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What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States by James F. Simon


Rating: (Highly Recommended)


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Divided States

If you know more about Thomas Jefferson than you do about John Marshall, or can’t quite remember what was so important about the Supreme Court’s decision in Marbury v. Madison, you’ll fill those gaps in after reading James F. Simon’s new book, What Kind of Nation: Thomas Jefferson, John Marshall and the Epic Struggle to Create a United States. Despite being a law professor, Simon writes a readable story of the stormy relationship between Jefferson and Marshall, and what it meant to the formation of the United States. From our perspective in 2002, it seems that political polarization has reached a high point in the past five or ten years. The early divisions in our nation’s history appear more significant when interpreted by Simon. Here’s an excerpt from the end of the chapter that presented the trial of Vice President Arron Burr:

“The Burr prosecution produced an ironic reversal of roles for Jefferson and Marshall. The president, author of the Declaration of Independence and a supporter of many of the individual rights contained in the Bill of Rights, pursued Burr and his associates with a vengeance that ignored basic civil liberties. The chief justice, whose major libertarian concern was the protection of private property, became the vigilant defender of criminal suspects’ constitutional rights.
Jefferson’s and Marshall’s roles in the Burr affair deserve scrutiny beyond such broad generalizations. Before condemning Jefferson, one must ask whether any other president would have stood idly by while his former vice president met with representatives of the nation’s major adversaries, openly condemned the administration, and traversed the Western states twice to make plans for a mysterious expedition down the Mississippi. When he finally acted, the greatest potential for danger had passed, so that the national alarms he sounded appeared strident and unnecessary. Nothing excuses Jefferson’s belated zealous pursuit of Burr, but viewing the Burr conspiracy from the president’s perspective makes his conduct understandable.
With his rulings in the Burr trial, Chief Justice Marshall made proof of treason under the Constitution rigorously demanding, virtually eliminating the crime as a tool for political oppression. For those rulings, we as a nation should be forever grateful. But despite the thousands of words in his opinions, the usually lucid Marshall failed to explain clearly why his Bollman decision accepting the law of constructive treason was not applicable in Burr’s case. In Marshall’s letters to his colleagues after Burr’s indictment for treason, the chief justice had conceded that he recognized the British common law of constructive treason and asked whether his opinion should be revised. But it wasn’t, and yet Marshal never acknowledged in his Burr opinion that his Bollman decision was defective. This may not have been manipulation of the law, as Jefferson claimed, but it was not the finest example of the chief justice’s judicial craftsmanship.
Neither Jefferson nor Marshall was satisfied with the results of the Burr trial. Jefferson continued to believe that Marshall had acquitted a traitor, thereby encouraging further intrigues against the United States. Marshall was no more sanguine about the spectacle in Richmond. He was disturbed by the news that he had been hanged in effigy in the streets of Baltimore. A month after the trial, the chief justice offered a melancholy reflection that well summed up the ordeal of the Burr trial, writing that he had been ‘fatigued & occupied with the most unpleasant case which has ever been brought before a judge in this or, perhaps, in any other country which affected to be a government by laws.’”

What Kind of Nation describes the early years of the United States’ government by laws through the polarized stances of Jefferson and Marshall. Jefferson’s push for stronger states rights remained an area of national conflict through the Civil War and through the civil rights movement. Marshall’s decisions in favor of a strong central government and an independent federal judiciary continue to have an impact through the civil rights movement and the Supreme Court’s decision in the presidential election of 2000. Simon’s bias of the supremacy of Marshall over Jefferson fills most pages, and he’s likely to persuade you to his side by the end of the book. Whether you have interest in the law or not, you’re likely to find the What Kind of Nation to be a fascinating book that transports you to the crises in our country’s early history.

Steve Hopkins, May 15, 2002


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The recommendation rating for this book appeared in the June 2002 issue of Executive Times


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