The Framers, very cognizant of history, sought to frame a constitution that successfully balanced self-government and liberty.
Of all the leading Jeffersonians of the early Republic—Jefferson, Madison, John Randolph of Roanoke, and John Taylor of Caroline—Spencer Roane is arguably the most obscure. This obscurity is lamentable because while Jefferson and Madison built and led their party, and Randolph defended it with colorful and memorable bromides on the floors of Congress, and Taylor preached it to the masses by publishing treatises, Roane served as the Jeffersonian’s judge. A member of the Virginia Court of Appeals from 1795 to his death in 1822, Roane’s ardent defense of state sovereignty and Jeffersonian republicanism rub against the traditional story of early nineteenth-century American constitutional and jurisprudential history. That story fêtes the “Great” and “Heroic” Chief Justice John Marshall as the progenitor of modern American constitutionalism, riding his quadriga of constitutional nationalism in triumph while vanquishing his foes into “a deep and dark historical twilight.” Roane’s defense of Jeffersonian principles, so the story continues, represented one of the last significant gasps of strict construction and state sovereignty before becoming the crude and moldy relic of Southern opposition.
David Johnson’s excellent Irreconcilable Founders: Spencer Roane, John Marshall, and the Nature of America’s Constitutional Republic, offers a corrective to that account. In the first book-length treatment of Roane ever published, Johnson, a judge of the circuit court of Chesterfield County, Virginia, recovers a deeply learned but temperamentally thinned-skinned jurist who shared the Jeffersonian belief in “swearing eternal hostility to all forms of tyranny and acted accordingly.” Johnson’s detailed account of Roane’s constitutional thought and political and judicial career offers a compelling case that the Virginia judge deserves to be placed at the center of Jeffersonian republicanism. In defending Jeffersonianism, Roane lacked the idiosyncrasies of Randolph, proved more politically able than Taylor, and was every bit the intellectual equal of Jefferson and Madison.
The Jeffersonian Jurist
The Roane that leaps from the pages of Johnson’s book was a devout Virginian republican who dedicated his political and judicial career to preserving the birthright of the Revolution: the sovereignty of the people of the several states and the republican liberty that came with self-government. Roane exhibited an acute sensitivity, even quick-temperedness, to potential threats to those principles and defended them from all challengers, whether friend or foe. As early as 1783, as a recently elected member of the Virginian House of Delegates, Roane vigorously supported disestablishment and the right of Virginians to religious conscience, directly challenging his future father-in-law (and hero), Patrick Henry. In 1788, Roane joined Henry in opposition to the Constitution, believing the document was insufficiently protected state sovereignty. Roane’s primary contribution to the ratification struggle came with his “Plain Dealer” essay, a scathing attack on Edmund Randolph’s switch from being a non-signer of the Constitution to an open advocate of ratification.
Starting in 1789, Roane spent the rest of his career as a judge on various Virginian courts. In 1795, he joined the Virginia Court of Appeals, the highest court in the Commonwealth. Trained in the law by the famous lawyer and legal educator George Wythe, Roane never considered the judiciary a quasi-legislature or an instrument for social change. For Roane, the letter of the law “always tempered” the spirit of the law. At the same time, Roane emerged as an ardent advocate of judicial independence. In the 1793 case of Kemper v. Hawkins, in which the Virginia legislature combined several of the Commonwealth’s courts into one, Judge Roane invoked judicial review to declare the act a violation of the Commonwealth’s constitutional protection of the separation of powers.
Perhaps the best example of Roane’s judicial philosophy came in Pleasants v. Pleasants, the largest manumission case in American history. This complicated case of testamentary manumission originated with John Pleasants’ will of 1771. Because Virginia law prohibited manumission, Pleasants willed his slaves to his children on condition that, should Virginia ever allow manumission, his slaves should be freed at the age of thirty. In 1782, Virginia adopted legislation that allowed for the manumission of slaves. When the devisees of Pleasant’s estate refused to free the slaves, Robert Pleasants, the executor of his father’s will, filed suit. In an opinion written by Wythe, the Virginian Chancery Court ruled in favor of manumitting the slaves and ordered the slaves to be compensated for the years they remained enslaved against the wishes of Pleasant’s will. When the devisees appealed to the Virginian Court of Appeals, Roane authored the Court’s opinion. His opinion in favor of manumission held that Virginia’s manumission law met the conditions of Pleasants’ will and thus the slaves should be freed. At the same time, he overruled Wythe’s order to compensate the slaves, as nothing in Anglo-American law or precedent permitted it. Thus, as Johnson concludes, Roane’s opinion did not originate out of the “language of revolution” or even his personal belief in the “irremediable evil” of slavery. Rather, “he based his support for emancipation squarely within existing law.”
One of the most important elements of Johnson’s work is his revealing the level of Judge Roane’s political activities in Virginia. In the first decades of the nineteenth century, Roane emerged as the unofficial leader of the loosely-knitted “Richmond Junto,” which, by 1820, wielded “almost complete control of Virginian politics.” It was also during these decades that Roane forged his close relationships with the great Virginian triumvirate of Jefferson, Madison, and especially Monroe, who, as president, often sought Roane’s advice on constitutional questions. Perhaps the most interesting part of Johnson’s discussion of Roane’s political life is his debunking of the familiar story that President Jefferson desired Roane for the position of Chief Justice of the Supreme Court. The standard view holds that Jefferson longed to install Roane as the Chief Justice, but the shenanigans of the Federalists’ “midnight appointment” of John Marshall denied him that opportunity. Johnson notes that there is no actual evidence that either Jefferson or Roane considered or desired the position. In addition, both men considered the Supreme Court a foreign court and Virginia their country and thus “likely viewed [an] appointment to the United States Supreme Court as a step down from the Virginia Court of Appeals.” In fact, when a vacancy did open on the Court during Jefferson’s tenure, he never considered Roane for the position.
The Clash with Marshall
The real heart of Irreconcilable Founders comes with Johnson’s discussion of the clash between Roane and Marshall. Over half of the book is devoted to that conflict and explains why Marshall’s name appears in the title. Although both men studied law with Wythe, served on the same committees in the Virginia legislature in the 1780s, and believed in the independence of the judiciary, no two men of the early republic were more temperamentally and philosophically at odds with one another. Johnson makes it clear that personality accounts somewhat for the contention between the two jurists. Marshall, jovial and affable, and among the most devoted and important nationalists in the early republic was bound to butt heads with the temperamental, even prickly, defender of Jeffersonian federalism. But it is the constitutional aspects that make their conflict so important. In Johnson’s hands, the Roane-Marshall debate does not assume the inevitability of Marshall’s victory, thereby giving it a fresh significance often lacking in traditional accounts. Instead, Johnson demonstrates how the debate between the two, which played out in judicial opinions and newspaper essays, represented one of the most sophisticated contests between two vibrant but “irreconcilable” understandings of the American constitution: nationalism and federalism.
The contention between the two jurists began with the 1811 case of Martin v. Hunter’s Lessee and concluded a decade later with Cohens v. Virginia. The conflict reached its dramatic peak in 1819 with McCulloch v. Maryland. Immediately after the McCulloch case, Roane attacked the decision and its long-term constitutional implications in a series of essays published under the name of Hampden. Although Roane addressed familiar themes of Jeffersonian constitutionalism and included fiery rhetoric that reflected his personality and typical newspaper essays at the time, the Hampden essays were, nonetheless, learned expositions on the technicalities of the common law and the text and history of the Constitution. Nevertheless, Roane’s extensive legal knowledge allowed him to challenge Marshall in ways that other Jeffersonian critics simply could not. For that reason alone, Roane’s Hampden essays deserve a wider readership than they have received. Johnson’s wise inclusion of large excerpts from the Hampden essays at the end of the book will assuredly put these essays into the hands of more readers.
Roane defended the Constitution as a compact between the people of the several states, with the states retaining all powers not explicitly granted to the federal government. Drawing upon the hermeneutics of common law, the law of nations, and the history of the Constitution’s ratification, Roane argued that the Constitution existed for the sole purpose of maintaining the union of the states. This essential but limited purpose explained why the Constitution contained enumerated powers. The McCulloch decision’s expansive reading of the necessary and proper clause, Roane claimed, imbued the Constitution with a telos that undermined its limited set of powers. With Marshall breaching the Constitution’s barriers, the purpose and scope of federal power would be determined by “designing men” bent on sweeping aside the authority of the states and the liberties of the people.
The Hampden essays represented the “mature and elaborate pronouncement” of Roane’s political and constitutional thought. Arguably, they represent the early republic’s best and most succinct expression of Jeffersonian constitutionalism. More importantly, however, they revealed how Roane believed “every political issue touche[d] on the nature of the human soul; that that soul best flourishes in a state of liberty; and, therefore there can be no compromise with, or adaptation to, principles, forces or politics that diminish liberty and, ultimately, the human soul.” With that elegant description, Johnson unlocks the neglected importance of the Hampden essays and the driving principle behind Roane’s constitutional thought. For Roane, the Hampden essays were much more than counter-arguments in political and constitutional interpretation; they were explanations of the inextricable moral relationship between republican liberty, power, and human flourishing.
Johnson’s Irreconcilable Founders deserves a wide readership. Successfully resurrecting the most important Jeffersonian jurist of the early republic is no small feat and is matched by his spotlighting of Jeffersonian constitutionalism. For those who believe that the modern federal government has run amok, Johnson’s book will familiarize readers with a set of constitutional beliefs that defy contemporary national power and with the “enduring paladin” who best expressed and defended them.