Marcus Carey’s On the Marc: Our history
shows factionalism was here from beginning

By the time John Adams had served out his first term following the new nation’s reverence for George Washington, a new kind of factionalism had developed into a deep divide within the ranks of America’s leaders. It was similar to the divide represented by the debates which had taken place in the Federalist Papers, but when the presidential elections of 1800 rolled around, philosophy had become “party”.

President Adams was forced to reckon with Thomas Jefferson as his vice-president even though Adams was a “Federalist” who tended toward a more centralized government and aligned himself with the British, and Jefferson was a “Democrat-Republican” whose philosophy was far more one of de-centralization and which favored France. With a great deal of political maneuvering, Jefferson captured the presidency, but politics more than character counted in the result.

No doubt Jefferson was highly respected as a founder of the nation, but then again, so was Adams. The partisan skill which gave Jefferson the win in this bitter rematch with Adams was born out of a glitch in the system which the founders had devised just a few years earlier.

The original Constitution called for the electors to vote for two men for president. The highest vote getter would be president, the second highest vice president. In the election of 1800 Jefferson persuaded all of the “Democrat-Republican” electors to vote for both him and his chosen running mate, Aaron Burr. The problem was that Burr, not really anybody’s choice, nearly won. In fact, the two of them tied and the election was then thrown into the lame duck Congress which at the time was controlled by the Federalists, the party of John Adams. They despised both Jefferson AND Burr.

By only a hair’s breadth, using great political skill, the nation avoided having the “wrong man” as president. As a result of the development of political parties around the factions within the system, an amendment to the framer’s own document was required.

Henceforth, beginning with the election of 1804 electors voted for a president and vice president separately, there was born the political “ticket” and the factions began the process of nominating their own candidates, under their own banner to run for office. For the first time, the legislative “caucus” and the election of a president went ‘national’.

But there was also an unintended consequence of the deep divide which resulted in Jefferson narrowly winning the contest. While all of the nation’s attention was focused upon the struggle for the executive branch, a very small controversy by comparison opened the door for the supreme court to declare for itself an enormous power which in all likelihood took the world by surprise.

In the weeks after Adams lost to Jefferson, his Federalist controlled congress created a number of new “Circuit Courts”. Adams then placed federalist judges in these new positions.

Some of these “midnight appointments” were not officially delivered to the appointees until after Jefferson had taken the oath of office. One of these simple justice of the peace appointments was supposed to go to a man named William Marbury.

Interestingly the appointments made by Adams, were actually set under the seal of Adams secretary of state at the time, John Marshall. Marshall was about to leave office and assumed that the incoming secretary of state, James Madison would simply carry out the will of Adams after Adams was gone.

Jefferson refused and William Marbury sued by bringing an original action in the new supreme court seeking a “Writ of Mandamus” demanding that Secretary of State, James Madison, deliver the appointment. What happened in that case has forever changed America. It is the now famous case of Marbury vs. Madison.

By the time the case was heard, the author of the court’s opinion was none other than John Marshall himself, the secretary of state under Adams who had set the seal on Marbury’s appointment.

In keeping with legal tradition, Marshall considered all of the legal arguments in a way which sought to avoid any constitutional issues, but in the end he ruled that Marbury would not be given the commission. What he wrote is the controlling precedent for the power the supreme court enjoys today.

Marshall considered that Marbury had petitioned the supreme court, not on an appeal, but by way of an “original action”. Marshall wrote that while Marbury had a right to have the appointment delivered, he did not have a right to bring an “original action” in the supreme court. Why?

Marshall ruled that the action was based upon the Judiciary Act of 1789, passed by congress vesting original jurisdiction for such lawsuits in the supreme court, but that Congress had overstepped the limited authority granted to it under the constitution and attempted to confer jurisdiction upon a “co-equal” branch of government, established by that same constitution, and as such violated the separation of powers and acted unconstitutionally.

In so ruling the supreme court declared for itself, the superior position, recognized to this day, which gives it the power to interpret the legal effect of all laws and regulations enacted by Congress, and to interpret the meaning of the Constitution itself.

While the bloody revolution for Independence might have been over, battles still raged in this new nation surrounding the election of 1800 and in its aftermath a number of dramatic changes arose which forever altered the landscape of American politics.

Tomorrow I will discuss how the new factionalism and party structure rendered itself into a geographical divide and after a number of other wars had taken their toll, led to the one war which killed more Americans than all the others, before or since.

Marcus Carey is a Northern Kentucky lawyer with 32 years experience. He is also a farmer, talk radio host and public speaker who loves history and politics. He is a prolific and accomplished writer whose blog, BluegrassBulletin.com is “dedicated to honest and respectful comment on the political and cultural issues of our time.” He writes a regular commentary for KyForward.