The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. GRIER STEPHENSON, JR. The first meeting of Politics 514 for fall semester 1964 was scheduled for Thursday af­ ternoon, September 24, coincidentally the 209th anniversary of the birth of Chief Justice John Marshall. As an exceedingly green first-year student in the Graduate School, I made my way to “A” level (one floor below the first floor) of Princeton University’s Firestone Library a few minutes before two o’clock. A short distance from the stairwell, I found the Politics Department seminar room and took a seat at the table. Promptly on the hour, Professor Alpheus Thomas Mason entered the room, greeted the dozen beginning and continuing students present, and occupied a chair with his back to the window. There followed an hour’s discourse from this celebrated judicial biographer1 on what awaited us during the Term: an adventure in American constitutional law. Without notes and with the captivating voice of an orator, he drew from the words ofJames Madison, James Wilson, Alexander Hamilton, Thomas Jefferson, and Marshall so extensively and with such familiarity that I wondered whether, during nearly four decades of teaching, he had somehow divined a way to commune directly with the founding generation. After he made clear his expectations and explained how the course would proceed, I then grasped why this seminar, although deservedly praised as one of the best taught in the Graduate School, was rarely heavily enrolled: He expected each student, each week, to write a research paper of nine to twelve pages. An initial focus of the course, Professor Mason continued, would be the “great antag­ onists.” The cadence of his speech slowed as he spoke the two words, and he paused ever so slightly for effect between them. “I’m referring to Marshall and Jefferson,” he added, in case his point had sailed over anyone’s head. But then he digressed. An entire course on Amer­ ican constitutional and political development, he explained, could be organized around that theme: not only Marshall versus Jefferson and Jefferson versus Hamilton, but Marshall versus Andrew Jackson, Marshall versus John Banis­ ter Gibson, and so on. It was, and is, an intrigu­ ing idea. Examination ofthe tensions between the thinking and action of such individuals would lay bare the polarization in the Amer­ ican political tradition between long-standing principles such as fundamental law and popu­ lar sovereignty. And lurking within thattension THE JUDICIAL BOOKSHELF 201 was the intriguing question of whom or what within the American political system should monitor and resolve that tension. Ifone prepared a course similar to the one ProfessorMason outlined, several recentbooks on the Supreme Court and its Justices would compete for space on the syllabus. Among them is Lincoln and Chief Justice Taney by James F. Simon of New York Law School.2 The book’s subtitle (“Slavery, Secession, and the President’s War Powers”) suggests as much, and some of Simon’s previous work demonstrates that he is hardly a stranger to the theme.3 His book offers awindow into the lives of two key players in the high drama that un­ folded in the mid-nineteenth-century United States. Despite some common experiences and values, in crucial respects the gulf between these pivotal individuals proved to be as deep as it was wide. The future fifth Chief Justice was born into Maryland plantocracy in 1777, some thirty-two years before the sixteenth President’s infancy on the Kentucky frontier. Professionally, both Roger Brooke Taney and Abraham Lincoln became successful lawyers and enjoyed modest success in state legislative politics. Morally, Lincoln, like Taney, disap­ proved of slavery but was more than willing to defend the property rights of slave own­ ers. Taney owned slaves but gave them their freedom. Both men were active in coloniza­ tion societies that strove to relocate free blacks from the United States to self-governing com­ munities in Africa. Politically, Taney accepted the states-rights orientation ofAndrew Jackson and the Democratic party, while Lincoln iden­ tified with Henry Clay and the National Re­ publicans, who were soon to be called Whigs. Jurisprudentially, these affinities meant that Lincoln was comfortable with ChiefJohn Mar­ shall’s doctrine of national supremacy, which the...