The Southwestern Historical Quarterly, Volume 105, July 2001 - April, 2002 Page: 431
741 p. : ill. (some col.), maps, ports. ; 23 cm.View a full description of this periodical.
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Jacksonian Justice
tenure, but were rather the ideas and impulses of a violent swing toward the
democratization of government generally.5
Haynes cited a variety of factors that led to the elective judiciary,
including the "rise of the common man" in the new western states, a
general revolt by "poor and uneducated" pioneers against aristocratic
institutions, expanded suffrage, and the rise of British, Scottish, and
Irish immigrants who were previously subject to court-directed persecu-
tion. In concluding his analysis, Haynes stated that the shift to the elec-
tive judiciary occurred "almost completely without regard for the partic-
ular considerations of policy and principle which arise out of the nature
and function of the judicial arm of the government."6
Hurst echoed many of Haynes's sentiments, emphasizing that the rise
of the elective judiciary was not a thoroughly deliberated choice. He
characterized the shift to popular election as "one phase of the general
swing toward broadened suffrage and broader control of public office
which Jacksonian Democracy built on the foundations laid by Jefferson."
Noting the lack of historical record, he concluded that the move toward
popular election of judges was based on emotion and not on a detailed
evaluation of the appointive system. As states continued to choose a pop-
ularly elected judiciary, they did so more out of imitation.' The "tradi-
tional view," therefore, can best be summarized as states adopting an
elective versus appointive judiciary as part of an unthinking, emotional
adherence to the principles ofJacksonian democracy.
In 1983 Kermit Hall expressed a contrary view, asserting that the consti-
tutional conventions of the settled states between 1846 and 186o gave
extensive consideration to the judicial selection process. The state conven-
tions were dominated by the issues of popular control of the government
and separation of powers. Moderate Whig and Democratic lawyer dele-
gates shaped the choice of popular judicial selection.8 Hall stated that the
decision to elect state court judges was neither emotional nor expedient:
It was an essentially thoughtful response by constitutional moderates in the legal
profession to ensure that state judges would command more rather than less
power and prestige.'
By analyzing the convention records of Ohio, Kentucky, New York,
Massachusetts, Maryland and Indiana, Hall determined that moderate
Ibid., ioo.
6Ibid., 86-88, lo.
7James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown and
Co., 1950), 140-141.
" Hall, "The Judiciary on Trial," 339-340, 343.
1 Ibid., 354.2002
431
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 105, July 2001 - April, 2002, periodical, 2002; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101222/m1/475/: accessed April 27, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Texas State Historical Association.