At the end of his first year in office, President Thomas Jefferson complained bitterly to a political supporter that “the Federalists have retired into the judiciary as a stronghold.” “There,” he feared, “the remains of federalism are to be preserved . . . and from that battery all the works of republicanism are to be beaten down and erased.”Jefferson to John Dickinson, December 19, 1801, The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb (Washington, D.C.: Thomas Jefferson Memorial Association, 1903), 10:302. See Jefferson to Joel Barlow, March 14, 1801, Writings of Jefferson, 10:223. Jefferson's chief lieutenant in the Senate, William Branch Giles, had six months earlier informed his commander that “[t]he Revolution [Republican success in 1800] is incomplete so long as that strong fortress [the Judiciary] is in possession of the enemy.” Giles to Jefferson, June 1, 1801, quoted in Albert J. Beveridge, The Life of John Marshall (Boston: Houghton Mifflin Company, 1919), 3:22. See James Monroe to Thomas Jefferson, March 3, 1801, The Writings of James Monroe, ed. Stanislaus Murray Hamilton (New York: HMS Press, 1969), 3:263–64; Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, and Company, 1947), 1:192–94. Subsequent Democratic-Republican political efforts to oust the Federalists from this high ground by impeaching hostile justices, appointing friendlier justices, and publicly pressuring the Marshall Court apparently failed. “After twenty years' confirmation of the federated system by the voice of the nation, declared through the medium of elections,” Jefferson bemoaned in 1819, “the judiciary on every occasion [is] still driving us into consolidation.”Jefferson to Judge Spencer Roane, September 6, 1819, Writings of Jefferson, 15:212. See Jefferson to James Bowdoin, April 2, 1807, Writings of Jefferson, 11:186; Jefferson to Caesar Rodney, September 25, 1810, Writings of Jefferson, 12:245; Jefferson to Albert Gallatin, September 27, 1810, Writings of Jefferson, 12:425; Jefferson to James Madison, October 15, 1810, The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776–1826, ed. James Morton Smith (New York: W.W. Norton & Company, 1995) 3:1646–47. The sage of Monticello in his last years repeatedly warned his correspondents that “those who formerly usurped the name of federalists” were “almost to a man . . . in possession of [the judicial] branch of the government.”Jefferson to Robert Garnett, February 14, 1824, Writings of Jefferson, 16:14. See Jefferson to Albert Gallatin, August 2, 1823, The Works of Thomas Jefferson, ed. Paul Leicester Ford (New York: G.P. Putnam's Sons, 1905), 12:299–300; Jefferson to Samuel Smith, August 2, 1823, Works of Jefferson, 12:301; Jefferson to William Johnson, March 4, 1823, Works of Jefferson, 12:279; Jefferson to Henry Dearborn, October 31, 1822, Works of Jefferson, 12:264–65. Other Old Republicans voiced similar concerns. See “Somers,” “Examination of the Opinion of the Supreme Court in the case of Cohens vs. the State of Virginia,” Richmond Enquirer, May 15, 1821; Spencer Roane, “‘Hampden’ Essays,” John Marshall's Defense of McCulloch v. Maryland, ed. Gerald Gunther (Stanford: Stanford University Press, 1969), 151. See also, Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 3rd ed. (New York: Oxford University Press, 1992), 87; George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801–1815 (New York: MacMillan Publishing Co., Inc., 1981), 312–13; G. Edward White, The Marshall Court and Cultural Change 1815–1835 (New York: Oxford University Press, 1991), 774–77.

[New York] city is ruled entirely by the hayseed legislators at Albany. I've never known an up-State Republican who didn't want to run things here. . . . We've got to eat and drink what they tell us to eat and drink, and have got to choose our time for eatin' and drinkin' to suit them. If they don't feel like takin' a glass of beer on Sunday, we must abstain. If they have not got any amusements up in their backwoods, we mustn't have none. We've got to r egulate our whole lives to suit them. And then we have to pay their taxes to boot.

George Washington Plunkitt.William L. Riordon, Plunkitt of Tammany Hall: A Series of Very Plain Talks on Very Practical Politics, ed. Terrence J. McDonald (Boston: Bedford Books, 1994), 59–60.

The Social Security Act of 1935 is widely considered to have established an American welfare state that is “two-tiered” or “two-track” in character, and which divided American social citizenship by gender.This depiction is commonplace; for a recent example of its use, see Dia ne Sainsbury, Gender Equality and Welfare States (Cambridge: Cambridge University Press, 1996), 28–29. It seems to have originated in Nancy Fraser, Unruly Practices: Power, Discourse, and Gender in Contemporary Social Theory (Minne apolis: University of Minnesota Press, 1989), 144–60 and Barbara J. Nelson, “The Origins of the Two-Channel Welfare State: Workmen's Compensation and Mothers' Aid,” in Women, the State, and Welfare, ed. Linda Gordon (M adison: University of Wisconsin Press, 1990), 123–51. Scholars have generally assumed that to the extent such “gender bias” emerged in public policy, it must have been manifest in the law from the outset, inscribed in the differ ences between the work-related, contributory plans in the legislation versus the need-based, grant-in-aid public assistance programs.For example, see Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890–1935 (New York: Free Press, 1994), 253–85; also Fraser, Unruly Practices, 149–53. Yet, although the two major social programs for non-elderly American in the Social Security Act differed in such re gards, they emerged from the policymaking process in 1935 on fairly equal ground, with seemingly similar prospects for success or failure.

I will begin this essay with a fugitive slave case in my home state of California, Ex parte Archy, decided by the state Supreme Court in 1858.9 Cal. 147 (1858). A full narrative of the case is in Paul Finkel man, “The Law of Slavery and Freedom in California, 1848–1860,” California Western Law Review 17 (1981): 437–464. While he lived in Mississippi, Archy (Lee), nineteen years old, was the slave of a man named Charle s Stovall. In 1857, Stovall brought Archy with him to California on a visit for health reasons, planning to stay no more than eighteen months. Having sold his wagon and team before crossing the Sierras, Stovall bought a farm, moved to Sacramento, and open ed a school. He hired Archy out to another man, but after a few weeks, when the slave became ill, he put him on a river steamer to San Francisco with the intention of shipping him back to Mississippi in the custody of an agent. Archy escaped.

The classical problem of any opposition . . . is how much to oppose and by what means.Przeworski quoted in Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective, e d. Scott Mainwaring, Guillermo O'Donnell and J. Samuel Valenzuela (Notre Dame, Ind.: University of Notre Dame Press, 1992), 124.

Adam Przeworski

Even if members of an opposition group could be entirely uniform in their beliefs and goals, there are myriad strategic choices to be made by those out of power. Leaders must decide whether to concentrate on a few agenda items or press for wholesale change. They must determine the pitch of their opposition, choosing conciliatio n or adamancy. Tactics and arguments require formulation and reformulation, offering a kaleidoscope of possibilities but also peril. Opposition groups in particular need to evolve – not an easy task – for their previous attempts at winning hea rts and minds proved unsuccessful. The clearest political analyses focus on who won: elections, policy battles, and revolutions. Unfortunately, clarity is frequently bought at a high price: a lack of nuanced attention to the positions and strategies of op position leaders and groups. Their choices matter.