Sunday, January 16, 2011

3. U.S. History to 1877: Constitutional Interpretations, Essay 2

A New Constitutional Government

George Washington was elected President of this new government and appointed his former aide-de-camp Alexander Hamilton as the Secretary of the Treasury. Despite his relatively humble origins, Hamilton was an elitist. He believed that the new nation’s economic fate should be tied to that of the wealthy. As a result, he got Congress to create a national bank, ¼ of which would be open to public investment, i.e., owned by the wealthy. Thomas Jefferson considered this an outrage, as did James Madison, who left the Federalist camp to join Jefferson in forming an opposition to Hamilton’s policies. Known as the Jeffersonian Republicans, sometimes referred to as the Democrat-Republicans or simply the Republicans (not the present-day Republican Party), this group spent the 1790s organizing and working to dislodge the Federalists from power.

Conflicting Interpretations

This project was facilitated in 1798, when Federalist President John Adams pushed through Congress the Alien and Sedition Acts in an attempt to stifle dissent against his policies. The Sedition Act made it illegal to speak out or publish materials disparaging of the Adams administration. Clearly a violation of the First Amendment’s freedom of speech clause, Jefferson and Madison went to the Kentucky and Virginia legislatures (respectively) and drew up legislation to nullify these laws. In these days before “judicial review” was an accepted practice (Supreme Court ruling on the legality of legislation), the Republicans had resorted to the next level of governance to attack this violation of the Bill of Rights. The Kentucky and Virginia Resolutions of 1799 employed the “Doctrine of Nullification” to nullify the Alien and Sedition Acts.

Clearly a violation of the Supremacy Clause, proponents argued that the Tenth Amendment gave them the power to do this. Since the Constitution did not provide a contingency for the federal government passing illegal legislation, that power, Jefferson argued, was left “to the states, or to the people” as per the Tenth Amendment. In addition, advocates of States’ Rights argued, since the states had created the federal government by virtue of the ratification conventions, they could nullify those actions of the federal government that violated the Constitution. This argument is known as the “State Compact Theory.” The stand-off between the Federalists and the Republicans was diffused by the election of 1800, which was won by Thomas Jefferson and the Republicans is sometimes called the “Jeffersonian Revolution.” Power changed hands peacefully, a phenomenon relatively rare in the history of the world.

Marbury v. Madison

The Federalists did not relinquish power without a fight, however. Before the new administration came in, the out-going Federalist Congress passed the Judicial Act of 1801 creating thirty or so new federal judgeships. President Adams then proceeded to fill those positions with Federalist judges in an attempt to secure the judicial branch for the Federalist political faction. The resulting court case, Marbury v. Madison, saw Federalist William Marbury attempt to serve a writ of mandamus on incoming Secretary of State James Madison and force him to deliver these new appointments, which he had refused to do. Newly-appointed Supreme Court Chief Justice John Marshall, a Federalist himself, wrote the decision in the case which declared the Judicial Act of 1801, and the section of the Judicial Act of 1789 on which it was based, unconstitutional. In other words, the judgeships were null and void, and Madison won the case.

However, Marshall’s decision established a precedent for “judicial review” – the practice of the Supreme Court determining the constitutionality of federal legislation. Because the Jeffersonians won the case, they had to accept the decision even though they were philosophically opposed to judicial review. This is probably one of the most important cases in U.S. history, but it is important to remember that judicial review is not legally binding, but merely a precedent. On rare occasions, presidents have ignored Supreme Court decisions in the past.

Defying the Supreme Court

One such President was Andrew Jackson, elected to the nation’s highest office in 1828. Jackson had run on a platform of “democracy,” or majority rule – the first truly populists presidential candidate. As the hero of the Battle of New Orleans at the end of the War of 1812, and as a well-known Indian fighter and Indian hater, Jackson was immensely popular among not only westerners on the cutting edge of the usurpation of Indian lands, but of a rising artisan class in the cities of the eastern seaboard. “Jacksonian Democracy” was a powerful constituency comprised of these groups that represented a strong majority of voters. The celebration of his inauguration at the White House was a full-blown bash of whiskey and barbecue the likes of which had never been seen at a presidential event. Jackson saw himself as the people’s bastion against the corrupting force of wealth and power – the power of the bankers, planters, and land speculators.

It was also under Jackson that the Native Americans of the Southeast were forcibly removed from the ancestral homes and moved to Indian Territory (modern-day Kansas and Oklahoma) in the 1830s. Opposition to Jackson’s policies, mainly his anti-bank stance, led to the creation of a new political party. Called the Whig Party or Whigs, this opposition was the new generation’s version of the old Federalists in many ways. In this second “two-party system,” one can see the aforementioned historical forces of liberalism (the Whigs), and republicanism (Jacksonian Democrats). Jacksonian Democrats were an early version of today’s Democratic Party, although there is a strong thread back to the Jeffersonian Republicans as well.


Saul Cornell. The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828. Chapel Hill: University of North Carolina Press, 1999.

Arthur Schlesinger, Jr. The Age of Jackson. Boston: Little, Brown and Company, 1953.

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