tv The Presidency CSPAN September 19, 2021 7:11am-8:01am EDT
>> american history tv continues. find the full schedule for the weekend on your program guide or at c-span.org/history. >> good afternoon, churchill garner, president of the supreme court historical society. it's my honor to welcome you to our program today which honorslaw day . it will be delivered by pfizer jewel richard paul, a well-known scholar who focuses on the court and the constitution. as many of you know, law day was established by congress in 1961 to celebrate each year on may 1 the rule of law. this year the society is joining in the 60th anniversary program by the lecture you will be hearing. professor paul lecture is entitled the relevance of chiefjustice john marshall . professor paul is the
abramson professor of law at the university of california hastings law school where he teaches constitutional law. his most recent books are entitled first, without precedent, chief justice john marshall and his times. the second book entitled unlikely our lives, how a merchants, a playwright saved the american revolution. that latter was named one of the best books of 2009 by the washington post. not one to stand still professor paul is currently finishing a book on the rise of american nationalism before the civil war. so please join me in welcoming our distinguished speaker today. professor paul, if you will join me in the virtual
podium, you will now be in charge. >> i appreciate the opportunity to give the law day lecture here on the greatest chief justice john marshall who did far more than mostpeople realize to secure the rule law and the independence of our judiciary . over the last couple of years, following the publication of my biography of john marshall, i've had a chance to many different groups throughout the country and frankly i didn't expect this kind of response to a book about the supreme court but the events of the last several years culminating in 2 impeachment trials at the january 6 insurrection have shaken some people's confidence in the rule of law and in our judiciary. they're looking for reassurance.ey it's an occupational hazard l
for historians to draw historical parallels and make predictions based on past experience. history may repeat itself but historical patterns are not addictive. with that caveat, let me suggest the following. a wealthy presidential candidate launches a populist campaign against the cultural and political elite on a anpromise to disrupt washington to realign our priorities and shakeup alliances and trading relations. he attacks his opponents by spreading lies and innuendo. a foreign government intervenes in the election on his behalf and he's swept into office on a wave of discontent. once elected, he chooses his political rivals with treason, he attacks the press, disparages the judiciary and it disrespects congress and the norms of his office.
the country is deeply polarized and many americans fear that the president himself threatens the law and theconstitution . i'm speaking of course of thomas jefferson. who was elected in 1800 with the support of revolutionary tribes on a populist program to drain washington swap, replace the federalistjudges, trick the national government and return power to the state . that was the situation that john marshall faced when john adams appointed their lame-duck president in his final months in office points john marshall chief justice of the supreme court. marshall did not really want this job. but he took it because no one else would . with all due respect to my hosts, the us supreme court
was a professional dead-end. in 1800, the court heard an average of six cases a year. mostly cases of little consequence. justices spent most of their time riding around the country hearing circuit cases in taverns and having to share a bed with strangers. the supreme court was so insignificant that the designers at the capital forgot to build a courthouse. though marshall court met in a nondescript senate office, a set of committee rooms on the ground floor of the capital building in which they had to share with the district court and thecircuit court. the supreme court didn't have a home of its own force until 1935 . marshall in the federalist judiciary faced an implacable enemy in president jefferson.
jefferson had personal as well as political reasons for hating marshall. jefferson was marshall's cousin and their families had feuded bitterly for two generations over the inheritance that jefferson's father had appropriated from marshall's grandmother. perhaps marshall got even with jefferson by marrying holly ambler who bore a striking resemblance to her mother who just happened to be a woman who broke jefferson's heart when she rejected his marriage proposal. they were in likable enemies. it felt felt to john marshall to defend the independence of the judiciary against the jeffersonian to control both houses of congress. the one thing that most people know about marshall is
that he invented judicial review. now, marshall invented a lot of law but he did not invent judicial review. some state courts have already asserted the power to strike down unconstitutional law even before the constitution was written. and in the ratification debates of the constitution, it was generally accepted that the supreme court have the power to declare laws unconstitutional . not even jefferson and tested judicial review. you may recall that william marbury is one of the midnight judges appointed by president adams in the last hour of his presidency . marbury's nomination as a justice of the peace for the district of columbia is confirmed by the senate and the secretary of state who just happens to be john marshall. and he is responsible for delivering it on the last day
of atoms administration. but marshall is busy packing up his office. he's preoccupied, he doesn't get around to delivering the commissions and the justices of the peace before jefferson is sworn in the following day i the new chief justice who happens to be john marshall. jefferson finds these commissions and or versus secretary of sstate james madison not todeliver them . so marbury files a lawsuit in the supreme court asking for a writ of mandamus ordering the secretary of state madison to deliver the commission. in his decision, marshall first holds that masson's broke the law by refusing to deliver the commission. and then holds the court has no jurisdiction in the case anyway. marshall find that although the statute under which marbury filed his lawsuit
granted the supreme court original jurisdiction over writ of mandamus, he claims article 3 of the constitution forbids congress from expanding the court judicial jurisdiction and therefore t the court has no jurisdiction and they dismiss marbury's case . now, this case has possible legal historians for generations . first, marshall knows that the courts are not supposed to decide the merits of the case if they don't have jurisdiction in the first place. so why does he hold that madison acted illegally in refusing to deliver them? second, plain language of the statute did not grant the court original jurisdiction over ritz. marbury's attorney charles lee simply filed the case to
the wrong court. but charles lee is too smart to make a mistake like that. so perhaps heat misfiled the case on purpose. third, william marbury is a wealthy bank president from a fable maryland family. a justice of the peace is a lousy job. it's even worse than being ya supreme court justice. it pays nothing. the job entails arresting prostitutes and drunks and deciding paid cases for less than five dollars. marbury doesn't really want this job so he's got to have some other motive for taking this case to the supreme court. finally, marbury cannot prove the commission was issued because madison refuses to participate in the case and
provide him with a copy of the commission. and the only witness to the commission is john marshall who can't exactly testify in his own court. so marshall's brother james who is a district court judge finds an affidavit contesting that he meant to deliver the commission but forgot. none of this makes any sense. in my research, i discovered evidence that suggests the whole case was a setup. chief justice marshall , his brother james marshall, charles lee and william marbury sat down and plotted the case from the beginning to create a vehicle for marshall to assert the courts authority against the threat posed by the jeffersonian's. charles lee purposely filed suit in the wrong court. to give marshall the opportunity to assert
jurisdiction over the secretary of state and to affirm that the court also have the power have the power to strike down acts of congress. madison who so disdained the court he didn't bother showing up at the trial would have refused any order to deliver the commission so it would have made the court looked ineffective if they had issued the writ of mandamus so instead marshall beats a strategic risk retreat. he avoids confrontation with madison and jefferson while establishing the precedent that has survived 2 centuries. what marshall did in marbury is far more important to then confirm the power of judicial review. marbury established the most on the mental principle of our legal system that no one is above the law.not even the president andhis cabinet
. all of them, everyone subject to the courts jurisdiction and even the president can he held accountable. that is the essence of the rule of law. in cases like marbury, mcculloch, cohen, martin, marshall boldly asserted to supremacy and independence of the judiciary at the time when jeffersonian's wanted to read the judiciary of all analysts. indeed jefferson asserted that he should have the power t to hire and fire judges at will . just imagine where we would be today if presidents have that kind of power over the judiciary. marshall's decision in marbury versus madison has unfortunately obscured his other contributions to our legal system and to our republican form of government .
marshall established the principle that federal law and treaties having courts are supreme over state law. interpreted congress's power to regulate commerce broadly in the hopes that one day congress would regulate slavery out of existence. he declared that t international law is part of our law and it must be read into any act of congress. he defended property rights and the rights of private corporations in college. prior to the marshall's opinion in dartmouth college, there were only a handful of private corporations in the united states. and within a decade after were there were thousands. by the time marshall retired, there were more than 20,000 private corporations with total authorized capital of more than x billion dollars. that was all marshall's work.
he defined the rights of native american tribes and upheld the right to occupy and use their triballands free from interference by the state . and marshall protected the rights of aliens, even the aliens under constitutional law. in fact no member of the founding generation had a more enduring impact on what our republic has become then john marshall. and no one did more to preserve the delicate union of our fledgling republic at a critical moment. marshall's leadership elevated the federal judiciary into a coat equal branch of our federal government but how did he succeed against the
overwhelming power of the populist jeffersonian's and later the jacksonians. before marshall, all the justices issued decisions in seri otto. there was no unified decision of the court. marshall the court must speak with one unified voice. it was therefore necessary to hammer out a single opinion. and to that end, marshall insisted all of the justices share the same house. for most of 34 years the supreme court lived together, ate all their meals together and especially drank together as a fraternity of brothers. hard to imagine the justices today learning together, it sounds like the plot of a reality tv show or maybe an agatha christie novel.
as a result, over 34 years the marshall court issued 1129 decisions, all but 87 of the court opinions. were unanimous. and about half of all the courts opinions were authored by marshall in 2000. it's an astounding record. but what makes it even more extraordinary fris that every justice appointed to the court after marshall was appointed by a democrat republican president who opposed marshall's federalism . and yet with this powerful intellect and his considerable charm, marshall managed to find common ground in almost every case and forge a unanimous decision. marshall had a gift for inventing concepts that may compromise possible.
for example he invented the idea of self-executing and non- executing treaters and the idea of sovereignty as legal strategies for managing conflict betweenjacksonian democracy and the rights of indigenous tribes .where did all this legal creativity come from? unlike all the other great virginian founders, washington, jefferson, madison, monroe, lee,marshall was born for . with his 14 brothers and sisters he shared a two room log cabin which was 400 square feet. on the hardscrabble virginia frontier where his father crashed out a living in a small farm. his only formal education was a single year of grammar
school for he joined the virginia regiment 1775 at the age of 19. marshall fought in the great battle of normal where the british level north of virginia, the largest city in the largest state in theunion . the image of that city on fire was burned into his memory. he witnessed there the fragility of humansociety . and the imperative, the strong military to defend us. that i think shaped his conservatism. he was a progressive conservative in the mode of an admin burke. he believed in a strong central government to protect a nation's security and privacy of individual liberty and property rights . he lalso favored modernizing influence of commerce to replace the agrarian slave economy.
valley forge, george washington was sufficiently impressed by the young man that he appointed marshall judge advocate general of the u.s. army before marshall had ever attended law school. and after his military service, marshall decided to spend six weeks at the college of william and mary attending law lectures. he was probably there because polly ambler just happened to be in williamstown at the time and he wanted to have an excuse for hanging around her. that was his only legal education, six weeks . my law students would probably be envious. and yet, within the decade, he was one of the leading members of the bar inrichmond virginia . he was elected to the house
of delegates, going to the youngest member of the executive council of the commonwealth of virginia and as alegislator , he fought for laws to liberalize the manumission of enslaved persons and allow intermarriage between native americans and whites. and at the virginia convention to ratify the constitution, there was james madison and john marshall, they were the two leading proponents for ratification facing off against patrick henry, the first governor and a great hero . madison was a brilliant theorist. but he was a little too dour and awkward and nerdy to really be well-liked. marshall on the other hand was the indispensable man who choose the delegates over drinks at his favorite richmond tower. marshall managed to persuade
just enough delegates that the constitution passed by a slender margin of 10 votes. without marshall, there is no question virginia might not have ratified the constitution and without virginia there's no question there would be no republic . president john adams later decides to send marshall and 2 others, eldridge gary, that is eldridge gary of gerrymandering fame and charles puts forth on a ev mission to persuade revolutionary france to stop interfering with us ships carrying goods to britain and marshall arrives and meets up with the french foreign minister, the notorious
charles maurice who as a precondition in the negotiation demands a bride in the equivalent of $6 million plus a $400 million loan to finance the french war against britain. marshall refuses to pay him anything and he retaliates by seizing the americans passports and refusing to allow them passage to leave france. so for nine months marshall is trapped in paris, fighting talleon all the while living with this charming woman who immay or may not be the illegitimate daughter of hair and eventually, marshall comes to her charms. not realizing that she is in fact a spy working for talleon and you'll have to read the book to find out what happens next.
eventually, marshall returns home to the states and he's failed as a hero for standing up to the french even though he unwittingly triggered the clause i war with france in 1798. marshall has no political ambitions and just wants to return to his invalid wife holly and their 10 children. but president washington insists that marshall has to run for congress to oppose the growing influence of the jeffersonian's in virginia. and marshall is elected and heads to philadelphia where congress is still meeting. in marshall's single term in congress he becomes the leader of the federalists. he's the guy who actually use the eulogy when george washington passed away. but marshall still wants to return home from philadelphia and president adams offers him a way out. appointing him to be
secretary of state during adam's final year in office. marshall figures he can accept the appointment as a way of leaving congress and then leaving government at the end of adam's term. so president adams and john marshall meet the first time in a modest tavern in washington because it's still under construction. adams tells marshall that since abigail doesn't like the swampy climate of washington , he's going home to quincy massachusetts. and he's turning over the keys to the government to marshall . marshall is now in charge of every department in government except the military. he's in charge of passports. patents, land grants, he oversees all the us attorneys . he oversees ethe men's, government press, the census,
the territories and of course delivering the commissions. you must also supervise the completion of the white house , capitol building and all the roads and infrastructure for the new city for congress convenes the following january. at the same time, france, spain, britain and the barbary pirates are all threatening to go to war against the united states so marshall is juggling all this somehow with a staff of nine employees and a state department budget of 15 thousand dollars which is just barely enough to cover salaries, firewood and stationary and the incredible thing is just all this he does brilliantly. now, what does it say about a man who rises from poverty with no education to the highest levels of government in the judiciary. i believe that marshall's genius for self invention is
how he developed the talent for inventing the law. so how is all of this relevant to our current moment? the insurrection on january 6 is still a fresh wound in our country's psyche. it demonstrated both the fragility of democracy and the resilience of our institutions. but for the courage of the capital police and 62 courts that consistently rejected every attempt to overturn a free and fair oelection, our constitution would have been rendered void. our politics today however are no more ruthless or polarized than the politics of marshall's day. he faced not one but 2
constitutional crisis, one precipitated by the jeffersonian's and another by the jacksonians . both of which threatened the independence of our courts. what marshall understood is to read for compromise. ndand he knew how to forge a consensus where none seemed possible. he understood that what transcends partisan politics, what should unite the judiciary is a commitment to defend the legitimacy and autonomy of the courts and the rule of law. courts must be the guarantors of the principle that no person is above the law. the independence of our courts is the linchpin of our liberty and without it, our republic and constitution are lost. if it depends on the legality
of our judiciary then on whom do we depend when the judiciary itself is under attack as it has been. in the last several decades, we have witnessed pitched battles over the nomination of federal judges. we've seen a president disparage judges by name expressed disdain for the judicial process and his own attorney general and insist he's above the law . we've seen the senate routinely filibuster the nomination of dozens of qualified judicial nominees. and we seen some members of congress threatened to pack the court with like-minded judges. it's not just political branches however that have demeaned and politicize our judiciary. unfortunately. some judges have cast doubt
on their own legitimacy as neutral arbiters of the law. the job of a judge or a justice is to set aside political loyalties, decide the case on its own semerits but when lawyers and law students can readily predict with astounding accuracy how certain judges will vote even before a case is heard, it suggests that those judges are putting party loyalty before the law. when the public perceives the court is divided between the red shirts and blue shirts, it undermines the public's respect for the judiciary. more and more often, as a professor of constitutional law i find myself struggling to convince a skeptical class that the courts are about something more than party politics. the legitimacy of our judiciary is at stake. if judges cannot set aside
artisan politics and find common ground. now, i know that even suggesting that common ground is a possibility in the current political environment makes me sound terribly nacve. but john marshall also lived in a highly partisan moment. and yet as chief justice he found common ground. by nurturing ,institutional loyalty. every kind of judge and justice has something at stake beyond their parties political aims. and that is pthe legitimacy of the court itself. we need judges and justices who will strengthen the judiciary by setting aside their own political preferences and leaning in towards the center . we need jurists who hold their truths lightly and the
common pursuit of consensus who prefer compromise to confrontation n and who recognized and appreciate that moderation is a virtue. john marshall was such a man. he had the courage ofhis imagination . wisdom to find common ground. and the grace to hold together a fragile union. thank you for your time. thank you very much professor paul. it was a wonderful recital of history and woven into our current environment very well. we appreciate it very much. we're going to take some questions from the audience and if you have questions, please type them into the q&a section. we will get to as many of those as possible.
i have a few, a couple leading up of my own as others are coming in. and one is the adams and jefferson rivalry is well-known and well documented. they seem to by the end of their lives pass that up a bit and engage in correspondence as we know. did the marshall and jefferson rivalry ever get patched up by the end of their lives? >> definitely not. they were really blood enemies throughout their lives. you know, from jefferson's point of view, probably the worst thing john adams could do to him was saddled him with johnmarshall as his chief justice . jefferson was looking forward
to appointing someone else as president of the virginia supreme court. the chief justice really became the elected and jefferson and the then republican party really set out to rid themselves of the federalist judges and they started out by impeaching judge pattison in pennsylvania. they impeached judge pickering in new hampshire and then of course they impeached justice samuel chase better known as old bacon face chase. and justice chase, everybody understood if you study the proxy for john marshall, the republicans were out to get
john marshall. marshall had been the leader of the federalist party well jefferson headed the republican party. marshall had been washington's great defender at a time when jefferson was really antagonistic to washington's policy of neutrality towards france so there's a long history here of rivalry between them. they never patched things up and i suppose in a sense it continues to this day in the rivalry between the jeffersonian's and marshall stands. >> did chief justice marshall hold slaves? >> yes, chief justice marshall did not have clean hands on the subject of o slavery . he owned at least 15 household slaves after his points in his life. a recent book by paul finkelman has suggested
marshall also owned a plantation that had more than 100 slaves on it. i am somewhat skeptical of that in so far as marshall nowhere in his correspondence, nowhere in his diaries for his account books was there any reflection of having purchased or sold these slaves for received any income or expenses in connection withsuch a plantation . i'm not sure that it matters. marshall still held at least 15 household slaves marshall's decision was complex. he was a very strong opponent of slavery. he was really castigated by various southerners throughout his term hoin congress. in the courts s. for having taken the strong positions at everybody understood was really about
slavery. so washington's decision in mcculloch versus maryland is really about whether or not congress has enough authority to be able to regulate slavery out of existence. that's how hiscontemporaries received those ivdecisions . and i think you have to bear that in mind. >> that's very interesting and one of the questions we have is what evidence is there that marshall wanted congress to have power under the commerce clause to regulate slavery out of existence or what evidence do we half of that? >> the evidence we have is his opinions in which to express a broad view about congresses powers . in mcculloch versus maryland, in addition to what appears in the opinions, marshall requested judge johnson write a conquering decision and
most of marshall's biographers agree johnson's concurrence was actually dictated by marshall or marshall had something to do with it . in it johnson says ionce congress acts, all the state laws fall lifeless from the statute books. that was really marshall's queue about state power. he got the states were in the way. he did not have a great deal of respect and the idea of states rights at that time was synonymous with the preservation of slavery. amoreover as i say, the southern press castigated marshall because they saw him as threatening the institutions of slavery onand while he was practicing law in richmond virginia he took pro bono cases on behalf of slaves against their slave masters. >> another question from our audience is the marshall and
story relationship on and off the bench have a modern comparison.. the examples given are justice scalia and ginsburg or murphy and rutledge. >> that's exactly what comes to mind is the ginsburg scalia relationship. i'll accept it. the difference would be if justice scalia had persuaded justice ginsburg to think what he thinks because justice marshall the story was of course an extremely accomplished jurists and legal scholar before he joined the court and story has made commentaries on american law. story was really kind of, he was a republican. he was a jeffersonian before he joined the court and he just had this magnetic attraction jofor marshall's views and really became marshall's greatest advocate
and supporter and their friendship lasted long after death. >> that brings to mind maybe justice brennan was a republican appointee and sort of sided with justice marshall, thurgood marshall on most decisions. do you see a comparison there with four was justice brennan more of a mind from the outset? >> justice brennan was, i'm not sure he was a republican himself. i believe he was a democrat, appointed by president eisenhower. eisenhower appointed brennan. he saw brennan as a moderate and as somebody whocould get through congress . i think eisenhower used to say that he only made two
mistakes as president and both of themwere on the supreme court . so brennan was not exactly in the same camp. i think a better example would be someone like justice souter or justice souter appointed by president bush first. he was a, but was assured by johnson who knew justice souter quite well that he was a rock red republican conservative and of course he proved to be more moderate and perhaps closer to justice stevens in his views. >> is there any justice who's had a similar impact to the chief justice marshall on the nation? can you draw any other comparisons ? the question is any justice. >> i would say that certainly
justice story have an enormous impact in terms of our understanding of the law today. but justice jackson i think had a great impact in terms of defining limits on presidential power and the relationship between president andcongress . you know, a lot of justices come to mind. justice holmes of course. in terms of our understanding about the first amendment and justice brandeis insofar as he was really justice brandeis sort of transformed a lot of our thinking about law in terms of, of course he did that before when he was practicing law , he introduced social science to law. >> one next question we have
is what would justice marshall have fought either in writing or in your research including washington's dislike of political factions, what would justice marshall thought of jefferson's self-interested desire to make virginia a winner take all electoral district in the hypo scenario repeating that resulted in adams becoming the second president, it's a question with a lot in it. >> i lost the first part of the question, i'm sorry. >> justice marshall have thought of jefferson's self-interested desire to make virginia a winner take all jurisdiction? in the electoral college? >> i'm not sure i can answer that question confidently. i think that marshall and of
course the framers of our constitution had a different understanding aboutthe electoral college altogether . in so far as they were certainly not populists. they didn't believe in the popular vote to elect the president. they bought the electoral college would function as kind of a council of wise men who would advise about who should be the president. that was the understanding of medicine and today we think about the electoral college as kind of an obstacle, or something in the way to a popular vote but that's only because we presume people should correctly elect the president. their understanding was but get together a bunch ofsmart white people with good judgment and have them choose
the person with the best character . i think that marshall was certainly alarmed by the populism of for example andrew jackson and in fact that was the one arguable mistake he made as chief justice was that he once commented publicly on what a tragic event it would be if andrew jackson was elected president. i think history proved him right but that's my view. but he certainly saw populism as the enemy of the constitution and of the values of theconstitution . >> i think we have time for one last question and i see onecoming in . that is what would chief justice marshall think about concepts such as original as him that we see today?
>> marshall would have been puzzled by the concept of original as him. in the following way. think back to marbury versus madison. marshall was telling madison what the constitution meant. madison drafted the constitution. marshall didn't feel that there was any reason why madison had a monopoly on the meaning or the significance of the constitution. constitutional scholars pointed out that the framers of our constitution met in secret. they didn't keep an official record because they didn't want people to focus on what their intention was. they wanted people to focus on the words in the constitution and in our contemporary understanding. when marshall says in the cologne versusmaryland that
he should , this was a constitution we are founding, he's saying there the constitution isn'tlike any other document . it isn't like a statute. it is a vehicle for moving forward, moving the country forward and it's organic, it's changing over time. his view of the constitution was theconstitution should eat all .and i think that the success of our constitution is its survival more than two centuries and the success of our society and of our form of government has much to do with the wisdom that it's supreme court justices have brought to the interpretation of the constitution over time. and i think that was marshall's view about how the constitution should be read . >> we want to thank you all again and a special thanks to professor paul for joining us today and his comments. >> it's a pleasure. >> thankyou and we are
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