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A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America  by Caleb Nelson

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Copyright © 1993 by Temple University and Caleb Nelson. This article appeared in the April 1993 issue of The American Journal of Legal History. At the time, Mr. Nelson was a J.D. candidate at Yale Law School; he is now Associate Professor of Law at the University of Virginia School of Law.
In 1832, when Mississippi's constitutional convention transferred the power to select all state judges from the legislature to the voters, some observers were incredulous. Although Indiana and Georgia had been electing trial judges for years, the election of appellate judges seemed beyond the pale. "Our constitution," warned a former member of Mississippi's highest court, "is the subject of ridicule in all the States where it is known. It is referred to as a full definition of mobocracy."

If so, most Americans quickly changed their minds. While every state that entered the Union before 1845 had done so with an appointed judiciary, every state that entered between 1846 and 1912 provided for judicial elections. In the more established states, furthermore, all but two of the sixteen constitutional conventions held between 1846 and 1860 called for the popular election of both appellate and inferior judges. As the nation approached the Civil War, two of every three states elected their lower courts and three of every five states elected their supreme courts.

Scholars have offered a variety of explanations for the rise of judicial elections. Most have been disparaging. Echoing the statements of convention delegates who opposed election, early twentieth-century writers tagged the reform as the outgrowth of a senseless democracy, an indiscriminate effort to make all governmental institutions fit Jacksonian theories of popular representation. Shaking his head over the reformers' "frontier logic," James Parker Hall--then the dean of the University of Chicago Law School--explained in 1915 that the change arose "not on account of any general complaint of the conduct or competency of appointed judges, but simply because a logical extension of the prevailing theory of democracy seemed to require the popular election of all possible officers of government...." James Bryce agreed that the elective system was entirely the result of "a wave of democratic sentiment." Learned Hand was almost as dismissive; to him, Mississippi's reform reflected "a burst of democratic enthusiasm" and New York adopted the reform "under the full tide of Jacksonian democracy." Lesser lights were openly scornful. New York lawyer Albert S. Bard blamed the change on "the theory that the direct vote of the people was a panacea for political ills," and H.S. Gilbertson, assistant secretary of the National Short Ballot Organization, accused "simple-hearted democrats" of entertaining "the old superstition" that popular election cures all evils.

Subsequent scholars have shared these opinions. James Willard Hurst's argument that the shift to an elected appellate bench "was based on emotion rather than on a deliberate evaluation of experience under the appointive system" reflects a long-dominant view. Indeed, Dorman B. Eaton's 1873 assertion that the change "floated in on a rush of the stream of revolution" may be the most frequently quoted assessment of the reform. According to Kermit Hall, who criticizes both Hurst's and Eaton's statements, "most scholars have insisted that emotion prevailed over reason.''

Many delegates at the state conventions certainly did use the emotional rhetoric of the day to argue their cases, with varying degrees of sophistication. Delegates branded the appointive system "a relic of monarchy" and the "last vestige of aristocracy''; some delegates referred to "the immortal Jackson,'' and there was much talk of the need to make the judiciary "consonant with our theory of government.''

But the movement reflected much more than an emotional commitment to the idea that the people should elect all their officers. At least in the early years, opposition to the reform was potent and the arguments on both sides were sophisticated; in several state conventions, in fact, the debates over the elective judiciary were so long that they prompted time limits on speeches. Most delegates clearly had more in mind than merely applying the democratic principle. In Mississippi, for instance, the same delegates who had argued passionately for the right of the people to elect their judges refused to allow the people to vote on the new constitution, despite the spirited objections of those who had favored appointment.

Some of the same commentators who have stressed the delegates' emotional commitment to the elective principle also have offered an alternative explanation for the decline of the appointed bench, arguing that most states mindlessly imitated New York's 1846 decision to elect judges. Frequently advanced by New Yorkers, this theory faces a difficulty: several states had been electing their trial-court judges, and Mississippi had been electing all its judges, well before New York considered following suit. Dorman Eaton, one of the theory's early partisans, simply ignored this fact; in arguing that New York "induced most of the younger and some of the older States to commit themselves to the rash experiment of an elective judiciary,'' Eaton asserted that until New York set its "hasty example" every state had always appointed all its judges. More accurate commentators, such as Professor Francis R. Aumann, instead have argued that New York's move gave the reform "widespread acceptance"; states "followed the lead of New York," not Mississippi.

But if conventions had treated the policies of other states as conclusive, the debates would have been substantially shorter. While there is no doubt that New York helped legitimate the elective system, its change did not carry overpowering weight. The other conventions tended to rely on Mississippi's experience as much as on New York's; certainly the Kentucky delegate who referred to the reform's success in Mississippi "and elsewhere" showed no special confidence in New York. The New York convention, for that matter, also cited the Mississippi experience. . .

But there are many reasons to doubt that the move to an elected judiciary was chiefly a partisan reform . . . Partisan patterns are simply impossible to detect. States where Whigs controlled the state government--though few and far between by 1850--seemed almost as likely as Democratic states to switch to the elective method. Kentucky's Whigs had held the governorship and both houses of the legislature for years when the state switched to an elective judiciary, and Vermont's Whigs were no less dominant when the state began to elect inferior-court judges in 1850. In contrast, Maine--controlled by Democrats throughout the period in which the elective judiciary was on the rise--never adopted the reform. Many states in which neither party was dominant enacted the elective system, but other such states retained the appointive method. Even inside the states that switched to the elective system, partisan alignments are sometimes hard to define.

Results do not always match intentions, but if partisan Democrats expected the elective system to give them control of the judiciary, they must have been disappointed. In Mississippi, two of the three members of the nation's first elected court of last resort were Whigs, at least one of whom was "strongly opposed to an elective judiciary. . .

Views about the ideal judge did not distinguish supporters of the elective judiciary from their opponents. Instead, the two camps diverged over how to ensure that flesh-and-blood judges approached this ideal. Predictably, that difference in turn sprang from their profound division over whether the electorate's representatives could be trusted to act in the people's interests. Where the supporters of an elective judiciary believed that the people would secure better judges than their elected representatives, the supporters of an appointive judiciary believed that the people's elected representatives could promote the people's long-run interests more effectively than the people themselves. In each state convention, the debates boiled down to two camps one that opposed official power and one that favored it . . .

It was far better, the supporters of appointment argued, to give the power of selecting judges to one conspicuous public servant who had sufficient resources to gather the necessary expert opinion, and who would feel responsible--and could be held accountable--for poor choices. In addition to putting the choice in the most suitable hands, appointment for life would insulate judges from political pressures and make the courts "as independent as the lot of humanity would admit."

The election camp took exactly the opposite line. Since it distrusted the sectional and partisan motives of the government officials who controlled judicial appointments, it argued that only the people themselves could be counted on to look out for their best interests. As The Western Law Journal put it, "[T]he whole people can have but one motive; and if they fail in the selection of good men, it will be by mistake, and not design. Intrigue, combination, and faction, which oftentimes prove so potent with small bodies of men, are powerless with the whole mass of voters. ". . .

Where the supporters of an appointive judiciary called for judges independent of all influences, the supporters of the elective system tended to believe that influences of some sort were inevitable, and that the influence of the whole people was preferable to the influence of smaller groups. As Francis Bristow explained to the Kentucky convention, the judge "is to look somewhere for his bread, and that is to come from the people. He is to look somewhere for approbation, and that is to come from the people.'' In the Massachusetts convention, Edward Keyes emphasized that appointment for life did not make angels out of judges: "They are men, and they are influenced by the communities, the societies and the classes in which they live, and the question now is, not whether they shall be influenced at all, . . . but from what quarter that influence shall come.". . .

The historical context in which the elective judiciary arose supports the idea that the reform was motivated by general suspicion of official power. . .

It is natural to understand the rise of the elective judiciary in light of this distrust of power, for the same distrust was central throughout the Jacksonian period. While some historians have seen Jacksonian democracy as the reflection of a new commitment to laissez-faire libertarianism, others have argued more persuasively that it built on the old fear of unrepresentative officers. Andrew Jackson saw himself as an heir of "good old Jeffersonian Democratic Republican principles," and his presidential campaigns "appealed to republican nostalgia." Echoes from the past are unmistakable in the Jacksonians' recurrent condemnations of the use of government to promote narrow interests and to confer special privileges. According to Robert Remini, Jackson's leading biographer, Old Hickory was "in the true Jeffersonian tradition, only more emotional in his commitment to and affection for the great masses of people."

Jackson had first-hand reason to doubt the motives of the people's agents. As the leading vote-getter in the 1824 presidential election, he was convinced that he had been kept out of the White House by a "corrupt bargain" between Henry Clay and John Quincy Adams, in which Clay threw his electoral votes to Adams in exchange for a cabinet position. After he did become President, Jackson's messages repeatedly stressed his abiding faith in "the first principle of our system--that the majority is to govern." His proposals that the Electoral College be abolished, that senators and federal judges be elected directly by the people, and that civil servants regularly be rotated out of office smacked of his distrust of irresponsible power. Indeed, his distrust of the people's agents was matched only by his trust in the people themselves. "Perhaps more than anything else," Remini concludes, "he believed in a virtuous people and was supremely optimistic about the capacity for self-government." Like Jefferson, Jackson believed that federalism and civic virtue would combine to keep national majorities from mistreating local interests, and to that extent he favored minority rights. But in the nullification controversy with South Carolina, Jackson firmly disavowed Vice President John Calhoun's proclamation that "constitutional government and the government of a majority are utterly incompatible.''. . .

The early commentators who disparaged the elective judiciary as the outgrowth of unthinking Jacksonianism were obviously correct to see reform of the judiciary as pan and parcel of the larger democratic movement. But the reformers were hardly simple-minded democrats. Indeed, the reform was more sophisticated than even Hall suggests. As Hall argues, those who supported the elective system in the state conventions aimed to strengthen the judiciary at the expense of the legislatures. But their goals were much broader. With its intellectual roots in the proud philosophical traditions of the Founding, the elective judiciary was intended to enlist some officials--judges--in the process of weakening officialdom as a whole. At the same time, other reforms were curtailing the independent powers of judges themselves, in a concerted effort to rein in the power of all officials to act independently of the people.

In all their reforms, the convention delegates sought to adjust the position of government officials to give them strong incentives to heed the public good. When Nathaniel Holder told the Massachusetts convention that he supported the elective system "for the purpose of placing [judges] in the right position," he articulated the delegates' attitude toward government officials as a whole. Since all officials tended to act out of self-interest, the trick was to align their interests with those of the people. In this sense, the judiciary became elective not so much to permit the people to choose honest judges as to keep judges honest once they reached the bench. Elections mattered most not because of whom the voters chose--any reamed and impartial lawyer, the delegates thought, could become a competent judge--but because of the influences that the elections themselves created.

It seems obvious to say that the elective judiciary arose from a fear that irresponsible power threatened the people's liberty. Here common sense triumphs over scholarship; anyone hearing about the elective judiciary for the first time would simply assume that the debates boiled down to the clash between populism and paternalism. But the richness of the underlying theory is apparent in the paradox that it raises: In a debate that reflected a profound dispute over how far the people could trust their elected agents, the supporters of the appointive system ended up professing more faith than their opponents in the capacity of elections to secure benevolent guardians of the public interest.

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