American Sphinx (30 page)

An all-important epilogue to this political story occurred during the weeks following Jefferson’s victory. It then became distressingly clear that because of a quirk in the electoral system that prevented electors from distinguishing between votes for president and vice president (subsequently corrected by the Twelfth Amendment), Jefferson and Burr had received the identical number of electoral votes. This threw the election into the House of Representatives, where the Federalists were able to block the majority necessary for Jefferson’s selection for six days and thirty-six ballots. Even though everyone acknowledged that the American electorate had intended to choose Jefferson as its president, Burr had done nothing to indicate his willingness to defer. (Altruistic acts of deference were alien to Burr’s style.) So the man greeting Jefferson as he entered the Senate chamber was an infamous political schemer who only a few weeks earlier had passively given himself to a Federalist conspiracy designed to cheat Jefferson of the very office he was coming to claim.
¹⁰

Then there was John Marshall. By all rights Marshall should have been a Jeffersonian disciple. A fellow Virginian, even a distant cousin via the ubiquitous Randolph clan, Marshall was a contemporary of Madison and Monroe who had somehow wiggled through the net that usually gathered Virginia’s talented young men into Jefferson’s political family. By the time of the Jay Treaty he had become one of the most prominent of the Federalists; Jefferson wrote him off as a man of “lax lounging manners . . . and a profound hypocrisy,” Jefferson’s way of designating Marshall a traitor to Virginia’s version of republicanism. Marshall’s talents attracted Adams’s attention by 1797, and he was appointed a member of the all-important American delegation to France, then secretary of state, and finally, during Adams’s last weeks as the lame-duck president, chief justice of the United States.
¹¹

To say that Jefferson and Marshall hated each other would be going too far in 1801; hatred came later with greater exposure. In a curious way Marshall presented difficulties that were a mirror image of those represented by Burr, for Marshall always managed to cloak his personal feelings toward Jefferson behind an elaborately constructed screen of impartial-sounding arguments that invariably ended up leaving him no choice but to align himself on the other side. Just as Hamilton’s dislike of Burr was rooted in the recognition of their overlapping ambitions and their common affinity for a flamboyant brand of decisiveness, so Jefferson’s mistrust of Marshall was exacerbated by their mutual preference for a more subtle and indirect style that probably had its origins in the Virginia code of politeness. If Hamilton came at you with a saber, Marshall preferred the stiletto.

On the other hand, Marshall’s massive probity was powered by a mind that worked in ways fundamentally different from Jefferson’s, which tended to filter and fit experience through primal categories of right and wrong. Marshall worked in more shaded hues and colors in the middle of the spectrum and, much like Madison, was more intellectually agile in a lawyerlike way in making distinctions that broke down the Jeffersonian dichotomies into smaller components. He was a genius at what Jefferson later called “twistifications”—that is, intricate arguments that seemed to be headed in the proper Jeffersonian direction but then somehow doubled back and landed decisively on the other side. Much like Hamilton’s dexterity with account books and complex fiscal figures, Marshall’s reasoning usually appeared to Jefferson like the diabolical maneuvers of an evil wizard. He was also extremely adroit at doing the greatest damage to one’s cause by apparently attempting to defend it. In the weeks before the inauguration, for example, he had admitted to having “insufferable objections” to Jefferson’s election and to believing that Jefferson’s political prejudices made him “totally . . . unfit for the chief magistracy of a nation which cannot indulge these prejudices without sustaining deep and permanent injury.” But despite these reservations, he wished it known that some Federalist critics of the president-elect were unfair. If the Jeffersonians were divided between “speculative theorists and absolute terrorists,” Jefferson himself did not strike him as a member of the latter category.
¹²

At a more political but less personal level, the man waiting to administer the oath of office to Jefferson in the crowded Senate chamber was especially offensive because he stood as the ultimate embodiment of “the midnight judges.” That phrase did not originate with Jefferson, though he quickly adopted it as a way of referring to the judicial appointments that Adams had made, allegedly during his last hours in office. The phrase itself was somewhat misleading, since it conjured up an image of Adams spending his last night in the presidential mansion furiously signing appointment letters beneath the midnight oil in a last-ditch spasm of political vindictiveness before catching the early-morning stage out of town. In fact Adams had made the vast majority of his judicial appointments, including that of Marshall as chief justice, several weeks earlier, soon after the passage of the Judiciary Act in February 1801. What was true, however, was that all of them, including Marshall’s, had occurred after the results of the presidential election of 1800 were known, so in that sense they constituted a partisan action designed to force Federalist judges on the incoming Republican president. Adams could claim, as he did, that he was simply doing what Washington had done during his last weeks in office; but that precedent was rather weak because Jefferson’s election represented a fundamental repudiation of the incumbent Federalist administration, whereas Adams had represented a continuation.
¹³

To make matters worse, Marshall’s appointment had no term. It was a lifetime seat that could be vacated only if Marshall committed “treasonable acts” or was found guilty of “high crimes and misdemeanors.” This made him a kind of unmovable Trojan horse placed squarely in the middle of the Jefferson presidency, the official commander of a Federalist judiciary apparently impervious to executive influence or popular opinion. Nor was Marshall unaware of his truly singular position and his nearly open-ended opportunity—he saw it as a duty—to make trouble. On inauguration day, just before he walked over to the Capitol, he wrote a reassuring letter to a Federalist colleague. “Of the importance of the judiciary at all times, but more especially the present I am fully impressed,” he explained, “and I shall endeavor in the new office to which I am called not to disappoint my friends.” Jefferson of course did not know about this letter, but he knew enough to suspect perpetual mischief from Marshall’s protected corner. The preceding day, anticipating that Marshall might show up late for the ceremony as a way of spoiling the serenity of the proceedings, Jefferson sent him a terse note reminding him to be present at twelve o’clock sharp. Marshall wrote back to reassure the president-elect that he was always punctual.
¹⁴

Whatever mutual dislike and distrust the awkward trio of Burr, Marshall and Jefferson harbored toward one another, it could be dismissed as a merely private or personal drama. At the larger public level the tension present in the Senate chamber derived from two overlapping apprehensions: First, the ascendancy of Jefferson and the Republicans to power was unprecedented in the sense that the Federalists had controlled the federal government since its inception in 1789; second, Jefferson’s dominant political message throughout the 1790s had been almost entirely negative, in the sense that he had led the opposition to Federalist versions of federal power and objected to the creation of an energetic national government on the ground that it violated the original intentions of the American Revolution. Taken together, these two conditions raised serious questions about the very survival of a federal government the incoming president had threatened to dismantle.
¹⁵

The answer to the first set of questions seemed clear and reassuring and was essentially inherent in the very inaugural ceremony itself. Margaret Bayard Smith, the wife of the editor of the pro-Jefferson
National Intelligencer
and a member of the audience, put it most succinctly: “The changes of administration, which in every government and in every age have most generally been epochs of confusion, villainy and bloodshed, in this happy country take place without any species of distraction, or disorder.” More elemental than the ostentatious simplicity and republican symbolism of the inaugural parade was the fundamental fact that it had occurred at all. The peaceful transfer of political power from one regime to another, a problem that had haunted European governments of all sizes, shapes and forms from time immemorial—and indeed continues to bedevil some of the most powerful nations of the modern world—had happened in a remarkably matter-of-fact fashion. The defeated Federalists were bitter, to be sure, but they had deferred to the will of the electorate. During the protracted debate and balloting in the House of Representatives in February, Thomas McKean, the Republican governor of Pennsylvania, had threatened to call out twenty thousand militia if the Federalists tried to cheat Jefferson of his victory. Another Pennsylvanian, Hugh Henry Brackenridge, had advised Jefferson to seize power and convene the government without waiting for the House of Representatives to resolve the impasse with Burr. Several Virginians had recommended calling for a new constitutional convention to restructure the federal government in anticipation of Federalist skulduggery. But all such alarmists had gone unheeded, and their sense of foreboding had proved exaggerated. Although it was not what Jefferson meant by the phrase “the revolution of 1800,” the most revolutionary feature of his elevation to the presidency was its routine character. To put it differently, the most significant events were those that did not happen.
¹⁶

The answer to the second set of questions—about Jefferson’s political agenda as president—was much more problematic. No one knew for sure what he meant by “pure republicanism,” except perhaps that it entailed reducing the size and scope of the federal government. “Mr. Jefferson is well calculated to pull down any political edifice,” wrote one Virginia Federalist, “and those will not be disappointed who have feared he would employ himself . . . in taking to pieces the national building . . .”; he warned that “even the foundation will be razed in less than four years.” The reference to “the foundation” hinted at the chief Federalist fear, which was that Jefferson intended to disavow the constitutional settlement of 1788. He had, after all, been elected as the leader of a political party whose central premise had been hostility to any exercise of power by the federal government in domestic affairs. What Jefferson referred to admiringly as “the antient Whig principles” were entirely oppositional in character, having developed in England as the dissenting tradition against the accumulated power of king and court, then in America as the ideological basis for opposition to both royal and parliamentary power over the colonies. Clearly Jefferson and his Republican supporters regarded the Federalist policies of the 1790s, especially the Hamilton fiscal program, as a betrayal of “pure republicanism.” But given the inherently oppositional logic of Jeffersonian thought, it was not just plausible, it seemed almost obligatory, that he also reject as excessive the powers vested in the national government under the Constitution. This meant turning the clock back past the 1790s and into the 1780s, when the powers of the national government under the Articles of Confederation were extremely weak. Indeed, considering Jefferson’s deep-seated aversion to political coercion of any sort and his long-standing commitment to a dissenting tradition that regarded all government power as inherently arbitrary and corruptive in character, it was difficult to know where he drew the line that separated the legitimate exercise of political authority from the oppressive and abusive infringement of personal freedom. How could he take an oath to preserve, protect and defend the Constitution of the United States, the Federalists asked, if his primary goal as president was to dismantle the federal institutions created by that very document?
¹⁷

The answer he seemed to leak out to his Republican supporters in the months preceding his inauguration was that his intention was not to dismantle the federal government but to shrink it. “The true theory of our Constitution,” he told Gideon Granger, is that “the states are independent as to everything within themselves, and united as to everything respecting foreign nations.” This sounded very much like the position he had taken in the 1780s, when the Constitution was being drafted and before Madison had persuaded him to support its ratification. It was also consistent with his view in 1798, when he and Madison had worked together to draft the Kentucky and Virginia Resolutions in order to block implementation of the Alien and Sedition Acts, the one significant act of his vice presidency. There Jefferson had gone considerably further than Madison in recognizing the right of a state to nullify a federal law within its own borders, even describing federal intrusion in state matters as interference by a foreign government. In October 1801 he had also let it be known that he supported a proposal being circulated in Virginia by John Taylor and Edmund Pendleton that called for a one-term presidency with reduced executive power, shorter terms for senators, federal judges removable by a vote of Congress and constitutional limits on the borrowing power of the federal government. Whether one characterized these hints as “shrinking” or “dismantling,” they lent credibility to the Federalist rumors that Jefferson meant to destroy the current foundation of the central government and thereby allow the United States to become, like Europe, a series of separate nation-states in the manner of France, Italy and Austria.
¹⁸

If there was a consensus within both Republican and Federalist circles that Jefferson’s election meant a radical reduction in the powers of the federal government, the only question being how much and the only political disagreement being that the Republicans were overjoyed and the Federalists were terrified, the one dissenting voice belonged to none other than Alexander Hamilton. Acknowledging that “it is too late for me to become his apologist” and that he “did not really have any disposition to do it” anyway, Hamilton went on to offer a backhanded defense of Jefferson’s political principles: “I admit that his politics are tinctured with fanaticism, that he is too much in earnest in his democracy, that he has been a mischievous enemy to the principal measures of the past administration, that he is crafty and persevering in his objects, that he is not scrupulous about the means of success, nor very mindful of truth, and that he is a contemptible hypocrite.” But despite all these personal weaknesses, indeed in part because of them, Hamilton predicted that Jefferson “is as likely as any man I know to temporize . . . ; and the probable result of such a temper is the preservation of systems, though originally opposed, which being once established, could not be overturned without danger to the person who did it.” Like everyone else, Hamilton conceded, he was only guessing, but he did not believe that Jefferson had the disposition to sustain the kind of pressure required to dismantle the federal government. “To my mind,” Hamilton concluded, “a true estimate of Mr. J’s character warrants the expectation of a temporizing rather than a violent system.”
¹⁹