I think some clarification would be in order here. The reason why the Jefferson-Hamilton split remains so fascinating is that both men, to a degree, stood outside the US constitutional tradition. Hamilton put forth his own constl proposal at the Phila. Convention that was so at odds with the general thinking -- he called for a lifetime president, a national assembly, and a sovereign national govt with complete veto power over the states -- that it was henceforth ignored. While H. then threw himself into the ratification battle and wrote more than half the Federalist Papers, he continued to hold (at least until 1800) to a conception of federal power different from just about anyone else's until the Radical Republicans. Jefferson was not present at the 1787 convention, felt strong misgivings about the constitution that emerged from that gathering, and could only be persuaded to support it if a Bill of Rights was added on. Although the Constitution was very much a Virginia-style plan of govt, Jeff. was much closer to the anti-federal opposition in 1787-88 than his protege, James Madison. Jeff. resigned himself to the new order. But, beginning in 1791, he and Madison organized a new anti-Federalist opposition that in many ways was a regrouping of the old. While Jeff. didn't destroy the new federal govt in 1801 as his opponents feared, he instituted a new concept of checks and balances and separation of powers that was far more extreme than anything known previously. Indeed, it often seemed that TJ made a virtue out of govt paralysis - at least that's the way it appeared in the War of 1812 when the Madison administration all but collapsed in the wake of a British assault on Washington (led, by the way, by an Admiral Cockburn who was the ancestor of a certain well-known journalist).
But C&B and SoP are not simple, straight-forward concepts. They are part of a Constitution that is highly elastic, even paradoxical -- one that grants the federal govt huge power and at the same time saddles it with huge restraints. The resultant tension has played out over 200+ yrs of US history. But except for the quasi-revolutionary Civil War period, there has neve been a time when C&B/SoP were anything less than basic organizing principles of US law & politics.
You're quite right abt the Marshall Court serving as a Federalist hold-out until the advent of Roger Taney. But it should be obvious that unexpected assertiveness on the part of the Supreme Court did nothing to diminish C&B/SoP. Quite the contrary, it strengthened it by making the judiciary into a major new player. Post-1800, the Federalist Party was evolving rapidly. Rather than opposing Jeffersonian C&B/SoP, it countered with its own theory of the same, in which checks and balances were to take place within an unshakeable framework of constitutional law. This theory was not democratic -- indeed, it was the response of an economic and social elite, particular that of merchant capital, to populist forces that Jefferson seemed to be encouraging. But it was in no sense a repudiation of C&B etc.
Dan Lazare. <<
On Tue, 16 Jun 1998 Dhlazare at aol.com 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.
--jks
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Subject: Re: Constitutional Longevity. Was Religiosity...
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