Thomas Jefferson and the Rise of the Supreme Court

Abstract

Thomas Jefferson and the Rise of the Supreme Court R. KENT NEWMYER American constitutional history in the early national period seems at times to be a conversation—or an argument—among Virginians. There’s James Madison, George Washing­ ton, George Mason, John Taylor of Caroline County, Judge Spencer Roane, John Randolph of Roanoke, to mention only some. At the center of this constellation were John Marshall and Thomas Jefferson. I plan to discuss Jefferson and the Supreme Court, but I cannot do so with­ out also discussing John Marshall. For over three decades, these two great Americans clashed passionately over the meaning of the American Revolution, the nature of the new republic, and the direction of American his­ tory. When in 1801 Marshall became Chief Justice and Jefferson assumed the presidency, their disagreement—fueled by an intense per­ sonal hatred—came into focus on the Supreme Court. The Chief Justice was determined to strengthen the Court so that it might check the states’-rights democracy advocated by Jefferson and his new political party. Pres­ ident Jefferson aimed to curb the Marshall Court because he believed it to be an aris­ tocratic tool of the defeated Federalist party. Marshall believed Jefferson’s party would de­ stroy the Union; Jefferson was convinced that the Marshall Court would betray the Revolution. So, you might well ask, why talk about Jefferson and the rise ofthe Supreme Court, if he did everything in his power to humble it? That is the paradox I would like to explain— and as Justice Holmes once said, “There is nothing like a paradox to take the scum off your mind.”1 There are two stages to my argument, two periods. The first period, from 1801 to 1809, covers Jefferson’s presidency and the firstyears ofMarshall’s tenure as ChiefJustice. It was, I argue, Jefferson’s concerted campaign to humble the Court during this period that contributed to Marshall’s success in consoli­ dating its authority; thus the paradox to be re­ solved. The second period in this ongoing war between Marshall and Jefferson over the Court lasted roughly from 1816—or more precisely, JEFFERSON AND THE RISE OF THE COURT 127 Using Isaiah Berlin’s famous distinction between the fox (who knows many things but none definitively) and the hedgehog (who knows only one thing fully), the author suggests that Jefferson (left) was the fox and Marshall (right) the hedgehog. from McCulloch v. Maryland in 1819—until Marshall’s death in 1835. At the end of this period—thanks in no small part to Jefferson— the Court was no longer the republican check on the tyranny of the majority that Marshall hoped itwould be, that Jefferson feared itmight be, and that Alexis de Tocqueville famously claimed it was. Marshall won the first round; Jefferson won the second. Singly and together, both men left lasting marks on the Supreme Court. Before fleshing out some of the details of my argument, I need to touch briefly on the Marshall-Jefferson hatred and how it in­ tertwined with constitutional ideology in the 1790s to shape their debate over the Court. The mystery is how two men who shared so much common ground should part company in such fundamental ways. As Piedmont neighbors, they were both sons of the American frontier, Marshall perhaps more so than Jefferson. They were cousins to boot. And as descendants ofthe early Randolph clan, they were automatically members of Virginia’s ruling class, in which land, slaves, and public service defined status. Both were lawyers, both students and admirers ofthe great George Wythe. Although Jefferson was Marshall’s senior by twelve years, both were active participants in the Revolution. Jefferson was the wordsmith of liberty, law reformer, and Governor of Virginia. Marshall was a combat soldier in Washington’s Con­ tinental Line, a veteran of Valley Forge, and a spokesman for the new Constitution at the Virginia ratifying convention in 1788. How common genes and common expe­ rience should produce such different persona­ lities—such divergent political philosophies— is the question I will leave to my friend Melvin Urofsky.2 I would guess that hardwiring had something to do with it—some chemical disaffinity buried in the double...