American Sphinx (38 page)

But the experience took its toll on Jefferson’s view of the American press. His eloquent statement in the Inaugural Address—“let them stand undisturbed as monuments of the safety which error of opinion may be tolerated where reason is left free to combat it”—implied that complete freedom of the press was both inviolable and self-correcting. Now he was not so sure. “Our newspapers, for the most part, present only the charicatures of disaffected minds,” he concluded in 1803, and what he called “the abuses of the freedom of the press” had generated a scatological political culture “never before known or borne by any civilized nation.” Jefferson actually had a point, since his presidency coincided with an exponential increase in the sheer number of American newspapers, as well as the abiding sense—left over from the 1790s—that there were no official or unofficial rules of conduct governing what would or should be printed.
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Jefferson wanted the press to be free, but he had also presumed that a free press would maintain some measure of respect for the truth. The free-for-all mentality and ricochet style of the multiplying newspapers allowed him to persuade himself that the very principle of freedom of the press was being destroyed by its own excesses. “This is a dangerous state of things,” he explained to Thomas McKean of Pennsylvania, “and the press ought to be restored to its credibility if possible.” He did not have anything so heavy-handed as the Sedition Act in mind. Instead he suggested that Republican governors in selected states target the most offensive Federalist editors for libel: “And I have therefore long thought,” he apprised McKean, “that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution [i.e., the Federalist approach with the Sedition Act], but a selected one.” Governors McKean in Pennsylvania and De Witt Clinton in New York took the suggestion as a command to release their lawyers on the most recalcitrant Federalist editors. As Jefferson saw it, he was not violating a principle so much as rescuing it from its own abusive and self-destructive tendencies. But it was clearly at least a half step backward from his earlier incantations to unbridled freedom of speech.
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GIBRALTAR

T
HE SAME LINE
in his mind that separated salvageable Federalists from “incurables,” good Indians from bad, also separated responsible journalists from loathsome liars. Until that line was crossed, he could be the essence of tolerant amiability. On the other side of the line, however, there could be no mercy, since the moral issues at stake were not susceptible to negotiation or compromise. Within this powerful moralistic scheme, one group was permanently planted on the far side of the Jeffersonian divide and in fact served as the most visible symbol of the institutionalized evil that still managed to defy the “pure republicanism” Jefferson wished to restore. These were the judges of the federal courts, especially the so-called midnight judges Adams had appointed during his lame-duck phase. Soon after Jefferson named Levi Lincoln as his attorney general, he told him that “the removal of the excrescences from the judiciary is the universal demand.” William Branch Giles, his Virginian protégé who was elected to the Senate in the Republican avalanche of 1800, reminded Jefferson that “the revolution is incomplete, so long as that strong fortress is in possession of the enemy.” Since the Jeffersonian mentality actually required discernible enemies in order to unlock its dynamic energies, one could argue that Adams had done him a backhanded favor by his judicial legacy. But if the federal judiciary was a convenient target that mobilized all the Jeffersonian firepower, it was also, as the editor of the
National Intelligencer
put it, “the Gibraltar” of Federalism, sitting squarely and impregnably in the midst of Republican waters. Jefferson spent much of his first term circling this Federalist fortress, sending his most devoted soldiers, like Giles, against it, but never breaching its formidable defenses.
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It is important to distinguish between Jefferson’s animosity toward the midnight judges as political appointments and his more general hostility toward the federal judiciary as an institution. In 1804, as part of an unsuccessful effort to resume friendly relations with John and Abigail Adams, he explained to her that “the one act of Mr. Adams’ life” that had genuinely upset him and struck him “as personally unkind” was the appointment of Federalists to the federal courts. “They were among my most ardent political enemies,” he complained, “and from whom no faithful cooperation could ever be expected. . . . It seemed but common justice to leave a successor free to act by instruments of his own Choice.” The most offensive appointment, of course, was John Marshall’s selection as chief justice, which was especially loathsome for several reasons: first, because it was a lifetime appointment, second, because it placed a Federalist atop the entire national judiciary system and third, because Marshall himself was, in his own different way, more formidable an adversary than Hamilton. Marshall was that rarest of creatures, a Federalist with a Jeffersonian style. He was the one man whom Jefferson did not believe he could outduel in behind-the-scenes political fighting: “When conversing with Marshall,” he confessed, “I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer or you will be forced to grant his conclusion. Why if he were to ask me if it were daylight or not, I’d reply, ‘Sir, I don’t know, I can’t tell.’ ”
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Beyond the personal hatred and the understandable bitterness at being saddled with the Adams appointments lay Jefferson’s more tortured sense of hostility toward the entire federal judicial system per se. Part of the problem with recovering his mentality in this area is that it does not fit neatly into the logical and legal categories that constitutional scholars, who have done the best work on the general subject, have tended to bring with them. Questions about federal versus state jurisdiction, for example, or the highly controversial question about judicial review did not engage his full attention except as specific episodes in a larger political drama about the true meaning of the American Revolution. And the simple truth was that the original American revolutionaries had not envisioned a national judiciary at all. At times Jefferson seemed to believe that to be true to the original “spirit of ’76” all federal courts should be abolished completely and the judicial decisions left to the states. But such thoughts did not emerge out of specific legal arguments so much as a grander sense of “sweeping away” the institutional residue that had built up since the Revolution.

Similarly, Jefferson did not have a consistent or cogently constructed position on the ultimate questions of constitutional sovereignty. In his more radical moments he seemed to believe that all fundamental constitutional questions should be settled by a popular referendum, since the doctrine of popular sovereignty empowered only the people at large to render such judgments. This was obviously burdensome, if not completely impractical, but it drew inspiration from the same visionary impulse that welcomed a “sweeping away” of all laws every generation. In his first Annual Message to Congress he proposed a more moderate idea that each branch of the federal government was sovereign and therefore empowered to interpret the Constitution for itself. Gallatin and Madison, recognizing the confusion inherent in such a position, persuaded him to delete the paragraph.
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To be fair, Jefferson was hardly alone in grappling unsuccessfully with the proper role of the federal judiciary, especially the Supreme Court. The judicial institutions were still congealing as integral parts of the national government. Nor had there been any clear consensus at the Constitutional Convention about the role of the Supreme Court as the ultimate arbiter of the Constitution’s meaning. Hamilton had made the clearest case on behalf of the principle of judicial review in
Federalist
78
,
but it was part of the genius of the constitutional settlement of 1788 to leave such controversial questions blurry and unresolved. In that sense Jefferson’s confusion accurately mirrored the crisscrossing currents of constitutional opinion prevalent at the time.
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But Jefferson’s mind preferred to operate at a higher altitude, where the details and technicalities disappeared from sight and the larger moral patterns assumed a clear shape. From that perspective, he saw the federal judiciary and its capstone in the Supreme Court as a source of unmitigated danger. If the West for Jefferson was the dynamic engine of expansion and national liberation that continually vitalized the American republic with its energy, the federal judiciary was the engine of centralization and consolidation that sucked the energies of the new nation into a stifling sinkhole. The fact that all the crucial offices were filled with Federalists was obviously bad enough, but the federal judiciary itself embodied counterrevolutionary tendencies fundamentally at odds with the deepest impulses of “pure republicanism” as Jefferson understood it. Jefferson’s views were distinctive and radical on this score. Both Adams and Madison recognized the need for a judicial counterpoise to majority rule. The fact that federal judges served for life and were least accountable to popular opinion was, as they saw it, an important asset, for such requirements helped balance the democratic excesses of the more directly elected branches of government. Jefferson, however, saw no need for such balancing mechanisms. For him, the American Revolution was about release, not restraint. In addition to being a Federalist Gibraltar occupied by his most devoted enemies, then, the national judiciary was a permanent brake placed on the wheels of the ongoing American Revolution.
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The battle over the judiciary took the form of three distinct skirmishes. The first, in the winter of 1802, occurred in the Congress, where the Republicans used their majority to repeal the Judiciary Act of 1801. Jefferson had launched the attack in his first Annual Message. “The judiciary system . . . and especially that portion of it recently erected,” he declared, “will of course present itself to the contemplation of Congress.” He was referring specifically to the Judiciary Act of 1801, which was offensive to Republicans for several reasons: It was a partisan measure passed by the lame-duck Congress in February, when the Federalists were scrambling to shore up their control over the court system before Jefferson took office; it established a separate circuit court with sixteen new judges, essentially creating a new layer of federal jurisdiction between the Supreme Court and the district courts; and most of the midnight judges appointed by Adams filled these new circuit court posts. Although Jefferson was active in mobilizing the Republican forces behind the scenes, he made a point of maintaining a distance from the congressional debates, which were heated, and attempted to present his opposition to the circuit courts in the most innocuous terms, claiming that there were simply not enough cases to justify the new layer of federal judges. Rather than raise the controversial constitutional or ideological issues about the entire judicial system, he preferred to cast the issues in terms of republican austerity. Given the Republican dominance in the Congress, victory was a foregone conclusion. Gallatin had already prepared the budget estimates for 1802 on the presumption that the circuit court judges would be eliminated.
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The second skirmish occurred in 1803 in the unfriendly arena of the Supreme Court, where Marshall’s influence and intellectual agility worked its customary magic to produce an embarrassing defeat for Jefferson. The matter at issue was unquestionably trivial: the appointment of William Marbury to a low-level post as justice of the peace in the District of Columbia. The subsequent historical significance of Marshall’s decision was just as unquestionably massive; it became the landmark precedent for the principle of judicial review and for the Supreme Court’s sovereign right to interpret the meaning of the Constitution. But in the historical context of the time Marshall’s celebrated opinion in
Marbury
v.
Madison
occupied an inherently middle ground, neither trivial nor dramatically principled. It provided the occasion for Marshall to lecture Jefferson for failing to uphold the law by refusing to appoint Marbury. The message was clear to all the interested parties of the day: The Republican assault on the federal judiciary may have been successful at eliminating the circuit courts, but the Supreme Court was off-limits. The Federalist fortress on Gibraltar could fire back.
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The legal genius of Marshall’s opinion, what Jefferson described as “sophistry” and later as Marshall’s “twistifications,” derived from the chief justice’s rearrangement of the questions presented to the Court, which allowed him to rule against Marbury’s petition only after lecturing the president and ruling on the constitutionality of an act of Congress, the Judiciary Act of 1789. If he had taken up the questions in the order in which they were presented, there would have been no need to address the broader issues. The political genius of Marshall’s opinion was double-barreled: He enhanced the power of the Supreme Court by denying its jurisdiction, and he patronized the president while deciding the case in his favor. It was vintage Marshall at his most maddeningly covert. It also revealed that Marshall, much like Jefferson, preferred to avoid a direct confrontation on the abiding role of the federal judiciary, since he had masked his assertion of judicial review under the veil of impotence and had ruled that Jefferson, though in violation of the law, did not need to appoint Marbury after all. Having sallied forth from his fortress, Marshall had returned quietly to the safety of Gibraltar.

The third skirmish came at the end of Jefferson’s first term, when the Republicans in Congress, at the president’s instigation, unsuccessfully attempted to impeach Justice Samuel Chase. Next to Marshall, Chase was the most formidable Federalist presence on the Supreme Court, a white-maned giant who preferred to play the role of Jehovah with all Jeffersonians who had the misfortune to land in his courtroom. He had attracted sharp criticism for his strenuous support of the Sedition Act, most especially (and ironically for Jefferson himself) because of his intemperate conduct in dispatching James Callender to a Richmond jail during Callender’s anti-Federalist phase. If Marshall was the master of stealth and guerrilla tactics, Chase preferred to lead cavalry assaults. In May 1803, after reading about Chase’s inflammatory charge to a Baltimore jury, Jefferson wrote to a Republican leader in the House: “Might this seditious and official attack on the principles of our Constitution . . . go unpunished? And to whom so pointedly as yourself will the public look for the necessary measures. I ask these questions for your consideration. For myself, it is better that I should not interfere.” This was the equivalent of a command to his Republican lieutenants in Congress to launch impeachment proceedings against Chase.
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