[Music] well thank you good afternoon or near afternoon I am Mike Gerhardt the scholar and residents here at the National Constitution Center and it's always a tremendous privilege for me to be able to return here and be a part of the terrific constitutional conversations we have here we are guests today of course is the the wonderful Richard Brookhiser who is a just one of our most welcome guests and we're always thrilled when he's able to come back he is as you I hope you know the senior editor of National Review is senior fellow of the National Review Institute and a columnist for American history magazine he's author he's off also the author of a number of books including founders son a life of Abraham Lincoln a book on Alexander Hamilton American and founding father rediscovering George Washington among others today he's here to talk about his great new book on John Marshall the man who made them Supreme Court so let's welcome our terrific [Applause] in Richard as you know I I'm a constitutional law professor I would love to jump into the weeds with you but I probably will not do that in all these incredible cases and the extraordinary career of course of John Marshall but I thought maybe one place we could begin our discussion about John Marshall is sort of to take off on an op-ed I know you did about what you learned about politics in the Supreme Court from doing the work on the Marshall book so tell us what it is that you you did learn about politics in the Supreme Court well the most the most striking thing is that it's always been political there's it's always bad it is always often been mired in the political controversy not you know maybe not every single session but it goes back to the founding it certainly goes back to Marshalls tenure as chief justice his appointment was a lame-duck appointment by the outgoing Adams administration this was after the election of 1800 which would be the first change of parties in the White House we had one change of presidents from Washington Adams but they were both Federalists so in 1800 it goes a Adams Jefferson from the Federalist Party to the first Republican Party the ancestor of today's Democrats and the election of 1800 was one of the ugliest in American history so passions were high Marshall is a lame duck appointment by the defeated outgoing Federalists they've gone down to a blue wave they've lost the White House they've lost both houses of Congress the judiciary they see that as their last stronghold and they picked this you know this forty five year-old young guy to be the new Chief Justice and the incoming president whom he swears in March 1801 is his second cousin once removed Thomas Jefferson and Jefferson is one of the few men very few men that Marshall ever hates he hates him profoundly he hates him for all of his days and Jefferson hates him right back Jefferson hated a lot of people of people but he certainly hated his cousin John Marshall so it's an inauspicious debut it is and of course we're going to talk about that history and a little more detail but it may of course be helpful as well to go back to Marshalls beginnings and particularly how he met George Washington and the importance of that relationship in his life so Marshall fights in the Revolutionary War but in the course of that he of course meets a few people right he he volunteers to fight in 1775 when he's 20 years old he and his father both volunteer they join a Virginia militia company and then the following year they joined the Continental Army and Marshall he fights in two battles before he's in a battle commanded by George Washington and he's this is the Battle of Brandywine which preceded the British capture of Philadelphia in the fall of 1777 and that Marshall also fights in the battle of Germantown this is Washington's failed counter-attack to try and take the city back from the British who have just captured it and then there's the the threat of a third conflict at the end of that year Washington and his army have entrenched themselves in a neighborhood called White Marsh which was north north of Philadelphia and Lord Howe marched his troops out with the evident intention of attacking them or at least probing them to see if it was worth attacking them and at this point Washington he's lost two battles in a row his troops are undersupplied they're under clothed of course they're unpaid this was chronic throughout the Revolution and yet Washington knew they they have to hold this defensive position if they were attacked so Marshall saw him riding through the units of the army exhorting his men telling them to rely on the band that if they were attacked and this was an image that just imprinted John Marshall for the rest of his life he thought this is the guy this is the rock on which the revolution rests turned out the British didn't attack they just calculated the defenses were too strong and the Americans probably strong enough to hold them and so they went back to Philadelphia and the Americans went to Valley Forge and Marshall spends that whole grim encampment again seeing Washington in action as a leader a holding this a sick cold undersupplied army together and keeping it together until the warm weather and the campaign of the following year when Washington gives his commission back to Congress at the end of 1783 Marshall writes the letter to an old friend of his James Monroe they went to school together briefly and Marshall said at length on the military career of the greatest man on earth is closed whenever I think of that superior man my full heart overflows with gratitude these are not casual words he was just imprinted imprinted with the image of a capable judicious vigorous leader and and that's the kind of man he wanted to be he wanted to emulate that in his choice chosen course of life which turned out to be the law right and he and of course that and you talk about this in the book the tremendous impact his relationship with Washington the relationship he had with Washington had on his entire life including what he does on the Supreme Court as the young lawyer he stays with George Webb which turns out to be an influential relationship as well so with the taught a few of the framers yes he with taught Thomas Jefferson privately Marshall encountered him in a course that with gave at William and Mary it was the first course in the law in any American College and must have been a good class because to to Marshalls classmates one was Bush Washington who was one of George's nephews and would be Marshalls colleague on the Supreme Court for almost 30 years and had served together close friends close judicial and intellectual allies the third guy in the class was a man named Spencer wronged who would end up being the chief justice in Virginia's Court of Appeals and a thorn and more Marshall side for many many years at Jeffersonian had as low an opinion of Marshall as Jefferson did and vice versa well we could think of this as a tree that has many branches as a law professor I'm gonna drop a quick footnote here another student down the road is going to be a guy named Henry Clay who will of course that story will come later but in terms of the Marshalls life he also based on the relationship he had with Washington and his strong convictions in the consolation ends up participating in the ratification campaign as well that's right he serves under Washington and the war and then he serves under Washington again in the ratification struggle he's not eminent enough to be sent to Philadelphia as a delegate to the Constitutional Convention but he gets elected to the Virginia ratifying convention where he's strongly in the party that's in favor of ratification and he gives a couple of speeches one of them on the judiciary which which forecasts a lot of what he will later do I would call him a strong middle ranking player in that fight at the Virginia convention yes and and ultimately a strong Federalist yes yes when America gets its first two-party system we mentioned this talking about the election of 1800 it's the Federalists which is the party of George Washington Alexander Hamilton John Adams and also John Marshall and one interesting thing about John Marshall because the Federalists fell apart before and after the election of 1800 they never took back the White House they never gained a majority and in either house of Congress and then after the war of 1812 they just did period and like a lot of parties when they're on the ropes they fought among themselves you know as you're going down you you'll fight with your supposed friends and allies and it got pretty acred if you've seen the Hamilton show you you know how Hamilton and John Adams went at it they covered that in one episode but Marshall manages to remain friends with all these guys as this party is falling apart I mean Federalists who have come to despise each other but Marshall manages to be to stay on good terms with all of them and I think that reflects something very important about his personality this is a guy who's genial he doesn't have rough edges you know I'm always leaving Jefferson aside but he likes everybody and everybody likes him he has high spirits he has a good sense of humor he likes a good drink he drinks a lot he drinks a lot with his friends and colleagues I have to tell you one story about Marshall when he gets on the Supreme Court the court had already been up and running 11 years before he becomes chief justice and they had several customs they'd already developed and one was when the justices were deliberating they would come to Philadelphia or New York or Philadelphia or Washington wherever the national capital was and at first they had two sessions per year then this was cut back to one so they would be in the capitol for several weeks at a stretch rooming in the same boarding house and they'd hear the cases and the lawyers arguing during the day and then they'd go back and they'd have dinner together and they they discuss what what they had heard and their rule became that they could never they couldn't have wine at dinner or at these discussions unless it was raining outside and I assume that was to cheer them up so Marshalls universal custom was to ask one of his colleagues often just a story brother story will you look out the window and tell us what the weather is and the story might say well the sky you know perfectly clear of marshal would say our jurisdiction is so vast that by the law of chances it must be raining somewhere so wine was always served at the Marshall Court I don't know how that tracks current practice so I'm sure that in current practice people want to drink a lot still but and the reasons vary over time but I want to cover at least one other thing about Marshalls life before we get him to the Supreme Court which of course is going to be an immensely important event for the history of this country partly because of his relationship with Washington partly because he's a rather adept lawyer Washington wants to bring him back to Washington at least bright room back the nation's capital bring him back to work in the government marshal resists but if he does come back at least once well Washington yes the the final appeal and this is after Washington as president it's during the administration of John Adams and and George Washington by this time has become a federalist partisan I think he resisted choosing a party as long as he could but by this point he's a partisan Federalist and he thinks the Federalist Party needs bucking up in Virginia so he summons two people to come to Mount Vernon John Marshall his former junior officer and his nephew Bushrod Washington and he basically reads them elector and he says you you you you to have to run for Congress you've got to do it and Marshall doesn't want to he wants to make money I mean he's a lawyer he's a good lawyer he's doing very well and he has a family and he's also buying land so he needs money needs to make money but Washington is just Adam and Adam and Adam and the story is that Marshall decided I you know I can't keep saying now I've got to get up at the crack of dawn and get out of here but Washington had gotten up first and put on his uniform that's you know made one more appeal that's the story what we do know in Marshall himself wrote that I yielded to this representation was Washington told him look I left Mount Vernon to fight the Revolutionary War and now I'm gonna lead it again in case France invades there was a fear that we'd go to war with France and Washington had agreed to the commander in chief in case it came to that so here's John Marshall being told by the father of this country what kind doing this you've got to do it so and the consequences are enormous because he runs for Congress he wins and then from the Congress he is picked by John Adams to be Secretary of State this is when Adams is cleaning the Hamilton loyalists out of his cabinet so the Secretary of State gets fired Marshall becomes the new one then tail under the Adams administration the current chief justice third man to hold that post Oliver Ellsworth writes the president and tells him my health is bad you know I have gout I just don't want to do this anymore so there's a vacancy and they've got to fill up before Jefferson comes in so Adams offers it to the firt the man was the first Chief Justice John Jay he'd been chief justice for six years and then he'd stepped down to run for governor of New York and he was ending his second term as governor of New York Adams sends his name to the Senate Senate confirms him then he gets the letter from Jay saying I decline the offer and he says the job doesn't have dignity I'm going to do this again and so as Marshall describes it he's sitting in the still unfinished white house in Adams 'iz office the exterior shell is there but the whole building is like a construction site and they're sitting in the Oval Office and Adams system who shall I nominate now and Marshall says I don't know sir and Adams thinks for a bit and says I believe I'll nominate you so that's how John Marshall got the nomination senate-confirmed him and he was off for the next 34 years of his life yes he was and so as and as you point out in the book it wasn't an immediately quick confirmation though there was some you know there was some resistance because as a congressman Marshall hadn't been a completely hardcore Federalist he for instance he said of the Alien and Sedition Acts I would prefer to just let them lapse you know and if you were a real hardcore Federalists you you didn't want to give an inch on that so there was some head scratching in the Federalist Senate caucus but they knew time was running out too and they they confirmed it yes and so he finds himself the chief justice of the united states supreme court the last Federalist ever appointed to the court and as time goes by and we'll go through this the courts going to change of course and most of the people that come to the court are not going to be Federalists they're the people that often appointed by presidents we didn't like that's right I mean the next three presidents and they're each going to serve two terms it's going to be three Virginia Republicans Jefferson for eight years Madison for eight Monroe free and after only 11 years the the balance on the court goes from six Federalists and then people die and retire and it's two Federalists and five Republicans they've increased the size of the court by one so Jefferson and Madison fill all those vacancies and they they fill them with Republicans but the the surprising thing is that Marshall herds all these cats the Supreme Court issues decisions often they're unanimous often they're written by the Chief Justice and these Republican appointed justices go along with his decision-making and and I think they're you know a number of reasons for that if we want to get into them now it may be helpful to get into them a little bit although I also want to get into some of the cases too and maybe it'll we can kind of weave them in and out or together Mart Marshall has a series of cases that are important the first of which of course is a little case called marberry versus madison what happens there well Marbury vs. Madison is is famous because it is the first time that the Supreme Court rules a portion of a law passed by Congress unconstitutional and I want a you know dissent a little from the popular understanding that is important but I don't think that was the startling thing about Marbury at the time the notion of judicial review was already out there Hamilton had written about this in the Federalist Papers in 1788 Marshall himself had spoken about it at the Virginia ratifying convention his enemy Spencer Rhone who would you know hate the federal judiciary but as a Virginia judge he would use judicial review with respect to Virginia laws all the time so this was this was a concept that people were already familiar with what I think was so striking about the Marbury decision was that it's a long decisions nine thousand words and about eight thousand five hundred words of it are a lecture to the Jefferson administration telling it you people have behaved badly you know you've you've come in you've you've said the Federalists they they work anti-republican they passed unconstitutional laws we're going to do things differently but look what you've done you're doing the same thing now what had they done William Marbury was a federalist in the District of Columbia one of the lame duck acts that John Adams took is he appointed forty some justices of the peace in the district which which is something the President had the power to do it's a minor post but it was a little patronage job in the rush to finish the Adams administration not all of these commissions delivered and Marbury's was one of the ones that had it was still sitting on it on a desk when Jefferson and his new team came in and their attitude was well we're not going to be the delivery boys for the Adams administration if they didn't you know if they didn't get these Commission's to their holders that's too bad we're not going to do the job for them so Marberry Sue's to get his commission he goes to court to get his commission and what he asks is is that the court issue what is called a writ of mandamus to the secretary of state who's James Madison and this is a writ that that you know commands lower courts or people to deduce a certain thing mandamus is Latin for for command okay so so that is the case when it when it finally is decided by the Supreme Court Marshall reads this immensely long decision it takes him a couple of hours to read it and he starts off by saying Marbury has a right he has a right to this commission this commission was signed seal approved and at that moment it should go into effect it doesn't matter if it didn't if it didn't get handed to him wouldn't matter if it had been dropped down the way yet it was done at the moment it was finally signed and sealed so Marbury has a right to it second point Marbury has a remedy if you have a right to something under the American system you can you can get a remedy which will restore that right to you by going to the courts by going to court point number two then the third point is the writ of mandamus the proper remedy and there Marshall he looks at the Judiciary Act of 1789 which set the federal judiciary system up and which gave the Supreme Court among other things the power to issue writs of mandamus and this is how Marbury is asking for his commission and what Marshall decides is now a writ of mandamus is an act of original jurisdiction diction you know that's something that happens when a trial is brand new when it first appears in court this is like discovery this is something that happens at the first stage of a trial okay so it's an act of original jurisdiction but says John Marshall reading the Constitution the court does not have original jurisdiction over cases involving the Secretary of State persons in office which is what James Madison is it has original jurisdiction over cases involving ambassadors diplomats and there's some other categories of people but but the the relevant distinction is James Madison is not a diplomat he doesn't represent a foreign power he's a person in the United States government the court doesn't have this power to require him to do something so therefore William Marbury can't get his commission this way so on the substance of it it's a defeat for federalism right this loyal Federalists can't get his patronage job and it also strips from the Supreme Court a power to issue a writ of mandamus because says Marshall is unconstitutional for the court to have this power in this case but the big victory for him politically is that he spent most of this 9,000 word opinion scolding the Jefferson administration and the headline in Alexander's Hamilton's New York Post is it was something of something like Jefferson administration defies the Constitution so Hamilton Hamilton got the point and of course the rest of the story is judicial review the fact that the court then Marshall reaffirms the fact that the court has this great power to review the constitutionality of federal laws it also has the power to review the constitutionality of some state laws yes oh yes he does that a lot he only does this thing what and it doesn't get done again until it's at read Scott decision but he reviews a lot of state laws shoots a lot of them down and the states are not happy yeah the states are not happy and and so I want to go look at one of those cases Fletcher is packed because it involves something that's real important is that as you write about with Marshall the contracts clause well okay Fletcher versus PAC has to do with a land deal the sale that the state of Georgia made in the 1790s Georgia was broke it was probably the poorest of the original thirteen states but they had a lot of land because Georgia originally stretched all the way to the Mississippi it him encompassed what's now Alabama and Mississippi so Georgia thinks we can sell off all this land we can balance our books so they sell thirty-five million acres for half a million dollars it's a penny and a half an acre every legislature in the Georgia Legislature got a thousand dollars for approving this sale excuse me there was one man who took only six hundred he said I wasn't greedy so that was the going rate and then of course the point the original sellers are not going to move to any of this land they're going to flip it this has been going on in America forever you know real estate madness and and that's what happens the original sellers they flip their purchases to other speculators who hope to resell at higher rates themselves but there's there's anger in Georgia at this deal it looks corrupt and indeed it was so a new set of legislators is elected they issue a repeal Act which says that the sale was invalid and we will not recognize it in any Georgia court any Georgia official who behaves as if this sale were real will be fined $1,000 which is a considerable sum of money so they say we repeal the sale and we're just going to squelch it in any Georgia Court so the purchasers they go to Alexander Hamilton for a legal opinion Hamilton is known private life private practice as a lawyer and he writes them a little 500 word opinion where he says well you know for legislators to take back but law like this is both impractical and unjust but it's also in violation of article 1 section 10 of the Constitution which forbids States from impairing the obligation of contract this is known as the contract clause and Hamilton was pretty familiar with that clause because he's probably responsible for sticking it in the Constitution it only appears in the very last draft which came out of the committee of style on which he sat ok at the very end of the Constitutional Convention so this is Hamilton's opinion 1796 well this the sale it gets it gets tangled up in Congress the Jefferson administration the cobbles together a compromise where they will they'll compensate the purchasers they'll compensate the state of Georgia all they have to do is get Congress to sign off Congress box there are people in Jefferson's own party who don't who don't want to do this compromise they think that that brings the taint of this original sale on themselves and they refuse to do it so the purchasers go to go to court now how are they going to do that they can't go to a Georgia Court because Georgia has said we will not recognize any suits about this in our own court they the state of Georgia cannot be sued by non Georgians because of the Eleventh Amendment this was an amendment passed after in the 1790s there had been a Supreme Court case schism V Georgia and after Georgia was successfully sued in that case it took two years to pass the Eleventh Amendment record tie which said that states cannot be sued by citizens of other states so that's that's a check there so what happens is that two citizens of different states get involved in a lawsuit Robert Fletcher of New Hampshire Suz John Peck of Massachusetts Peck sold Fletcher some Georgia land in other words pack had purchased it and then he'd resold it to Fletcher Fletcher takes him to court saying you didn't have the right to own this land in the first place because Georgia has annulled the sale I want my money back I paid you three thousand dollars for this land I want my money back so they go to court the case comes up to the Supreme Court it's Fletcher versus pack and and it gets to the Supreme Court because it's two citizens of two different states neither of them Georgia suing each other over land arising from this sale and Marshalls decision tracks Hamilton's legal opinion of 1796 he says it is impractical and unjust for a legislature to take back a sale that it has made he says the past cannot be recalled by the most absolute power but then he says there's a larger point which is that Georgia is part of a great Empire it is part of the United States which has a constitution and that Constitution has article 1 section 10 which says that no state may impair the obligation of contracts and this Georgia land sale was a contract and therefore Georgia cannot take it back and Marshall I think audaciously he says this is a bill of rights for the people of every state now you know what do we think of the Bill of Rights is we think of the first 10 amendments and freedom of speech no establishment of religion keeping bear arms no unreasonable searches seizures marshals sang the Bill of Rights in the Constitution is article 1 section 10 which forbids States from impairing the obligation of contracts that is how important he thinks contracts are and he thinks that because in his opinion America after the Revolution and before the Constitution was passed in that five to six year gap was just a chaos of bad legislation states were passing laws right and left often contradictory laws they would make deals and then they would take them back they would say that debts don't have to be collected when they're due or maybe you can have a grace period before you have to pay or maybe you don't have to pay the full amount we'll knock it down to like X percent of it it was all this interference with with the arrangements that peak the economic arrangements that people had made and Marshall thought that it destroyed confidence between men and men you know he wants it made crystal clear that if you make a deal there it is in black and white you sign a contract you're bound by it and and I think that's the importance of Fletcher versus pack yes it's one of the seminal cases of course there are lots of seminal cases that Marsh is a part of and we're going to go back and forth between cases and also some of the people that Marshall ends up serving with so as and this is gonna be roughly chronological not may be perfectly chronological but along the way one of the most interesting people I think although there are a lot of interesting people Marshalls work works with on the court but one of the most interesting people ends up being a Madisonian appointment Joseph story Joseph's story ends up being really the third choice for Madison to fill a seat that opens up tell us a little bit about Joseph's story and his interaction with Marsh right well Joseph's story first comes in two marshals purview because he he's one of the lawyers in Fletcher versus Peck he is he is arguing the validity of the Georgia the original sale in other words he's arguing for the land speculators that's what he's doing and yet he is a member of the Republican Party of Jefferson's party he's a young man he's very intelligent he's read everything he seems to know to know everything he writes about everything that he knows very fluently I you know you'll like him he's a gregarious guy I think he could wear you out maybe because he loves to write and he loves to talk but he and Marshall just hit it off there's a 24 year age gap oh another factor here is that Marshall has a number of sons but none of them are anywhere near as intelligent as he is so I think story kind of fills a gap in his life there and their intelligence is different I mean story is like he's always like right there you know saying something effervescent quick on the draw Marshall is a little slower to get going I mean you know he's a lot of fun but he doesn't really engage himself readily but when he does it's almost implacable I mean the force of his mind when it gets going is like a there aren't locomotives yet but that's what it's like it's like a train bearing down so they kind of complement each other and as I said story is the one he always asked to look out the window and see see what the weather was now that accidentally relates to a conversation that story had with Thomas Jefferson when story gets his domination Jefferson of course is no longer president but he still follows politics and he's a little worried about Joseph's story because story he is a Republican but he seems unorthodox in certain ways so he wants to warn story about the Marshall Court and about Chief Justice Marshall and he tells him if Marshall asks you a question never answer it never answer it if he asked me is the sun shining I would say I don't know sir I cannot tell you know and and Jefferson's fears that if you said yes the sun shining Marshall would get Marbury vs. Madison out of that somehow you know hit that his mind is so so nimble and sophistical it would twist anything you say into what Marshall wants to say and I guess the proof of that is that the story becomes Marshalls great admirer partner right defender becomes a great Supreme Court justice in his own right yes after Marshall hoped he would succeed him as chief justice and because of the politics of the 1830s that doesn't work a story would dedicate this wonderful commentaries on the Constitution to of all people John Marshall so he doesn't really realize Madison's hope that he can become a check on Marshall but he also ends up writing perhaps one of the most important opinions the court ever renders in a case that Marshall doesn't participate in Oh versus hundreds let's eat right this is this involves a struggle over a land grant in colonial and then in the state of Virginia that went on for decades there was a noble English family the Fairfax's that were given that had a grant of land in the state of Virginia that was as big as New Jersey you know it's big among the people they hired to help them survey it where George Washington and John Marshall's father so they both these men had connections with the the Fairfax family and then you know after the Revolution the the air of this grant he doesn't want to come to America to tend it so he he he's willing to sell it off and among the purchasers are John Marshall his brother James and a brother-in-law there's like a Marshall clan syndicate that wants to buy a big chunk of this grant this is a decade's long process because there are counterclaims on the same land they have to get the state of Virginia to sign off on this process it's legal its political it's just a big ball of wax and the suit that that you're referring to involved a portion of this grant in the Shenandoah Valley that that James Maher had it was like only 780 acres which I guess in Virginia is just like you know your corner plot or something but it gets to the and the reason this is so important is that Virginia refused to acknowledge the right of anyone to appeal a state's court decision to the Supreme Court they said we should be the last level of appeal on this and they they refused even to appear before the Supreme Court now Marshall recused himself from this case because of his brothers involvement in it although he did you know he did work with story on his own oh and I've even seen an argument that he ghosted stories opinion which I Joseph story didn't have to have any one ghost anything for him he could write it but he certainly agreed agreed with it and story very ringing Lee said yes appeals can be made beyond the state level to the federal courts yes and Martin versus Hunter's lessee such an important opinion Justice Holmes later says Marbury isn't necessary all that important the Republic would have survived perhaps without that opinion but might not have survived without Martin versus Hunter's lessee which a case in which the Court recognizes its power to review a story state court opinion that involves a question of federal power federal law story and Marshall together will sit for a while decades they'll also have a chance to sit at a very important case involving an institution that is located not too far from here the National Bank this is a case called McCulloch versus Maryland right and that's the decision in that case and this is a John Marshall decision one element of it is the old question going back to the Washington administration is a National Bank constitutional because it is not an enumerated power Constitution says nothing about a National Bank nothing about the federal government's power to set up corporations Hamilton wants a National Bank and he says while the last of the anew were added powers is any anything necessary and proper to carry out the previous list and of that list there are many things that a National Bank would facilitate therefore its constitutional it's also not prohibited you know there's nothing in the Constitution that says you must not do this so since it would be helpful to powers that are enumerated and it's not prohibited their forces Hamilton its constitutional James Madison and Thomas Jefferson gave negative opinions at the time Washington agreed with Hamilton so there was a First Bank of the United States here in Philadelphia that lasted for 20 years and then it was not recharter than 1811 and then after the war of 1812 the second bank was chartered also in Philadelphia in 1816 now state states had their own banks and they didn't like competition so a lot of states they either had laws that said no bank from out of state can operate in our state or they said any bank from out of state will tax it some of these taxes were punitive they were designed to destroy the operations of any out-of-state bank Ohio had a tax of $50,000 a year which was big Maryland had a smaller one $15,000 a year that was for revenue raising they didn't want to necessarily keep it out they just wanted to make money off but the second bank of the United States didn't want to pay it and they felt you know they were a federal federally chartered institution and they shouldn't have to so this is actually an arranged case Maryland and the second bank agreed to take this to court and a clerk in the in the bank a man named James McCullough he he paid out a note to one of the directors and of course they hadn't paid the $15,000 a year you know fee so Maryland took them to court they were found guilty and it came up to the Supreme Court so in the first part of the decision Marshall says that he agrees with Hamilton that to to found a bank is constitutional because it does fall under the Necessary and Proper Clause and it's not forbidden then he also says that he agrees with the counsel for the bank man named Daniel Webster who said that the power to tax is the power to destroy and Marshall agrees with that he says states cannot tax portions or entities of the federal government and the federal government has supremacy in its operations if the federal government has a power to do something its power to do that thing is supreme and it overrides any state prohibition to the contrary so those were the you know the first half of it is kind of settling old business from the Washington administration but the second half of it is making a very sweeping point and obviously as Marshalls career as chief justice and folds and he decides these different cases each of these different monumental cases involves different parts of the Constitution that Marshall really has a chance to look at for the first time mr. and Proper Clause one case contracts clause another case and of course another big case that's gonna come up involves the Interstate Commerce Clause oh yes give versus Arkham I love the back story on this case this has a great you know one of the fun things about writing this book is is I treated each of these cases as a short story that's really what they are they you know they come to Marshall at the end but there's all this history behind them you have all these Americans doing the different things they do and getting into arguments and tangles and going to court and then you know and then it rises to the Supreme Court and Marshall gets to say yay or nay but there's all this you know activity at the lower level so Gibbons vs. up Ogden arises out of a monopoly that robert Livingston and Robert Fulton been granted by the state of New York to run steamboats in New York waters Fulton was one of the inventors he invented a steamboat there were other men who'd invented different ones but he his steamboat got backed by robert Livingston who was a wealthy politically connected New Yorker and so not only does he have a boat Livingston gets the state of New York to say for 30 years only only these boats can go up and down the Hudson now of course they're immediately challenged you know other people want to sail in New York and they get taken to court and it goes back and forth the courts in the state of New York are pulled the monopoly one thing that monopoly does is it buys off competitors there's one set of competitors and Albany and the monopoly says all right we'll let you have Lake Champlain but we'll keep the Hudson Hudson period another competitor appears in New Jersey Aaron Ogden he's trying to run boats from Elizabeth New Jersey into Staten Island and they go to court and then finally they agree Ogden agrees to be a licensee of the monopoly he'll pay them $600 a year and they'll let him run his boat then Ogden takes on a partner Thomas Gibbons and that seems to work for a year but then there's a problem and the Gibbons family Gibbons has a daughter and rumor gets around that she slept with her fiance Gibbons Watson's entire family to join him in signing an ad in the newspapers saying that this is not true apparently it was true Aaron Ogden thinks this is a bad idea Gibbons is so enraged by Ogden's opinion he shows up at Ogden's house with a horsewhip Ogden escapes out the back door and Sue's Gibbons for trespass this is the end of the partnership so now now Gibbons goes to war and he hires a staten island ferry boat man named Cornelius Vanderbilt to run his boats Vanderbilt has no education but he's a smart guy he loves this he builds himself the secret cabin inside Gibbons's boat so the secret room so that when the cops come on board he can be hidden in there and they won't be able to serve a warrant on him and it's just cat-and-mouse you know in New York Harbor and he's having a lot of fun but the other thing he's Gibbons tells him to do he says you go to Washington and hire for me Daniel Webster to argue this case before the Supreme Court so this is how Daniel Webster becomes the lawyer for for Gibbons the case comes up to the Supreme Court the question is can a state have the monopoly on Congress on Commerce even when Congress has not acted Congress has not passed any laws having to do with steamboats or where they can or can't sail but the argument that Webster makes is that doesn't matter Commerce is something that is a national activity he says it's a pluribus unum that describes Commerce in the United States and that means that the only power to regulate it rests with Congress even if Congress hasn't used it even if Congress hasn't used it the other side in the case is saying well fine if Congress passes the law of course will obey it but until then our monopoly ought to be able to operate so the decision that Marshall makes is I think you'll agree it's kind of interest it's a little odd about the shape of it he basically repeats Webster's argument and he says this is a very powerful argument I'm not sure that it's been refuted but he decides the case on a relatively minor point which is that Gibbons's boat had a coasting license issued by the federal government and this was just a piece of paper for Revenue ID it proved you weren't a foreign ship you know if you were a foreign ship you'd have to pay certain duties but you say here's here's my coasting license I'm an American ship that Marshall says a license is a permission to do that thing right if you have a license to coast up and down the coast that means you can do it that means you can go from Elizabeth New Jersey into Staten Island so on that basis he strikes down the monopoly and I think opens the door to larger interpretations of the Commerce Clause and certainly it helps steamboat commerce I think the figure is like the number of steamboats in New York Harbor jump from six to forty six you know the competitors were just waiting and they they brought their boats a marshal breathed life into the Interstate Commerce Clause which is the source of most federal laws today we have time for a couple more questions I want to take at least a splendor on the audience and I'll just read it as it's written here which of Marshalls personal and intellectual qualities made him so effective on the court which were the most challenging in that regard well like I said he was hurting all these cats these judges who you know justices who didn't necessarily agree with him and yet they ended up agreeing with him how do you do that I mentioned his geniality I mentioned his drinking I mentioned his mind you know the power of his mind but I think another thing very important is his deference he was a collegial man if there were areas of law that he was not he would defer to justices who were expert one one area was land title's there was a lot of litigation about land title's particularly arising in Kentucky because the land ownership was very complicated there lots of lawsuits and Marshall would defer there was a justice Tod was his colleague from Kentucky said he defer to him on that he deferred to story on Admiralty law and you know if you do that you can get deference in return I mean it's it's a virtuous thing to do and it also pays off and so you know you combine all these things it's natural good humor people like being around them he liked people he was always the smartest man in the room and he wasn't arrogant and I think the combination of those factors made him a great leader right in fact the combination of those factors make him the one person referred to as the great chief J and the great chief justice the only person who's referred to in that regard and also the longest serving chief justice in American history bring us to his last case barenbi Baldwin Baron V Baltimore yeah this is a short decision it's only what like 1500 words very short and it involves silt and the Bill of Rights Baron is an owner of a wharf in Baltimore Harbor and at the place called Fells Point and after he bought his Wharf Baltimore decided to improve Fells Point they they cleared land they laid down streets they diverted streams that ran into the harbor there and as a result there was this silt build up by barons wharf such that no ship could dock there destroyed the value of the wharf the Fifth Amendment to the Constitution says that you know property may not be taken without compensation so Baron and his partners and backers they they go to court saying that you know our property has been taken it's been destroyed we didn't get any compensation and this case comes to the Supreme Court it's a very brief decision and Marshall says well yes that is the Fifth Amendment but that only applies to the federal government does not apply to the states you know you're not suing the federal government about this you're suing the city of Baltimore and the state of Maryland so too bad the federal government or the Fifth Amendment does not apply to a case of this kind and what what interested me in writing about that is there was there wasn't a legal commentator named was raw who had written a book of you know legal commentary in the Constitution and he said that those parts of the Bill of Rights which do not specifically invoke the federal government do also apply to the states but Marshall just sweeps that argument aside he doesn't accept that argument in that case and ultimately the the Fourteenth Amendment will become the vehicle that ends up being used to apply the Bill of Rights many decades late many in the in the 20th there's still I mean there's a case coming up this term I saw Tim versus Indiana which involves the Eighth Amendment so it's not like the court said okay all town apply to the states I mean it's been a very different case yeah it applied most of the Bill of Rights to the states and as you point out they're still trying to figure out which one's apply the Second Amendment just recently was applied to the states to the 14th through the Fourteenth Amendment in the last chapter you talk about his legacy share with us some of the thoughts on his legacy well his successor as Chief Justice is is Roger tawny who I I think is holds the record for the second longest tenure correct Marshalls 34 years in Tawny's like 27 so he's in there for a long time and apparently tawny was respected as a legal mind his temperament was described as gentle I think people liked him liked to work with him but he's he's infamous for a decision he issues in 1857 which is the Dred Scott decision and there he says that that about he overturns the Missouri Compromise saying that the federal government had no right to restrict property and slaves and territories he also in the in the course of this decision it's an immense decision long long decision he says that because black people were not considered it was not thought possible that they could be citizens at the time that the Declaration was written or the Constitution was written therefore Dred Scott cannot bring a suit in court one of the dissents in this decision by justice Curtis said well actually in five states when the Constitution was being ratified free blacks could vote and so they probably did vote on what the Constitution should be ratified or not so it's inaccurate to say that they were not considered even possible to be citizens where they were free this Charles Sumner would call this decision the height of judicial baseness so that's that's kind of that's not a good look for the Supreme Court but I think Marshalls tenure had been it had been so long so considerable and so widely respected that the court could recover from this new Marshall had laid down a marker of what the court could be and could do and so it could recover even from a disaster like the Dred Scott decision and I think that's that's his legacy he took this job that John Jay wouldn't take because he said it had no dignity and he made it strong enough that even Roger tawny could not pull it down again which is a remarkable legacy as you point out in the book I mean this is a man who is again the longest serving chief justice in American history to give you a sense of the remarkable way in which he wielded the power of chief justice over the course of his tenure he again 34 years he issued all but one dissent a remarkable fact given the fact that he served with a number of justices who were appointed by presidents who wanted those justices to go a different direction but they did it really did they really did they did not largely under Marshall a remarkable legacy I wish we had more time we don't our guests Richard Brookhiser will be here later [Applause] Richard's going to be here to sign books afterwards it's been a great opportunity to visit with one of our favorite guests thank you thank you
