March 22, 1788 – Publication of First Installment of Bound Federalist Papers & Review of “Liberty’s Blueprint” by Michael Meyerson

In the seven-month period prior to the adoption of the Constitution, from October 1787 to May, 1788, Alexander Hamilton and James Madison (with a small contribution from John Jay) produced a series of outstanding essays popularly known as The Federalist Papers, designed to sell readers on the idea of ratification. The Federalist, as it is properly called, was more than just a sales document. Thomas Jefferson called The Federalist “the best commentary on the principles of government which was ever written.” Meyerson summarizes the issues covered in The Federalist, including the balance of power among the three branches and different levels of government, the danger of factionalism, and the role of the courts, seeking to show why this brilliant collection retains relevance in the interpretation of the Constitution even today.

The first in the series of eight-five essays by “Publius,” the collective pen name of Alexander Hamilton, James Madison, and John Jay, was published on October 27, 1787 in the New York City newspaper “Independent Journal.”

federalistpapers

Federalist No. 1 encouraged the people of New York to support ratification of the Constitution approved by the Constitutional Convention on September 17, 1787.

Although written for the New York press, newspapers around the country reprinted the essays.

Since all of the essays were signed “PUBLIUS,” the actual authors of some are under dispute, but the general consensus is that Alexander Hamilton wrote 52 (including the first), James Madison wrote 28, and John Jay contributed the remaining five.

Alexander Hamilton

Alexander Hamilton

[You can read the full text of all of the Federalist Papers here.]

On January 1, 1788, the New York publishing firm J. & A. McLean announced that they would publish the first thirty-six essays as a bound volume; that volume was released on March 22, 1788, and was titled The Federalist Volume 1. New essays continued to appear in the newspapers; Federalist No. 77 was the last number to appear first in that form, on April 2. A second bound volume containing Federalist 37–77 and the yet to be published Federalist 78–85 was released on May 28. The last eight papers (Federalist 78–85) were republished in the New York newspapers between June 14 and August 16, 1788.

Meyerson suggests that appreciation of The Federalist has been compromised by the disagreement between “originalists” and “non-originalists.” Originalists contend, as explained by Justice Scalia in a speech in 2005, that interpretation of the Constitution should begin with the text itself, in an attempt “to give that text the meaning that it bore when it was adopted by the people.”

Arguments in favor of originalism include that it provides the best mechanism for preventing judges from deciding cases based on their personal preferences instead of on legal principles. Moreover, the fact is that the legitimacy of the American polity is based on the Constitution as it was written. As Madison pointed out, repeated changes in the Constitution would lead people to assume their founding document [and therefore polity] was flawed and could or should be replaced.

The Federalist, Meyerson argues, can bridge the gap between the seemingly irreconcilable approaches of Constitutional interpretation. Understanding why it was written and what it contains can illuminate the answer to “how and when we should call upon the views of the framers….” Specifically, Meyerson points out that because Hamilton and Madison both attended the Convention, for which no proceedings were released, The Federalist “explains, in detail, the logic and reasoning behind the choices made by those who drafted the Constitution in Philadelphia.” No less importantly, The Federalist “showed how these choices reflected the goals and ideals of the population of their time.

Alexander Hamilton

Unfortunately, shortly after the generation of The Federalist Papers, Hamilton and Madison had a falling out over a number of issues, and Madison, “acquiescing to the views of Jefferson,” became a bitter enemy of Hamilton. Both Hamilton and Madison used The Federalist to argue against each other, even taking positions contrary to those espoused in the essays! As an example, Jefferson was incensed when President Washington (who Jefferson considered to be a puppet of Hamilton) declared neutrality in the war between England and France. Hamilton published some essays defending Washington’s position. Jefferson, an unrepentant Francophile even knowing the excesses of the French Revolution, wrote to Madison in July, 1793:

For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public.”

Jefferson preferred to execute his dirty tricks through the agencies of others, Madison being one his preferred proxies. But in this instance, the problem for Madison was that Hamilton was making points consistent with what Madison had written in The Federalist Papers. Meyerson notes that “Madison reluctantly took up the challenge,” but was never able to rebut Hamilton.

James Madison

In fact, Meyerson advises us to use caution in relying on statements about The Federalist Papers made by Hamilton and Madison after ratification of the Constitution: “They used temporary, mutable stratagems, adapted solely to support the political positions they were championing at the moment.”

Meyerson suggests that if we avoid that trap, we will benefit greatly from reference to The Federalist Papers. He asserts “the history of the drafting and ratification of a document such as the Constitution simply cannot be irrelevant in understanding the meaning of unclear terms and enigmatic omissions.” Further, he opines “original meaning, whenever it can be recovered, should … prevail over the lesser acts of legislators and the preferences of jurists.” He points out how helpful it has been to have such a thorough understanding of what the words meant in the Constitution as opposed to the Bill of Rights and subsequent amendments, for which such documentation is lacking.

Nevertheless, he observes that sometimes it is not possible to uncover an original meaning. Additionally, we now have a “more evolved understanding” of some issues, such as the rights of minorities. Certainly we must not treat The Federalist as “holy writ;” however, the overall structure of our government has not changed in 200 years, and there is much in The Federalist that is instructive on the balance of power and dangers of usurpation by one branch or another.

Evaluation: This is an interesting overview of the writing of The Federalist Papers and the uses to which it has been put from our early Republic through the present Supreme Court. Meyerson tries to give both sides of the originalist – non-originalist issue, although his respect for the brilliance and continued relevancy of The Federalist Papers is clear. His book serves as a useful reminder that the Constitution is the legitimizing document of this country, and should not be trimmed to suit the political tides of the moment.

Published by Basic Books, 2008

December 27, 1771 – Birth of William Johnson, Jr., Associate Justice of the Supreme Court

On December 27, 1771 – this day in history – William Johnson, Jr. was born in Charleston, South Carolina. He attended Princeton College and returned to Charleston to study law. After being tutored by General Charles Cotesworth Pinckney, he gained admission to the State Bar and also entered politics as a Jeffersonian Republican. Johnson was elected to the State Legislature for successive terms in 1794, 1796, and 1798. By the last term he had become Speaker of the State House of Representatives.

In 1799, he was elevated to the South Carolina Court of General Sessions and Common Pleas. Three years later, President Thomas Jefferson had his first chance to appoint an associate justice to the Court and named William Johnson, only thirty-two, a staunch Republican on the South Carolina Supreme Court.  The United States Senate confirmed him on May 7, 1804 as the first Supreme Court member who was not a Federalist. 

Official portrait of Supreme Court Justice William Johnson

Oyez writes:

Johnson was an owner of slaves who opposed abolition while also opposing inhumane treatment of Africans.”

Yet, according to Joel Richard Paul, writing in Without Precedent: John Marshall and His Times:

While he acknowledged that slavery was a ‘national evil,’ he rejected the argument that the slave trade was condemned by international law. ‘However revolting to humanity’ this was, Johnson believed that slaves were no different from any other commercial cargo under the law of nations.”

In a case he heard riding circuit in Georgia about several captured slave trading ships, he found that a U.S. court could not enforce laws banning the slave trade against foreign slavers, and the slave traders were entitled to the return of their property. Professor Paul writes, “Justice Johnson’s opinion flew in the face of Congress’s declaration that same year that the slave trade was ‘piracy’ under international law punishable by death.” (p. 355)

[Johnson’s circuit court opinion is reproduced in Carol Necole Brown, “Casting Lots” The Illusion of Justice and Accountability in Property Allocation,” Buffalo Law Review 53, no. 65 (Winter 2005): 130-140, online here.]  

But there is more. The ships and its slaves were claimed by Spain, Portugal, and the captain of a U.S. revenue cutter that hauled the ships in, and who now wanted a bounty. Some of the kidnapped Africans had died and some had escaped, so it was unclear which slaves belonged [sic] to which country. The District Court Judge first hearing the case had determined that 63 should go to Spain, 142 to Portugal, and the remaining 7 would be freed in the United States.

When the case came to the appeals court and was heard by Justice Johnson, he changed the allocation to Spain and Portugal and decided sixteen slaves should be freed to the United States. Furthermore, since the identity of the slaves was unclear, he proposed they draw lots to determine who would go free. As Professor Paul observes, “It would have been unthinkable that any jurist would hazard the freedom of a white man in a raffle, but Johnson had no such scruples when it came to Africans.” (p. 355)

In any event, the lottery didn’t matter; a corrupt Congressman arranged to take the freed Africans, and sent them to work on his own sugar plantation.

During his twenty-nine years on the bench, Justice William Johnson wrote 112 majority opinions, trailing only Chief Justice John Marshall and Justice Joseph Story in speaking for the Court.

Jefferson indeed had an ally in Johnson; they complained back and forth to each other about Chief Justice John Marshall. See for example this letter from Jefferson to Johnson, and this scholarly commentary on Johnson’s tenure, “The Life and Judicial Work of Justice William Johnson, Jr.” by Oliver Schroeder, Jr. (95 U. Penn. Law Review 2, 1946), online here.

Johnson died in New York City on August 4, 1834 following surgery on his jaw. He was buried at St. Philip’s Episcopal Church Cemetery in Charleston.

November 10, 1806 – Henry Brockholst Livingston Receives Recess Appointment to U.S. Supreme Court from President Thomas Jefferson

Henry Livingston, a forebear of both Presidents Bush, was born in New York City in 1757. He graduated from the College of New Jersey (now Princeton) and served in the American Revolution.

He was a private secretary to John Jay, then the U.S. Minister to Spain from 1779 to 1782.

After the war, Livingston read law and was admitted to the bar in 1783. He was in private practice in New York City from 1783 to 1802.

At one time is was part of team of three lawyers in a murder defense that also included Alexander Hamilton and Aaron Burr.

Henry Brockholst Livingston

From 1802 to 1807, Livingston served as a justice of the Supreme Court of New York. Two years later, on November 10, 1806 – this day in history – Livingston received a recess appointment to the Supreme Court of the United States from Thomas Jefferson, to a seat vacated by Associate Justice William Paterson. Paterson died in 1806 from injuries suffered in a coach accident.

Livingston was formally nominated on December 15, 1806, and confirmed by the U.S. Senate on December 17, 1806. He served on the Supreme Court from then until his death in 1823.

As Joel Richard Paul writes in Without Precedent: John Marshall and His Times, p. 298:

Republicans assumed he [Livingston] would be a tough opponent for Marshall, but his warm, open personality mirrored Marshall’s own affability. The two got along famously, and over his long tenure, Livingston dissented from Marshall’s opinions only eight times out of more than four hundred cases.”

September 9, 1776 – The Second Continental Congress Made the Term “United States” Official Replacing “United Colonies”

On September 9, 1776, the Second Continental Congress chose a new name for what had been called the “United Colonies,” changing it to “United States of America.”

Thomas Jefferson is credited as being the first person to come up with the name, which he used while drafting the Declaration of Independence. The Declaration begins with the statement: “The unanimous Declaration of the thirteen united States of America.” The final paragraph includes both names, ending:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.”

Thomas Jefferson by Charles Willson Peale

The Christian Science Monitor notes that the use of the moniker “United States of America” by Thomas Jefferson and others credited for the name was predated by a recently discovered example of the phrase in the Revolutionary-era Virginia Gazette.

Beginning in March 1776, a series of anonymously written articles began appearing in The Virginia Gazette – one of three different Virginia Gazettes being published in Williamsburg at that time. Addressed to the “Inhabitants of Virginia,” the essays argued for independence versus reconciliation with Great Britain. The author claimed that the colonies were losing money, writing:

What a prodigious sum for the united states of America to give up for the sake of a peace, that, very probably, itself would be one of the greatest misfortunes! –

A PLANTER”

Historian Byron DeLear speculates that “A Planter” could have been Jefferson, other well-known Virginians like Patrick Henry, or northerners like Benjamin Franklin and John Adams. Regardless, the use of the name in the Declaration of Independence resonated with Congress, and the name was officially adopted on this day in history, when the Congress moved to approve several resolutions. The fifth resolution read as follows:

That in all continental commissions, and other instruments, where, heretofore, the words ‘United Colonies’ have been used, the stile be altered for the future to the “United States.”

September 1, 1807 – Chief Justice John Marshall Acquits Aaron Burr of Treason

Thomas Jefferson bore a grudge against Aaron Burr for running against him in the 1800 presidential election as well as opposing him on other matters. Jefferson also feared Burr might challenge Jefferson’s chosen successor, James Madison. He decided to get Burr out of the way and settle his scores against him at the same time. The charge of treason was a convenient method for Jefferson to get rid of Burr (in a definitive way, since the punishment for treason was death by hanging). Accusations against Burr were provided by General James Wilkinson, who even Jefferson knew was “notoriously unreliable” and who was a spy on the payroll of Spain. Nevertheless, Jefferson addressed Congress in January of 1807 declaring Burr “guilty of treason” by virtue of Wilkinson’s allegations and ordering his arrest.

The case of United States v. Aaron Burr commenced that summer in Richmond, with Supreme Court Chief Justice John Marshall presiding.

Portrait of Burr, undated (early 1800s)

Joel Richard Paul, in his history Without Precedent: John Marshall and His Times, noted that Jefferson “was not interested in the truth about Burr.” Jefferson not only publicly voiced his confidence that Burr was guilty but sent instructions to the prosecutors on how to conduct the trial. He also included a stack of signed pardons for anyone willing to testify against Burr.

But the prosecutors had little to work with: the “witnesses” they presented gave muddled and contradictory testimony, and Wilkinson’s “evidence” was proven to have been fabricated. Moreover, there was the small matter that the Constitution required that treason be defined by an “overt act” by the accused. Alas, there wasn’t any.

General James Wilkinson

Chief Justice Marshall didn’t have to intervene much to protect the defendant, since the case against Burr was so obviously without merit. Nevertheless, when he directed the jury to acquit Burr of treason in September 1, 1807, the press launched vicious attacks on Marshall. Enraged Republicans accused Marshall of playing party politics and siding with a traitor against the U.S. President. Marshall knew this risk was inherent in his verdict, writing in his opinion:

That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should, on each side, press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.”

Jefferson fumed for years over Marshall’s “twistifications” in Burr’s trial. (Paul, op cit., p. 295)

July 7, 1783 – Thomas Jefferson Writes to James Madison, Goading Him to Attack Alexander Hamilton

In April, 1793, Edmond Charles Genêt, better known as Citizen Genêt, arrived in America to great fanfare as the newly appointed French minister to the United States.

Genêt’s mission, as recounted by Joel Richard Paul in Without Precedent: John Marshall and His Times, was to persuade the U.S. to help France liberate Canada, Louisiana, and Florida from rule by Britain and Spain. If the Americans refused to enter the war on France’s side, Genêt was instructed to “germinate the spirit of liberty” by instigating a popular uprising in favor of France. He had other assignments as well, all of which were designed to advance the position of France in the U.S. to the detriment of Britain.

Engraving of Edmond-Charles Genêt

Genêt launched an immediate campaign to realize his goals, taking assertive actions that amounted to “an astounding breach of diplomatic protocol and international law” (per Paul, p. 73).

President George Washington wanted the U.S. to remain neutral in the war between France and Britain, much to Secretary of State Thomas Jefferson’s chagrin. Jefferson, besotted with France as well as its revolution, fiercely opposed neutrality. Treasury Secretary Alexander Hamilton, on the other hand, strongly supported it.

Jefferson had already been meeting secretly with Genêt at Trump Tower, and was anxious for Genêt’s help to elect a republican majority in Congress in return for support for an alliance with France and a removal of tariffs on French imports. Paul writes:

Jefferson made clear that his enemies – the federalists [which included President George Washington], particularly Adams and Hamilton – were France’s enemies. . . . From these conversations, Genêt formed the misimpression that the president was irrelevant and that an appeal to Congress, or to the people directly, would be more effective.”

Genêt also confided his plans to arm regiments in South Carolina and Kentucky to attack Spanish holdings in Florida and Louisiana, and Jefferson helped put Genet in touch with people who could help him.

Paul writes:

Jefferson’s relationship with the French envoy was ill-advised, probably illegal, and certainly disloyal to Washington.”

The President ended up issuing a Proclamation of Neutrality. Republicans denounced the proclamation as exceeding the president’s constitutional powers. Using the pseudonym Pacificus, Hamilton wrote a series of essays in support of Washington’s authority to determine the country’s foreign relations. Jefferson, as was his usual modus operandi, remained silent in public while stealthily prodding his henchman James Madison to attack. [When Jefferson himself was president, he of course would feel differently about presidential authority.]

Thomas Jefferson

On this day in history, Jefferson sent a letter to Madison, bemoaning the fact that nobody was taking exception to the writings of Pacificus:

Nobody answers him, and his doctrine will therefore be taken for confessed. For god’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public. There is nobody else who can and will enter the lists with him.”

The sniping over Genêt, Paul writes, would eventually lead to the spawning of two competing political parties. It seems that in terms of partisan squabbling; trying to get foreign help in undermining of the political opposition; and dirty tricks – both in secret and in the open – not much has changed, as evinced by the Trump Administration, et al.

April 13, 1943 – Dedication of Jefferson Memorial

The Tidal Basin, an area of about 107 acres in Washington, D.C. is a partially man-made reservoir between the Potomac River and the Washington Channel in Washington, D.C. (The two-mile long Washington Channel runs parallel to the Potomac River.) The Jefferson Memorial, the Martin Luther King, Jr. National Memorial, the Franklin Delano Roosevelt Memorial, and the George Mason Memorial are all located around the Tidal Basin.

The concept for the Tidal Basin originated in the 1880s; it was intended to serve both as a visual centerpiece and as a means for flushing the Washington Channel. The basin was initially named Twining Lake, in honor of Washington D.C.’s first Engineer Commissioner.

For a brief time the Tidal Basin served as a beach for swimming. The Tidal Basin Beach, on the site of the future Memorial, opened in May 1918 and operated as a “Whites Only” facility until 1925, when the Senate voted to close it permanently, “partly due to concerns about pollution and partly because of pressures from African American leaders to build a black bathing beach on the other side of the Tidal Basin.”

White swimmers enjoy the Tidal Basin Bathing Beach in 1922. (Photo source: Library of Congress)

In 1934 President Franklin Roosevelt, an admirer of Jefferson, inquired to the Commission of Fine Arts about the possibility of erecting a memorial to Jefferson, although that (or any) site had not yet been selected. Later the same year, Congressman John J. Boylan urged Congress to create the Thomas Jefferson Memorial Commission. Boylan was appointed the Commission’s first chairman and Congress eventually appropriated $3 million for a memorial to Jefferson.

The Commission chose John Russell Pope as the architect in 1935. Pope was also the architect of the National Archives Building and original (west) building of the National Gallery of Art. He prepared four different plans for the project, each on a different site. The Commission preferred the site on the Tidal Basin mainly because it was the most prominent site and because it completed a proposed four-point design plan that encompassed the Lincoln Memorial to the Capitol and the White House to the Tidal Basin site.

As the National Park Service observed:

Once the site for the Jefferson Memorial was chosen, there was never any question about its visual relationship with the White House – a direct line. In fact, President Roosevelt ordered trees to be cut so that the view of the memorial from the White House would be enhanced.”

The National Park Service also recounted how Pope used Jefferson’s own architectural tastes in the design of the Memorial. The Commission of Fine Arts objected to the pantheon design because it would compete with the Lincoln Memorial. The Thomas Jefferson Commission took the design controversy to President Franklin D. Roosevelt who preferred the pantheon design and gave his permission to proceed. Architects Daniel P. Higgins and Otto R. Eggers took over construction upon the untimely death of Pope in August 1937. On November 15, 1939, a ceremony was held in which President Roosevelt laid the cornerstone of the Memorial.

Roosevelt returned on April 13, 1943, to dedicate the memorial, which coincided with the 200th anniversary of Jefferson’s birth.

Only the bronze statue of Jefferson had not been completed, owing to wartime metal shortages. (In 1938, two artists had won a competition to make the memorial. Rudulph Evans was chosen to make the statue of Jefferson and Adolph A. Weinman to sculpt the pediment relief located above the entrance.) A painted plaster version was in place for the dedication and would remain until the restrictions on metal use were lifted in 1947.

During the dedication celebration, the original Declaration of Independence was on display in the new memorial. The document had been brought out of its war-time hiding place at Fort Knox.

President Franklin Roosevelt at podium for dedication of Jefferson Memorial. National Park Service photo.

Roosevelt, speaking at the dedication, called the memorial a “shrine to freedom” and added that it was a payment on “a debt long overdue.” FDR took the opportunity to remind those in attendance (and listening via radio across the country), of the parallels between Thomas Jefferson’s challenges in the founding of the republic, and those being experienced at the time by a nation embroiled in a world war:

He faced the fact that men who will not fight for liberty can lose it. We, too, have faced that fact.

He lived in a world in which freedom of conscience and freedom of mind were battles still to be fought through — not principles already accepted of all men. We, too, have lived in such a world.

He loved peace and loved liberty — yet on more than one occasion he was forced to choose between them. We, too, have been compelled to make that choice.”

The memorial features white marble from Vermont and Georgia, and pink marble from Tennessee. Indiana limestone and Minnesota granite also are part of the structure. The statue of Jefferson, sculpted in 1941, is 19 feet tall. Four quotations from Jefferson’s writings are carved into the walls of the memorial chamber.

A fifth quote engraved on the frieze encircling the memorial’s interior is from an 1800 letter of Jefferson’s and reads, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” [He meant white men of course, but it was a noble sentiment in theory.]

Review of “Without Precedent: John Marshall and His Times” by Joel Richard Paul

This is yet another book that, while focused primarily on John Marshall, compares the legacies Marshall with his political rival, Thomas Jefferson. Both men made essential contributions to the early republic. And like every other historian I have read, in this author’s assessment, Marshall was the better man.

Joel Richard Paul studied at Amherst College, the London School of Economics, Harvard Law School, and the Fletcher School of Law and Diplomacy. He teaches international economic law, foreign relations, and constitutional law at the University of California Hastings Law School, serving as the Associate Dean at the time of publication. He provides an astute analysis of John Marshall’s greatest cases, and does not hesitate to point out instances when Marshall “was no purer than his contemporaries.” Yet he clearly finds much to admire about John Marshall.

As he notes in his introduction:

None of the founding generation of American leaders had a greater impact on the American Constitution than John Marshall, and no one did more than Marshall to preserve the delicate unity of the fledgling republic.”

This was done by a man whose only formal education was one year of grammar school and six weeks of law school! Yet this self-taught man went on to exhibit not only a wide-ranging erudition but a sense of honesty and decency that won over even those who began as his opponents. (The exception of course was the intractable Jefferson, who saw Marshall as standing in the path of Jefferson’s control of all branches of government.) Marshall’s special forte was the art of compromise, which he employed both as a diplomat in France, and on the court which he led for thirty-four years, longer than any other chief justice. More critically, he single-handedly established the court’s importance and supremacy in American life.

Marshall was born on September 24, 1755 in Germantown, Virginia, the eldest of fifteen children. His mother was a first cousin of Thomas Jefferson’s mother but the families were not close. Because of a scandal involving Marshall’s maternal grandmother, the Marshall side of the family was disinherited, and Jefferson’s family got most of the wealth. As Paul observes:

As a result, Thomas Jefferson grew up at Tuckahoe with five hundred slaves. There he enjoyed enormous privilege and wealth. His cousin John Marshall and his fourteen siblings grew up on the frontier working the stony soil on their father’s modest farm.”

Paul avers that Marshall grew up without resentment; rather, he moved fluidly between classes and had the confidence to believe he could elevate his station. Unlike Jefferson, who grew up with education, advantages, and was groomed for leadership, Marshall had to rely on determination and self-invention. His upbringing also provided him with more compassion than Jefferson, and a more generous and humane nature. Paul opined:

Though Marshall belonged to the party of elites, he practiced republicanism in his everyday life. By contrast, Jefferson preached democracy but lived more like the European aristocrats he despised.(p. 235)”

Jefferson, in Marshall’s view, as Paul contends, “lacked genuine empathy and embodied precisely the kind of elitism that he attacked in theory. He could never be trusted to act in the interests of the nation.”

When President John Adams nominated Marshall to be Chief Justice right before he ceded the presidency to Thomas Jefferson, “the Supreme Court was regarded as nothing more than a constitutional afterthought.”

Jefferson and the Republican Congress wanted to emasculate the judiciary, and took numerous steps (only some of which were successful) to do so. But by the time Marshall’s tenure ended in 1835, he had “elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.”

Importantly, Marshall was able to win over the other justices on the court, even those appointed by Jefferson specifically to oppose Marshall. Paul posits that Marshall’s collegiality as well as “sheer personality and intellect” won over “even the most resolute colleague.”

How he did this – and sometimes he acted less than exemplary in his efforts to outwit the attacks on judicial independence and rule of law by Thomas Jefferson and later Andrew Jackson – is the subject of Paul’s book. Paul tells the story mostly through an explication of the cases that came before the court, because the fact was that many of them represented competing visions of power between Jefferson and Marshall.

Thomas Jefferson

I was especially surprised to learn about Marshall’s sneaky manipulation in seminal cases like Marbury vs. Madison, but I believe, as Marshall seems to have done, that the end justified the means. In any event, Marshall was no less sneaky and manipulative than Jefferson, but Marshall, in my view, was more often on “the side of the angels.”

Paul informs us that prior to Marshall’s tenure, each justice issued his own individual opinion seriatim. Marshall thought that the Court’s authority would be more persuasive and the law more clarified if he could forge a single decision on behalf of the entire Court. Thus, during his thirty-four years as chief justice, Marshall personally wrote 547 opinions. Of these, 511 were unanimous.

It is important to note the irony that Marshall, a “founding father,” rejected a strict construction of the Constitution and insisted on interpreting it as a living document that responded to the needs and demands of a growing nation.

Marshall made a number of courageous decisions that inspired a great deal of enmity in his detractors, such as clearing Aaron Burr of treason charges in 1807. This charges were pushed forward by President Jefferson for the principal reason that Burr was a powerful political enemy. But the penalty for treason was death, and there was a total lack of evidence against Burr.

Portrait of Burr, undated (early 1800s)

While Paul is generally willing to expose Marshall’s warts, he gives him a pass when it comes to slavery. Paul writes:

Marshall was not free of racial prejudice, and he did enjoy the comforts that his household slaves provided to him. Marshall’s attitude toward African Americans was paternalistic. He viewed his slaves as family members who needed his guidance and support. . . . It appears that Marshall treated his slaves humanely, and on at least one occasion, he paid for a doctor to care for a slave woman who was ill.”

In his conclusion he repeats the assertion that Marshall had a “generous and humane relationship with his slaves” (p. 437).

[This seems to me to be a quite specious argument. Can you be “humane” toward someone you hold in ownership, house in your basement, trade like baseball cards at a cattle market, and buy and sell at your whim? Okay so maybe you don’t use a whip and don’t use rape – should that be touted as laudatory? I would accept “less horrible” perhaps, but not “humane.”]

Paul Finkelman, writing in Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard, 2018) contends that biographers are reluctant to tarnish the picture of “our greatest chief justice.” But Marshall’s relationship with slavery was an important influence on his jurisprudence and therefore deserves closer scrutiny.

Marshall accumulated more than 150 slaves in his lifetime, while also giving around seventy slaves to two of his sons. When he died, Marshall did not arrange to free any of his slaves, unlike some other prominent Virginians in his time, including George Washington. No evidence remains as to how he actually treated his slaves.

But we can learn something from his jurisprudence, Finkelman argues. It was “hostile to free blacks and surprisingly lenient to people who violated the federal laws banning the African slave trade.” (Finkelman at 34) For Marshall serving on the court, Finkelman argues, “slaves were another form of property subject to litigation….”

Finkelman cites John Marshall in his “Memorial: To the General Assembly of Virginia,” December 13, 1831, available in Papers of Marshall, 12:127 contending that free blacks in Virginia were worthless, ignorant, and lazy, and that they were “pests” that should be removed from the state.” (Finkelman at 51)

It is truly tragic that Marshall felt this way, for he might have made a difference. As Marshall said in his opinion exonerating Burr, and acknowledging the unpopularity of the ruling:

That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should, on each side, press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.”

Evaluation: I love reading histories of John Marshall – how can anyone with an interest in the law and in this country not find fascinating the court cases that shaped all subsequent jurisprudence as well as the relationship among the three branches of government? The fact that relationship is now imperiled is all the more reason to study how and why these struggles were worked out in the past, and to what effect.

Rating: 4/5

Published by Riverhead Books, 2018

October 8, 1809 – Thomas Jefferson Rejects Idea That Blacks are as Intelligent as Whites

In his famous book, Notes on the State of Virginia (1781), while Thomas Jefferson condemned slavery itself, he claimed that blacks were physically and intellectually inferior to whites.

He wrote:

Comparing them by their faculties of memory, reason, and imagination, it appears to me, that in memory they are equal to the whites; in reason much inferior . . . and that in imagination they are dull, tasteless, and anomalous . . . But never yet could I find that a black had uttered a thought above the level of plain narration; never see even an elementary trait, of painting or sculpture.”

He was challenged in this view by a black polymath, Benjamin Bannaker, as we shall see below. But Jefferson stubbornly adhered to his initial judgments.

Thomas Jefferson by Rembrandt Peale, 1805

On this day in history, Thomas Jefferson wrote as much to Joel Barlow, a minister, writer, liberal thinker, and diplomat. Jefferson was acknowledging receipt of Barlow’s written copy of an oration delivered on July 4, 1809 in Washington, D.C. (accessible online here).

Jefferson said he saw the critique of Barlow’s speech by Henri Gregoire. Gregoire, the constitutional bishop of Blois, was a former French revolutionist who, according to Jefferson’s account, “must have been eagle-eyed in quest of offence, to have discovered ground for it among the rubbish massed together in the print he animadverts on.”

But Jefferson’s strongest objection to Gregoire had nothing to do with Barlow. Rather, it was borne of Gregoire’s critique of Jefferson’s Notes on the State of Virginia.

After Jefferson disparaged Gregoire on Barlow’s behalf, he revealed that his animus came from his own grudge against Gregoire for disagreeing with Jefferson on the matter of the intellect of African Americans:

He wrote to me also on the doubts I had expressed five or six and twenty years ago, in the Notes of Virginia, as to the grade of understanding of the negroes, and he sent me his book on the literature of the negroes. His credulity has made him gather up every story he could find of men of color, (without distinguishing whether black, or of what degree of mixture,) however slight the mention, or light the authority on which they are quoted. The whole do not amount, in point of evidence, to what we know ourselves of Banneker. We know he had spherical trigonometry enough to make almanacs, but not without the suspicion of aid from Ellicot, who was his neighbor & friend, & never missed an opportunity of puffing him. I have a long letter from Banneker which shews him to have had a mind of very common stature indeed.”

The matter of Benjamin Banneker is worth a full explanation. Benjamin Banneker, born to a free African-American woman and a former slave, was a self-taught mathematician, astronomer, surveyor, farmer, inventor, author, and political activist. With the encouragement of George Ellicott and Elias Ellicott, members of the Maryland Society for the Abolition of Slavery, he prepared an ephemeris for 1791. (An ephemeris gives the positions of astronomical objects in the sky at a given times.) The Ellicotts’ cousin Andrew Ellicott, a prominent surveyor, brought Banneker’s mathematical accomplishments to Jefferson’s notice.

But Banneker also contacted Jefferson himself. In 1791 Banneker wrote a letter to then Secretary of State Jefferson attacking the institution of slavery and calling Jefferson a hypocrite. (The ostensible purpose of the letter was to enclose the almanac Banneker wrote, which no one would publish but an abolitionist. You can read the full text of his letter here.)

Banneker argued:

…Sir, how pitiable is it to reflect, that although you were so fully convinced of the benevolence of the Father of Mankind, and of his equal and impartial distribution of these rights and privileges, which he hath conferred upon them, that you should at the same time counteract his mercies, in detaining by fraud and violence so numerous a part of my brethren, under groaning captivity and cruel oppression, that you should at the same time be found guilty of that most criminal act, which you professedly detested in others, with respect to yourselves.”

It is ironic that if Banneker were white, Jefferson would have sought him out as an intellectual soul mate. Many of Banneker’s interests mirrored those of Jefferson. Banneker even built a wooden clock by duplicating the gears of a borrowed pocket watch; Jefferson loved that kind of thing.

Jefferson responded to Banneker, claiming:

“I can add with truth that no body wishes more ardently to see a good system commenced for raising the condition both of their body & mind to what it ought to be, as fast as the imbecillity of their present existence, and other circumstance which cannot be neglected, will admit.”

[Unless, of course, it meant having to give up his own slaves.]

Banneker’s almanac was quite successful, and he continued to publish it each year until 1797.

But Jefferson never really gave up his ideas as expressed in Notes on the State of Virginia, as this letter revealed. To reinforce his views, he now justified them by claiming Banneker could not have accomplished what he did on his own, without help from white people.

July 11, 1786 – Letter from Jefferson to John Adams on Strategy Regarding the Barbary Coast

In 1662, England made the first treaty with a Barbary ruler, agreeing to pay “tribute” in exchange for the ruler’s calling off attacks on that nation’s ships. Tributes were often subject to renewed negotiations lest the piratical attacks resume. Nations like England were said to have agreed to the treaties rather than destroying the pirate ships because it not only protected their own ships but provided for the destruction of competing, non-paying merchant marines.

Map of the Barbary Coast

In 1784, the American Continental Congress, finding that their commerce was impaired by the pirates, agreed to enter into tribute negotiations. It appointed Thomas Jefferson, John Adams and Benjamin Franklin as peace commissioners. In 1785, Congress authorized a maximum of $80,000 for payment to all the Barbary states.

John Adams met several times with His Excellency Abdrahaman, envoy of the sultan of Tripoli. Adams felt he had gone the extra mile to please the envoy, but he soon realized that $80,000 was considered insufficient, and was not enough money to avert a war.

Jefferson, serving in Paris as U.S. Minister to France, wrote to Horatio Gates on December 13, 1784:

Our trade to Portugal, Spain, and the Mediterranean is annihilated unless we do something decisive. Tribute or war is the usual alternative of these pirates. If we yeild [sic] the former, it will require sums which our people will feel. Why not begin a navy then and decide on war?”

On July 3, 1786, Adams corresponded with Jefferson, opining that paying tribute would be more economical and easier than convincing the people of the United States to fund the building of a navy.

But Jefferson still favored a military solution. In a letter on this date to John Adams, he acknowledged that “I very early thought it would be best to effect a peace thro’ the medium of war.” He wrote further, “However if it is decided that we shall buy a peace, I know no reason for delaying the operation, but should rather think it ought to be hastened. But I should prefer the obtaining it by war. And then he listed his reasons, which included “justice,” “honor,” and “respect in Europe.” He believed that if the U.S. went to war on this issue, it would no doubt be joined by Naples and Portugal. Thereafter, “many, if not most of the powers of Europe (except France, England, Holland and Spain if her peace be made) would sooner or later enter into the confederacy, for the sake of having their peace with the Pyratical states guarantied by the whole.”

Jefferson as a young man

Nevertheless, nothing much happened, and by the time Thomas Jefferson was inaugurated in March of 1801, he inherited the troubled relations with the Barbary states.

As the Monticello website reports:

The new president very quickly made his decisions. He would arrange the payments long overdue to the rulers in Algiers and Tunis and following his convictions of earlier years he would send the navy to deal with the maritime forces of Barbary, of whose strength he himself prepared an estimate from documents sent him by the Navy department.”

Jefferson sent a letter to Pasha Yusuf Qaramanli of Tripoli in which he emphasized “our sincere desire to cultivate peace & commerce with your subjects.”

But even before the letter was received, Pasha Qaramanli declared war on the United States on May 14, 1801 by chopping down the flagpole at the American consulate in Tripoli.

U.S. Navy Schooner Enterprise capturing the Tripolitan Corsair Polacca Tripoli August 1, 1801

During the following three years the pasha maintained his demands and the United States, rotating ships and crews, maintained its naval presence in the Mediterranean as well as diplomatic efforts to make peace.

The war was finally resolved in 1805 after a great deal of both military conflicts and diplomatic wrangling.