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“Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary” By Joseph Wheelan (Avalon Publishing Group, 344 pages, $26 There has been a recent boom in the study of the Founding Fathers. George Washington, Alexander Hamilton, John Adams and even lesser lights like Gouvernor Morris have all been featured in high-profile, usually laudatory biographies. The new spotlight on the behavior and thoughts of the revolutionary leaders is almost always glowing. One founder, however, has been subject to literary beatings — Thomas Jefferson. Jefferson once was thought of as second only to Washington, but his star has dimmed of late. Whether it is a review of some of the more outdated facets of his ideology in Conor Cruise O’Brien’s “The Long Affair” or numerous studies of his relationship with his slave Sally Hemings, there has been a strong effort to knock him off the pedestal. Few have gone about the Jefferson trashing with as much vigor as Joseph Wheelan in his latest work, “Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary.” Focusing on some of the more questionable acts of Jefferson’s presidency, Wheelan launches a full-out assault on the nation’s third president, while attempting to further burnish the already-esteemed Chief Justice John Marshall and rehabilitate the much-maligned Vice President Aaron Burr. The book succeeds in presenting a readable narrative of Burr’s life and the bizarre circumstances of his treason trial in 1807, but it fails to properly contextualize the treason trial as well as Jefferson’s relationship to the judiciary and Burr. The work plays fast and loose with some of the historical facts and in the end does not provide a convincing argument that Jefferson’s behavior was motivated by an irrational vendetta. In order to prove his thesis, Wheelan drags out a number of arguably unsavory actions from Jefferson’s long career and gives them the most-negative slant possible. Jefferson’s legislative maneuvers in opposition to the Sedition Acts are described as a “guerrilla war.” He is faulted for having “never fought on the battlefield,” but extolling bloodshed and of putting forth a false image of a “peace-loving president who bore no malice toward any man” while trying to destroy Burr and ordering the Navy to go to war against the Barbary Coast pirates. Wheelan, who previously authored the book “Jefferson’s War: America’s First War on Terror 1801-1805,” offers no explanation as to how these events are connected or whether the Tripoli invasion was anything but a legitimate exercise of executive power. He also pulls forth a “bill of attainder” Jefferson wrote in Virginia in 1778 against a noted guerilla fighter, though it is not connected with the narrative in any way. There is no question that Jefferson was a complex and imperfect character — Wheelan actually does not bring out Jefferson’s indefensible views on slavery and the Sally Hemings relationship — but many of his actions as a public figure were fully justifiable. The book opens well, with the exciting tale of the capture in Alabama of Burr, by then the most-wanted man in America, and his trip up north to Virginia for trial. It lays out the trial scene — filled with a cast of America’s leading characters — and gives a short account of the action-packed life of Aaron Burr. But it flounders soon after. The focal point of any study of the Jefferson-Burr relationship must be the election of 1800, when a tie in the presidential race led to a tense 36-ballot House fight to choose the president. Presenting this event in the proper context is critical — especially since the first few pre-12th Amendment presidential elections were significantly different than today’s presidential contests. There was no split in votes for a president and vice president. The nascent political parties each nominated two candidates — the top finisher (provided he received more than half of the possible Electoral College vote) became president. The No. 2 finisher became vice president. If there was a tie or no candidate received a majority, the House decided. Unfortunately, Wheelan neither provides the right context, nor a proper historical discussion of this election. NEW YORK STATE OF MIND Without going into all the twists and turns, the regular contest came down to control over the New York State Assembly and — because the legislature chose the electors in the winner-take-all fashion — New York state’s 12 electoral votes. Burr, the founder of Tammany Hall, delivered a political masterstroke, outmaneuvering his Federalist opponents, including a distracted Alexander Hamilton. Burr composed an all-star ticket of assembly candidates and, using electoral tactics that were decades — if not a century — ahead of their time, shocked the Federalists. After hearing about the New York results, many correctly considered Adams and his running mate Charles Pinckney doomed. Yet since every Republican elector cast his ballot for both Jefferson and Burr — Jefferson was counting on some Georgia delegates to not cast their ballots for Burr — the choice for president was thrown to the lame duck House for state-by-state balloting. In his description of the House contingency election, Wheelan presents Burr as a heroic, self-sacrificing figure and Jefferson as a conniving wheeler-dealer desperately grasping for the throne. This take is way too simple. Burr did write a letter to Jefferson declaiming any interest in the presidency, but evidence suggests that Burr, who many felt was an intriguer of the first order, at least flirted with some Federalist leaders, setting off strong warning signs on the part of the Republicans. Furthermore, the Republican congressional caucus, as well as some of the state legislatures, specified that Jefferson was the head of the ticket, and few, if any, Republicans would have disagreed. Jefferson may well have cut a deal with some of the Federalists, who abstained on the final ballot rather than vote for either candidate, but the situation did call for some way out of the impasse. Due to the uncertainty over Burr’s behavior, Jefferson simply did not trust him afterward. After this poor start to his term, Burr’s vice presidential experience was, like many since, a search for a role. Realizing that Jefferson would drop him from the ticket, he ran for the governorship of New York, but was thwarted by Hamilton. This, as well as his notorious duel with Hamilton, made Burr a political pariah, and he soon headed out West to meet his new destiny. MARBURY V. MADISON It is 1805, when Wheelan picks up Jefferson’s attacks on the judiciary and tries to tie together the two threads of the narrative, culminating in the treason trial. Jefferson had some undeniable enmity towards the federal judiciary. Unfortunately, the root of this problem is not well-explained by Wheelan. John Adams’ midnight appointment of judges — including Marshall, whose appointment Adams considered the proudest act of his presidency — was seen as a Federalist power grab. But the co-equal role that the judiciary has assumed in the American political structure was not obvious, certainly not to Jefferson. Prior to Marshall and the Marbury v. Madison decision (and think if you’ve ever learned about a U.S. Supreme Court decision from the 14 years before that decision), the judiciary played a very small constitutional role. Jefferson and other political figures of the time legitimately felt that the unelected judiciary should not be exercising much of a policy role. This position is not unheard of today, and Wheelan should have explored it in much greater depth. After Marbury v. Madison, Jefferson and the Republicans went for the judiciary’s throat. In 1805, the House Republicans tried to impeach Justice Samuel Chase. Burr, in one of his last acts as vice president, presided over the trial in the Senate. Wheelan notes the celebrated role Burr played in ensuring a fair trial, as well as the impact that Chase’s acquittal had on the judiciary — no Supreme Court justice has been impeached since. The narrative then pushes the link: The trial against Burr was an attempt to take out both Burr and, according to Wheelan’s theory, the Marshall-led judiciary. But his argument is weak. While Jefferson clearly did not like either party, it gives too little weight to the claim against Burr. Wheelan ably lays out the convoluted treason case, but he exonerates Burr way too quickly. While Burr may or may not have been actually planning treason — it’s still a matter of conjecture what exactly Burr was trying to do — and while Jefferson was single-mindedly pushing for Burr’s conviction, the case was definitely more than an unthinking vendetta. There was a lot of smoke and suspicious behavior from Burr and his party that looked like they were trying to get the west to secede. Burr was traveling around the country, making contacts and some strange, if uncertain, plans. He also had an in-depth relationship with the unquestioned villain of the trial — and one of the great rogues of the post-revolutionary period — the head of the U.S. Army, Gen. James Wilkerson. Wilkerson, a fairly incompetent general, was on the Spanish payroll, something not revealed until a century later, and clearly was willing to throw Burr to the wolves in order to protect himself. Wheelan provides adequate treatment of Marshall’s landmark decision in the case, which set out the standard for treason used for centuries afterward. Marshall managed to navigate the shoals of legal and political trouble with his decision. Jefferson fulminated on impeaching Marshall and changing the life tenure for judges, but, as with many future presidential Supreme Court plans, nothing came of it. Jefferson’s Vendetta provides a readable treatment of an exciting episode in America’s legal history. But, the anti-Jefferson bias, well out of proportion to the evidence cited, almost calls for this book to be renamed “The Vendetta Against Jefferson.” Joshua Spivak is an attorney and media consultant based in New York and California.

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