Book Review: Inventing America

What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. By James F. Simon. Simon and Schuster, 348 pages, $27.50.

Ten years ago, I made a pilgrimage to Shockoe Cemetery in Richmond, Virginia, where John Marshall is buried. Our little party -- two law clerks and a federal judge -- had to fight its way to the grave site through weeds and brambles. In a city that prides itself on its monuments, this one had been only fitfully tended. I was not entirely surprised: Many Richmonders cannot forgive Marshall for his rudeness to Thomas Jefferson.

Marshall and Jefferson, fellow Virginia revolutionaries and cousins, battled for the soul of the infant republic. Jefferson saw the United States as a loose league of "sovereign" states whose central government would be almost wholly dependent on its parts; Marshall favored a robust federal government, with power to regulate commerce and conduct foreign policy without interference by the states. James Simon, a former Time magazine correspondent who now teaches at New York University's law school, retells this splendid story in clear and elegant prose. For once the publisher's subtitle is no exaggeration -- the result is, at least in legal terms, an epic of the founding, featuring fascinating antagonists, enormous consequences, and alternating episodes of nobility and treachery.

Marshall, a Revolutionary War hero and prosperous Richmond lawyer, served as John Adams's point man in the House of Representatives. When Alexander Hamilton and his allies deserted Adams in 1800, Marshall remained loyal. Adams lost the presidency to Jefferson that year but in his lame-duck months appointed Marshall as chief justice. When Jefferson's running mate, Aaron Burr, sought to usurp the presidency, Marshall refused to support Jefferson even as the lesser evil. And while Jefferson was in office, Marshall rebuked his administration from the bench at every chance he got.

Jefferson, for his part, had actively opposed Marshall's election to the House and ridiculed his "lax, lounging manners." As president, he contemplated a drive to impeach the new chief justice and advocated constitutional amendments that would dethrone Marshall and the court as arbiters of the Constitution.

This quarrel, unlike the one between Jefferson and Adams, did not mellow with age. In 1823, Jefferson called Marshall's judicial method "very irregular and very censurable." Even after Jefferson's death, Marshall scornfully wrote that "I have never thought him a particularly wise, sound, and practical statesman."

The psychological roots of the quarrel -- no hatred is greater than that between Virginia cousins -- are obscure, but the stakes must have seemed huge. We know today that the republic did not degenerate into tyranny or fracture into warring states, radicals did not raise guillotines in American streets, and conservatives did not impose a hereditary monarchy and a titled aristocracy. Back then, however, a bloody or tyrannical end of the new nation seemed quite possible to both sides. Jeffersonians called Marshall and his allies "monarchists"; Federalists feared Jefferson as a licentious atheist in league with revolutionary France.

Debunking Jefferson is now the rage. Biographers of other founders have breathlessly discovered that the Sage of Monticello lacked the nobility of Washington, the earnest practicality of Madison, and the bluff choleric honesty of Adams. Lord knows there is room to criticize: Jefferson was often hypocritical, disingenuous, ungrateful, and even sneaky; as a political theorist, he was impractical and inconsistent, and his vision of an agrarian republic has fortunately been eclipsed by history.

But as president, Jefferson did touch greatness. He pardoned the Sedition Act defendants and, when Napoleon offered him Louisiana, junked his own constitutional qualms and grabbed it. As Simon notes, his rhetoric was violent but his policies were moderate, and he left the nation stronger than he found it.

That said, however, Jefferson was nowhere near as great a president as Marshall was a chief justice. When Marshall took the job in 1801, the Supreme Court was a travesty. Its members dressed in gorgeous furs and ermine on the bench but wielded little power and commanded less respect. One associate justice had just left the bench for a real job -- chief justice of South Carolina. Sometimes even the justices themselves skipped the court's infrequent sittings. The public paid little attention to the court's decisions, which were delivered "seriatim," each judge making a speech and leaving observers to count noses and decide who won and why.

Marshall took the bench in a republican black robe. But in his 34 years as chief justice, he established the court as a co-equal branch of the government. He abolished the seriatim opinion and in his first years wrote all the opinions himself, bludgeoning and charming his colleagues into unanimity. He weathered the failed impeachment of Associate Justice Samuel Chase (he was impeached in the House but acquitted by the Senate) and established, over strong opposition, the court's authority to strike down

congressional statutes and to revise constitutional judgments of the states‚ supreme courts.

Even as Marshall built the court, his opinions -- clear, eloquent, and convincing-- also built the law. In McCulloch v. Maryland he established the supremacy of federal power over state attempts to limit it. In Gibbons v. Ogden he spelled out the scope of congressional commerce power and ensured the future of the nation as a single common market. His commitment to a strong national government was a principled one: By 1808, at least, he knew that the strong powers he was guaranteeing to the nation would, for the foreseeable future, be exercised by his Jeffersonian opponents.

(Principled though he often was, Marshall's distrust of Jefferson led him on occasion into non-judicial conduct. Offered a chance to rule against Jefferson in Marbury v. Madison, he heard the case and wrote the opinion, even though the issue was the legal effect of Marshall's own conduct as secretary of state. When the Jeffersonians called for the impeachment of Chase, Marshall offered little defense of his Federalist colleague out of fear that he would be next. And when Jefferson charged Burr with treason, Marshall, as trial judge, favored Burr by distorting the applicable case law -- case law he himself had written earlier.)

The length and breadth of Marshall's triumph lends What Kind of Nation a certain asymmetry. In 1809, Jefferson retired to his mountain and remained there, increasingly irrelevant as the years went by. But Marshall had barely started; his greatest work was done after Jefferson's retirement, when he no longer had anything to fear from the man he derided as "the great Lama of the mountains." Thus, the last third of What Kind of Nation is less an "epic struggle" than an extended victory lap by Marshall.

Yet one cannot begrudge Marshall his victory lap: He was unquestionably "the great chief justice," a towering figure in a post where mediocrity has been the rule. When we assess the most effective leaders of the court, Marshall remains at the top. Second place goes to "Super Chief" Earl Warren and third to William Hubbs Rehnquist, the gentle but relentless bureaucrat who leads the narrow conservative majority on the present court.

Rehnquist's ascension plainly gives Simon pause, and so it should. At the cosmetic level, Rehnquist, dissatisfied with Marshall's plain black robe, wears enigmatic stripes upon his sleeves. In terms of the court's functioning, he has allowed the conservative bloc to return to something like the seriatim opinion, producing decisions that begin like this gem in Adarand Constructors v. Pena:

O'CONNOR, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of SCALIA, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by REHNQUIST, C. J., and KENNEDY and THOMAS, J. J., and by SCALIA, J., to the extent heretofore indicated; and Part III-C was joined by KENNEDY, J.

In constitutional terms Rehnquist and his conservative allies also seem determined to move the nation back toward Jefferson's ungovernable confederation of "sovereign" states. In cases such as United States v. Lopez, Printz v. United States, and United States v. Morrison, the majority has pruned Congress's power to regulate guns in schools, to require cooperation by state officials in enforcing federal gun-control policies, and to protect women against gender-related violence. It also seems determined to eviscerate Congress's power to outlaw discrimination against women, the disabled, and minorities.

Perhaps by coincidence, the federal policies the majority tends to void are those opposed by the right wing of the Republican party; in fact, the Rehnquist-led majority has been sternly nationalistic in one case only -- Bush v. Gore, in which it held that state courts could not interpret their own state law if that interpretation prevented the "election" of a Republican president (and thus the appointment of a successor who will carry on Rehnquist's work).

Marshall's own words might serve as an assessment of the Rehnquist court's tendency (in cases other than Bush v. Gore) to put "states' rights" above the constitution of the United States: "Powerful and ingenious minds," he wrote in Gibbons v. Ogden "taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use."

I have not been back to Marshall's grave since 1992, but I would not be surprised to find the weeds and brambles thicker today than they were then. Beyond that, I suspect, I might find the soil around it subtly disarranged, as if a giant figure under the earth were shifting uneasily, unable to find rest.

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