Justice Sutherland’s major error in CurtissWright was to completely misrepresent and misinterpret a speech that John Marshall delivered in 1800 as a member of the House of Representatives. With Thomas Jefferson in that election year attempting to defeat President John Adams, Jeffersonians in the House urged that Adams be either impeached or censured for turning over to England an individual charged with murder. Jeffersonians thought the individual was an American under the name of Jonathan Robbins, but in fact he was Thomas Nash, a native Irishman.
In his speech, Marshall rejected the move for impeachment or censure by explaining that President Adams was not acting in some illegal or unconstitutional way. Instead, he was carrying out a provision of the Jay Treaty with England that authorized each country to deliver up to each other any person charged with murder or forgery. Nash, being British, would be turned over to England for trial. President Adams was not acting unilaterally with regard to external affairs or claiming some type of independent executive power. He was fulfilling his Article II, Section 3, authority to take care that the laws, including treaties, be faithfully executed. In the course of delivering his speech, Marshall included this sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The phrase “sole organ” is susceptible to different interpretations. “Sole” means exclusive but what is “organ?” Is it merely the president’s duty to communicate to other nations U.S. policy established by the elected branches? Reading the entire speech makes clear that Marshall intended that meaning. He was merely defending Adams for carrying out the extradition provision of the Jay Treaty. After he completed his speech, the Jeffersonians considered his argument so well reasoned that they dropped efforts to either impeach or censure Adams