Friday, May 06, 2005


DeLay = Jefferson?

Hmm...scary thought, eh?

But it's a bit hard to avoid after reading Ron Chernow's outline of how Alexander Hamilton and Thomas Jefferson banged heads over the independence of the judiciary during the earliest days of the Republic.

Chernow notes how worried Hamilton (whose magisterial biography Chernow authored last year) was about the idea of a judiciary vulnerable to attack from the other two branches:

In Federalist No. 78, he fretted that the judiciary "has no influence over
either the sword or the purse ... and must ultimately depend upon the aid of the
executive arm even for the efficacy of its judgments." In No. 79, he brooded about abuses that might arise from legislative tampering with judges' salaries. "In the general course of human nature," he wrote, "a power over a man's subsistence amounts to a power over his will."

To offset these handicaps, Hamilton endorsed the constitutional
provision that federal judges should serve for life, subject to impeachment only for official misconduct, not for unpopular decisions: "The complete independence of the courts of justice is peculiarly essential in a limited constitution."

The newly-elected President Jefferson became outraged that the Judiciary Act of 1801, passed by a lame-duck Congress and signed into law by Federalist John Adams, created a circuit court level dominated by Jefferson's political opposition. Jefferson attempted to scrap the Act and impeach the recently appointed judges.

Hamilton fought back:

At an emergency meeting of the New York City bar in February 1802, he prophesied: "The independence of the judges once destroyed, the Constitution is gone; it is a dead letter." In the newspaper he had recently helped found, The New-York Evening Post*, he warned of the danger posed to the separation of powers if Congress scuttled the courts it had created: "Who is so blind as not to see that the right of the legislature to abolish the judges at pleasure destroys the independence of the judicial department and swallows it up in the impetuous vortex of legislative influence?"
Within two years, Marbury vs. Madison made judicial review -- the power of the courts to rule acts of Congress unconstitutional -- the law of the land. Hamilton's vision won out over Jefferson's.

And today, similar themes are being played out over the issue of the filibuster.

No word on where Jefferson would have come down on paid trips to the Marianas Islands.

*Still in existence, so I'm told.

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