The Activist
Page 22
Thomas Jefferson’s letter complaining that the Federalists had “retired into the judiciary as a stronghold”
Once introduced, the repeal motion occupied the Senate for a month. The debate quickly coalesced around two issues—whether the new judges were needed at all and, more importantly, whether or not the Constitution would allow for the repeal of an act that permitted sitting judges of “good behaviour” to be deprived of their positions. Republicans had anticipated the constitutional issue, and Breckinridge raised it almost immediately in his opening remarks. He posed the question, “Because the Constitution declares that a judge shall hold his office during good behaviour, can it be tortured to mean that he shall hold his office after it is abolished? Can it mean the shadow, to wit the judge, can remain, when the substance, to wit the office, is removed?”9 Breckinridge added that since Article III stated that Congress may from time to time establish inferior courts, it could also from time to time disestablish them. The senator from Kentucky went on to spend two more hours demonstrating that the Constitution only protected the man when there was an office for him to occupy, using rhetoric that one Federalist senator described as “ingenious.”10
Gouverneur Morris of New York, one of the best minds in the nation and one of its most acerbic wits, saw it differently. He replied: “You shall not take the man from the office, but you may take the office from the man; you may not drown him, but you may sink his boat under him; you shall not put him to death, but you may take away his life . . . is it not absurd?”11
Morris had written the text for the finished Constitution. At least in theory, therefore, no one in the nation could state with greater certainty what the document actually meant. Morris pointed out to his fellow senators that Breckinridge’s reading of Article III was incomplete. The article actually stated that “judicial power shall be vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish.” The choice of words, he asserted, was not arbitrary. “The Legislature,” Morris went on, “therefore had, without doubt, the right of determining . . . what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them.”12
At issue, of course, was not semantics or interpretation—or even law— but power. When another senator described this debate as “one of the most important questions that ever came before a legislature,”13 the reason was clear—at stake was not only the definition of Article III of the Constitution, but whether or not Congress was empowered to form that definition. Who was to be the final authority on constitutional interpretation?
Republicans insisted that Congress had every right to construe Article III, Section I such as to eliminate judgeships, just as Congress explicitly had the power to create them. The Federalist minority was equally insistent that Article III was not open to congressional interpretation, but must be adhered to only as written. With strict construction and broad construction argued on the Senate floor, everyone present realized that the question would ultimately end up in the very court system that they were seeking to either enable or limit, depending on point of view.*
The question of redundancy was equally tricky, but more immediate and practical. Breckinridge opened the debate by saying, “No increase of courts or judges could be necessary or justifiable, unless the existing courts or judges were incompetent of the prompt and proper discharge of the duties assigned to them. To multiply expensive systems and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure.”14 To buttress his argument, Breckin-ridge relied on Jefferson’s submission of court records in December. “The document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits before them, were fully competent to a speedy decision of those suits.”15 Breckinridge even noticed from Jefferson’s documents that the number of suits was actually decreasing and promised to decrease still further when state courts took over many of the cases that had misguidedly been assigned to federal court. Under the circumstances, he was quick to point out, it would be the height of irresponsibility to add judges and court personnel that would cost the nation, by his accounting, $137,000.
But Jefferson had blundered. After studying the document, Uriah Tracy of Connecticut discovered that Jefferson’s numbers had grossly underreported the actual number of past and present cases in federal court. Jefferson had omitted the records for Maryland entirely. “This omission is unaccountable,” Tracy helpfully pointed out a few days later, “since the means of knowledge were near at hand.” Jefferson had also neglected to include pending cases in Tennessee, North Carolina, and his own state of Virginia. Records for New York and Massachusetts had been reported incorrectly as well. “I am not disposed to attribute intentional error to any man, much less to the Executive,” Tracy was quick to add, “but in point of use the statement amounts to nothing.”16
Once Tracy had called Jefferson on the errors, all of which involved underreporting, the door was shut on redundancy and Congress could focus solely on the constitutional issue. “But there is another objection to the repeal of the judiciary law,” he added, “which in my mind is conclusive: I mean the letter and spirit of the Constitution.”17 He read Article III to his colleagues and then asked, “Are there any words in the English language more explicit? Is there any condition annexed to the judge’s tenure of office other than good behaviour?”18
Tracy’s salvo took Republicans by surprise—in the glow of victory, they had not expected such intense Federalist opposition. Even worse, Republicans seemed to realize only then that, while they held a clear majority in the Senate, it was a small one—four senators—and, with attendance always an issue and defections a possibility, repeal was far from a sure thing. Looking around the chamber at that moment, Republicans could count only thirty of the thirty-two elected representatives, and both of the absentees were from their party.
Their predicament was made more tenuous by the fragility of their arguments. With Jefferson’s statistical abstract discredited and loath to admit simple power politics as their motive, Republicans were forced into some rather far-fetched justifications for their position. (One Republican congressman eventually suggested that without the power to abolish judgeships, every outgoing president would create a new layer of judges until the federal government had been overrun with jurists.19 ) The biggest problem for Republicans, however, was not shabby statistics, an unforgiving Constitution, or tortured logic—it was the president of the Senate, Vice President Aaron Burr.
Burr had not simply faded into the night after Jefferson was finally declared the victor. Having been brought so close to ultimate power by Federalist wooing, Burr had apparently decided that they might actually be serious in their courtship. Rumors had begun to circulate that he had met with members of the rival party to build a power base from which to unseat Jefferson in the next election. Whether true or not, when Burr took his position in the Senate on Thursday, January 15, it was certainly not as a loyal second-in-command to his president.*
After only one day of presiding over the Senate, Burr slipped off for dinner with Gouverneur Morris and mentioned to the New Yorker that he was prepared to support the Federalist struggle against repeal if he could do so without seeming to break with his party.20 Burr did not mention what form this support might take, although both he and Morris were obviously aware that the vice president was empowered to break tie votes.
A tie was certainly not impossible. By the time Burr took the chair, the debates had ratcheted up in intensity even more, since Federalists realized that they actually might win. During days of argument, Federalists and Republicans eschewed virtually all other business and devoted each session to long and often repetitive speeches either in favor of or against repeal. Each side spoke in defense of the Constitution and in the interests of the nation—terms such as “honor,” “duty,” and “responsibility”
were evoked regularly and political motives confined to opponents.
Finally, on January 19, John Colhoun, a newly elected Republican from South Carolina, proposed that a committee be established to formulate amendments to the courts act that would “render the present motion for repeal unnecessary.”21 Although Colhoun was ruled out of order by Vice President Burr, Federalist senator Jonathan Dayton of New Jersey reintroduced a motion to “revise and amend” rather than “repeal” the Judiciary Act of February 13. Although the motion failed 15–13—Colhoun siding with the Federalists—the close vote heartened the opposition.22 One more defection would have created a tie. Nonetheless, three Republican senators were assigned to prepare a repeal bill. The bill was duly presented and received its second reading on January 26, after which Dayton moved that the bill be sent to a select committee to formulate rules for the circuit courts in case the February 13 law was repealed. This motion also failed by two votes, 16–14, with Colhoun switching back to the Republican side. Another motion was made to proceed to a third reading of the bill. This vote ended in a tie, 15–15, Colhoun jumping to the Federalist side once more.23
Burr’s vote was then required. If he sided with the Federalists, the repeal measure might be killed entirely, thus earning him the gratitude of the opposition but also everlasting enmity among Republicans. Burr was not prepared for that degree of bridge-burning, so he broke the tie in favor of the Republicans.
The next morning, Dayton opened the proceedings in a strangely upbeat manner. Although he “had been defeated in two attempts to arrest the progress, or turn the course of the business, he was not, however, so far discouraged as to be making one other.” The source of his encouragement, he noted, was because he had learned “that [his second motion] had not been perfectly heard and understood by one of the gentlemen who had voted against it.”24
Dayton added that “it could not come to good if measures admitted by some to be bold and violent, and believed by many others to be unconstitutional, should be carried by a bare majority, and he trusted, therefore, that this proposition would now succeed.” He once again moved that a select committee be appointed “to consider and report the alterations which may be proper in the Judiciary system of the United States.”25
The wind-blown Colhoun, clearly the man to whom Dayton referred, followed the New Jersey senator by announcing that he would once again vote with Federalists in favor of commitment, producing another 15–15 tie, returning the fate of the repeal bill to Burr. Unlike his previous tie-breaking vote, which might have killed the bill outright, committing the bill to a select committee in a Senate in which Republicans held a majority was likely a mere postponement of the inevitable. Maintaining his balance, this time Burr voted in favor of the Federalists, after which he proclaimed that “he felt disposed to accommodate” the minority party so that the bill “might be rendered more acceptable to the Senate.” Republicans need not fear his actions, Burr hastened to add, since he had no intention to encourage “any attempt, if any such be made, that might, in an indirect way, go to defeat the bill.”26 A committee of five was then selected to study the bill. It consisted of two Federalists—Morris and Dayton—and three Republicans. One of the Republicans, however, was Colhoun, leaving the product of the committee’s deliberations very much in doubt.
Federalists left the session in high spirits, a minority party that had succeeded in frustrating the majority in perhaps its most prized initiative. But the Republicans were not without artillery of their own. Not once during the debates had the full complement of senators shown up. While Federalists had secured the periodic support of one Republican senator and the vice president, fifteen votes seemed to be the maximum number that they could muster. With full attendance, however, seventeen votes could be counted as firmly Republican, rendering both Colhoun and Burr moot.
Five days later, on February 2, 1802, Republicans succeeded in securing the attendance of one of the absentees, Stephen Bradley of Vermont, and Breckinridge introduced a motion that the committee of January 27 be discharged. Federalists, who had been so close, desperately tried to amend the bill and extend debate, but the fight was over. After furious invective on both sides and with Bradley providing the insurmountable sixteenth vote, the motion passed, 16–14.27
Despite an outcome that was no longer in doubt, the two sides debated well into the night. Vermont’s Bradley, perhaps in a desire to make up for his earlier inattendance, spoke for hours, reiterating arguments made before he arrived. The most telling exchange, however, did not begin until five o’clock in the candlelit chamber, when Breckinridge once more rose to speak. Referring to the power of the Supreme Court to annul acts of Congress, the specter of which had been raised earlier, Breckinridge thought the idea ludicrous. “I did not expect, sir, to find the doctrine of the power of the courts to annul the laws of Congress unconstitutional, so seriously insisted on.” Breckinridge continued: “It is said that the different departments of Government are to be checks of each other, and that the Courts are to check the Legislature. If this be true, I would ask where they got that power, and who checks the courts when they violate the Constitution? Would they not, by this doctrine, have the absolute direction of the Government? To whom are they responsible? But I deny the power which is so pretended. If it is derived from the Constitution, I ask the gentlemen to point out the cause that grants it . . . Is it not extraordinary, that if this high power was intended, it should nowhere appear? Is it not truly astonishing that the Constitution, in its abundant care to define the powers of each department, should have omitted so important a power as that of the courts to nullify all acts of Congress, which in their opinion were contrary to the Constitution?”28 Breckinridge added, “To make the Constitution a practical system, this pretended power of the courts to annul the laws of Congress cannot possibly exist.”29
It fell to Gouverneur Morris to respond. “[Breckinridge] asks,” Morris began, “where the judges got their pretended power of deciding the constitutionality of laws? If it be in the Constitution (says he) let it be pointed out. I answer, they derived that power from authority higher than this Constitution. They derive it from the constitution of man, from the nature of things, from the necessary progress of human affairs.”30
Morris spoke for well over an hour, but never provided any other justification for judicial review than vague references to what was implied in the Constitution rather than what was stated, the very essence of broad construction and diametric opposite of textualism. Even more telling, a man who had been present at the constitutional debates could not refer to a single delegate or exchange in those debates in which judicial review had been propounded as an understood power of the court system.31
Finally, at about 8 P.M. on the evening of February 3, 1802, the Senate, by a vote of 16–15, voted to repeal the Judiciary Act of 1801.
The bill went on to the House, where it was debated for another four weeks. Federalist opposition was led by the ubiquitous James A. Bayard, but the Republican majority in the lower chamber was sizable and the issue was never in doubt. The House passed the bill on March 3, 59–32, and when Jefferson signed it five days later, the Judiciary Act of 1801 was officially repealed. With his signature, Jefferson had put sixteen United States circuit court judges and a host of other recent appointees out of work.32
Beyond the practical impact, by agreeing to the repeal, Jefferson had also announced that, in his view, the Congress and the executive were legally empowered to interpret the Constitution, to “say what the law is.”33 While the repeal did not eliminate the judiciary from constitutional interpretation— neither Jefferson nor his party would have thought that proper—Republicans had postulated that nothing in the Constitution gave the judiciary an exclusive right of interpretation. If, after the imminent court challenge to the repeal by Federalists—and Hamilton had demanded that just such a challenge be launched “as soon as possible”—the Supreme Court attempted to invalidate the repeal, a constitutional crisis was inevitable.34<
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In order to prevent chaos, the repeal was not to take effect until July 1. On that date, all cases before circuit courts or district courts as defined in the Judiciary Act of 1801 were to be returned to whatever court in which they would have resided had the courts bill not passed. All writs pending before the new courts would be returned to the old courts as well. With all the upheaval, however, the show-cause order to Madison in the matter of Marbury et al. seemed at first to be unaffected, since the two-week June term of the Supreme Court would be completed before the repeal took effect.*
Republicans, however, had no intention of simply rolling back the clock. To complete the job of shaping the judiciary—and to thwart any constitutional challenge to the repeal act—the Republican Congress immediately set to work on their own “Bill for the More Convenient Organization of the Courts.” Whether they chose the exact same name for their bill as the one for the legislation they had just repealed is not known; but after the third reading on April 8, the name was changed to “A Bill to Amend the Judicial System of the United States.”35 With the new name, the bill passed the same day, 16–10, Senator Colhoun absent and not voting.36