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Interview with James F. Simon About Jefferson and Marshall

Mr. Simon, Martin Professor of Law and Dean Emeritus at New York Law School, is the author of What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (Simon & Schuster, 2003).

I read your book just after Tom DeLay began attacking the judiciary over the handling of the Schiavo case. I was struck by the similarities in his attacks on the judiciary and Thomas Jefferson's. You too? Like Jefferson, he believes the judiciary has become a haven for his political enemies.

Thomas Jefferson made some mistakes, but he was no Tom Delay. Actually, Jefferson was correct in thinking that the federal judiciary had become a haven for his political enemies. Thanks to last minute appointments by the lame duck President, John Adams, Jefferson took office at a time when members of the opposition party, the Federalists, dominated the judiciary. The same cannot be said for the federal judiciary today. In fact, most of the members of the U.S. Supreme Court were appointed by conservative Republican presidents. DeLay does not know much about constitutional history, even that of the last decade or so.

Did the Founding Fathers at the time of the drafting of the Constitution consider the independence of the judiciary vital?

Some of the Founding Fathers thought about the independence of the judiciary, most notably, Alexander Hamilton, but there was no consensus.

The conventional view is that John Marshall played a key role in establishing the independence of the judiciary. Does your account differ from the conventional view in any way? Does your book add to our knowledge on this subject?

Marshall certainly did play a key role in establishing the independence of the federal judiciary, more so than anyone else. I think my book demonstrates in detail just how brilliantly Marshall used the law, and his political instincts, to accomplish so much. I suppose one of the special features of my book is that I take Marshall out of the law books and place him in human and political context.

You take an interesting approach to the history of the early nation. Rather than focusing on the usual subjects--George Washington's establishment of a new government, John Adams's failures as president, the quasi-war with France--you focus on the test of wills between those two Virginia lawyers, Thomas Jefferson and John Marshall. How did you come to settle on this approach?

I settled on a book on Jefferson and Marshall because, as president and chief justice, the two played historic roles in the growth of the nation. The rivalry between the two men seemed to be a natural subject for a book on constitutional history.

The best example is Marbury v. Madison, the subject of a chapter in the book. Marbury, a loyal Federalist, had been given a judicial commission in the last days of the Adams Administration. The commission had not been delivered. Marbury brought suit against James Madison, Jefferson's Secretary of State, to have the commission delivered. John Marshall wrote his famous Marbury opinion, saying, on the merits, that Marbury deserved his commission. But Marshall also said that the Court did not have original jurisdiction of the case, because an act of Congress giving the Court jurisdiction was unconstitutional. In this way, Marshall avoided a confrontation with the Jefferson Administration, which the Court undoubtedly would have lost. Jefferson, then, had no reason to challenge the Marshall Court. But Marshall established the authority of judicial review of an act of Congress, establishing an important precedent still with us.

And while we're at it ... just why did you write this book? Was it because of anything happening in the current political environment?

I certainly was aware that the issues raised by Jefferson and Marshall resonated today. But I wrote the book because I thought the interplay between Jefferson and Marshall was fascinating.

Every once in awhile you make a veiled reference to the Rehnquist Court. Some might say you take a swipe at the Court. Do you hope readers will come away from your book with a new perspective on the Rehnquist Court? If so, what might that be?

I took what might be considered to be one swipe at the Rehnquist Court, and that was in the epilogue when I tried to imagine Jefferson’s reaction if the Marshall Court had tried to decide the contested election of 1800, as the Rehnquist Court effectively decided the 2000 presidential election. Beyond that, I don’t think I was presenting lessons on the Rehnquist Court except in so far as the issues in the early 19th century, e.g. federal-state relations, the independence of the judiciary, are still with us.

It's apparent you are not a fan of the Rehnquist Court--or at least of the doctrine of originalism propounded by Justice Scalia. What's wrong with originalism?

I don’t think I considered originalism on the Marshall Court except to suggest that it was then, and still is, difficult to know the original understanding of the Founders. I don’t think Marshall pretended to know the original understanding, and I don’t think Justice Scalia, or Justice Thomas, for that matter, are any more successful.

Is it strange to you that the book ends up celebrating one of the great conservatives of American history (I am referring of course to John Marshall)?

The term conservative is such a malleable term. Sure, Marshall was considered a conservative in his day, but that meant supporting broad power for the federal government, just the opposite of the meaning today. I don’t think labels are all that helpful when discussing truly great American judges. Marshall was certainly great, and so was Justice John Marshall Harlan, an Eisenhower appointee, who was both a political and judicial conservative. I try to concentrate on the decisions, not the politics.

It occurred to me while reading the book that a great "What If" would be: "What if Jefferson had won the struggle with Marshall?" Have you ever been tempted to try your hand at counterfactual history? How do you think the history of the country might have gone if Jefferson had won?

I think it is very hazardous to project into the future. Some have suggested that Jefferson’s states’ rights philosophy gave aid and comfort to the secessionist movement, and that theory might have some remote truth to it. But Jefferson was not a secessionist and to project his views forward several decades after his death is not, I think, a very useful exercise.