Mr. President (38 page)

Except judges who had been appointed for life. These were “irremovable” by direct acts, Jefferson conceded, but that did not prevent him from removing them indirectly. During the eight-month interlude between the inauguration and the first session of the Seventh Congress, Jefferson and the Republicans plotted a multipronged attack on the Federalist-controlled judiciary.

First, Jefferson removed Federalist marshals and court attorneys who had been “packing juries and prosecuting their fellow citizens with bitterness of party hatred.” While he couldn’t touch the judges, he could redirect the “executive” arm of the courts. He could also withhold a handful of commissions to Adams’s “midnight” appointees that had slipped through the cracks and never been delivered, a move that led to the landmark case
Marbury v. Madison
discussed on
this page
.
¹⁴

Next, after Congress reconvened, it would repeal the Judiciary Act recently enacted by lame-duck Federalists. This measure increased the number of district and circuit courts, enabling Adams to grant new judgeships to Federalists, and reduced the number of seats on the Supreme Court from six to five, thereby making it less likely that Jefferson would be able to appoint a justice of his persuasion. Repealing the Judiciary Act was perfectly legal, Republicans argued. If the Constitution allowed Congress to “ordain and establish” new courts, it also permitted Congress to abolish them.

Third, to postpone legal challenges they expected from Federalists, the Republican Congress canceled two sessions of the Supreme Court. By the time the Court met again early in 1803, the Judiciary Act would already have been repealed and the new courts abolished.

Finally, Republicans vowed to impeach Federalist judges. To do this, they would need to show cause, and as the other assaults progressed, they eyed likely targets.

President Jefferson had his hand in all of this. In his first State of the Union address, he called Congress’s attention to “the judiciary system of the United States, and especially that portion of it recently erected.” Nobody could mistake the reference to the Judiciary Act of 1801. Were new courts really needed? He had gathered lists of the courts’ business, which he “now lay before Congress” so members could judge for themselves whether the expansion was necessary. Clearly, he believed it was not, but he let the data speak for itself.
¹⁵

Meanwhile, he worked with Republicans in both houses of Congress to craft a repeal and strategize for pushing it through. This would be the featured battle in “our winter campaign,” as Jefferson phrased it: “the suppression of useless offices, and lopping off the parasitical plant engrafted at the last session on the judiciary body.” Today, we expect the president to take a leadership role in drafting legislation, but this was not what the framers had envisioned, and it was what Anti-Federalists
had feared. Indeed, Hamilton’s participation in the legislative process had been one of the triggers to the formation of an opposition party, and a cornerstone of the Republican platform was to limit executive interference with the people’s direct representatives. Consequently, Jefferson had vowed not to interfere with Congress, and openly he did not, but starting with the campaign to repeal the Federalists’ Judiciary Act, and continuing through his two terms in office, he bonded closely with congressional party leaders to enact his agenda. Federalists noted this with disdain. “The Executive as completely rules both Houses of Congress as Bonaparte rules the people of France,” complained the Massachusetts congressman Manasseh Cutler as debate on the repeal neared conclusion.
¹⁶

Repeal of the Judiciary Act passed the Republican-dominated House handily, but in the Senate the razor-thin Republican majority temporarily disappeared when two senators reported absent due to illness. The task of introducing and managing the bill fell to John Breckinridge, who had ushered Jefferson’s resolutions opposing the Alien and Sedition Acts through the Kentucky legislature three years earlier. Opposition to repeal was led in part by one of the Senate’s most recent members, Gouverneur Morris.

Morris was staging a comeback of sorts after a twelve-year absence from domestic politics. He had sat out the ratification debates, calling them only half-jokingly a “dull subject.” In 1789, to further the business interests of Robert Morris and himself, he traveled to France, just in time to take in the first phase of that nation’s Revolution. Washington then asked him to perform a diplomatic task in Britain, which he did, and after returning to France, on the morning of December 6, 1791, Gouverneur Morris brashly completed his trilogy of constitutions—the first one for New York, the next for the United States, and this one for a Continental European giant clearly in need of some guidance. Adjusting for the change in venue, Morris’s French constitution, unlike those he helped author in America, featured a hereditary monarch; “the proper form of government” for any state, he wrote, depended on “the habits and manners of its citizens.” Morris’s weak attempt to salvage the French monarchy got nowhere, but he soon learned that President Washington had appointed him to serve as minister to France. Over and above the objections of French sympathizers such as Jefferson and Monroe, the Senate approved the appointment. As
minister, Morris did not shy from dealing with the new revolutionary government, but simultaneously he sheltered refugee aristocrats and tried to help the royal family escape. In 1794, French revolutionary officials demanded his recall, and he spent the next four years touring Europe. After that he returned to his original home at Morrisania, delivered New York’s official eulogy to President Washington, and early in 1800 was appointed by the state legislature to fill the remaining term of the U.S. senator James Watson, who resigned to accept one of John Adams’s lame-duck appointments.
¹⁷

Reentering the political fray, Morris found himself fighting a rearguard action against a less cataclysmic “revolution” than France’s, this one merely trying to reverse the policies of the previous administration. A Federalist by temperament and philosophy, by class and business interests, and by any other measure, Morris would have to adjust whatever views he had expressed in his previous incarnation as an American statesman to reflect the political contingencies of the moment. At the Constitutional Convention in 1787, he had engineered the transfer of appointive powers from the Senate to the president, fearing that the Senate would be “subject to cabal.” Now, sitting in that body, he looked upon the Senate more favorably and the presidency, now in Republican hands, less so. On January 14, in a lengthy address opposing presidential appointive powers without consent of the Senate, he entreated senators to stay true to their constitutional mission and not repeal the Judiciary Act. “
We
, the Senate of the United States, are assembled here to save the people from their most
dangerous
enemy, to save them from themselves; to guard them against the baneful effects of their own precipitation, their passion, their misguided zeal. ’Tis for these purposes that all our Constitutional checks are devised.” To allow repeal would “plunge us all into the abyss of ruin,” he decried. “Do not, I beseech you, … commit the dignity, the harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compass and your charts into the ocean. Do not believe that its billows will waft you into port.”
¹⁸

Morris’s rhetoric, extended metaphors and all, had no effect on party-line voting. Although Vice President Aaron Burr, as president of the Senate, cast a tie-breaking vote on a procedural issue with the Federalists, no other Republican broke ranks, and when all had returned to duty, the repeal bill narrowly passed. President Jefferson signed it
into law on March 3, 1802, the last day of his first year in office. Stage one of the assault on the Federalist judiciary was completed, but it had required the expenditure of political capital. “I hope to see them [the people] again consolidated into a homogeneous mass, and the very name of party obliterated from among us,” Jefferson had written to Robert Morris two days after taking office. “I will do anything to obtain it short of abandoning the principles of the revolution.” Following his “principles,” though, had shattered the dream of unity. Federalists might have lost the battle, but their argument that Jefferson and the Republicans were attempting to destroy the Constitution by crushing the independence of the judiciary only grew stronger, galvanizing opposition to the administration. To what lengths would the ruling party now go, once “Jefferson’s measure” (as his opponents tagged the repeal) had passed?
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Among the forty-two “midnight” appointees were four men chosen for the relatively inconsequential positions of justices of the peace: William Marbury, Robert Hooe, Dennis Ramsay, and William Harper. Although John Adams had signed their commissions in the waning hours of his presidency and Secretary of State John Marshall had quickly affixed the Great Seal of the United States, James Marshall, the secretary’s brother, in his haste had failed to include them with others he delivered to the appointees. Presumably, this minor administrative oversight could be straightened out, but Jefferson, upon assuming office, refused to deliver the commissions that had already been signed and sealed. Teaming up with the Federalist Charles Lee, a former attorney general under Washington and Adams, Marbury, Hooe, Ramsay, and Harper took Jefferson’s secretary of state, James Madison, to court. Madison was required by the Judiciary Act of 1789 to hand over their commissions, they argued, but the defendant refused to produce the documents or even show up in court.

The case,
Marbury v. Madison
, was tried before the all-Federalist Supreme Court, with Chief Justice John Marshall presiding. Marshall and the associate justices faced a political dilemma. If they ruled in favor of the plaintiffs and ordered Secretary of State Madison to deliver the commissions, Jefferson would likely order Madison to disobey the Court, thereby setting up a constitutional showdown that Jefferson and the Republicans, at the height of their popularity, would win. On the
other hand, the Federalist justices did not want to bow to Republican pressure and deny the plaintiffs their rightful offices.

Having sealed the original commissions when he was secretary of state, Marshall could easily have recused himself and let the other judges struggle with the problem, but instead he conceived a masterful exit strategy. First, he explained point by point why Madison, by law, should deliver the commissions, but he stopped short of ordering him to do so. Instead, he determined that the Supreme Court was not empowered to hear the case. The Constitution, he said, gave original jurisdiction to the Supreme Court only in cases “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,” so this suit did not qualify. Further, since the Judiciary Act of 1789 had stated a case like this
should
qualify, that act was
unconstitutional
. Marshall purposely lost the battle in order to win the war. Yes, Jefferson could deny the plaintiffs their commissions, but in this and all future issues brought before it, the Supreme Court would make the final determination on the constitutionality of laws. It was certainly a bold move, and perhaps it was not even “constitutional,” since nowhere in the Constitution is the Supreme Court granted the explicit authority to make such a determination, but Marshall’s prevailing opinion in
Marbury v. Madison
has withstood the test of time and become a central canon of our legal system.

Today, in our texts, we treat Marshall’s decision in
Marbury v. Madison
as establishing what we call judicial review, but historically the matter was not so cut-and-dried. Although Marshall headed the Court for another third of a century, he never again overturned federal law. President Jefferson, meanwhile, refused to accept Marshall’s pronouncement. True, he did not directly challenge the decision, which technically ruled in the administration’s favor by dismissing the plaintiff’s case, but privately he fumed. To Abigail Adams, eighteen months after
Marbury v. Madison
was concluded, he wrote, “The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also, in their spheres, would make the judiciary a despotic branch.” A key word here is “would”; for Jefferson, the matter was by no means settled. The notion that the judiciary could interfere with an action of the executive department seemed a clear violation of the basic principle of independent branches, which
he had long espoused and the Constitution, he thought, had incorporated. The president, duly elected, clearly should have the final say in executive matters, not appointees from a different branch of government, while Congress itself should decide whether proposed legislation was constitutional. Each branch, Jefferson believed, must determine its own responsibility to the Constitution, subject only to the will of the people. The Constitution, after all, had required Jefferson to take an oath pledging to “preserve, protect and defend the Constitution of the United States,” and how could he do this without determining for himself what the Constitution really meant?
²⁰

Separation of powers under the Constitution was not absolute, however, and this might work in Jefferson’s favor. Federalist judges, if they overreached their authority, could potentially be impeached. Although the power of impeachment belonged to the legislative branch, Jefferson was the de facto leader of the party that controlled Congress, and he did not turn a blind eye to the possibility of utilizing this constitutionally approved technique for removing Federalist judges. The problem, though, was that “civil Officers of the United States” could only be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” Could Federalist judges be proven guilty on any of those counts?