John Marshall: Hamilton 2.0

Celebrated for his stirring words in the Declaration of Independence, and having profited upon the popularity since, Thomas Jefferson was now America’s chief magistrate—and its most self-satisfied citizen. To him, the Washington and Adams years had been a “reign of witches”—a sudden reversion from the ideals he had laid out in that document—a dark age during which the American people had been led “hoodwinked” from their true republican principles.[1]

His presidency would be a restoration—“a perfect consolidation” of “a just & solid republican government.” America in the Age of Jefferson would be radiant proof “that a free government is of all others the most energetic,” an example that would “ameliorate the condition of man over a great portion of the globe.” The millennium had come, and he couldn’t help but weep for those he had vanquished—the “leaders on the other side,” who, having opposed all progress and republicanism itself as “dangerous innovations,” had tried but failed to show that “man cannot be governed but by the rod.”[2] Ignominy, both political and historical, was to be their only reward.

As Jefferson sanded and sealed these words, but one man could have been on his mind: Alexander Hamilton. It had been Hamilton—“a colossus to the antirepublican party”—who had despoiled America’s republican innocence.[3] Hamilton, whose “system” of banking, paper money, political patronage, and northern commercialism not only violated the Constitution, but “flowed from principles adverse to liberty, & and was calculated to undermine and demolish the republic.”[4]

Adding sweetness to Jefferson’s savor, it had ultimately been the Federalist cause that Hamilton had subverted. Infuriated by President Adams’ refusal to go to war with France, Hamilton had schemed to swing Federalist support towards Charles Cotesworth Pinkney in the election of 1800. “I will never more be responsible for [Adams] by my direct support—even though the consequence should be the election of Jefferson.”[5] Destroyed from within, the Federalist Party as a viable political force—and Hamilton with it—would never again be a serious threat to Jefferson and the Republican Party. Jefferson was finally shorn of his greatest foe.

But what Jefferson didn’t realize was that he was also losing the greatest well-spring of his political success. It had been Hamilton and his program that had antagonized so many towards his standard. Twelve years of Federalist rule—of national banks, debt assumption, neutrality proclamations, whiskey taxes, military buildups, quasi-wars, and Alien & Sedition Acts—most of which bore Hamilton’s direct or indirect fingerprints—had increasingly galvanized the Republican reaction and elevated Jefferson’s political status. Consolidated by his suicidal campaign against Adams, it was Alexander Hamilton, more than anyone else, that had made Thomas Jefferson America’s third president.

He would soon have cause to lament the loss, all the more so because the man who would replace Hamilton as the intellectual leader of the Federalist program, if not the political organization itself, would be a man far more subtle, far more endearing, and far more effective in consolidating the Hamiltonian vision of America than Hamilton himself had been. And he would come from Jefferson’s own family tree.[6]

John Marshall, like Hamilton, had served in the Continental Army during the crisis years of 1776-1780. Like Hamilton he had read law following the war, quickly begun a successful law practice, and become a champion of the Constitution during ratification.

Unlike Hamilton, he had repeatedly declined appointments from fellow Virginian President Washington. With a private practice to build and an invalid wife in Richmond, he was forced with “real regret” to decline multiple offices which had “been render’d highly valuable by the hand which bestow’d it.”[7]

Marshall’s services to Washington were to be outside official office, organizing Federalist support for Washington in Virginia and, perhaps more significantly, thwarting the political intrigues of his cousin Jefferson. When the latter (as Washington’s secretary of state) conspired with Citizen Genet to generate public opposition to Washington’s neutrality declaration, it was Marshall who rushed to the defense of his former commander-in-chief, organizing a popular demonstration in Richmond in support of the president and his policy.[8] Condemning Genet by name, and Jefferson by implication, he declared that to condone, let alone support, the Frenchman’s behavior would be to condone the violation of America’s independence. That the faction who had done so “should enlist itself under the banners of a foreign minister to force us out of [neutrality], was an offence too great to be forgiven.”[9]

Coupled with similar efforts on behalf of the Jay Treaty and, eventually, winning a congressional seat from an incumbent Republican in 1798, Marshall repeatedly took Jefferson and his Republican followers by surprise and confounded their efforts within their geographic stronghold.[10]

Following Marshall’s election to congress, Jefferson was frustrated, but relatively nonplussed. Though Marshall, one of “five certain federalists,” had won, three other Federalist winners were much more moderate. These victories “proceeded from accidental combinations of circumstances, & not from an unfavorable change of sentiment,” as shown by Republican victories for the Virginia governorship and legislature. The friends of liberty had reason to be on guard (Federalists and their arts of corruption were “making a sensible tho’ silent progress”), but they had more reason to be optimistic that they were on the precipice of a great triumph at the ballot box in 1800.[11]

Victory—Jefferson for the White House, Republicans for both houses of Congress—was indeed nigh, as was the highest of “High Federalists” Hamilton’s political, and impending personal, ruin. But in this fulfillment of the “revolution of 1800” was implanted a tumor—a tumor that would grow to cancerous proportions for Jefferson with the passage of time.[12]

As he raised his right hand to take the oath of office, Jefferson found himself staring into the face of the newly-appointed Chief Justice of the United States: John Marshall. It had been one of John Adams’ last acts as president, and would constitute, along with the appointment of the infamous “midnight judges,” the “one act of Mr. Adams’s life,” according to Jefferson years later, that “ever gave me a moment’s personal displeasure.” Marshall and company “were from among my most ardent political enemies, from whom no faithful cooperation could ever be expected.”[13]

Marshall had little hope for the years ahead either. On the day of the inauguration he gloomed that Jefferson and the new Republican majority were “divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country.”[14]

Jefferson moved to immediately confirm these fears. Determined to roll back the Hamiltonian program and remove all Hamiltonians from federal office, the judiciary became one of his central focuses. Federalists had “retired into the Judiciary as a strong hold,” he complained, from where “the remains of federalism” were propagated by “useless judges” in a last-ditch attempt to forestall his Republican revolution.[15]

To remove these “useless judges,” congress passed, and Jefferson signed, the Judiciary Act of 1802. A repeal of the Judicial Act of 1801, it not only abolished the lower appellate courts, but also forced Marshall and the associate justices of the Supreme Court to once again ride circuit, condemning them to long months on dusty roads, long nights in crowded, lice-infested boarding houses, and to sit behind benches in backwater courtrooms.

Marshall fumed in private, but kept his powder dry in public, unwilling to start a constitutional dispute that could only diminish the judiciary further.[16] Disillusioned though he was at riding circuit, and at the ascendant Jeffersonian doctrines about the “perfectibility of man,” he would bide his time until an opportune moment to assert the judiciary’s coequality presented itself.[17]

This would come the next year, in 1803. William Marbury had been one of the flurry of Federalists employed in the final days before Jefferson took over the executive branch. His commission as justice of the peace for Washington, D.C. had been confirmed by the Senate and signed by President Adams, but the document itself had not been delivered to him before Jefferson took the oath of office.[18] Instead it had been left on a desk in the State Department, where the new Secretary of State James Madison and Jefferson agreed that it should remain.[19]

After his repeated requests for its delivery had been denied, Marbury formally asked the Supreme Court to intervene. Marshall and the court agreed to hear the petition and oral arguments began on February 10. After two days of this (in which Madison did not appear, in person or through counsel), and a few weeks of deliberation, Marshall announced his opinion for the court.[20]

With a much larger object in mind than the immediate case itself, he declared at the beginning that the “peculiar delicacy of this case” required of him “a complete exposition” of not only the facts, but of the very nature of the Constitution itself and the judiciary’s role in it. He acknowledged that the signing of a commission by the president, after confirmation by the Senate, was the official act of appointment—delivery of the commission, or the failure to deliver it, did not alter this. “The transmission of the commission, is a practice directed by convenience, but not by law.”

So far, so good for Marbury. Marshall would even accede that it was a fundamental principle of law that when a citizen’s rights under law have been violated, they may appeal to the law for redress. “The government of the United States has been emphatically termed a government of laws, & not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

Alas for poor Mr. Marbury, Marshall’s larger purpose would grant him no more than this. First of all, the operation of the executive branch, whose officers were but instruments of the president’s will, were political in nature. “Questions, in their political nature, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

Additionally, and more directly to Marshall’s larger strategic purpose, the Supreme Court had been authorized to issue the legal order Marbury sought—a “writ of mandamus”—by the Judiciary Act of 1789 to “persons holding office, under the authority of the U. States.”[21] The rub in this was that the issuance of a writ of mandamus was an act of original jurisdiction—one made to and by a court of first appeal. Article 3, Section 2 of the Constitution only granted the Supreme Court original jurisdiction in cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” The Act was in conflict with the text of the Constitution, leaving the court in a conundrum: “If an act of the legislature repugnant to the constitution . . . is void,” Marshall asked rhetorically, “does it not withstanding its invalidity, bind the courts, and oblige them to give it effect?”

The answer must be no. If a law defies the text of the Constitution, “and the constitution is superior to any ordinary act of the legislature—the constitution, and not such ordinary act, must govern the case to which they both apply.” Accordingly, he concluded, “a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”[22]

Marshall’s opinion at once both prevented the judiciary from becoming a political tool for vengeful Federalists and was a subtle but sweeping response to Jefferson’s attempts to diminish the judicial branch, granting his administration victory in the case itself but, in so doing, declaring that the supreme court was not just a coequal branch of government, but the ultimate adjudicator in constructing the meaning of the Constitution in cases brought before it.

The ruling was both a vindication of Hamilton’s conception of the judiciary and an extension of it. Hamilton had written in Federalist 81 that “the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”[23] The judiciary was the bulwark protecting the Constitution, and by extension, the nation itself from being drowned by anti-federal zealotry. “The independence of the judges once destroyed, the Constitution is gone, it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate.”[24]

In voiding a federal law that conflicted with the Constitution, the chief justice had not only asserted the judiciary’s status as defender of the Constitution, but had done so while reinforcing the discretion and independence of the executive branch as well.

Jefferson had nothing to say about the case on the record. Marshall had struck a blow for the judicial branch, but he had done so in such a clever, moderate fashion that it hardly registered.[25]

It was to be a calm before the storm, and a long calm at that. Jefferson would spend most of the remaining five years of his term doubling the size of the country and navigating the republic between European belligerents. In between, he would appoint two solid Republicans to the Supreme Court, as would his closest political ally and successor, James Madison. By the time the latter would leave office, Chief Justice Marshall was presiding over a court composed almost entirely of Republicans. Like the legislative and executive branches, the judicial was no longer a Federalist “stronghold.” The Federalist Party was all-but-extinct, in fact, and by the time the third member of Jefferson’s Virginia triumvirate, James Monroe, was elected, America was well into a one-party “Era of Good Feelings.”[26]

These good feelings would increasingly wither before they could reach the private confines of Jefferson’s study at Monticello, as Marshall and his Republican-dominated court would issue a series of rulings that further consolidated the central pillars of the Hamiltonian program. The opinion in Marbury v. Madison, publicly ignored by Jefferson at the time, had been but his kinsman’s opening salvo.

Hamilton’s “great and real anxiety” throughout his public career had been “to preserve the National [Government] from the too potent and counteracting influence” of the states, a prime example of which was their tendency to breach contracts, before and after the Constitution had been ratified.[27] Jefferson, “the head of a party . . . whose politics have constantly aimed at elevating State-power . . . upon the ruins of National Authority,” was the personification of this fear. At the height of despair in the years just before Jefferson’s election, Hamilton saw the programs he had worked for, notwithstanding their “unexampled success . . . at home and abroad,” on the precipice of being erased.[28]

Most of these darkest fears would prove unfounded, and John Marshall would be the major reason why. Within the first two years of Jefferson’s retirement, Marshall’s court handed down rulings that established the Supreme Court’s authority to strike down state laws and court rulings deemed unconstitutional, as well as states’ ability to unilaterally revise contracts previously made with private individuals.[29]

Not only did these rulings assert national supremacy over state power, but they were supported by the immediate heir to Jefferson’s dynasty, James Madison, who, in cooperating with Jefferson, had written a decade before that states had the right to “interpose” upon federal laws they deemed to violate the Constitution. Now he was admonishing governors pleading with him to stand in the way of Marshall’s rulings that the president must “carry into effect” any supreme court ruling “where opposition may be made to it.”[30]

Marshall’s most decisive blows on behalf of the Hamiltonian vision of America would come during the Monroe presidency. In McCullough v. Maryland, the Court considered whether a state could tax a branch of the U.S. Bank located within it. As in his opinion in Marbury, Marshall seized the opportunity to focus on larger, fundamental constitutional issues. “The first question . . . is, Has Congress power to incorporate a Bank?”[31]

When Hamilton had first proposed a national bank, Jefferson’s answer to this was an emphatic no. Nowhere in the Constitution was congress explicitly granted the authority to create a bank, and to “take a single step beyond the boundaries thus specially drawn around the powers of Congress” would be for the national government “to take possession of a boundless field of power.”[32]

Hamilton had scoffed at this. “Every power vested in a Government is in its nature sovereign, and includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power.” The incorporation of a bank was “immediately relative” to “the sovereign power of providing for the collection of taxes,” which, extended logically, necessarily included “the right of granting a corporate capacity” to a national bank.[33]

Jefferson’s own Republican treasury secretary Albert Gallatin, continuing in that role in the Madison Administration, would ultimately agree with Hamilton, convincing Madison to sign an extension of the Bank’s charter shortly after taking office.

In McCullough, Marshall, writing for a Republican-dominated, unanimous court, would render it a fait accompli. Though the Constitution gave the congress no power to incorporate a bank per se, incorporation itself was a power that, by definition, emanated from other powers as it was “a means by which other objects are accomplished.” The Constitution did give the congress the power to collect taxes, borrow money, regulate commerce, and to raise and support armies—all of which were enumerated powers which required congress to devise means for the management of public funds. Incorporating a bank, as Hamilton had argued two decades before, was one of those legitimate means. “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited . . . are constitutional.”[34] The issue was at last settled: a national bank was constitutional.

Marshall’s opinions in Cohens v. Virginia and Gibbons v. Ogden (both also unanimous) in the years that followed were exclamation points on his decision in McCullough. In striking down state programs and regulatory regimes that conflicted with federal versions, they reinforced the Hamiltonian regime of a supreme national government with enhanced, implied powers protected by a strong, independent judiciary.[35]

From his mountaintop, Jefferson could do little beyond look down in horror. Hamilton had ultimately not just failed, but failed in a way that the vast majority of the American polity had been alienated into joining him and his political organization. Yet in the wake of “revolution of 1800,” John Marshall was systematically confirming the Hamiltonian vision of America with the explicit endorsement of Jefferson’s appointments and successors.

Marshall had not just succeeded Hamilton—he had surpassed him. He was a Hamilton 2.0. Hamilton himself had been aristocratic in temperament, scorning the mass of people who “seem to grow giddy and are apt more or less to run into anarchy” if not governed by a strong central government directed by social elites.[36] Marshall was much more optimistic, favoring a strong central government not out of fear of the people, but in the belief that it promoted national health and happiness.

The types of people that Hamilton left disaffected, Marshall ingratiated. He had a common touch in both temperament and physical appearance, and genuinely enjoyed being in the company of people—and everyone whose name wasn’t Thomas Jefferson loved being in his.[37] “I love his laugh,” wrote Justice Joseph Story, a Madison appointment, “it is too hearty for an intriguer, —and his good temper and unwearied patience are equally agreeable on the bench and in the study.”

As chief justice, Marshall insisted the justices of the Supreme Court board together when in term, building a sense of fraternity and institutional identity that fostered consensus. Coupled with his “vigorous and powerful” genius and a reasoning ability that, according to Story, unraveled “mysteries with irresistible acuteness,” this congeniality routinely persuaded Jeffersonians within the court and without to endorse Hamiltonian opinions.[38]

Jefferson had to begrudgingly admit this, albeit in unflattering language. “The judiciary” with Marshall at its head, “is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated republic.”[39]

Hamilton had seen the United States not as a confederated republic, but as a single, vibrant nation. John Marshall saw the same future and had the superior talents to consolidate what Hamilton had created and Jefferson had tried to destroy. If, in the words of Hamilton biographer Ron Chernow, we have “left behind the rosy agrarian rhetoric and slaveholding reality of Jeffersonian democracy and reside in the bustling world of trade, industry, stock markets, and banks that Hamilton envisioned,” it is John Marshall, more than Hamilton himself, we have to thank—or to blame.[40]

[1]Thomas Jefferson to John Taylor, June 4, 1798, Founders Online, National Archives, founders.archives.gov/documents/Jefferson/01-30-02-0280.

[2]Jefferson to John Dickinson, March 6, 1801, ibid, founders.archives.gov/documents/Jefferson/01-33-02-0156.

[3]“The Anas—Selections,” in Merrill D. Peterson, ed., Jefferson: Writings(New York: Library of America, 1984), 671; “Thomas Jefferson to James Madison; Monticello, September 21, 1795,” in John P. Kaminski, ed., The Founders on the Founders: Word Portraits from the American Revolutionary Era(Charlottesville: University of Virginia Press, 2008), 199.

[4]“To the President of the United States (George Washington); Monticello, Sep. 9, 1792,” ibid., 995.

[5]“To Theodore Sedgwick; New York May 10. 1800,” in Joanne B. Freeman, ed., Hamilton: Writings (New York: Library of America, 2001), 925. See also “To Charles Carroll of Carrollton; New-York, July 1st, 1800,” ibid., 926-928, and “Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States,” ibid., 935.

[6]Jefferson and Marshall were second cousins. For a discussion of how the two branches of the family had become estranged, see Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt & Company, 1996), 21-30.

[7]John Marshall to George Washington, October 14, 1789,” Founders Online, National Archives, founders.archives.gov/documents/Washington/05-04-02-0130. See also,Marshall to Washington, August 31, 1795,” ibid., founders.archives.gov/documents/Washington/05-18-02-0406.

[8]For a succinct account of Jefferson’s machinations with Genet, see Joel Richard Paul, Without Precedent: Chief Justice John Marshall and His Times (New York: Riverhead Books, 2018), 80-85. For an account of Marshall’s own machinations to counter Jefferson’s, see ibid., 89-92. See also “Resolution in Support of the Neutrality Proclamation,” in Charles F. Hobson, ed., Marshall: Writings (New York: Library of America, 2010), 51.

[9]John Marshal, “Aristides No. II,” ibid., 61.

[10]For an account of Marshall’s efforts to support the president and Jay’s Treaty within Virginia, see Smith, Definer of a Nation, 179-181. For an account of Marshall’s campaign for and election to a Republican-held seat for Congress, see James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (New York: Simon & Schuster, 2002), 63-84.

[11]Jefferson to Tench Coxe, May 21, 1799,” Founders Online, National Archives, founders.archives.gov/documents/Jefferson/01-31-02-0097.

[12]For a discussion of the inverse relationship between Jefferson’s triumph in 1800 and Hamilton’s downfall, see Geoff Smock, “Hamilton’s Revenge.” Journal of the American Revolution, March 25, 2019. allthingsliberty.com/2019/03/hamiltons-revenge/. For Jefferson on the “revolution of 1800,” see Thomas Jefferson, “To Judge Spencer Roane; Sept. 6, 1819,” Jean M. Yarbrough, ed., The Essential Jefferson (Indianapolis, Hackett Publishing, 2006), 250.

[13]For an account of Adams’ appointment of Marshall and the “midnight judges,” see David McCullough, John Adams(New York: Simon & Schuster, 2001), 560-563. For Jefferson’s feelings on those appointments, see “To Abigail Adams; Washington, June 13, 1804,” Peterson, ed.,Writings, 1145.

[14]“To Charles Cotesworth Pinckney, from Washington March 4, 1801,” Hobson, ed., Writings, 219.

[15]Jefferson to Dickinson, December 19, 1801,” Founders Online, National Archives, founders.archives.gov/documents/Jefferson/01-36-02-0090.

[16]See “To William Cushing, Alexandria April 19th 1802,” ibid., 222.

[17]For an account of Marshall’s misadventures riding circuit, see “To Mary Marshall,” ibid., 227. For Marshall’s complaints about Jefferson’s doctrines on human perfectibility, see “To Charles Cotesworth Pinckney,” ibid., 227.

[18]Ironically, as Secretary of State at the time, it was John Marshall’s own oversight that had let to this failure.

[19]“To Justice William Johnson; Monticello, June 12, 1823,” Peterson, ed., Writings, 1475.

[20]For an account of the public reading of the court’s decision, see Smith, Definer of a Nation, 319-324.

[21]“Transcript of Federal Judiciary Act (1789).” Our Documents– Transcript of Federal Judiciary Act (1789), www.ourdocuments.gov/doc.php?flash=true&doc=12&page=transcript.

[22]“Opinion in Marbury v. Madison,” Hobson, ed., Writings,229-252.

[23]“Federalist 81,” in Robert Scigliano, ed., The Federalist: A Commentary on the Constitution of the United States(New York: The Modern Library Classics, 2001), 515-6.

[24]“Remarks on the Repeal of the Judiciary Act,” Freeman, ed., Writings, 983.

[25]For the Republican reaction to Marshall’s opinion, or lack thereof, see Smith, Definer of a Nation, 325-26.

[26]For a discussion of the rapid, self-inflicted death of the Federalists as a viable national political organization, and the internal divisions that grew inside the Republican Party in the wake of Jefferson’s retirement, see Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: W.W. Norton & Company, 2005), 115-148.

[27]“To Edward Carrington,” Freeman, ed., Writings, 750. See also, “The Federalist No. 7,” Scigliano, ed., Federalist, 39; and “Report on Public Credit,” Freeman, ed., Writings, 537-539.

[28]“Memorandum on Measures for Strengthening the Government,” ibid., 915.

[29]For Marshall’s ruling that the supreme court could overrule state acts and rulings deemed unconstitutional, see United States v. Peters, 9 U.S. 115, 3 L. Ed. 53 (1809). For his ruling on the inviolability of contracts, see “Opinion in Fletcher v. Peck,” Hobson, ed., Writings, 342-354.

[30]“Virginia Resolutions Against the Alien and Sedition Acts,” in Jack N. Rakove, ed., James Madison: Writings (New York: The Library of America, 1999), 589; James Madison to Simon Snyder, April 13, 1809,” Founders Online, National Archives, founders.archives.gov/documents/Madison/03-01-02-0132.

[31]“Opinion in McCullough v. Maryland,” Hobson, ed., Writings, 412.

[32]“Opinion on the Constitutionality of a National Bank,” Peterson, ed., Writings, 416.

[33]“Opinion on the Constitutionality of a National Bank,” Freeman, ed., Writings, 613, 634.

[34]“McCullough,” Hobson, ed., 419, 426.

[35]For Marshall’s opinion in both cases, see “Opinion in Cohens v. Virginia,” ibid., 528-564, and “Opinion in Gibbons v. Ogden,” ibid., 607-632.

[36]“To John Jay,” Freeman, ed., Writings, 44.

[37]For a more extended discussion of Marshall’s sociability, see Harlow Giles Unger, John Marshall: The Chief Justice Who Saved the Nation (Boston: Da Capa Press, 2014), 71-86.

[38]“Joseph Story to Samuel P. P. Fay; Washington D.C. February 25, 1808,” Kaminski, ed., The Founders on the Founders,402.

[39]“To Thomas Ritchie,” Peterson, ed., Writings, 1446.

[40]Ron Chernow, Alexander Hamilton(New York: Penguin Books, 2004), 6.