Richard E. Ellis

When the American colonists broke away from Britain in the 1770s, one of the first challenges they faced was constructing new governments for their states and their nation. Though the details differed, three common factors defined the parameters of what they produced: their British constitutional heritage, the recent experience fighting against British "tyranny," and the need to develop these governments while simultaneously fighting a war for independence. The result was governments in which power was concentrated in the legislature, with the other branches of government placed under considerable constraints. Yet this soon proved only the start of a decades-long effort to develop a workable governing balance, one that extended well into the 19th century.

Richard E. Ellis's book addresses one of the most overlooked aspects of that effort. Using the Jeffersonian Republicans' confrontation with the Federalist-dominated federal judiciary after 1801 as his starting point, he investigates how Americans viewed the role of the judiciary within their new republic. Like the executive, the judiciary suffered from the association with royal control, as most judges during the colonial era were the appointees of the royal or proprietary governors and more responsive to royal interests than those of the colonials. With independence many radicals sought to establish systems in which conflicts were resolved through arbitration by lay citizenry rather than a judicial system dominated by legal technicians. While these views were in the minority, the prevalence of such sentiments often led to the creation of judiciaries more responsive to popular or legislative control.

The ratification of the Constitution paved the way for the creation of a new judiciary, one in which judges held lifetime appointments. For the first twelve years, the appointees to the federal bench were all Federalists, reflecting the party politics that coalesced during the 1790s. With the election of Thomas Jefferson as president in 1800, as well as a Congress controlled by his Republican Party, the lame-duck Federalists created a host of new Federalist judicial appointments with the Judicial Act of 1801 in an effort to turn the branch into a bulwark against Republican radicalism. Yet Jefferson's rhetoric soon proved far more radical than his governance, and without the unifying force of opposition to a Federalist administration, the Jeffersonian Republicans soon fractured into moderate and radical wings. Though they succeeded in repealing the Judiciary Act of 1801, efforts by the radicals to purge the bench through impeachment came to a quick end, as moderate Republicans sided with Federalists in cementing the principle of an independent, non/bi-partisan judiciary that supported a uniform system of common law and aided the growth of a commercial economy.

Ellis's book is a valuable study of an often ignored yet vitally important aspect of the development of the early American government. His integration of debates at the state level with those in national politics is a particular strength, as it demonstrates how the issues were not ones of partisan politics but part of a larger effort to determine the role of judiciary in governance. It makes for a book that should be read by anybody interested in the history of the constitution, the history of the early republic, or simply anybody curious to know why we have the legal system we do today. For as Ellis demonstrates, the debates over the judiciary that took place in the 1790s and early 1800s are ones that echo down to the present day.… (más)

In 1787, Richard Spraight wrote a friend, “If the judiciary acted as a check on legislature, then who was to act as a check on the judiciary?” Ring a bell? It would seem there are so many basic conflicts inherent in our system that we have yet to resolve. Ellis focuses on the relationship of judicial power, (basically self arrogated) to American democracy and how it developed during the formative years. He see the struggle as between political moderates and extremists rather than from the traditional Federalist v Republican viewpoint.

Typically, before the revolution, the judiciary was the branch of government that affected people the most intimately and often violence broke out when the King tampered with the system. Most magistrates (except in Rhode Island and Connecticut) were political appointees and beholden to the governor so the result was a form of oligarchy. The Articles of Confederation made no provision for the judiciary its loose structure leaving virtually everything up to the states. The new Constitution hammered together in 1787 created a national court but had them riding the circuit.

Since Washington and Adams were Federalists, they naturally used the appointive powers, to assign mostly Federalists to open judicial slots and these began making decisions which infuriated the Anti-Federalists, represented by Jefferson and the Republicans. Especially when they upheld the Alien and Sedition Acts, an early preview of the Patriot Act. Despite their professed abhorrence for political parties, by 1800, there were already well-defined partisan groups.

I remain astonished by how little has changed. Following the election of 1800, the Republican party split as they now had to administer government. “With victory secured, the problem of developing positive policies soon made it clear that the party was composed of different groups holding conflicting and irreconcilable attitudes toward the way government should be administered.” The Old Republicans, agrarian and anti-federalist saw the win as a moral victory, they had overthrown the sinful monarchist Federalists and now had a chance to undo the damage caused by the likes of Washington, Adams, and Hamilton who had accumulated far too much power in the central government. Their goal was to gain control of the judiciary, pass multiple amendments to the constitution, and assure that the Federalists would never again gain control. The other wing of the party was less concerned about strong government per se, only its misuse. They wanted to “reclaim, rather than to punish,” in the words of John Hunter to James Madison.

A fine example of the quandary everyone found themselves in is the case of the impeachment of Judge Pickering. A man who had clearly gone insane, would appear on the bench drug and making judgments everyone agreed were ridiculous, no one knew how to get rid of him. Impeachment was problematic because insanity didn't meet the definition of *high crimes and misdemeanors* so the Federalists, of which he was one, argued at his impeachment trial that since he was insane he couldn't be removed while the "Republicans were forced into the difficult position of claiming that Pickering was in his right mind.This did not please the moderate Republicans, among whom there was considerable reluctance about convicting a mental incompetent.," and they knew it was but a short step for any executive then to eliminate the opposition by a simple declaration of mental incompetence. Thus was the Constitution of no help whatsoever and the divisiveness of parties simply made things worse as allegiances hardened.

The impeachment trial of Associate Justice Samuel Chase revealed the political role of impeachment and also the invalidity of adopting an uncompromising and rigid stance on issues, positions that may yet come to haunt the current Tea Party. Chase had certainly acted intemperately, delivering clearly biased charges to the jury in cases where he used the Alien and Sedition Acts to punish Republican spokesmen, most notably James Callender. Jefferson, ever the consummate politician, realized the need for moderation and compromise and philosophically he understood the importance of an independent judiciary, a judiciary dominated by Federalists thanks to John Adams. His chief antagonist was to be John Randolph, agrarian states rights true believer, who was appalled and infuriated by the Yazoo Compromise. It was Randolph who concocted the articles of impeachment against Chase by going beyond the textual justification for impeachment in the Constitution in an effort to set a precedent for removing a sitting justice that was clearly politically motivated. He badly mishandled the case and was up against Chase, a not inconsequential jurist who hired some brilliant lawyers and they devastated Randolph in the trial presided over by Aaron Burr (who had his own reasons for not wanting to see Chase impeached - but that's another story.) Jefferson, too, had his reasons for wanting to humiliate Randolph, formerly a great supporter as he realized the importance of the mercantile economy developing in New England and he wanted to get elected to a second term.

Ultimately, "the most important explanation for Chase's exoneration, however is to be found in the struggle between moderate and radical Republicans for domination of the party. The differences were fundamental, and they left little room for compromise." Randolph's parting shot was to move for a Constitutional amendment that would permit the removal of a sitting federal judge by the president with the majority concurrence of both Houses of Congress. (Precedents existed in several state constitutions.) By this time Randolph had been thoroughly discredited and his measure went down as the House postponed it to the oblivion of committee.

I suspect the Republican Party today may be in for similar convulsions should they achieve the reins of power. (Written before the election.)… (más)