The Rise of the Common Man

CHAPTER SIX FROM JEFFERSON TO JACKSON The Rise of the Common Man THE CONTRAST BETWEEN THOMAS JEFFERSON’S PRESIDENCY and the two Federalist presidencies that preceded it was as much a matter of style as of substance. Washington and Adams both believed it important to surround the presidency with an aura of grandeur and high dignity; think, for example, of Washington’s insistence on traveling in a carriage drawn by a team of impressive white horses. Such elevated self-presentation was not for the sake of leaders’ egos but instead was meant to serve an important public purpose. But it troubled those of a more republican sensibility, who feared the infiltration of monarchical ideas and practices into the new office of the presidency. Jefferson accordingly chose to depart from his predecessors’ example. In pointed contrast with them, he decided to walk rather than ride to and from the Capitol for his inauguration, and he went on to establish a tone of low-key, unpretentious republican informality in his dress, his manners, and his way of entertaining visitors to the brand-new presidential residence known as the White House. But the Jefferson administration had its own kind of glamour. Jefferson was not an especially gifted public speaker, but he was well known for his dazzling intellect, personal magnetism, and singular charm, all which he put to effective use in intimate dinner parties at the White House with carefully chosen members of Congress, Federalist and Republican alike. On these occasions he would serve his guests the superb cuisine produced by his French chef and ply them with excellent wines, all the while engaging them in brilliant conversation, getting to know them better than they realized, and subtly working his influence on them. There was an iron fist beneath this velvet glove, however, for Jefferson was also a far more partisan figure than his predecessors. Indeed, he consciously embraced the role of party leader and, unlike Washington and Adams, appointed only men of his own party to the top cabinet positions. He excelled at this kind of strategic discipline, and over the two terms of his presidency, he enjoyed remarkable success in firmly establishing Republican dominance and putting the Federalist party out of business and on the road to extinction. Even so, despite his manifold skills, there was one area of the national government that eluded his control and remained in the hands of the Federalists: the judiciary. This was extremely frustrating to Jefferson. Like many of his AntiFederalist and Republican allies, he had a visceral dislike for judges and the exercise of judicial power and authority. The judiciary was, after all, the least democratic branch of government, deliberately insulated from the influence of political majorities and more generally from the current wishes of the people, which could often be inflamed by fleeting passions or passing circumstances. Instead, it drew its authority from the objectivity and permanence of laws and precedents that living people had little or no role in formulating or approving. And that chafed at Jefferson’s democratic sensibility. “No society,” he wrote to Madison in 1789, indicating his skepticism about the Constitution that Madison himself had largely drafted, “can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” In addition, Jefferson distrusted the tendency of judges to seek expanded influence, by using the questions before them to establish new precedents and extend their powers – or, in his colorful phrase, “to throw an anchor ahead, and grapple further hold for future advances of power” – all of it in ways designed to circumvent the will of the people as expressed in their democratic institutions. These complaints were not only abstract and philosophical. Once Jefferson became president, they became practical and immediate. He was infuriated that Adams had, in the last days of his presidency, appointed the Virginia Federalist John Marshall, a distant cousin for whom Jefferson had little personal or political use, as chief justice of the Supreme Court; and then Adams had gone on, by means of the hastily passed Judiciary Act of 1801, to create six new federal circuit courts and staff them entirely with Federalists, from the judges down to the clerks. Thanks to these rather crafty court-packing moves, the judiciary would remain a Federalist redoubt for years to come, with Marshall serving as an exceptionally commanding chief justice for an astonishing thirty-four years, until 1835. Much of the Court’s enduring influence owed to the brilliant and savvy leadership of Marshall, who was not widely read in the law and had no previous judicial experience but made up for those liabilities with his strong sense of the Court’s proper place in the constitutional order and his uncanny ability to maneuver events and cases toward the Court achieving that status. It was clear to a great many Americans after their experiences with the Alien and Sedition Acts that there needed to be some check on the executive and legislative branches, to serve as insurance against another such time when those two branches again combined to pursue an unconstitutional end or pursue a legitimate end by improper means. It seems fairly certain that the Framers had wanted for the Supreme Court to play such a role, but they failed to spell out exactly how the check would operate. Marshall succeeded in establishing just such a check, the Court’s right of judicial review, through the 1803 case of Marbury v. Madison, the first important case to come before his Court and a truly impressive example of Marshall’s skillfulness in pursuing his goals. It was a crafty decision, just the kind of judicial move that made Jefferson’s blood boil. The roots of the case involved Adams’s “midnight” appointments to the circuit courts that had so angered Jefferson. When he discovered that several of the documents commissioning justices of the peace in the District of Columbia had inadvertently not been sent out, even though they had been duly signed by Adams, Jefferson decided to hold on to them, thus effectively stopping the appointments themselves. In response, one of the appointees, William Marbury, sued for a Court order, or writ of mandamus, that would compel Madison, who served as Jefferson’s secretary of state, to deliver his commission. This situation presented Marshall with a sticky problem. If he refused to issue the order, it would avoid a collision with the new administration, but it would appear that he was kowtowing to Jefferson, a perception that would set a bad precedent, greatly damaging the prestige and independence of the Court and undermining the separation of powers, even as it deprived the judiciary of another Federalist judge. And besides, Marbury had a rather strong and substantial claim to the position, which fact made the avoidance strategy seem all the more untenable. But if Marshall agreed to issue the order to grant Marbury his commission, it was likely that Madison would ignore him, and the mood of the country, still very sour toward the Federalists, would likely back Madison up. Such a turn of events would be a disaster for the Court, because it would amount to an advertisement of the Court’s impotence and yet another way of undermining the separation of powers. What, then, was he to do? The strategy at which he arrived was ingenious. First, he argued that yes, Marbury had a right to his commission, under his reading of the thirteenth article of the Judiciary Act of 1789, which had set up the federal court system in the first place. But the article that Marbury invoked was, Marshall argued, unconstitutional. Congress could not legally grant the Supreme Court the power to issue writs of mandamus. This problem of jurisdiction in turn meant that the law Marbury was invoking was null and void and could not be used to further his claims. Marbury therefore would not be able to receive his commission. The brilliance of this solution might not be immediately apparent. But it is important to keep in mind that the work of courts, and especially courts of appeal, is built around the authority of legal precedents. And like a chess master who sacrifices his pawns to get at his opponent’s queen, Marshall sacrificed Marbury’s commission to take possession of something much larger. He in effect refrained from pursuing a small and unimportant potential Federalist gain (Marbury as a single Federalist judge) in exchange for a much larger gain: establishing a precedent that could be used again and again, because it served to underscore the independent power of the Supreme Court to rule an act of Congress unconstitutional. He gave