A similar version of this article appears on WesternPress.org.
That federal judges don’t participate in political campaigns or that only criminal acts warrant impeachment, not policy disagreements – both represent two widely accepted elements of American democracy (I would say). Trickier to institute in practice yet preached by those across the ideological spectrum is that judges don’t manipulate legal decisions to political ends.
Our nation’s earliest citizens did not necessarily share these assumptions. See, for instance, President Thomas Jefferson’s attempt to have Congress impeach Justice Samuel Chase. A Federalist, Chase had imposed heavy penalties – including a death sentence – on Republicans after openly biased trials for sedition. He had also openly campaigned in the 1800 election for John Adams, another Federalist, so much so that he delayed the start of that year’s judicial Term. And immediately precipitating the impeachment, in May 1803 Chase gave “an outrageously anti-Republican” charge to a Baltimore grand jury. At least that was the Republican perspective. Chase claimed that the real issue was that he was a Federalist on a Federalist-controlled Supreme Court which a Republican president and a Republican House of Representatives wanted to undermine in any way possible.
Ultimately democratic idealism won out over the ideological disputes, even as they were framed – that Chase’s was the doctrine of tyranny – as threatening to democracy itself. (Admittedly I write “democratic idealism” with notions generated and adopted over the past 200 years – after all, only at the behest of the author of the Declaration of Independence himself did the House of Representatives begin its impeachment proceedings.)
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American students of constitutional law and the philosophy of law likely met Chase in his 1798 opinion in Calder v. Bull. The judgment (that a Connecticut law was not an ex post facto law) can be forgotten, but the reasoning is interesting enough to warrant an aside. Chase argued, “An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” “The resolution or law in question does not go so far,” Chase continued, but he reserved for the judiciary the authority, according to “certain vital principles in our free Republican governments,” to “overrule an apparent and flagrant abuse of legislative power.” Political philosophies, taken as providing the theoretical basis to the Constitution, also provided judicial grounds for overturning legislation perceived as contrary to those theories.
Justice James Iredell concurred in the judgment but contested that if “the legislature of the union, or the legislature of any member of the union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice.” I imagine most Americans today would agree. We tend to distrust any one judge’s views of natural law and political philosophy.
And yet, in my estimation, Supreme Court Justices have never settled this debate over the role of theory in decision-making, even as they have sought to subsume their philosophical beliefs within the language of the Constitution. “As the matrix of American Constitutional Law, the documentary Constitution is still, in important measure, Natural Law under the skin,” scholar Edward Corwin argued back in 1949 – even before much of the later twentieth century’s substantive due process jurisdiction.
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Back to Chase’s impeachment. In interpreting this episode, historians have largely narrated that Chase did not publicly defend himself and Jefferson ultimately lost interest. Given that framing, one might consider this episode a relatively minor issue, in 1805 and certainly in 2016. But not so fast. In a recent Journal of Supreme Court History article, Mel Laracey flips this perspective thanks to newly studied yet highly pertinent newspaper clippings. Chase did defend himself – with a harshness that would shock by today’s standards for judges – and in fact an analysis of Jefferson’s presidential newspaper shows he very much did care. Laracey’s new findings indicate that the impeachment represents “one of the greatest public fights” between two government branches in the nation’s history.
Laracey analyzes the content of the National Intelligencer, a newspaper at the time “widely regarded as reflecting the views of Jefferson and thus to be reporting the ‘official’ Republican line.” Jefferson himself began the Washington, D.C., publication with editor Samuel Harrison Smith, who was “in frequent social contact” with Jefferson at dinners and other social occasions. In addition to publishing three times a week, the paper circulated to journals editors around the country in the hopes of enlarging – and influencing – their coverage.
Laracey’s findings suggest that “never since has a Supreme Court Justice acted in such a public and aggressive manner” against elected officials. In a long “overlooked” submission to the National Intelligencer, Chase insinuated that he feared a time when:
[A] majority of Congress, inflamed by party spirit, and seeking the destruction of its opponent, shall desire to criminate a judge, in order to heap odium on the party with which he is connected; when a President, at the head of this majority, and guiding its passions, shall desire, from motives of private resentment, the ruin of any judge; when the schemes of the dominant party or of its leaders, may require the removal of all firm upright and independent judges, and substitution of others more complying or more timid.
As for the specific charges against him, Chase claimed that only “when Republicans were confident of majorities in both Houses, had those complaints been revived to provide the basis for his impeachment and removal.”
Those are not light charges, and Laracey suggests Chase isn’t necessarily exaggerating. Republicans at that time believed that “judges should hold views that were consistent with the American people’s as a whole.” Even the judicial branch should reflect popular sovereignty in the Republican view – not just the elected executive and legislative branches. Accordingly, Republicans justified impeachment, “whenever any official, but particularly a judge, [was] somehow seriously harming the nation” with his political views, even if he had not committed any criminal offense.
Ultimately Chase recognized that he needed to tone down his rhetoric in order to appeal to moderate Republicans. He made an appeal based on the consequences for future actions – how the situation might one day be reversed on Republicans. After his proceedings moved to the Senate, he beseeched Senators that, lest “error in political opinion … be a crime,” “a party in power might, under this pretext, destroy any judge, who might happen in a charge to a grand jury, to say something capable of being construed by them, into a political opinion adverse to their own system” – a situation “utterly subversive of the fundamental principles on which free government rests.”
In the end, Chase would keep his job and clean up his behavior. However, his survival is not because Jefferson lost interest – which makes the Republican compromise all the more important and Laracey’s research all the more instrumental for understanding this history. On December 7, 1804, as soon Congress began addressing the impeachment, the National Intelligencer – which again Jefferson founded to disseminate his views – devoted its whole front page to covering the debate in the House of Representatives on the articles of impeachment against Chase. The paper followed up with further coverage in nearly every single one of its December, January, and February issues. Laracey notes a “strong irony” in particular with the issue for March 4, 1805. Consider the main headline that day: “JUDGEMENT PRONOUNCED ON THE IMPEACHMENT AGAINST SAMUEL CHASE.” Then, “in pitifully stark contrast,” as Laracey describes it: “This day, at 12 o’clock, the PRESIDENT takes the oath of office, when it is expected he will deliver an INAUGURAL SPEECH.”
With its next issue, the National Intelligencer did print Jefferson’s inaugural speech on its entire first page, along with related coverage and commentary. Even still, Laracey notes that “the specter of Chase appeared” in an advertisement in large print – ‘”TRIAL OF JUDGE CHASE” – which solicited orders for a full length volume of the proceedings. Then, with nearly every issue from March 18 to August 23, the paper systematically published the transcript of Chase’s trial proceedings. As Laracey concludes, the “in-depth, months-long coverage” of the episode in Jefferson’s presidential paper “contradicts the notion” that Jefferson and his Republican allies had become disengaged in the process.
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Chase’s impeachment – and the standards it helped establish for American democracy – does not constitute Jefferson’s only contention with the federal judiciary, nor the only important standard set. Laracey calls “[b]attles with the federal judiciary” a “major story” of Jefferson’s first term. Likely the most important of these battles was the landmark decision, Marbury v. Madison, in which the Supreme Court claimed for itself the power of judicial review.
One standard that has perhaps been lost a bit relates to journalistic coverage. Even in today’s age of transparency, many of us do not engage through our news sources directly with the words of our leaders, but rather we more often do so indirectly through pundits (or pundit-culled sound-bites of our leaders). The National Intelligencer reprinted entire speeches of Jefferson’s, Chase’s, and other’s, as well as the entire trial transcript. In the words of the paper’s editor, Samuel Harrison Smith, he included such information because “[t]he representatives of the people are responsible to their constituents. If they err, the people ought not to be left in the dark. If they act right, the people, whose interests they guard, ought not to be ignorant of their motives of action.” Admittedly, the notion of a “presidential newspaper” seems strange to me, but there might something to be gained from Smith’s approach.