Review: What Kind of Nation

What Kind of NationSummary: Simon’s book summarizes the struggle between John Marshall and Thomas Jefferson to define the character of American Federal government, focusing particularly on Marshall’s role in creating a strong judicial branch. A good book for anyone interested in post-Revolutionary War American history or in early constitutional law.

About the only thing John Marshall and Thomas Jefferson had in common was that both were Virginians. Jefferson was enamored of all things French while Marshall broke off talks with France following the XYZ Affair, in which French officials basically demanded bribes in order to enter into treaty negotiations with the young country. Marshall risked war rather than be party to this, although he characteristically stopped short of calling for war, showing the measured judgment that would characterize his career.

More than this Jefferson’s agrarian vision was for a limited federal government that allowed to states all power not expressly given the federal government. Likewise, Jefferson wanted to limit the Federalist dominated judiciary. Marshall had a very different vision of the needs of the country, and as Chief Justice of the Supreme Court a very different vision for the place of the court as a co-equal branch of the government rather than the poor step-child he inherited.

James F. Simon gives us a vivid account of the tension between the Jefferson the Republican and Simon the Federalist. Unlike Adams and Jefferson, these two men would never be reconciled to one another. Perhaps the most famous encounter, which Simon covers in detail is that resulting in the Marbury v. Madison decision, that uphold the Jefferson administration’s refusal to deliver Marbury’s commission to serve as Justice of the Peace of the District of Columbia. This was one of a number of last minute appointments by John Adams. While this appeared to be a victory for Jefferson, Marshall based his decision on the ruling that the provision of the Judicial Act of 1789 under which Marbury brought his suit was in fact unconstitutional. What Marshall’s decision for the Court did was establish the principle of judicial review, which allowed the Supreme Court an expanded role in determining the constitutionality of legislation passed by Congress. No longer was the court the poor step-child or “least dangerous branch.”

The book goes on to describe further clashes between the two over attempts to impeach judges including fellow justice Chase, and in the treason trial of Aaron Burr. In each instance, Simon portrays a Jefferson who attempts to use political influence toward these ends only to be countered by the careful legal reasoning of Marshall. In the Burr trial, Marshall made a key ruling against Jefferson’s claim of executive privilege in withholding key evidence against Burr. Even after Jefferson was out of office, they continued to be on opposite sides of a series of states rights cases (Martin v. Hunter’s Lessee and McCulloch v. Maryland) that established precedence of federal over state law, nurturing the tensions that would eventually flare up in America’s Civil War.

In Simon’s account, Marshall comes out looking far better than Jefferson. I suspect some historians with a stronger states rights bias would see things quite differently. But what Simon makes clear is the distinctive contribution of Marshall to this day in the form of a strong federal government, limits on executive privilege and states rights, and a doctrine of judicial review which truly established the Supreme Court as a co-equal branch of government.

2 thoughts on “Review: What Kind of Nation

  1. Pingback: The Month in Reviews: March 2015 « Bob on Books

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