America’s Long Journey: The Cotton Engine

We know so little about our destiny. Because Eli Whitney’s stepmother opposed his wish to attend college, he spent years working as a farm laborer and school teacher to save enough money, and was 27 years old before graduating from Yale College (Phi Beta Kappa) in 1792. He wanted to study law, but he didn’t have enough money. Perhaps he thought his life was frustrating his desires. Instead, it was using him to transform the world.

He took a ship for South Carolina, intending to take up a job as private tutor, and aboard ship met the widow and family of Nathanael Greene, who we will encounter as a Revolutionary War general. He was invited to visit the Greene plantation in Georgia, then being managed by Mrs. Greene’s future husband Phineas Miller, also a New Englander, also a Yale graduate.

While visiting the plantation, he observed the bottleneck in the process of producing cotton: separating fibers (called lint) from seeds. Hundreds of man-hours were required to clean a useful amount of lint. He was a New England Yankee – that is, an inventor by nature. Could he figure out a way to improve the process?

In pretty short order he had invented the “cotton engine,” which inevitably got shortened to “cotton gin.” (Whitney later said he got the idea for the mechanism by watching a cat trying to pull a chicken through a fence.) Basically, a drum stuck with hooks pulled the cotton fibers through a fine mesh that the seeds would not fit through, while brushes continuously removed the loose cotton lint to prevent jams. The thing could clean 50 pounds of lint per day.

Simple, but revolutionary. Too simple for Whitney’s good, actually. The machine was too easily imitated. Besides, he and Miller, as partners, weren’t thinking of manufacturing the gin. They thought they would clean their neighbors’ cotton – in exchange for 40% of the product! On paper, this probably looked pretty smart: The farmers would still be better off, because the gin would let them produce so much more cotton than otherwise, and they wouldn’t have to put out any cash for the service – and Whitney and Miller would have all that cotton to sell.

Of course it didn’t work out that way. Whitney patented the machine, but Whitney and Miller never could build enough gins to meet demand, and others began making and selling them. Patent-infringement lawsuits succeeded in eating up all the profits, and their cotton gin company went out of business in 1797. The cotton gin made Whitney famous, not rich.

But he sure did set consequences in motion. Before he invented the cotton gin, slave labor was mostly used to grow rice, tobacco, indigo, and cotton. There wasn’t much profit in any of it, and probably if the slaves had been white rather than black – and therefore had presented no problems of post-slavery social readjustment – they would have been freed as early as the Revolution. Certainly at the time the founding fathers were devising the Constitution, they assumed that slavery was a dying institution.

Then along came the cotton gin, and suddenly slavery was firmly fastened not only on the states where it had long existed, but all the way to the Mississippi and beyond.

Why? For the reason that people always exploit other people: It was profitable. It was more than profitable, it was terrifically profitable, it was the way to amass fortunes. Cotton exports went from less than 500,000 pounds in 1793 to 93 million pounds in 1810. Far from slavery dying out, the need for slaves to grow cotton led to the importation of 80,000 Africans before Congress banned the slave trade in 1808.

And this can’t be blamed just on southerners. New England factories and Northern shipping lines were founded on slavery just as firmly, and only slightly more indirectly, as any cotton plantation in Dixie. Southern cotton fed New England textile mills. Southern cotton provided more than half the value of all American exports between 1820 and 1860. Southern cotton, by 1860, provided as much as 80% of the supply of cotton to Great Britain’s voracious textile industry, and two-thirds of the supply for the entire world. Is it any wonder that Southern statesmen came to overrate their importance in the economy of the nation and the world, thinking that “Cotton is King”?

Eli Whitney was a Yankee inventor, finding a new way to overcome an old problem He wasn’t thinking to transform the textile industry, and the South, and he wasn’t thinking to invent one of the main indirect causes of the Civil War, and he certainly didn’t anticipate solving the problem and then reaping no benefit from his invention. But that’s what happened. First to last, it’s a story of unanticipated consequences.

Dangerous Acts and Resolutions

The Alien and Sedition Acts and the Kentucky and Virginia resolutions, taken together, show bad policy engendering a cure worse than the disease. The immediate effect was nil, or next to nil. The longer term consequences included civil war. That isn’t what anyone had in mind in 1798, but men like Washington could see it coming. What’s odd is that men like Jefferson did not.

President John Adams signed the Alien and Sedition Acts  into law in 1798, and so he got the blame for them, but – as with most of the mistaken policies pursued during his term of office – they originated with the high Federalists in Congress and in the Cabinet he inherited from Washington (and mistakenly kept). As usual with bad policy measures, they stemmed from fear.

The French Revolution broke out at the commencement of Washington’s first term, and by his second term progressed to war between France and England. Washington worked hard to keep his small country out of a war that could only bring harm, but, in Adams’ term, as we shall see, France and the United States had drifted into a state of quasi-war.

But the Alien and Sedition Acts stemmed less from fear of the French than from fear of French sympathizers. The bills were the product of the first variant of what would later become “red scares”: American citizens, seduced by a foreign ideology, were no longer to be trusted! Indeed, they were to be feared! The government would have to do something!

What it did was to pass four laws attacking the presumed danger on two fronts. First, aliens. The time required for naturalization should be changed from five years to 14, because clearly five years was too little time to turn them into trustworthy citizens (i.e. the kind who wouldn’t vote for Jefferson’s party). And the president must be given the right to imprison or deport any aliens dangerous to the country’s “peace and safety”– and guess who would get to define whether a given alien was dangerous?

Second, Americans. The times were too dangerous for free speech: Anyone criticizing the government or its officers could be fined and imprisoned. In other words, censorship.

And this was not an idle threat. A few examples: A newspaper editor was arrested in 1798 under the Sedition Act for having accused Washington of incompetence and financial irregularities, and Adams of nepotism and monarchical ambition. (He died of yellow fever while awaiting trial.) An English immigrant and printer who reprinted a claim that the federal government had employed Tories was found guilty of seditious libel and sentenced to a two-month imprisonment and a $200 fine. A congressman was indicted for writing an essay accusing the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. He was fined $1,000 and sentenced to four months in jail.

The acts were denounced by Democratic-Republicans, figured prominently in the elections of 1798 and 1800, and ultimately helped defeat Adams in his bid for re-election. But that’s not all they did. They led to the Kentucky and Virginia Resolutions, authored secretly by Thomas Jefferson and James Madison, which eventually produced huge calamitous consequences.

In the Kentucky Resolutions, Jefferson advocated nullification, and even drafted a threat for Kentucky to secede. Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” The theoretical damage of the Kentucky and Virginia resolutions was a recipe for disunion.

The resolutions argued that the states had the right and the duty to judge the constitutionality of federal measures, and to declare unconstitutional measures null and void. The Virginia Resolutions of 1798 say that the states have a right to “interpose” to prevent harm caused by unconstitutional laws. The Kentucky Resolution of 1799 advocated nullification. In both cases, the resolutions argued that the Constitution was a “compact” or agreement among the states, and therefore, the federal government had no right to exercise powers not specifically delegated to it, and if it did so, its acts could be declared unconstitutional by the states.

Thus, if the Compact theory were accepted, states could decide the constitutionality of laws passed by Congress. Could the mind of man have created a more perfect recipe for chaos?

The Compact theory said that the nation was formed through an agreement among the states, and that therefore the federal government is a creation of the states, and therefore states should be the final arbiters of the federal government’s authority to act in any given case. But the fact is, the government that was formed by a compact among the states was the government framed under the Articles of Confederation. The Constitution was written precisely in order to overcome the inherent weaknesses of that kind of government.

The Constitution says “we the people of the United States,” not “we the people of the various states.” It formed a government directly responsible to the people, with divided powers and a distribution of powers between the general government and the several State governments. The states as such are not parties to the Constitution. The states ratified the new form of government; they did not create it.

And this is how it was seen at the time. The resolutions were submitted to the other states for approval, with these results: Seven states rejected them, three passed resolutions expressing disapproval, and four took no action. At least six states took the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures.

Washington told Patrick Henry that if “systematically and pertinaciously pursued”, the resolutions would “dissolve the union or produce coercion,” which, long after his death, is exactly what happened. As we have seen, in the years before the Civil War, the compact theory was used by southern states to argue that they had a right to nullify federal law, and in 1861, they used it to justify secession.

Hamilton, of course, had a solution – send the army into Virginia on some “obvious pretext” and “put Virginia to the Test of resistance.” Fortunately, Adams had far too much sense to listen to that hare-brained idea. But it would have been better if he had vetoed the equally hare-brained Alien and Sedition Acts, and avoided setting into motion so many dangerous ideas.


First in the hearts of his countrymen

When he was still alive, many feared he would make himself king. But as soon as he was safely dead, it became clear how generously and unselfishly he had poured out his life for his country. When the news came that Washington had died, many must have felt it like the death of their father, and thousands wore mourning clothes for months.


Forget the cherry tree and the ivory false teeth and the other legends that were invented to raise him up or pull him down in the estimation of posterity. Look at him for what he was, and see what a miracle looks like in real life.

George Washington was born into the Virginia aristocracy, quite content with his station in life. By inclination he was a farmer and horseman, and he had the life he wanted. He was still young when his father and older brother died, leaving him master of his father’s estate. After he married a 28-year-old widow, he became perhaps the richest man in Virginia. All this he jeopardized for his convictions.

Like the other patriot statesmen, he risked life and property, but in addition he forfeited nine years of his life to a long disheartening struggle against impossible odds, and then, after success and only a few years’ respite, another eight years to a political post for which he had little inclination.

We all know the elements of Washington’s career. He was named commander-in-chief of the Continental Army, he presided over the convention that drafted the Constitution, he was the unanimous choice to be the first President of the United States, and the unanimous choice again to succeed himself. There’s much more to his life, as we shall see, but that’s enough to be getting on with.

No one else could have held the revolutionary army together through years of almost unbroken defeat. No one else would have been equally trusted by the common people to lead an untried new form of government. He was the indispensable man.

Why? In a word, character. He had all the aristocratic virtues, and apparently none of the defects. Everyone who dealt with Washington experienced his integrity, his resolve, and his unfaltering intention to do right. That doesn’t mean he never made mistakes. It means he made only honest mistakes.

Washington was not a great intellect, arguably not a great general, not a natural politician, not a good orator, nor are his state documents particularly distinguished, except his farewell address. Yet he seemed to have been designed by God himself specifically to lead the Revolution to success, and then help turn it into an equally revolutionary, but stable, form of government. He was often defeated by British armies, but he never allowed defeat in battle to end the war. He soldiered on, doing what he needed to do to hold the army together. After victory, he resigned as Commander-in-chief and gladly went home.

Presiding, by request, over the Constitutional Convention of 1787, he found himself elected first president of the United States. For his pains, he was rewarded by intrigue from Hamilton’s faction and suspicion from Jefferson’s. When war broke out in Europe at the beginning of his second term, he kept the fledgling republic neutral, and in his farewell address he warned against partisanship, sectionalism, and involvement in foreign wars. In March, 1797, again he gladly returned home, but this time he had less than three years to live. Washington died at home around 10 p.m. on Saturday, December 14, 1799, aged 67. His last words were, “‘Tis well.”

Congressman Henry Lee – “Light-Horse Harry” of the Revolutionary War — eulogized Washington in words that have become immortal:

“First in war—first in peace—and first in the hearts of his countrymen, he was second to none in the humble and enduring scenes of private life; pious, just, humane, temperate, and sincere; uniform, dignified, and commanding, his example was as edifying to all around him as were the effects of that example lasting. To his equals he was condescending, to his inferiors kind, and to the dear object of his affections exemplarily tender; correct throughout, vice shuddered in his presence, and virtue always felt his fostering hand; the purity of his private character gave effulgence to his public virtues. His last scene comported with the whole tenor of his life—although in extreme pain, not a sigh, not a groan escaped him; and with undisturbed serenity he closed his well-spent life.”

The odd thing is, none of this was exaggerated. Even those who feared him for political reasons admitted as much. Nor was he honored only in America. In France, Napoleon, who was at the time First Consul of the French Republic, ordered 10 days of mourning.

Life, of course, went on. Within weeks, the republic would be bitterly engaged in the long presidential election campaign that would turn the Federalists out of office forever. The century was turning, and Washington was dead. It was the end of an era.


America’s Long Journey: Snapshot, 1800

A few of the most conspicuous differences between 1850 and 1800, looking backward:

* The 1800 census counted the population as 5,300,000 (4,400,000 free, 900,000 enslaved). Some of the states had abolished slavery, but it was not yet a contentious, sectional issue. Slavery was an institution that seemed clearly destined to wither and die, as soon as society could find a way to deal with the problems that would result. The new Americans did not yet think of themselves as primarily free or slave states, but – as they had done during England’s long colonial rule – as one of three well-recognized types of colonies — New England, the South, and the Middle colonies of New York, Pennsylvania, and New Jersey.

* The racial and ethnic composition of America was far simpler, being primarily British (English, Scottish, Welch, Scots-Irish) and German. Indians and slaves were, in a sense, invisible to their contemporaries; there, but not citizens.

* Andrew Jackson, Henry Clay, Samuel F.B. Morse, Francis Scott Key, Winfield Scott were names unknown. There was no railroad, no telegraph, no steam-driven travel by water. Communication was by mail or messenger, and transportation was by horse, boat, stagecoach or foot.

* The Union consisted of the original 13 states plus Vermont, Kentucky, and Tennessee. Its boundaries were compact and logical – to the East, the Atlantic, to the West, the Mississippi, to the North, British North America, to the South, East and West Florida. In 1800, nobody was dreaming of a republic stretching to the far Pacific. Given the difficulties of travel and trade across the Appalachians, it was still an open question whether the republic’s seacoast and interior sections could hold together in the long run.

& & &

In looking at the nineteenth century, we have covered a lot of territory. Here, just as a crib sheet, is a reminder of the ground we have traversed, in the order it occurred, rather than the order in which we covered it working our way back from the present.

The Election of 1800 – Jefferson’s revolution – Jefferson and Marshall – Great, forgotten, Gallatin – The shores of Tripoli – Louisiana Purchase, Louisiana adjustments – Burr – Lewis and Clark – The Embargo – Jefferson – John Adams’ Son – The War of 1812 – Westward movement – Jackson and Florida – The Panic of 1819 – The Missouri Compromise – “A Firebell in the night” – The Great Secretary of State – Denmark Vesey – The last New Englander – The Election of 1828 – Nat Turner’s long shadow – Turnpikes, canals, and steam – Jackson and the Bank – Jackson and nullification – Jackson and the Cherokee Removal – Democracy in America – Andrew Jackson – Old man eloquent – The Panic of 1837 – Tippecanoe and Tyler Too – The Republic of Texas – Sam Houston – The 1840s and Utopia – Abolition – The telegraph – The Mormon emigration – The Mexican War – California and gold – Compromise of 1850 – Uncle Tom’s Cabin – Mrs. Stowe and Mrs. Hentz – Whigs and Republicans – The politics of the house divided – Kansas-Nebraska Act of 1854 – Bleeding Kansas – Long-distance telegraph – Lincoln and Douglas – John Brown’s raid – The election of 1860 – Mr. Lincoln – A conflict of loyalties – The Civil War – The South in ruins – Race and Reconstruction – Vengeance – Transcontinental – Credit Mobilier and corruption – The North and the Gilded Age – Cowboys and Indians and nesters – Labor and antitrust and reform – Electricity – Telephone – Spanish American War.

An inadequate survey, of course, but perhaps better than nothing at all.


America’s Long Journey: The Election of 1800

The fratricidal election of 1800: Adams against Hamilton, Adams against Jefferson, Jefferson against Hamilton, Jefferson against Burr, Hamilton against Burr. It was an ugly mess, and perhaps it was as well that Washington had died the previous December, and was spared having to observe the sorry spectacle.

Adams against Hamilton In 1800, Adams nearly single-handedly prevented a de facto naval war with revolutionary France from escalating into full scale war. In the process, he fatally alienated his Federalist base. He knew it would, too, but Adams, being Adams, did what he thought right regardless of consequences. Rank and file Federalists approved, but the party leaders didn’t. They didn’t much like Adams, first to last. That year, finally, after suffering disloyalty and sabotage from within his own Cabinet for three years, Adams took steps. He requested and accepted the resignation of one disloyal Secretary and fired another, and for the first time a majority of his Cabinet was loyal to him rather than to Hamilton. The federalists couldn’t prevent his re-nomination, but they could, and did, sabotage his chances, hoping to obtain more votes for vice-presidential nominee Charles Pinckney than Adams received. Hamilton wrote a particularly scathing letter of criticism of Adams, which the Republicans obtained and promptly published. Whom the gods would destroy, they first make mad.

Adams against Jefferson. The two old friends were honest, public-spirited patriots, who had sacrificed a good bit of their lives to public service. From the time they met in Philadelphia in 1775, at the Second Continental Congress, through the years of the revolution and afterward, they had delighted in each other’s intellect and motivation and special abilities. But Jefferson was by nature a genial Southern optimist, Adams a dour New England pessimist, and their friendship did not escape the great polarization caused by the French Revolution. Adams thought many of Jefferson’s political and social ideas were dangerously impractical, and risked having the American revolution descend into the chaos that had followed the French. But even in the depths of their estrangement, Adams said, “I have always loved Jefferson.” It wasn’t a personal animus between the men, but a deep-set opposition of convictions, that parted them. Their followers, however, excelled in bitterness, and made all manner of vile accusations in the name of their supposed chiefs.

Jefferson against Hamilton. The man who had sat across from Hamilton in Washington’s first Cabinet had no doubt whose ideas and whose machinations were causing the republic to take the wrong course. Jefferson opposed centralization of power, and concentration of population in cities, and a continuing federal debt, and the build-up of a large military and naval establishment, and the internal taxes necessary to support it, and a foreign policy that seemed tilted toward the British and against the French. He opposed the Alien and Sedition Acts, and everything that looked like federal interference in the affairs of states or citizens. Many of the accusations made against Adams were in fact criticisms of Hamilton’s policies, continuing, so to speak, beyond the political grave. (That is, Hamilton was too controversial to be elected, but he had a political machine, and, as said, he had moles in the Adams cabinet.)

Jefferson against Burr. Burr ran on Jefferson’s ticket, and there wasn’t a voter in the country who didn’t know which man was nominated for president and which for vice president. But when the electoral college ballots were counted on February 11, 1801, Jefferson and Burr had 73 electoral votes apiece, John Adams 65 votes, Charles C. Pinckney 64. Burr, being Burr, couldn’t resist an opportunity to pull a fast one, and he tried to win in the House of Representatives, where each state had one vote, and nine votes (a majority of the 16 states) were required. Burr didn’t make merely a token effort, either. The Federalists who controlled the lame duck Congress, desperate to defeat Jefferson and seeing no chance of electing either Adams or Pinckney, threw their support behind Burr. (Is it any wonder that Washington hadn’t trusted Burr?)

Hamilton against Burr. This wasn’t a very happy election for Alexander Hamilton. His Federalist political machine in New York City opposed Adams, whom he had never liked, but at the same time he despised Jefferson’s political philosophy and feared for the country if he should come into power. And then, worse yet, Aaron Burr, who had a political machine of his own, was running for vice-president, and then was maneuvering to become president, and just might succeed. That was Hamilton’s worst nightmare. He detested Burr, distrusted him, feared him. Once it came down to Jefferson or Burr, Hamilton used all his influence with the Federalists to thwart Burr. After several days, and 36 ballots, several Federalists abstained from voting, thus breaking the tie and making Jefferson president. Burr became vice president, but he never doubted that it was Alexander Hamilton’s influence that ultimately defeated him. It was one more item on the scales of political and personal hatred that would end three years later in a fatal duel.

So now the ship of state would proceed on the opposite tack, and Thomas Jefferson would try his policies. For a good while, all would go well, and then, not so well, a pattern (though he could not know it) that would apply to most two-term presidents.

And honest, inner-directed John Adams had the satisfaction of knowing that he had done the right thing instead of the popular thing. Years later, he said that what he wanted on his tombstone was, “Here lies John Adams, who took upon himself the responsibility of Peace with France in the year 1800.”


America’s Long Journey: Jefferson’s revolution

When Thomas Jefferson took the oath of office on March 4, 1801, he was the focus of political hatred and fear run wild: The man was French at heart, in fact a Jacobin! He was an enemy of religion! He intended to set up guillotines in public squares! It was the end for people of property, the end to the rule of law! He was the “Negro President” because his majority depended on the slave states, each of which had been given an extra three-fifths of a man representation for every slave owned (and therefore, by implication, he wasn’t “really” the legitimate winner of the presidential contest).

We, of a later date, see that the fears were ludicrous, but they were real enough to induce honest, sensible John Adams to sign the Midnight Judges act in a desperate attempt to erect judiciary bulwarks against the incoming Jacobins. We, who have seen similar paroxysms of hatred and fear, are better able to understand this, perhaps, than generations who lived in more tranquil times.

Jefferson did all he could to calm the fears. Alluding to the names of the contending parties, he pointed out, “we are all republicans, we are all federalists.” But the opposition was not in the mood to accept reassurances. Rather than arguments, over the next eight years he gave them facts.

As mentioned in discussing Gallatin, the national debt when Jefferson assumed office was $83 million. He and Gallatin did what they could to replace Hamilton’s system with one stressing republican simplicity and economy. Jefferson said, “if this administration shall not reduce taxes, they never will be permanently reduced.” He initiated a policy of strictest economy, which allowed him to eliminate all internal federal taxes, subsisting on only tariffs as a source of revenue, and still, as noted earlier, in several years paid down a significant portion of the national debt.

He was fortunate in that England and France, in their eighth year of war, had not yet begun the interference with neutral shipping that would become so troubling in a few years. Jefferson inherited few foreign complications, and in 1802 England and France would sign a peace treaty. It would last only a year, but the respite helped. Meanwhile, there was enough to do domestically. He pardoned those who had been imprisoned under the Alien and Sedition Acts, which we will discuss, and got the acts repealed. He got the Judiciary Act of 1801 repealed, as well, thus removing nearly all of Adams’ midnight judges from office (and setting up Marbury v. Madison). He and Congress agreed to authorize the funding and construction of the U.S. Military Academy at West Point, on the Hudson River, as a national institution for military education, specifically a corps of engineers but in general to provide well-trained officers for a professional army.

On March 1, 1803, Ohio became the first state to enter the union from the Northwest Territory (between the Ohio and the Great Lakes). Because of the Northwest Ordinance – which Jefferson had authored in 1787 – it was the first state to enter the union with slavery legally prohibited in advance. Also in 1803, as we have seen, he purchased the Louisiana Territory, and then he sent Lewis and Clark to see what he had purchased.

Throughout all this time, people’s fears were gradually being allayed. The turning-out of one party and the turning-in of another – the first such overthrow in the nation’s history – had not resulted in proscriptions or prosecutions (let alone persecutions). There was no reign of terror, not even a wholesale supplanting of Federalist office holders with Republicans. There was no religious persecution, and somehow he and his party neglected to install guillotines in public places.

The result? Federalist leaders remained unreconciled, of course, but their followers melted away. In February, 1804, the Republican congressional caucus nominated Jefferson for a second term, to run with George Clinton of New York against Charles Pinckney of South Carolina. Jefferson could run on a platform of governmental economy, lower taxes, general prosperity, and the doubling of the country through the Louisiana Purchase. The result was a blowout, with 162 electoral votes for Jefferson and only 14 for Pinckney. What else could have been expected?

His second term would not be as successful, not as happy. The problems he would meet would be more difficult – some of them insoluble. There were a few achievements yet in store: In his annual message of December, 1806, he denounced the international slave trade, and called on Congress to criminalize it on the first day possible. (The Constitution had protected the slave trade for 20 years.) On the first day of his final full year in office, he was able to sign an act established severe punishment against the international trade. But such victories would be few.

Didn’t matter. In bringing forth a revolution without violence, in dissolving his opposition by showing the rank and file that their fears had been needless, he enabled the republic to take a giant step toward an enduring stability.


America’s Long Journey: Jefferson and Marshall

John Marshall was a Federalist politician, before and after he was named Chief Justice of the Supreme Court. This is the key to the 35-year-long duel between Marshall and the Democratic Republicans. The fact that he was a politician doesn’t mean he wasn’t also an excellent jurist; he was. But it is well to remember that, as a good Federalist, and the last one in high places, he had an agenda, all his long life.

Marshall was born in 1755, a dozen years after Jefferson, into a small community on Virginia’s frontier. He served as an officer in a Virginia regiment in the Continental army, then read law at William and Mary and in 1780 was admitted to the Bar and entered politics. From 1782 to 1789 and again from 1795 to 1796, he was an elected member of the Virginia House of Delegates. As a delegate to the Virginia convention, he helped lead the successful fight for ratification of the Constitution.

He was a lawyer and a politician, but apparently not a hungry one. In 1795, George Washington invited him to become Attorney General, and in 1796 offered to make him minister to France, but Marshall declined both proposals. However, in 1797 President John Adams appointed him to a three-member commission to France. There, Marshall and his fellow commissioners were told by three representatives of the French directory government that in order to negotiate, they would first have to pay bribes. They refused, and made the situation public, and Marshall’ returned to the United States with a national reputation. He declined a Supreme Court appointment, won a seat in the U.S. House of Representatives, and, in May, 1799, President Adams named him Secretary of State.

How and why he became the fourth Chief Justice of the Supreme Court will tell you everything you need to know about John Marshall’s bias in his 35-year tenure. When Adams lost the election of 1800, the lame-duck Federalist Congress passed an act allowing outgoing President Adams to name forty-two justices of the peace and sixteen circuit court justices for the District of Columbia, the so-called Midnight Judges. Adams signed their commissions — which were sealed by acting Secretary of State John Marshall! At the same time, Marshall was nominated to replace ailing Chief Justice Oliver Ellsworth, and as confirmed the same month. (He remained as Secretary of State, at Adams’ request, for the remaining few weeks of the president’s term.)

His 30-year tenure on the bench was distinguished and effective, no question. Marshall strove for consensus among the justices, arrived at via thorough and intimate discussion, rather than trying to impose his own views. His influence on learned men of the law is said to have come from his intelligence, his charismatic personality, his ability to bring men’s opinions together. and his ability to base strong legal arguments upon the key facts of a case.

Probably the most important case the Marshall court decided, Marbury v. Madison, came in 1803. In this case, Marshall managed at one and the same time to (a) give Jefferson a technical victory, and (b) declare that the administration had acted unconstitutionally, and (c) establish, by assertion, the notion of judicial review, and (d) provide the administration no ground to challenge the assertion. Quite an achievement, worth looking at.

The case involved the same Midnight Judges whose commissions Marshall had sealed as Secretary of State. (Nonetheless, he did not recuse himself from the case.) William Marbury was one of those whose commission Adams had signed, but which had not been delivered because time ran out on Adams’s term. Jefferson claimed that the commissions were invalid because they had not been delivered by the end of Adams’s term. Marbury asked the Court to compel Secretary of State James Madison to deliver the commissions, because the Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any courts appointed, or persons holding office, under the authority of the United States.”

Marshall knew that if he were to order the administration to deliver the commissions; Jefferson would ignore him (as did Andrew Jackson, a generation later). Instead, he made the case serve his own purposes. The Court ruled that the commission to Marbury did become effective when signed by President Adams, but that the Judiciary Act of 1789 that had granted the Court original (as opposed to appellate) jurisdiction in such cases was unconstitutional, in that it expand the scope of the Court’s original jurisdiction beyond what is specified in Article III of the Constitution. Therefore, the Court could not constitutionally hear Marbury’s complaint.

Pay no attention to the man behind the curtain! Thus he asserted the right of judicial review of the acts of the other two branches of the federal government.

After Marbury v. Madison, the three branches of the federal government were no longer equal. Now, the Court could overrule Congress, the President, the states, and all lower courts, strictly on its own say-so. Two centuries on, this idea is so well established that many people are unable to conceive of a Supreme Court without the power to overrule acts of Congress.

Let’s give Thomas Jefferson the last word in this argument. “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so…. Their power [is] the more dangerous as they are in office for life…. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Marshall is universally respected as a great Chief Justice, perhaps the greatest we have had. But that doesn’t mean that when he was named to the Court he was suddenly above politics, and it certainly doesn’t mean that he did not do all he could to counter Jefferson’s policies. In John Marshall, John Adams entrenched Federalist prejudices in the judiciary for 35 years, to that degree thwarting the will of the people as expressed in elections, and creating in the Court a branch of the government asserting that it and it alone was the ultimate arbiter of what was and was not constitutional. It wasn’t a fatal legacy, but it had its dangers.