The Revolution of 1800: The Triumph of Jeffersonian Democracy?

● From Opposition to Establishment– Jefferson First Term– Undoing Federalist Agenda?

● Alien and Sedition Acts Expire● Pardons for persons convicted under the Acts● Repeal of many taxes, including the Whiskey tax● Reduction in the size of the military● Marbury v. Madison

– Louisiana Purchase

The Marshall Court

● Judicial Review● Economic Development● Fedealism

– Nationalism

The power of the Supreme Court

● Anti-Federalists– Courts too elitist or far

removed from local feelings

– Courts will construe constitution in favor of federal government

● Federalists– Courts have only moral

authority- no power of the purse or sword

– Courts are “the least dangerous branch”

The Problem of Judicial Review

● Kamper v. Hawkins (1793)– St. George Tucker– Spenser Roane

● Can Virginia’s highest court overturn an act of its legislature?

Calder v. Bull 1798

● Connecticut’s legislature passes a law setting aside a probate decision (a question of inheritance).

● The decision was appealed and eventually reached the Supreme Court who had to rule on the meaning of the Constitution’s prohibition on ex post facto laws (laws passed after the fact). The Constitution only mentions such laws in the context of criminal cases.

● So would a non-criminal ex post facto law also be prohibited?

The Problem of Judicial Review:Calder v. Bull

(1798)

● I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the constitution, or fundamental law of the state. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence . . . .There are acts which the federal, or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a righful exercise of legislative authority. Judge Chase

Calder v. Bull con’t

● If any act of congress, or of the legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard,

– Judge Iredell

The Judiciary: A Federalist Stronghold in a Jeffersonian world

● The Judiciary Act of 1801- a lame duck act by the outgoing Federalist Congress – reduces the number of Supreme Court Justices and

lessening Jefferson’s chance of making an appointment.

– Creates a new system of circuit courts, allowing out-going President Adams to appoint sixteen new Federalist judges, assorted marshals, federal attorneys, clerks, and justices of the peace

“The Anglican monarchial aristocratical party”

● “They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased.”– Thomas Jefferson 1801

The Jeffersonian Assault on the Courts

● 1802 Repeal of the Judiciary Act of 1801 which restores the original size of the federal court system

● The impeachment of John Pickering and Samuel Chase– Pickering, an alcoholic, was removed from office– Chase an ideological opponent of Jefferson was

acquitted

William Marbury James Madison John Marshall

Marbury gains moral victory but handed a political defeat. His effort to force Jefferson and Madison to provide him his commission fails

Madison and Jefferson gain a political victory and do not have to give Marbury his commission.

Marshall avoids a political conflict with President Jefferson while increasing the power of the court and affirming its right to decide the constitutionality of Congressional legislation (judicial review) Section 13 Judiciary Act of 1789

Consequences of Marbury V. Madison

Is Marbury entitled to his commission?

Does Section 13 of the Judiciary Act authorize the

Court to issue a writ of

mandamus?

Is Section 13 of the Judiciary Act

constitutional?

 If Section 13 of the Judiciary Act is unconstitutional, does the Supreme

Court have the power to declare it

void?

Marbury v. Madison: The Issues

Marshall’s Opinion in Marbury

● The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

Marshall’s Analysis in Marbury

● The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

● Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

Judicial Review an Alternative View

● Do not judges do a positive act in violation of the constitution when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established by the constitution.

● I am of the opinion that it rests with the people, in whom full and absolute soverign power reside, to correct abuse in the legislation by instructing their representatives to repeal the obnoxious act.

– Eakin v. Raub (Pennsylvania 1825)

Jefferson in Power: Constitutional Pragmatist or Hypocrite

● Strict Construction and the LA Purchase● The Burr Trial (1807)

The Louisiana Purchase (1803): The Paradox of Jeffersonianism

Strict Construction v. the Agrarian Dream

● Jefferson knows that the Constitution does not authorize his decision to purchase territory.

● Should he sacrifice his constitutional ideals to make it possible to preserve his yeoman ideal?

Jeffersonian Policy

● Expansion vs. Development● Liberty vs. Power

Trial of Aaron Burr (1807)

● Jefferson supports a broad construction of the Constitution’s treason clause

● Federalist John Marshall favors a strict construction of the treason clause

● Jefferson refuses a subpoena, claiming executive privilege