The recent passing of Justice Ginsburg and the ghoulish dancing on her grave by GOP “leaders” presents us with another episode where where we might learn from our own history.
The United States two party political system is an outgrowth of an intense conflict during the Washington administration between Thomas Jefferson and Alexander Hamilton over the nature of the new constitutional government. Hamilton envisioned the United States as a great commercial empire rivaling Britain, while Jefferson saw a canvas where enlightened citizens could paint a landscape of liberty. The conflict was essentially one between economic dominance or enlightened idealism.
Two of the most vicious elections in US history occurred in 1796 and 1800 in early struggles over these perspectives. When Washington retired from public life after two terms as President, the contest for his replacement was driven by the contest between the Jeffersonian and Hamiltonian visions. The two major candidates were Thomas Jefferson as the standard bearer of the Democratic-Republicans, as they called themselves, and John Adams leading the Hamiltonian Federalists.
The election was a spectacle of personal attacks, fake news, and accusations of foreign intervention. Adams, the Federalist, won a majority in the Electoral College and assumed the Presidency, with Jefferson, who had come in second, serving as his Vice President under the rules of the day. Jefferson quickly became disillusioned in this role, resigned, and retired to Monticello to contemplate a second revolution.
In 1800 he once again threw his hat into the electoral ring and defeated Adams’ bid for a second term. The transfer of power from the Federalists to the Democratic-Republicans almost brought down the government, with Federalists in Congress stubbornly blocking Jefferson’s election even though the Federalist Adams had no chance of winning. Tensions rose to the point where the Democratic-Republican governors of Pennsylvania and Virginia threatened to call up the militia to install Jefferson as President. The result was one of the great acts of political heroism in American history. Hamilton put the survival of the country ahead of partisan interests and made a secret deal with Jefferson, who was subsequently elected. Control of the government — the Executive and the Legislative — passed peacefully from the Federalists to the Democratic-Republicans, a milestone in the advance of democracy.
The republic was saved, but the Federalists would not just roll over. The lame duck Federalist Congress passed the Judiciary Act of 1801 which expanded the Federal Judiciary, and the outgoing President Adams hurriedly appointed a number of Federalists to the newly created judicial posts. Those appointed came to be known as “midnight judges” because their commissions were still being signed at midnight the day of Jefferson’s inauguration.
The Federalists’ attempt to pack the Judiciary was short lived. The new Democratic-Republican Congress repealed the Judiciary Act of 1801 and passed the Judiciary Act of 1802, which went into effect in 1803 after Jefferson signed it.
But an unintended consequence of the Federalists’ power grab reshaped the American judicial landscape. William Marbury, promised a post under the Judiciary Act of 1801, was denied when the new President Jefferson ordered the new Secretary of State James Madison not to deliver any of the commissions remaining after midnight on inauguration day passed. Marbury sued the Federal government and in the landmark case Marbury v. Madison (1803) the Supreme Court, led by Jefferson’s cousin John Marshall, cemented the power of the Supreme Court by asserting the capacity to ultimately determine the constitutionality of Congressional Acts.
Thus, an attempted naked power grab by a beaten political party established the importance of the Judiciary. It also demonstrates why today’s attempted hijack of judicial power must be defeated. The future of our democracy must not be determined by sore losers.