago, and the rules were not so authentic.The case fell into Marshall's hands.But how should he deal with it?
If Marshall refuses to hear this, then the Supreme Court will be like a boy who voluntarily cowers and retreats at a crossroads, and will never look up again when he goes out in the future.If he issued an injunction, the administrative branch would ignore it. It would be like the young man yelling "Get out of the way" to the strong man, but the strong man remained motionless. , there will be no result.Whichever of these two outcomes occurred would run counter to Marshall's ideal of strengthening the judiciary.This is really the time to test a person's political wisdom.
Marshall's first move was to send a notice to the current Secretary of State, Madison, requesting the current Secretary of State to state his reasons on behalf of the Supreme Court: why an injunction should not be issued to you to force you to send out Marble's letter of appointment.This announcement was like the boy standing at the crossroads on his own initiative, and the "audience" in Washington immediately felt very excited as if they had been electrified, and they "surrounded" one after another.
Perhaps, Marshall's move was to delay for a while without showing weakness.Perhaps he also hoped that this issue would spark a discussion of the powers of government and give people an opportunity to reflect on the relationship between its judicial branch and the other two.As a result, this move first attracted a group of people to besiege and abuse him.Accusing Marshall of maliciously attacking the Secretary of State.At the same time, Congress sure enough sparked controversy after debate.The content of the debate is exactly how independent and powerful the judiciary should be.
I think this is the most difficult and critical moment for a country.After setting a big principle, there is still a lot of work to do.If you lose your grasp of the measure and degree of a principle, you may lose the principle itself at the same time.
It is said that this case occurred in the executive branch of the government and has nothing to do with Congress.However, the jurisdiction and independence of the judiciary has always been a concern of Congress.This case once again aroused discussions in Congress on old issues, and the discussions in Congress were very intense.Many congressmen believed that the Supreme Court presided over by Marshall had gone too far, and advocated overturning the "1801 Judiciary Act" concerning judicial reform, "sending the justices back to their circuit duties, so that they have no opportunity to mislead."
But there are also objections. A disabled veteran in the War of Independence, then New York State Governor Morris, strenuously supported his wooden leg, and warned everyone excitedly that the judiciary must be given enough independence to make the judicial branch independent. Its ability to constrain the legislative and executive branches.In particular, he pointed out the importance of monitoring the legislative branch, "to prevent some unconstitutional laws from damaging the Constitution." At the end, he almost shouted to the congressmen present, "If you tear up this constitution, you will never have a chance. Get another one!"
In the United States, it is interesting to have a traditional practice.That is, in any congressional debate of this kind, not only is the attitude of each congressman public at the time, but his speech will be recorded for future reference at any time.Anyone can find out.In this way, no point of view can be finalized at that time.Americans leave everything to time and let history judge everything again.
Any historical event, with the vicissitudes of time, will gradually break out of the shell of historical limitations, revealing its true appearance and true meaning.In different eras, different historians will write books over and over again, quoting the speeches of these figures, and giving it a new understanding and positioning.At this time, they will go to the Library of Congress, free of charge, without any letter of introduction, to find out the original speeches and conclusions of those historical figures.What is right and what is wrong will become more and more clearly presented to future generations.
In the United States, no historical event or person can escape such a historical test.The key here is not just the accuracy and preservation of historical records in government forums, but that these records are public.No historical figure, because he is the president, or because he is a hero recognized by everyone, can hide or modify a certain part or some speeches that are not conducive to his image in the historical archives, or even seal up a certain Part of it, it is impossible to affix the label "not to be consulted".
Similarly, in addition to the voting results, the judgment of the Supreme Court of the United States is written by all the justices, whether they hold affirmative opinions on the judgment or negative opinions on the judgment, write a paragraph of their views and state the reasons for their voting .Then, file it for future reference.Now, sitting at home, we can check the verdicts of the Supreme Court justices in all important cases in the history of the United States through the computer network.Therefore, when the dust of history is wiped away by the years, it will suddenly become clear at a glance whether they are historical heroes or objective sinners through the ages.
For example, when we visited the Supreme Court exhibit room, there was a video about the history of the Supreme Court.The film emphatically mentions that in 1857, three years before the Civil War, in a case, the U.S. Supreme Court, then presided over by Chief Justice Taney, made a notorious decision in favor of slavery.Declare that "negroes are not citizens" and that even when blacks already live in free states that do not hold slaves, they cannot enjoy any constitutional rights.This judgment became one of the important causes of the American Civil War, and it has also become an important part of people's review of American judicial history today.
In the United States, one or a group of historical figures can be powerful and powerful for a while, but they can't help but feel that the old man of history is sitting patiently aside, watching and waiting for them silently.Waiting for the glitz and exaggeration to fade away, waiting for the truth to be exposed gradually, shining brightly in the sun.
Such a traditional approach to history also shapes history itself to a certain extent.Because whether a public figure has a sense of history has an impact on his behavior.When he feels the gaze of history, his speech and behavior will be more prudent and responsible.Because his words and deeds are not written down on paper, but engraved on a monument that never wears out in broad daylight.
However, at the same time, there is another very interesting phenomenon in the United States, that is, they admit that there is such a thing as "historical limitations" in the world.Therefore, it is also possible to look at historical figures with a historical perspective, to treat historical events with a calm mood, and not to label the ancients as modern.We will continue to encounter the word "historical limitations" hereafter.
When we go back to the U.S. Congress in 1803, the first thing we see is probably its historical limitations.In the end, Congress overturned the Judiciary Act of 1801, where the Federalists prevailed.The justices of the Supreme Court must embark on the road of circuit trials again.The legislature even canceled several sessions of the court in 1802, and stipulated that the next session of the Supreme Court would be in mid-February, 1803.
Justice Marshall did not seem to fight, he waited silently until February 1803.At this time, he announced the opening of this so-called "Mulberry v. Madison" case.
At the beginning of the case, the plaintiff spent a lot of time and effort to prove that President Adams had indeed signed such a letter of appointment as a judge.The person who can give the most accurate testimony on this should be Mr. Chief Justice Marshall.But of course the Chief Justice himself cannot jump off the bench and run to the witness stand and be a witness at the same time.So, it took a lot of trouble.In the end, it was Judge Marshall's brother who gave the decisive testimony.Marshall was Secretary of State at the time, and his younger brother happened to be in the Secretary of State's office at the time, watching with his own eyes the letter of appointment signed by the President was sealed, but not delivered.
After the facts of the case were determined, the judge allowed the plaintiff's lawyers to close the court.It turned out, the lawyer said, that his client had already been appointed as a judge.Therefore, he asked the Supreme Court to issue an injunction in accordance with the "Judicial Act of 1789", forcing the current Secretary of State to complete the "administrative actions" he should complete and send out the letter of appointment of the judge.
The judge wants the defendant to come out and make a plea.However, none of the executive branch of the government responded as Madison's spokesman.Perhaps, the executive branch is waiting for Marshall's "injunction"?
As I have said before, this is the story of a lawsuit that took place in a new country two hundred years ago.Americans at the time also felt that such a thing was very new. The principle of "balance and check" is only an ideal in the constitution that has just been implemented, a rational design of the founding fathers.It is far from a basic common sense that is deeply rooted and taken for granted in the United States today.Therefore, the average American at that time did not have the tension of facing a "constitutional crisis", nor did they have the farsighted sense of urgency of the founding fathers.It can even be said that most people are just curious about this "democratic lawsuit" where ordinary people sue the Secretary of State.They would like to see Justice Marshall issue such an injunction, and at the same time, they would like to see Secretary of State Madison ignore it.Originally, only when they froze at the crossroads would there be a good show.
On February 24, 1803, Chief Justice Marshall of the U.S. Supreme Court read a historic judgment written by himself on behalf of the U.S. Supreme Court in the basement borrowed as a court in Congress.Today, we can see a full-length statue of Marshall in the exhibition hall of the current U.S. Supreme Court building.In the entire Supreme Court, this is the only full-length statue, highlighting that he is recognized as the most important chief justice in American history.在他的黑色塑像后面，还有一块白色大理石的墙面，上面用金字镌刻着马歇尔大法官在各个不同时期，在不同的案子里写下的最重要判词，一共只选了短短的五条。其中第一条，就是摘自在这一天，1803年2月24日，他在“玛勃利告麦迪逊”案子中，宣读的判词。
马歇尔大法官把这个案子划分为三个不同的问题。第一个问题是，被告是否有权得到这张任命书？他的给出判定是肯定的。因为他的任命是在新的总统上任之前，所以老总统签过字的任命就是合法任命。
于是，引出了第二个问题，既然原告的权利受到了损害，这个国家是否应该予以补救？对此，马歇尔大法官说，“由法律保护每个个人的权利，就是公民自由的根本所在。不论他受到的是什么样的伤害，政府的首要职责之一，就是提供这样的保护。”即使官位高至国务卿，也不能侵犯他人权利。如果他试图这样做，他就必须准备站到法庭的被告席上。马歇尔大法官宣布，因此，法庭有权接受此案，他同意强制令是妥当的。
但是，这里还有第三个问题，最高法院就应该发出这个强制令吗？马歇尔大法官指出，宪法规定，只有在涉及外国使节和州为当事方的案子，最高法院才有最初审理权，其余的案子最高法院只有受理上诉权。所以，原告虽然在理，可是他是走错法庭了。他应该先上低级法院去告。
那么，不是有那个国会通过的“1789年司法法案第十三条“吗？不是根据这条最高法院就有了直接发强制令的权力，原告不是就奔着这条来的吗？马歇尔大法官解释说，这个“第十三条”，给予最高法院超越了宪法规定权限的额外权力，因此，他不能同意。
马歇尔进一步阐明了自己的观点。就是，美国政府各个分支的权力都是有限的。这个限度以宪法为准。任何违背宪法原则的法令都必须取消。据此，他宣布，“1789年司法法案第十三条”因违宪而取消。接着，他念了那句历史性的判词，就是今天的最高法院用金字刻在大理石上的那句话：
“必须强调，认定什么是合法，这是司法分支的职责范围。”也就是说，马歇尔大法官通过这个案子的判词，清楚地表达了两个最基本的概念，也是向美国政府的另外两个分支，分别传达了两个明确的概念。
首先是，他向政府的行政分支宣告，司法机构有权监督和判定他们的行为是不是合法，如果司法机构认定他们是在“执法犯法”，有权按照法律予以制裁。
其次，他向政府的立法分支宣告，不仅宪法高于其它所有的法律法令，而且，“认定法律本身是否合法”这样一个“法律鉴定权”与立法机构无关。立法机构不得随意立法。
从此，美国“收银机”增加了至关重要的一个制动开关。最高法院有了“司法复审权”。这使得美国的司法机构第一次明确独立于政府的另外两个分支，也因此历史性地确立了最高法院的地位。从此大家清楚地意识到，给鸡毛小案断是非，并不是美国最高法院的职责，最高法院不是一个放大了的地方法院。最高法院的职责是解释法律和判定法律，是从司法的角度对政府的另外两个分支进行制约。这就是“司法复审”的意义所在。
马歇尔大法官完全理性的思维和判定，终于不仅被原告玛勃利所接受，更重要的是，这一切也被政府的另外两个分支所接受了。也许，马歇尔的判词首先是从取消最高法院的违宪权力开始，也就是说，他是先从自己身上开刀，令人信服。也许，如现在有些学者的猜测，是由于这个判决没有当场给国务卿开出强制令，原告玛勃利也因为法官任命书的任期已经过去多半，决定放弃起诉，使得行政分支没有给逼急，而比较容易接受这样的结果。
也许这样的推论都有道理。但是，我也相信，这和当时行政分支的主管以及国会大多数议员，在理性之下的权力退让，是不可分割的。这种退让建立在这样一种共识之上，就是大家必须合力建立一个“分权的，制约的，平衡的政府”。有了这种共识，才可能在权力问题上产生妥协和退让。而这种妥协和退让并不是从这个时候才有，当初的制宪会议，就是依靠这样的理性精神才得以成功的。
这种理性的精神又是建立在这样一个基础上，就是，这些分据于政府权力不同分支的当权者，他们确有观点的不同，这种不同观点所产生的争执和冲突，有时甚至表现得十分感性和冲动，激烈和过火。然而，这里没有充斥私欲私利的权力斗争。
不论是联邦派还是反联邦派，不论他们主张的是加强联邦政府的权力，还是加强各州的自治权，他们不是为了增加个人手中的权力。这对于一个建国初期的国家是非常重要的。因为我们已经看到，即使在宪法建立之后，整个机制还需要在实践中修补和完善，还需要一个正反馈的几度循环。如果在这个关键的时候，权力的欲望已经淹没了理想的追求和理性的精神，那么，权力斗争的恶性循环会很快摧毁一个尚不完善的制度，剩下来的只能是一场在虚假理想旗帜之下的争权混战。一切的一切，都会随之扭曲，最终成为这场混战的陪葬品。
从上封信讲的“水门故事”，你已经看到了。美国的建国者们对于“权力是私欲和犯罪的酵母”这样的顾虑，不是没有道理的。但是，与两百年前相比，我觉得有一个十分有意思的变化。那就是，在美国，也许是由于权力本身的巨大膨胀，政府手中所掌握的各项权力，不论是财权，军权，人才资源，等等，都和建国初期的美国政府无法相比。总统本身也随之给人越来越“靠不住”的感觉。而这个制度和美国民众，与两百年前相比，却变得成熟起来。两百年的宪法和历史教育，使得美国民众已经不再是一群看热闹的围观者。“平衡和制约”的运作，也比两百年前有章法得多了。
下面，我再把“水门事件”讲下去，回答你信中的第二个问题，为什么说看上去已经结束了的“水门事件”，却只是一个大故事的“开篇”。
确实，事情已经发生了。如果，此刻白宫和盘托出，承认共和党及白宫的一些高层人士涉入此案，这的确会是一个够大的政治丑闻，寻求连任的尼克松总统的声望也会因此受损，甚至有可能影响他的连任。但是，鉴于我已经提到过的，尼克松本人对“管子工”类似“水门行动”这样的具体策划并不事先知情，因此，总统本人有道义上的责任，却没有人能够指责他负有法律责任。虽然事情很糟，但是对于尼克松，这还不是一个完全无法收拾的局面。
可是，在这个关键时刻，如果朝错误的方向再迈出一步，接下去就只能一步步走下去，很难再刹车了。这一切都起于一个也许只是本能的念头：掩盖真相。
我真的相信这里很重要原因之一，就是出于保护自己的本能。
当时最紧张的莫过于批准“水门行动”的直接责任者了，也就是李迪这次行动的直接上司，共和党总统再任委员会的正副主任，米切尔和麦格鲁德。因为他们是浮在面上的。轻轻一扯，就会把他们给扯出来。
米切尔是前任司法部长，一方面，他比谁都清楚事情的严重性，另一方面，他知道联邦行政系统的结构。不论是案件的调查还是起诉，都与司法部有很大的关系。他们立即想到给现任司法部长打招呼。考虑再三，他们派李迪火速赶去面谈。
在尼克松周围，确实很少有人知道这一些非法活动。因为除了那几个少数亲信之外，绝大多数行政官员都不会接受或赞同这样的做法，所以也就不会让他们知道。比如在中国大家都很熟悉的基辛格，他和尼克松的关系是非常近的。在尼克松考虑同中国开始秘密接触，商讨恢复外交关系这样的重大举措，基辛格是尼克松所能够相信和依靠的少数几个官员之一。大家都可以看到，在尼克松执政期间基辛格的重要性。但是，那些违法活动基辛格在事前几乎一无所知。因此，尼克松在他的总统生涯里，似乎同时在经历双重操作，指挥着两套不同的班子。“水门事件”发生时，尼克松的当任司法部长克雷迪斯特就是这个“事件”的圈外人。
克雷迪斯特本来是司法部的副部长，也就是前司法部长米切尔的副手。你在前面也看到了，米切尔在尼克松那里就完全是“小圈子”里的人，而克雷迪斯特则不是。他们两人虽然曾经是正副手，可是，实际上所处的位置却完全不同。米切尔最后辞去司法部长的职务，去出任共和党总统再任委员会主席，一方面表现了尼克松对他超乎一般的信任，他自己当然也是下了一个更大的政治前程的赌注。
在离任时，米切尔推荐了他的副手克雷迪斯特顶他的司法部长的位子，可见他们之间的关系还是不错的。因此，在“水门事件”发生的最初时刻，米切尔觉得向他的前副手打招呼，还是有可能得到某些“照应”的。尽管作为前司法部长的他，知道这种“照应”在美国的制度下其实是极其困难也极其有限。但是，这不是已经到了病急乱投医的地步了吗？至少，他觉得，他的前副手即使帮不上忙，也不至于一听到真相就公事公办地向有关方面公开。所以，李迪就这么找上门去了。
“水门事件”一开始，调查人员就感觉到这是一个政治案件，尽管他们还没有摸清真正的来龙去脉。因此，这个案子马上就上报到了司法部长那里。我想，对白宫的违法操作一直蒙在鼓里的司法部长克雷迪斯特，收到这样的报告也一定没往心里去。在他的眼里，这种一看就很荒唐的作案手段，即使是政治案件，也只可能与某些低档的“政治小蟊贼”有关，不可能和什么大人物挂上钩，更不可能发展下去和自己发生什么关系。因此，收到报告当天早晨，他仍然心情愉快地驱车前往高尔夫球场，开始他十分正常的一天。
可是，司法部长克雷迪斯特的好心情很快就被李迪的来到给毁了。也许，李迪虽然由于一个历史的错误被挂上了“顾问”之类的头衔，但是，在他骨子里毕竟还是一个不知天高地厚的市井“小混混”。也许，是尼克松周围那帮小圈子里无法无天的“顾问”们，使李迪失去了正常的判断能力。总之，他根本不想想明白这对于一个司法部长到底意味着什么，就在慌慌张张地谈了“水门事件”真相以及和米切尔的关系之后，自以为聪明地加了一点“压力”，他要司法部长设法放人，还说，事情虽然难办，但要是不办，你以后也不好办。
这个规规矩矩辛辛苦苦凭本事才做到了这么一个官的司法部长，以前哪里会看得起李迪这样的“顾问”，今天听到如此活见鬼的一个“水门故事”，还要他接受李迪几乎是带有威胁意味的“违法要求”，他顿时火气不打一处来。他愤怒地回答李迪的“警告”说，我？我不好办？我要是去干这样的蠢事总统才是不好办！这是我这辈子听到过的最混蛋的事情了。他甚至气得连脏话都一起跟了出来。他断然拒绝了李迪的要求，并且对他说，告诉派你来的人，不论是谁，告诉他们，我不能这样做，也不会这样做。为了总统，我会象处理其他案子一样处理这件案子。
然后，也许是他们以前毕竟是认识的熟人，也许他想到，可能真的如李迪所说是奉他原来的老上司米切尔的派遣来的，因此，最后他还是出于礼貌和李迪握手告别。就是这样一个与犯罪分子握手道别的场面，以及此后的知情不报，使这位司法部长最终被判有罪服刑一个月，在牢里不知他是否想起，他当时的副手曾经对他说过，“头儿，我们要是能够摆脱这个麻烦而不进大牢，那我们可真是撞大运了！”
这时，所有涉案的人，都开始拼命销毁证据了。同时，两个从“水门”对面的旅馆里逃脱的现场指挥，李迪和亨特，已经知道法律将找上门来是迟早会发生的事情，因此，都为自己找好了律师。
从1993年公布的录音带中可以了解到，在“水门事件”发生后的第一个星期日，尼克松就已经从部下那里知道了事情的全部真相。那么，他为什么不是下决心让那些人交出真相，听候法律的处理，而是决心掩盖，从而把自己也拖入一个无法摆脱的漩涡呢。是的，尼克松并不是这个事件的策划和直接责任者，可是，不仅出事的这些人都是他的亲信，而且很容易使人们对于他的知情程度质疑。
如果按正常程序调查下去，那么，从已经在“水门”现场被逮住的古巴人和麦克考尔德开始，马上就可以扯出在“水门”对面旅馆的现场指挥亨特和李迪，从他们两人又可以马上扯出批准“水门行动”的共和党总统再任委员会的正副主席，这四个人又都是从尼克松这个行政分支过去的。一个原司法部长加上三个原白宫顾问。这将是多么难堪的局面。
更何况，这三名出自白宫的“顾问”，都是“管子工”的成员。如果再用力拖一下，“管子工”就可能会被拖出来。那么，从白宫为出发点的那些违法“小动作”也就很难再瞒下去，那时候，尼克松如果仅仅说自己对手下人是“管教不严”，大概是很难说得过去了。
但是，“掩盖”这个动作将有可能带来更大的危险，“妨碍司法”对一个美国总统意味着什么，尼克松是不会不知道的。他之所以下决心去做，当然和他一向不择手段的行事风格有关，同时，肯定和他毕竟迷信手中的总统权力也是有关系的。小小一个“水门案件”，是尼克松自己管辖的司法部和自己任命的司法部长在那里负责调查起诉，还硬是不能大事化小，小事化了？如果自己动用手中的一切权力去遮，还真怕它就遮不住？这么一想，尼克松就跨出了第一步。一念之差，尼克松就亲手把自己给毁了。
他先下令把共和党总统再任委员会副主任麦格鲁德调回来，主持“掩盖”。为了“掩盖”，他们一开始商量出了种种设想。
例如，让那些已经被抓住的古巴人给担下来。又如，让在旅馆指挥的李迪和亨特出国避风。在一次讨论“掩盖”的会议上尼克松本人甚至提出，干脆一盆子全扣在民主党头上，因为那些被抓住的古巴难民都曾经参与过失败的“猪湾事件”，而六十年代愚蠢的侵犯古巴的“猪湾事件”正是民主党当政期的“杰作”，等等。但是，这些设想都由于风险太大或是操作困难，一一都被否定了。
最终，参加“掩盖”的人都达成一个共识，就是“掩盖”的第一步，至少应该试图和李迪断线，一方面，因为由于李迪在“水门”对面旅馆留下的大量证据，他基本上已经是“死老虎”了。另一方面，李迪是通向上面几条线的一个“麻烦源”。于是，又一个“白宫顾问”出场了。他的名字叫迪恩。他原先对于前面发生的事情并不事先知情，但是，在整个“掩盖”工作中，他却起了越来越大的作用，成了一名主角。
迪恩先和李迪谈了一次。这是他第一次真正知道全部真相，包括“管子工”的种种胡作非为。说实在的，乍一听来，他自己也给吓了一跳。他还是稳稳神，开始了谈“掩盖”的具体条件。李迪提出对已入狱者的“照应”，包括筹一笔“堵嘴钱”。
“掩盖”也是一项“行动”，没有“活动经费”是根本办不了的。比如，保释，律师，家属，等等，这一切都需要钱。前面已经讲过了，凡是违法的钱，筹款本身就很困难，而且一般来说，筹款本身也是犯罪行为。迪恩本人此后很快卷入“堵嘴钱”的筹集，在泥沼里越陷越深。
在迪恩找李迪谈话中，最戏剧性的一刻莫过于李迪突然提出“若是有必要毙了我，只要告诉我该站在哪个街角上”，着实把迪恩又给吓了一跳，说是我们可还没到这地步呢。李迪当时知道自己是通向上面的一个“祸根子”，但是，他之所以会这样提出，一是他知道自己是混在一个违法圈子里，他也不知道这些人在自己面临暴露的时候，到底会走得多远。其次，他也知道，他的这些上司尽管是白宫高官，却不可能动用正规受过训练的特工人员。多年之后，李迪在回忆中写到，他当时觉得，即使他的上司要干掉他，也是“合理的”。只是他觉得他们不可能动用得了专业枪手，他可不想让哪个“业余的”打歪了而伤着他的家里人。
这些人正在忙着“掩盖”乱作一团，可是在白宫里，包括尼克松总统在内，却谁也不敢真的向负责调查的联邦调查局去“打招呼”。因为在这个制度下，联邦调查局是独立的联邦机构，在操作时并不受司法部多大的控制。相反，由于真相还没有暴露，尼克松在记者招待会上，一方面一口否定白宫涉案“水门事件”，一方面还必须要求联邦调查局和华盛顿的警察按法律程序严肃调查。尼克松眼看着应该说是自己下面调查机构，正按图索骥步步向自己逼来，却碍于这个制度和全美国百姓的关注，不仅不能阻止，还只能作出欢迎调查的高姿态。
即使是行政体系下的司法部，在法律的制约下，也不见得就对白宫言听计从。正在干着“掩盖”活儿的白宫顾问迪恩，曾经向司法部长克雷迪斯特提出要求，把联邦调查局有关此案的文件调来看一下，却遭到拒绝。因此，调查仍然在一步步深入。在“水门事件”中那个漏网逃跑的“望风者”，又在律师的劝说之下，去联邦调查局投了诚。同时，各种报纸杂志的记者们，又在以他们的方式，各显神通，从外围包抄过来。可是此刻尼克松仍然心存侥幸，“管子工”的一个负责人海尔德曼曾对尼克松说，这事妙就妙在干得如此操蛋的糟糕，没人会相信我们会干出这种事来。尼克松深表同意。
问题是，哪怕是一个再“操蛋”的球，也总是有人踢出来的。如果不能令人信服地解决这个“踢球人”的问题，这个“球”就还在联邦调查局和记者们的穷追猛打之下。因此，尼克松亲自下令，要他的“白宫顾问”让中央情报局“认下账来”，并且由他们出面让联邦调查局中止调查。
他们找了两个他们认为比较能够控制的中央情报局副局长。一开始，他们拒不肯“认”这份本来就不是他们的“账”，后来迫于来自总统的压力，松口应承了下来，也做了一部分。但是，回去一想，就知道苗头不对，他们根本承受不了今后的法律责任。于是，他们马上刹车了。
他们开始向白宫顾问迪恩解释，他们尽管是白宫提名的副局长，但也不是想干什么就干什么的。在中央情报局里，都有特定的指挥链，不在他们职权范围的事，他们也一样无能为力。更聪明的是，他们看出了这件事的危险前景，为了在将来出事的时候有个依据，他们开始把每一次白宫顾问迪恩与他们交谈的情况都写下备忘录。
一边这里没人肯认领这个“球”，另一边“掩盖行动”的筹款问题又迫在眉睫。除了白宫顾问迪恩之外，这一违法活动把尼克松的私人律师也给牵进去了，后来他由于从事为“掩盖”行动的违法筹款，被判刑六个月。
由于1972年4月7日“联邦竞选法”的生效，堵住了尼克松动用竞选经费的最后可能。所以，总统的私人律师和顾问迪恩只能寻找一些秘密捐款者，取得的现金又象做贼一样送出去，结果，还是有两个为“水门”嫌疑犯工作的律师，拒收这种一看就来路不正的“律师费”。
在联邦调查局的搜索之下，不到一个月，李迪知道必然要发生的一刻终于来到了。两名联邦调查局探员来到了共和党总统再任委员会，要求约谈李迪。他在里面拖了半天，然后出来，表示拒绝回答一切问题。从我前面已经介绍的情况中，你一定已经注意到了，在整个事件的涉案人员中，上上下下，包括尼克松在内，实际上都或多或少在灵活地服从自己的利益行事。倒是这个李迪，确实表现出狂热的，甚至有时是可怕的理想主义。他打一出事就表白自己将是“一堵石墙”，不管别人信不信，他把这个自定原则一直奉行到了审判结束。
在美国，政党机构一般都有这样的政策，就是他们本身必须在法律允许的范围内活动，他们的雇员也必须与司法人员合作。李迪公然当众违抗这一条基本政策，共和党总统再任委员会也就不可能再雇佣他了。
李迪出事三天以后，这个委员会的主席，前司法部长米切尔也找了一个借口辞职了。李迪的暴露虽然在意料之中，但是作为李迪秘密行动的直接上司，他深受刺激，他必须摆脱委员会的日常事务，全力投入“掩盖”行动以挽救自己。再说，作为李迪公开职务的上司，李迪一被扯出来，他立即会自然成为两股强劲的调查力量的目标。
这两股调查力量一是专业的联邦调查局，另一股则是“业余的”，就是新闻媒体和下面无孔不入不计其数的记者们，这两股力量看上去互不相干，但实际上却是“协同作战”。如果米切尔继续坚持，留在总统再任委员会主席这个惹眼的位子上，绝对就是跟自己过不去了。
更何况，此时，这个国家监督机制的一个重要按钮，已按照预先设计的程序，自动打开。在“水门事件”的案发地，美国首都华盛顿，由二十三名随机抽选的华盛顿市民组成的大陪审团，已经开始进行对“水门事件”的秘密听证。
你也许要问了，为什么是秘密听证呢？大陪审团是怎么回事呢？
去年，我曾经向你介绍过美国的陪审团，但是，大陪审团和一般的陪审团是不同的。他们的任务是根据美国宪法修正案第五条，在检察官起诉之前，代表人民对案情进行秘密听证。根据听证情况，再决定是否需要继续追究调查，是否可以对该案的涉嫌者起诉。如果通不过这一关，政府行政分支的检察官就无法对涉嫌者提起公诉，也就根本谈不上审判了。因为原则上，在刑事案件中，检察官是代表人民在向被告提起公诉。但是，由于政府机构和政府官员通常会产生异化，成为人民之外的一种独立集团。因此，大陪审团和陪审团都是对这种异化的一种监督限制。
之所以要秘密听证，是因为在这个时候，涉嫌者还没有被批准起诉，他还不是法庭上的一名被告。在这个阶段许多证据还不适于公开，以保护受嫌者。因为他完全有可能最后被大陪审团判定不被起诉。法律在这个阶段还必须保护他的隐私权。
但是，在大陪审团听证期间，涉嫌者必须积极配合大陪审团的听证，如实回答一切问题。这个阶段还不是刑事审判，因此，涉嫌者也不能借口引用宪法修正案的第五条，即公民“不得被强迫在任何刑事案件中自证其罪”这一条，而拒绝回答问题。一般在这个阶段也不能由律师陪同出席听证会。
在这一阶段，一切证据都只引向“起诉”或“不起诉”这样两个结果。在大陪审团听证期间发生的一切都是保密的，也并不影响今后有可能发生的审判。一经得出“起诉”或“不起诉”的结论，大陪审团就完成了它的历史使命，立即解散各自回家了。如果该案被判定必须起诉的话，那么，为此后的审判，将根据同样的随机抽选方式，选出新的陪审团参加起诉后的审理过程。
我们再回到“水门事件”。从共和党总统再任委员会辞职的，还有一个出纳员。前面已经讲过，尽管说在1972年的“联邦竞选法”实施之前，未提名为总统候选人的竞选者，他所收到的政治捐款按规定不受监督。但并不意味着就可以违法使用政治捐款，一旦有违法嫌疑，还是会被查账。因此，他们赶在“联邦竞选法”生效前一天交给李迪用于“水门事件”的活动经费，随着“水门行动”的败露，也必然会水落石出。因此，参与了这个违法动用政治捐款过程的出纳员，也辞职下来，开始为自己寻找律师，并且等候法律找上门来。
这个时候，事情还只到李迪为止。但是，可以看得出来，李迪身后的人们已经非常紧张了。司法部长和刑事局都在按程序推动联邦调查局继续查下去。在这种情况下，尼克松和手下那几个亲信商量的时候，甚至说，我就是吃不准是否能干脆把司法部长和联邦调查局副局长找来，让他们停止调查。
尼克松之所以会这么想，就因为不管怎么说，他可是司法部长的上司。难道一个上级就无权给下级下一个命令吗？再说，这部长好歹还是他提名任命的呢。话再说回来，司法部长毕竟是总统的行政系统的一个雇员，他的政治前程在一定的程度上确实是总统给的。如果尼克松连任