American Experiment (48 page)

Perhaps the best school for young Virginians was the commonwealth itself. If great leadership emerges out of pervasive social and political conflict, Virginia was an ideal breeding ground for future Presidents and congressmen. Fierce battles had raged between burgesses and royal governors over local autonomy, but the conflict dividing most Virginians most sharply during the late eighteenth century was the status of the Anglican establishment and, after it was disestablished, that of its successor, the Protestant Episcopal Church. Following years of struggle and frustration the dissenters managed to get lands given to the Episcopalians reclaimed—others said confiscated—by the state. But the dissenters were by no means united, except against the common “Anglican” enemy. Old-line Presbyterians, Methodists, and Baptists genteelly proselytized unbelievers and competed for constituents. New-Light Presbyterians and Separate Baptists, opposing the “establishments” in their own denominations, ranged the valleys seeking to restore Christians to the literal reading of the Bible. Regional conflicts—especially between piedmont and tidewater—variously sharpened and cut cross the religious ones. Polemical and partisan newspapers amplified these and other voices of dissent. And a generation after the War of Independence echoes of the fierce Revolutionary disputes in Virginia had not wholly died away.

Exposed to an environment of conflict, these proud, educated, opinionated, and articulate men did not fit easily into two political and
intellectual camps called Republican and Federalist. They divided, intersected, and overlapped to the degree that almost every Virginian politician-intellectual made up a party of one. But a rough four-party pattern emerged out of the bi-factional divisions within each party. The followers of Jefferson and Madison and Monroe dominated Republican politics and maintained a powerful base there for half a century, but this presidential and congressional leadership, modifying its ancient principles to meet day-to-day exigencies, faced mounting opposition from the “pure” Republicans headed by John Randolph, John Taylor, William Branch Giles, and many others. They felt pure because they had stuck to the ancient faith of minimal government as
the
means of protecting liberty, of strict construction of the Constitution, of states’ rights, of legislative supremacy over both executive and judicial branches and state militias over standing armies, all embedded in agrarianism as a way of life and anti-mercantilism as a way of thought. The Republican establishment in Virginia often feared the polemics of these adversaries, variously called the old Republicans, radicals, or the Quids or Tertium Quids, more than that of the Federalists.

Leader of the Quids was one of the most extraordinary figures in American politics, John Randolph of Roanoke. Having survived at nineteen a mysterious illness that left him impotent and beardless, with a rich soprano voice, he seemed to compensate with clothes of Revolutionary buff and blue, his superb aplomb as he swaggered through the halls of Congress booted and spurred and whip in hand, and above all his devastating oratory. “For hours on end his shrill but flute-like voice irritated and fascinated,” Dumas Malone wrote, “pouring upon his audience shafts of biting wit, literary allusions, epigrams, parables, and figures of speech redolent of the countryside.” His meteoric rise in the House of Representatives had been matched by a hard fall, as he turned against the Jefferson circle and later lost his seat to Jefferson’s nephew, John W. Eppes. Randolph was a man of contradictions: scion of a great aristocratic family but dwelling in a rather shabby house, possessor of several hundred slaves on 8,ooo acres but knowing in his heart that slavery was wrong, yearning for the land and home he loved but often lonely and miserable there, and sodden with drink. But on one matter Randolph was consistent: he took and clung to the most extreme view of liberty as personal independence and autonomy, as a jewel to be protected against power and corruption and the temptations of office, as a sacred right to be free of “all encroachment, State or Federal…” He summed up his philosophy in six words: “I love liberty, I hate equality.”

At the opposite end of the Virginia spectrum sat John Marshall, in the middle of the high bench. During the years after
Marbury
the Chief Justice
assumed just the judicial posture that his Federalist mentors would have hoped for. Where Randolph virtually equated liberty with states’ rights, Marshall took a broadly expansive view of national power. In a long series of decisions he led the court to a broad construction of the Constitution. In
M’Culloch
v.
Maryland
in 1819, he not only struck down a Maryland law that taxed the Baltimore branch of the Second United States Bank; he proclaimed that the powers of the national government were derived from the people and were directly exercised on them, that the powers of the national government were supreme within the orbit assigned to it, and opined—echoing Hamilton years earlier—“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” In
Gibbons
v.
Ogden
five years later, Marshall and his court voided a monopoly granted by New York for operation of steamboats between New York and New Jersey and broadly interpreted the nature and scope of congressional power under the commerce clause. That power, he said, “does not stop at the jurisdictional lines of the several states.” For Randolph and his fellow Quids the worst of it was that, while they had to throw themselves on the mercy of the voters every two years or so, John Marshall sat there blandly issuing these nationalistic decisions—and could do so for life.

On the whirling merry-go-round of American politics, sometimes a congressman could strike back at a President, only to be countered in turn by a Chief Justice. Such was the case with Randolph, Marshall, and Jefferson in the seamy affair of the Yazoo land fraud. In 1796 the Georgia legislature had revoked a grant of 35 million acres in its unorganized western territories along the Yazoo River, charging that the land companies receiving the land had bribed legislators into voting for it. After Georgia ceded the territories to the federal government, the Yazoo claims fell to President Jefferson and Secretary of State Madison. The two Virginians preferred to settle with the politically powerful New England land companies that had bought the disputed titles; in the House, however, John Randolph rose in his wrath. Denouncing the pro-Yazooists as “unblushing advocates of unblushing corruption”—and privately relishing the slap he administered to Madison and, indirectly, to Jefferson—Randolph stopped bills to compensate the claimants in three sessions of Congress.

In desperation, the Yazooists turned to the third branch of the government. One of the claimants brought against another a suit so contrived as to test all the questions involved in Georgia’s repeal of the grant. A stellar lineup of Federalists argued this case of
Fletcher
v.
Peck
before the high Federalist Chief Justice Marshall. John Quincy Adams, Robert Goodloe
Harper, and Joseph Story presented the Yazooist arguments; Luther Martin, tacitly in sympathy with his opponents, made a weak case for Georgia—and was so drunk, to boot, that the court had to be adjourned until he sobered up. But for all the atmosphere of contrivance and force, John Marshall handed down a marble-sheathed decision. The land grants were contracts between Georgia and the land companies, he ruled, and the legislature had reneged on its part of the bargain. As a “member of the American Union,” Georgia was bound by Article I, section 10, of the Constitution, which forbids the passage of laws impairing the right of contract. Georgia could not legally rescind the grants once they were made; the federal government would have to compensate the claimants. Defeated, Randolph could only rage—while Marshall, in ruling that states were bound by the contract clause of the national Constitution, erected another pillar of federal power in the temple of American law.

Standing at the extremes of Virginia’s political and ideological continuum, Randolph and Marshall had only small followings of their own. The tiny faction of disaffected men around Randolph shrank to an impotent remnant after their brief threat to party unity. John Marshall towered over his Federalist colleagues, who were successful mainly at winning minor offices when they won them at all. Far more potent in day-to-day Virginia politics were Jefferson and Madison’s combined followings, and the “Richmond Junto,” numbering such state and local leaders as William Wirt, Spencer Roane, Cary Nicholas, and Thomas Ritchie of the influential Richmond
Enquirer.
But the powerful appeals of Marshall and Randolph lived on far beyond them, and for generations constituted the heart of the debate about state versus national power.

The Virginia planter-politicians—much more than the activists in any other state—had taken a clear lead nationally in conceiving, framing, establishing, and inaugurating a radically new political system. They had tried an experiment in popular self-government, in “government by the people,” in republicanism—an experiment that inevitably turned into a series of particular experiments as new leaders took command in legislature, executive, and judiciary, and at various levels of governments. George Washington’s experiment in magisterial, consensual government, combined with executive leadership by an activist Cabinet, had been followed by John Adams’ venture in a government of presidential initiatives balanced by a gathering party opposition. Jefferson’s experiment in combined executive, legislative, and party leadership had given way to Madison’s frustrating experience with governmental and political checks and
balances—an experience he had anticipated in his
Federalist
papers. Monroe had tried a strategy of subordinating party spirit, only to be swallowed up in the bitter politics of a divisive factionalism. The states had been trying out new constitutions of their own.

Convinced that scientific inquiry could be applied to politics just as much as to physics or astronomy, political leaders in Virginia and other states closely monitored the governmental experiments taking place in the numerous laboratories of American politics. After fifty years of experience with revolution and revolutionary governments, including a period of weak national government and then the adoption and implementation of a new federal Constitution and a dozen or so state constitutions, the time might have seemed appropriate for an assessment of this experience. Indeed, such a reassessment might have been deemed urgent because, on the eve of the nation’s fiftieth birthday, constitutional and political questions of profound importance remained unresolved.

The most obvious of these questions was the central one around which the convention of 1787 had revolved—state versus federal power. On several occasions powerful regional groups—most notably Virginians and Kentuckians in 1798 and waterside Yankees in 1814-15—had challenged federal authority in a dramatic, even menacing fashion, but the political issues had been mediated by moderate men without any resolution of the burning question of whether states could ultimately challenge the moral and constitutional authority of the central government. The Constitution had proved flexible enough to accommodate some broadening of federal power—as in the establishment of a national bank—at least as the Supreme Court had interpreted that charter. But the actual division between federal and state power remained clouded. Few doubted that the usual economic and sectional issues would continue to be worked out by the ordinary processes of bargain and compromise. But what if issues of unusual intensity arose, requiring extraordinary leadership and decision? Already South Carolinians were beginning to be restive enough about past and prospective tariff policy to question federal authority and even to raise the specter of secession and disunion. A few warned that slavery itself might become such an issue.

The other key question that the Framers had faced in 1787—the distribution of power among separated departments of government—was in an equivalent state of indeterminacy after fifty years of experience. Once again the Constitution had shown itself marvelously adaptable to the shifting patterns of congressional and executive influence and interaction, from the executive leadership of Washington and Adams to the party leadership of Jefferson and Madison and the non-party rule of Monroe.
Certain constitutional provisions had been defined enough and agreed on enough to be foreclosed—for example, the absolute veto of the House and Senate over each other, and the power of the Supreme Court to invalidate congressional enactments signed by the President, as well as state legislation deemed unconstitutional.

But crucial questions remained open. The President’s veto power had hardly been used; was this to remain a weapon-in-waiting, to be employed only when the President’s own constitutional authority was threatened? The Supreme Court had long ago in
Marbury
vetoed an act of Congress and had got away with establishing this mighty precedent because the vetoed act gave minor power
to
the court; what would happen if the Supreme Court voided a major congressional act closely touching intensely flammable regional, economic, social, or political interests? Grave issues of checks and balances, moreover, often interacted closely with issues of states’ rights. What would happen, for example, if the power and prerogatives of a branch of the federal government, such as the Senate, were closely attached to the pride and interest of a major region?

Such issues had mainly been ignored. If the immediate reason for this evasion was political—the ability of politicians to defuse potentially explosive moral and constitutional issues by converting them into political and legal issues amenable to brokerage—the deeper reason was intellectual. The heirs of the 1820s to the creative political and constitutional leaders of the 1770s and 1780s were failing to live up to the intellectual vision of the founding fathers.

The main failure lay in the Jeffersonians’ reluctance to exploit the experience in actually running a republican government, in reassessing the theoretical and practical problem that had occupied them in framing the 1787 Constitution. That problem was the prevention of tyranny on the part of the rulers from within government and on the part of the people outside. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective,” Madison had written in
Federalist
47, “may justly be pronounced the very definition of tyranny.” He saw each problem as having a solution. Tyranny within the government could be curbed through putting pieces of governmental power—legislative, executive, and judicial—into separate hands: into Congress, the presidency, and the courts. Tyranny from outside the government—from aroused popular minorities or majorities—could be blocked by the social checks and balances resulting from “extending the republic” to cover a multiplicity of interests.