These Truths

by Jill Lepore

  Before leaving office, Adams had tried to reappoint Jay as chief justice, but Jay had refused, writing to the president, “I left the Bench perfectly convinced that under a system so defective, it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.”38 All of this changed with John Marshall.

  In 1801, when Marshall was appointed chief justice, the president lived in the President’s House, Congress met at the Capitol, and the court still lacked a home, having no building of its own. Marshall took his oath of office in a dank, dark, cold, “meanly furnished, very inconvenient” room in the basement of the Capitol, where the justices, who had no clerks, had no room to put on their robes or to deliberate. “The deaths of some of our most talented jurists,” one architect remarked, “have been attributed to the location of this Courtroom.” Cleverly, Marshall made sure all the justices rented rooms at the same boardinghouse, so that they could have someplace to talk together, unobserved.39

  Nearly the very last thing Adams had done before leaving office was to persuade the lame-duck Federalist Congress to pass the 1801 Judiciary Act, reducing the number of Supreme Court Justices to five, a change slated to go into effect once the next vacancy came up. The only point of this chicanery was to make it so Jefferson wouldn’t have the chance to name a justice to the bench until two justices left. The next year, the newly elected Republican Congress repealed the 1801 act and, furthermore, suspended the next two sessions of the Supreme Court.

  Sessions of Congress were open to the public and their deliberations were published, in accordance with what James Wilson had called, at the constitutional convention, the people’s “right to know.” But Marshall decided that the deliberations of the Supreme Court ought to be cloaked in secrecy. He also urged the justices to issue unanimous decisions—a single opinion, ideally written by the chief justice—and to destroy all evidence of disagreement.

  Marshall’s critics considered these practices to be incompatible with a government accountable to the people. “The very idea of cooking up opinions in conclave begets suspicions,” Jefferson complained.40 But Marshall went ahead anyway. And, in 1803, in Marbury v. Madison, a suit against Jefferson’s secretary of state, James Madison, Marshall granted to the Supreme Court a power it had not been granted in the Constitution: the right to decide whether laws passed by Congress are constitutional.

  Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is.”41 One day, those words would be carved in marble; in 1803, they were very difficult to believe.

  II.

  THE REPUBLIC WAS SPREADING like ferns on the floor of a forest. Between the first federal census and the second, the population of the United States increased from 3.9 to 5.3 million; by 1810, it was 7.2 million, having grown at the extraordinary rate of 35 percent every decade. By 1800, 500,000 people had moved from the eastern states to land along the Tennessee, Cumberland, and Ohio Rivers, portending a political shift to the West. Jefferson believed that the fate of the Republic lay in expansion: more land and more farmers. He believed that yeoman farmers, secure in their possessions and independent of the influence of other men, constituted the best citizens. “Dependence begets subservience and venality,” he wrote. There was something romantic, too, in Jefferson’s attachment to farming: “Those who labor in the earth are the chosen people of God.” Influenced by Malthus, Jefferson believed that the new nation had to acquire more territory both to supply its growing population with food and to retain its republican character. Malthus postulated as a law of nature “the perpetual tendency in the race of man to increase beyond the means of subsistence.” In a growing population, poverty in man was as inevitable as old age.42 To this law, Thomas Jefferson expected the United States to prove an exception.

  Jefferson imagined an “empire of liberty,” a republic of yeoman farmers, equal and independent. Convinced that the fate of the Republic turned on farming, Jefferson feared manufacturing and the rise of the factory. Workers in steam-powered factories in England, he thought, were the very opposite of the virtuous, independent citizens needed in a republic; they were dependent laborers, subservient and venal. Jefferson had a nail factory on his slave plantation, at Monticello, though it was small-scale, and what he hoped to avoid was the next stage of manufacturing, industrial production. But what he did not see, could not see, was that his fields were a factory, too, run not by machines but by the forced labor of more than a hundred enslaved human beings.

  The first factories in the Western world weren’t in buildings housing machines powered by steam: they were out of doors, in the sugarcane fields of the West Indies, in the rice fields of the Carolinas, and in the tobacco fields of Virginia. Slavery was one kind of experiment, designed to save the cost of labor by turning human beings into machines. Another kind of experiment was the invention of machines powered by steam. These two experiments had a great deal in common. Both required a capital investment, and both depended on the regimentation of time.43 What separated them divided the American economy into two: an industrial North, and an agricultural South.

  Jefferson’s presidency was a long battle over which of these systems ought to prevail, which meant looking to the West. The Louisiana Territory, nearly a million square miles west of the Mississippi, had been under Spanish rule since 1763, inhabited by Spaniards, Creoles, Africans, and Indians generally loyal to Great Britain. Spain allowed Americans to freely navigate the Mississippi and to ship goods from the vital port city of New Orleans, an arrangement that was essential for western settlement. But in 1800 Napoleon Bonaparte, who had seized control of France in 1799, secretly purchased the territory. He then attempted to reinstitute slavery on Saint-Domingue, which he hoped would serve as the economic heart of his New World empire. Napoleon’s troops captured and imprisoned Toussaint Louverture in 1802, but after war broke out between France and Britain the next year, Napoleon withdrew his forces from Saint-Domingue. The island’s former slaves declared their independence in 1803, establishing the Republic of Haiti. The United States refused to recognize Haiti but profited from its independence; without it, Napoleon no longer had much use for the Louisiana Territory and, at war with Britain, was keenly in need of funds. Jefferson and Madison arranged for their fellow Virginian, James Monroe, to travel to Paris to offer Napoleon $2 million for New Orleans and Florida (he was authorized to pay as much as $10 million). Unexpectedly, Napoleon offered to sell the entire Louisiana Territory for $15 million. Monroe, seizing the opportunity, made the purchase. Its geographical and economic consequences were enormous: the size of the United States doubled.

  But there were other consequences, too, both constitutional and political. The restoration of navigation rights along the Mississippi, and the use of the Port of New Orleans, were together a triumph. But under the Constitution, expenses have to be approved by the House and treaties by the Senate. Congress has the power to admit to the Union new states “established within the limits of the United States,” but it does not specifically have the power to acquire new territory that would be incorporated into the Union. Views on the matter fell along party lines. New England–dominated Federalists argued that Jefferson’s envoys had overstepped their authority and, further, that the purchase would make the Republic “too widely dispersed,” resulting, ultimately, in the “dissolution of the government.” Republicans argued that the purchase fell within the power to make treaties. Jefferson had no regrets about the purchase, but he did have qualms about its constitutionality. Since 1787, he’d argued for limiting the powers of the federal government; he believed that the Constitution would have to be amended before the treaty could be ratified. “I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless.” If the Constitution were so bro
adly constructed that the power to make treaties could be read as a power to purchase land from another country, the Constitution, Jefferson thought, would have been made “a blank paper.” Yet, in the end, Jefferson deferred to his advisers, who argued against pursuing an amendment. Then, too, he thought this vast swath of territory might be “the means of tempting all our Indians on the East side of the Mississippi to remove to the West.”44

  In 1804, after reading a revised edition of Malthus’s Essay on the Principle of Population, Jefferson concluded that “the greater part of his book is inapplicable to us” because of “the singular circumstance of the immense extent of rich and uncultivated lands in this country, furnishing an increase of food in the same ratio with that of population.” Malthus might have derived a law of nature, Jefferson conceded, but America provided an exception. “By enlarging the empire of liberty,” he wrote in 1805, “we . . . provide new sources of renovation, should its principles, in any time, degenerate, in those portions of our country, which gave them birth.”45

  This scarcely settled the question. In 1806, Jefferson secured the passage of a Non-Importation Act, banning certain British imports and, in 1807, an Embargo Act, banning all American exports. During the ongoing war between Britain and France, the British had been seizing American ships and impressing American seamen. Jefferson believed that banning all trade was the only way to remain neutral. No Americans ships were to sail to foreign ports. He insisted that all the goods Americans needed they could produce in their own homes. “Every family in the country is a manufactory within itself, and is very generally able to make within itself all the stouter and middling stuffs for its own clothing and household use,” he wrote to Adams. “We consider a sheep for every person in the family as sufficient to clothe it, in addition to the cotton, hemp and flax which we raise ourselves.” Jefferson—blind to slavery—believed in an agrarian independence that required precise limits on economic activity: “Manufactures, sufficient for our own consumption, of what we raise the raw material (and no more). Commerce sufficient to carry the surplus produce of agriculture, beyond our own consumption, to a market for exchanging it for articles we cannot raise (and no more). These are the true limits of manufactures and commerce. To go beyond them is to increase our dependence on foreign nations, and our liability to war.”46

  The embargo devastated the American economy. Jeffersonian agrarianism was not only backward-looking but also largely a fantasy. In 1793, when Jefferson first heard about the cotton gin, a machine that separates cotton fibers from the cotton bolls (“gin” is short for “engine”), he thought it would be excellent “for family use.” As late as 1815 he was boasting that, as a result of the embargo, “carding machines in every neighborhood, spinning machines in large families and wheels in the small, are too radically established ever to be relinquished.” That year, cotton and slave plantations in the American South were shipping seventeen million bales of cotton to England, to be carded and woven and spun in the coal- and-steam-powered mills in Lancaster and Manchester.47

  Parliament abolished the slave trade in 1807; Congress followed in 1808, the first year that the trade could be ended, under the terms of the Constitution. But the cotton gin had by then made American slavery more profitable than ever. Congress repealed Jefferson’s embargo when he left office in 1809 (following the precedent established by Washington in not running for a third term), but New Englanders continued to press for the development of manufacturing. Congress therefore authorized a new kind of counting to be part of the next federal census, in 1810: an inventory of American manufacturing, overseen by Tench Coxe, former assistant secretary of the Treasury. In 1812, no longer able to stay neutral in the Napoleonic Wars, Congress narrowly approved the request by Jefferson’s successor, Madison, to declare war on Britain, the South supporting the declaration, and New England and the mid-Atlantic states mostly opposing it. It adversely affected northern manufacturing. It threatened an invasion from Canada. And it symbolized, to many Federalists, the daunting political dominance of the Republican Party. Not without cause, Federalists saw little distinction between the administrations of Jefferson and Madison, and would feel the same way about Madison’s successor, James Monroe, Virginians elected under the three-fifths clause.

  Much of the fighting in what came to be called the War of 1812 took place at sea and in Canada. Britain successfully defended its possessions to the north. In 1813, the British captured the nation’s capital, Madison and his cabinet fled to Virginia, and, between the battle and a storm, the President’s House was all but destroyed. Three clerks at the War Office stuffed the original parchment Constitution of the United States into a linen sack and carried it to a gristmill in Virginia, which was a good idea, because the British burned the city down. Later, when someone asked James Madison where the Constitution had gone, he had not the least idea.48 After the war, the rebuilt President’s House was freshly painted—and became known as the White House.

  The War of 1812 reminded northerners of the price the Republic had paid for the political calculation made in 1787. New Englanders hadn’t wanted to wage the war in the first place, and yet they found themselves powerless against the slave-owning states, grown mightier through the extension of slavery into newly acquired territories. By 1804, after the acquisition of the Louisiana Territory, Massachusetts and Connecticut had called for the abolition of the three-fifths clause. Their calls grew more shrill in 1812, after the New England author of a polemic titled Slave Representation damned the three-fifths clause as “the rotten part of the Constitution” and urged that it be “amputated.”49 Eyeing the inevitable ushering into the Union of new states, one writer from Massachusetts calculated that “one slave in Mississippi has nearly as much power in Congress, as five free men in the State of New-York.” Federalist fury reached a climax in 1814 at the Hartford Convention, where delegates from five New England states assembled in Connecticut to debate possible actions, including secession. Towns that had petitioned for the convention called for the end of slave representation. But three days after the convention sent its recommendation to the states, the last battle of the war began in New Orleans, where Andrew Jackson, a young general from Tennessee, led American troops to a stunning victory. The protest of New England was forgotten, the call to eradicate the three-fifths ratio ignored. On March 3, 1815, the last day Congress was in session, the resolutions of the Hartford Convention were read into the record and promptly tabled.50

  The next day, at Monticello, Jefferson, seventy-two, pondered the future of the children he’d had with one of his slaves, a woman named Sally Hemings. Jefferson’s wife, Martha Wayles, had died in 1782, when Jefferson was thirty-eight. While she lay on her deathbed, he had promised her he would never remarry. Sally Hemings was the much younger half-sister of Jefferson’s wife; they had different mothers but the same father, John Wayles, who had six children with one of his slaves, a woman named Elizabeth Hemings, herself the child of an African woman and an English man. “The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submission on the other,” Jefferson wrote in 1782, the year of his wife’s death. “The man must be a prodigy who can retain his manners and morals undepraved by such circumstances.” In 1789, when sixteen-year-old Sally Hemings was working for and living in the residence of forty-six-year-old Jefferson in Paris, she became pregnant. She might have left him and gained her freedom; slavery was illegal in France. Instead, she extracted from him a promise, that if she stayed with him, he would set all of their children free.51

  This political caricature, engraved and inked in Massachusetts about 1804 and sold in New Hampshire by 1807, depicts Jefferson as a rooster and Sally Hemings as his hen, testament to how widespread were rumors about the president’s relationship with one of his slaves. But he’d not quite managed to keep his children with Sally Hemings a secret. In 1800, printers had helped get Jefferson elected, but his view
of them had grown dim over their scrutiny of his family life. (During his second term, an embittered Jefferson would suggest that newspapers ought to be divided into four sections: Truths, Probabilities, Possibilities, and Lies.)52 Only days after his inauguration, he’d complained that printers “live by the zeal they can kindle, and the schisms they can create.”53 James Callender, who’d gone to prison for sedition for campaigning for Jefferson, had wanted a political appointment. Jefferson having failed to reward him with a position, Callender in 1802 published an essay in the Richmond Recorder in which he reported on longstanding rumors that Jefferson had fathered children with one of his slaves. “Her name,” he wrote, “is SALLY.” And, had Callender been willing to publish the story of this scandal earlier, he said, “the establishment of this single fact would have rendered his election impossible.”54 Sally Hemings had had seven children by Jefferson, bearing her last in 1808. Jefferson, whose election had been made possible by the three-fifths clause, lived in a world that made the political calculation that his seven children with Sally were worth no more than four and two-tenths.