When James Madison described the work of the constitutional convention to Thomas Jefferson, then American minister in Paris, Jefferson had serious reservations about the constitution proposed for the United States. Jefferson wondered whether the renewable four-year term for the president opened the way for a monarchy, he objected to the lack of a bill of rights, and he worried that the states might become wholly subordinate to the federal government. As a cabinet officer in George Washington’s administration, Jefferson became convinced that the economic policies of Secretary of Treasury Alexander Hamilton (1755-1804) were making the federal government too dominant. He believed that the American republic did not require a powerful central government; strong local and state governments closer to the people were preferable. Together with James Madison, Jefferson led a republican opposition to the federalists. He detested the policies of John Adams’s administration, especially the 1798 Sedition Act used by federalist judges to jail newspaper editors who criticized the administration. In 1800, Jefferson defeated Adams for the presidency.
In contrast, John Marshall had no reservations about the new constitution and vigorously supported it in the 1788 Virginia ratifying convention. As a congressman he voted loyally with President Adams. Marshall disliked the Sedition Act, finding it unnecessary and inexpedient, but he did not see it as being a threat to freedom of the press. Adams rewarded Marshall by making him secretary of state in June, 1800, and naming him chief justice of the Supreme Court in January, 1801.
Although Marshall and Jefferson were fellow Virginians and distant cousins through their mothers’ Randolph ancestry, the two intensely disliked each other. Jefferson believed Marshall secretly planned to use the Supreme Court to undermine the gains of the American Revolution and establish a government more powerful and more destructive of liberty than the British colonial regime. Marshall thought Jefferson an irresponsible theorist, unqualified to be president. Marshall never recognized Jefferson’s pragmatic actions, such as completing the Louisiana Purchase despite doubts of its constitutionality, and Jefferson never considered that Marshall’s moderate federalism could be reasonable and a matter of principle.
In this well-written book, James Simon makes effective use of primary sources, especially the valuable recent multivolume editions of the papers of both men, to provide a dramatic narrative of the political and legal clashes between Jefferson and Marshall. Although Simon clearly sympathizes with Marshall’s federalism rather than Jefferson’s more limiting view of government, he is not uncritical of the chief justice, condemning his insensitivity to issues of civil liberty. Simon frequently points out the lasting relevance of both men’s actions. Legal details are clearly presented and easily grasped by laypersons.
Once in office, Marshall immediately began to overhaul the Supreme Court, establishing it as an independent and powerful branch of the federal government. Previously, each judge had read his opinion consecutively. Marshall convinced the justices to join in unanimous decisions that would more forcefully declare the law. From 1801 to 1804, Marshall participated in forty-two cases, writing unanimous decisions in all of them.
Simon admiringly narrates how Marshall struck at Jefferson in Marbury v. Madison (1803), while strongly asserting the power of the court. William Marbury was one of the “midnight judges” appointed by President Adams in the last days of his administration. On the day preceding Jefferson’s inauguration, Adams continued signing commissions as late as 9:00 p.m.
Marshall, who was still serving as Adams’s secretary of state although already chief justice, failed to deliver Marbury’s commission in the closing rush. After taking power, Jefferson instructed his secretary of state, James Madison, to withhold all undelivered appointments. Marbury sued, asking the Supreme Court to issue a writ of mandamus ordering Madison to deliver the document. Marshall seized this opportunity to strike at Jefferson; he did not excuse himself from the case, even though it was his negligence as secretary of state that occasioned the suit. Marshall faced a dilemma: If he issued the writ, he knew Jefferson and Madison would ignore it, revealing the limits of the court’s power....
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