By Linda Stamato
President Thomas Jefferson (Steven Edenbo) faced off against Chief Justice John Marshall (Doug Thomas) on Sunday, in a spirited debate between bitter enemies that sounded themes from their time that continue to divide our nation today.
Speaking at the Morristown National Historical Park, Jefferson expressed disdain for “any form of government that is distant from the people it was meant to serve.”
Marshall defended a strong central government that “reflects the will of the people,” to better meet its needs.
Jefferson saw the states as constituting a fourth branch of government and wanted states’ rights to be preeminent.
Marshall emphasized the checks and balances provided by three branches and the constitutionality and, even, practicality, of a “united states” as one nation.
A weak nation, in Marshall’s view, tends toward corruption and can’t support and sustain its people. For the chief justice, the words “We, the people” had clear meaning and intention; it was not, he said, “We, the states.”
Jefferson and Marshall even disagreed on the interpretation of the nation’s motto: E Pluribus Unum. For Jefferson, the emphasis is on pluribus; for Marshall, it’s unum.
The audience was treated to a brief historical context as each of the actors introduced his character, gave his own life story, and provided insight into the experiences that shaped his character’s views.
Not least, Marshall had served in the Continental Army and fought in the Revolutionary War. Jefferson had not, nor had he seen, first-hand, the suffering and death of the troops. Marshall remarked, in a barbed aside that Jefferson preferred being in Paris.
The characters chose to mention things about themselves in their introduction that stand out: Marshall mentioned that he participated in more than 1,000 cases and wrote the decisions in more than 500 of them.
Jefferson made sure that we understood that he cared little for the titles he had during his lifetime—“the burdens of power” he called them—and wanted to be remembered for three contributions to society: As the writer of the Declaration of Independence and the Virginia Statute for Religious Freedom (about both freedom of conscience and the principle of separation of church and state) and, too, as the founder of the University of Virginia.
A few pointers that have a contemporary resonance: President John Adams made appointments to the federal judiciary in the waning days of his presidency, including William Marbury, one of several Federalists.
In short, Jefferson objected to those appointed (without papers of commission) taking their seats; Marshall saw the matter quite differently.
(In our time, President Obama nominated Merrick Garland to serve on the Supreme Court and Senator Mitch McConnell, objecting to an appointment, he said, in the final year of a presidency, held that the president should refrain from doing so and refused to hold a vote on Garland’s appointment.)
Jefferson and Marshall argued about the legitimacy of Marbury v. Madison (1803). This decision established the principle of judicial review, meaning that American courts have the power to strike down laws, statutes, and some government actions that violate the Constitution.
With this, and subsequent decisions, John Marshall elevated the judiciary, making it a full-fledged third branch of government.
Marshall’s court recognized the constitutional limits on a chief executive to change laws, seeing the Constitution as fundamental law, above all other laws, changeable only by hard-to-secure amendments and firmly established, and vigorously defended, the principle of judicial review (with Jefferson challenging its legitimacy).
The role of judges came under close scrutiny with discussion of the Invalid Pension Act of 1792 that gave administrative authority to circuit courts, allowing them to sit in judgment of applications for pensions for disabilities incurred during the Revolutionary War.
Marshall objected, seeing this role as inappropriate for judges. We face similar challenges today when judges “oversee” remedies for school segregation or housing discrimination and come close to (and, for some, cross the line into) managing the implementation of court decisions.
Jefferson and Marshall asked questions of the audience, challenging myths and testing citizens civic knowledge, particularly of clauses in the Constitution. And they were asked questions as well: How did Marshall’s wife react to his appointment as Chief Justice? How many slaves did you own, Mr. Jefferson?
The debaters returned at the end to the major theme that occupied much of their political and judicial lives: The rights of states vs. the centrality of the union, the national government.
There was no request for a show of hands at the end but it felt as though Marshall’s view would prevail with this audience. The Founders’ checks and balances along with their understandable fear of tyranny would support Marshall’s view as well.
Just before ending, Jefferson and Marshall diverted to a discussion of the trial of Aaron Burr and the subject of treason. Marshall observed that treason is so precisely and narrowly defined in the Constitution that it can’t be overused.
At the same time, it was abundantly clear to this jurist that a president must answer to the rule of law. In contemporary parlance, it’s this: “No one, not even the president, is above the law.”
The crowd applauded, of course, and in doing so expressed gratitude for the actors’ performances and for the lasting, contributions of these great men.
The actors are part of the American Historical Theatre, a group of actors that seek to educate, entertain and inspire by telling the tales of the heroes and heroines of our nation’s political and cultural past.