The War of 1812’s end heralded a new era for the courts, and for the nation. Political leaders emboldened by having fought Great Britain to a standstill were eager to lay the groundwork for a new American empire. But adventurous Americans had their own priorities, and privateering on behalf of South American revolutionary governments offered new opportunities for wartime profit. Like the British in the 1790s, Spanish and Portuguese officials demanded that the federal government suppress such freelancing. To preserve relations, the Madison and Monroe administrations dusted off a tool for suppressing maritime violence that previous administrations had largely eschewed – criminal prosecutions for piracy. But a patchwork statutory regime and popular support for South American rebels made convictions difficult to secure. At a deeper level, privateering cases raised thorny questions about the sovereign status of former colonies seeking autonomy. As Congress and the executive branch struggled to adapt to the rapidly shifting political context in the Americas, federal judges expressed renewed doubts about extending their authority onto the high seas. The renaissance of privateering threatened to derail the American imperial project just as it was getting started.

Early in the nineteenth century, the political parties formalized their nomination process, entrusting the choice of nominee to their congressional caucuses. Soon though, concerns about representation and corruption began to undermine the legitimacy of the process. In 1824, in an effort to displace the congressional caucus process, state Democratic-Republican legislative caucuses in five different states nominated five different candidates for the party. The result was disastrous, with the five candidates splitting the Electoral College vote and triggering the contingent election process. In 1832, keenly aware of the need for a centralized process that would select one nominee for the party, the Democrats settled upon holding a national convention of delegates from the various states to select their nominee. The creation of the national party convention, however, did not democratize the process as much as reformers hoped. As the first national party conventions revealed, most of the delegates were state and local officeholders and prominent citizens. Ordinary voters still remained largely excluded from the process.

The electoral college’s provisions for contingent elections of the president and vice president blatantly violate political equality, directly disenfranchise hundreds of thousands of Americans, have the potential to grossly misrepresent the wishes of the public, make the president dependent upon Congress, give a very few individuals extraordinary power to select the president, have the potential to select a president and vice president from different parties, and fail to deal with a tie for third in the electoral college. In addition, any resolution of a congressional choice of the president is likely to be tainted with charges of unsavory transactions. It is no wonder that even the most stalwart defenders of the electoral college choose to ignore contingent elections in their justifications of the system of electing the president.

Chapter 3 examines the Petition Clause of the First Amendment. Petitioning is the oldest of the rights of the Democratic First Amendment, with roots in pre-Norman England and given explicit protection in the Magna Carta in 1215. It originated as a means for individuals to seek redress from the king for private harms. During the seventeenth and eighteenth centuries, however, it evolved into a means for citizens, generally acting in groups, to seek changes in public policy from the legislature. As such, petitioning was an essential element of democratic governance in America during the colonial era and the early Republic. It was a crucial means for citizens to bring their concerns to the attention of their elected representatives in between elections, and the only means for citizens who could not vote – which during this period meant the majority of citizens — to influence their government. Furthermore, during this period American legislatures felt an obligation to respond to properly filed petitions. Petitioning declined during the years leading up to the Civil War, however, and in our modern democracy it unfortunately plays a relatively trivial role.

William H. Williams’ slave jail, the Yellow House, garnered a great deal of controversy as the abolitionist movement gained momentum. Abolitionists decried the slave coffles that marched through the District of Columbia, yet from the mid–1830s to mid–1840s, the "gag rule" stymied debate over the antislavery petitions submitted to Congress. Shortly before the presidential election of 1844, Thomas Williams flew a flag of the Democratic Polk/Dallas ticket above the Yellow House. The banner ignited a newspaper war in the nation’s capital, as the Democratic organ, the Washington Globe, claimed the move a clever Whig ruse to smear the Democratic Party with the odium of slavery. Washington’s Whig mouthpiece, the National Intelligencer, made the much simpler argument that Thomas Williams flew the Polk/Dallas flag because the slave dealer was, in fact, a Democrat.