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What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States

What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States

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by James F. Simon

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The bitter and protracted struggle between President Thomas Jefferson and Supreme Court Chief Justice John Marshall defined the basic constitutional relationship between the executive and judicial branches of government. More than one hundred fifty years later, their clashes still reverberate in constitutional debates and political battles.

In this dramatic and


The bitter and protracted struggle between President Thomas Jefferson and Supreme Court Chief Justice John Marshall defined the basic constitutional relationship between the executive and judicial branches of government. More than one hundred fifty years later, their clashes still reverberate in constitutional debates and political battles.

In this dramatic and fully accessible account of these titans of the early republic and their fiercely held ideas, James F. Simon brings to life the early history of the nation and sheds new light on the highly charged battle to balance the powers of the federal government and the rights of the states. A fascinating look at two of the nation's greatest statesmen and shrewdest politicians, What Kind of Nation presents a cogent, unbiased assessment of their lasting impact on American government.

Editorial Reviews

From the Publisher
Joseph J. Ellis The New York Times Book Review A study of the political and legal struggle between these icons of American history...A major contribution...A model of narrative history written by someone who knows the law.

A. J. Langguth author of Patriots: The Men Who Started the American Revolution and Our Vietnam James Simon has written a legal suspense story, with John Marshall trying to wrench the Supreme Court from a cramped room in the Capitol building to its rightful place under the Constitution while a suspicious President Jefferson fights him bitterly from behind the scenes. What Kind of Nation helps us to understand the court battles that go on today, no less partisan, no less urgent.

The Washington Post James Simon adds a patina of freshness and telling detail to this familiar story. He carefully traces the origins of the rivalry...but is at his best when he gets around to the great cases, not merely Marbury but others, especially the Burr treason trial...What Kind of Nation is a fine read.

The American Prospect James Simon retells this splendid story in clear and elegant prose. For once the publisher's subtitle is not 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.

Vito F Sinisi
Founding fathers Thomas Jefferson and John Marshall seemingly had much in common. First cousins, they both hailed from Virginia and both cared passionately about the infant nation called America. But one was a president, the other a Chief Justice of the Supreme Court. That meant an ongoing battle over which branch of the government would dominate, a battle well-documented in author James Simon's exciting history.
Publishers Weekly
Simon (a former Time editor, now a law professor at NYU) examines the decades of conflict between the states' rights views of Thomas Jefferson and the federalist beliefs of John Marshall. In 1801, at the end of Adams's presidency, Marshall accepted the Supreme Court chief justice's position and Jefferson became the nation's third president. That set the stage for years of competition between the two philosophies of government, especially the two visions of the judiciary, represented by the principal antagonists of Simon's history. Simon deftly explains how Jefferson and Marshall maintained a faeade of civility in their public pronouncements while unleashing blistering mutual vituperation privately. Ultimately, as Simon demonstrates, Marshall prevailed. His technique was subtlety itself. In his opinion in Marbury v. Madison, Marshall gave an ostensible victory to Madison (Jefferson's vice president) but reached that result by asserting the authority of the Supreme Court to declare acts of Congress unconstitutional. That assertion had far-reaching implications for consolidating the federal government's power. Once the Supreme Court became the ultimate interpreter of the Constitution, the court repeatedly exercised its authority to invalidate state laws and court decisions inconsistent with the federal Constitution. Simon usefully narrows his focus to a handful of key decisions by the Marshall court, showing how the justice's concept of what kind of nation the U.S. should be progressively swept aside Jefferson's belief that state and federal governments were equal sovereigns. Simon's book illuminates the origins of a national political debate that continues today. (Mar.) Copyright 2001 Cahners Business Information.
Library Journal
With John Adams ever so popular right now, why not take a look at what some of his contemporaries were doing to "create a United States"? Copyright 2001 Cahners Business Information.
Kirkus Reviews
From NYU law professor Simon: a lucid account of the clash between two strong-willed men and two sharply divergent political tendencies. Jefferson, writes Simon (The Center Holds: The Power Struggle Inside the Rehnquist Court, 1995; Law/NYU), had a profound distrust for centralized authority, be it king or Congress, and a nagging suspicion that "the Constitution was an invitation to monarchy." To counter the growing power of the Federalists, he organized the Democratic-Republican Party and set about vigorously protesting such legislation as the Jay Treaty of 1794 and the Alien and Sedition Acts of 1798. (Though he believed the second law gave too much power to the federal government, Simon notes, Jefferson "did not object to selective prosecutions of his political critics under state seditious libel laws.") Jefferson reserved special contempt for his chief Federalist bugaboo, fellow Virginian John Marshall, whom he derided for "acting under the mask of Republicanism" and exhibiting "lax lounging manners." As legislator and later as Supreme Court justice, Marshall would repay the compliment by contesting Jefferson at every turn, suspecting that he sought to weaken the power of the federal government and especially the executive in order to increase his personal power. Marshall's opposition came perhaps nowhere more forcibly than in his formulation of the federal judiciary's decision in the 1803 case of Marbury v. Madison, which ruled that the court alone was responsible for determining what was or was not constitutional and could strike down congressional legislation and executive orders on constitutional grounds. Simon notes that the debate between the two political philosophies, arrayingstates' rights on one hand and federal power on the other, has been a constant in American political history, though, as he writes, the uses to which Jefferson's states'-rights arguments have been put "would probably have appalled the nation's third president." Simon's excellent venture in legal and political history illuminates both the roots of an ongoing controversy and the characters of two great historic figures.

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Chapter 6: "The Fangs of Jefferson"

After he was selected to lead the Republicans' presidential ticket in 1800, Jefferson projected the image of a political ascetic, wishing only that his pure republican principles be put before the voters. He told his opponent, John Adams, that the presidential contest had nothing to do with their personalities, and everything to do with their conflicting political principles. "Were we both to die today," Jefferson told Adams, "tomorrow two other names would be put in the place of ours, without any change in the motion of the machinery."

As the candidate of lofty principle, Jefferson often appeared to view the day-to-day business of winning the presidency as beneath him, or at least irrelevant to his role as the Republican standard-bearer. His determination to avoid any opportunity to bring public attention to himself was apparent when he made plans to return to Virginia after the adjournment of the spring congressional term. He wrote Virginia Governor Monroe that he hoped to meet with him in Richmond before returning to Monticello. But he cautioned Monroe that their meeting should take place without the public's knowledge.

"Besides my hatred of ceremony," Jefferson wrote Monroe, "I believe it better to avoid every occasion for the impression of sentiments which might drag me into the newspapers." He acknowledged that the Federalists had put public displays to powerful political use, rallying support by furnishing occasions for "the flame of public opinion to break out from time to time." But Jefferson thought such public events unnecessary, even detrimental, to the achievement of his ambitious goals.

Despite his public image of detachment, Jefferson was anything but aloof in his behind-the-scenes political activities. He and Madison, in particular, discussed both broad issues of political principle and specific strategies for partisan advantage. Jefferson had firm ideas on how to exploit the growing fissure between the moderate and conservative Federalist factions over the second Paris peace mission and the related issue of a standing army. He knew that Adams and Marshall supported the peace mission and wanted to maintain the army only for defensive purposes, whereas the High Federalists, led by Hamilton, opposed any settlement with France and favored an expansive, permanent military presence.

Jefferson believed it was important that the Republicans give the warring Federalist factions no reason to unite on the issues. Republicans should continue to advocate a peace settlement with France without saying or doing anything that could provide the Federalists a pretext for keeping a large standing army in peacetime.

At the same time that he was setting the broad parameters of the Republicans' national strategy, Jefferson maintained a very active interest in his party's organization, down to the local county level — as his directive to Virginia's Republican chairman to distribute Thomas Cooper's Political Arithmetic demonstrated. He was, moreover, vigilant in urging that the party's message be widely disseminated by the fervent Republican press and the party's most effective pamphleteers. He could justifiably deny that he was "the Chief Juggler" of partisan Republican writers like Duane, Cooper, and Callender — but he knew and encouraged their work.

Jefferson also demonstrated a sure grasp of the electoral process. He prided himself on his ability to know how each state's electors were likely to vote, and indeed boasted that in the 1796 presidential election his prediction was within one or two votes of the outcome. He was somewhat less confident of his prognostications in 1800, but nonetheless ventured to make an educated estimate of the Republicans' chances. He conceded the New England states to Adams and counted most of the Southern and Western states in the Republican column, though he was concerned about Federalist inroads in the Carolinas. The election, Jefferson thought, would be decided in the Middle Atlantic states.

Jefferson had received reliable reports that the two houses of the Pennsylvania legislature — one controlled by Federalists, the other by Republicans — were deadlocked and would not agree on an electoral law, thereby neutralizing the state in the presidential election. Despite assurances from Republican supporters in New Jersey that his party would prevail, Jefferson was not prepared to make such a prediction. His attention, therefore, turned to New York, and more particularly to New York City, where the April election of the city's representatives to the state assembly would determine which party would control the state's electors — and probably the national election.

The fate of the presidential election was, in effect, placed in the hands of the rival political leaders in New York, the Federalists' Alexander Hamilton and the Republicans' Aaron Burr. During the campaign, Burr not only demonstrated superior organizational skills but also proved to be a better strategist than Hamilton. Hamilton's task appeared somewhat easier than Burr's, since the Federalist incumbents already held a majority in the state assembly. But the Federalists made a fatal miscalculation by naming a lackluster list of candidates from New York City for the new assembly. Burr had shrewdly withheld his own slate of Republican candidates until the Federalists had named theirs. Once the Federalist candidates had been announced, Burr stunned Hamilton and other members of his party by announcing a dazzling Republican ticket that included some of the most illustrious names from the American Revolution — former Governor George Clinton, Judge Brockholst Livingston, and General Horatio Gates.

Hamilton was furious that he had been outmaneuvered by Burr, whose Republican slate in New York City won, and took the desperate step of pleading with Governor John Jay to call a special session of the state legislature to nullify what appeared to be a certain Republican electoral victory in the state. Since the old Federalist-dominated assembly was still in office, Hamilton reasoned, the governor could ask the lame-duck legislature to adopt an electoral plan that would take the presidential vote away from the new Republican majority in the assembly and give it to the state's districts, where the Federalists were likely to be victorious.

To Hamilton, such an extraordinary measure was necessary to prevent a Jefferson victory, a catastrophe he compared to "the overthrow of the government...a revolution after the manner of Bonaparte." And if that specter of national disaster did not move Jay, Hamilton provided another: the governor must act "to prevent an Atheist in religion, and a Fanatic in politics, from getting possession of the helm of state." Despite Hamilton's dire warnings, Governor Jay refused the invitation to participate in the electoral scheme.

The New York City election, which appeared to clinch the presidency for Jefferson, dramatically lifted Burr's political fortunes within the Republican party. Although Burr had been on the Republican presidential ticket with Jefferson in 1796, he had never been fully accepted by Virginia's Republican establishment. Jefferson himself had met with Burr only once before the election. The 1796 election had only deepened Burr's distrust of the dominant Southern wing of the party when all but one of Virginia's electors withheld their votes from him.

With his brilliant success in New York City's election, Burr's name was again prominently mentioned for vice president on the Republican national ticket. The Republican House leader, Albert Gallatin, made inquiries about the availability of either George Clinton or Burr to run with Jefferson. Clinton declined for reasons of age and poor health.

Burr could well have afforded to turn down an offer to run with Jefferson, for he was almost assured election as New York's next governor if he chose to make the race. He let it be known, nonetheless, that he was interested in the vice-presidency, if he could be assured that there would be no recurrence of the 1796 electoral slight by Southern Republicans. He would agree to be on the ticket with Jefferson only if he received the total allegiance of his party, including the Virginia electors. After those assurances were made, Burr was officially nominated to the ticket with Jefferson at the Republican congressional caucus in Philadelphia.

Meanwhile, the Federalists were in disarray. Their hopes of retaining the presidency had plummeted with news of the Republican victory in New York City's election. Inside the party, the feud between Adams and Hamilton intensified. For more than a year, Hamilton and his followers had condemned Adams for sending a second peace delegation to Paris. With Adams's determination to support the peace initiative and his resolve to resist the High Federalists' demand for a large standing army, Hamilton had thoroughly soured on the prospect of a second Adams presidential term.

As John Marshall had reported to his brother James during the congressional session, Hamilton intended to undermine Adams's candidacy by urging Federalists to divide their support between the president and South Carolina's Charles Cotesworth Pinckney equally. Hamilton expected Federalist electors in all states but South Carolina to give Pinckney the same number of votes as Adams. In Pinckney's home state, Hamilton calculated, Pinckney would split the vote with Jefferson, not Adams. The result, Hamilton hoped, would be the presidential election of Pinckney, over both Adams and Jefferson.

It was a devious plan but one, Hamilton insisted, that was necessary to save the country from both Adams and "the fangs of Jefferson."

On May 15, Jefferson left Philadelphia for the last time. The three years he served there as vice president had been pocked with relentless political rancor, so he had few regrets about his departure. Jefferson returned to Virginia by way of the Eastern Shore, stopping briefly for a private visit with Governor Monroe in Richmond before reuniting with his daughter Maria at her home in Mont Blanco. At Monticello, Jefferson harvested his wheat crop (the best ever) and continued to work on a manual for Senate parliamentary procedures, which he had begun during the last congressional term, and which, when finished, would serve the Senate for the next two centuries.

That summer and fall, Jefferson the presidential candidate appeared to await the judgment of the voters with equanimity. He did not campaign, or in any other public way call attention to his candidacy. Within those self-imposed restraints, Jefferson nonetheless continued to make certain that his followers fully understood the political principles that would guide him in elective office. In a letter to Gideon Granger, a forlorn Connecticut Republican in overwhelmingly Federalist New England, Jefferson assured his supporter that a Republican majority in Congress would return government to the people, as the Constitution had intended. He wrote Granger that Republicans would restore freedom of the press and religion, trial by jury, and an "economical government" and, at the same time, oppose "standing armies, paper [currency] systems, war and all connection, other than commerce, with any foreign nation."

When Jefferson described the prospects for his Republican administration, as he did to Granger, his discussion was of policy and theory. Although Jefferson's opponents faulted him on those terms, their most vicious attacks on the Republican candidate were personal. Jefferson was accused anew of cowardice for fleeing from British troops two decades earlier, when he was Virginia's governor. He was suspected of being a Jacobin at heart, bent on Robespierrean treachery. He was attacked as an incorrigible debtor who owed British creditors more than the worth of his entire estate (a charge that was originally attributed to John Marshall, who later denied being the source of it). He was rumored to have cheated a poor widow out of her estate and to have had sexual relations with the wife of one of his best friends.

Worst of all, Federalists charged that a Jefferson presidency threatened to destroy America's soul. Voters had only to ask one question of themselves, suggested the leading Federalist newspaper, the Gazette of the United States: "Shall I continue in allegiance to God — and a religious President, or impiously declare for Jefferson — and no God!" During the campaign, the Federalists reprinted and widely distributed a sermon of President Timothy Dwight of Yale, a Congregationalist divine, who asked: "Can serious and reflecting men look about them and doubt that, if Jefferson is elected and the Jacobins get into authority, those morals which protect our lives from the knife of the assassin, which guard the chastity of our wives and daughters from seduction and violence, defend our property from plunder and devastation and shield our religion from contempt and profanation, will not be trampled upon?"

Jefferson had written Monroe the previous spring that he had no intention of responding to his critics' attacks, particularly about his suspected atheism. "It has been so impossible to contradict all their lies that I have determined to contradict none," he wrote, "for while I should be engaged with one, they would publish twenty new ones." In a letter a few months later to his friend Dr. Benjamin Rush, Jefferson did, however, offer an explanation for the attacks on him and a defense of his religious beliefs, which he did not think would offend either "the rational Christian nor Deists." He strongly suspected that the motivation of his harshest critics, New England clergymen and especially Episcopalians and Congregationalists (like Timothy Dwight), was that their power and ambition were threatened by his insistence on religious liberty for all Americans. "The returning good sense of our country threatens abortion to their hopes, and they believe that any portion of power confided to me will be exerted in opposition to their schemes," Jefferson wrote Rush. "And they believe rightly, for I have sworn upon the altar of god eternal hostility against every form of tyranny of the mind of man."

John Adams had his own formidable problems. He started well enough, attending a celebration in his honor in Alexandria, Virginia, where the president noted how prosperous the upper South had become since his last visit, during the American Revolution. And in Washington and Philadelphia, he spoke again of his experience in the fight for independence, and defended his current Paris peace initiative.

But at the same time that Adams was promoting his candidacy and policies, the Federalist leader most adamantly opposed to both, Alexander Hamilton, was engaged in his own campaign trip. In June, Hamilton made a tour of New England, ostensibly to review military troops and the progress of recruitment, but actually to evaluate the relative strength of Adams and his preferred candidate, Charles Cotesworth Pinckney. Adams himself was well aware of what he termed Hamilton's "imprudent and brazened" attempt "to persuade the people to choose electors who will give a unanimous vote for General Pinckney."

Relations between Adams and Hamilton deteriorated even more in the months before the election. That deterioration was due, in part, to the continuing efforts of the Adams administration to negotiate a peace settlement with France. Since the previous spring, the American envoys in Paris had sent encouraging reports to the administration of progress between their delegation and that of the French government, led by Napoleon's brother Joseph.

Reports of that progress had reached Jefferson in the spring, and he, like Secretary of State Marshall, waited anxiously for further word throughout the summer and early fall. By this time, both men, who only a year earlier had held such diametrically opposed views of French intentions, were cautiously optimistic about prospects for a peace settlement.

Marshall, as a member of the first American delegation in Paris, had earlier concluded that a just peace settlement with the ruling Directory was impossible. Now he attributed his more sanguine attitude toward a settlement to his greater confidence in the good faith of the new French government.

At the same time that Marshall was looking favorably on a peace treaty with France, he assumed a tougher stance toward Great Britain over that nation's continued violations of American neutrality on the high seas. In a letter to Rufus King, the American minister to Great Britain, Marshall laid out the demands of the U.S. government for a change in British policy. The British navy must abandon its practice of seizing goods on American commercial ships, and the British admiralty courts must stop condoning the practice, which, Marshall wrote, "converted themselves from judges into mere instruments of plunder." He also denounced the impressment of American sailors into service in the Royal Navy, which he described as an act "of violence for which there is no palliative."

If the foreign-policy positions of Marshall and Jefferson toward Great Britain and France, as reflected in their private correspondence in 1800, were placed side by side, it would be difficult to discern major differences between them. Both insisted that Great Britain and France respect American neutrality. They favored free commercial intercourse with each nation but rejected encumbering alliances. And they encouraged peaceful relations with both Great Britain and France on honorable terms that recognized the sovereignty of the United States.

Neither Jefferson nor Marshall credited the other with those reasonable foreign-policy principles. Jefferson never acknowledged Marshall's highly competent work as secretary of state in forging a strong and independent U.S. foreign policy. And Marshall continued to associate Jefferson with a naïvely benign attitude toward France that threatened American interests.

By October 1800, American and French negotiators had reached agreement on the basic issues of a peace treaty that neither side had dared hope for six months earlier. On October 3, the American and French delegations traveled eighteen miles north of Paris to the country estate of Joseph Bonaparte, where they signed the Convention of Mortefontaine, which provided for "a firm, inviolable, and universal peace" between the two nations.

Although news of the Mortefontaine agreement did not reach the United States for more than a month, earlier reports from Paris of progress in the negotiation provided Hamilton and the High Federalists with one more reason to dread the presidential victory of either Adams or Jefferson. It was during the same month that the Convention of Mortefontaine was signed that a portion of a private letter that Hamilton had written to Federalist leaders, castigating Adams, fell into Aaron Burr's hands. After excerpts were published in the Republican press, Hamilton decided to have the letter published as a pamphlet. In the letter, Hamilton had condemned Adams's peace initiative but saved his most savage words for what he called the president's personal shortcomings, including "disgusting egotism, the distempered jealousy and the ungovernable indiscretion of Mr. Adams's temper."

The publication of Hamilton's attack probably came too late in the presidential campaign to affect its outcome, but it distressed Adams loyalists, including John Marshall. "I wish for his [Hamilton's] sake that it had never been seen by any person," Marshall wrote. "I have no doubt that it wounds & irritates the person at whom it is directed infinitely more than [Callender's] The Prospect Before Us, because its author is worthy of attention & his shaft may stick."

In October and early November, the election returns dribbled in from the various states, and it was soon apparent that the Republicans would take control of both houses of Congress. Jefferson's earlier analysis of the presidential election appeared to be borne out by the early returns. New England remained solidly Federalist; Republicans carried New York, thanks to Burr's ingenuity and organizational skills, but lost New Jersey and had to settle for a one-vote margin in Pennsylvania as a result of a compromise between the divided houses of the state legislature. Jefferson won his native Virginia decisively, and most of the other Southern states. But the contest in South Carolina, which Jefferson had expected to go to the Republicans, turned out to be excruciatingly close. By the middle of November, with all but South Carolina's electors chosen, the opposing presidential candidates stood in a virtual tie. Both Adams and Jefferson and their supporters awaited word from South Carolina.

Although Marshall was deeply involved with his official duties as secretary of state, he nonetheless found time to write two anxious letters to the Federalist candidate, South Carolina's Charles Cotesworth Pinckney, reporting the critical position that Pinckney's state held in the election. While emphasizing South Carolina's decisive role in the presidential election, Marshall may also have been subtly exhorting Pinckney to see that all efforts were made to help the Federalist ticket. "I believe the Senate of Pennsylvania will maintain their ground," Marshall wrote Pinckney on November 20. "This, however, will not do for us if Mr Jefferson gets any votes in South Carolina." Even if the Federalist-controlled Senate in Pennsylvania held out for a compromise that deprived Jefferson of a decisive electoral advantage in that state (as it did), Marshall concluded, "it is now reduced to an absolute certainty that any success in your state elects him." Two days later, Marshall again wrote Pinckney to underscore the urgency of his state's election: "On your legislature, I believe, depends absolutely the election."

Jefferson was no less eager to receive the results from South Carolina than Marshall as he awaited word from Senator Charles Pinckney, who had been assigned primary responsibility for a Republican victory in the state. In October, Pinckney had sent Jefferson an optimistic report of Republican prospects. A month later, Pinckney remained confident that Republicans would win a majority in the state legislature, where the electors were selected. But when he realized that Jefferson's fate depended crucially on the results in his state, Pinckney took personal control of his party's efforts. Setting up a command post in Columbia, the state capital, he caucused, cajoled, and bargained for the Republican slate of electors. On December 2, he exultantly reported to Jefferson, "The election is just finished, and we have (thanks to Heaven's goodness) carried it."

By the time Pinckney's letter arrived at Monticello, Jefferson had left for Washington to preside over the final session of the Sixth Congress. The new capital was a sorry sight. Pennsylvania Avenue was a coach-rutted, muddy mess running from the President's House to the incomplete Capitol building. Whereas the old national capital, Philadelphia, boasted a thriving commercial district with hotels, clothing stores, and bookshops, Washington could claim only the barest amenities — one tailor shop, a dry-goods store, a grocery, a laundry, an oyster bar, and a few boarding houses with modest accommodations.

Jefferson took up residence at Conrad and McMunn's boarding house (known as Conrad's), just south of the new Capitol building, where his accommodations of a bedroom and a parlor for receiving guests provided him with greater comfort than the other boarders enjoyed. Among Jefferson's fellow boarders were, agreeably, many members of the Republican congressional delegation. But what should have been a felicitous Jefferson victory celebration at Conrad's turned into a protracted nightmare.

As the state returns were received in Washington for the official count in early December, it became increasingly clear to Jefferson and his fellow Republicans that their party's electors had kept their word to Burr too well. They had voted equally for Jefferson and Burr, even in South Carolina, the state on which the election hinged. By the middle of December, Jefferson believed that the final electoral count would likely be seventy-three votes each for him and Burr, sixty-five for Adams, and sixty-four for Pinckney (one Federalist elector in Rhode Island voted for John Jay instead of Pinckney). If that tie vote held, the Constitution mandated that the decision be made in the Federalist-controlled House of Representatives, where a majority vote of the sixteen state delegations would determine the election.

Before the final electoral-vote count was official, Jefferson held out hope that at least one Republican elector would withhold his vote from Burr. He had been told that several Republican electors from Georgia would do so, assuring Jefferson the presidency, but also guaranteeing that Burr would finish ahead of Adams, so that he would be elected vice president. When that hopeful expectation was not realized, Jefferson appeared to accept the news calmly. He was confident that his leadership of the Republicans was unchallenged, and therefore that his running mate would graciously withdraw from presidential consideration. He had already begun to name his Cabinet, informing Madison that he would be secretary of state and writing New York's Robert Livingston on December 14 that he was his choice as secretary of the navy.

Jefferson even wrote Burr to express regrets that Burr could not serve in Jefferson's Cabinet, since, he presumed, Burr's vice-presidential duties would forbid it. He also probed delicately for assurances of Burr's loyalty to him. "I understand several of the high-flying Federalists have expressed their hope that the two Republican tickets may be equal," he wrote Burr, "and their determination in that case to prevent a choice by the House of Representatives (which they are strong enough to do) and let the government devolve on a president of the Senate."

By Jefferson's own estimate, seven state delegations were committed to him (later revised to eight), and he thought he might reasonably expect to receive the votes of two more. But he was discouraged by the uncertainty of the arithmetic, which depended on "the operation of caucuses and other federal engines," he wrote Madison. He worried that the Federalists might cynically throw their support to Burr. And before long, the Federalists were, in fact, plotting just such a scheme. The month of February 1801 (the month when the House was scheduled to decide the issue), Jefferson predicted, "will present us storms of a new character."

Jefferson feared that the Federalists might snatch the election from the Republicans altogether. As he had speculated in his letter to Burr, a deadlocked House might pass legislation electing an interim president until a new election could be called. Jefferson had originally suggested that the Federalists might elect a president of the Senate (a president pro tempore) to serve in that interim capacity. Later, he reported to Madison that "the Feds appear determined to prevent a election, and to pass a bill giving the government to Mr. Jay, appointed Chief Justice, or to Marshall as Secretary of State."

Shortly after Jefferson wrote to Madison, Marshall, the third man on Jefferson's list of potential Federalist usurpers, expressed his most expansive and hostile views of Jefferson in letters to Federalist leaders and family members. He had already written to Charles Cotesworth Pinckney of his profound disappointment in the electoral results that appeared to make Jefferson the next president. Now that a Jefferson-Burr tie seemed inevitable, Marshall wrote Edward Carrington, he really had no interest in the outcome. Marshall's letter to Carrington, however, belied a lack of interest in the result. "I consider it as a choice of evils, & I really am uncertain which would be the greatest." But his description of what was in store for the nation if Burr were elected suggested, by implication, that he would prefer Burr to Jefferson. "It is not believed that he [Burr] would weaken the vital parts of the Constitution, nor is it believed that he has any undue foreign attachments."

In a letter to Alexander Hamilton a few days later, Marshall indicated that he believed Jefferson, unlike Burr, would be susceptible to "undue foreign attachments" and would pursue policies that "weaken the vital parts of the Constitution." Marshall's negative views of Jefferson were offered in response to a letter from Hamilton, who had urged Marshall to use his considerable influence with his former colleagues in the House of Representatives to help elect Jefferson. Hamilton had sent similar letters to other influential Federalists, imploring them to support Jefferson. "Jefferson is to be preferred," Hamilton wrote Oliver Wolcott. "He is by far not so dangerous a man; and he has pretensions to character." Burr, on the other hand, whom Hamilton termed "the Catiline of America," had nothing to recommend him. "Disgrace abroad and ruin at home are the probable fruits of his [Burr's] elevation," Hamilton predicted.

Marshall's reply to Hamilton left no doubt of his deep aversion to Jefferson. "To Mr. Jefferson, whose political character is better known than that of Mr. Burr, I have felt almost insuperable objections," he wrote. "His foreign prejudices seem to me totally to unfit him for the chief magistracy of a nation which cannot indulge those prejudices without sustaining deep & permanent injury." Marshall's attack on Jefferson's "foreign prejudices" was exaggerated and unfair, at least in regard to his attitude toward France, as Jefferson's private correspondence that year demonstrated. Fair or not, Marshall's appraisal of Jefferson's "foreign prejudices" contrasted markedly with his opinion that Burr possessed none.

In addition to his "solid & immoveable objection" to Jefferson's suspected foreign prejudices, Marshall wrote Hamilton that "Mr. Jefferson appears to me to be a man who will embody himself with the House of Representatives." To Marshall, a president who did not exercise the constitutional prerogatives of his office would effectively distort the constitutional structure and undermine the fragile balance of powers provided by the framers. Both Federalist presidents, Washington and Adams, had understood and acted upon their conviction (and Marshall's) that the chief executive must fully exercise his constitutional authority. "By weakening the office of President he [Jefferson] will increase his personal power," Marshall wrote, suggesting that Jefferson would identify with the popular will of the legislative majority and abandon the essential constitutional duties of his office. "He will diminish his responsibility, sap the fundamental principles of the government, & become the leader of that party which is about to constitute the majority of the legislature." Marshall's gloomy forecast of a Jefferson presidency, so far as constitutional structure was concerned, contrasted with his view that Burr "would not weaken the vital parts of the Constitution." Marshall was not indifferent to the contest between Jefferson and Burr, as he professed.

Marshall's final condemnation of Jefferson in his letter to Hamilton had nothing to do with foreign policy or the Constitution, but was instead a deeply personal indictment. Marshall told Hamilton that he could never support Jefferson, because "the morals of the author of the letter to Mazzei cannot be pure." Marshall could not forgive Jefferson for his 1796 letter to his friend Philip Mazzei which appeared to defame George Washington. Jefferson would later deny that he had meant to make any reference to Washington in the letter, but neither Marshall nor any other Federalist ever believed him. For Marshall, Jefferson's insult of his mentor and hero was morally indefensible and, as if an additional reason was needed, disqualified him for the presidency.

Why did Marshall choose to ignore Hamilton's dismal assessment of Burr's character and destructive potential? He was surely as aware of Burr's suspect reputation as were Hamilton and other Federalist leaders, including John Adams, who found the belated Burr presidential candidacy scandalous. And yet Marshall, who could have used his immense influence within the Federalist party to thwart Burr, refused to do so. By refraining from taking an active role during the crisis, the moderate Marshall did as much as the most zealous Federalist partisan to deny the presidency to the undisputed democratic choice, Thomas Jefferson. The explanation must be that the judgment of the usually fair-minded Marshall was severely skewed by his fear and loathing of a prospective Jefferson presidency.

One man could have instantly spared the nation the agony of the election stalemate, and that man was Aaron Burr. No one, including Burr himself, doubted that he had been placed on the Republican presidential ticket for the second position only. He acknowledged that fact in mid-December, after all the votes had been cast but, significantly, before the final count was known. He had first made a post-election declaration of his allegiance to Jefferson in a letter, dated December 16, to one of Jefferson's fellow boarders at Conrad's, Senator Samuel Smith of Maryland. In that letter Burr stated that, in case of a tie (it had not yet been officially confirmed), he would "utterly disclaim all competition" and would never consider "counteracting the wishes and expectations" of the voters to elect Jefferson to the presidency.

A week later, Burr wrote to Jefferson, offering the reassurance that the Virginian had cautiously sought in his letter to Burr of December 15. "My personal friends are perfectly informed of my wishes on the subject [of the presidential election] and can never think of diverting a single vote from you." He was confident, he added, that Jefferson would receive the votes of the majority of state delegations in the House, if the issue was decided there. "As far forth as my knowledge extends, it is the unanimous determination of the Republicans of every grade to support your administration with unremitted zeal," Burr wrote, adding that his loyalty to Jefferson was compelled "by the highest sense of duty as by the most devoted personal attachment."

Jefferson seemed satisfied by Burr's assurances when he wrote his daughter Maria on January 4, 1801. "The Federalists were confident at first they could debauch Col. B. [Burr] from his good faith by offering him their vote to be President, and have seriously proposed it to him," Jefferson wrote. "His conduct has been honorable and decisive, and greatly embarrasses them. Time seems to familiarize them more and more to acquiesce, and to render it daily more probable they will yield to the known will of the people, and that some one state will join the eight already decided as to their vote."

Once Burr had learned that the official results gave him the same number of votes as Jefferson, he began to equivocate about his intentions. He did not repeat his private declarations of loyalty to his running mate and made no attempt to concede the election to Jefferson. The defeated candidate, President John Adams, was appalled by the possibility that Aaron Burr might be the next president of the United States. "All the old patriots, all the splendid talents, the long experience, both of federalists and antifederalists, must be subjected to the humiliation of seeing this dexterous gentleman [Burr] rise, like a balloon, filled with inflammable air, over their heads," Adams wrote Elbridge Gerry. "What a discouragement to all virtuous exertion, and what an encouragement to party intrigue, and corruption!"

While the lame-duck president remained detached from the electoral crisis, he was busy on other matters that would affect the nation long after he left office. Both he and Marshall were stunned when the High Federalists in the Senate initially mustered the votes to reject the treaty between France and the United States that had been signed at Mortefontaine. But the High Federalists soon realized that the agreement was popular with the general electorate as well as with businessmen in the mercantile towns, who were staunch supporters of the Federalist party. Bolstered by that widespread public approval, the Adams administration resubmitted the treaty to the Senate for a second vote, and it was ratified.

The president also signed into law the Judiciary Act of 1801 after the outgoing Federalist majority in Congress had hurriedly passed a bill creating a new level of federal appellate judgeships, which would be filled promptly by Adams with loyal members of the Federalist party. The Federalists justified the legislation as a reform measure that relieved the six justices of the Supreme Court of their circuit-court duties, which had forced them to travel far from the nation's capital on bad roads and in inclement weather. The Judiciary Act was nonetheless perceived by Republicans as an attempt by the Federalists to control the judicial branch of the federal government for years. Because of the life tenure of the new federal judicial appointees, Jefferson condemned the passage of the Judiciary Act above all other last-minute Federalist measures.

Jefferson showed himself to be less than prescient in focusing his greatest criticism on the Federalist appointments under the Judiciary Act. For there was another judicial appointment that winter, one destined to be by far more historic and antithetical to Jefferson's own political ambitions: President Adams's nomination of John Marshall to be chief justice of the United States.

The president knew that he must act quickly, before the Republicans took office, if he was to replace Chief Justice Oliver Ellsworth, who had announced his resignation in December. Adams had initially offered the chief justiceship to New York's governor, John Jay, but in January, Jay officially declined the nomination. Attention then focused on two members of the Court, Associate Justices William Cushing, sixty-eight years old, and William Paterson of New Jersey, who was the favorite of the High Federalists. But Adams, typically keeping his own counsel, rejected elevating either man in favor of the forty-five-year-old Marshall, whose moderate Federalist views and loyalty to the president were unquestioned.

Marshall recalled the moment when the president made him aware of his choice. He was meeting with Adams to discuss Jay's letter declining the appointment as chief justice. "Who shall I nominate now?" the president asked. Marshall replied that he could not advise him (though privately Marshall had earlier speculated that the appointment would go to Cushing). Hesitating a moment, Adams then answered his own question. "I believe I must nominate you," he told Marshall.

"I had never before heard myself named for the office and had not even thought of it," Marshall later wrote. "I was pleased as well as surprised, and bowed in silence." The day after the president told Marshall of his decision, Marshall's name was sent to the Senate for confirmation. At first, the nomination drew unexpected opposition from the High Federalists, who held up the appointment for a week in hopes that Adams would withdraw Marshall's name in favor of their candidate, Justice Paterson. But Adams stood firm, and Marshall was unanimously confirmed as chief justice of the United States on January 27, 1801.

Meanwhile, the choice of the next president remained unresolved. As Jefferson had feared, the contest was to be decided in the House of Representatives, where the Federalists, with Aaron Burr's acquiescence, were determined to deprive him of the presidency. Jefferson continued to hold out hope that any one of six representatives in key states, all "of moderate disposition," could change their vote and bring him the decisive ninth state delegation. But that hope was mixed with despair, because, as he told his daughter Martha, "there is such a mixture of bad passions in the heart that one feels themselves in an enemy's territory." The worst of it, he wrote, was that most of the Federalist representatives who were to decide his fate were "of the violent kind."

Even Jefferson conceded that defeat in the House might not be the worst outcome. He had heard the rumors, rampant in Washington as well as in the states, that a continued stalemate could lead to the total dissolution of the federal government. Virginia's Republican governor and Jefferson confidant, James Monroe, promised that his state militia stood ready to prevent the Federalists from voiding the election. At the same time, the editor of the Federalist newspaper Gazette of the United States reported that if it came to a test of military strength Massachusetts, a Federalist stronghold, could field a state militia greater than the combined strength of those of Pennsylvania and Virginia, which were loyal to Jefferson. Jefferson ignored the insurrectionist threats from both sides and continued to hope for a peaceful, constitutional solution. "At present there is a prospect that some, though Federalists, will prefer yielding to the wishes of the people rather than have no government," he wrote Martha.

The House vote was scheduled for the second week in February. By prior agreement between the two parties, the representatives would meet and vote in continuous session until a winner was declared. At the outset, Jefferson counted eight state delegations solidly supporting him. Six states, all controlled by Federalist majorities, were committed to Burr. Two states, Maryland and Vermont, remained uncommitted.

Members of the House soon realized that a resolution would not come quickly. Some sent home for nightcaps and pillows. And it was well that they did, for the balloting continued for six days. After five days and thirty-five ballots, the delegations were still deadlocked, eight to six, in favor of Jefferson, with Maryland and Vermont uncommitted.

The break came on the thirty-sixth ballot, after moderate Federalists secretly caucused and concluded that Burr could not win. To continue their futile pursuit of a Burr presidency, said James Bayard, the lone congressman from Delaware (who had voted for Burr on all previous ballots), was "to exclude Jefferson at the expense of the Constitution." On the next ballot, moderate Federalists from the two uncommitted delegations, Maryland and Vermont, submitted blank ballots, giving Jefferson supporters majorities in both states and ten overall, one more than he needed for election. At the same time, Delaware's Bayard and South Carolina's Federalist majority (both of whom had previously cast their delegations' votes for Burr) also cast blank ballots and were recorded as not voting, reducing Burr's total to four states.

Later, Bayard claimed that he had swung the election to Jefferson only after he had been assured that Jefferson would maintain the fiscal integrity of the federal government and retain several important Federalist appointees. There is no evidence that Jefferson made any such promise, though such commitments would not have contradicted his basic principles. The man who was supposed to have extracted the promises from Jefferson, Senator Samuel Smith, declared that, although he had engaged in general discussions with Jefferson, he had never asked the candidate directly for any commitment. Jefferson denied making any commitment to Bayard or any other Federalist, maintaining that he did not trade promises for votes. "Many attempts have been made to obtain terms and promises from me," he wrote Monroe. "I have declared to them unequivocally that I would not receive the government on capitulation, that I would not go into it with my hands tied."

The prolonged election crisis did not appear to dampen Jefferson's conviction that his republican principles would ultimately prevail. Even at the height of the crisis, when the House had voted more than thirty times without resolution, he wrote his old colleague John Taylor offering reassurance. Despite "the gales of monarchy" that the nation had endured, he was hopeful that, "when put on her republican tack, she will show herself built for that." When his victory was secure, he told Taylor, he would be prepared to lead the people in a return to what he considered to be the nation's first political principles. And "even if the old rigging may for a while perhaps disorder her motion," Jefferson concluded, he was confident that he could return the ship of state to her proper constitutional moorings, where power resided with the states and the people. It would be the peaceful revolution that Jefferson had long anticipated.

On March 2, less than two weeks after he had been declared the president-elect of the United States, Jefferson wrote to John Marshall, the new chief justice, with a request. "I propose to take the oath or oaths of office as President of the U.S. on Wednesday the 4th [of March] at 12. o'clock in the Senate chamber. May I hope the favor of your attendance to administer the oath?"

"I shall with much pleasure attend to administer the oath of office on the 4th," Marshall replied the same day, "& shall make a point of being punctual."

Copyright © 2002 by James F. Simon

Meet the Author

James F. Simon is the Martin Professor of Law and Dean Emeritus at New York Law School. He is the author of seven previous books on American history, law, and politics. His books have won the American Bar Association’s Silver Gavel Award and twice been named New York Times Notable Books. He lives with his wife in West Nyack, New York.

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What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States 4.8 out of 5 based on 0 ratings. 4 reviews.
Anonymous More than 1 year ago
This book had wonderful insight, detailing how the Supreme Court redefined how America works today.
Anonymous More than 1 year ago
Guest More than 1 year ago
'What Kind of Nation' takes me back to one of the greatest periods in the American history: the Jefferson administration vs. the Marshall court, a battle I believe was needed to improve our tripartite government. This great and easy-to-read book gives us a vivid picture of what was taking place inside of the Highest Court with some of the most fascinating arguments of all time by Daniel Webster, and within the Jeffersonian. 'What kind of Nation' is a good reference for those who would like to know how the united States get here.
Guest More than 1 year ago
I just want to point out that he is a law professor at New York Law School, located in Tribeca, NOT at NYU! How frustrating!