The Marshall Court's Objection to the Jeffersonians

Often underappreciated and understudied by the general reading public, the Jeffersonian era is indispensable for understanding American development. Kevin R.C. Gutzman has now written a definitive account of the period. He joins Liberty Law Talk to discuss. Read along with the transcript below.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

John Grove:

Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty. From 1800 through 1824, Americans elected and reelected three presidents from the same party, indeed from the same state, something that has never been done since. And for most of their time in office, Thomas Jefferson, James Madison, and James Monroe also enjoyed comfortable partisan majorities in Congress. The opposition party as an institution was destroyed, and in these years, America began a period of expansion and development. It struggled to develop a consistent foreign policy, continued to wrestle with fundamental constitutional questions, and saw the emergence of regional fault lines that would plague the rest of the century.

This fascinating period of history is the subject of Kevin R.C. Gutzman’s latest book, The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe. Gutzman is a Professor of History at Western Connecticut State University and is the author of several books, including Thomas Jefferson-Revolutionary, James Madison and The Making of America, and Virginia’s American Revolution. But today we’re going to be talking about his latest published this month, The Jeffersonians. Professor Gutzman, thanks for joining me.

Kevin Gutzman:

Happy to be here, John.

John Grove:

All right. So the revolution of 1800, seems we can look back at 1800 as a really pivotal moment in American history. Even at the time, though, people seem to recognize that this was something new, this was a kind of new era dawning. Jefferson, looking back a couple decades afterward, he says that the election of 1800 was as real a revolution in the principles of our government as that of ’76, not effected indeed by the sword as that one, but by the rational and peaceable instrument of reform, the suffrage of the people. So to start us off, where did the revolution of 1800 come from? Talk to us a little bit about the 1790s, where did this pivotal election come from, and what were the expectations for this new era?

Kevin Gutzman:

Well, the 1790s had seen what surprised most observers and most participants, the development of a two-party political system. And this was disappointing to members of both parties. The Jeffersonians in particular had thought that winning the American Revolution, especially Jefferson had thought winning the American Revolution had meant establishing a new kind of society with a new kind of government, one that was going to leave men more or less free to make their own way in the economy, one that would be decentralized so that even the average Joe who couldn’t, of course, be elected to Congress or be a cabinet officer, could still have more or less complete say over the way his own life worked. And yet the Federalists for their part thought apparently that what the American Revolution meant was that now Americans would have their own government, like European governments. And when the revolution of 1800 occurred, Jefferson believed, and more or less said in his first inaugural address that his view of the American Revolution had been vindicated, that the people had, at last, come to agree with him.

So he and his two close allies, Madison and Monroe, would over the following six presidential terms, try to implement essentially every element of what had been their partisan position in the 1790s. Much of it was wildly successful while other of it was a complete debacle. And somewhat surprisingly, there is, other than my new book, no account of it that takes it all as of a piece, even though people at the time understood these three consecutive two-term Virginia Republican presidents were all acting on the same platform. So what I hope I’ve done is give a coherent account of Jeffersonianism as implemented by these three presidents and their allies in Congress.

John Grove:

Wonderful. Yeah, a big part of that, of course, is constitutionalism and their vision of the American Constitution. Obviously, that’s of particular interest to a lot of our listeners and Law & Liberty readers. So I wanted to talk a little bit about, first the general Jeffersonian constitutional vision and ideals, and then a little bit about how some of those battles were fought over those years. And as you note throughout the book, even though a lot of the political battles were being won by the Jeffersonians, they weren’t necessarily winning the constitutional arguments all the time. So really famous line from Jefferson, “Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction”. How would you describe the Jeffersonian constitutional vision, at least in its ideal form, not necessarily in the way that it played out in practice?

Kevin Gutzman:

Well, my immediate preceding book was about Jefferson’s political program. And the chief principal in his political program after Republicanism, which of course was a given, was federalism, which was, as he once put it, that if there were a conflict between the federal government and the states, he would prefer the states. But then within a state, he would prefer counties, and within counties, he would prefer wards. And this gets back to the idea I mentioned earlier, that the average person couldn’t expect to be a cabinet officer or vice president or a senator, but he could hope to convince his neighbors that they had a common understanding of the way life ought to be lived. And so if the government was left largely decentralized, people in Massachusetts and people in Virginia who didn’t agree about political questions could all be happy because they could all be governed by their own neighbors.

And this is a principle that Jefferson and his two collaborators, successors took to heart that Jefferson said in his first inaugural address that this was going to be one of the chief alliances of his administration. And they went a long way toward making that central feature of their own constitutional practice. Of course, as you mentioned, it was the case that Jefferson bewailed, the Constitution didn’t allow any means for the voting majority to change the composition of federal courts. And so it was true that while the active government was decentralizing its activity, the federal judiciary was writing into what came to be called constitutional law, principles of centralization that we still live with. So if you study the Constitution in APUSH or as an undergraduate, or in law school, you start with Marbury versus Madison. And the next thing up was McCulloch versus Maryland, both of which of course are decisions from Jefferson’s cousin John Marshall in his court that Jefferson bewailed, he thought they were mistaken.

And he also saw that they, in the long run, were going to empower people to act against these principles that he helped so dear. So there is a poignant element to this, and I try to make clear in the book why it was that people like Marshall acted on these principles. That is John Marshall, Chief Justice and fellow Randolph to Jefferson. I try to make clear why he acted on these principles and why people like Jefferson thought they were just completely mistaken, that they meant essentially it was possible that in the future the US government could come to look like the Spanish government, or the Prussian government, or the British government.

John Grove:

Before we get into some of those specifics, I do want to get into some of the constitutional specifics. But one incident that strikes me as very important in the narrative that I’d say the average reader of American history doesn’t know a whole lot about is the impeachment of Samuel Chase. In fact, you even call this the high watermark of the Jefferson presidency, this attempt to impeach Samuel Chase. Of course, Federalists had been kind of packed into the federal courts all throughout Washington and Adams presidency, but even right at the very end, of course, which gave rise to the Marbury versus Madison case.

And so you had the Jeffersonians, the Republicans in the presidency, in Congress, but you had this really just Federalist bastion in the courts. And so one potential approach of the Republicans was to try to pull these people out by impeachment. And you just mentioned a minute ago that the Constitution doesn’t provide any method for the people to change the composition of the court except very, very long term as judges retire and pass away. So impeachment was one method that they tried to do. And so just tell us a little bit about the Samuel Chase impeachment and why that was so important and why you even suggest this was kind of a pivotal turning point in the presidency of Jefferson.

Kevin Gutzman:

Well, of course, Alexander Hamilton tried to assure people in the Federalists that the idea of giving federal judges good behavior tenure wasn’t that dangerous because the impeachment power would be available. And after Chase, who if he didn’t deserve to be removed from office in his impeachment trial, I can’t really quite imagine how a judge could deserve to be removed from office in an impeachment trial.

John Grove:

I noticed you were very upfront about that. Do you really think Chase deserved to be removed?

Kevin Gutzman:

I think he deserved to be removed from office, and actually, it’s come to be a kind of totem to which federal judges bow. So in their history, in the histories of the Supreme Court, both the late Justice Sandra Day and the late Chief Justice William Rehnquist, my all-time favorite associate Justice, said that the acquittal of Chase was essential to the establishment of American judicial authority. Well, okay, it was essential to establishing American judicial authority far beyond the policymaking discretion that the people who made the Constitution had in mind, I believe. But anyway, so what happened was this fellow Chase had been a complete partisan. He had acted as a partisan in giving grand jury charges. He essentially made political speeches when impaneling grand juries.

And then in one particular criminal case, he told a fellow before the grand jury was even impaneled, that when he got to Richmond, he would impanel the grand jury, the grand jury would indict this fellow, the fellow would be convicted, and then he would give him the sternest available sentence. Then how would you like a judge like that? It makes me think of Judge Roy Bean. And Chase was acquitted, and I show in the book that people gave explanations for their votes for acquittal to the effect that, well, John Randolph, who was the lead house prosecutor, lead impeachment agent from the house, had annoyed people in various other ways. And so they voted for acquittal to get back at Randolph, or in the case of John Quincy Adams, well, here was an old man who had served his country through his whole adult life, and how could you treat him this way? And just their votes for acquittal seemed to have had very little to do with the actual facts of the case, which were that the guy was just a hanging judge.

And besides that, he used his position on the bench to make political speeches. So if somebody like that couldn’t be removed from office in an impeachment trial, well, we’ve seen that there hasn’t been another impeachment of the Supreme Court justice since. And when he heard the result, President Jefferson said, well, impeachment is a mere scarecrow. It’s just an idea. It’s not going to be of any use to us at all. Whether Hamilton actually expected that when he was writing the aforementioned essay in The Federalist is an interesting question, but there’s your answer.

John Grove:

It’s always interesting. And when you teach undergraduates kind of just basic checks and balances, there’s always this question, well, what’s the check on the judicial branch? And there’s not a great answer to that, other than just, well, they’re going to be appointed by the other branches. But that’s a long-term process. And yeah, as you mentioned, impeachment-

Kevin Gutzman:

Well, later on in the book, we have the correspondence between former President Jefferson and Justice Johnson. And Jefferson says he doesn’t like the fact that the Marshall Court has come, or to concur in a common opinion because there are really only two checks on federal judges. One, he says is impeachment, and the other one is public opinion. And he says, if all the judges join in every majority opinion, or if they all join in a common opinion in every case, which is what had been going on term after term during the Marshall years, then there’s effectively no check on their behavior.

You can’t say anything to any of them. They can all disavow support for whatever case you’re criticizing or say, well, we have a kind of ethic on the court that we try to arrive at a common conclusion. So it was clear at the time, it was clear very early on in the history of the federal government that the judges could do more or less whatever they wanted. And we’ve come to be used to the idea that they can do more or less whatever they want. And this Jefferson called by different names from time to time, it made him very unhappy as you can imagine.

John Grove:

That correspondence was very interesting. I don’t think I’d come across that before. Which Supreme Court Justice was it again that he was of course-

Kevin Gutzman:

Johnson.

John Grove:

Johnson. Okay.

Kevin Gutzman:

William Johnson. Yeah. There’s an excellent book, I believe on the University of South Carolina Press from about 1958 called The Great Dissenter. It’s about Justice Johnson.

John Grove:

And Jefferson just say, Hey, throw some dissenting or concurring opinions in there. Let’s just get a little bit variety in there. If-

Kevin Gutzman:

Something amazing. Right. Let us know that there are different personalities on the court so that we can single out the greatest offenders. First, Johnson’s answer was, well, I’m not entirely certain that any of our major opinions have been wrong. Can you tell me which ones are wrong?

John Grove:

He had answers for that.

Kevin Gutzman:

And Jefferson was back to him with an endless group of descriptions of past product of the Supreme Court that he hadn’t approved of. And Johnson says, well, okay, I guess in the future I will dissent when I am in entire disagreement. And so he’s called the great dissenter, even though he would dissent once every term or maybe every other term. Nowadays, we expect them to have six opinions in every case. But in those days, it was effectively always just a common opinion, and Chief Justice would read it.

John Grove:

Yeah. So let’s talk about a few of those decisions that Jefferson thought was wrong. I think we’ll pass over Marbury vs Madison because I think almost all of our listeners will have a pretty good sense of what was going on there, but talk about some of these others. The other big-

Kevin Gutzman:

Well, just one thing to say about Marbury is nowadays people would agree that the Marshall’s behavior was incorrect, because today the first thing you have to do if you’re a plaintiff in a federal court, the first pleading has to be about jurisdiction. And so the judge would first address jurisdiction. And what made the Republicans so angry in Marbury was he started by giving a sermon about all the other questions in the case. And then he says, well, there’s this jurisdictional problem.

John Grove:

Right, at the very end.

Kevin Gutzman:

And finally, of course, the power of judicial review was established by the courts declaring that it didn’t have jurisdiction. In other words, it shouldn’t have gone to all those other questions. And that too seemed to the Republicans just to be a political speech.

John Grove:

That stood out too, as you get it from Jefferson, you get it from Spencer Rhone who wrote a lot of these essays against the Marshall Court. That big complaint is that the Marshall would regularly go out of his way to find these issues that he didn’t have to address in order to decide the legal question at issue, which did seem to be a characteristic. Yeah. Obviously the question of judicial review itself in Marbury versus Madison. You had the question about the necessary and proper clause, which was of course one of the most contentious issues over the ratification of the Constitution that comes up in McCulloch versus Maryland. You have the more difficult, conceptually difficult matter of the federal appellate jurisdiction. This one’s a little harder to follow for people who aren’t going to be knee-deep in the law of that period.

But the Martin versus Hunter’s Lessee, and Cohens versus Virginia, where he had this question of to what extent can the state judicial decisions then be brought over into the federal courts and overturned there? And then you had the commerce clause question in Gibbons versus Ogden. I mean, you can talk about all these, one of these, how did these kind of fit in, or why were these so objectionable to the Jeffersonians of these decisions that the Marshall Court was coming with? Of course, it’s cited on the favor of the federal government and the federal courts every time. Why were these so objectionable to the Jeffersonians?

Kevin Gutzman:

Well, a lot of them were just running entirely against their basic understanding of the constitution that it was supposed to have established a government with enumerated powers. So for example, take Cohens, Cohens is about Congress is establishing a lottery in the District of Columbia, and then the Cohen brothers were selling lottery tickets in Virginia where it was illegal. So the federal courts end up saying, well, they can do that because Congress established a lottery in the District of Columbia, even though there’s nothing in the Constitution that says Congress can establish a lottery in the District of Columbia. And even if there were, what would that have to do with selling tickets in Virginia? So that’s a kind of typical example of the way that the Federalist judges behaved in those earliest days.

Martin is another interesting case. Of course, if you’ve taken common law then you’re familiar with all of these cases, but if you haven’t, it may be news to you, but in Martin versus Hunter’s Lessee, what ended up happening was that the Supreme Court told what is now the Supreme Court of Virginia to send up the record of a particular case, and the chief judge of the Supreme Court of Virginia said, no, we’re not sending it. And they never did. So that was the end of it. So you’d say, well, that sounds kind of like, I don’t know, nullification. That was kind of what it was. But we end up with the case standing for the idea that the Supreme Court could tell the Supreme Court of Virginia what to do, which it certainly didn’t establish. That is the Supreme Court of Virginia never did what it was told. And the reason for this was that the chief judge had persuaded other people on the Virginia Supreme Court to understand the Constitution in Jefferson’s way.

This was a perfectly Jeffersonian judge, or one way of understanding that is it might show what kind of a federalism extremist Jefferson was because the two of them are in correspondence about this, and Jefferson is telling him, I agreed with every tittle of your series of newspaper editorials explaining your position against Marshall. And there are other cases, accord… I should say, there are other instances in which Jefferson took very extreme positions on Federalism, including at one point he suggested the death penalty for people who helped to enforce the first bank charter.

John Grove:

Seems a bit much.

Kevin Gutzman:

First federal bank charter in Virginia. Yeah. So these were all hot matters because as far as Jefferson was concerned, the American Revolution, first of all had established that Virginia was an independent country, and it had delegated some power to the federal government, but not power to come up with any kind of command it wanted to come up with. And that seemed to be some of these cases amounted to.

John Grove:

All right. See, it struck me that there were two themes that really divided the Republicans from the Federalists on these questions that came out in your narrative of it was one is the sense of always going back to would the people have ratified the Constitution if this had been understood? And that’s something that Ron went back to, and John Taylor, I think goes back to a few times, and Jefferson probably does that. If the people had thought that McCulloch versus Maryland was going to be decided the way it was, would they have ratified the Constitution with that understanding of the Constitution? And they kind of argued pretty persuasively probably that they probably wouldn’t have.

And then the other thing that struck me too is the sense that on the Federalist side, there’s this desire for uniformity that the Jeffersons don’t like. That a lot of the arguments come from these sense of, well, obviously if you want a system of government, you have to have this sort of unify… It has to be unified in a way, you have to have a final authority. And Jefferson did the jurisdiction cases. They’re kind of arguing that we have two separate judicial branches here. We have a state judicial system, we have a federal judicial system, and both of them are perfectly supreme in their own area, which of course doesn’t give you that uniformity. It gives you this multiplicity. And of course, the Federalists didn’t like that, but that seemed like a major theme that came out.

Kevin Gutzman:

That’s exactly what Ron says in Martin versus Hunter’s Lessee. Yeah.

John Grove:

Oh, wait, A couple of constitutional issues that come up, not in the Supreme Court, but just as a byproduct of national expansion. One is Jefferson, this is a famous one, of course, Jefferson’s decisions in making the Louisiana Purchase. And of course, foreign policy is a big part of this, the story and the Louisiana purchase, a huge part of Jefferson’s foreign policy. And he and his cabinet had some constitutional qualms about everything they were doing. What were some of the constitutional issues that came up with that question?

Kevin Gutzman:

Well, I don’t know about his cabinet. I think Jefferson was the only significant Republican who was opposed to the idea that the Louisiana Purchase was clearly constitutional. So essentially, for people who don’t know anything about it, what happened was that Jefferson had the idea, as he put it, that there is one spot on the map, the possessor of which must be an enemy of the United States, and that is New Orleans. So he had a minister, Livingston from New York in France, and then he sent James Monroe, who was a Jefferson lieutenant to join Livingston in France to try to purchase New Orleans. And the story goes that actually before Monroe even arrived, Talleyrand, the foreign minister of France, had said to Livingston, well, how about if I sell you all of Louisiana? And of course you can kind of imagine a diplomat faced with this wanting to keep a straight face and thinking this is beyond comprehension.

So he more or less agreed to it before Monroe even showed up. Well, that’s going to be an issue later on in the book when presidential candidate Monroe wants credit for this. But anyway, so that they sent word of the agreement that they had not handed any right to make that they had not been delegated power to make by the president or the Secretary of State and the purchase price, which was beyond the amount of money they’d been told they could spend. And when Secretary of State, Madison saw this communication, he was ecstatic. He thought this was wonderful. And so far as I can tell, the only significant Republican who didn’t think it was wonderful was Jefferson. And Jefferson, as far as I know, was the only significant Republican who thought there was a constitutional problem.

Now that later on, John Quincy Adams is going to give evidence that he had thought there was a constitutional problem. But he of course was never actually a Republican. So anyway, the first Jefferson says, well, what we’re going to need to do is we’re going to have to have the states ratify a constitutional amendment, empowering the executive to enter into a purchase of territory like this. And Madison’s position is Article 2 of the Constitution says that the president can make treaties with the advice and consent of the Senate. And since it’s not specific, that has to include all common kinds of treaties, which would include treaties of alliance, treaties of peace. Nowadays, it wouldn’t include, but in those days it would include treaties to buy and sell territory, which nowadays are virtually unknown, but in those days, were common. So Madison thinks this is not a problem. And anyway, Jefferson drafts an amendment, Madison scribbles about an amendment, and eventually Madison talks him out of doing this because they get a letter from Livingston.

While this debate has just started among Jefferson’s advisors saying, Napoleon is talking about rescinding this agreement, he’s already thinking this was a bad idea, so you better hurry up. Now if we can wonder whether Napoleon really was thinking about doing that, or he just wanted to hurry up and get his money. But in any event, Jefferson finally decided, I’m going to have to do what the executive occasionally will have to do, which is just take advantage of a fleeting opportunity and hope the people forgive me. So that’s what ended up happening it. But Jefferson, I think was never persuaded that it had been exactly kosher, but as I said, I can’t identify any other top Republican even sticklers that Randolph tailored, none of them complained.

John Grove:

That’s interesting. Yeah. Of course, the expansion. The addition of territory, the creation of new states, obviously would go on to be quite significant constitutional and political issues.

Kevin Gutzman:

Well, people in New England, apparently Federalists at the time thought what this did was transform the union. And while the states had agreed to enter into the union among the original states, when they had ratified the Constitution, they had not agreed to this. So some of them thought it was unconstitutional. But as I say, the Republicans, as far as I can tell, Jefferson was the only significant one who had any constitutional questions about it.

John Grove:

All right. Let’s talk a little bit about foreign policy. And of course, the big foreign policy blot in the middle of this timeframe is the war of 1812. So I thought we were talking about that in a little bit in the big picture. One thing that’s interesting is that the Jeffersonian vision, if you can call it that, had some distinct ideas about foreign policy, about how you carry out foreign policy. At one point you even say of Madison, that today almost everybody would take his common sense to the idea that the best way to avoid war is to prepare for it. And you say Jefferson basically rejected that premise. What was his general idea about how foreign policy was going to be carried out? He had a skepticism of standing armies and navies. How did he think America was going to make its way in the world?

Kevin Gutzman:

Well, as far back as the early 1780s, Madison had the idea that Europeans were dependent upon American food supplies. And so America could use economic coercion to some extent in foreign policy. And I think what happened was that Madison persuaded Jefferson of this. So what we end up with is in the first inaugural address, his countering the general perception that America had a weak government with the famous statement that, no, it’s actually the strongest government in the world. It’s the only one which if endangered the people would fly to the colors to defend. So he had this idea, he let the wish be further to the belief that, well, we don’t have to make any serious preparation for war at all. In fact, when they were thinking about who should be in the cabinet, he chose Albert Gallatin to be treasury secretary, and Gallatin had earned his stripes in Congress by being the chief enemy of Navy spending.

And often nowadays, you hear people, especially Libertarians, talk about Andrew Jackson. Well, what can you say that’s positive about Andrew Jackson? He paid off the debt. He paid off the debt on exactly the date that Albert Gallatin’s program called for finally extinguishing the debt. That is during the Jefferson administration they had started the process that culminated in the Jackson administration, and well, was this safe in a world that was at war, in a world in which the two great powers and most of the secondary powers were involved in this gigantic war? Napoleon had a population of 25 million Frenchmen, and 3 million were at arms. That was the most populous country in Europe, and 12% of its population were soldiers. And Jefferson thought, we don’t really need a Navy. So it just was… Well, again, I think the idea originated with Madison and Jefferson of course was a ready audience for most things Madison said, but in this case it went along with his own wishes.

So what’s the result? Well, the result is a foreign army burns down the Capitol, and the White House, Treasury Department, State Department, War Department. They saved one office because the French minister in Washington saw that the British were about to burn this office, and he said to the commanding general of the British forces, you should leave this patent office. Don’t burn it. That’s not just for Americans, that’s for the whole world. So today, if you go to Washington, you can ask on a tour of the White House to see the smoke stains. There’s still smoke stains in the building, and you can see the old patent office, but there aren’t any other offices that old because the British destroyed them all. This was a predictable result of the foreign policy of the Republicans, I think. There are other things that played into it too. In other words, there were opportunities to prevent so dire and outcome, but Madison missed those as well. I described that in the book too, and we end up with this just hideous result.

John Grove:

Do you think coming face-to-face with those sort of geopolitical realities, do you think that altered the ideological trajectory of the Republican Party at all?

Kevin Gutzman:

Well, when Monroe becomes president, he decides to recapitulate one of the main things Washington had done as president, which was to tour the country and inspect the defenses of the country. So there are these three tours that Monroe undertakes, and there is substantial spending on especially seaside defenses. But part of the reason why Washington ended up being taken by this foreign force was that Madison, first of all, appointed people who were totally unfit to be his war and Navy secretaries. And then when he replaced the war secretary, he got a fellow named Armstrong, who of course had been involved in the revolution with trying to overthrow the civilian government of the United States. And he told him, prepare the approaches, and then he didn’t.

Several months later, he told him again, have you prepare the approaches? Have you done anything about that? The guy said, no, don’t worry. The British will never try to come to Washington DC. If they come up to Chesapeake, their target will be Baltimore. So Madison does nothing about that, and eventually, as I say, the foreign army does march into Washington and burn down all the major government buildings.

John Grove:

There are a few interesting and I think, underappreciated figures that play large roles in the book below the level of presidency, below of course, Jefferson, Madison, and Monroe. I just wonder if you just say a few words about some of these people and why it’s important to know about their contributions. One, you just mentioned, Albert Gallatin, he strikes me, especially in the first half of the book, really, he’s one of the… There are a couple people that always seem to be, when you need somebody who actually has his head on his shoulders a little bit, go find this guy. And he seemed like one of them. What was Albert Gallatin’s contribution?

Kevin Gutzman:

Well, Gallatin was a brilliant fellow. He was the one Jeffersonian in the 90s who could argue financial matters against Hamilton, essentially. He was very unusual for a top American politician in that he had been born in Geneva. His family name was actually Gallatin, it was Italian, and his ancestors had been among the founders of Geneva. And then over the previous three centuries, there had been five chief executives of Geneva who were Gallatin’s ancestors. I don’t mean collateral relations, I mean actual ancestors. And then his mother’s maiden name was du Rosey. So on both sides of the family, he was from European nobility. And there’s a famous kind of potted saying among historians, Dukes don’t immigrate, well, Albert Gallatin’s, the exception, he had nobles on both sides. He went to the best schools Switzerland had to offer, and then he got to be a young man, and he decided, this place is boring, I’m going to go to America.

And so he got a friend of his, and they came to North America, and he didn’t speak English, and he ended up teaching French at Harvard. And then after he’d been there for a while, he decided, well, this is kind of boring too. And finally, he made his home in western Pennsylvania. I need to think, well, that doesn’t really sound like an antidote to boredom, but in western Pennsylvania, he ended up in the center of the Whiskey Rebellion. And when Hamilton led that army out there, he actually asked people where Gallatin was, because apparently, he intended to hang him, and that didn’t happen. But Gallatin soon found himself in the lower house of Pennsylvania’s legislature and then in the upper house and then in Congress and everywhere he went, people couldn’t avoid the fact that although he was very odd looking, he was extremely bright, and an obvious person for Jefferson to put in his cabinet.

Not only given Jefferson’s intention to pay off the debt but just as a general advisor. And Jefferson repeatedly said things like, in eight years we never had a single significant argument in the cabinet. We would talk about whatever the problem was, but nobody got angry. It just worked really well. And Madison was a kind of brilliant but retiring personality, and apparently, Gallatin got along with the two of them that way too. So those three fellows really are the ones I think who ran the Jefferson administration. And he is a very interesting guy. Actually, nowadays, oddly, if you go to Trinity Churchyard in Manhattan to see the monument, Alexander Hamilton over his grave, if you’re standing there looking at it in turn about, I don’t know, about 135 degrees to your right, you’ll see Albert Gallatin’s grave. So they’re buried within about 10 steps of each other.

John Grove:

Yeah, it’s interesting. For as contentious as our politics is today, there were a lot of incidents of major political figures either threatening or actually killing one another in the early republic. So another figure brings up not so much a friend to the Jeffersonians, at least after the first few years, John Randolph of Roanoke, comes up over and over again. One of these old Republicans who I think it was is either, it’s either Randolph or Taylor that is described as more Jeffersonian than Jefferson.

Kevin Gutzman:

Well, I think I describe Randolph that way.

John Grove:

Okay, yeah.

Kevin Gutzman:

Randolph, just like Gallatin, is amazingly brilliant, but his personality is totally different. So you could be in a room with Gallatin, I guess for hours and not realize he was there. And I don’t think you could be in a room with Randolph for five seconds and not know that he was there. And apparently, he didn’t have control of his mind exactly. It would just produce thoughts, and it would produce positions, and he would just volcano-like emit brilliant statements, and they would float in the air and people would walk out of the room. And he was ultimately dissatisfied with the Jefferson administration because he didn’t think it had been Jeffersonian enough. And he blamed that on Madison, which probably there was a root of accuracy in that. I mean, there was a knob of accuracy in that.

John Grove:

And it’s always interesting to see that a lot of the old Republicans right around Madison’s election they gravitated around Monroe. But then by the time Monroe actually gets to the presidency, Monroe’s much more like Madison than he is like-

Kevin Gutzman:

Well, Monroe actually… Of course there’s a story in the book about the evening that Randolph realized that Monroe had betrayed him, and he wrote in his diary, the date, Richmond, Virginia, James Monroe, traitor.

John Grove:

I remember that. Yeah.

Kevin Gutzman:

So some people are more principled than practical, and here we’re looking at a continuum. I guess Jefferson is probably the second most principled of the four guys, and Madison’s probably the most practical of those four guys.

John Grove:

Well, on that theme, really, so a good way to wrap up the conversation is the Democratic Republican Party, the Jeffersonian Party kind of merged in the 1790s as an opposition party. So being an opposition to those in power, of course they’re drawing all sorts of inspiration from English opposition, tradition, but then all of a sudden you’re the opposition in power. So that’s always been a conceptual question about the Jeffersonians. Can an opposition party then take power and govern effectively and still maintain the same identity? Of course, people like Randolph were saying, no, the identity has been lost. I kind of get the sense, the way you end the book, I won’t give away the last line, but the last line is maybe kind of suggestive that by the time they had several years of governing under their belt, they had really evolved and changed into a very different party.

Kevin Gutzman:

That gets to the question how Jeffersonian were Madison and Monroe. I think that one significant distinction among these people is that Madison didn’t have independent executive experience before he became president. The other guys have been governor, and in Virginia that had real authority. The book, after I’d start with a significantly long consideration of Jefferson’s first inaugural address, which I think again, laid out the program, they were all three going to follow, I describe events around Richmond as the election was impending, and Monroe has to make independent decisions that are going to be very important.

Madison really never had that experience until he was president, and it’s not clear, as I was hinting before, I don’t think it’s clear that he really was, I don’t know why that goes so far as to say competent to making executive decisions, but he certainly was not expert at coming to final conclusions. He was more of a debater than an actor, I think. So that’s a distinction among them, but I don’t know how much I would say the party had changed by the time in Monroe was president, he still favored slight spending, concentration of authority in the state governments instead of in the federal government. He didn’t want to have a significant military, although he’d learned the lesson that the Madisonian idea of economic coercion was a flop. So I would say that all three of them were Jeffersonian, really. I think they were.

John Grove:

What gives way then to John Quincy Adams, which you suggested not a Republican, so-

Kevin Gutzman:

No, that’s different. He’s a bird of another color. He never-

John Grove:

A Federalist revived or?

Kevin Gutzman:

After he quit the Federalist Party, he never said he was a Republican, but he never said he was a Federalist again either, so. In fact, I think he may have said that he was neither. On the other hand, I don’t think his father would’ve been uncomfortable with his program.

John Grove:

All right. Well, Kevin Gutzman, thanks so much for joining us and talking about this is a really fascinating period of American history. I do sense, I think a lot of people who are well-read in the founding era sometimes the knowledge just kind of drops off at 1800. There’s the big election of 1800, and then a few things happen. But this book really, really fascinating book. It’s thorough, it’s also entertaining. There are lots of little nuggets, some of them very, very funny nuggets. And so it’s out now, highly recommended. Thanks so much for joining us.

Kevin Gutzman:

You’re welcome.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.