When the American colonists broke away from Britain in the 1770s, one of the first challenges they faced was constructing new governments for their states and their nation. Though the details differed, three common factors defined the parameters of what they produced: their British constitutional heritage, the recent experience fighting against British "tyranny," and the need to develop these governments while simultaneously fighting a war for independence. The result was governments in which power was concentrated in the legislature, with the other branches of government placed under considerable constraints. Yet this soon proved only the start of a decades-long effort to develop a workable governing balance, one that extended well into the 19th century.
Richard E. Ellis's book addresses one of the most overlooked aspects of that effort. Using the Jeffersonian Republicans' confrontation with the Federalist-dominated federal judiciary after 1801 as his starting point, he investigates how Americans viewed the role of the judiciary within their new republic. Like the executive, the judiciary suffered from the association with royal control, as most judges during the colonial era were the appointees of the royal or proprietary governors and more responsive to royal interests than those of the colonials. With independence many radicals sought to establish systems in which conflicts were resolved through arbitration by lay citizenry rather than a judicial system dominated by legal technicians. While these views were in the minority, the prevalence of such sentiments often led to the creation of judiciaries more responsive to popular or legislative control.
The ratification of the Constitution paved the way for the creation of a new judiciary, one in which judges held lifetime appointments. For the first twelve years, the appointees to the federal bench were all Federalists, reflecting the party politics that coalesced during the 1790s. With the election of Thomas Jefferson as president in 1800, as well as a Congress controlled by his Republican Party, the lame-duck Federalists created a host of new Federalist judicial appointments with the Judicial Act of 1801 in an effort to turn the branch into a bulwark against Republican radicalism. Yet Jefferson's rhetoric soon proved far more radical than his governance, and without the unifying force of opposition to a Federalist administration, the Jeffersonian Republicans soon fractured into moderate and radical wings. Though they succeeded in repealing the Judiciary Act of 1801, efforts by the radicals to purge the bench through impeachment came to a quick end, as moderate Republicans sided with Federalists in cementing the principle of an independent, non/bi-partisan judiciary that supported a uniform system of common law and aided the growth of a commercial economy.
Ellis's book is a valuable study of an often ignored yet vitally important aspect of the development of the early American government. His integration of debates at the state level with those in national politics is a particular strength, as it demonstrates how the issues were not ones of partisan politics but part of a larger effort to determine the role of judiciary in governance. It makes for a book that should be read by anybody interested in the history of the constitution, the history of the early republic, or simply anybody curious to know why we have the legal system we do today. For as Ellis demonstrates, the debates over the judiciary that took place in the 1790s and early 1800s are ones that echo down to the present day.