Friday, April 23, 2010


A Review of James F. Simon’s What Kind of Nation: Thomas Jefferson, John Marshall And The Epic Struggle to Create a United States (2006)

(Rating:5 of 5)

Thomas Jefferson and John Marshall were two of the most important men in our nation’s history. They both served in the American Revolution, Jefferson more famously as the author of the Declaration of Independence and as diplomat, and Marshall as a junior officer in George Washington’s army. Their careers, however, would intersect when they both reached their pinnacle. Thomas Jefferson as President of the United States and John Marshall as the Chief Justice of the United States Supreme Court. The battles between the Jefferson Administration and the Marshall Court were critical in shaping the government that we know today. In his work, What Kind of Nation, Simon describes these battles and recreates the world from which they had been fought.

Since Jefferson in this stage of his life, his political career from the 1770s onward, is better known even amongst us plain general knowledge historians, I found some of his descriptions on Marshall’s career far more interesting. George Washington’s recruitment of him as a congressional candidate, during a visit to Mount Vernon, with the former president’s nephew Bushrod, is one such adventure.

“Over the next four days, Washington flattered, cajoled, and entreated both men to agree to become candidates for Congress. Bushrod could not, and did not, refuse his esteemed uncle. Bust Marshall balked, even when Washington arrange another festive banquet in his honor in nearby Alexandria. He must make good on his debt, Marshall told Washington, and a seat in Congress would not allow him to do so. Finally, on the fourth day, Marshall decided to leave before sunrise to avoid another confrontation with his mentor. But Washington, anticipating his guest’s early departure, greeted him on the piazza—in full military uniform—and made a last plea to Marshall.” p.68

Marshall would not serve in Congress long. President Adams makes him the country’s new Secretary of State, after getting rid of his previous Hamilton-dominated Cabinet officers. After Adams stunning defeat to his own vice president, Thomas Jefferson, in the election of 1800, Adams begins to stuff the court with Federalist judges, appointing his own Secretary of State, Mr. Marshall, to the top job.

This sets the stage for the great battles that take place between the two American icons. The most famous of these is without a doubt, Marbury vs. Madison. The circumstances for this are very odd, and Simon points out in his book there were many reasons that the Chief Justice could have abstained from the case. Marshall was the Secretary of State whose commissions his predecessor refused to deliver. However, he carefully danced around those issues and gave the most important decision ever. He did not rule against the Jefferson Administration, in fact, they received what they originally asked for. He also ruled a part of the law, the part that gave the Supreme Court more power no less, unconstitutional.

“But although Marshall had satisfied the Republicans’ short-term interests by rejecting Marbury’s claim, he had purchased an enormous piece of constitutional real estate for the Court. Marbury v. Madison established the Court’s authority to declare an act of Congress unconstitutional, a power that would prove to be of historic significance in securing the institution’s parity with Congress. Marshall’s opinion also served notice that the Court, not the president, would be the ultimate judge of claims or executive privilege, an authority of seismic proportions.” p.187

Political battles raged the removal of justices sought through the method of impeachment, once successfully with John Pickering, once unsuccessfully with Samuel Chase. Ironically, the presiding officer of the impeachment trials was outgoing Vice President Aaron Burr who Thomas Jefferson and the Democratic-Republican Party had dumped in favor of George Clinton. The vice president had just been just been acquitted in a murder trial over the death of Alexander Hamilton*. Simon describes a Vice President Burr who is eager to have on grandee final on the stage of American politics, and give Thomas Jefferson more fits**.

A few years after his tenure as vice president, Burr is on trial himself for alleged treason to the country, the judge in his trial was none other than Chief Justice John Marshall who was riding circuit as Supreme Court justices did in Marshall’s time***. Simon tells this story in stunning detail and great analysis.

“The Burr prosecution produced an ironic reversal of roles for Jefferson and Marshall. The president, author of the Declaration of Independence and a supporter of many of the individual rights contained in the Bill of Rights, pursued Burr and his associates with a vengeance that ignored basic civil liberties. The chief justice, whose major libertarian concern was the protection of private property, became the vigilant defender of criminal suspects’ constitutional rights.” p.258

In his battles with Alexander Hamilton, one can conclude that Thomas Jefferson won in life and fame but Alexander Hamilton ended up with the nation that he, not Jefferson, wanted. With John Marshall, Jefferson is still more famous nationally and internationally, but Marshall’s career as chief justice surpassed Jefferson’s presidency by twenty-six years and his life by nine; in addition, it was Marshall’s view on the Constitution that prevailed, not Jefferson’s. With a brilliant narrative, James Simon brings these epic legal battles from the past back to life.

*Burr had killed Hamilton in a now famous duel, but the jury ruled it was a ‘fair fight’ and he was not guilty of murder.

**As if almost stealing the election of 1800 was not enough.

***This process ended in the early twentieth century.

{Video taken from PBS documentary The Supreme Court}

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