II. a. Judges as Representatives of Popular Sovereignty: Accepting Judicial Review, Presuming Regime Unity, and Fearing Consolidation

The standard account of judicial development begins by detailing that, given a colonial history of judges tied to corrupt executives, the principle of judicial review was contentious in the new republic.Footnote ²³ It highlights that the Articles of Confederation did not contemplate a national judicial body.Footnote ²⁴ It emphasizes that judicial review was not much discussed in a direct way at the Constitutional Convention.Footnote ²⁵ It showcases that during the late 1770s and early 1780s, state constitutions lodged judicial appointment with legislatures to tie the judiciary closer to the people. However, by the early 1800s, the judge's image seemed curiously and rapidly rehabilitated.Footnote ²⁶ Legal scholars have looked to judges and to an alleged early articulation of judicial supremacy to account for this transformation. They have focused on Chief Justice Marshall's Marbury v. Madison ruling as the definitive expression of judicial muscle.Footnote ²⁷

This account overlooks several particulars: judicial review was justified in the Constitution's ratification debates, it was articulated and accepted by anti-Federalists, and judicial rulings of the 1790s indicate growing acceptance of judicial review. Furthermore, the Jeffersonian press was not incensed by Marshall's claim of authority to review statute and declare it unconstitutional as he did in Marbury.Footnote ²⁸ Although the Marbury ruling has been traditionally canonized as the foundation of judicial power, the Court repudiated it shortly after it was delivered.Footnote ²⁹ So, if Federalists, anti-Federalists, and Jeffersonians accepted judicial review, the Jeffersonian assault on the judiciary cannot flow from a notion of that branch's structural countermajoritarian illegitimacy. The attack's logic must be grounded in another concern.

One indicator that independent review of statute by unelected judges was accepted by the Framers' generation is how the judiciary's role was discussed at the Constitutional Convention. It was raised during discussion of a congressional veto over state law and a Council for Revision armed with a limited veto over congressional legislation. These proposals fell not only to concerns over feasibility, that is, how could Congress review state legislation and attend to federal business but also to claims of redundancy. The judiciary would suffice to take on the vertical and horizontal responsibilities.Footnote ³⁰ Thus, judicial review was assumed in the organizational construction of roles and powers of the government.

James Iredell, a future Supreme Court justice, offered an early articulation of judicial review's legitimacy and the parameters of judicial independence. He conceded that “the judicial power is not to presume to question the power of an act of Assembly,” but he also considered resort to the people “either by humble petition” or “universal resistance” to be inefficient.Footnote ³¹ Popular resistance would be difficult to mobilize, and it would offer no safety against majority tyranny. In place of such populist review, Iredell defended judicial review. This power to validate or nullify law was “not a usurped or discretionary power, but one inevitably resulting from the constitution of their office, they being judges for the benefit of the whole people, not mere servants of the Assembly.”Footnote ³² Judicial review's democratic justification depended on the Framers' relocation of sovereignty from the legislature to the people themselves.Footnote ³³ In this framework, elected representatives might pass legislation in conflict with the Constitution, and it fell to the judiciary, in their similar capacity as popular servants, to correct those errors.Footnote ³⁴

Iredell's rationale for judicial review is essentially the same as that which Hamilton offered in his Federalist 78:

This conception of judicial review does not imply supremacy. It claims only that the Constitution, as fundamental law, takes precedence over statute and makes no one branch supreme. It frames judges as equal participants in a representative republic, doing their share to safeguard the Constitution from an internal aristocratic minority threat. If judges void an act of Congress, they only give preference to “the intention of the people [over] the intention of their agents.”Footnote ³⁶ And, they would only, in this manner, be performing their function as representatives of the popular sovereignty. Hamilton did not posit courts to be the only branch to pass on a law's constitutionality, a claim that follows from judicial supremacy. Taking the Constitution as an artifact of popular sovereignty and judges as representatives of the people are cornerstones of judicial review's democratic legitimacy.

Hamilton's Federalist essays on the judiciary responded to anti-Federalist Brutus, who criticized the judiciary's lack of accountability.Footnote ³⁷ Nevertheless, in his critique, Brutus did not question the legitimacy of independent judicial review:

Brutus, like Iredell and Hamilton, recognized the people as the sovereign—a key distinction between Brutus and many other anti-Federalists—and also that judges' must remain as faithful to that sovereignty as legislators would. He even agreed that the judiciary cannot be elected because “their business requires that they should possess a degree of law knowledge, which is acquired only by a regular education” and because “in an independent situation” these judges “may maintain in their firmness and steadiness their decisions.”Footnote ³⁹ Thus, Brutus conceded that judicial independence must be maintained.

If Brutus stipulated that “the proper province of judicial power, in any government, is, as I conceive, to declare what is the law of the land,” and if it was proper that judges be unelected, then his concern was not with the structure of an unelected judiciary as potentially countermajoritarian, but that federal judicial and federal legislative power were mutually reinforcing.Footnote ⁴⁰ Put differently, his preoccupation was not with judicial power, but with federal power as a threat to state sovereignty. He feared “what arises from the undue extension of legislative power … [and] that judicial power would be commensurate with the legislative.”Footnote ⁴¹ He contended that federal judicial authority would develop with congressional authority, that the branches would support each other's expansion to the detriment of the states: “the general legislature might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution.”Footnote ⁴² For Brutus, the Framers constructed a system of reinforcing federal power aggrandizement against the sovereignty of the states. He assumed that the Supreme Court would be biased toward federal power and would therefore extend federal power to its own and to Congress's advantage.

Brutus's cause for concern was the balance of federal power against states' rights, not how to guard Congress from an unelected judiciary.Footnote ⁴³ Brutus entertained little to no notion of federal judicial power as a check on congressional power or vice versa. Although he agreed with the aims of Madison's separation of powers design, he still held that “each of these bodies should be accountable for their conduct.”Footnote ⁴⁴ That phrasing would suggest that the branches would not hold one another accountable. Formal separation was not enough for Brutus because the branches would find means to concentrate their power against the states. He accepted what Hamilton called a “political axiom” in his Federalist 80, namely that “the judicial power of a government is coextensive with its legislative power.”Footnote ⁴⁵ In short, Hamilton and Brutus both assumed that not only was some form of independent judicial review acceptable and necessary, but that the federal branches would inevitably form a unified governing regime.Footnote ⁴⁶

II. b. The Hayburn Case: Judicial Unease with Opposing the Elected Branches

As Hamilton's and Brutus's essays reveal, Chief Justice Marshall tilled little new ground in articulating the democratic logic of judicial review in his Marbury ruling. Indeed, the legitimacy of such review was strengthened by judicial rulings made throughout the 1790s.Footnote ⁴⁷ That such review was increasingly accepted is evidenced by rulings in the Hayburn Case, United States v. Yale Todd, Hylton v. United States, and Cooper v. Telfair.Footnote ⁴⁸ The Hayburn case is particularly important, to the extent that it provides some insight into judicial reticence to show open opposition to members of Congress or the president.

Hayburn was decided in the circuit court for the district of Pennsylvania with Supreme Court justices Wilson and Blair sitting in their dual capacity as circuit judges. The case involved the constitutionality of the Invalid Pensions Act. This act charged federal judges (serving as commissioners and not as judges) to determine whether a petitioner was entitled to government compensation if his injury resulted from fighting for the revolutionary cause. The secretary of war would then review the judges' assessments. Hayburn filed a claim for a pension, but the circuit court refused to hear the case. Representative Elias Boudinot reported the judges' reasoning to the House of Representatives:

During congressional discussion of this incident, it was conceded that the circuit court for the district of New York had already heard petitioners' claims. These justices had done so in their capacity as commissioners, not as judges, thereby potentially side-stepping the separation-of-powers issue raised by Wilson and Blair.Footnote ⁵⁰ As this case was “the first instance in which a court of justice had declared a law of Congress to be unconstitutional,”Footnote ⁵¹ these justices wrote to Washington citing that they acted in ways “far from being pleasant” and that such review “excited feelings in us, which we hope never to experience again.”Footnote ⁵² Attorney General Randolph wrote to Washington that Wilson and Blair's refusal to hear the case was tantamount to an overt striking down of a congressional act.Footnote ⁵³

If judicial review was an increasingly accepted idea, why would Wilson and Blair have agonized over it?Footnote ⁵⁴ These justices did not want to express open opposition to Congress. Doing so would have exposed disunity within the federal regime. Such disunity would have violated not only republican aspirations toward consensual government but would have potentially laid the foundations for civic strife. In this interpretation, I am supported by the Supreme Court's reaction to the attorney general's application for a writ of mandamus ordering the Pennsylvania circuit to hear Hayburn's case. The Court postponed a decision on the writ thereby signaling not only that the justices harbored doubts about the act's constitutionality, but also buying time for “Congress to correct the Invalid Pension Act before the Supreme Court embarrassed the legislature by declaring the act unconstitutional.”Footnote ⁵⁵ Congress did so in 1793, thereby alleviating the need for a Court-issued opinion.

II. c. Sedition and the Kentucky Resolution: Jeffersonian Dismay over Federal Power

Passage of and reaction to the 1798 Sedition Act offers another glimpse into how politicians of the Founding generation viewed opposition, were concerned about regime unity animated by “wrong” principles, and were more preoccupied with state sovereignty than with federal inter-branch relations.Footnote ⁵⁶ The act had two parts, and the second part dealing with prosecution for libel has received far more scholarly attention. The first part banned assembled opposition to any passed legislative measure. Federalist Robert Goodloe Harper noted that this part of the law “has never been complained of, nor has any objection been made to its constitutionality. The objections are confined to the second section.”Footnote ⁵⁷ Harper's remark underscores the republican boundaries of legitimate opposition during these years.

The act's second section criminalized any utterance or publication about Congress or the president considered false or malicious.Footnote ⁵⁸ The Sedition Act, while seeming an assault on first amendment speech rights, is consistent with Federalist theories of representation. Antagonism toward the law did not stem from its curbing of speech. Jeffersonians challenged it for its aggrandizement of national power at the expense of state sovereignty.Footnote ⁵⁹ Jefferson was not opposed to state-level sedition laws, testifying to his own entrenchment in a system that refused to concede the legitimacy of organized opposition.Footnote ⁶⁰

To oppose the Sedition Act, Jefferson penned the Kentucky Resolution, which framed the act as an unconstitutional usurpation of state sovereignty. Jefferson articulated a theory of review of federal law by state legislatures thereby enabling states to reject laws.Footnote ⁶¹ Jefferson hinted at a nullification doctrine, potentially reversing the Constitution's supremacy clause. He characterized the Constitution as a compact that the several states joined to constitute “a general government for special purposes—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government.” More importantly, Jefferson claimed that this general government “was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”Footnote ⁶² His construction of the relationship between state governments and the federal government is emblematic of assumptions of regime unity in which the federal branches would work in tandem to absorb the power of the states. To maintain their own sovereignty, according to this logic, the states had to assert their own power as an arbitrator of constitutional meaning because federal officials could act in a corrupt fashion to concentrate power and thereby undermine the Constitution.

The Kentucky Resolution highlighted the legitimacy of multiple interpreters of the Constitution, but it did not concede the legitimacy of multiple interpretations. In the resolution, Jefferson advocated state authority to interpret the Constitution; as such, the document was more focused on vertical relationships in federalism than the horizontal separation of powers.Footnote ⁶³ Jefferson spoke to the horizontal relationship in a letter to Abigail Adams in which he summarized his interpretative authority relative to the other federal branches: “You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them.”Footnote ⁶⁴ His theory of constitutional interpretive authority included all public officers in state and national governments.

That Federalists responded to Jeffersonian dissent by seeking measures to squash it and that Jeffersonians would articulate arguments to ignore judicial rulings indicate the Founding generation's grounding in a theory of republican unity and stability. Thus, Jefferson's logic is similar to Hamilton's to the extent that it relies on the people as sovereign and governing officials as representative of that sovereignty. Jefferson, however, places state officials on the same level as federal officials, each public officer assuming the responsibility to interpret the Constitution in order to protect it from corrupt influence. He thereby disrupts federalism's vertical hierarchy in order to protect constitutional principles from what he viewed as a minority aristocratic faction that may become lodged within the federal apparatus. If the opposition's right to rule is not conceded, what rationally follows is a constitutional theory that promotes either the interpretive chaos of Jeffersonian departmentalism or an assault on the judiciary so radical that it may exceed its own constitutional bounds. Jeffersonians would proceed on the latter path.

II. d. Jefferson: Judicial Review as Discovering the Act of Popular Sovereignty

In the traditional telling of the rise of judicial authority, Marshall's elitist Federalist assertion of judicial supremacy is pitted against Jefferson's democratic populism.Footnote ⁶⁵ Jefferson's animus toward the Court is then summarized by his claim that “the judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.”Footnote ⁶⁶ Jefferson has thereby been constructed as the first president in a line of particular presidents, including Jackson, Lincoln, Franklin Roosevelt, and Reagan, to confront judicial authority.

However, Jefferson's opposition to judicial power was more nuanced than simple hostility toward judges' unelected status. By drafting provisions in the Virginia Constitution for judicial life tenure, Jefferson conceded the structural legitimacy of the federal system of judicial review. In a letter to Madison, which discussed the proposed Bill of Rights, Jefferson even noted the benefits of independent judicial authority.Footnote ⁶⁷ So, Jefferson was not hostile to judicial review's seeming democratic deficit. To understand the reason and the timing of Jefferson's anti-judicial animus, it is necessary to understand how he—as well as others of the Founding generation—linked interpretation, popular sovereignty, and legitimacy.

That connection underlies the rationale behind Jefferson's less quoted statement, which followed his oft-quoted “sappers and miners” criticism: “A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”Footnote ⁶⁸ Here, Jefferson revealed two assumptions about the expected role of judges in the new republic. First, judicial independence meant independence from corrupt politicians, not from politics altogether. If judges were representatives of the people charged with protecting higher law, it does not follow that they would necessarily be cast as separate, as neutral apolitical statesmen.Footnote ⁶⁹ Conflating political neutrality with judicial independence to create the concept of judicial neutrality would come, I suggest, in the wake of the Chase impeachment.

Second, independence from the people was nonsensical in a democratic republic; therefore, judicial interpretation should accord with popular will to the extent that the Constitution is an act of popular sovereignty. If judges ruled otherwise, they would represent the aims of a threatening aristocratic minority to the detriment of constitutional principles as ratified by the people themselves.Footnote ⁷⁰ Here, Jefferson's assumption fell in line with the Framer's relocation of sovereignty from the legislature to the people themselves and this move's corresponding implications for judicial power.

So, the critical move was not Marshall's ruling in Marbury but the Framers' relocation of sovereignty. By shifting the locus of sovereignty from the legislature to the people, the Framers placed federal judges on equal footing with members of Congress and the president. Each branch, in its own way, would represent the people and preserve constitutional principles.Footnote ⁷¹ It was in this original frame—with judges as representatives of popular sovereignty and not as neutral arbitrators held separate from politics—that judicial review initially claimed legitimacy. This frame neither entailed nor required an assertion of judicial supremacy.

If the structural separation of powers implied judicial independence, it may seem unclear how the judiciary's representation and independence functions fit with one another. Harmonizing these two principles requires the assumption that proper constitutional interpretation amounted to discovering and giving expression to the Framers' intentions as ratified by the people.Footnote ⁷² This view of interpretation delegitimized the notion that multiple equally valid interpretations could exist. The people could not have intended their Constitution to have multiple meanings. If the Constitution had a discoverable meaning, then judicial interpretation that contradicted that meaning would be anti-constitutional. Rulings against that meaning would imply that judges abandoned their responsibility to represent and preserve the expression of popular sovereignty.

Jefferson complained that the Marshall Court betrayed this responsibility: “The Constitution … is a mere thing of wax in the hands of the judiciary, which they may twist and shape in to any form they please.”Footnote ⁷³ The criticism implies not that the judiciary was necessarily anti-democratic, only that its power had been abused. The Court had abandoned the proper principles, turning the Constitution into something it was not. Judicial interpretive authority had undermined rather than maintained the Constitution. That situation was made manifest, according to Jefferson, by the passage and litigation of the Alien and Sedition Acts.Footnote ⁷⁴

Federalists, anti-Federalists, and Jeffersonians all agreed that judges should be independent of corrupt executives and legislators. However, once Jefferson took his election to be a deep expression of popular sovereignty—what he referred to as a “revolution”—federal judges had shown they were independent of the people themselves.Footnote ⁷⁵ Marshall's Marbury decision indicated at least this much. Such a role was intolerable because it suggested that actors in one branch would contradict the expressed popular sovereignty and abandon their representative purpose. The government was splintered by the open opposition of a recalcitrant judiciary unwilling to bend to the people's choice. Stable opposition, a danger to republican stability, was now entrenched in government. From the Jeffersonian perspective, Marshall had not acted illegitimately because he gave voice to the power of judicial review; he acted illegitimately because he represented an aristocratic minority faction repudiating the people's choice. He thereby sewed the seeds of unrest within the federal branches. In short, Jefferson's anti-judicial animus flows from a view of judicial authority as grounded popular sovereignty—a view that no longer holds—and an assumption that alternative constitutional interpretations amounted to a conspiratorial anti-constitutional threat.

II. e. 1800: A Peaceful Transition But No Acceptance of Loyal Opposition

Although the 1800 election marked a peaceful transfer of power after a contentious election, it did not herald the emergence of any notion of legitimate or loyal opposition. In fact, the outcome was preceded by rumors and threats of violent insurrection. Virginia threatened secession if Jefferson were not selected once the choice was thrown to the House of Representatives. Some of Jefferson's supporters indicated that if Jefferson were not the victor, they would call a new constitutional convention. The governor of Pennsylvania offered to muster 20,000 militia troops on Jefferson's behalf if Adams refused to vacate.Footnote ⁷⁶ Jefferson told Adams that there might be violence if Federalists attempted to maintain Adams in the presidency.Footnote ⁷⁷ Adams wrote, “civil war was expected.”Footnote ⁷⁸

Once in control of the executive branch and the Congress, Jeffersonians continued to perceive Federalism as a dangerous aristocratic minority.Footnote ⁷⁹ This perspective was evident in two ways. First, more extreme Jeffersonians like John Randolph, William Giles, and James Monroe called for the removal of Federalists from government altogether. Randolph interpreted the 1800 election outcome as a first step toward restoring the republic: “we think that the great work is only begun: and that without substantial reform, we have little reason to congratulate ourselves on the mere change of men.”Footnote ⁸⁰ Second, moderate Jeffersonians like Madison, Pierce Butler, Alexander Dallas, and Albert Gallatin sought to absorb more accommodating Federalists, essentially cutting the extremes of both factions from political power.

Although Jefferson's inaugural claim—“We have called by different names brethren of the same principle. We are all republicans; we are all federalists”—suggests reconciliation, it should not be construed to imply the legitimacy of Federalism or party competition.Footnote ⁸¹ Jefferson's private statements regarding the suppression of party-based opposition were more apt: “Nothing shall be spared on my part to obliterate the traces of party and consolidate the nation if it can be done without abandonment of principle.”Footnote ⁸² Thus, the inaugural's theme did less to concede the legitimacy of Federalism and more to explore whether and how to bring Federalists into the Jeffersonian fold. The aim remained to do away with party rancor altogether; for Jefferson, the two groups could be “not so much reconciled as merged, and merged under his own standards.”Footnote ⁸³

By 1803, rather than concede Jefferson's legitimacy, some Federalists considered seceding from the Union altogether.Footnote ⁸⁴ Consideration of exit is, by definition, the clearest expression that the opposition is not granted governing authority.Footnote ⁸⁵ John Quincy Adams wrote that the secessionist impulse was grounded in a fundamental mistrust of the Jeffersonian majority:

The telling sentence—“The party overthrown was … the framers and supporters of the Constitution of the United States”—implies that Jeffersonians opposed the Constitution. The stakes of politics, given the illegitimacy of opposition, were correspondingly high.

Without achieving what Jefferson called his “most important object,” which was “to consolidate the nation once more into a single mass, in sentiment & in object,” politicians saw a future in which “parties will continue always equally to divide the nation; every Federalist will become a conspirator; every Republican will be a tyrant; and each general election will involve the hazard of a civil war.”Footnote ⁸⁷ Both strategies—to remove Federalists or to absorb them “inducing the mass of the Federal citizens to make a common cause with [Jeffersonians]”—indicate the Founding generation's underdeveloped sense of legitimate or loyal opposition organized as a party.Footnote ⁸⁸

How does this perspective toward opposition connect to the underlying logic of hostility toward judicial power? In his study of this period, Larry Kramer dismisses what he considers a semantic debate among historians and political scientists about whether Federalists or Jeffersonians were parties, because, in his estimation, they became so in spite of themselves:

Still, distinguishing among parties, party systems, and partisanship and more fully considering the attitudes taken toward party and opposition are critical to understanding the ferocity of the Jeffersonian assault on the Court. Kramer does not address the conceptual shift in perception of opposition that had not yet occurred because he views the attack on the Court to be about the structural legitimacy of judicial review. This view is too narrow. A broad-based assault on judicial authority is a symptom of a more general dynamic of attack on opposition politics. The legitimacy of courts and the legitimacy of parties were thereby inextricably connected. To skim over the development of changing perspectives toward opposition is to lose sight of larger ideational developments in which anti-Court attacks were embedded.

By ignoring views toward opposition, accounts of this era's judicial politics have structured its anti-court hostilities—from the repeal of the Judiciary Act of 1801 through the impeachment of Samuel Chase—as about the legitimacy of judicial review and conflict among the separated powers of the federal government.Footnote ⁹⁰ Nevertheless, Jeffersonians were not just attacking judicial review; they were attacking what they considered a repudiated opposition. They were attacking the very idea that the federal branches of government could be divided against themselves. They were motivated to maintain the image of unity that underlay the reticence of judges to contradict Congress and their plea to Washington to forestall such displays of disunity. Through a fuller accounting of this perspective on opposition, these hostilities can be understood not as attacks on the structural legitimacy of judicial review, the legitimacy of which had been conceded even by anti-Federalist Brutus, but about broader concerns regarding an opposition's right to rule.

II. f. Impeachments and Judicial Neutrality as a Second-Best Solution

Thus far, I have shown how Federalists saw open and stable opposition as a threat to civic stability, how Federalists understood judicial review as constitutionally provided, and how many anti-Federalists and Jeffersonians agreed on both counts. It remains to understand how these traditionally civic republican ideas about opposition and judicial review manifest themselves in an assault on judicial authority.

As reviewed above, the Framers' relocation of sovereignty with the people grounded the federal judiciary's legitimate authority in its potential to represent popular sovereignty. As such, with the elected branches, judges served as part of a unified regime that would steer the Constitution clear of civil strife. Under these assumptions, judges, Supreme Court Justice Samuel Chase foremost among them, took it as their role to speak out against Jefferson and his supporters. They saw his leadership, supported as it was by a party-like apparatus of Democratic-Republican clubs, as inimical to the Constitution. However, such public speech by judges would, for the Jeffersonians, constitute a repudiation of the victors of 1800. It would therefore, for the Jeffersonians, expose the open opposition considered so destabilizing.

As such, Jeffersonians saw the judiciary as an entrenched minority and internal threat, and they responded with various measures to bring it in line or at least ensure its silence, including impeachments. Federalists and Jeffersonians alike viewed the impeachment of Justice Samuel Chase as a stepping-stone toward impeaching Chief Justice Marshall. Jefferson is rumored to have commented, “Now we have caught the whale, let us have an eye to the boat.”Footnote ⁹¹

Representative John Randolph led the House prosecution of Chase on eight impeachment articles.Footnote ⁹² He sought to overwhelm Chase's defense: one article might stick.Footnote ⁹³ That no article referenced Chase's elaborations on judicial review during the 1790s as problematic is particularly telling. For Jeffersonians, the exercise of judicial power per se was not the problem. A judiciary out of line with the popular will as demonstrated by the most recent election was.

Even as a majority voted to convict on numerous charges, Chase escaped conviction because no one article reached the supermajority threshold.Footnote ⁹⁴ Voting patterns on the articles reveal that although Chase may have been acquitted, the initial vision of the judiciary, that is, as representative of popular sovereignty, had given way to a new idea of judges as removed from politics altogether. It is not clear that this construction was intended by Jeffersonians or Federalists. Rather, it appears to have been a seemingly unforeseen compromise that cooled tensions. It may explain why senators who voted for conviction expressed relief at the acquittal.Footnote ⁹⁵

The vote on the Eighth Article of impeachment is telling. That article dealt with Chase's 1803 grand jury charge in Baltimore, which criticized the Jefferson administration and which framed the Repeal Act as a negation of the right to property. It received the most votes falling only four votes shy of the threshold for conviction. This was also the only impeachment article Jefferson had hinted at, suggesting that Jefferson was mainly concerned with Chase's espousal of what he considered to be repudiated Federalism, not that Chase exercised review. In other words, Chase should be silenced because he was, after 1800, unrepresentative of the peoples' will.

Put differently, the vote on Article Eight suggests an emerging consensus that judges should not be directly involved in politics. The article did not condemn Chase's views per se but rather his airing of those views in the context of his judicial capacity: “The Republicans did not denounce Chase's politics as illegitimate, but rather insisted that his office precluded his acting on those political views.”Footnote ⁹⁶ Judicial independence was no longer constructed as independence from executive or legislative authority, but as being removed from politics altogether. The meaning of judicial independence was now conflated with an emergent notion of political neutrality. Even though judges had a long history of advising juries through grand jury charges such as Chase's offered in Baltimore, the impeachment suggested that new parameters were to be placed on the content of that speech. Thus, the impeachment rendered the judiciary depoliticized.

Imposing this construction of judicial neutrality was a second-best solution. If judges could no longer be reliably considered or compelled to become part of a unified federal regime, and if their behavior exposed an entrenched opposition that was potentially threatening to civic stability, then they must be kept separate from politics. They must be neutralized so as not to represent the will of an aristocratic minority, ensconced in their lifetime tenure, seemingly untouchable in the wake of the impeachment's failure. Hence, Jefferson's lament:

This passage suggests that Jefferson did not recognize the consequence of impeachment and acquittal. The impeachment, according one House manager, Caesar A. Rodney, was intended “to teach a lesson of instruction to future judges, that when intoxicated by the spirit of party, they may recollect the scale of power may one day turn, and preserve the scales of justice equal.”Footnote ⁹⁸ That lesson, in effect, broached a compromise reshaping the role of judge and judiciary. As the compromise shook out, judges were held apart from the electoral branches, not only to depoliticize them, but also to render them less threatening to elected-branch unity. The concepts of judicial independence and political neutrality were conflated. Judges were to take on a countenance of detachment and neutrality and were stripped of their representative purpose.Footnote ⁹⁹ If the acquittal suggests the decay of republicanism as an underlying political principle, namely that oppositional views were perhaps legitimate to the extent that they were considered unavoidable and should not be suppressed, they could still be legitimately expressed only in certain settings.

III. a. Unease with Opposition and Jacksonian Views of Judicial Authority

Just as Jefferson's anti-judicial hostility is often summarized by his characterization of judges as “sappers and miners,” Jackson's hostility toward the judiciary is likewise summarized by his baiting of Chief Justice Marshall: “John Marshall has made his decision, now let him enforce it.”Footnote ¹⁰⁸ Scholars have used these parallel statements to connect Jacksonian and Jeffersonian positions on the courts into a unified tradition.Footnote ¹⁰⁹ Jackson's Bank Veto, which repudiated the McCulloch ruling, is taken as an emblematic Jeffersonian move. While Jackson's hostilities were more passive aggressive than Jefferson's—he tended to ignore the Court rather than attempt to dismantle and reconstruct it—they, in conjunction with congressional efforts in the late 1820s to repeal Section 25 of the 1789 Judiciary Act, create a sense that Jackson and his supporters were “vigorous critics of the federal judiciary.”Footnote ¹¹⁰

This characterization comports with the portrayal of Jackson's election as a trigger of realignment, just as Jefferson's election also is taken to have indicated realignment. Actions that broadly undermine judges of the old regime are taken to signify the larger dynamic of change heralded by the critical election of 1828.Footnote ¹¹¹ Still, Jackson's position on the judiciary is never so clear-cut. Much is lost if we collapse differences between Jefferson and Jackson on the judiciary and view that position as a cyclical pattern of eternal recurrence. Jackson called the authority of the Court into question, but he did not go as far as Jefferson. Jackson did not support the doctrine of nullification that Jefferson hinted at in his Kentucky Resolution. Furthermore, Van Buren justified Jackson's relationship with the judiciary not only through the constitutional logic of presidential power—as Jefferson had in his letter to Adams—but through the extra-constitutional logic of the president as the leader of a permanent political party.

Jackson, like Jefferson, was no ardent foe of judicial review.Footnote ¹¹² That Jackson never supported the effort to repeal Section 25, that he sustained the legitimacy of judicial review against South Carolina's nullification doctrine, and that there is no evidence of his supporting other anti-judicial legislation, which included measures limiting judicial tenure and requiring bench unanimity on constitutional questions, indicate that the standard take on Jackson as maintaining a Jeffersonian anti-judicial tradition goes too far.Footnote ¹¹³ Attention to perspectives on opposition and party help explain why this characterization misses the mark.

Jackson's response to the nullification crisis attested to his support for judicial review. South Carolinian protest of the tariffs of 1828 and 1832 emphasized the claim that states could reject federal law. They revived the themes of the Kentucky Resolution as well as rehashed an argument against the 1789 Judiciary Act's Section 25, which established Supreme Court review of state court decisions. In a message to Congress, Jackson rejected nullification; he argued that state governments had no authority to reject federal law except by seeking redress through federal courts. The alternative was tantamount to supporting disunion. He took note of South Carolina's failure to use available legal channels; that state “has not only not appealed in her own name to those tribunals under the Constitution and the laws of the Untied States but has endeavored to frustrate their proper action on her citizens by drawing cognizance of cases under the revenue laws to her tribunals.”Footnote ¹¹⁴

By referring South Carolina's grievance to the judiciary, Jackson supported a federal judicial role in reviewing state legislation. Therefore, Jackson's position toward judicial power cannot be credibly characterized as pure Jeffersonian redux. Still, the puzzle remains: if the judiciary was the proper branch in this case, why would Jackson ignore McCulloch and articulate in his veto of the national bank recharter bill a constitutional theory weakening judicial precedent? Why would Jackson refer South Carolina to the Court in 1833, implying that that outcome would be legitimate, but hold that when Maryland went before the Court in 1819, that outcome was not so?

Opportunistic flip-flopping is one answer. Perhaps Jackson sought to hold together his fragile coalition or aggrandize presidential power and doing so required supporting judicial authority in some circumstances and denying it others.Footnote ¹¹⁵ This explanation, although plausible, is decontextualized. It ignores evidence of Jackson's skepticism of opposition. Jackson shared the Founding generation's republican aspirations toward civic tranquility defined by its “demand for internal unity, social solidarity, and virtue.” This gave it “utopian dimensions.”Footnote ¹¹⁶ He was not an early supporter of Van Buren's idea of a permanent political party; he still clung to the notion of party as a harbinger of civic instability.Footnote ¹¹⁷ His depiction of supporters of nullification brings this underdeveloped sense of legitimate opposition to the fore. He renounced them as conspiratorial demagogues, as “unprincipled men who would rather rule in hell, that subordinate in heaven.”Footnote ¹¹⁸ Their “wickedness, madness, and folly … has not its paralel [sic] in the history of the world.”Footnote ¹¹⁹ Their leader, John Calhoun, was motivated by “unholy ambition.”Footnote ¹²⁰ This language demonstrates all the markers of what Robert Burt has referred to as the Framers' search for “political unanimity,” which “was not simply rhetorical” and which “meant much more than grudging or temporary acquiescence by the losers.”Footnote ¹²¹ Jackson carried the Framers' “belief that all social conflict was polarized dispute.”Footnote ¹²² The republic's early politics operated under ideas linking opposition to instability, and Jackson's thought was structured by these assumptions.Footnote ¹²³

Nullification undermined federal supremacy. The doctrine not only curtailed federal judicial power, but also, and more generally, would limit federal government's ability to maintain a semblance of legal uniformity among the states. More pointedly, the doctrine (as well as the contemporaneous efforts to repeal Section 25 of the 1789 Judiciary Act) laid bare the idea that opposition was intent on undermining the Constitution. Both nullification and the repeal effort would reset federal-state relations to a situation akin to that which prevailed under the failed Articles of Confederation. Thus, Jackson's incongruous positions of sometimes supporting and sometimes undermining judicial legitimacy can be made congruous by taking note of the republican desire to protect the Constitution from opposition, particularly on the question of maintaining a balance of federal and state power. On the question of a national bank's constitutionality, the Court claimed an unconstitutional level of federal power at the expense of the states. On the nullification doctrine, South Carolina claimed a degree of state power that threatened national unity. Moreover, on the Cherokee matter, the Court denied the legitimate state authority to regulate the liberties of its residents.Footnote ¹²⁴

Martin Van Buren's explanation of Jackson's position toward judicial power is distinct from the constitutional claims made by both Jefferson and Jackson. This difference stems from Van Buren's position toward opposition politics and the purpose of political parties. As the next section explains, rather than ground presidential authority to interpret the Constitution in the framework of separation of powers, as Jefferson and Jackson had done, Van Buren went outside the Madisonian architecture. He positioned Jackson's authority as not only drawing on his executive position, but also on his popular authority, that is, on his position as party leader. Van Buren's explicit focus on political party as the basis for interpretive authority indicates a new development in ideas about the purpose of parties, on views toward stable opposition as it gains shape through parties, and on judicial power as it may represent an entrenched opposition.

III. b. Van Buren's Democratic Party as Permanent Constitutional Majority

If Jackson's perspective on opposition hearkens back to that held by many of the Founders, Van Buren's ideas present an epistemological break. Van Buren is an important figure in the development of party politics in the United States. His writings shed light on the developmental connections among changing ideas about the threat posed by opposition, the purpose of party, and the logic of confronting, ignoring, or otherwise manipulating the judiciary. He was recognized in his own time and by subsequent generations of historians as the founder of the Democratic Party. He has been called one of “the organizers/managers of American political life … who earned their way by their ability to conceptualize, establish, and run the machinery of politics and governing … [and who] took the lead among his contemporaries in remolding the political order …”Footnote ¹²⁵

Van Buren is also considered the founder of modern American competitive party politics. He has been described as the “one individual [who] can be accorded the distinction of establishing permanent party competition in the United States … [and who] viewed party competition as a new ‘institution’ in the constitutional system that could help eliminate personal factionalism, manage electoral conflict, and prevent presidential elections from being decided by the House under the widely distrusted auxiliary plan.”Footnote ¹²⁶ This depiction ascribes to Van Buren an intention to create two parties battling over policy within an agreed constitutional context.Footnote ¹²⁷ Richard Hofstadter advanced this thesis when he characterized Democrats as “less fixed in their view of issues, considerably less ideological” than their predecessors.Footnote ¹²⁸ Van Buren allegedly had a sensibility that moved past the Founders' “paranoid” politics of high constitutional stakes.Footnote ¹²⁹

Van Buren did aim to maintain a party, which he referred to as the “Democracy.” He disparaged President James Monroe for undermining the unity that had marked later Jefferson's and Madison's administrations. By abandoning party divisions, Monroe was “doing openly all that a man … could be expected to do to promote the amalgamation of parties and the overthrow of that exclusive and towering supremacy which the republican party had for many years maintained in our national councils.”Footnote ¹³⁰ Van Buren blamed the collapse of Jeffersonian dominance on Monroe's decisions to bring Federalists into his cabinet and to support aristocratic Hamiltonian fiscal policies.Footnote ¹³¹ Nevertheless, Van Buren considered opposition to be less threatening than many of the Founders had. For example, in an 1839 speech, he stated, “The constitution of man, and the nature of public questions … render a diversity of views … almost a moral necessity; and the conflict which such a division of sentiment invites, when it is divested of personal malignity, is by no means a public evil.”Footnote ¹³² So, opposition was a natural state of affairs. Still, acknowledging the naturalness of opposition is not the same as a clear intent to establish a permanent competitive two-party system with expectations of rotation in power among loyal, if opposing, factions.

Van Buren's wariness toward a stable opposition capable of periodically winning power is evident in his constructions of political history. For Van Buren, history was a static narrative of a permanent majority defending the Constitution against an aristocratic minority seeking to undermine it.Footnote ¹³³ This division characterized the Revolution, the constitutional ratification debate, and all of the 1790s.Footnote ¹³⁴ Whereas some politicians attributed the Federalist-Jeffersonian divide “to causes which had either become obsolete, or been compromised by mutual concession—such as the early difficulties growing out of our relations with Great Britain and France, the expediency of a navy, or similar questions,” Van Buren contended that it centered on support for the Constitution and thus remained fundamental and perpetual. Federalists and Whigs, which Van Buren referred to collectively as Hamiltonian, aimed “to absorb … all power from its legitimate sources, and to condense it in a single head”; anti-Federalists, Jeffersonians, and Democrats were “laboring as assiduously to resist the encroachments, and limit the extent of executive authority.”Footnote ¹³⁵

Although Federalists won popular assent to the Constitution, anti-Federalism, according to Van Buren, had always been the sentiment of the majority. If Federalism meant vigilance against consolidation of national power, then a “signal perversion of the true relations between party names and party objects” had developed.Footnote ¹³⁶ Federalism misrepresented itself. The “true federalists” were “a single misnomer … immediately after called anti-federalists.”Footnote ¹³⁷ Federalism was disloyal to the extent that, in Van Buren's words, its “influential and leading men forgot that the administration did not, in point of fact, represent the political opinions in respect to the proper uses and spirit of governments in general of a majority of the people.”Footnote ¹³⁸ This perversion was made manifest in the promotion of Hamilton's fiscal policy through undemocratic mechanisms, particularly by turning to the Court.Footnote ¹³⁹ Van Buren held that Federalist constitutional claims had “been adjudged erroneous and unjust by the judges in the last resort—the people themselves.”Footnote ¹⁴⁰

Even as Van Buren conceded the inevitability of stable and perpetual opposition, potential rule by this aristocratic Hamiltonian minority epitomized constitutional collapse. When he made this claim, Van Buren's civic republican assumptions are at their most transparent. He criticized the “old Federal party and its successors for their persevering efforts to destroy the balances of the Constitution.”Footnote ¹⁴¹ Hamiltonian policy positions, therefore, represented the interests of a permanent aristocratic minority always defined as anti-constitutional. Hamilton “designedly gave it [the Constitution] construction, in cases where he deemed that course necessary to the public interest, in opposition to what he knew to have been the intentions of the Convention.”Footnote ¹⁴² For Van Buren, the policy disputes of the 1790s were illustrative:

Political conflict could not be based on policy conflicts within an agreed constitutional framework because Hamilton had turned against that framework. Partisan debate could not be on “evanescent measures” in which adherence might shift among multiple fluid factions. That vision was the “halcyon” dream precluded by entrenched opposition.

In short, although opposition could not be eliminated, it remained anti-constitutional in nature. It remained a harbinger of civic instability. Van Buren's remedy was different than Madison's and Jefferson's. Van Buren did not entertain Jefferson's hope of “consolidate[ing] the nation once more into a single mass, in sentiment …” and thereby eradicate divisions.Footnote ¹⁴⁴ Like Madison, Van Buren contended that opposition could be managed, but Van Buren's management solutions were fundamentally different from Madison's.Footnote ¹⁴⁵ According to Van Buren, Madison's solution of separating powers failed to guard against aristocratic corruption and denial of the popular will. Nowhere was this clearer than in the election of 1824 in which the people were denied their choice.Footnote ¹⁴⁶

Even as Jackson gained a plurality of the popular vote, the House selected Quincy Adams, who Van Buren considered to be part of the aristocratic minority inclined to manipulate the Constitution to support consolidating power with the national government. Thus, for Van Buren the Madisonian system failed to guard against corruption—expressed in the House selection—of the aristocratic minority faction. The election of 1824 provided Van Buren with the opportunity to reconceptualize the source of and solution to political corruption; it provided the opportunity for an entrepreneurial reformulation of the meaning of party such that a permanent party was now needed to secure the Constitution.Footnote ¹⁴⁷ Leonard argued, “[P]oliticians could not just state the obvious: that organization of party was an effective way to advance an agenda. Everyone knew that; yet, party remained out of bounds as ultimately inconsistent with popular sovereignty and confederated government.”Footnote ¹⁴⁸ Party's meaning had to be transformed given new realities, that is, the persistence of an aristocratic corrupt minority.

For Van Buren, his Democracy and the Hamiltonian faction were not two equivalent parties espousing different, but valid interpretations of the Constitution. Their interpretations could not be equally legitimate if one was nothing but the agenda of a permanent aristocratic minority faction. For Van Buren, Federalists and Whigs were merely “[c]onstructed principally of a network of special interests” and “the policy of their leaders has been from the beginning to discountenance and explode all usages or plans designed to secure party unity, so essential to their opponents and substantially unnecessary to themselves.”Footnote ¹⁴⁹ Federalist policies “rested upon substantial principles,” a phrase that Van Buren used derisively to indicate the support of substantive ends regardless of the procedures used to achieve them.Footnote ¹⁵⁰ The Democracy lacked “substantive” policy aims, seeking only to promote the proceduralism of states' rights and popular sovereignty through the mechanism of majority rule. Since the Democracy did not espouse substantive ends, Van Buren maintained that it could not resort to the demagogic persuasive impulses of the aristocratic faction.

The minority was “desirous to bring every usage or plan designed to secure party unity into disrepute with the people” and to be so hypocritical as “to have adopted it themselves” when “they have found such usage too strong to be overthrown for the time being … only to return to their denunciation of it after every defeat.”Footnote ¹⁵¹ So, Van Buren not only defined the opposition as not a party equal in stature and aim as his Democracy, but also by the terms of civic republican antipartyism. Hamiltonianism, Federalism, and Whiggery, all of which Van Buren considered the same, were nothing more than a faction succumbing to personal glory and seeking particular outcomes at the expense of democratic procedures.Footnote ¹⁵² Precisely because Van Buren's Democracy represented the abstract commitments of the Constitution, it needed institutional mechanisms—the caucus, the platform, and so on—to ensure that personality was subservient to party; the platform, not the candidate, would matter.Footnote ¹⁵³

In summary, by defining opposition in static terms and by linking the majority with constitutionalism, Van Buren reworked the Founders' fear of the permanent party. Party was no longer the cause of civil strive and constitutional collapse but the means to civic stability. Party functioned to this end because it was, for Van Buren, the institutional embodiment of the Constitution's procedural commitments. It espoused the principle of states' rights, which Van Buren set against the consolidationist aims of the aristocratic minority. It would operate under a set of democratic rules, for example, a convention and nomination system organized by majority rule.

Therefore, Van Buren's tolerance for opposition should not be conflated with an intention to establish a two-party system that conceded loyal opposition. His notion of the purpose of party and his idea of opposition as natural and unavoidable does move beyond most of the Founding generation. Still, his language justifying his institutional innovation reveals the extent to which he remained steeped in republican apprehension of opposition and concerns about civic instability.Footnote ¹⁵⁴

III. c. Van Buren's Party-based Justification of Jackson's Relations with the Judiciary

If politicians fear opposition as a harbinger of civil strife and maintain that it could be successfully suppressed if not eliminated entirely, and if opposition is entrenched in the judiciary, then one would expect tactics that broadly undermine judicial authority. Hence, the more extreme Jeffersonians sought a wide definition of impeachment for Federalist judges and justices even after the Supreme Court acquiesced to Jeffersonian demands. If, however, opposition were considered a permanent character of the political landscape yet also considered manageable—as Van Buren stipulated—then more passive measures, such as ignoring judicial rulings by that opposition, might be a preferred approach until that opposition could be replaced.

Because Van Buren's Democracy, by definition, was synonymous with the Constitution and always represented the majority, judges whose rulings supported Hamiltonian or opposition principles undermined constitutional commitments. In Van Buren's framework, these judges would necessarily be members of the aristocratic faction supporting particular substantive policy aims at odds with the Constitution. However, if the judiciary were brought into alignment by nominating members of the constitutional party, then judicial interpretation would maintain the Constitution as much as extra-judicial power. Unitary leadership would be achieved. In effect, Van Buren set his single constitutional party above the federal branches as a defender of the Constitution, which made strategic sense if realities on the ground demonstrated the branches to be susceptible to political corruption.

With this understanding of how Van Buren linked together his party with the Constitution and civic stability, his justification of Jackson's veto of the recharter of the national bank can now be read as neither opportunistic nor promoting executive supremacy. Instead, it flows from his conception of Jackson's unique role as a leader of the permanent constitutional majority, as leader of the Democratic Party. The Bank Veto struck down legislation, and was, in its most immediate form, a conflict with Congress. However, when Jackson vetoed the Bank bill, he did not restrain himself to policy-based objections enunciated earlier by Madison's veto of the Bank.Footnote ¹⁵⁵ Instead, he made a constitutional claim, viewing the Bank question not as a matter of fiscal policy but of constitutional meaning, thereby calling into question the bounds of legitimate judicial authority. Van Buren contended the constitutional claim was justified, as he saw the Bank as a tool of the aristocratic Hamiltonian minority. As an institutional form, the Bank violated Democratic Party principles and, what were synonymous, the Constitution's own principles.Footnote ¹⁵⁶

In his veto, Jackson countered the determinacy of judicial interpretation: “The opinion of the judges has no more authority over Congress than the opinion of Congress have over the judges, and on that point the President is independent of both.”Footnote ¹⁵⁷ This assertion follows from Jackson's claim that “each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”Footnote ¹⁵⁸ Jackson wrote, “[I]t is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this I cannot assent.”Footnote ¹⁵⁹ Jackson's distinction between legislative and judicial precedent suggests a more robust understanding of each branch as engaged in constitutional interpretation. However, it also suggests that judicial power per se was not the direct or only target of the veto.

Rather, the direct target was consolidation of power in the hands of the federal government and a particular manifestation of that consolidation as Hamiltonian fiscal policy. That policy, in Jackson's view, not only threatened the balance of federal and state power, but had also been advocated by an aristocratic minority. The president, as representative of the Democracy, was obligated to oppose it. The logic paralleled that offered by Marshall in Marbury v. Madison and Jackson's own logic underlying his reaction to Worcester v. Georgia. Just as the Court must not abet what it considered an unconstitutional act thereby forcing it to commit a necessarily unconstitutional act, the president must not either.

Jackson's language is Jeffersonian, and Senator Daniel Webster criticized that laying responsibility for constitutional interpretation in so many hands would create chaos: “If the opinions of the President be maintained, there is an end of all law and all judicial authority.”Footnote ¹⁶⁰ In his rebuttal, Webster devoted three pages to judicial authority to interpret the Constitution and seventeen pages on legislative precedent.Footnote ¹⁶¹ His speech reveals that Congress too made a constitutional claim: the Bank had been agreed to by both chambers of Congress, the Court, and former presidents.

Quoting Webster in his Inquiry, Van Buren saw the senator as conceding that constitutional interpretation was not the sole province of the judiciary.Footnote ¹⁶³ For Van Buren, Webster agreed that Jackson could and did interpret the Constitution: “That in all this [Jackson] was perfectly right, it will be seen even Mr. Webster, latitudinarian as he was, did not venture to controvert.”Footnote ¹⁶⁴

According to Van Buren, Jackson's interpretive authority did not negate judicial review; it did guard against judicial supremacy. The courts would interpret law, but Jackson could not allow a ruling to have ultimate authority when determining “the true meaning of a doubtful clause of the Constitution.”Footnote ¹⁶⁵ For Van Buren, that power resided with the popular majority, which he defined as always synonymous with the Democracy. As such Van Buren quoted Senator White's defense of the veto: “Each of the departments is the agent of the people … and where there is disagreement as to the extent of these powers, the people themselves, through the ballot-boxes, must settle it.”Footnote ¹⁶⁶ Van Buren praised this statement as “the true view of the Constitution” and the perspective of “the founders of the Democratic party.”Footnote ¹⁶⁷

For Van Buren, Webster's response conflated Jackson's veto with Jeffersonian ideas. However, Van Buren distinguished Jacksonian from Jeffersonian claims to constitutional interpretative authority. This distinction is evident in Van Buren's critique of the veto message as substantively correct, if intemperate and exaggerated. He noted that although it was “open to my inspection,” he had “little direct agency in its construction.”Footnote ¹⁶⁸ This caveat is important as Van Buren narrowed Jackson's seemingly Jeffersonian assertion that “each public officer” must interpret the Constitution as “he understands it.” Opponents, like Webster latched onto that phrase to undermine its legitimacy. Van Buren agreed. Still, he contended that the emphasis on Jackson's phrase amounted to “gross perversions of his message.”Footnote ¹⁶⁹ Such Jeffersonian sentiments were, according to Van Buren, merely “unguarded words.”Footnote ¹⁷⁰

So while Van Buren defended the veto by noting of the three federal branches that “they each have the right, and it is the duty of each to judge for themselves in respect to the authority and requirements of the Constitution, without being controlled or interfered with by their co-departments,” he simultaneously repudiated Jeffersonian departmentalist implications that would undermine federal supremacy.Footnote ¹⁷¹ If “each public officer” could interpret the Constitution, that meant that state legislators, state courts, and state governors were set on equal interpretative footing to authorize or construct constitutional meaning. For Van Buren, the Constitution's federal supremacy clause denied this possibility, and therein lies the constitutional interpretive distinction between Van Buren and Jefferson. The Jeffersonian claim of the Kentucky Resolution, which seemed reiterated in what Van Buren called Jackson's “unguarded words,” was “too preposterous for credulity itself to swallow.”Footnote ¹⁷² Judicial review was appropriate to maintain federal supremacy over the states.

Presidential authority and federal supremacy were connected through the political party, for Van Buren had conceptualized his party as the permanent static national majority. Like Jefferson, Van Buren grounded Jackson's authority to interpret the Constitution in the unique nature of the executive oath of office: “To single out one department from the rest by placing its incumbent under a special oath … and then to make it his duty to obey the directions of another in that very function, absolutely and unconditionally, would … be going quite as far in that direction as the character of any people for justice and wisdom could bear.”Footnote ¹⁷³ However, he went further. He grounded that authority in the unique position of the president as “the only officer, except the Vice-President, who is chosen by the whole people of the United States,” and by extension as the Democracy's leader, because that party is always the majority.Footnote ¹⁷⁴

So not only did the vertical hierarchy of federalism follow from the Constitution, but the president's position as party leader and representative of the whole Democracy set his interpretive authority above that of the state officers. The horizontal separation of powers was an altogether different matter. To deny extra-judicial interpretation and claim judicial supremacy would, for Van Buren, render the executive branch and the legislative officers as “ministerial officers only” such that they are “bound, at every important step, to look to the judiciary for guidance, and if they omit to adopt its decisions … they do so at their peril.”Footnote ¹⁷⁵ By this logic, as leader of the Democracy and as personification of those principles, Jackson was obligated to act against McCulloch, but not to claim that the president simply could interpret the Constitution as he saw fit.

According to Jackson's opponents, the President's refusal to support the Court on the Cherokee case and Bank question confirmed that he demeaned judicial power at the expense of states' rights.Footnote ¹⁷⁶ Nevertheless, Van Buren turned that argument on its head, viewing the opposition as an aristocratic faction forsaking the Constitution in a desperate attempt to secure its policy objectives through the only means available, judicial supremacy. For Van Buren, recourse to judicial supremacy followed from Hamiltonianism because only by avoiding the elected branches could the Constitution be twisted in favor of minority aims. He defined judicial supremacy as “so clearly anti-republican in its character and tendencies” that it had to be “long kept on foot under a system so truly republican as ours.” Its rationale, according to Van Buren, drew on the aristocratic distrust of democracy, which “proceeded the most tenacious of our party divisions” and which was fundamentally “an inextinguishable distrust, on the part of numerous and powerful classes, of the capacities and dispositions of the great body of their fellow-citizens[.]”Footnote ¹⁷⁷ Fundamentally, the aristocratic recourse to judicial supremacy stemmed from the dichotomous nature of politics. The minority opposition, although natural, posed a fundamental threat to the Constitution's integrity. Not only did it advocate substantive measures that the people did not support, it aimed to achieve those measures through mechanisms and means that were fundamentally undemocratic.

For Van Buren, as for Jefferson, presidential constitutional interpretation would secure the republic against an opposition if it were entrenched in another branch, but the Jeffersonian and Van Buren logics are distinct. Van Buren advocated a permanent party whereas Jefferson did not. Party would be an instrument to protect the Constitution. Van Buren's party-based presidential authority to interpret the Constitution, then, is grounded in a fundamental discomfort with opposition if the underlying assumption is that only one constitutional party should and would exist. Multiple valid interpretations of the Constitution are not contemplated.

Van Buren's assessment of Jackson's relations with the judiciary constitutes a civic republican partyism. Jackson could not, in Jeffersonian fashion, simply disagree with the Court on his own executive authority. However, he nevertheless had the right and responsibility to disagree when judicial rulings were antithetical to constitutional commitments, which Van Buren defined as synonymous with his Democracy's commitments. Jackson's authority to interpret the Constitution was channeled through his position as party leader, that is, as leader of the perpetual majority. He was charged with protecting the Constitution to combat an opposition always defined as anti-constitutional. Jackson's seemingly opportunistic positions toward judicial power were therefore unified, in Van Buren's eyes, by an underlying civic republican motivation to stamp out this threat and to maintain the Constitution against the encroachments of an aristocratic minority. Van Buren had simply institutionalized the majority as a constitutional party.

The connection between party and anti-judicial hostilities during the Jacksonian era becomes explicit when we interrogate how politicians understood the purpose of their parties in their own time. As long as the Democratic Party was considered synonymous with the majority, and the distinction between majority and minority was based on the former supporting the Constitution and the latter not supporting it, judicial rulings could be framed as fundamentally anti-constitutional and thereby threatening to civic stability. By focusing on Van Buren's underdeveloped sense of the opposition's right to rule, on his advocacy of a new institutional solution to manage that opposition, and on his inherited presumption of federal branch unity, I have identified a justification of Jackson's position toward the judiciary that is neither wholly anti-court nor purely opportunistic.

III. d. Failure to Repeal Section 25: Securing Federal Supremacy, Not Supporting the Court

During Jackson's presidency, the House took up legislation to repeal Section 25 of the 1789 Judiciary Act. Section 25 stipulated that the Supreme Court could review the decisions of state supreme courts that implicated federal law.Footnote ¹⁷⁸ The Supreme Court had adjudicated the statute's constitutionality, and it found the jurisdiction granted to be not only appropriate, but required by Article III's stipulation that the judicial power “shall be vested in one supreme court” and that that power “shall extend to all Cases … arising under this Constitution.”Footnote ¹⁷⁹ Repeal of Section 25 would not only eliminate federal review of state law that might be in conflict with federal statute, but because cases involving federal law often began in state courts, the Court would have limited ability to adjudicate the status of federal law entirely.Footnote ¹⁸⁰

The majority of the House Judiciary Committee supported its repeal.Footnote ¹⁸¹ Representative James Buchanan authored a minority report, which has been credited with significant persuasive power.Footnote ¹⁸² However, it is more likely that because the committee was overwhelmingly Southern in its composition, the majority report was unrepresentative of the broader Jacksonian coalition.Footnote ¹⁸³ Southern Jacksonians tended to be the most anti-judicial wing of that coalition. However, more so than simply anti-judiciary, these leaders tended to be concerned about the expansion of federal power at the expense of state sovereignty. Section 25 was construed as emblematic of that drive toward consolidation. As such, the failure of the repeal effort reveals more about perceptions of federal power than about deference to judicial authority or to the 1789 Judiciary Act per se.

The principle of legislatively conferred jurisdiction was sound doctrine throughout the antebellum era. Judicial authority was considered to rest on congressional assent. The Court recognized this in Wiscart v. Dauchy in 1796: “If Congress has provided no rule to regulate our proceedings, we cannot exercise appellate jurisdiction.”Footnote ¹⁸⁴ As late as 1850, Justice Grier articulated the principle that judicial power was soundly grounded in congressionally authorized jurisdiction granting: “Congress is not bound to enlarge the jurisdiction of the Federal courts to every subject, in every form which the Constitution may warrant.”Footnote ¹⁸⁵ As for jurisdiction stripping, Justice Peter Daniel emphasized in Cary v. Curtis (1845) that Congress could withhold jurisdiction if doing so “may seem proper for the public good.”Footnote ¹⁸⁶ Therefore, repealing Section 25 was procedurally consistent with congressional prerogative stipulated in Article III.Footnote ¹⁸⁷

However, by repealing that particular provision the entire logic of federal supremacy would collapse. The repeal embodied the same logic as Jefferson's Kentucky Resolution. The House Judiciary Committee's report “denied that the judicial department of the Federal Government, or all the departments of that Government conjointly, were empowered to decide finally and authoritatively, in questions of sovereignty, controversies between a State and Federal Government.”Footnote ¹⁸⁸ In other words, the report took aim at the federal government as a threat to state sovereignty, not at an allegedly countermajoritarian judiciary against the elected branches. As such, repealing Section 25 would severely limit federal authority over the states, with potential implications of weakening congressional authority as much as federal judicial authority. Therefore, the repeal effort's failure can be explained without referencing a normative desire to secure the design of the Founding generation or a normative desire to defer to judicial authority more generally.Footnote ¹⁸⁹ Most members of Congress would tend not be interested in curtailing their own power.Footnote ¹⁹⁰

III. e. Jacksonian Bench Expansion: Party Appointment, Not Partisan Appointment

Jackson signed onto increasing the Supreme Court bench from seven to nine justices in March of 1837, just before Van Buren took office.Footnote ¹⁹¹ Counterfactually, Jackson could have supported the primary alternative to the bench expansion, which had been debated extensively in Congress since at least 1826, namely downsizing the Supreme Court and divorcing Justices from circuit-riding responsibilities with a corresponding new layer of federal courts. However, adding more justices did the least to disturb the existing structure. It is likely that as the first Western president, Jackson wanted to resolve quickly and before he left office the matter of judicial coverage to those Western states lacking full access. Furthermore, the alternative was tainted by its resemblance to the Judiciary Act of 1801, passed at the end of John Adams' term. Also, expanding the Supreme Court bench no longer carried with it the possibility of an entrenched opposition. By 1837, Jacksonians held the presidency, the Senate, and the House of Representatives. Van Buren could contend that his constitutional party had wrested control of the federal government from the aristocratic minority. Party discipline achieved unified federal government.

Given Jacksonian assumptions—evident in Van Buren's writings—about the opposition's right to rule, the stability of the Constitution, and aspirations toward regime unity, it would be a mistake to consider the Judiciary Act of 1837 a strategic attempt to pack the Court with partisan supporters. The act did not aim to achieve partisan entrenchment in the judiciary as we might define the concept in the contemporary sense, but “party appointment” within Van Buren's framework that conflated majority and party.Footnote ¹⁹² This distinction is important. As long as the “Democracy” remained in control—which it would, according to Van Buren, through his various innovations and which it must because the opposition was by definition a minority faction—bench expansion could not turn constitutional interpretation toward the aspirations of the Hamiltonian minority. By the framework of Van Buren's party theory—which rested on the twin presumptions that the federal branches would remain unified and that the minority would not regain the reigns of power if party discipline were sustained—judicial power in and of itself posed no clear threat to popular sovereignty or states' rights. Party unity would secure appointment of judges who adhered to those principles. Van Buren contended that he had found the institutional solution to manage opposition, to maintain the government in the hands of the constitutional majority, and to achieve the presumption and aspiration that stemmed from republican ideals, namely unity among the federal branches.

If in 1805 judicial independence as political neutrality was a second-best solution, by 1837, under the assumption that the permanent party would eliminate opposition from governance, federal branch unity could be achieved. The three branches would thereby constitute the dream of unified constitutional leadership instead of division between an entrenched minority aristocratic faction and a majority constitutional party. John Calhoun conceded this unitary objective in his battle against federal consolidation: “judges are, in fact, as truly the judicial representatives of this united majority, as the majority of Congress itself.”Footnote ¹⁹³ Judges and elected branches were aligned. For Calhoun, who advocated both repeal of Section 25 and nullification, this view of the branches was troubling; for Van Buren, it was the realization of stability that eluded the Jeffersonians.

III. f. Judges as Disloyal Opposition: Van Buren on the Dred Scott Case

By Van Buren's logic, if judges were adherents to the principles of the Democracy, their rulings would pose no threat to the Constitution. Judicial power per se was not the cause for concern. Opposition in the judiciary was. Party discipline had minimized the threat. Ultimately, to Van Buren's dismay, even getting judges on the Supreme Court bench did not succeed in eliminating the aristocratic minority faction from a seat within governance. However, Van Buren maintained that this result was not because his ideas were flawed. Rather, he contended that the judges appointed turned out to be clandestine Federalists, members of the aristocratic minority who had long hid their true proclivities. Nowhere is Van Buren's frustration clearer than in his interpretation of Chief Justice Taney's ruling in the Dred Scott case.

Van Buren concurred in Chief Justice Taney's interpretation that the Founders never meant to extend citizenship to individuals of African descent, but Taney went too far.Footnote ¹⁹⁴ According to Van Buren, the chief justice could have ruled against Dred Scott's claim by arguing that while Mr. Scott had traveled to federal free territory, as defined by the Northwest Ordinance, by returning to the slave state of Missouri he essentially re-enslaved himself. However, Taney's ruling reached beyond this narrow—if still morally reprehensible—construction to declare that states could not define the bounds and terms of citizenship.

According to Taney, “It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution introduce a new member into the political community created by the Constitution of the United States.”Footnote ¹⁹⁵ Taney distinguished between state citizenship and national citizenship. National citizenship, based on the privileges and immunities clause, was quite broad for Taney. No citizen of one state could be denied the privileges and immunities if they resided in another. However, the status of blacks could not fit within this paradigm. It did not make sense, according to Taney, that representatives of slave states during the Constitutional Convention would have intended to provide rights to blacks at a national level that they would simultaneously deny them within the boundaries of their own states.Footnote ¹⁹⁶ He relied on the constitutional ban on the international slave trade in 1808 and on the clause stipulating the return of property to illustrate that “the negro class” was considered “a separate class of persons … not regarded as a portion of the people or citizens of the Government then formed.” Therefore, regarding the privileges and immunities clause, “it is impossible to believe that these rights and privileges were intended to be extended to them.”Footnote ¹⁹⁷ Put differently, according to Taney, not only were blacks not historically citizens, but no state could confer citizenship status on them. Doing so would imply coverage by the privileges and immunities clause. Intent to provide such coverage was implausible given the existence of slave states. If blacks were not citizens at the time of the Founding, they could never be citizens because no state had the authority to alter the boundaries of national political community established by the Constitution, and state citizenship of blacks would have that effect by virtue of the privileges and immunities clause.

Denying states the right to determine citizenship status was the ruling's real violence according to Van Buren. Taney had rejected the fundamental principle of states' rights underlying the Democracy and thus underlying the Constitution. The chief justice denied the states' sovereign right to engage in majoritarian processes to determine whether it would allow slavery within its borders. In theory, Taney's ruling decimated the logic of states' rights, popular sovereignty, and majority rule. In practice, it invalidated the Kansas-Nebraska Act of 1854, which allowed states to rely on mechanisms of popular sovereignty to determine their slave or free status.

For Van Buren, the Kansas-Nebraska Act was not just another attempt by Congress at a policy compromise to avoid the slavery question. It was instead the ultimate expression of Democratic procedural majoritarianism and thus the embodiment of the Democratic Party's key principle.Footnote ¹⁹⁸ By denying the constitutional legitimacy of the majoritarian processes agreed to by Congress, Taney abandoned the fundamental principles of Van Buren's Democracy. In the context of this betrayal, Van Buren saw the downfall of his party:

For Van Buren, Taney, a Democrat, had turned on the Constitution just as Hamilton had earlier done so. How could Van Buren explain this invalidation of a congressional measure given that Taney was appointed by Jackson? Van Buren fell back on the republican construction of opposition as a constitutional threat. The answer was that Taney had always been a Federalist.Footnote ²⁰⁰

Van Buren went to great lengths to illustrate Taney's Federalist leanings noting, “He had occupied a distinguished place in the Federal ranks to an advanced period in his professional life.”Footnote ²⁰¹ He characterized the judiciary, by its very construction, as supportive of sentiments that tend to aristocratic Hamiltonianism. It would be unreasonable, posited Van Buren, to expect Taney to be “insensible to the esprit du corps which had long prevailed in and around that high tribunal” and which Van Buren ascribes to Marshall's long tenure.Footnote ²⁰² Taney extended himself in an unnecessary and illegitimate direction by asserting judicial supremacy: “To add a deeper shade to this trespass upon the time-honored creed of the Democratic party, the anti-Democratic doctrine was conveyed to the public in a form professing to be a necessary adjudication in the regular course of the administration of justice, whilst it is … an extrajudicial opinion, voluntarily and not necessarily delivered …”Footnote ²⁰³ Taney, Marshall, and Hamilton were all part of an aristocratic minority hell-bent on undoing the Constitution.

As for President Buchanan's support for the Dred Scott ruling, Van Buren simply characterized the president as not a true Democrat as well: “For the first time since [the party's] ascent to power in the Federal Government, two of the three great departments, the Executive and the Judicial, are presided over by gentleman who … had not been bred in its ranks but joined them at comparatively advanced periods in their lives, and with opinions formed and matured in an antagonistic school.”Footnote ²⁰⁴ Although Buchanan had been a Federalist in the early years of the century, his support for killing the national bank placed him firmly in the Jacksonian majority.Footnote ²⁰⁵ However, Van Buren clung to Buchanan's repudiated past association. Assertions or actions by party members contradicting core Democratic principles could only be understood as anti-constitutional; they must be members of the permanent minority opposition. Van Buren did not recognize Buchanan's strategic deference to Taney as a means to avoid accountability. His party theory obstructed him from doing so; it only indicated that Buchanan was a member of the minority opposition.Footnote ²⁰⁶ So, Van Buren embraced multiple sources of constitutional interpretation—president, Court, Congress, and party (although not the states)—but the legitimacy of only one.

Thus, for Van Buren, the cause of civil unrest in the 1850s was not that the slavery issue was politically untenable, but that Federalist Taney invalidated the political resolutions and that the Federalist Buchanan had supported him in doing so. Moreover, just as he denigrated members of Monroe's cabinet, Van Buren now disparaged those in Buchanan's cabinet as not true party members only “profess[ing] to belong to the Democratic party until after their appointment and election to their present posts.”Footnote ²⁰⁷ Van Buren was boxed into a corner by the parameters of his own civic republican distrust of political opposition. In other words, once Buchanan and Taney embraced principles of the minority opposition they began to unravel the union.