WHAT KIND OF NATION

From NYU law professor Simon: a lucid account of the clash between two strong-willed men and two sharply divergent political tendencies.

Jefferson, writes Simon (The Center Holds: The Power Struggle Inside the Rehnquist Court, 1995; Law/NYU), had a profound distrust for centralized authority, be it king or Congress, and a nagging suspicion that “the Constitution was an invitation to monarchy.” To counter the growing power of the Federalists, he organized the Democratic-Republican Party and set about vigorously protesting such legislation as the Jay Treaty of 1794 and the Alien and Sedition Acts of 1798. (Though he believed the second law gave too much power to the federal government, Simon notes, Jefferson “did not object to selective prosecutions of his political critics under state seditious libel laws.”) Jefferson reserved special contempt for his chief Federalist bugaboo, fellow Virginian John Marshall, whom he derided for “acting under the mask of Republicanism” and exhibiting “lax lounging manners.” As legislator and later as Supreme Court justice, Marshall would repay the compliment by contesting Jefferson at every turn, suspecting that he sought to weaken the power of the federal government and especially the executive in order to increase his personal power. Marshall’s opposition came perhaps nowhere more forcibly than in his formulation of the federal judiciary’s decision in the 1803 case of Marbury v. Madison, which ruled that the court alone was responsible for determining what was or was not constitutional and could strike down congressional legislation and executive orders on constitutional grounds. Simon notes that the debate between the two political philosophies, arraying states’ rights on one hand and federal power on the other, has been a constant in American political history, though, as he writes, the uses to which Jefferson’s states’-rights arguments have been put “would probably have appalled the nation’s third president.”

Simon’s excellent venture in legal and political history illuminates both the roots of an ongoing controversy and the characters of two great historic figures.