Although most people today associate Jefferson with individual rights and a fundamentalist view of the Constitution; and the Federalists with the advocacy of a strong central government, the distinctions are not so facile and clear-cut. For one, the Democratic-Republicans supported slavery, while the Federalists generally opposed it. These positions led the Jeffersonian tradition directly to the policies of Jackson, Calhoun, and, finally, Jefferson Davis; while the Federalist tradition led to Lincoln.
The Federalists were the first to see and understand the failure of the Articles of Confederation, so they pushed for change. The anti-Federalists thought that the Articles could be tweaked for improvement and were skeptical about the whole constitutional enterprise.
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In the end, they accepted it reluctantly — and showed it. Such thinking, often imbued with deep resentment, led to muddled action, ambivalence, and, sometimes a reversal of roles — with the president himself leading the way. Jefferson, expecting an immediate victory, ordered a squadron of ships to destroy the Muslim navies. The war dragged on for almost 15 years. Several of the Barbary states had demanded tribute from American merchant ships in the Mediterranean.
When the Americans declined, the Pasha of Tripoli captured several seamen and held them for ransom. But it was the Louisiana Purchase — the constitutionality of which even Jefferson was skeptical about — that was really troublesome.
For starters, the Constitution did not empower the federal government to acquire new territory without the universal consent of every state as per Andy P. Antippas' view in his History of the Louisiana Purchase.
Thomas Jefferson's Reaction
Some of the articles of the Purchase Agreement were also in violation of the Constitution because they gave preferential tax treatment to some US ports over others; they violated citizenship protocol; and they violated the doctrine of the separation of powers between the president, Congress, and the judiciary. As Antippas recounts:. The Senate bought that argument and ratified the Louisiana treaty. Specifically, Jefferson favored a society of agrarian smallholders and did not approve of speculators buying up western lands as soon as they were available — he wanted smallholders to get in on the action right away.
Both were Virginians and slaveholders, but their treatment of slaves differed markedly. Jefferson is known to have beaten his slaves; there is no evidence that Marshall ever did. In his will, Marshall wisely granted more liberty to his slaves than we might intuitively suppose today.
He gave them two options upon his death: liberty, with severance pay, so they could set themselves up independently or emigrate to Liberia ; or continued servitude, in case the radical transition to liberty was more than they could handle. Marshall's and Jefferson's approaches to Native Americans were even more illuminating. As soon as Louisiana was purchased, Jefferson embarked on a cold-blooded policy toward Native Americans.
In a lengthy letter to William Henry Harrison, military governor of the Northwest Territory, he explained that the nation's policy "is to live in perpetual peace with the Indians, to cultivate their affectionate attachment from them by everything just and liberal which we can do for them within the bounds of reason. Marshall, in contrast, did everything he could to prevent the confiscation of Indian land and the eviction of the Indians from Georgia, in a series of cases collectively known as the Cherokee Indian cases.
As a young man, while serving in the Virginia House of Delegates in , Marshall supported a bill that encouraged intermarriage with Native Americans. Three years later, in the Indian slave case of Hannah v. Davis , he argued successfully that Virginia statute law prohibited the enslavement of Native Americans.
The final one, Cherokee Nation v.
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Georgia , turned on the supremacy clause. In a bald-faced land grab, Georgia had declared sovereignty over Cherokee lands.
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The Cherokees sued. The Marshall court decided that Indian affairs were the province of the federal government alone; therefore the Georgia statutes that claimed control over Indian lands were null and void. It was a Pyrrhic victory that few Cherokees savored on their forced march along the "trail of tears and death" to Oklahoma. Besides the fundamental issue of judicial review, another fundamental issue remained to be addressed in order to make the Constitution something closer to ultimate law, as opposed to simply a guiding, founding document: objective guidelines for practical interpretation.
Other than the Federalist papers, which were not law, firm guidance about constitutional interpretation was lacking. At one end of the spectrum was the strict fundamentalist approach see examples already mentioned above , akin to religious fundamentalist interpretations of the Bible: virtually no interpretation.
This was not only impracticable law, but a recipe for tyranny. In Marshall got the opportunity — again, with some prodding and collusion on his part — to set the standards. Though Jefferson opposed it, he left the bank in place. However, four years without the bank during the War of spoke eloquently about the value of its services. When a charter for a second Bank of the United States the first charter ran for only 20 years was introduced in , it had the support of President Madison, who signed the bill into law. Only Virginia's congressional delegation voted 11 to 10 against the bank.
Though the Constitution had empowered the federal government to coin money, it had not explicitly barred states from doing so. And there was one of the rubs: the branch of the Bank of the US stationed in Richmond was too much competition for the alternative, state banking system.
Landmark Supreme Court Cases | Thomas Jefferson's Reaction
When the bank called in its improvident loans to state banks — to cover its own debts, which it had improvidently incurred — the default of banking institutions swept like wildfire across the southern and western states. Battle lines were drawn. The states moved against the national bank. Nullification had been around since ; it gained from the support of none other than Jefferson and Madison. Though it must be admitted that when pressed about the constitutionality of nullification, Madison hedged and declared that it was an extraconstitutional option.
Taken to extremes, nullification implied the right to secede, with each state being judge of the constitutionality of its own cause; and, as Ohio later tried to do with McCulloch v. Maryland , the right to reject Supreme Court decisions. Russell Pearce, an Arizona state senator, is sponsoring the latest nullification bill.
Libertarians should reflect on the fact that nullification cuts both ways: it is at least as likely to be used to nullify as to uphold individual rights. To cover its debts, Maryland passed a law taxing — in the most punitive and unconventional manner — the Bank of the United States. James McCulloch, head of the bank's Baltimore branch, refused to pay the tax.
Maryland sued. As well he might.
Many principles were in play in Marshall's decision: federal supremacy over the states within a constitutional sphere Maryland could not punitively tax a federal institution , judicial review reaffirmed , nullification denied — state action may not impede valid constitutional exercises of power by the federal government and finally, the most important issue, implied powers. Here, finally, was an objective guideline for the interpretation of the constitution.
Accordingly, the constitutionality of the Bank of the United States was established without a doubt. Much controversy over the Constitution and its meaning continues — witness the Russell Pierce case and the calls for the abolition of the Federal Reserve. Even the Bill of Rights is not fully settled law. Following Cherokee Nation v. John Marshall, in Marbury v. Madison and McCulloch v. Understanding those two cases — and Marshall's perspective — is essential to a knowledgeable understanding of our government's structure and powers.
As libertarians, we can be most effective if we work within the framework of accepted law to protect and extend liberty, rather than making ineffective flanking attacks from the swampy fringes, armed with quixotic arguments. This approach to interpreting the Constitution is a firmer bulwark for liberty than the well-intentioned but murky intellectual musings of Jefferson, which — though noble and intelligent — are no substitute for tight legal reasoning.
I find it hard to believe that Jefferson, of all people was concerned with slavery, when he would not free his own children. Brilliance yes, substance no. He was a reprehensible human being and the first dirty campaigner in a presidential election, but I repeat myself.