Transcripts For CSPAN Landmark Cases McCulloch V. Maryland 20180227

And visually what it means to live in a society of different people who stick together because they believe in a rule of law. Host hello, and welcome to landmark cases. This is the first of 12 Historic Supreme Court cases well be looking at this season. Mcculloch versus maryland, our case tonight. And for the next 90 minutes well learn more about this significant case, and the people and issues behind it, and why its so important in our American History process. Later on well take your calls, well also take your questions on facebook and twitter, and make you a part of this conversation. We have two guests at the table tonight to help us understand what mcculloch versus maryland is all about. Let me introduce them to you, farah peterson, and mark killenbeck. The first question, of course, why does this belong on the list of landmark cases . Well, one of the most dominant controversies in the interpretation of the constitution, then and now, is whether we should read the document primarily as a limitation on government, or whether the grant of power. And in this landmark case chief Justice Marshall intervened in the controversy in two ways. First, he held that the federal government and congress is not limited to the specific powers listed in the document, but instead has access to a broad range of whats called implied powers in order to effectuate those ends. And second, he continued a campaign that he pursued throughout his tenure on the Supreme Court of asserting that the Supreme Court was not only the dominant interpreter of federal law for the federal government, but also that he and the Supreme Court could say what the law meant even when, by doing so, they disagreed with the ruling of the highest court of the state. And that was really the dominant controversy of the time. And so it was quite important. You think it is significant. Why should people care about the case . The case provides a series of very important operations, one is the notion of the ability of congress to do that which is necessary and proper to effectuate the constitutional compact entered into between nation and states. One of the other ones people dont talk about as much is marshalls conception of the relative roles of the court and congress. Judgments about policy, about what is necessary, are judgments that are going to be left to the congress. This is part of the formulation that is central to the case, let the end be legitimate, all means which are plainly adapted, et cetera, consist with letter and spirit. That policy is a very, very significant factor. The other thing that enters in here is that marshalls willingness to sustain the bank of the United States at a point in time in American History when it was a loathed institution. People just did not like it at all. It was the panic of 1819, 3 million out of 9 Million People in economic dire straits. It was an act of judicial courage to put the bank on square footing at precisely the moment that they did. Part of what makes cases landmark cases is not just the rules they articulate, but the circumstances within which theyre decided. Lets spent a bit more time on those circumstances. James monroe was president. What else should people know about the country at that time . Guest well, during the war of 1812, the war created inflation, as wars tend to do, and that inflation was exacerbated by a rash of new banks opening. And the way banks worked back then is they would hold in their vaults a certain amount of silver or gold currency. And they would issue notes that stood for one dollar worth of hard currency or 10 worth. Take this paper money, you can use it as if it were hard cash, and anyone can bring it back at any time and redeem it for gold or silver. But without regulation, banks like that started issuing much, much more paper than they could back up in their vaults. And as a result, inflation just went wild. At the same time, there was great demand for american commodities like wheat and cotton in europe. And the bubble just got bigger and bigger. It was prime to burst, and unfortunately it did for a range of factors, including the conclusion of the war of the napoleonic wars in europe meant that demand for American Products wasnt quite as strong. But the Bank Actually hurt it quite a bit as well. The bank had a debt coming due. It had to pay back the bonds that the United States treasury had issued in order to purchase the louisiana territory. And they could only pay back those bonds in silver. And so in order to pay it they had to suddenly start going to each of these state banks and saying we hold some of your paper. Give us the requisite amount of hard currency. That started forcing closures across the country. And closures led to personal bankruptcies, and the whole system collapse. So why was the bank the second bank loathed . Well, there were one reason was the perception that the bank had a key role and was perhaps even the main source of the panic of 1819. The historys mixed on how much it actually did cause. But the other one was that at precisely the moment all of this is happening, the rumors of corruption and theft and misrepresentation on the part of the bank, in particular the Baltimore Branch of the bank, were coming to a head. And so congress put together a committee in december of 1818 that issued a report in january of 1819, and basically documented that the bank, in particular the Baltimore Branch, was terribly corrupt, terribly inefficient. And simply not an institution you would rather that you would trust. And all of this was coming out at precisely the same point that the case was being set up to be argued before the Supreme Court in february. So the case centers around the second bank of the United States, particularly the Baltimore Branch, and it is really over, as you both alluded to, issues that had been at the heart of the debate ever since the founding, really, state supremacy versus the federal supremacy. This became kind of a proxy for that continuing discussion, it sounds like. Oh, absolutely. And one of the reactions that states around the country had to the panic of 1819 was to pass laws designed to drive the bank out of their territory. Marylands law was actually one of the milder forms. Its arguable that maryland just wanted to raise revenue. But other states like ohio, which would end up in litigation after mcculloch v maryland passed a statute requiring the bank to pay 50,000 of hard cash per year for each bank branch that was open in the state. And those kinds of laws were designed to drive the bank out of the state entirely. And so the question was really joined there. Does the federal government have the power to charter corporations within state boundaries . Should states have the right to say what kinds of institutions are meddling in their economies and competing with their own institutions . If not, what are the sovereign powers that the states thought that they had reserved in the constitution . What are they really worth . Weve established the issues. Now, lets talk about high level sense, well get into it more deeply later on, the players in this, first James Mcculloch, who was he . James William Mcculloch was a relatively young man at that time, he was a veteran of the war of 1812, wounded at the battle of bladens burg, went back to baltimore, and hooked up with some locals, became the cashier of the which was the head Administrative Officer of the Baltimore Branch. This that position he saw an opportunity, and the opportunity was to get rich, to exploit his position, and he formed a partnership with two other individuals to engage in selfdealing in terms of the sale of the stock of the bank. And he also advocated for the bank to be very aggressive in its policies. The first bank had been very conservative, and because of its conservativism had been a big success from 1791 to 1811. The new bank comes into existence in 1817. It starts out with a relatively conservative policy. The bank was a weak individual, mcculloch was you shall ping for the bank to be more aggressive and expansive. And was a force in terms of getting the things where they ended up with the corruption and the problems that were there. Eventually. They had initial attempt to try in 1821. He was selfdealing . Did he ever face justice . Eventually. They had initial attempt to try in 1821. Then in 1823 in what they called the conspiracy cases, his attorneys did a very savvy thing. They put the bank on trial rather than him and his partners. By raising the issue of the bank as this evil force, this intruder in the states, this alien presence, they were able to get mcculloch acquitted, at which point he then embarked on a successful political career. Another character we will hear about is Daniel Webster. What was his Daniel Webster is role . Daniel webster is one of the most famous lawyers in American History because he came again and again before the court to argue some of its most important cases he was a lawyer that the court and americans looked to to help expound what the constitution meant. So this was an incredibly interesting and important session of the Supreme Court. And he appeared several times arguing not just mcculloch v. Maryland, but also a have you months before, the Dartmouth College case. So we are going to invite your participation, well go to calls probably in another 20 minutes or so. And wed like you to get cued up so you can be part of our conversation. Were going to take historical questions. We also have going to talk about the implications of this case on current political process and so all of those are welcome as you join in. If you live in the eastern or central time zones, our number is 2027488900. Mountain or pacific, 2027488901. Please dial carefully so you get through to our lines and not to other people around the country. If you tweet us. Use the landmarkcases, if youre on facebook, find the cspan feed and theres a conversation going. Well mix all those in during our 90 minutes discussing mcculloch v. Maryland. One small point about mr. Mcculloch, its on the spelling of his name. We found three different citations of it as you look at various documents in various histories. Yours uses m, apostrophe with a c, and a mcwith a ch. How did that happen . What did he use . After i wrote the book, i was doing research in the South Carolina historical society, papers of lang don shivis, but i found a handwritten note from mcculloch to shivis when he was attempting to get a job. He spelled his name m, apostrow pea, kculloh. What happened as a combination of typesetting, and the confusion of that age, the Supreme Court alone has three or four variants in terms of spelling his name. But i think based on what i found in that the papers its mculloh, how he spelled it. Well, maryland passed this tax. It was an interesting kind of tax, a very common 19th and late scottish descent . A thing so. I think so. They changed the spelling later. Interesting sidebar. Case. Lets get into this well, maryland passed this tax. It was an interesting kind of tax, a very common 19th and late 18th century tax stais the stamp tax, the same kind of tax americans protested against in the stamp act before the revolution. Maryland issued paper that was a little bit costly, it was, you know, 5 cents for this piece, 10 cents for that piece. You can issue notes, that is bank notes, dollars, but you can only issue them on these expensive papers. Thats how the tax operated. Mcculloch as cashier refused to use that paper. He just continued to issue notes on the regular paper hed always been using. And so he triggered the penalties, he refused to pay the penalties, and thats what brought the case to maryland District Court. It went to the Maryland Court of appeals, which affirmed the validity of the maryland tax. And then they brought what cay all of a sudden a writ of error to the Supreme Court in september of 1818. The court took up jurisdiction of the case and set it for argument in the term that began the following february. And one of the things that richard ellis, an extraordinarily good historian, discovered during his own research on this case, was this was almost certainly a contrived case. He found some information in terms of a statement by the governor of maryland saying that, basically, they set this up precisely to test the constitutionality of the bank and this is not unheard of in American History. But its, again, postwriting of my book, interesting insight into the bank was a significant issue. It had been a significant issue since 1791. And people wanted to resolve this question. They wanted it settled. Whether or not there was constitutionality. In 1819 the Supreme Court was just moving into new space inside the u. S. Capitol building which had been burned during the car of 1812. And were going to learn more about the spaces in which that early Supreme Court operated here in washington. It was in this chamber, where such landmark cases as dread scott versus sanford and the United States versus am stead would have been heard. Walking into the chamber, visitors would have seen a room that had just been refurnished following the fire of 1814. The walls would have been painted, new draperies would have been procured, new carpet put down, new window cornices installed. What is really neat about this space is how intimate the setting is. The arguments would have been open to the public, the arguing attorneys, the petitioner, the respondent would have been in a lower recessed area, this space, dark, damp, and likely cold in february of 1819 would have been a daunting environment to have been in to present an argument to the Supreme Court. This is where Daniel Webster and the other attorneys would have argued their cases before John Marshall in the Supreme Court in february of 1819. The arguments in mcculloch v. Maryland lasts for nine days. In 1819 each of the counsel would have had a great deal of freedom to speak uninterrupted, and to lay out their case before the justices. The court convened at 11 00 a. M. That morning, and would usually adjourn sometime around 2 00 or 3 00, depending how long the arguments went. Usually there was a restriction of two lawyers per side in a case. But the Supreme Court waived that requirement so that each side had three attorneys, and each attorney was able to speak up to three days. Beautiful spaces inside the capitol. You can still visit them when you go on tour in the building here in washington. So the Supreme Court at the time had seven justices, and the chief justice as we mentioned was John Marshall. Hes often referred to as the great chief justice, not the first, the fourth. Why does he get that description . When he came chief justice, he made a decision to put the court in its what he viewed as its proper place. When Oliver Ellsworth resigned as chief justice during the last month of Adams Administration, he turned initially to john jay to be the next chief justice, in fact, john jay was confirmed and then adams sent a letter to jay saying youre the new chief justice, and he said, no, thank you,heim you, im not the least bit interested. When i was on the court it didnt do anything. Marshall comes in determined to have the court assume its rightful place, particularly in the light of the transition from the federalists under the Adams Administration to the democratic republicans or the republicans of Thomas Jefferson, and progressively, beginning with mar berry in 1803, he carved out a place to say the Supreme Court matters. It is going to be the expositor of what the constitution means. Mcculloch is one of the critical steps of securing the article 3 judiciary, a meaningful role in American Government. Heres what the court looked like with those seven members, in addition to John Marshall, an adams appointee, and washington, a relative of the first president , three jefferson appointees, william johnson, henry livington and thomas todd, although he was ill and didnt participate in this particular case. And two madison appointees, Gabriel Duval and joseph story. What does a mean for the ideological discussions . The justices lived together while they were in session, and had the deep discussions that were necessary in order to come to a consensus about what the opinion should look like. And because of that, even though there were justices appointed by different administrations, it was remarkably little dissension on the court. He was able to issue the majority of his opinions in one voice. Who was cocounsel with Daniel Webster in the Dartmouth College case. The interesting thing about this bar, then as now, there were a select few lawyers who argued walter jones. Im sorry. I am blanking. There was joseph hopkinson. He was the cocounsel with Daniel Webster. The interesting thing about this bar, then as now, there were a select few lawyers who argued before the Supreme Court bar, and they really knew each other, personally and professionally. So, for example, william wirt who argued for the bank of the United States had been the governments prosecutor in the aaron beurre trial for treason, and Luther Martin, the constitutional delegate for maryland has been aaron burrs defense attorney, these men came together again and again. In his book, peter iron says about the attorney general of the state of maryland, Luther Martin, he reportedly argued the fletcher case ten years earlier in a drunken state and he was rumored to be ineebbriated during the mcculloch as well. Its absolutely clear, he had a drinking problem, something that people openly discussed. It became a significant impediment. Such that his last two or three years as attorney general of maryland were not terribly successful. And it sped up his death. Towards the end of his life, he had to move in the house of aaron birth. We talked about Daniel Webster, who became wellknown to all of us in our history books because of his great or rations in congress, but well delve into more. Well return to that chamber and the two senate historians. Daniel webster was an imposing figure, he had the nickname from his time at dartmouth as black dan. Because he had this tuft of black hair, and this these deep set dark eyes that comment ers remarked on were just piercing. He had this serious look on his face when making arguments, and youll hear reports how he stared rather intently at John Marshall. Daniel webster was coming into his own in terms of his reputation as an advocate before the Supreme Court. He was admitted to the bar in january of 1814. Very shortly after he arrived to serve as a member of congress from New Hampshire in 1813. He was not a stranger to John Marshall or joseph story. He corresponded with each of them. He was also intimately acquainted with all the attorneys involved. Joseph hopkinson who was arguing for the state of maryland had actually been his cocounsel in the Dartmouth College case the year before. Attorney general william wirt, who was arguing with him on behalf of the bank, had actually been on the other side of the case in Dartmouth College case. So the bar to argue before the Supreme Court was a relatively small club. And the attorneys would have been very aware of each other and known each other very well at this point. Daniel webster spoke on the first day, he led things off on february 22nd, George Washingtons birthday as it turned out. After webster concluded his arguments on the first day, he was anxious to get back to massachusetts and his practice, and there are letters that he wrote to correspondence complaining each day he thought they were about to be done and nevertheless there would be another day of arguing, nine days was really quite the long amount of time for him and he was anxious to get out of town. So let me pick up on that nine days concept. Today the Supreme Court gives attorneys one hour for both sides to argue the case before the court. They hear 70, 75 cases a year. Was nine days unusual back then . It was unusual even for the time. So usually the rule of the court was that each side could only bring two lawyers, and they were stricted to two days of argument each. So each side in this very important case was allowed to bring three lawyers, they brought the best they could find. And Luther Martin, another fact upon fact about him, was that even in his hay day, even when he was at the Constitutional Convention in philadelphia, he was known to talk on for such length that everyone would get tired. And so he took up a full three days in his oral argument. That was quite unusual. I wonder how the justices processed that. One of the interesting things about the court at that time, and its in the press accounts, and the little histories that we have of the time is they would basically sit there silently. There was not the give and take that typifies oral argument today. They would listen respectfully. They did not interrupt with questions. They were there to hear what the attorneys had to say. Now, part of that is the reality they werent going formal written briefs, not these large quantities of printed materials submitted to the court. But the court treated the attorneys with respect, they listened to them. What was working in that room like . Could people come in see the cases . Was it popular . Guest very, very popular. It was one of the most popular forms of entertainment. The social seasons in washington were marked by certain things, and one of the social seasons in washington was when the court convened in february and was in there for five to six weeks and there was a constant parade of people coming in and listening. And joseph story talks about how during the oral argument that the chamber was full. It was very important to the city, both in terms of what the issues were, and in terms of just the social scene in washington. Well, its time for your questions and comments. Were going to begin with bill, whos watching us in lake bluff, illinois. Hi, bill, you are on landmark cases. Welcome. Caller so, given that marshall was sort of a federalist in the era dominated by democratic republicans, was there any political or partisan backlash to his decisions, or his decision in this case, or host thanks, and we will spend more time in the end about the impact then and now. Guest what would your answer be there was tremendous backlash, tremendous. And it took the form of pointed and heated debate in the newspapers, where the great lawyers of states that disagreed with the judgment went point by point to dispute it. And the most learned possible way. And it also took the form of active political resistance on the parts of the states. Many of Justice Marshalls opinions were resisted by the states whose statutes he struck down. And this was no exception. Maryland followed his judgments, but other states around the country decided that as especially as it seemed clear that this had been a feigned case, a setup job, in other words, that maryland had agreed to go to the Supreme Court with it, that their issue with the bank couldnt possibly be tested by a decision in that case. So they refused to follow the courts decision. Just following on that callers ideological casting of this case, we have a facebook comment that sees this case as the beginning of the demise of federalism. So, today, if you are a liberal or conservative in politics, do you look at this case differently . Guest well, it wasnt the demise of federalism in one respect because the federalists had been losing power for many, many years. They were no longer a dominant force in the political process. And indeed, that was one of the things that made Thomas Jefferson especially angry is the notion that federalist judges had found a refuge in the article 3 courts where they could not be removed. And the political dynamics in terms of the politics of congress had already started to shift. But this old guard that marshall was supposedly the figure head for became a very big thorn in the side of the jeffersonians, and especially when Andrew Jackson would come in as president. Host next is humble, texas. Host you are studying this case. What have you learned about it in eighth grade history . That host thats ok. Caller [indiscernible] host thanks watching the program. What does it mean for the u. S. Today . Talked about that earlier in terms of the deference to congressional judgment about what is wise policy. The notion that states may not impair the operation of the federal government by taxation or anything else is very important. It is a central part of the assumption we have what we call a compound republic within certain areas when it exists excerpt is power properly. The federal government is supreme. Host we have a tweet from a asked where would you rank this case in importance . Guest every nation needs a mythic past from which to draw its fundamental principles. This ranks up there with some of the most important principles that we have. It is such an important case is cited time and time again by the Supreme Court. When i was clerking, we decided 70 cases and it must have been cited in a dozen. A month and a half ago, a case came down from the Supreme Court , Justice Ginsburg cited it and it was discussed in the dissent. This is a case that forms the foundation of what we think of when we think of the basic rentables that make up our legal system. 202 737000 could you put that in context . A central facet of many of the things that are going on now when you Start Talking about immigration matters, when you Start Talking about medical care, what is the nature of federal power . How far does it extend . What is the ability of the states to frustrate or Work Together with that power, it is central to the questions about how her government operates today. When the sets of lawyers remaking the case, i will ask you to take each side. What would the call is lawyers be arguing . Guest that congress did indeed have the power to create the bank. This was a debate that was joined in 1970 1871. The first point that maryland wanted to contest is whether the bank was a legitimate institution, did congress have the power to do so . It is not tensioned in article mentioned in article [indiscernible] the attorneyshing form a color or the bank are going to do is to say, no, they have the power to do this. Host marilyn said . Itst in the constitution enumerates which states cannot lobby. That list presupposes everything elses free and open. That is what the 10th amendment says. Textual strong arguments, strong arguments from the history that Luther Martin was at. And by all accounts, they had some of the better legal arguments. This idea that the power to tax is the power to destroy which was the argument that daniel for a reason why maryland could not tax the bank. It is very dramatic but it is not true. Taxes are imposed on all kinds of things without destroying them and it presupposes there as gradationsing, of power to be shared between the states and the federal government. Host youre on landmark cases. Ill come. Guest my name is receda. I attend San Diego Middle School in central,. My question for your guests are, what impacted this case have upon the power of the federal government . Host ok, thank you. Lets take that. Guest it enhances the power of the federal government, it says the federal government may do that which is necessary to achieve those things that are written in the text. And so under the necessary and proper clause, congress has got in the first sequence of that article, very specific powers enumerated, the clause says you can do whatever is necessary to achieve those things. Even though that is not specifically mentioned, you may still do it. Host next is a call from steve watching in tucson. I am good evening, enjoying the show. Our current attorney general is threatening to penalize recreational error Recreational Marijuana use in states where it is legal. What would you call a versus maryland say about that . Guest the Supreme Court considered that issue in a case and in it, they held that the clause allows the government to regulate Recreational Marijuana use within the state. Which wouldon apply to the situation. Agree . Guest yes. Host next is nathan in baltimore. You are landmark cases. Go ahead. If the power to tax is the power to destroy, that contradicts the Obamacare Ruling that legal care was illegal as a form of a tax. That was an important case that came down in 2012, it started with First Principles and what that means as in so many cases is it started with mcculloch v maryland. It went through the very logical process that marshall had used, that congress has the right to power to tax and regulate commerce. We must see that congresss choice for how to pursue those ends is outside the bounds of the possible, permissible use of power. Starting from the First Principles that marshall articulated, this followed in its footsteps. The penalty was on individuals as opposed to on the government itself. The question in mcculloch was taxation of government, not individuals. Host we have been talking about the applications but lets move on to the decision itself and how it was reached. Afterd Justice Marshall listening to 90s of these arguments approach a decision with his other justices . Guest very quickly. Oral argument and the decision was announced on saturday. There were some people who were very suspicious of this thinking that he had prejudged the case in must have written it up advance. Except when you go through the decision with care and you see he took action pieces of the arguments up through and including pinckney who was the last argue. Earlier, they lived together, they were there working together, there is no doubt that they were being very careful about this case, thinking it through as the oral arguments unfolded. Guest they knew the country was watching. What more can you tell us about the process getting to consensus . The process of the conversation they had between each other unfortunately lost time. It is clear that in the background, marshall was very keen to put federal power in the broadest possible bases. One vehicle that allowed him to get there, to get to a vision of an American Government that would be powerful enough to build the kind of interconnected economically powerful society that he thought america could be. A line andou see reasoning of marbury . Guest there is a series of cases from marbury through bank of United States versus defoe, u. S. Versus fisher, there are marshall and his colleagues developed a theory of the court as ats role and the nation nation within which the federal government is going to have certain degree of privacy in certain vertical areas and it will continue after mcculloch through the case called the andnce versus for genia osborne versus bank of the United States and gibbons versus ogden. He continues this process of fashioning a vision of a strong Central Government that will act for the good of the nation not simply in International Affairs but also in Domestic Affairs which was a big reversal from the assumption that was running around when the constitution was framed. Pat is next. Caller doesnt the mcculloch ,ecision basically abrogate rendering knowledge for the 10th amendment to the constitution . Congress can do what it wants. Whatever they want to do, they weve it out of a cloth. They destroyed federalism. Thank you. Was one of the dominant criticisms at the time. One of my favorite quotes from the newspaper debates that was one the decision commentator from virginia said a deplorable idiot if you cannot tell the difference between the government of unlimited power, say you do notou stand for, and a government of limited power that can achieve that power by unlimited means. So it is true that in pursuing the strong Central Government envisioned, he was less careful to preserve power for the state so it is a fair criticism. Host a related question from jason on facebook. How does this really square with the 10th amendment and other contexts, does this really not seem antithetical to such restrictions and granting power to the states [indiscernible] there are numerous questions that lurk there. The kiwanis something that marshall the key one is something that marshall advocated. If the government has the power, the exercise of the power is supreme and i ratifying a constitution with the supremacy clause, the states expressly acknowledge this. Lessee,ersus hunters in 1816 wherenion he said the states have got to be careful about understanding they surrendered certain things to the federal government. Even in the midst of the soaring National Rhetoric of mcculloch makes it very clear that the court is going to reserves the right and will if governmento call the and Call Congress and limit what they are doing. It will declare congressional acts on constitution unconstitutional. Painted this with preconceived notions. It is not an absolute as them. It is not the end justifies the means. It is very carefully measured. Host the chief justice got them to a unanimous decision. It p morse tweets and seems as this the issue is decided with a apple powers require ample means line in the opinion. Guest chief Justice Marshall never used one tool where five would do. It is something that is useful about his opinion. They are so useful and so frequently cited because you can go back to them again and again to find multiple avenues to get to the same conclusion. Yes, he could have decided the is that an opinion but wonderful and delightful he give us so much more to work with . Host roger is watching us in decatur, georgia. Caller about a year or two before Justice Scalias death, there was an immigration case whether thena about states could also enforce immigration laws, the case was decided that no, they could not. Justice scalia dissented. Addressed whether he mcculloch versus maryland and how he got around the fact that the immigration power is in the federal government. Host thank you. Guest i cant remember whether or not mcculloch is expressly mentioned in that case. That wasnt except love for god of a doctrine we call that was an example of a doctrine we call preemption. They are the ones that are going to deal with this issue. That the states cannot intrude and do contradictory things. That is consistent with the color versus maryland principles. Part of what happens there is this is an aria where congress has in article one, section eight and expressly granted power to make uniform rules of immigration and naturalization. Host another comment . At the time, immigration was decided on a statebystate basis. The cities would start set their own standards for who could come in. They developed over time. Our current chief justice has talked about this case and we will listen to what he had to say about it next. He was the first person to take the job seriously. Most lawyers have this image of him as the first chief, but he was the fourth. The three behalf before him serve for a couple of years and did not regard the court as an important institution. In fact, spend most of their time doing other things. Is famous for a treaty he negotiated with the english but John Marshall saw the role of the chief justice and the court quite differently. He took the job seriously and served in it for three decades. He is responsible for establishing the principle that the court has the authority and responsibility to review acts of congress for constitutionality. He established the court in a promise in a prominent position. Quite a number of president s were in alignment with him about his vision of the federal government. Guest yes. There are so many cases and the same thing is true today, the court will hear it dozens of cases am only two of two or three of them are significant constitutional cases. A large part of what marshall legal thingsne under various statutes and enactments. As you plot his chief justice in 1801 andg running through his death, there of, it tailsr case off after 1820 eight, where it is clear that he is being very faithful to this vision of a federal government that has significant authority. One thing that people do not talk much about was marshall was at valley forge. He was with George Washington in a situation where it was clear that letting the states do their own thing was not necessarily a good idea, because you had an army, a socalled army that could not do what it needed to do because the states were not providing the supplies that were necessary. Is background parts of John Marshalls life that play a very Important Role in what eventually becomes his vision of the nation. Host we will take a call next from robert in middletown, new york. Good evening. And marshalls decision, he made some references to the fact that his case must be decided peacefully or there would be a source of hostile legislation, perhaps even hostility. Would that be an overstatement to suggest that marshall was saying we are risking civil war if the relationship between the states and government was not worked out peacefully . Guest absolutely. You have to remember the nation was not very old. Many people who feared for its ability to provide were heartened by the upsurge of nationalist feeling that followed the war of 1812. Not everyone was in agreement about whether the government was going to work or whether it was a good idea. Guest there is a second dynamic. At the point where mccullough is agued, they are starting protracted debate on what they call the missouri question. There was a very great fear on the part of the Southern States that a decision that said there is a robust notion of implied power on the part of the federal government was a decision that presaged the idea of chattel slavery. Congress was debating missouri at exactly the same point that mccullough was argued and decided. The question of slavery and the question of mcculloughs role in slavery became one of the major themes in the postmccullough ebb and flow of kenyon. Even an entire back book written by john taylor which lambasted the decision because he field he feared it might mark the end of slavery. Did this set up for the error . Ott sense, marshalls vision of a strong federal , specifically a strong judiciary did set the ge for the later disasters disastrous decision that would precipitate the civil war. Host how long was the opinion . Guest 30 or 40 pages. Host would that be typical . That run today . Guest it depends on how many people disagree. It could be as short as two pages and some run over 100. Host lets share it with the viewers, the power to tax involves the power to destroy, the power did destroy may defeat and render useless the power to create. Repugnanceis a plain and conferring on one government a to control the constitutional measures of another, which other than with respect to those measures is declared to be supreme over that which exerts the control our propositions not to be denied. Would you interpret that . Guest if you open the door then you run the risk of having the power exercised. One of the arguments that is made is the maryland tax was a very small levy. It is more complicated than that. Going to that detail. The notion is if you concede to the state of power to influence the operations of federal government, then the states might well exercise that in ways that are going to cause severe impairment. It is the same argument that people made the exercise against the exercise of federal power, if you give the federal government the power, it will exercise it in ways that compromise the states. It is a twoway street within which the government has the ace in the hole or the ultimate club, it is called the supremacy clause. Remember thate to the federal governments ability to control what the states were a specificity that it might be able to do today but withholding certain funds or engaging in negotiations, that was not available at the time. Administrative problem. That is why a very strong role like what color articulated may have been necessary. Robust website where you can watch additional videos. We sent a video journalist on location to the places associated with each of the cases and those will be posted separately along with your opportunity to watch this program and its entirety after it airs. You can find that at cspan. Org landmarkcases. And the interactive constitution can help you ask for the provisions that we are talking about doing program. The next call is from chesterfield, missouri. Enjoying the program tonight. I wanted to ask, in what way did the mccullough versus maryland case lay the groundwork for the future conflict between chief Justice Marshall and president Andrew Jackson . Host would you like to take that . Guest it was the central aspect of it all, many of the impulses that would make jackson upset with the bank and was marshall were already in place prior to mccullough coming down. Hate the bankson more than he disagreed with the chief justice . Guest it is difficult to tell. Jackson had a robust vision of his own wisdom. He had personal issues with banks in tennessee that spilled over. This becomes more pronounced after he believes the 1820 four election is stolen from him. And even more pronounced once he becomes president in 1828 and it looks like the second bank is becoming an engine to oppose what he wants to do and where he wants to go. Story is also fascinating because it is at the ,oint that mccullough argues during the triumphant tour of played. That he had not by the rules in the seminole wars. There is a huge amount of great history that lurks in this whole question of jackson and marshall and mccullough. Jackson would respond directly to mccullough in his veto message. The bank of the United States came up for renewal was he was president. Congress overwhelmingly voted to renew that charter. He vetoed it. The veto message he sent to congress explain his actions, he said, i do not feel bound by the decision of this Supreme Court as to the constitutionality of the bank. That is what the Supreme Court believes create when i took my oath of office, swearing i would uphold the constitution, i swore to uphold it as i understand it and i understand the bank to be an unconstitutional exercise of federal power. Book in our Company Entry for this series, landmark cases, there is a wonderful editorial cartoon, general jackson slaying the many headed monster. I am wondering if we can show that onscreen. Typical of the sentiment during the time . Guest yes. One of the key players in the thenistration opposing second bank and working day to day to get its demise was a man who would become the next chief justice after John Marshall died. There is these little connections that are quite fascinating as you work your way through this process. Chiefroger tawny was the justice responsible for dred scott, among other things. Host were making it available at our cost, 8. 95 and it is available on our website. A synopsis of each one of the 12 cases that will be in the series. These cases are new to you and it sounds like some of our collars are still in elementary and grade school and learning about it and we have some studying constitutional law. If you are refreshing your courses from law school you might want to add this to your preparation for our series over the next 12 weeks. You talked a bit before about the media at the time. Can you if us a sense of how it operated in this country give us a sense of how it operated in this country, who did it affect . Guest the short answer as to waswas reading them everybody. People would grab them and read them out loud. Were talking about an era where americans were incredibly literate and invested in the political life of the nation. The specific newspaper debate that happened after mccullough involved several men writing under assumed names and that was pretty common at the time. Writing to disguise the fact players of the major was the chief justice of for jens highest court. Excoriations of marshalls opinion. Right where the opinion would be printed for everyone to see. Host chief Justice Marshall took exception and he try to do something about it by authoring his own editorial. What did he do . First set of very negative articles were written by a colleague of Spencer Rollins and marshall wrote to essays two essays in response. And under a pseudonym wrote a series of nine essays that defended the opinion. This is something that people today would view with extraordinary alarm. The notion that perhaps chief Justice John Roberts in the wake of the Affordable Care act might te his own pseudonym in us pseudonymous essays. Which they felt free to do. A sample of what chief Justice Marshall penned in a local washington. Newspaper. In a local washington newspaper. He did it under the name friend of the constitution. It sounds pretty defensive as you are reading that. Guest yes. On thelear that he was defensive. He felt unlike today, the court was not in a position of high regard in american culture. It had not achieved that austerity and that respect in society in society that it has today and he felt after he had authored the mccullough opinion the rest of the government should have thanked him and should have done the job of going into the press and writing these editorials that he thought was so important to defend the justice and the validity of his decision. When no one rushed to do it for him he took it upon himself. Host how did we find out it was him . Guest the research was done by Gerald Gunther who, there were people who did no who did no. It was not widely known. Gerald gunther who was an extraordinary scholar and volume,published a marshalls defense of mccullough versus maryland where he assembled the essays and published them around 1960 or so. It was a big coup. You are on landmark cases. Caller i read this case and others 45 years ago. I am glad you are doing this because i can remember what i read 45 years ago. My opinion, i do not know what heopinion was then but today did the right thing. If they did not rule the way they did, we would be a mess. Ae Supreme Court would be matter of [indiscernible] muchongress could not get work done, either. They did the right thing. I remember the 15th amendment the 15thout the end of amendment, congress had any powers with appropriate legislation. They wanted to double down, congress can do these things and it is the right thing. The right decision. Maybe the president would be the king if they did not rule that way. That is my offthecuff opinion. This is a great program. Lincoln, you need to do a program on all his cases. He probably had 50 to 100 great trials. One is the opposite, mclean county, illinois try to tax the railroad. Thecannot tax it because of illinois constitution. Please do Something Like this on all of lincolns cases. He was a genius. Thanks for watching. He makes the argument that this case belongs on the landmark list. Eighta keystone and bridge that marshall was building from the nation he knew and [indiscernible] to the strong unified National Government that we know it to be today. Like we have questions this one from a student on twitter. Guest yes. Rule is all the article three judges at the District Court level and the court of appeals level are bound by the president of by the Supreme Court and that is true of every Supreme Court precedent, not simply mccullough. The particular provisions of the constitution, we have referred to the necessary and proper clause that are directly related to this case. That people should know about. Guest the various things that the federal government has the power to coin money although we did not have a central federal currency. The federal government has the power to do a number of things with regard to Financial Affairs the infrastructure, for the postal roads, to raise taxes to spend for the general welfare. What marshall does is give you a list of these other powers that congress expressly has and draws the connection that is the necessary and proper clause means that has the ability to give effect to those, many of which are related to managing the Financial Affairs of the nation. The twitter question. Commerce is regular did by the federal government with banking because congress does not bank itself. Guest i may draw a question out of it. One question that could be raised is, is a bank which is not actually part of the federal government, is that an exercise of the interstate Commerce Clause . The answer for the history of the question has been yes. Of thethe key issues decision and one of the arguments that maryland raised is this is not a government agency. This is just a corporation. Private parties for private profit and the answer to performing thes function, regulating the credit of the United States and collecting taxes. Congress is empowered to use whatever method it wants to do those jobs. Flip side of the your description of marshalls early america. Did this case blur the lines . Between theit is states. Did they loose some of their identity . Think mccullough causes any state to lose any of its identity. That is not one of the consequences. I do not see where that would be part of what follows from the color. I agree. Most people thought of the state as their country, as their primary source of personal identity. One thing they worried about was something that they viewed as a foreigner, an arm of the federal government, reaching into their state. I do not think it risks blurring the lines. Plural noun, not a singular noun. It was not until after the civil war that people referred to it as a singular. Host were people wondering how this young nation would establish itself and where they looking to this case . Guest the international dynamic was another part of the whole thing. Byot of the stock was held citizens of other nations in their worse there was some sense that the bank was a tool of foreign influence. Just as a practical matter because of the Financial Investment in the bank, it was great interest in the case because if the bank was not going to be there, some investments that had been made were going to be at risk. When they had to repay the loan that you mentioned earlier, they borrowed the money from foreign theyns to get the specie needed to settle that debt. There was a great interconnection in terms of the financial aspect of the u. S. At that time with foreign governments. Host what about the diplomatic sense . On itsthe u. S. Relied foreign trading partners quite a bit. Though. Still was even some manufacturing had started, it was still prominently a producer of commodities. Markets watched and waited to see. Is the u. S. Going to continue to evolve into the kind of rampant inflation and proliferation of banks that we saw during the war become or is it going to a responsible trading partner, so it was incredibly important. Host welcome to the conversation. I appreciate this. My question is where discussions ,bout Constitutional Convention did it play a role or do you see the influence of mccullough versus maryland injected into Constitutional Convention . If states were to call one today . That it wouldrry be a pandoras box if we called one today. Thee were attempts to amend constitution in the wake of mccullough over the course of the 19th century that were offered, they never made it to the states, they never made it out. There has been debate about , for example the necessary and proper clause to put in the word expressly which did not survive the Constitutional Convention. If we had a Constitutional Convention, i am sure color would be part of the landscape. Host on the international front, in 1904, the case was cited. Heres a bit of what they had to say. Benefit of the considering numerous decisions of the Supreme Court of the u. S. Upon analogous questions arising under the u. S. Constitution beginning with the celebrated case of mccullough versus maryland decided in 1819. In which chief Justice Marshall in its needs a nancy aided the doctrine which have ever since been accepted as establishing upon a firm basis the fundamental rules governing the mutual relations of the Great Republic and its constituent states. The u. S. Is not the only nation that derives its legal code from the British Commonwealth system. It has turned into a confederated government. Australia deals with this beautiful problem as does canada. The question of how to divide power between the state and the federal government is one that all confederated governments struggle with. Becausethe u. S. The u. S. Struck out early on struck outon, i mean on the path to answering that question early, our experience with it is useful to those countries as well. Next question from twitter. Lets go back to that list of seven justices. We talked about the chief justice. Henry livingston, and joseph story and others, did they go on to earn a special role in American History . Guest joseph story is one of the great figures in american legal history. He is appointed to the court and the first for faster of law at harvard university. He wrote a massive number of treatises and had a great influence on american law and also to areas beyond the constitution. By any measure, joseph story was one of the great justices. Fascinatingson is a figure. He was jeffersons first appointed to the court, jefferson had great hopes for william johnson. He thought he would be the guy to put things to the right and johnson, for the most part, adhered to the marshall vision. And was a great disappointment to Thomas Jefferson but also was a very right person who wrote some very good opinions. Is a fun question. Two of the justices on the court compete ine scholarly estimation for the least significant justice of all time. Decision to do away with the opinion and speak with one voice was incredibly important for the court. Justices of courts in britain and other commonlaw each detailed his opinion and then you count out the number of opinions that end in one result or another and that is how you knew what the decision was. It creates a little bit of confusion am a witch reasoning did lower courts follow to decide similar cases question confusion, which reasoning did lower courts follow . Host what do the issues have to do with nullification and what led up to the time of the civil war . The nullification was an extension of a debate began in the 1790s in the wake of the alien and sedition acts. And came to a head with south the 1820s. One of the ironies of mccullough is that one of its greatest opponents is Andrew Jackson who, in turn, became one of the greatest opponents of nullification. He took a very firm stand against that. So part of the fun of many president s is the difference between the rhetoric they espouse and what they do. In the situation with regard to nullification, it it is contrary to the central premises of mccullough and the marshall vision, something that was strenuously opposed by Andrew Jackson. Host next, john from lincoln, nebraska. Caller i was wondering what the likelihood is that the more sayervative court, lets one more conservative justice might reverse mccullough or roll it back somewhat, in view of the polarization we are now experiencing in the political system. Host a related question on twitter. Do you think the Supreme Court today would reach a similar conclusion, or what they have right d irelands marylands right . Guest what makes this such a landmark case, it puts [indiscernible] beyond dispute. War, it isthe civil quite set that the government has the power to do things like establish a bank to regulate currency. The idea that the Supreme Court would say the Federal Reserve the great agencies of government are not constitutional exercises of congresss power, no, that would not happen. We have gone too far to go back. There is a collateral thing and we keep forgetting that part of what mccullough does is reaffirmed the role of the Supreme Court itself. I do not think the court under any reconstitution, no matter how much you go in either direction is going to be the least bit interested in undermining itself. Guest or reversing marbury which establishes the role to review. Did we get from the demise of the National Bank to a Federal Reserve . Guest a long, protracted process during which we had many depressions,ses, panics, etc. , and eventually in the early 20th century, they decided they needed to do something about this. The Federal Reserve was what they came up with to get us a system within which we had a unified approach to these financial matters. Host we will wrap up this discussion of its case and it is important. Is mber we have a few more minutes. Spend somee you to time because you wrote about it in the last chapter of your book about jims mcculloughs own circuitous life after this case. How did you find out about it . There is not much paper available about him. Guest it is what historians do. I am historian by that is what i started to do. You start going through archives, you go through the massive publications that are available searching for these little not its what happens with is he isulloch acquitted in 1823, he goes into the maryland legislature, he becomes speaker of the house, he becomes a very respected figure in baltimore. Engaged in a number of , he becomesursuits first comptroller of the department of the treasury under president tyler. In that capacity as someone who nowably was a crook, he is in charge of many of the key financial aspects of the United States government. Host how could that have happened . Guest redemption, reform. What you cannot find, i have not been able to find is exactly what mccullough himself thought and how people viewed him to get to the point where he goes from a figure of scorn to a figure of respect. But it happened. This Horatio Alger like. Is not, his story was a typical one for the times as the urge to prosper and led many individuals to do what they could to succeed. What were you saying there . Guest it is part of the Great American story. This is the country of the notion of opportunity, the ability to succeed on your own onits or demerits, depending how you go about it. It was typical of the time. It was a brandnew nation. Very looselyas net. They were opportunities available to individuals to seize initiative and become successful. Mccullough did that. He did it initially, become cashier of the Baltimore Branch and he did it again after losing that position. It is part of what people think the u. S. Stands for. Host you describe, we do not have a position of the comptroller of the treasury today but tylers appointment was significant. What did it do, that job . That was the person who was the central figure who audited the accounts, took care like the warrants, was treasurer of the u. S. In the sense of receiving funds and dispersing them and being responsible for them. Host i wish there were more documentation because it is an interesting past to go from this Corruption Case with the second bank of maryland all the way to speaker of the maryland house and being a president ial appointee in the treasury department. To know more about how his story would have turned out. What are your thoughts when you look at his life as a central character in this case . Typical of what you find. You see the same names and same family names pop up again and again. It seems as though there were not enough qualified and talented men to go around. For example, the justices on the Supreme Court, each of them felt held a position in judge in government. Same men didthe everything society required. That was in part because of the bleeding out of loyalists and in part because it was so hard to get an education at that time. If you had been one of the lucky few, who had grown up and learned the skills of a lawyer, you would be in demand in one role or another in your state government. Host we would should say that significant parts of the population were excluded because women cannot participate and africanamericans could not participate. Is jim in omaha, nebraska. Thank you for taking my call. You guys are talking about a National Bank, it was mccullough, i have been trying to follow everything youre saying. You bring in the idea that this goes into the Federal Reserve we have now that was established in 1913. The question i have for you is the idea that having a central bank, does not take away the idea and you guys brought it up earlier, one of the numerators hours to coin money and regulate the value thereof, does not give the chance of the federal government through the Federal Reserve to manipulate our currency in a way that with the qe that we have had in the last decade, and the number of qes and giving us the inflation problem with manipulating our currencies . The second bank of the u. S. Started because america was having a tremendous problem with fluctuating currency and it was in part because there was no central bank to help rein that in. It a problem of runaway inflation and fluctuation, but the government had no one to borrow money from. The bank of the u. S. Was founded to perform four functions, it was intended to loan the government money when it needed testollect the taxes, and state banks to make sure they to what theytrue said they had in their vaults. And establish one unified circulating currency. It did it in ways that the Federal Reserve does not do and there are things the Federal Reserve can do which is loaned money to banks and pay interest. What has been consistent throughout the history of these Central Banks is the realization that when they are well run, they are incredibly useful to society. A collateral thing i have been wanting to put in with regard to banking, it is an except very areawide we have a we call concurrent activity. The Banking System in this country is set up so the states and the federal government have a role to play in the regulation of financial institutions. It is not exclusively a federal matter. The federal government could make it exclusive if it wished but they took a different route and the states have a robust presence in the Financial Affairs of their institutions within their states. Host stephen is next. You are on the air. There is an increasing amount of concern today that the country is, our country today is polarized in terms of the powers of the government, what the executive could do versus Congress Versus the courts role. It sounds like from your discussion that the country was fairly well polarized back then. I wondered if you would agree with that and if so, whether what we are experiencing today has much of a concern as we all seem to think it is. Host thank you for the question. Guest politics in the early nation were just as vicious, if you wish, as they are now. The personal attacks on john thes and jefferson during 1790s were at least as robust as anything we have today. The variation we have today is the extent to which we can get agreement. The splintering, the perspectives, if you go into debates about the constitution, you go into debates about the first bank of the u. S. In 19 1871. It is robust and pointed and pretty splintered. Guest predictions of the apocalypse are just about as constant in our politics is anyone else anything else. It is fundamental to our nation where a group of desperate people who have come together to experiment, daring this amalgamation of different states and different people to form one nation, and that cannot happen without friction. Cap are on mr. Mcculloughs life, we visited the Maryland State House were he served as speaker after this case. And talked to historian linscott who told us more about james wakullas life. There was a law case against ,im and they accused him of along with three other men, James Buchanan and george williams, they accused them of embezzling from the bank. And the law case was acquitted. From that trial, he becomes a lawyer, he is a lawyer for several more years. In 1826, he ran for the house of delegates and he made it. So obviously, there were not a lot of hard feelings toward his link case. We are here today in the old statehouse, the old delegates chamber where James Mcculloch served as speaker of the house, 1820 62 1827. He resigned after the first year. He wanted to do other things. He was a very active man. A type a call him personality. He was nominated by president john tyler to be the first comptroller of their u. S. Treasury. And three ofldren his children were living in new york city at the time. He did go to new york city after that my lived in their. Unfortunately, from what i read, he suffered from alzheimers at the end of his life. Life ofmore about the James Mcculloch. The concept of federal percent supremacy. What is your question . You were talking about how there is a struggle states the powers of the versus that of the federal government and the question of the federal government impinging on the power of the states. I heard a moment ago they spoke about how the constitutional amendments [indiscernible] and [indiscernible] we will use that question to understand the significance of this case constitutionally. It affirmed earlier doctrines that were not anywhere near as prominent in the american consciousness that at a point in time when we did need a statement with regard to strong federal government. Was a the constitution compromise and like all compromises, it contained ambiguities and silences. In mcculloch, john the silencesended were not there and his vision in effectuating the strong Central Government he saw the u. S. Could be as one of the reasons we were the case and him today. Host while we talk about the scope of the federal government and the things it does, there is a central debate going on, can one look to mcculloch versus maryland for opening up the doors for the roles the government has taken on . Guest that is part of it. Part of it is the congress to legislate more. They do not did not pass anywhere as near as many statutes back then as they do now. Even in this dysfunctional congress, they still crank out the statutes. Host thank you for being our inaugural guests and helping us understand the history and the importance of mcculloch versus maryland. We appreciate your time. Thanks for being with us for this first of 12 programs and a special thanks to our partners at the National Constitution center for their assistance week on landmark cases, we will explore the civil rights cases of 1880 three that struck down the previous Civil Rights Act of 1875. Access to People Public accommodations like trains and theaters. Join the conversation. Landmarkcases. Cspan. Org bsite at landmark cases. You can order the companion books and visit the National Constitution centers interactive constitution. Federal reserve chairman Jerome Powell testifies tuesday before the House Financial Services committee about the health of the u. S. Economy. That is live at 10 00 eastern on cspan3. The afternoon, former Federal Reserve chairs janet yellen and ben bernanke discuss miss yellens career and the economy live at 2 00 p. M. Eastern from , alsoookings institution on cspan3. You can follow both events on cspan. Org and with the free cspan radio app. The Supreme Court heard arguments in a lawsuit filed by an Illinois State worker who feels his rights are being violated by having to pay dues to a union he doesnt support. Of American Federation state, county and municipal a ploy ease employees will hear from mr. Janice and his employer next. Us on in washington, d. C. , mark janus, an illinois Child Support specialist and the lead plaintiff. His litigation director, an attorney for mark janus, thanks for joining us. Plaintiff you cast your argument before the court today as a First Amendment issue. The First Amendment guarantees me the right of freedom of speech and freedom of association. The problem is i am not allowed to make that decision for