Marshall vs. Jefferson then and now: how the intellectual and political struggle over the constitution resonates today.

• Author: Henderson, Phillip G.

Throughout the first decade of the American republic, competing claims regarding the proper interpretation of the Constitution and the application of its principles were confined primarily to the executive branch and Congress. The Supreme Court remained, for the most part, uninvolved in the resolution of constitutional questions concerning the scope of authority of the new government. The year 1801 marked the beginning of a dramatic turnabout in the role of the Court in national affairs. Thomas Jefferson, having promised to undertake a "revolution in the principles" of government, took office as the third president of the young nation. Although the legislative and executive branches of government came under the control of Jefferson's Republican party in the election of 1800, the federal judiciary remained a bulwark of the rival Federalist party. At the head of this relatively untested third branch of government was Jefferson's distant cousin and fellow Virginian, John Marshall. Marshall had been appointed Chief Justice of the United States by John Adams in February 1801 in one of his last acts as president. Adams, with the help of the lame-duck Federalist Congress, bolstered Marshall's standing within the judiciary by creating several new federal court positions and filling them with party loyalists.

Clear and irreconcilable differences in the political and constitutional philosophies of Jefferson and Marshall sparked heated debate over such monumental issues as the use of judicial review over acts of Congress and the development of the doctrine of "implied powers." With the rise of judicial authority under Marshall's leadership, the judiciary was inexorably drawn into the political fray. Political considerations were paramount in determining the tactics employed by both leaders in their efforts to define the proper role of the judiciary in a balanced government and the role of the national government itself within the federal system.

Today, more than two centuries after the struggle over constitutional interpretation began with the landmark case of Marbury v. Madison, the debates between Jefferson and Marshall remain strikingly relevant. It is worthwhile to revisit these debates not only to shed light on the underlying factors that forged their views, but also to address the propensity of modern writers to labor under some misconceptions of what Marshall and Jefferson stood for in their day and how their legacies should be measured against today's standards.

The attempt to impose contemporary understandings of jurisprudence and judicial behavior on the practices of the early nineteenth century distort significant differences that exist between the modern Court and the Court of John Marshall's era. Contrary to Jefferson's own view of Marshall, and the popular conception of many modern writers, Marshall's constitutional philosophy emphatically did not set a trajectory toward the type of judicial assertiveness by which later courts (especially the Warren Court) would become policy-making rather than law-interpreting bodies. (1) Indeed, Marshall's conduct on the bench as Chief Justice, coupled with the major decisions issued during his tenure, suggest that he would be troubled by the policy-making activism of the modern court.

If the phrase "judicial activism" had existed during the Marshall Court's tenure, Jefferson may well have used it to describe the Marshall Court in the pejorative sense in which the phrase is used today. But, by today's standards, Marshall adhered much more to a course of judicial restraint than one of judicial activism. While it is true that Marshall sought to enhance national sovereignty and power during his tenure, he did so under a remarkably different set of circumstances. "As a young man on General Washington's staff," Archibald Cox has observed, Marshall "saw first-hand at Valley Forge the costs of self-interests, selfish pride, and constant rivalry among thirteen sovereign States--costs measured by unfilled quotas, departing militiamen, and half an army in the snow without blankets or shoes." (2) Marshall's nationalism was shaped in a completely different milieu from the one in which the mid- to-late twentieth century and early twenty-first century courts sit, where there is no real question as to the supremacy of national power. The fact that Antonin Scalia's brief rumblings about bringing new scrutiny to questions of federalism and states' rights was newsworthy a few years ago demonstrates how far that particular pendulum has swung.

During his time as Chief Justice, Marshall was pitted against Jefferson's populist agenda and his belief in popular and unqualified majority rule. While Marshall thought it was essential to expand the national government's authority vis-[a]-vis the states, so that uprisings like Shays' Rebellion were kept in check, Jefferson sought to limit the national government's power for fear that it would swallow up the authority of the states and threaten popular control of governmental institutions. Marshall's decisions in cases like McCulloch v. Maryland make clear his opinion that Jefferson's appeal for popular rule would quickly bring the new national government to ruin. There was much popular support in the state of Maryland for taxing the Baltimore branch of the National Bank--but it was clear to Marshall that the goal of Maryland's popular tax on the Bank of the United States was to destroy an instrument of the federal government. As will become apparent in the discussion below, Marshall interpreted Constitutional provisions along more pragmatic lines than Jefferson, as, for example, by endorsing in McCulloch Hamilton's earlier arguments on implied powers. However, McCulloch and other key decisions of the Marshall Court did not usher in an era of limitless congressional power, as Jefferson had feared.

Despite vast differences in constitutional philosophy, in some respects Marshall and Jefferson are closer in thought than modern members of the judicial community in that they both embraced the notion that judicial authority and federal power under the Constitution had fundamental limits. In contrast, the Court in modern times has increasingly become a front-line instrument for political and social change. From redistricting to abortion and affirmative action, some members of the Court seem largely unconcerned about the threat to institutional legitimacy that results when the Court oversteps its bounds to dictate policies that were once left to the legislature to decide.

Marshall and Jefferson: Common Ground and Deep Division

Marshall and Jefferson had much in common. Both were Virginians. Both had fathers who were surveyors. As governor, Jefferson even appointed Thomas Marshall, John's father, as surveyor of the Kentucky territory. Both men were descended from the famous Randolph family. When Edmund Randolph was elected governor of Virginia in 1786, he turned his law practice over to John Marshall. Randolph had taken over the very same law practice from Thomas Jefferson when Jefferson chose to devote his full attention to politics in 1774. Hence, "Jefferson's law practice ultimately became John Marshall's." (3) In their preparation for the practice of law, Jefferson and Marshall both studied under and revered the same distinguished law professor, George Wythe of the College of William and Mary. More importantly, both Marshall and Jefferson were patriots who found common cause in the War for Independence. With all of these parallels, it is difficult to imagine how these two individuals would take such different paths in shaping the young nation's history. Yet it is clear that Marshall and Jefferson were guided by dramatically different perspectives and outlooks concerning government and politics. Despite their many similarities, "the contrasts that fueled their rivalry abounded." (4) University of Toronto political science professor Jean Edward Smith illuminates these differences quite nicely in his biography of John Marshall. As Smith puts it:

An exemplary aristocrat who advocated democracy, Jefferson was never comfortable associating with the common man. Marshall, who distrusted democracy, never lost the common touch. Jefferson opposed an energetic central government as a danger to individual liberty; Marshall saw the government in Washington as the keystone of national well-being. Jefferson identified with Virginia; Marshall, with the United States. Jefferson favored agriculture and advocated the virtues of rural life; Marshall, an avid farmer himself, was more attuned to the needs of commerce and industry. ... In some respects the differences involved the classic tension between the man of ideas and the man of affairs. Jefferson was at his best when articulating a philosophy of government. Marshall, when applying one. (5) The translation of political vision into action marked Marshall's career more prominently than Jefferson's in large part because Marshall had a clear philosophy to guide him. Jefferson, on the other hand, struggled in translating theory into action because, as historian Joseph Ellis notes, he "did not have a consistent or cogently constructed position on the ultimate questions of constitutional sovereignty." (6) Describing the impractical nature of some of Jefferson's visionary impulses, Ellis writes: "In his more radical moments he seemed to believe that all fundamental constitutional questions should be settled by a popular referendum, since the doctrine of popular sovereignty empowered only the people at large to render such judgments. This was obviously burdensome, if not completely impractical, but it drew inspiration from the same visionary impulse that welcomed a 'sweeping away' of all laws every generation." (7)

That the debates between Marshall and Jefferson have had such lasting significance is due in part to the fact that both men were towering intellectuals. Their ability to articulate with force and acumen...