The Jacksonian Conservatism of Rufus P. Ranney. David M. Gold
the states’ ability “to manage their own concerns in their own way” and thereby imperil the “Liberty of the people.”8 For Jackson, states’ rights bolstered the principle of majority rule by keeping the federal government out of entanglements with privately owned internal improvement projects and by leaving “the great mass of legislation” to the state governments, which were closer to the people.9
The limited-government, states’-rights ideology of the Democratic Party has been called “functionally proslavery” because it promised to prevent a potential antislavery northern majority from using the federal government to confine or abolish slavery.10 But the idea of limited government had wider application; even within the states, it sometimes collided with the principle of majority rule. Jackson claimed to have learned his political creed “in the old republican school.” In 1829, though, the Old Republican John Randolph scorned “King Numbers” and railed against the “deadly principle” “that a bare majority may oppress, harass, and plunder the minority at pleasure.” Virgil Maxcy, Jackson’s solicitor of the Treasury, observed in 1833 that a majority was no more exempt than individuals from natural human selfishness. “The majority therefore will oppress and throw an undue share of the burthens of government upon the minority, or promote its own interest at the expense of the minority,” said Maxcy, “unless there be interposed, for the protection of the latter, some check upon this selfish principle.” Bills of rights were classic examples of such checks, shielding individual rights from legislative action, “however large the majority.” Democratic journalist William Leggett, too radical for party regulars, complained in 1837 that despotism had come to mean not only autocratic rule by a single individual but also the tyranny of “the majority of a community, combined under strict party organization, and ruling the minority with dictatorial and imperious sway.”11
The conflict between majority rule and minority rights came to a head in the state constitutional conventions of the mid-nineteenth century. After Ohio and other states, as a result of their heavy involvement in internal improvement schemes, got hammered by the depression of the late 1830s and 1840s, many Democrats sought strict constitutional controls on the taxing and spending powers of state and local governments, even to the point of prohibiting the creation of public debt approved by the electorate. “Sir, I am not afraid to trust the people,” declared one Democrat. “But I will not give my consent that a majority shall tax and virtually rob a minority.” The clash between majority rule and minority rights meant that Jacksonian Democrats would leave an ambiguous legacy for jurists and politicians to consult in the postbellum period and for historians to interpret thereafter.12
Ranney, as a constitution-maker and judge, viewed issues involving popular government, equality, and limited government through a Jacksonian lens. He strictly construed the state and federal constitutions to safeguard the sovereignty of the states and the rights of the people. In shaping the common law, he enhanced the power of the jury, made corporations liable for injuries to employees and third parties, and protected society’s underdogs. Scholarly discussions of Jacksonian jurisprudence tend to focus on a handful of United States Supreme Court cases; but Ranney’s opinions, taken as a whole, point to the existence of a broader approach to judicial decision-making that reflected Jacksonian political values.
I do not mean to imply that Ranney or any other judge consciously formulated doctrine or rendered decisions on partisan grounds. Democratic judges sometimes disagreed with each other, and Whig judges often concurred with their Democratic colleagues. When a delegate to Ohio’s constitutional convention insinuated that some judges were tools of “the money power,” Peter Hitchcock, the state’s distinguished chief justice, retorted:
When I took my seat upon the bench, Mr. Chairman, I took an oath . . . that I would administer justice without respect to persons, and do equal justice to poor and rich; that I would faithfully and impartially discharge and perform all the duties incumbent upon me as a judge of the supreme court, to the best of my ability, understanding, and agreeably to the constitution and law of this State. . . . [S]hall I sacrifice that oath in order to meet the wishes of a political cabal or a political party?
Joseph Swan, also of the Ohio Supreme Court, would forfeit his judicial career a few years later by casting a key vote against his own political preference.13 Still, however conscientious judges might have been about deciding cases on the basis of law rather than politics, the same values underlay their approach to both.
Ranney made his greatest mark where politics and law met: at the constitutional convention and in judicial decisions on Ohio’s new constitution. His thinking at this junction reveals the continuing impact of Jacksonian ideology beyond the time when the Age of Jackson supposedly ended and new issues replaced the old ones that had traditionally distinguished Democrats from Whigs. Ranney went into the convention with a reputation as a Radical Democrat, but there was a conservative strain to his thought that became clearer as he steadfastly adhered to Democratic principles through the intensification of the sectional crisis in the 1850s and the eruption of civil war. (“Radical” with a capital R generally refers to the dominant wing of the Democratic Party during the Jacksonian period or, later on, to the most antislavery Republicans. When used with a lowercase r, “radical” is a more generic adjective.)
To call Ranney a conservative is to raise the perplexing question of the nature of conservatism in nineteenth-century America. Clinton Rossiter called conservatism “one of the most confusing words in the glossary of political thought.” “The conservative movement,” wrote Russell Kirk, “can accommodate a considerable diversity of views on a good many subjects, there being no Test Act or Thirty-Nine Articles of the conservative creed.” Perhaps that explains why historians have characterized all the major parties of Ranney’s time—Whig, Democratic, and Republican—as conservative.14
In the sprawling, brawling, decentralized American democracy of the 1830s and 1840s, no political party could hope to succeed by forcing a creed on its adherents, although Martin Van Buren tried to create a disciplined Democratic Party that would unite behind policies adopted, at least theoretically, by the majority of its members. After Van Buren’s accession to the presidency and the shock of the Panic of 1837, Democrats split into Conservative and Radical camps. The Conservatives often cooperated with the Whigs, and some eventually joined the Whig Party. Van Buren, meanwhile, moved the Democratic Party in a Radical direction. Although there were true radicals in America who sought large-scale social or political changes, Van Buren was not by nature one of them. But as party differences sharpened after the Panic and as Democratic leaders insisted upon party loyalty in battles over the administration’s economic policies, mainstream democracy came to be characterized by Radical attitudes—extreme hostility toward banks and their paper money, deep suspicion of governmental power that too easily became the tool of corporations and “aristocrats,” a belief that “power is always stealing from the many to the few” (the motto of the United States Telegraph and other Democratic newspapers). In the battle for the soul of the Democratic Party, the Van Burenites crushed the Conservatives. Jacksonian Democracy came to be Radical Democracy.
Conservatives (with a small “c”) found their political home among the Whigs. The American Review, the Whigs’ intellectual organ from 1845 to 1852, gloried in the conservative label. The distinctive conservative principles of the Whig Party, wrote the Review, were “its steady and habitual submission to law—its deference for vested rights—and abhorrence of all violent and disorderly attempts to alter or overthrow existing institutions.” Whigs, as true conservatives, were not averse to change, but they insisted upon “the intelligent and seasonable combination of Order and Improvement.” The conservative party, according to the Review, “venerates the wisdom of experience and loves the virtue and purity, the customs and associations of the past, and feels its connection with the race, and would not strike boldly out of the track, or forsake the direction or quicken the prudent pace at which the world has arrived at its present position.” In contrast, “Young America,” the exuberant young Democrats who wanted to create a new American culture and fulfill America’s “manifest destiny” to spread freedom across the continent, “despises the old-womanish maxims of the Past . . . would set the world upon wholly new feet, and at once reduce an ideal theory . . . to practice, at any cost