Without Precedent
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Jefferson woke early that morning in his rooming house to rework his inaugural address. He had had less than two weeks to draft it since the House vote. He slowly rehearsed his lines: “Every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.” He took a breath. He wished to set a tone of reconciliation after a divisive election. Having fathered the first political party and having led the bitter debates over America’s relations with France, Jefferson now wanted to put all that controversy behind him. “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”35 As the author of the Kentucky and Virginia Resolutions, Jefferson had claimed that the Constitution was a mere pact among the states and that the states were free to nullify federal law or decisions of the Supreme Court. He could hardly blame others if they challenged the Union.
Jefferson left his rooming house just before noon, accompanied by a contingent of state militia. Presidents Washington and Adams had ridden in fine carriages to their inaugurations, but Jefferson insisted on walking in his plain dark suit the quarter mile to the Capitol. He expected to be greeted at the Capitol by the outgoing president, but John Adams was already on his way home to Massachusetts. He had no wish to remain where he was not welcome. The ornate Senate chamber was full of distinguished visitors when Jefferson rose to give his inaugural address in his soft girlish voice. He pledged that “though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable.” He sought to reassure the Federalists that “the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.”36
After Jefferson finished speaking, he stood with one hand on a Masonic Bible and the other hand raised to take the oath of office. Standing opposite him to administer the oath of office was a familiar face: John Marshall, the chief justice of the United States and the man who administers the presidential oath of office. History had predetermined their fateful collision. Two cousins who had stood on opposite sides of every public issue for a generation now led two branches of the federal government. Jefferson coldly stared past Marshall, and Marshall turned his back to the president in what many thought was a slight.
Marshall commented magnanimously that he thought Jefferson’s address was “well judgd & conciliatory . . . giving the lie to the violent party declamation which has elected him.” Then Marshall added that there was still reason to worry, for it was still “strongly characteristic of the general cast of his political theory.”37 Though they always displayed civility in public, there was little doubt that each man was determined to stop the other at any price.
CHAPTER SEVENTEEN
SHOWDOWN
Washington in 1801 was what Congressman and Treasury Secretary Albert Gallatin called a “hateful place,” devoid of any real society or culture. There were scarcely three thousand inhabitants, including at least six hundred slaves. Clustered around the Capitol were six boardinghouses packed with members of Congress, a grocer, a tailor, a dry goods store, a shoemaker, and a laundry. The rest of the city still consisted largely of swampland, forest, and brush. Miles of unpaved and unmarked roads separated houses so that an invitation to dine often entailed an expedition of several hours with an uncertain outcome. Since most members of Congress left their families at home in their districts, there was a notable shortage of women. In this social desert, men resorted to whomever was available for companionship and conjugation. As often happens, government provided an appealing market for prostitution.1
Jefferson settled into the still-unfinished President’s House, and much as he had done as governor of Virginia, he immediately set out designing new architectural features. He was accustomed to living in a work in progress: After all, his beloved Monticello took him fifteen years to complete. He soon began sketching out changes to the President’s House. Jefferson transformed the south lawn, which at the time was nothing more than a muddy field sloping toward a creek, into an elaborate flower garden with a serpentine design like he had seen at the Louvre in Paris. He erected a sturdy post-and-rail fence around the property, and around the southern border he ordered an eight-foot ha-ha—a ditch usually dug in front of a wall—to keep wayward animals off the grounds.2 The ha-ha was another idea Jefferson borrowed from French aristocrats who used it to keep angry peasants from storming their estates.
The Supreme Court under Chief Justice Marshall convened for the first time on February 2, 1801, in a vacant committee room of the Capitol. The great gray eminence, Justice William Cushing, sat in solitary splendor hunched and bewigged in a majestic black-and-crimson robe before an empty chamber. The other justices, delayed by bad weather, poor roads, or casual neglect, failed to appear. Court adjourned and resumed two days later when Justices Samuel Chase, Bushrod Washington, and Marshall joined him. Justices Alfred Moore and William Paterson still had not arrived. Since there was nothing of consequence on the court’s docket, Moore and Paterson did not bother to appear until the Court’s summer session.3
The Supreme Court met in a dark, nondescript ground-floor room in the north wing of the unfinished Capitol, down the hall from the grand Senate chamber with its elegant scalloped ceiling. The planners for the capital city had neglected to build a federal courthouse, so only a few days prior, Congress had grudgingly agreed to allow the Supreme Court to share committee room number two with the federal district court and the D.C. Court of Appeals. The room was the size of a small classroom and unadorned except for the crimson robes edged in ermine that hung on pegs in one corner. There were two windows facing west that overlooked a swamp, a line of tulip poplars, and a muddy creek some wit had named the Tiber after the river in ancient Rome. There was no formal bar or bench. The justices sat behind a table facing the lawyers and a few rows of chairs for the few spectators. The public had little interest in the Court’s languid calendar with an average of six cases a year. This prosaic scene and the physical location of the Court underscored the lowly status of the nation’s highest court.
Chief Justice Marshall sat wedged between his more rotund colleagues. They were all men of far greater experience and learning than Marshall. On the far end was the aged Justice William Cushing. He was the first associate justice appointed by Washington and probably the last American judge to still wear a horsehair wig. Cushing was a crusty Boston Yankee who rarely spoke and authored few opinions in his long tenure on the court. While he was still a judge in Massachusetts, Cushing once stared down an angry mob during Shays’s Rebellion armed with nothing but his considerable gravitas. He was the only justice to bring his wife with him to Washington and everywhere he rode on circuit. His shoe buckles and his three-cornered hat branded him as old-fashioned, and he wore that brand with dignity.4
Then there was an empty seat for Justice William Paterson of New Jersey, a boisterous Irishman with a lively intellect and shrewd political instincts. As one of the Framers of the Constitution, he had proposed the New Jersey Plan that would have given each state one vote in Congress. Paterson’s instinct for political compromise helped Marshall forge a consensus on the Court.
Justice Samuel Chase of Maryland resembled a bear with his bulky mass and fierce demeanor. His rough complexion earned him the nickname Old Baconface Chase. He was the most outspoken Federalist in the judiciary. Though some people found him prickly and obnoxious, he was beloved and admired by his colleagues on the Court. Before Marshall arrived, Chase was the Court’s intellectual leader. Chase’s views and fiery personality led to a controversy that would ultimately threaten the Court’s independence and test Marshall’s political instincts.
Next came Justice Bushrod Washington, who was among Marshall’s closest compatriots—they had been friends since Marshall attended classes at William & M
ary. During his long service on the Supreme Court, Washington was Marshall’s most reliable ally.
Finally, there was the puckish Justice Alfred Moore from North Carolina, who, like Marshall, had just been appointed. At slightly more than four feet tall, Justice Moore peered from behind the table like a hand puppet. Despite Moore’s sharp wit and youthful energy, he was frail and had to resign from the Court after only three years due to ill health. Cushing was nearing seventy, and Paterson and Chase were almost sixty. Moore and Marshall were both forty-five, and Washington was a boyish thirty-eight.
Powerful forces outside the court were massing to challenge the judiciary. Both political branches were now dominated by Republicans stewing over the appointment of Adams’s “midnight judges.” The range of ages, backgrounds, and personalities on the Supreme Court suggested that they had little in common, and their philosophical differences made them an easy target for the Jeffersonians. To withstand the political attacks of Republicans, Marshall knew that he needed to blend these disparate voices into one voice that spoke with authority.
Unlike the other justices, who dressed in the elegant gowns favored by the British High Court judges, Marshall wore a plain black robe that hung loosely on his tall, narrow frame. Marshall’s robe was a symbolic gesture. He toned down the judiciary’s pomp to conform to the classical simplicity favored by Republicans.
But it wasn’t merely for show. Marshall’s manner and dress were always plain and simple. Even when his innate intelligence and personality thrust him into the public eye, he never forgot who he was. Unlike many of his colleagues, Marshall’s Federalism did not stem from a sense of entitlement, a desire to mimic the affectations of the aristocracy, or a fear of the lower orders of society. His manner was entirely ordinary. He was not a philosopher like Jefferson. Marshall’s Federalism sprung not from theory but from his practical experience as a frontiersman, a soldier, and an attorney. Marshall believed in the practical necessity for collective action against the dangers facing his community at home and abroad. He was in all things a pragmatist.
The contrast with the Republican Jefferson was striking. Jefferson lived life on a grand scale. He extravagantly squandered his family’s fortune to perfect his classical home at Monticello. (In Jefferson’s last years, he had to be rescued from insolvency by a public fund-raising effort.) He reigned over hundreds of slaves with a sense of privilege that most English lords would have envied. He much preferred scholarly pursuits and practicing his violin to indulging in the sweaty give-and-take of politics. Jefferson may have loved humankind, but he was not especially fond of most people, and he had few close friends. 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.
Since Jefferson had vacated his room at Conrad and McMunn’s boardinghouse, there would be space there for the justices. Marshall arranged for the justices to live together as boarders for a charge of fifteen dollars per week, which covered candles, firewood, and wine.5 Conrad and McMunn’s was already filled with members of Congress, some sleeping two or three in a single room and sharing beds; in Washington, economy made strange bedfellows. Since there was no life in Washington for wives or children, the justices lived like bachelors in an elite—albeit ascetic—fraternity. They ate, drank, and played cards together, reading briefs and discussing cases late into the night. In the same way that Marshall corralled his younger siblings out on the frontier and took charge of his ragtag regiment during the Revolution, Marshall, despite being one of the youngest justices, became a father figure for all of them. He served them his prized Madeira, but “only” when it rained—somewhere. When it came time for a drink in their room, he would ask one of the other justices to look out of the window to check the weather. If the justice reported back that the sky was clear, Marshall would respond, “All the better, for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”6
Marshall also took an interest in the other justices’ personal lives, and he assumed the role of matchmaker for his widowed colleagues.7 For the next three decades, while Marshall presided over the Court, the justices lived together as a family, always sharing the same hotel. They built a close web of relationships that yielded an astonishing degree of consensus.
Marshall served on the Court for thirty-four years—longer than any other chief justice. By contrast, from 1981 to 2015, there were three chief justices. And his influence over the court was enormous. Prior to Marshall’s tenure, there was no such thing as a majority decision. Each justice issued his own individual opinion seriatim, as was the tradition in English courts. Marshall thought that the Court’s authority would be enlarged if he could forge a single decision on behalf of the entire Court. During his thirty-four years as chief justice, Marshall personally wrote 547 opinions. Of these, 511 were unanimous. In his first two years on the court, there were forty-two unanimous decisions, and Marshall authored every one of them. In his first decade on the court, there were 227 published opinions, and all but 13 were unanimous. Marshall wrote at least 152 opinions in that time period and probably many more that were unsigned. This is a staggering output compared to any modern justice, who typically writes fewer than ten majority opinions annually in a vastly more crowded docket. Even more remarkable, Marshall shepherded the court toward unanimity in nearly every decision rendered. In his long tenure on the Court, there were 1,129 decisions, and all but 87 were unanimous. By contrast, fewer than half of the Court’s decisions from 1995 to 2015 were unanimous. The issues of Marshall’s time were no less contentious than our own. What made it possible to reach consensus was Marshall’s extraordinary personality and pragmatism.
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IN 1879, looking back on Jefferson’s presidency, Henry Adams observed that Republicans were blinded by their rigid idealism. Jeffersonians inhabited a world of absolute good and evil. The complexity of human motives and relations did not register with them. In reaction against the violence and corruption of the Old World, they clung to an impossible ideal of human society free from all the evils of human nature. What divided Republicans and Federalists often came down to a question of the size and scope of government. Jefferson, who lived much of his adult life in debt, wanted to extinguish the public debt and shrink the already modest federal government. Federalists, by contrast, believed in the importance of a strong military and central government to safeguard the nation’s security from foreign adversaries. Jeffersonians loathed standing armies and saw no reason to arm the country in defense of its liberty.
As Henry Adams aptly put it, “The interests of the United States were too serious to put to the hazard of war; government must be ruled by principles; to which the Federalists answered that government must be ruled by circumstances.”8 George Cabot, a Massachusetts senator, lamented, “We are doomed to suffer all the evils of excessive democracy through the United States . . . Maratists and Robespierrians everywhere raise their heads . . . There will be neither justice nor stability in any system, if some material parts of it are not independent of popular control.”9 Another Federalist wrote that Jeffersonians “love liberty . . . and, like other lovers, they try their utmost to debauch . . . their mistress.”10
With Adams and Hamilton gone from Washington, Marshall was the de facto leader of the Federalist Party, but he was never comfortable with partisanship. His friendships, like that with Gallatin, bridged the political divide. He later regretted “those distinct and visible parties, which, in their long and dubious competition for power, have since shaken the United States to their centre.” In his view, political parties bred a “tendency to abolish all distinction between virtue and vice; and to prostrate those barriers which the wise and good have erected for the protection of morals.”11 Marshall had no patience for ideology. In his jurisprudence, abstract concepts never
eclipsed the facts on the ground. He was firmly committed to a strong national defense and a vibrant national economy, and he recognized that leading the Court effectively in a Republican era would require both flexibility and compromise. He also needed to forge a strong cohesive judiciary to strengthen the court’s legitimacy and its public profile. Marshall’s natural talent for compromise and his genius for invention would be tested.
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THE FIRST TEST for Marshall’s court came in a case that arose out of the Quasi-War with France. Chapeau Rouge was a trading company owned by a Hamburg businessman, Hans Seeman. In April 1799, the company’s merchant ship Amelia sailed from Calcutta to Hamburg loaded with a valuable cargo of cotton, sugar, and textiles. On September 6, the ship was stopped in the Atlantic by the Diligente, a French corsair. Although Hamburg was a neutral city-state, the ship was carrying goods from a British port, and under French law, any goods originating from British territory were subject to capture even if they were owned by a neutral party. The Hamburg crew was forced onto the Diligente, and a French crew took the Amelia as a prize and raised the French flag. The French intended to sail the Amelia to the French territory of Saint-Domingue to be condemned there by a French court as a prize of war.12
On September 15, Captain Silas Talbot on board the USS Constitution spotted the Amelia sailing nearby. It was clear that the ship was an armed vessel—with eight mounted iron cannons and eight wooden guns—flying a French flag. According to the secretary of the navy’s explicit orders, all armed French vessels were subject to capture. After a quick pursuit, Talbot captured the Amelia and brought the ship to New York to be condemned as a prize. At some point Talbot learned that the original owner was from Hamburg, a neutral city. Under federal statutes, a ship owned by a neutral party should be returned to the original owner. Talbot insisted that he was still entitled to receive half the value of the recaptured vessel and its cargo for the service he had performed in rescuing the vessel from the French. Seeman contested the proceedings. He argued that neither France nor the United States had the right under international law to seize a neutral vessel and that therefore no valuable service had been performed and Talbot was not entitled to compensation.