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Before the Countermajoritarian Difficulty: Regime Unity, Loyal Opposition, and Hostilities toward Judicial Authority in Early America

Published online by Cambridge University Press:  25 September 2009

Stephen M. Engel
Marquette University


Traditional accounts of presidential hostility toward judicial authority rely on the federal judiciary's structure for explanatory leverage, focusing particularly on the court's potential to reach countermajoritarian rulings. By evaluating executive-judicial relations during the early republic, that is, the years prior to the Civil War, I suggest that anti-court sentiment stemmed not only from antipathy toward unelected judges or the seemingly undemocratic possibilities of judicial review, but also from a civic republican apprehension toward opposition. I show, first, that Jefferson, Jackson, and Van Buren considered open and stable opposition to be a harbinger of civil unrest and strove to preserve unity among the federal branches, and second, that this fear and corresponding aspiration toward unity underlay these presidents' concerns about judicial authority. As such, I argue that the presumption of the judiciary's countermajoritarian difficulty could be understood as a political development rather than a structural anomaly of the Constitution. In making this claim, I highlight the power of entrepreneurial presidents to drive conceptual change. Furthermore, focusing on the politics of opposition as a key element in the development of presidential-judicial relations broadens how we think of civic republicanism as an organizing political principle, defining not only early American political culture and electoral politics, but also influencing matters of governance.

Research Article
Copyright © Cambridge University Press 2009

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13. Anti-party sentiment that characterized much of the antebellum era, sentiment much-discussed in recent historical work, can be used as an indicator of the underdeveloped sense of whether opposition could be legitimate, much less loyal, and how that opposition could be made manifest. A distinction is necessary between the legitimacy of dissent within the bounds of legislative debate and the legitimacy of opposition once statute is passed and outside of legislative debate. The Constitution accepts the former as indicated by protections afforded by the Constitution's speech and debate clause. Whether or not such freedom extended beyond the legislature is open to interpretation of the First Amendment. However, if dissent in parliamentary debate was accepted, open and permanent opposition was perceived as a stepping-stone to civil unrest. Once the people voted, their role in deliberation was at an end until the next election. On Federalist limitations on representation, see Martin, J. P., “When Repression is Democratic and Constitutional: The Federalist Theory of Representation and the Sedition Act of 1798,” University of Chicago Law Review 66 (1999): 117182Google Scholar. On anti-opposition and anti-party sentiment during the years of the early republic, see Hofststadter, R., The Idea of a Party System (Berkeley: University of California Press, 1969)Google Scholar; Sartori, G., Parties and Party Systems: A Framework for Analysis, Volume I (New York: Cambridge University Press, 1976)Google Scholar; Leonard, G., The Invention of Party Politics: Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian Illinois (Chapel Hill: University of North Carolina Press, 2002)Google Scholar; Voss-Hubbard, M., Beyond Party: Cultures of Antipartisanship in Northern Politics before the Civil War (Baltimore: Johns Hopkins University Press, 2002)Google Scholar; Smith, A. I. P., No Party Now: Politics in the Civil War North (New York: Oxford University Press, 2006)Google Scholar.

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19. Former Justice Sandra Day O'Connor recently took note of this hostility during an interview on 3 March 2009 with John Stewart on The Daily Show: “What I became aware of increasingly in those last years was all the criticism of judges across America. We heard a lot from Congress and in state legislatures, we heard a lot about activist judges, didn't we—secular godless humanists trying to tell us all what to do—I mean that was what we were hearing. And I just didn't see it that way. And, I thought perhaps a lot of Americans had stopped understanding about the three branches of government.” Accessed 4 March 2009.

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29. Stuart v. Laird, 5 U.S. 299 (1803).

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32. Ibid.


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37. Scholars generally agree that the pseudonym, Brutus, was taken on by New York Supreme Court judge Robert Yates, a delegate to the Constitutional Convention, who left the convention because he thought it exceeded its authority as granted by the Articles of Confederation.

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40. Brutus XIII, 21 February 1788. Available at The Constitution Society, Austin, TX. Accessed 22 July 2009.

41. Ibid.


42. Brutus XV, 20 March 1788. Available at The Constitution Society, Austin, TX. Accessed 22 July 2009.

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48. Marcus, 36–40; Kramer, 95–96. Hayburn Case, 2 Dallas 409 (1792); United States v. Yale Todd, 488 U.S. 361 (1794); Hylton v. United States, 3 U.S. 171 (1796); Cooper v. Telfair, 4 U.S. 14 (1800).

49. Annals of Congress, 2nd Congress, 1st Session, 556.

50. Ibid., 557.


51. Ibid.


52. Hayburn Case, 2 U.S. (2 Dallas) 409, 412.

53. E. Randolph to Washington, 5 April 1792, George Washington Papers, Library of Congress, cited in Marcus, 39.

54. Justices Jay, Cushing, and Iredell supported Wilson and Blair's reading of the law even if they heard petitioners' claims in New York and North Carolina. They wrote of their support for their brethren in a letter to Washington dated 10 April 1792. 2 U.S. (2 Dallas) 409, 410, 412–14.

55. Marcus, 40.

56. Riding high in public support following the XYZ Affair and quasi-war with France, John Adams achieved policies with little congressional resistance, receiving some he never asked for, such as the Alien and Sedition Acts of 1798. As Elkins and McKitrick note, “there is no evidence that a campaign against sedition was one of Adams's primary concerns ….” (590)

57. R. G. Harper, “Letter to his Constituents,” 10 February 1798 in Circular Letters of Congressmen to their Constituents, 1789–1829, ed. N. E. Cunningham, Jr. (Chapel Hill: University of North Carolina, 1978), 146–47.

58. Jeffersonians did not remain silent. James Callender, a popular pamphleteer, attacked the Adams administration for this act. Callender's 1799 pamphlet, The Prospect Before Us, insinuated that Adams stole the presidency in 1796 and that Hamilton's financial plans would bring the new nation under British domination. Similar to Jefferson's own flirtations with nullification, Callender suggested that the Sedition Act violated the conditions Virginia set on its entrance to the union: “That therefore no right, of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the president, or any department or officer of the United States.” (155) Callender, J. T., The Prospect Before Us (Richmond: M. Jones, S. Pheasants, and J. Lyon, 1800)Google Scholar. Callender was tried for sedition in a trial presided over by Samuel Chase, and Chase's conduct at this trial provided the basis of several articles of impeachment.

59. As Mark Graber has argued, opposition to federal law and judicial support for such law stemmed less from fears about countermajoritarianism and more from fears of federal consolidation of power against the states. See Graber, “James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25.” Unpublished manuscript on file with author. Jefferson shared his concerns on this front in numerous letters: “After twenty years' confirmation of the federated system by the voice of the nation, declared through the medium of elections, the judiciary on every occasion [is] still driving us into consolidation.” Jefferson to S. Roane, 6 September 1819 in The Writings of Jefferson, Volume 15, ed. Albert Ellery Bergh, Richard Holland Johnson, and Andrew A. Lipscomb (Washington, DC: Thomas Jefferson Memorial Association of the United States, 1900), 212.

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61. Cornell, 238–45.

62. “The Kentucky Resolutions of 1798,” 10 November 1798. Available at The Constitution Society, Austin, TX. Accessed 22 July 2009.

63. The Kentucky Resolution stipulated that state governments could nullify federal law if they considered such law unconstitutional: “this commonwealth [Kentucky] considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states … the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.”

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69. Matthew Frank locates this idea of judicial authority as neutral in Tocqueville's interpretation of the Framers' actions and intent, not in their actions themselves. See Frank, “Statesmanship and the Judiciary,” The Review of Politics 51 (Autumn 1989): 510–32. See de Tocqueville, Alexis, Democracy in America, Mansfield, H. and Winthrop, D., eds. (Chicago: University of Chicago Press, 2000 [1835, 1840]), 93–9CrossRefGoogle Scholar, 130–42, 251–63.

70. See Hofstadter (1969), 127. See also Banning, L., The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca: Cornell University Press, 1980), 129, 135–40, 208–70Google Scholar.

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74. Ellis, 26.

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82. Jefferson quoted in Cunningham, N. E., Jeffersonian Republicans in Power: Party Operations, 1801–09 (Chapel Hill: University of North Carolina Press, 1963), 8Google Scholar. Emphasis added.

83. Hofstadter (1969), 154.

84. For example, Samuel Chase wrote that secession and the re-establishment of a new government was the only option: “There is but one event (which will probably never happen) in which I will interfere with politics. I mean the establishment of a new government. I believe nothing can save the present one from dissolution. Some events, as war with France, may delay it for a few years. The seeds are sown and they ripen daily.” Chase to G. Morris, 6 March 1803. Samuel Chase Correspondence. Maryland Historical Society.

85. The relationship between right of exit from a polity and right to voice dissent is specified by Hirschman, A., Exit, Voice, and Loyalty: Response to Decline in Firms, Organizations, and States. (Cambridge, MA: Harvard University Press, 2006)Google Scholar. On the connection of this dynamic to loyal opposition, see Shapiro, I., The State of Democratic Theory (Princeton: Princeton University Press, 2006), 9091Google Scholar.

86. Adams, J. Q., “Reply to the Appeal of the Massachusetts Federalists,” in Documents relating to New England Federalism, 1800–1815, ed. Adams, Henry (Boston: B. Franklin, 1877), 149Google Scholar.

87. Jefferson to D. Denniston and J. Cheetham, 6 June 1801, Jefferson Papers, Library of Congress; A. J. Dallas to A. Gallatin, 14 June 1801, Gallatin Papers, New York Historical Society.

88. A. Gallatin to Jefferson, 10 August 1801 in Henry Adams, ed. The Writings of Albert Gallatin (Philadelphia, 1879), I: 33.

89. Kramer, 167.

90. See W. Rehnquist, “Remarks of the Chief Justice Symposium on Judicial Independence,” University of Richmond Williams School of Law, 21 March 2003, (Accessed 22 July 2009) and Rehnquist, , Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Harper Perennial, 1999)Google Scholar. See also McCloskey, R., The American Supreme Court, 2nd ed., revised by Levinson, S. (Chicago: University of Chicago Press, 1994)Google Scholar.

91. New York Evening Post, 9 March 1805. Although this statement was attributed to Jefferson, Richard Ellis argues that no direct evidence links Jefferson to the Chase impeachment; indeed, after Jefferson's hyperbolic response to Chase's grand jury charge in Baltimore, Jefferson appears to have remained relatively quiet with regard to impeachment proceedings. As claims, Ellis, “Actually, between Jefferson's letter to Nicholson in May 1803 and Chase's trial in March 1805 there is no evidence, aside from Federalist hyperbole, to indicate that the administration either was enthusiastic about, or even supported, the movement to impeach Chase.” (65). “The Impeachment of Samuel Chase,” American Political Trials, ed. Belknap, M. (Westport, CT: Greenwood Press, 1981), 5778Google Scholar.

92. A record of the trial's proceedings can be found in Annals of Congress, Senate, 8th Congress, 2nd Session, 83–676, “Trial of Judge Chase.” The sectional division over the Yazoo scandal has often been cited as the reason for Chase's eventual acquittal. (See Ellis, “The Impeachment of Samuel Chase,” 65–66; Ellis, Jeffersonian Crisis, 87–89, 93. See also Ackerman, Bruce, The Failure of the Founding Fathers (Cambridge, MA: Belknap Press of Harvard, 2005), 212Google Scholar. The Yazoo issue was debated in the House only a week before the impeachment trial, and during it Randolph attacked his fellow Jeffersonians, likening them to Federalists: “What is the spirit against which we now struggle and which we have vainly endeavored to stifle? A monster generated by fraud, nursed in corruption, that in grim silence awaits its prey! It is the spirit of federalism … When I behold a certain party supporting and clinging to such a measure, almost to a man, I see only men faithful to their own principles … But when I see, associated with them, in firm compact, others who once rallied under the standard of opposite principles, I am filled with apprehension and concern. Of what consequence is it that a man smiles in your face, holds out his hand, and declares himself the advocate of those political principles to which you are also attached, when you see him acting with your adversaries upon other principles, which the voice of the nation has put down, never to rise again in this section of the globe.” (Randolph quoted in Adams, H., John Randolph: A New Edition with Primary Documents and Introduction by Robert McColley [Armonk, NY: M. E. Sharpe, 1996], 92.)Google Scholar Randolph's speech suggests the illegitimacy with which he views Federalism. Following this speech, quiet dislike of Randolph turned to open animosity, and from this point onward, according to one Federalist observer, the Republicans “seem broken and divided, and do not act with their usual concert.” (Quoted in Ellis, “Impeachment of Samuel Chase,” 68.)

93. H. Adams (ibid.) notes, “Conscious that he [Randolph] would meet with strong opposition in the Senate, he determined to make his attack overwhelming by proving criminality, even though in doing it he gave up for the time his theory that impeachment need imply no criminal offense; and therefore, placing the real cause of impeachment last in the order of his articles, he threw into the foreground a long series of charges, which concerned only questions of law.” (97).

Article One dealt with Chase's conduct at the Fries trial. Articles Two, Three, Four, Five, and Six dealt with Chase's conduct during the Callender trial. Article Seven accused Chase of refusing to discharge a grand jury at New Castle, Delaware until it filed an indictment under the Sedition Act. Article Eight characterized Chase's Baltimore grand jury charge as a political tirade. Smith, S. H. and Lloyd, T., The Trial of Samuel Chase An Associate Justice of the Supreme Court of the United States, Impeached by the House of Representatives, for High Crimes and Misdemeanors before the Senate of the United States (Washington City: Printed for S. H. Smith, 1805)Google Scholar. Massachusetts Historical Society.

94. By 1805, the furor over the Federalist judiciary cooled. Although Jeffersonians had not taken the Stuart ruling as a signal of the Court's acquiescence, the Court had not done much to antagonize the administration or the congressional majority since. Ackerman (2005), 219–222.

95. Elsmere, Jane, Justice Samuel Chase (Muncie, IN: Janevar Publishing Company, 1980), 298–99Google Scholar.

96. Whittington, K. E., Constitutional Construction (Cambridge, MA: Harvard University Press, 1999), 50Google Scholar.

97. Jefferson to Ritchie, 25 December 1820, The Writings of Thomas Jefferson, ed. Paul L. Ford (New York: G. P. Putnam's Sons, 1892–99) 10: 170.

98. Smith and Lloyd, Volume II, 363–64.

99. Justice Frankfurter captured this neutral ideal in his dissent in Baker v. Carr (1962): “The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” 369 U.S. 186.

100. Stephen Skowronek's model of presidents in “political time” draws out the linkages between Jackson as the transformative president who constructed a new era that was closed by the “disjunctive” politics of James Buchanan. Skowronek, , The Politics Presidents Make: Leadership from George Washington to Bill Clinton (Cambridge, MA: Belknap Press of Harvard University, 1997), 129–96Google Scholar.

101. In debates with Stephen Douglas, Lincoln belittled his opponent's reverence for the Court as not holding true to Jacksonian roots: “The sacredness that Judge Douglas throws around this [Dred Scott] decision is a degree of sacredness that has never been thrown around any other decisions. I have never heard of such a thing…I ask, if somebody does not remember that a National Bank was declared to be constitutional?… I will venture here to say that I have heard Judge Douglas say that he approved of General Jackson for that act. What has now become of all his tirade about ‘resistance of the Supreme Court’?” (“Lincoln at Chicago, July 10, 1858” in The Complete Lincoln-Douglas Debates of 1858, P. M. Angle, ed. (Chicago: University of Chicago Press, 1991), 36–37.

102. Worcester v. Georgia, 31 U.S. 515 (1832); McCulloch v. Maryland, 17 U.S. 316 (1819); see generally, Remini, R., Andrew Jackson and the Bank War (New York: W. W. Norton, 1967)Google Scholar; Freehling, W., Prelude to Civil War: The Nullification Controversy in South Carolina, 1816–1836 (New York: Oxford University Press, 1992)Google Scholar; and, Ellis, R., The Union at Risk: Jacksonian Democracy, States' Rights, and the Nullification Crisis (New York: Oxford University Press, 1989)Google Scholar. Samuel Worcester served as leader of missionaries in the Cherokee Nation who opposed a state law requiring that all whites living in tribal areas take an oath of loyalty to the state of Georgia. He refused, was arrested, and sued the state of Georgia. See Magliocca, G. N., Andrew Jackson and the Constitution (Lawrence: University Press of Kansas, 2007), 2225, 34–47Google Scholar.

103. On using the Court to avoid accountability on slavery, see M. Graber (1993). On Van Buren's assessment of Taney and Buchanan, see Buren, M. Van, An Inquiry into the Origin and Course of Political Parties in the United States (New York: Augustus M. Kelly, 1967), 356–76Google Scholar.

104. See Hofstadter (1969); Sartori (1976); Wallace, M., “Changing Concepts of Party in the United States: New York, 1815–1828,” American Historical Review 74 (1968): 453–91CrossRefGoogle Scholar; Formisano (1981); S. Elkins and E. McKitrick (1994).

105. See Leonard (2002); Voss-Hubbard (2002); Smith (2006).

106. Leonard, 5.

107. Ibid.


108. The statement is attributed to Jackson, but it is unclear whether he ever actually said it. See Remini, , Andrew Jackson and the Course of American Freedom, 1822–1832, Volume II (New York: Harper & Row, 1981), 276–77Google Scholar.

109. Jackson is rumored to have referring to the Worcester ruling as “stillborn.” Chris Tomlin interprets Jackson's response as a “dismissal of the Court's significance.” Tomlins, ed., The United States Supreme Court (New York: Houghton Mifflin, 2005), xi.

110. Longaker, R., “Andrew Jackson and the Judiciary,” Political Science Quarterly 71 (1956): 341CrossRefGoogle Scholar.

111. Burnham, W. D., “Critical Realignment: Dead or Alive?” The End of Realignment? Interpreting American Electoral (Madison, WI: University of Wisconsin Press, 1991), 124Google Scholar.

112. Jackson admitted to his nephew, “the constitution is worth nothing and a mere buble [sic] except guaranteed to them by an independent and virtuous judiciary.” Jackson to Andrew Jackson Donelson, 5 July 1822, The Correspondence of Andrew Jackson, III (Washington, 1926–1935), 167.

113. Ibid, 361. See Register of Debates, 24 February 1832, p. 1855–56, Section 25 authorized the Supreme Court to review state court rulings that either upheld state laws against federal prosecution, declared federal laws unconstitutional, or rejected rights claims grounded in the federal Constitution. 1 U.S. Stat. 73, 85–6 (1789). Repealing that provision would have severely undermined the federal government's ability to maintain any uniformity among the states and to assert the supremacy of the federal constitution over the individual states particularly because many antebellum suits against federal law began in state courts. If the Supreme Court had no appellate jurisdiction to review state rulings in these cases—which it would not have if Section 25 were repealed—the Supremacy Clause would have been a dead letter. See Marcus, M. and Wexler, N., “The Judiciary Act of 1789: Political Compromise of Constitutional Interpretation?” Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, ed. Marcus, M. (New York: Oxford University Press, 1992)Google Scholar.


114. “Special Message to Congress, 16 January 1833, qtd. in Longaker, 360.

115. Longaker argues that Jackson refused to support the Cherokee decision because in doing so he would have antagonized additional Southern states into supporting nullification. Skowronek (1997) views Jackson as going “out of his way to emphasize gradualism and mutual accommodation” to hold together support. (136)

116. Lattner, R. B., “The Nullification Crisis and Republican Subversion,” Journal of Southern History 43 (1977): 28Google Scholar.

117. Leonard, G., “Party as a ‘Political Safeguard of Federalism’: Martin Van Buren and the Constitutional Theory of Party Politics,” Rutgers Law Review 54 (2001): 248Google Scholar.

118. A. Jackson to J. Coffee, 17 July 1832, Correspondence of Andrew Jackson, IV, ed. John S. Bassett, 462–63.

119. A. Jackson to J. R. Poinsett, 9 December 1832, ibid., 498.

120. A. Jackson to J. Coffee, 13 May 1831, ibid., 177.

121. Burt, R., The Constitution in Conflict (Cambridge, MA: Belknap Press of Harvard University, 1992), 45Google Scholar.

122. Ibid.


123. Shallhope, R. E., “Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography,” William and Mary Quarterly 29 (1972): 4980CrossRefGoogle Scholar.

124. According to Jackson, implementing the Court's ruling, would compel him to deny state sovereignty: “like other citizens or people resident within the limits of the States, they [the Cherokee] are subject to their jurisdiction and control. To maintain a contrary doctrine and to require the Executive to enforce it … would be to place in his hands a power to make war upon the rights of the States and the liberties of the country—a power which should be placed in the hands of no individual.” “Special Message to Congress,” 22 February 1831, J. T. Woolley and G. Peters, The American Presidency Project [online]. Santa Barbara, CA: University of California (hosted), Gerhard Peters (database). See Burke, J. C., “The Cherokee Cases: A Study in Law, Politics, and Morality,” Stanford Law Review 21 (1969): 500–31Google Scholar. Jackson's logic flowed from the antebellum idea that state citizenship was prior to and formed the foundation of national citizenship, which is further elaborated in Justice Curtiss's opinion in Dred Scott. See generally, Belz, H., A New Birth of Freedom: The Republican Party and Freedman's Rights, 1861 to 1866 (New York: Fordham University Press, 2000), 26Google Scholar.

125. Silbey, J. H., Martin Van Buren and the Emergence of American Popular Politics (New York: Roman & Littlefield, 2002), xiixiiiGoogle Scholar. By the late 1840s, Van Buren's ideas about the dangers of opposition, especially after his 1848 third-party bid for the presidency, might be considered increasingly idiosyncratic. These ideas are reflected in his particular perspective on Chief Justice Taney's rationale in the Dred Scott case evaluated below.

126. Ceaser, 123.

127. Examples of traditional scholarship include McCormick, R. P., The Second American Party System: Party Formation in the Jacksonian Era (Durham, NC: University of North Carolina Press, 1966)Google Scholar; Silbey, J., The American Political Nation, 1838–1893 (Stanford, CA: Stanford University Press, 1994)Google Scholar; and, Rossiter, C., Parties and Politics in America (Ithaca: Cornell University Press, 1960)Google Scholar.

128. Hofstadter (1969), 213.

129. Ibid., 224–25.


130. Van Buren, Autobiography of Martin Van Buren, 303, quoted in Leonard (2001), 260.

131. Van Buren was aghast that “one of the most dangerous principles ever advocated by Alexander Hamilton,” which was “so much to be deprecated,” should be uttered by “one of the first members of the old republican party.” Van Buren, Martin, Autobiography of Martin Van Buren, ed. Fitzpatrick, John C. (New York: Augustus M. Kelley, 1969), 302–05Google Scholar. On Van Buren's interpretation of the 1824 election, the resulting “corrupt bargain,” and the motivation to reinvent the Jeffersonian party, see Remini, R., Martin Van Buren and the Making of the Democratic Party (New York: Columbia University Press, 1959), 1292Google Scholar.

132. M. Van Buren, Speech at Schenectady, New York as quoted in the Albany Argus, 5 August 1839.

133. M. Van Buren, “Thoughts on the Approaching Election in New York,” Papers of Martin Van Buren, Library of Congress, 33. This characterization of aristocracy versus democracy was essentially Jeffersonian. It was conceptually distinct from Madison's notion of overlapping and cross-cutting interests identified in his Federalist 10. Leonard (2001), 235–36.

134. Van Buren, Inquiry, 7.

135. Van Buren, “Substance,” 8. Van Buren characterizes the difference of principle at the Constitutional Convention to center on federal consolidated power versus dispersed state. Madison wrote Van Buren, upon receiving a copy of Van Buren's 1828 speech, and told him that his characterization was mistaken:

You will not, I am sure, take it amiss, if I here point to an error in fact in your “observations on Mr. Foot's amendment.” … The threatening contest in the Convention of 1787 did not, as you supposed, turn on the degree of power to be granted to the Federal Government, but on the rule by which the States were to be represented and vote in the Government: the smaller states insisting on the rule of equality in all subjects, the larger on the rule of proportion to inhabitants: and the compromise which ensued was that which established an equality in the Senate, and an inequality in the House of Representatives. The contests and compromises turning on the grants of power, tho [sic] very important in some instances, were knots of a less Gordian character.

Madison to Van Buren, 13 May 1828, Martin Van Buren Papers, Library of Congress, Series 2, Box 7, microfilm reel 7. See also Van Buren, Inquiry, 5–8.

136. Van Buren, Inquiry, 36.

137. Van Buren, “Substance,” 9.

138. Van Buren, Inquiry, 63.

139. Ibid., 261. That Hamilton chose to work through the judiciary rather than through the electoral process or through an Article V amendment only further indicated for Van Buren that Hamiltonian positions represented the minority. Hamiltonians, in Van Buren's assessment, advocated “government of more energy than was provided for by the Constitution presented by the Convention. This they had a right to desire and to work for through amendments in the way appointed by the Constitution, but in this way they knew they could not obtain what they wanted, and they therefore yielded their ready aid to the measures he proposed by which the Constitution was to be made to mean anything.” (Van Buren, Inquiry, 262).


140. Van Buren, “Substance,” 10.

141. Van Buren, Inquiry, 353.

142. Ibid., 137. Emphasis added.


143. Ibid., 271. Emphasis added.


144. Thomas Jefferson to D. Denniston and J. Cheetham, 6 June 1801, Jefferson Papers, Library of Congress.

145. Van Buren was an intellectual descendent of Madison, even as Madison was a potential outlier within the Founding generation. In contrast to Hamilton's Federalist 9, which advocated outright suppression of opposition, Madison understood opposition as an inevitable externality of democratic politics. However, both Madison and Hamilton sought institutional mechanisms to quell civic unrest. For Madison, the structure of government would delegitimize faction or at least propel politicians to rise above incentives toward factional politics. As such, Federalist 10 is not an inchoate celebration of difference and interest-based politics, as has been suggested by some pluralists, but a blueprint of how to minimize factionalism and promote regime unity. Madison made early moves toward establishing permanent existing parties as another institutional move to maintain civic stability, thereby foreshadowing, in part, Van Buren's vision. See Madison, J., The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, volume 6, ed. Hunt, G. (New York: G. P. Putnam's Sons, 1900)Google Scholar. “A Candid State of Parties” originally published in National Gazette (September 1792). On Madison as a pluralist, see Erler, E., “The Problem of the Public Good in The Federalist,” Polity 13 (1981): 649–67Google Scholar; for a rebuttal that places Federalist 10 in the republican tradition, see Wills, G., Explaining America: The Federalist (New York: Penguin Books, 1981)Google Scholar; see also Gillman (1993), 32.

146. The 1824 election was thrown into the House of Representatives because no one candidate won a majority of votes in the Electoral College. Jackson lost the presidency to Quincy Adams in what became known as the “corrupt bargain” in which Henry Clay allegedly persuaded representatives to vote for Adams. Clay was offered the position of secretary of state—a position seen as a stepping stone to the presidency—in the Adams administration.

147. According to Leonard, one of Van Buren's “central purposes and justifications,” as leader of the new Democratic Party in 1836, was “the effective amendment of the Constitution to prevent elections by the House of Representatives.” See Leonard (2001), 223, 247–49. For Van Buren's assessment of the 1824 election and how House selection gave power to the anti-democratic and aristocratic Quincy Adams, see M. Van Buren, “Thoughts on the Approaching Election in New York,” Papers of Martin Van Buren, Library of Congress, 34–39.

148. Leonard (2002), 232.

149. Van Buren, Inquiry, 226.

150. Ibid., 5.


151. Ibid.


152. The Whigs retained the Founders' anti-party animus, remaining within traditional anti-party tropes. In the 1836 election, they ran multiple candidates as if to personify their aversion to the group loyalty of Van Buren's party. In 1840, after a contentious nomination process, they avoided writing a platform of principles and instead campaigned through pomp and pageantry, bewildering Democrats who sought to debate stated principles. See Holt, M. F., The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War (New York: Oxford University Press, 1999), 3032, 104, 270–73, 345–47Google Scholar; Watson, H., Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 2006), 201–05, 212–27Google Scholar.

153. Silbey, J., The Partisan Imperative (New York: Oxford University Press, 1985), 62Google Scholar.

154. Republican linguistic constructions of “court” and “country” and the potential threat of opposition underlay Jefferson's, Jackson's, and Van Buren's readings of politics. See Wilson, M., “The ‘Country’ versus the ‘Court’: A Republican Consensus and Party Debate during the Bank War,” Journal of the Early Republic 15 (1995): 619647CrossRefGoogle Scholar.

155. Madison vetoed the bill authorizing the Bank of the United States on 30 January 1815. (He signed a revised bill into law.) He limited his objections to policy claims conceding that a constitutional objection was “precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.” Therefore, Jackson's Bank Veto is less interesting because it contained policy objections and more so because Jackson reached beyond policy grounds and articulated a constitutional claim. Madison's veto can be found in Richardson, J. D., ed. A Compilation of the Messages and Papers of the Presidents, 1789–1897, 10 volumes (Washington, DC: Government Printing Office, 1899), 1: 555Google Scholar.

156. Leonard (2002), 250–51.

157. President Jackson's Veto Message Regarding the Bank of the United States, 10 July 1832. Available at The Avalon Project. New Haven, CT: Yale Law School (hosted). Accessed 22 July 2009.

158. Ibid.


159. Ibid.


160. D. Webster, qtd. in Peterson, M. D., The Great Triumvirate: Webster, Clay, and Calhoun (New York: Oxford University Press, 1987)Google Scholar.

161. Magliocca, note 42, 145–46.

162. Webster, D., “In the Senate of the United States on the Presidents [sic] Veto of the Bank Bill, July 11, 1832,” in Speeches and Forensic Arguments, Volume II (Boston: Perkins & Marvin, 1839), 112Google Scholar.

163. Although Van Buren excerpts only the above portion of Webster's speech in his Inquiry (317), Webster's next sentence makes clear his thought on the boundaries of presidential interpretative right and responsibility: “But when a law has been passed by Congress, and approved by the President, it is now no longer in the power, either of the same President, or his successors, to say whether the law is Constitutional or not … After a law has passed through all the requisite forms; after it has received the requisite legislative sanction and the executive approval, the question of its Constitutionality then becomes a judicial question, and a judicial question alone.” (Ibid.)

164. Van Buren, Inquiry, 316.

165. This quote is taken from Remini, R., Andrew Jackson and the Course of American Democracy, 1833–1845, Volume III (New York: Harper & Row, 1984), 339Google Scholar. Remini indicates that the quoted statement is written by Francis Preston Blair in an editorial from the Washington Globe dated 27 July 1832, but posits “they clearly carry Jackson's imprimatur. The two men discussed them at the time the Bank Veto was written.” (577)

166. Van Buren, Inquiry, 330.

167. Ibid.


168. Ibid., 315.


169. Ibid., 329.


170. Ibid., 316.


171. Ibid., 336.


172. Ibid., 317.


173. Ibid., 351.


174. Ibid., 335.


175. Ibid., 342.


176. Peterson, 236–252.

177. Van Buren, Inquiry, 352.

178. 1 U.S. Stat. 73, 85–6 (1789). Like debate on the Judiciary Act of 1837, debate on the repeal of Section 25 has received little scholarly attention. As Graber pointed out, Charles Warren, who catalogued the Jacksonian “hostilities,” devoted only one paragraph to the repeal effort in his essay “Legislative and Judicial Attacks on the Supreme Court of the United States.” Warren explained the failure by referencing the persuasive power of Representative James Buchanan's minority report. See Warren, , The Supreme Court in the United States History, volume 2 (Boston: Little, Brown, and Company, 1947), 164Google Scholar. See Graber, “James Buchanan as Savior?,” 9.

179. See Justice Storey's opinion for the Court in Martin v. Hunter's Lessee, 14 U.S. 304 (1816).

180. See M. Marcus and N. Wexler (1992).

181. “Report upon the Judiciary,” Register of Debates, 21st Congress, Second Session, Appendix, lxxvii.

182. Register of Debates, 24–29 January 24–29 1831, House of Representatives, 21st Congress, Second Session, 532–542. “Counter-Report Upon the Judiciary,” Register of Debates, 21st Congress, 2nd Session, Appendix, lxxxi. On Buchanan's persuasive abilities, see Pushaw, R. J. Jr., “Congressional Power over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III,” Brigham Young University Law Review (1997), 882Google Scholar, note 149. For a similar assessment, see Frankfurter and Landis, 44.

183. To the extent that the House Judiciary Committee was unrepresentative of Jacksonian positions on federal power and states' rights, it was non-informative; it could not provide useful information on which the House could credibly position itself. On informative committees and their use to legislators in position staking, see Krehbiel, K., Information and Legislative Organization (Ann Arbor: University of Michigan Press, 1992), 61150Google Scholar.

184. Wiscart v. Dauchy, 3 U.S. 321 (1796).

185. Sheldon v. Sill, 49 U.S. 441 (1850).

186. Cary v. Curtis, 44 U.S. 236 (1845).

187. On congressional jurisdiction-granting authority during the antebellum period, see Clinton, R., “A Mandatory View of Federal Court Jurisdiction: Early Implementation of and Departures from the Constitutional Plan,” Columbia Law Review 86 (1986)CrossRefGoogle Scholar.

188. Report upon the Judiciary, “Register of Debates,” 21st Congress, 2nd session, Appendix, ixxviii.

189. The repeal effort was voted down 138 to 51.

190. Strategic theories of judicial supremacy might suggest that members of Congress might seek to maintain judicial power as stipulated in Section 25 because it might serve their long-term interests. Over the long term, through advise and consent powers associated with appointment, Congress may tilt the partisan makeup of the Court, or, a strong court could be useful in deflecting unpopular issues. However, tellingly, Buchanan's minority report made no mention of the importance of preserving the longer-term strength of the judiciary in case the Jacksonians should ever find themselves in the minority and thereby want to secure judicial power as a means to entrench political intent (see Graber, “James Buchanan as Savior,” 80). This lack of a longer-term time horizon is unsurprising: why would Buchanan have made this argument if the opposition's right to rule and rotation of power remained underdeveloped among this first generation of Democrats? In other words, no logic of harnessing judicial power through appointment or through tampering with jurisdiction is voiced. The reasoning for keeping Section 25 was limited to maintaining federal power, not for utilizing judicial power as a tool through which to lodge political interest.

191. Magliocca, 66–69.

192. On partisan entrenchment through judicial appointment, see J. M. Balkin and Levinson, S., “Understanding the Constitutional Revolution,” Virginia Law Review 87 (2001)Google Scholar.

193. Calhoun, J. C., “Fort Hill Address,” The Nullification Era: A Documentary Record, ed. Freehling, William (New York: Harper Torchbooks, 1967), 145Google Scholar.

194. Van Buren, Inquiry, 356.

195. Dred Scott v. Sanford, 60 U.S. 393 (1857). Taney delivered the opinion of the court.

196. Belz (2000), 19–20.

197. Dred Scott v. Sanford, 60 U.S. 393 (1857).

198. Leonard (2002), 262–65.

199. Ibid., 376.


200. Like Buchanan, Taney identified as a Federalist through the 1820s. See Simon, J. F., Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers (New York: Simon and Schuster, 2007), 814Google Scholar.

201. Van Buren, Inquiry, 363.

202. Ibid.


203. Ibid., 366.


204. Ibid., 370–71.


205. Buchanan was a Federalist and supported the national bank until Jackson's veto message. By Jackson's second term, Buchanan moved in lockstep with his president on the need to kill the bank. See Buchanan, J., The Works of James Buchanan: Comprising his Speeches, State Papers, and Private Correspondence, volume 1 (1813–1830), ed. Moore, J. B. (New York: Antiquarian Press, 1960), 4Google Scholar, and “Buchanan to General Jackson,” volume 3, 256–57.

206. See Kutler, S., Judicial Power and Reconstruction Politics (Chicago: University of Chicago Press, 1968), 629CrossRefGoogle Scholar.

207. Ibid., 371.


208. This is a particularly important move because the Founders' Constitution was not a democratic document, incorporating a range of countermajortarian institutions, ranging from the Senate's non-proportional representational scheme to the filibuster to the presidential veto. See Levinson, S., Our Undemocratic Constitution (New York: Oxford University Press, 2006)Google Scholar and Dahl, R., How Democratic is Our Constitution? 2nd ed. (New Haven: Yale University Press, 2001)Google Scholar. The idea that the Constitution aspired to a purer democracy is perhaps an artifact of the Populist era and Progressive-era reforms, such as expanding suffrage to women and direct election of senators.

209. See Mayhew, D., Electoral Realignments: A Critique of an American Genre (New Haven: Yale University Press, 2004)Google Scholar.

210. The idea that the Constitution had multiple plausible meanings would come with Lincoln's first inaugural speech, particularly Lincoln's emphasis that there are many questions on which the Constitution is seemingly silent, “and we divide upon them into majorities and minorities.” “First Inaugural Address of Abraham Lincoln,” Washington, DC, 4 March 1861. Available at The Avalon Project. New Haven, CT: Yale Law School (hosted). Accessed 22 July 2009.

211. S. Skowronek characterized the nineteenth-century United States as a state of “courts and parties” in his Building a New American State (New York: Cambridge University Press, 1982).

212. By investigating how leaders altered the terms of their ideas and assumptions about parties and opposition and how that influenced their relations with the judiciary, I am utilizing the concept of “intercurrence,” the term coined by Orren and Skowronek to refer to the interaction and outcomes of multiple orders of governance. See Orren, K. and Skowronek, S., The Search for American Political Development (New York: Cambridge University Press, 2004), 108118CrossRefGoogle Scholar.

213. Gillman (2002): 522. R. Kahn and K. Kersch have called for inquiry into the “relationship between law and politics by refusing to isolate questions involving legal doctrines and judicial decisions and the special qualities of courts as decision-making units from the consideration of developments elsewhere in the political system—be they in ideologies, elite and popular political thought, social movements, or in formal institutions, such as Congress, the presidency, state and federal bureaucracies, and state and federal court decisions.” Kahn, and Kersh, , ed., The Supreme Court and American Political Development (Lawrence: University Press of Kansas, 2006), 13Google Scholar.

214. For various takes on how Jackson, Lincoln, FDR, and Reagan represent Jeffersonian approaches to the judiciary, see Burgess, S., Contest for Constitutional Authority (Lawrence: University Press of Kansas, 1992)Google Scholar; Devins, N. and Fisher, L., The Democratic Constitution (New York: Oxford University Press, 2004)Google Scholar; and Whittington, K., Political Foundations of Judicial Supremacy (Princeton: Princeton University Press, 2007)Google Scholar.

215. Fairman, C., Reconstruction and Reunion, Part One (New York: MacMillan, 1971), 118Google Scholar.

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