Thomas Jefferson, of course, and his fellow Democratic-Republicans had opposed the passage of the Alien and Sedition Acts from the very moment that they were first proposed in Congress in the summer of 1798. Indeed, it was thanks to their opposition to said acts – or, barring that, their attempts to ameliorate the worst effects thereof – that the resulting legislation was as moderate as it turned out to be. They were the ones who successfully demanded that individuals accused under the Sedition Act could argue in their defense that their statements had been true, for example. And it was owed entirely to their efforts that the terms of said act would automatically expire in 1801. But these objectives were sought during a time when the Democratic-Republicans were in opposition and would have contested just about any Federalist proposal so as to deny their rivals the barest sense of accomplishment. What of the period following the election of Thomas Jefferson to the office of President in 1800, during which time the Democratic-Republicans possessed majorities in both houses of Congress? Were Jefferson’s partisans any better than the Federalists had been when they finally got their hands on the levers of power? Did they behave like the “pillars of the temple of liberty” that Abraham Lincoln later declared them to be?
The short answer, unsurprisingly, is no,
they did not. The Adams administration, to be fair, did not leave the incoming Jefferson
and his Democratic-Republican allies in Congress much room to be magnanimous
upon their swearing-in in the spring of 1801. Infamously, by way of the
Judiciary Act of 1801, Adams had tried to pack the courts with Federalist
partisans at the last possible moment before his term expired. Granted, the
legislation in question was not as nakedly political as the Democratic-Republicans
later claimed it to be. Its main effects were to expand the number of federal
circuit courts and eliminate any requirement for Supreme Court Justices to hear
circuit court cases, both of which answered the increasingly urgent needs of
the nascent federal judiciary. But in attempting to craft a more efficient
federal judicial system wherein the Justices of the Supreme Court no longer
suffered from chronic overwork, the Federalists also inevitably created a
multitude of federal judgeships which it fell to the lame duck President to
fill. This was by design, of course, Adams having just lost his bid for
re-election to Democratic-Republican candidate Thomas Jefferson and the
Federalists accordingly seeking to create a judicial bulwark against what they
feared would be an onslaught of detrimental Jeffersonian reforms. In the
three-week period which elapsed between the passage of the act on February 13th
and Jefferson’s inauguration on March 4th, Adams accordingly set
about nominating – and the lame duck Federalist Senate set about confirming –
fifteen circuit court judges, two district court judges, and one Supreme Court
Justice. The Democratic-Republicans were understandably incensed.
In the immediate, Jefferson played at
generosity. His opponents were the ones who had behaved in a nakedly partisan
manner, trampling on the rights of the fellow Americans and abusing their authority
for the sole purpose of securing their own positions. The incoming
administration wished only for a return to the principles that had moved the
soul of every right-thinking person in the former Thirteen Colonies to give
their all during the late Revolution for the righteous cause of freedom. There
was no room for narrow party politics in such an expansive vision of America’s
purpose in the world. “We are all republicans [,]” Jefferson accordingly
affirmed in his inaugural address, “And we are all federalists.” But while the declared
intention of the Jefferson administration was at the outset to promote a kind
of national reconciliation, the leadership thereof soon proved themselves to be
as narrowly devoted to their particular partisan objectives as the Federalists
had ever been. In such instances where Democratic-Republican authority went
unchallenged – as in the federal bureaucracy, for example – individuals
appointed by the former Adams administration were allowed to keep their posts
so long as they avoided misconduct and refrained from overly partisan behavior.
But in the case of the judiciary, wherein Federalist justices were ostensibly
protected from external oversight, Jefferson went on the offensive. Not only
did the Democratic-Republicans who had taken control of Congress promptly
repeal the Judiciary Act of 1801 – thus eliminating the associated circuit
courts and nullifying the commissions of the justices that Adams appointed –
but when Supreme Court Justice Samuel Chase (1741-1811) spoke out against the
repeal during a grand jury hearing in Baltimore in the spring of 1803,
Jefferson intimated to his supporters in the House that such behavior might in
fact be grounds of impeachment. “Ought this seditious & official attack on
the principles of our constitution, and on the proceedings of a state, to go
unpunished?” he asked in a letter to Maryland Congressman Francis H. Nicholson
(1770-1817), “And to whom so pointedly as yourself will the public look for
the necessary measures?”
To once more be entirely fair to
President Jefferson and his supporters, Justice Chase had made it something of
a habit during his brief judicial career up to that point to speak from the
bench as a Federalist partisan rather than as an impartial jurist. Acting in
his capacity as a district judge in April of 1800, for example, he had rather
strenuously attacked English-born economist and political philosopher Thomas
Cooper (1759-1839) after the latter was indicted under the terms of the
Sedition Act. Later that same year, Chase refused to dismiss a grand jury that
had been summoned in New Castle, Delaware after its members declined to hand down
an indictment to a local printer by suggesting the name of another printer
which they might see their way clear to charging. And then, as aforementioned,
he complained to another grand jury in Baltimore in May of 1803 that, “The late
alteration of the federal judiciary [...] will take away all security for
property and personal liberty, and our Republican constitution will sink into a
mobocracy, the worst of all popular governments.” Clearly, though Samuel Chase
had been serving in various judicial offices since his first appointment to the
District Criminal Court in Baltimore in 1788, he never developed the sense of
personal restraint which such responsibilities arguably require. This –
combined with the life-tenure he enjoyed as a Supreme Court Justice – made him
an obvious target for Democratic-Republican ire, and one which that selfsame
party seized upon with avidity when prompted to do so by Jefferson.
The process that followed was an illuminating one to say the least. Led by Virginia Congressman John Randolph of Roanoke (1773-1833), the Democratic-Republicans in the House voted to impeach Chase on fully eight counts, among which were charges that he, “Did descend from the dignity of a judge and stoop to the level of an informer,” and that his remarks to the Baltimore grand jury had been, “Intemperate and inflammatory [,] peculiarly indecent and unbecoming [,] highly unwarrantable [and] highly indecent [.]” In the end, when the final tally was made on March 12th, 1804, the assembled Congressmen voted seventy-three to thirty-two in favor. Not every Democratic-Republican voted in favor of the charges, but the majority who had was more than enough to send the matter to the Senate. The Democratic-Republicans enjoyed a majority in that chamber as well – to the tune of twenty-five to nine – and only twenty-three votes were required for Chase to be convicted and removed. His fate, at first glance, looked as though it was sealed. But then, as the relevant Senate trial unfolded, something unexpected took place.
As Vice-President Aaron Burr (1756-1836) presided, the two sides presented their arguments. Justice Chase, Congressman Randolph avowed, had clearly allowed his partisan leanings to influence his behavior on the federal bench, leading to the unfair treatment of those with whom he disagreed politically. Such behavior was unconscionable and unforgiveable, the only remedy being his removal from office. In response to these charges, Chase avowed that his performance in office – while perhaps not always to the liking of his Democratic-Republican critics – never crossed the line into wholesale impropriety. He never misused his power for personal gain, never granted favors, never rendered judgements that weren’t grounded in precedent, and never expressed his opinion on any matters other than those that touched directly upon his responsibilities as a jurist. In what way, then, had he violated the terms and restrictions of his office? In what sense, save for a strictly partisan one, had he strayed from the accepted standard of legal behavior? Much to Jefferson’s displeasure, Chase’s arguments ultimately won the day. That, or the assembled Senators found the prospect of removing a Supreme Court Justice simply for speaking his mind to be beyond their remit as legislators. Chase was acquitted on all eight counts, Jefferson’s offensive against the judiciary came to an end, and a series of important norms were established. Chase may not have committed any offenses which warranted his removal from office, but his overtly partisan behavior was indeed unbecoming of a Supreme Court Justice. Federal judgeships were intended to be non-partisan, and those who were granted them were obliged to behave as such. At the same time, however, it was not the place of either the executive branch or the legislative branch of the federal government to strictly police the behavior of federal judges. If it could be proven that any one of them had violated the Constitution of the United States, broken the laws of the United States, or else acted in such a way as unequivocally harmed the public good, they should be held to account. But they should otherwise be left to their own devices, lest they begin to feel as though they were being unduly pressured by those upon whose cases they might be called to rule.
Notwithstanding the arguably beneficial outcome thereof – inasmuch as the nascent United States was in need of the occasional “road test” – the circumstances surrounding Samuel Chase’s impeachment and acquittal did not speak well of the Democratic-Republicans who set the whole affair in motion. For one thing, the manner in which Jefferson first raised the prospect of having Chase removed from office positively reeked of hypocrisy. In spite of the fact that he and his supporters had but lately waged a war of words against the Adams administration over the latter’s approval and deployment of the Sedition Act – a piece of legislation which unequivocally sought to criminalize certain kinds of speech – Jefferson nevertheless had the temerity to describe Chase’s comments to the aforementioned Baltimore grand jury as a, “Seditious & official attack on the principles of our constitution [.]” Had Chase behaved inappropriately when he criticized the Democratic-Republicans in Congress for repealing the Judiciary Act of 1801? Almost certainly. His role as a member of the federal judiciary was to adjudicate the actions of the legislative and executive branches, not to render his opinion as to the moral or political implications thereof. But what had Chase done in this instance but speak his mind? Was his speech not protected by the First Amendment? Had he abrogated certain of his rights as an American citizen when he accepted his commission as a federal judge? He had not, in fact, though the practical significance of his speech had undeniably changed. Jefferson’s attempt to unseat him, therefore, arguably constituted as heinous a violation of the United States Constitution as had the passage and enforcement of the aforementioned legislation.
And for that matter, there was also something disingenuous about Jefferson’s attempt to reinterpret a key passage from the text of the Constitution. As stated in Article III, Section 1,
The judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their Continuance in Office.
The relevant phrase
having to do with the continuance in office – or not – of Justice Chase was
that which described the tenure of federal judges as being, “During good
Behaviour [.]” The concept of a corps of federal justices whose period in
office would be indefinite given that they acted in accordance with an unspoken
code of conduct was first introduced into the debates which ultimately produced
the United States Constitution as part of Edmund Randolph’s so-called “Virginia
Plan.” In it, Randolph proposed that, “A National Judiciary be established to
consist of one or more supreme tribunals, and of inferior tribunals to be
chosen by the National Legislature, to hold their offices during good behaviour
[.]” But while this first appearance of the phrase was unquestionably
significant – and Randolph bears credit for introducing it into the proceedings
– the concept which it denoted was already deeply embedded in existing English
legal norms. Not only did several state constitutions place similar conditions
upon the judicial officers thereof – New York, North Carolina, and Maryland,
for example – but the piece of legislation which paved the way for the
ascension of the House of Hanover in Great Britain – i.e. the Act of Settlement
(1701) – had made a point of declaring the primacy of “good behavior” tenure
almost a century earlier.
Specifically, the Act declared that, “Judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them [.]” The Latin phrase quamdiu se bene gesserint meant, in this context, something like, “As long as he shall behave himself well.” Its purpose was essentially to establish a new standard of judicial tenure which the monarchs of the incoming House of Hanover would be required to ascribe to if they were to be accepted as the legitimate possessors of the British Crown. Whereas certain monarchs of the House of Stuart had wantonly abused the privilege of appointing judges whose commission required only that they serve “at pleasure” – meaning that they could be dismissed at any time by the Crown – the kings and queens of the new royal house would be forced to accept the existence of judges whose tenure would extend for as long as they behaved themselves properly or until Parliament voted to remove them. The aim of such a reform, of course, was the promotion of a previously unseen degree of judicial independence whereby jurists no longer functioned solely as instruments of the executive. A judge whose commission was during good behavior could not only exercise their discretion without fear of incurring the displeasure of the executive, but they could even help to hold the executive itself to account. A judiciary thus constituted could accordingly serve a far more useful purpose than one whose member must ever remain conscious of the whims of the authority that originally appointed them.
Thomas Jefferson knew all of this, of course, or had no excuse not to know it. He was a lawyer by trade and a scholar by inclination. And while the method by which Justice Chase’s removal was attempted was entirely in keeping with both the terms of the Constitution and their antecedents in the Act of Settlement, the spirit of the endeavor was rather at odds with that which was intended. The reason the Act made a point of declaring that judges were thenceforth to serve during good behavior was to prevent the kinds of judicial abuses that had been common under the House of Stuart from once more becoming the norm under the House of Hanover. The Crown would still be empowered to appoint judges to the various British courts, but only Parliament could remove them. The basic assumption behind this arrangement, of course, was that Parliament and the Crown would tend to have divergent interests. The Crown would want judges who were sympathetic to a wide-ranging view of executive authority, and Parliament would prefer judges who prioritized the prerogatives of the legislature. Having been proposed and approved by Parliament, the Act of Settlement naturally sought to nurture the emergence of the former perspective by preventing those judges who favored the same from being summarily removed by the Crown as a result. As aforementioned, the relevant passages in the Constitution of the United States and in the various state constitutions embraced and replicated this same basic logic. But in terms of the US Constitution, at least, the larger institutional context fundamentally altered the way it was likely to be applied.
As mentioned above, the authors of the Act of Settlement assumed – with good reason – that the Crown and Parliament would almost always take a different view on the nature and purpose of the judicial authority. Their power each came from different sources, their prerogatives applied to different spheres, and their goals were bound to be similarly unalike. Members of Parliament might find a useful ally in the Crown depending on the circumstances and the context of the moment, but the authority of one was bound to clash with the authority of the other if both were intent on exercising as much power as possible. Such was not the cause, however, within the context of the United States of America. It was possible, to be sure, that Congress and the office of the President might be each be controlled by individuals possessed of diametrically opposed political ideals, in which case granting one the power of appointing federal judges and the other the power of removing them would make as much sense as it had in Britain in 1701. But if the executive and legislative branches were in the hands of those who fundamentally agreed in terms of policy and ideology – members, perhaps, of the same political party – then the basic principle of judicial independence would be reduced to little more than a theory. If all that a President who disliked a given federal judge had to do to see them removed was whisper into the ear of their party’s leader in Congress, how were said judges supposed to rule without fear or favor? Why would any judge in such a position ever determine to rule against a sitting President? Again, they need not always have feared such an arrangement of circumstances. Whenever Congress was controlled by one party and the office of President by another, they would presumably enjoy a substantial degree of security. But who could say how often this would be the case? And when it wasn’t, woe betide the judge who acted against the ruling party’s wishes.
Bearing all of this in mind, the basic
concept of service during good behavior would seem doubly essential in the
American context when compared to that of the British. At least in Britain, a
sitting judge could be assured that Parliament and the Crown were unlikely to
ever agree on what constituted a desirably jurist. In this disagreement lay
their security. But in America – following the emergence of a stable party
system, at least – Congressional majorities might often agree when a told by a
President that a particular jurist had become obnoxious. For this reason, the
standard of proof for accusations of judicial impropriety within the American
federal court system needed to be quite high. If being of a different opinion
than the ruling party on a given issue constituted adequate grounds for
removal, what hope could any federal judge dare hold out of serving for more
than a handful of years? Every transition of power from one party to another
would bring about the complete overthrow of the federal bench, at which point
the American people would inevitably begin to lose any faith they might have
previously invested in the idea of a system of impartial national courts.
Granted, federal judges could work to erode this sense of popular confidence on
their own by, say, too frequently expressing their individual political
opinions. But without the practical autonomy guaranteed by a strict
interpretation of the concept of service during good behavior, public opinion
would matter far less than keeping in the good graces of the party in power.
To say that President Jefferson had not
taken account of these considerations when he attempted to have Justice Samuel
Chase removed from office would seem to be selling the man rather short. As
aforementioned, he was famously possessed of great intelligence and insight. If
anyone understood the purpose and implications and judicial autonomy and good
behavior tenure within the Anglo-American legal tradition, he would have been first
among them. The fact that he nevertheless sought to have Chase jettisoned from
the federal bench merely – if foolishly – for speaking his mind would
accordingly seem to constitute a knowing transgression on his part. Wouldn’t he
have cried foul and fought tooth and nail if a later Federalist President
connived with a Federalist-dominated Congress to remove a federal judge that he
had appointed simply for voicing a contrary political opinion? Of course he
would have. In that case, didn’t he care about the precedent his actions would
have set if they succeeded? Of course he didn’t. Jefferson was many
praiseworthy things, but he was never what one might call a creature of
precedent. On the contrary, as his political career matured into the 1780s,
1790s, and 1800s, he often made it abundantly clear that he viewed the present
moment as the only proper context for judging the validity of a given action. “The
earth belongs in usufruct to the living [,]” he famously wrote to James Madison
from Paris in 1789, and “The dead have neither powers nor
rights over it [.]”
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