Without Precedent

by Joel Richard Paul

  Federalists in Congress feared Jefferson. Many conspired to throw the election in the hope that they could strike a deal with the unctuous Burr. But Hamilton wrote to Marshall, who had greater influence with moderate Federalists, asking for his help to stop Burr from becoming president. Hamilton, who had fought Jefferson vigorously in the cabinet and done everything in his power to save the country from what he called “the fangs of Jefferson,” regarded Burr, for good reason, as his private bête noir.18 He thought on balance the country would be better served by Jefferson.

  Marshall knew little about Burr, but Marshall had “almost insuperable objections” to Jefferson. For Marshall’s whole life, from the poverty of his boyhood to his service in the Continental Army to his political fights in Virginia, he had been locked in a bitter rivalry with the cousin who was born with all the advantages that Marshall’s family had been denied. He had witnessed Jefferson at his worst: leaving his state undefended as its governor while fleeing the British invasion of Richmond; defending the slave trade in Virginia while hypocritically declaring “all men equal”; denying support for the Constitution during the ratification debates; undercutting President Washington by opposing Jay’s Treaty and the Proclamation of Neutrality as secretary of state; supporting the French revolutionaries and aligning himself with Citizen Genet against his own government; and repeatedly betraying President Adams as vice president. Jefferson was a radical ideologue, and Marshall had witnessed how French ideologues had undermined the rule of law. Jefferson 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. “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 wrote to Hamilton. Jefferson would weaken the presidency, “diminish his responsibility, sap the fundamental principles of the government,” and put party and personal power ahead of national well-being. “The Morals of the Author of the letter to Mazzei cannot be pure,” Marshall warned. This was a reference to Jefferson’s inflammatory letter to Philip Mazzei, which was published in an Italian newspaper in 1796, that attacked President Washington and the Federalists as a pro-British “Anglican monarchical, & aristocratical party” whose secret agenda was to impose monarchy on the United States. Marshall respected Hamilton’s opinion that Burr was a dangerous man, but “I cannot bring myself to aid Mr. Jefferson.” Given all this, Marshall preferred to remain neutral.19

  The House did not begin the process of voting until February 11. In the meantime, Jefferson moved into Conrad and McMunn’s boardinghouse on the corner of New Jersey Avenue and C Street. His daily routine began at sunrise. He breakfasted with his fellow boarders, all members of Congress, and then strolled the short distance to the Capitol to preside over the Senate. He pretended to remain aloof from the contest, depending on surrogates to move votes his way. Around him, the capital city buzzed with rumors about whether the Federalists in the House would line up to support Burr and deny Jefferson the presidency or whether the Federalists intended to cancel the election altogether and transfer power to either Marshall or Jay.20

  Monroe alerted Jefferson that the Virginia General Assembly was considering what actions to take to prevent the Federalists from canceling the election results. Monroe feared that “[i]f the union cod. be broken, that wod. do it.” He continued that if the Federalists denied the House a chance to vote for the president, it would “be sure to expose the usurpers to exemplary punishment.” In a starkly candid moment, Monroe advised Jefferson that the “[e]astern people have no thoughts of breaking the union, & giving up the hold they have on the valuable productions of the south.” Rather, “they only mean to bully us, thereby preserve their ascendancy, and improve their profits.” Monroe concluded that the Republicans must remain firm and “shew themselves equal to the crisis.”21 There could be no compromise, no backing down. The future of the Republic was on the line.

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  MARSHALL AND ADAMS began the transition even before the House chose the new president. Adams had little more than a month to name a successor for Chief Justice Ellsworth, who had resigned for health reasons. In late December, Adams nominated New York Governor John Jay to serve again as chief justice. He did not wait to ask Jay before sending his name to the lame-duck Senate. Jay had been the first chief justice appointed by Washington, and he had resigned to run for governor. Marshall wrote to Jay informing him of the nomination.22 Jay had quit the Supreme Court because he was bored and frustrated by the Court’s impotence. It made little sense for him to accept the nomination now with a hostile Republican executive and Congress. Besides, Jay had already decided to retire from politics. He wrote back to Marshall declining the appointment on the grounds that the federal judiciary lacked the resources and stature it deserved and that “the efforts repeatedly made to place the judiciary department on a proper footing have proved fruitless.” If he accepted the position of chief justice, “it would give some countenance to the neglect and indifference with which the opinions and remonstrances of the judges on this important subject have been treated.” But just in case Marshall would try to convince him otherwise, he added that his age and health made it impossible for him to accept the office.23

  On January 19, 1801, Marshall met with Adams at the President’s House to discuss a number of matters, including the Supreme Court nomination. “Who shall I nominate now?” the president asked. Marshall suggested Associate Justice William Paterson. Adams did not think it wise to appoint a sitting justice as chief because it would likely create jealousy among the other sitting justices if one of their colleagues was elevated. After a moment’s hesitation, the president responded, “I believe I must nominate you.”

  Marshall had never heard his name mentioned for that post, and he later claimed that he had never considered it. Too stunned to reply, Marshall simply bowed his head in silent acquiescence. The next day, the president nominated Marshall as the fourth chief justice of the United States.24

  It is more surprising that Marshall accepted this appointment than it is that Adams offered it. The position of chief justice at that time was not the august position we now assume it to be. The Supreme Court in 1800 was insignificant, and few men worthy enough to be nominated were interested in serving. After John Jay quit to become the governor of New York, President Washington asked Hamilton, who declined, preferring to return to his lucrative New York City law practice. Then Washington named John Rutledge as a recess appointment pending the Senate’s confirmation. Rutledge had previously served on the Supreme Court as an associate justice and had quit to become chief justice of the Supreme Court of South Carolina, which was regarded as a promotion. The Senate, however, rejected Rutledge because he was an outspoken critic of Jay’s Treaty and, some alleged, insane, which may or may not have been true. (Rumors of Rutledge’s mental condition were later corroborated when he attempted suicide by diving into Charleston Harbor.) Next, Washington offered the job to Patrick Henry, the lion of Virginia, who demurred. Then he appointed Associate Justice William Cushing, who also declined. In frustration, Washington turned to Oliver Ellsworth, a Connecticut senator. Ellsworth lasted only four years, during which time he spent almost twelve months away on the peace mission to Paris. Only Associate Justices Paterson and Cushing had remained on the Court longer than five years.

  The reasons no one was interested in this job were clear. First, the Supreme Court had a small and unimportant docket of cases. In its first decade, the Court had issued only sixty-three decisions, and only a handful of those had any significance. The Supreme Court’s jurisdiction was limited to a few classes of cases that mostly concerned admiralty law. There were occasional questions of federal law, but there were so few federal laws that interesting questions rarely arose. Most legal disputes were governed by state statutes and decided almost exclusively by state courts. Moreover
, the Supreme Court had little authority, and it had never struck down a federal or state law. The Supreme Court did not even have its own courthouse.

  Worst of all, since there were no lower courts of appeal, the job required the justices to spend most of their term “riding circuit.” This meant that the justices were expected to ride around the country on horseback and listen to arguments by poorly trained lawyers. They had to eat and stay in rough taverns and often had to share beds with strangers when there was no other room available. It was not a glamorous life. Compared to Marshall’s tenure as secretary of state, the Supreme Court was undeniably a step down. For a man of Marshall’s demonstrated talents and ambition, there were higher offices to seek.

  Marshall’s political career in Virginia was finished. By now, Virginia was solidly Republican. He could return to practicing law, but many of his clients had moved on, and his law practice seldom earned as much as the chief justice’s salary.25 Money, however, was not the deciding consideration. Something else led Marshall to accept this challenge.

  Marshall saw himself as defending the Constitution against the onslaught of the Jeffersonians. Jefferson’s populism profoundly troubled Marshall. He believed that the Court’s function was to uphold the foundational principles that the national government depended on against the political whims of the moment.

  Destiny had preordained that Marshall would struggle with Jefferson for the soul of the Union. He accepted President Adams’s nomination out of a sense of duty. Marshall was committed to stand vigil over the principle of federalism, keep the country on the path of moderation, and resist ideology with pragmatism.

  Predictably, there were some Republican critics of Marshall’s nomination, but most Republicans and certainly all Federalists thought Marshall’s moderation and intellect made him an obvious candidate. The fact that he was also a Virginian did not hurt. Even Republicans did not question the authority of a lame-duck president to name a Supreme Court justice in his last month in office.

  On January 27, 1801, the Senate confirmed Marshall’s nomination, and his commission was issued on January 31 with the Great Seal of the United States affixed by Treasury Secretary Samuel Dexter, who was acting in lieu of Secretary of State Marshall.26 The very day that Marshall’s nomination was approved, Jefferson was presiding over the Senate. No doubt he flinched slightly when he announced the vote. Though Jefferson’s own election was still in doubt, Marshall’s confirmation would deny Jefferson the opportunity to appoint a member of his own party as chief justice. Now his contentious cousin had a lifetime appointment to spar with him.

  President Adams decided that for his remaining month in office it made no sense to appoint an acting secretary of state, so he asked Marshall to hold both positions simultaneously. Most legal scholars today would agree that for one man to simultaneously serve in the executive and judicial branches violates the separation of powers. But given the size of the American government and the improbability that anything Marshall did as secretary of state could end up before the Supreme Court, it seemed prudent enough. History would laugh at that presumption.

  In the closing days of the Adams administration, Federalists manned the barricades against the revolution that they feared Jefferson would bring. President Adams had long before proposed legislation to expand the judiciary. Now faced with the prospect of a Republican takeover, Federalists swiftly approved the Judiciary Act of 1801, better known as the Circuit Court Act, which established six new circuit courts in place of the four existing ones and reorganized the federal judiciary.27 The act created sixteen new circuit judges to hear cases on appeal and eliminated the need for Supreme Court justices to ride circuit. Second, the act reduced the size of the Supreme Court from six to five justices whenever the next vacancy should occur. While nominally this could be justified by the fact that the justices no longer had to ride circuit, it was a transparent effort by Federalists to deny Republicans the opportunity to appoint one of their own to the Court. Third, it reorganized the federal district judges into ten districts and expanded their jurisdiction to hear cases. In particular, the act opened up the federal courts to hear a broader range of claims by individual property owners and creditors, which gave Federalists some assurance that their property rights would be protected by the federal judiciary.

  In addition to the Circuit Court Act, Congress adopted an act concerning the government of the District of Columbia on February 27.28 The District of Columbia Organic Act provided for the establishment of a D.C. circuit court with three judges, and it empowered the president, with the Senate’s advice and consent, to appoint as many justices of the peace for the district as he thought necessary. The justices of the peace would serve for five years without salary, but they could collect court fees. Three days later, President Adams nominated forty-two justices of the peace. All the nominees were hastily confirmed by a breathless Senate the following day. There was no justification for the sudden urgency apart from the fear that Federalists were about to lose power. It was a naked exercise in political patronage for friends of the Federalist Party.

  As Republicans hollered about the so-called midnight judges being rammed through the Senate by Federalists in the waning hours of the Adams administration, Marshall was busy both recruiting candidates for the new judgeships and issuing and delivering their commissions. As the crush of work in the closing days proved too much for Marshall, he ran out of time to deliver the commissions to the justices of the peace. Marshall’s negligence in delivering the commissions would prove to be the triggering event of the single most famous decision ever issued by the Supreme Court—Marbury v. Madison.

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  AS CONGRESS MOVED toward voting on the presidency in February, the whole country simmered with rumors that the Federalists would cancel the election and find some means to hold on to power. Monroe warned Jefferson that Marshall had issued an opinion that Congress could appoint someone other than Jefferson or Burr as president, and Monroe claimed that “intrigues are carrying on to place us in that situation.”29 In fact, there was no evidence Marshall thought that, but the rumors proliferated.

  From Massachusetts, Elbridge Gerry, still licking his wounds after the XYZ Affair, sought to ingratiate himself to Jefferson. Though Gerry was a personal friend of President Adams, he expressed his outrage at “the insidious plan” of Federalists to elect Burr. Gerry frankly acknowledged that the “measure does not proceed from any respect or attachment to him, whom they abhor as well as yourself . . . but from a desire to promote that division among the people, which they have excited & nourished as the germ of a civil war.”30

  Anxious about the outcome of the backroom deals that were being struck, Jefferson wrote to his would-be vice president, Aaron Burr. “It was to be expected that the enemy would endeavor to sow tares between us,” Jefferson began, “that they might divide us and our friends. Every consideration satisfies me that you will be on your guard against this, as I assure you I am strongly.”31 In truth, Jefferson was deeply embittered that Burr had refused to withdraw his name from consideration for the presidency. Meanwhile, Jefferson, no less than Burr, was prepared to strike almost any deal to assure his election. Jefferson wrote to his daughter that he was “worn down here with pursuits in which I take no delight, surrounded by enemies & spies & perverting every word which falls from my lips or flows from my pen, and inventing where facts fail them.”32

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  ON FEBRUARY 11, 1801, the two houses of Congress met in a joint session as Vice President Jefferson formally read and recorded each of the ballots of the Electoral College. As soon as the ballots were recorded, the senators were excused from the chamber and the House locked its doors to begin voting on which of the top two candidates—Jefferson or Burr—should be president. The outcome was not a foregone conclusion. The first balloting by the House of Representatives had eight states voting for Jefferson and six for Burr, with two sta
tes equally divided and therefore abstaining. The voting continued in the House for six days while Jefferson sat anxiously in the other chamber, pretending to preside over a Senate that pretended to conduct business. Crowds gathered outside Congress to express support for each of the candidates. The press also fired volleys for and against Burr and Jefferson. There were threats of armed force from various extreme factions and rumors of an impending civil war. No one was sure what might happen if the deadlock was not decided by Inauguration Day, March 4.

  On the thirty-sixth ballot cast on the sixth day, the single representative from Delaware, James A. Bayard, changed his vote from Burr to Jefferson, giving Jefferson a bare majority of nine states. Though Bayard claimed that he had switched his vote when Jefferson agreed to meet certain Federalist demands, Jefferson later denied that.33 Burr was elected vice president. The drawn-out drama that Burr had staged by refusing to concede to Jefferson as the leader of his party now assured that the coming four years would be stormy between them. Jefferson had little reason to hope that Burr would be any less treacherous a vice president than Jefferson had been.

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  ON MARCH 4, 1801, Marshall wrote to General Pinckney. “To day the new political year commences—The new order of things begins.” Marshall expressed the hope that the nation would survive and prosper under the Republicans, but he feared that they “are divided into speculative theorists & absolute terrorists.” If Jefferson chose to align himself with the terrorists, “much calamity is in store for our country,” and if he opposed them, “they will soon become his enemies & calumniators.” In sum, Marshall’s assessment was bleak.34