Studies in American Political Development

Research Article

Before the Countermajoritarian Difficulty: Regime Unity, Loyal Opposition, and Hostilities toward Judicial Authority in Early America

Stephen M. Engela1

a1 Marquette University


Traditional accounts of presidential hostility toward judicial authority rely on the federal judiciary's structure for explanatory leverage, focusing particularly on the court's potential to reach countermajoritarian rulings. By evaluating executive-judicial relations during the early republic, that is, the years prior to the Civil War, I suggest that anti-court sentiment stemmed not only from antipathy toward unelected judges or the seemingly undemocratic possibilities of judicial review, but also from a civic republican apprehension toward opposition. I show, first, that Jefferson, Jackson, and Van Buren considered open and stable opposition to be a harbinger of civil unrest and strove to preserve unity among the federal branches, and second, that this fear and corresponding aspiration toward unity underlay these presidents' concerns about judicial authority. As such, I argue that the presumption of the judiciary's countermajoritarian difficulty could be understood as a political development rather than a structural anomaly of the Constitution. In making this claim, I highlight the power of entrepreneurial presidents to drive conceptual change. Furthermore, focusing on the politics of opposition as a key element in the development of presidential-judicial relations broadens how we think of civic republicanism as an organizing political principle, defining not only early American political culture and electoral politics, but also influencing matters of governance.


Research for this essay was funded by the National Science Foundation's Doctoral Improvement Grant in Law and Social Sciences (SES-0719031), an American Bar Foundation Doctoral Research Fellowship in 2007–2008, and a 2006 summer grant from the Center for the Study of American Politics at Yale University. The author thanks Stephen Skowronek, Greg Huber, Bruce Ackerman, Bryan Garsten, David Mayhew, Mark Graber, Alex Kirshner, Robert Person, Abbey Steele, Stephen Kaplan, Daniel Galvin, Traci Burch, Bonnie Honig, Robert Nelson, Laura Beth Nielsen, Brian Falb, and anonymous reviewers for comments and critique. The author also thanks the editors of Studies not only for their constructive criticism, but also for their continued faith in this piece.