Thomas Jefferson Loses I; The Impeachment of Samuel Chase

Americans have been brought up to think of Thomas Jefferson, our third President (1801-1809), as a "winner." So much of a winner was he, we think, that his tombstone, on which he celebrates his three greatest achievements, doesn't even mention the fact that he was President of the United States. As this site says:

"By his own instruction, Thomas Jefferson's tombstone notes his authorship of the Declaration of Independence, his founding of the University of Virginia, and his responsibility for Virginia's Statute of Religious Freedom. But it fails to mention his presidency...."

That is, so great was he, so accomplished, that he doesn't even have room to refer to what would be the first thing that anyone else would mention as his crowing achievement in life. In addition, under his Presidency he doubled the size of the United States by the acquisition of the Louisiana Territory--certainly the key territorial acquisition in the history of the country.

This sort of secular hagiography of Jefferson has continued into our own day. The following story is told about President John F. Kennedy:

"Once, he gave a White House dinner for all the American Nobel laureates then living. At coffee, one of the guests said to him: 'Mr President, there must be more intelligence gathered under this roof tonight than every before'. 'Yeah,' replied Kennedy, 'except when Thomas Jefferson dined alone.'"

With this kind of press, we wonder how Jefferson could ever have experienced a major loss. He seems to have been an 18th/19th century political and intellectual colossus. The purpose of this and the next few essays, however, is to discuss a significant event in 1805 in which Jefferson was not only the big loser but which helped catapault, to Jefferson's chagrin, the judicial branch into the most powerful position it ever had attained. That event is the impeachment trial of US Supreme Court Justice Samuel Chase. It was an impeachment spurred on by Jefferson, and he tried every trick in the book, unsuccessfully, to remove Chase from the bench. Let's first set the background and state the issues, before showing how Jefferson lost. Along the way, I want to make a comment about the uselessness of some aspects of law school...

1801 and the Triumph of the Republicans

The election of 1800 saw a watershed change in American politics. Many scholars speak of this election as a sort of "second revolution," in that the Jeffersonian Republicans, with a philosophy quite different from the regnant Federalists, assumed the Presidency. Not to be outdone, however, outgoing Federalist President John Adams had Congress pass the Judiciary Act of 1801, considerably expanding the federal judiciary, in the waning days of his Presidency early in 1801 and then filled the enlarged federal bench with "midnight appointments" as he was vacating office. The Republicans were chagrined; they repealed the Act and replaced it by the Judiciary Act of 1802 (April) and, for the first and only time in history, suspended the Supreme Court from sitting for over a year. That is, the Court didn't reconvene until 1803, and it then gave an "in your face" decision to Jefferson.*

[*The "in your face" decision was the classic case Marbury v. Madison, decided in the Feb. 1803 term of the US Supreme Court. It takes some time to read and has to be read carefully. Chief Justice Marshall, speaking for the Court, held that even though Marbury had a legal right to the Commission, the remedy which he sought to get it--mandamus in the US Supreme Court--was not the right remedy to pursue. A mandamus decision, which Marshall said would be akin to the Court's accepting original jurisidiction over an issue, was not within the purview of the Court's original jurisdiction. Thus, the portion of the Judiciary Act of 1789 giving the Supreme Court power to issue a mandamus to an officer of the United States, must be unconstitutional. From this conclusion followed Marshall's famous statement that it "emphatically" was the province of the judiciary to declare what the law was. Since one provision of the 1789 Act was unconstitutional, it cannot be given effect. The Court, thus, could say which things were, and which things weren't "constitutional" acts of Congress. That is what angered Jefferson. Marshall had just said that he had the ability to declare acts of Jefferson's Republican-controlled Congress unconstitutional. Take that, TJ!]

A Historical Note

Let's walk through the history for a second on why the Supreme Court didn't "sit" in 1802. Before the Judiciary Act of 1801 was passed in Feb. 1801, the Supreme Court's schedule was determined by Sec. 1 of the Judiciary Act of 1789. It would meet twice yearly, beginning on the first Monday of February and first Monday of August. The Federalist Congress in Feb. 1801 required the Court to sit in two sessions per year commencing in June and December. Thus, the Court would meet in June and December 1801. But the issues facing the Court in what would become Marbury v. Madison began to come to a head in Dec. 1801, when the Supreme Court ordered Secretary of State James Madison to "show cause" why a mandamus shouldn't issue in favor of William Marbury--so that he could get his Justice of the Peace appointment in the District of Columbia. Madison was a no-show before the Court. In April 1802 Congress passed the Judiciary Act of 1802, in which Congress changed the Supreme Court's schedule to one term a year, beginning in February. Thus, the Court ended up not sitting from Dec. 1801 until Feb. 1803. Talk about politics and the Court!

At that time the Court consisted of six justices, three of whom were appointed by Washington (Cushing, 1790; Paterson, 1793, Chase, 1796) and three by Adams (B. Washington, 1799; Moore, 1800; Marshall, 1801). These appointees rallied around Chief Justice John Marshall, who issued the landmark decision Marbury v. Madison in 1803, a decision in which Marshall laid down the central principle of judicial review--i.e., that the Constitution gave the Court the power to pass judgment on the constitutionality of statues passed by Congress. What is often not mentioned in connection with this decision is that the Chief Justice, who wrote the opinion, could never have written the decision if he were on the Court today. The reason? He was Secretary of State at the end of the Adams Presidency and it was his action (or inaction, really) which precipitated the case which would become Marbury v. Madison. He didn't deliver the commission on time to William Marbury to become a Justice of the Peace in the District of Columbia. A brief discussion is here. You never let a person sit as a judge on his own actions. Thus, the central case promoting the power of the American judiciary has deep flaws running through it.

A Footnote on Law School

I never learned any of this in law school. In fact, we may have spent an hour on Marbury v. Madison, but we only did so to reaffirm the central principle of judicial review. We spent not a moment understanding the politics behind the decision, the characters involved, the Judiciary Acts which lay at the base of the action, or whether we think that all the "muck" surrounding these events has any implication for how we view the role of courts today. We never asked the question if Justice Marshall's opinion went beyond the text of the US Constitution and, if so, whether that should have or had an effect in subsequent methods of interpreting the Constitution. That is, did the decision give us a hermeneutic as well as a basic doctrine? History, which to me is a precious treasure trove not only of information but of an endless supply of questions to help us understand who we are, was completely ignored. An eighth grader could have learned that Marbury v. Madison gave us the "doctrine" of judicial review. Only an adult could understand the machinations which led to this decision. But did we study the decision like adults? Certainly not.

Returning to History

Back to our story. Jefferson, in response, seeing a direct challenge to his Presidency and Republican control of Congress, decided that he would strike back. Instead of "packing" the Court, as an influential successor, Franklin Delano Roosevelt, would try to do in 1937, he decided to take steps to impeach a Justice and then have the Congress, as provided in the US Constitution, remove him from office. But the writing was on the wall: the charges which were brought against Chase were general enough so that, if effective to remove Chase from office, could conveniently be lodged against the other four Federalist-appointed Supreme Court justices, Marshall especially. Thus, the unfolding of events in 1804, when the charges against Chase were developed, and 1805, when the case was argued in the Senate (Feb. 1805) are crucial to understand.

With this basic introduction in place, let's move to the "case against Chase" (As of 11/2/07, I haven't pursued this thread. Instead, I have looked further at the election of 1800 and the Judiciary Acts of 1801 and 1802)

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