By Stephens, George M.
Ideas on Liberty , Vol. 53, No. 5
by James F. Simon
Simon & Schuster [bullet] 2002 [bullet] 348 pages [bullet] $27.50 hardcover; $14.00 paperback
The struggle between Thomas Jefferson and Alexander Hamilton to define American government is well known. James Simon, professor of law at New York Law School, has written a carefully researched, thoughtful book about the less-familiar but equally important battle between Jefferson and John Marshall, third chief justice of the United States Supreme Court, to shape the kind of nation we would have.
Jefferson favored a government limited to protecting life, liberty, and estates, following the ideas of the English political philosopher John Locke. All other dealings, he thought, should be a matter of private contract between citizens. In the kind of nation Jefferson envisioned, the central government's effect on people's lives would be almost imperceptible.
Jefferson's limited-government view triumphed in the political arena following his election in 1800. But it did not prevail in the judicial arena. Hamilton's expansive "High Federalist" view was placed on the United States Supreme Court for life in the person of John Marshall. Marshall favored a far greater concentration of power in the central government than Jefferson.
Marshall was one of President John Adams's "midnight judges" (last-minute appointments with which he filled the judiciary with Federalists). Another was William Marbury, to be a justice of the peace, whose commission was duly signed by Marshall as secretary of state. Jefferson named James Madison to be Marshall's successor, and Madison refused to deliver Marbury's commission, setting up the famous case Marbury v. Madison. The Marshall Court in 1801 was asked to issue a judicial order to Madison to show cause for not delivering the commissions to Marbury and the other complainants.
Simon conducts a skillful analysis of Marshall's approach to Marbury, explaining how he crafted the decision to give Jefferson a tactical victory (ruling that Madison could not be compelled to deliver the commissions), while simultaneously giving himself the strategic victory by establishing the proposition that the Supreme Court had the power to invalidate unconstitutional laws.
Simon also takes up several other important cases of the era, including Martin v. Hunter's Lessee, which was a conflict between the judicial authority of a state and that of the federal government's authority to enforce the terms of a treaty, overturning the Virginia Supreme Court of Appeals. Justice Joseph Story, Marshall's principal ally on the Court, wrote that the Supreme Court must have authority to harmonize state and federal laws, or the Constitution would be different in different states. …