Constitutional Longevity. Was Religiosity...

Justin Schwartz jschwart at
Tue Jun 16 07:32:46 PDT 1998

On Tue, 16 Jun 1998 Dhlazare at wrote:

> Checks and balances were politically important, which is to say that they were
> a vital feature of Jeffersonian ideology, which more or less dominated US
> const'l thought from 1800 until the Civil War.

This would be news to Chief Justice John Marshall and his acolyte Justice Joseph Story, who between them more or less made the US Constitutional traditional until the 1840s. Both were ardent Federalists and anti-Jeffersonians, supporters of a strong central national government.

Recall the facts of Marbury: Poor old Marbury had been given a government post under the Federalist Presidency of Adams, and was deniedf it by Jefferson. As per Jefferson's directions, Madison, the new Sec of State, refused to deliver Marbury's commission--this was the spoils systems. Marbury sued for relief, and the Federalist Marshall, appointed by Adams (and himseld the outgoing Sec of State) cleverly denied Marbury any relief and madea sneaky power grab of establsihing judicial review, a highly nationalist, centralist, and anti-Jeffersonian notion.

The main court decisons of that era were nationalist, giving the Congress the power to legislate under the Commerce Clausde for what's necesasry and proper, giving the federal courts the power to review state court decisions, insisting taht the federal courts have final say over readings of federal law.

The upshot is that your characterization is erroneous.

The essence of this ideology
> was that govt power was always potentially tyrannical and therefore should be
> kept to a minimum and constrained through various countervailing institution

That may be Jefferson, but it's not and never has been US Constitutional doctrine.

> When you ask for cites, it's difficult to know when this principle was not
> uppermost in mind of American politicians.

The point is, I can give you lots of specific cites to the contrary. As far as judges go, the idea of seperation of powers was not that important in the 19th century caselaw.

> BTW, Hamilton was not a believer in checks and balances,

No doubt taht is why he helped design and defend a Constitution based on this idea.

I think you aremisusung the terms "checks and balances" and "seperation of powers" to mean "extreme suspicion of government. C&B and SoP are specific notions in constitutional theory referring, in an American context, to the idea that the Constitution creates a limited government of enumerated powers (of of the two ways it is limited; the other is by individual rights in the bill of rights) with powers allocated to particular branches. This is consistent with a belief in a strong centarl government, such as that shared by Hamilton, Madison, and Marshall.

nor were the Radical
> Republicans, which is why both were so interesting. Instead, they believed in
> the concerted power of govt to accomplish their program.

As I say, this is a false opposition.


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