Still make. Welcome to landmark cases the first of 12 we are looking at this season. Mcculloch versus maryland is the case tonight we will or more about this case and the people and issues behind it and why it is so important in American History process later well take your calls and questions on facebook and twitter to make a part of this conversation. Two guests are at the table to help us to understand what this is all about. Teaching at the law school and was working with the Justice Stephen breyer and from university of arkansas author of a book about this case mcculloch v. Maryland welcome to both of you. The first question is why is this so long on the list of landmark cases . One of the most dominant with the interpretation of the constitution then and now whether we should read the limitation on government or if it grants power. With this landmark case chief Justice Marshall intervened with the controversy. First he held the federal government and congress is not limited to the specific power of the document but instead access to a broad range of inside powe power. Second, he continued to campaign throughout his tenure on the Supreme Court asserting the Supreme Court was not only the dominant interpreter of the federal government but also he could say either one by doing so to disagree with the highest court of the state and that was the dominant controversy at the time. You have written a book about it see you think it is important but why should people 200 years later care about this case . It provides a series of foundations for the way things operate today. One of them is the notion of the ability of congress to do that which is necessary and proper to effectuate the constitutional compact between the states. The other people dont talk about is marshalls conception of the roles of congress. Judgments about policy and what is necessary our judgments left to the congress it is part of the formulation central to the case from what is plainly adapted. But that deference to congressional deference of good policy is a very significant factor. The other thing that enters is marshalls willingness to sustain the bank of the United States at a point in time when it was a loathed institution nobody liked it. The panic of 18,193,000,000 out of 9 million in economic dire straits so in the active judicial courage to put the bank on square flooding, precisely the moment that they did. So that makes it a landmark case. Not just the rules they articulate but those circumstances. Host spent more time on the circumstances what else should people know about the country had 1819 . During the war of 1812 the work created isolation as they tend to do. And it was exacerbated by a rash of new banks opening. So back then they would hold in their vault a certain amount of silver or gold currency and issue notes that was worth one dollar or ten dollars worth of hard currency take this paper money use it as if it was our cash anybody can bring it back to redeem it for gold or silver. But without regulation they were issuing more paper than they could back up and as a result at the same time for american commodities like wheat and cotton and it got bigger and bigger. Unfortunately it didnt bust due to a range of factors including the conclusion of the napoleonic wars in europe. And france was not quite as strong but the bank was hurt as well. The bank had its debt coming due and had to pay back the bonds that United States treasury had issued to pay for the louisiana territory and they can only pay back those bonds in silver. In order to pay that they had to suddenly start going to each of the state banks to say give us the hard currency and that starts forcing closures across the country that led to personal bankruptcies and the whole system collapsed. Host why was the second bank low . One reason was the perception it had a key role or perhaps even the main source of the panic of 1819. But history is mixed on how much it did cause. But the other was that precisely at this moment this was happening, the rumors of corruption and theft and misrepresentation on the part of the bank in particular the baltimore were coming to a head. So congress put together a committee that basically documented that they at the Baltimore Branch was terribly corrupt and inefficient and not an institution that you would trust. All of this was coming out at precisely the same point the case was set up to be argued with the suffering court in february. Host dissenters around the bank of the United States particularly the Baltimore Branch and really it is over the two issues part of the debate since the founding that state supremacy versus the federal supremacy that was a proxy of that conflict. Absolutely. And then based around the country there was the panic of 1819 then they drive the bank out of the territory. Marylands law it is arguable they 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 15000 of hard cash per year for every branch open in the state. And that was designed to drive the bank out of the state entirely. So the question was does the federal government have the power to charter corporations within state boundaries . Do the states have the right to say what types of institutions are meddling in their economies competing with their own institutions . If not, what are the sovereign powers that the states thought they had reserved in the constitution. Host reestablish the issues now lets talk about and we will get more deeply later but the players. First james t ted. He was a relatively young man at that time a veteran and wounded in battle and went back to baltimore and hooked up with some locals and became the cashier which was that head Administrative Officer of the Baltimore Branch. In that position he saw an opportunity to get rich and explain his position and he formed a partnership with two others to engage with the sale of the stock of the bank and also advocated with its policies. So because of the conservativism from that success the new bank constant existence starts off with a relatively conservative set of policies. The president at that time was a very weak individual and t10 was pushing for the bank to be more aggressive and expansive. And that was a force for where they ended up with the corruption. Host so he was a crook as you described in your book but the case is not about that. Did he ever faced justice . Eventually. There was an initial attempt in 1821 then 1823 the conspiracy cases his attorneys put the bank on trial rather than him and his partners. By raising the issue of the bank as an evil force this intruder or this alien presence, they could get t10 acquitted then he embarked on a successful political career. Was his role in this case . One of the most famous because again and again he came before the court to argue the most important cases. So he helped to expound the constitution for this was incredibly interesting and important session of the suffering court and he appeared several times arguing not just against maryland but if humans before. Host we will invite your participation and go to calls in about 20 minutes so you can be part of the conversation. We will take historical questions and the implications of this case currently through the political process. If you live in the eastern or central time zone or mountain or pacific the numbers are 2027488901 if you tweet use landmarkcases there is already a conversation going we will follow those during those 90 minutes. But one small point about mr. T19 we found three different citations of the smelling one spelling of his name. There are variations so how did that happen . Actually i wrote the book and afterwards i was doing research in the South Carolina Historical Society and found, i dont know if it is his handwriting but it was a handwritten note when James Mcculloch was trying to get a job after being fired as the cashier and he spelled his name James Mcculloch and if you go into those source materials that is probably his name as he used it but what happens with the typesetting conventions and the confusion of that age, the Supreme Court alone has three or four variants in terms of spelling his name. But based on what i found in those papers of James Mcculloch is how he spent it spelled it. Host also later officially changed their spelling so for those looking at genealogy. That is just a sidebar in the Supreme Court documents that are different. So lets get into the cases. As you implied maryland wanted to go to the bank and how did it get to the Supreme Court . Maryland passed a tax it was interesting and very common for the late 18 century tax it was the stamp tax the same type they protested against right before the revolution. Maryland issued paper that was a little bit costly, five cents for this piece so you could issue notes but only through these expensive papers. That is how they operated. James mcculloch as a cashier refused to use that paper and continue to use notes so he refused to pay the penalties and that brought the case to maryland district court. Host how did he get to the Supreme Court . Maryland court of appeals that affirmed the maryland tax then they brought the writ of error to the Supreme Court september 1818 and the court took up jurisdiction and set for arguing and started to argue the following february. One historian discovered during his own research was that this was almost certainly a contrived case. He found information from the governor of maryland saying basically they set this up precisely to test the constitutionality of the bank. This isnt unheard of in history but again, interesting insight that the bank was a significant issue since 1791 and people wanted to resolve the question. Host whether or not there was constitutionality of the federal or National Bank. 1819 the supreme Supreme Court was just moving into new spaces at the u. S. Capitol building that was burned during the war in 1812 and we will learn more about those spaces in which the early Supreme Court operated here in washington. In this chamber where such landmark cases such as dred scott and the United States would have been heard and argued and presented to the court. Walking into the chamber to hear mcculloch v. Maryland that was just reef her best following the fire of 1814. New draperies, new paint, new carpet put down and windows installed. But the arguments would have been opened to the public, the the arguing attorneys in the petitioner and respondent would be in the lower recessed area. The space is dark, damp, and like the cold february 1819, would have been a daunting environment to be into present an argument to the Supreme Court. Webster and the other attorneys would have argued the corset one dash before the Supreme Court february 1819 and the arguments mcculloch v. Maryland lasted nine days and then each of the council what have had a great deal of freedom to speak on interrupted it to lay out their case before the justices. They convened at 11 00 a. M. That morning and adjourned somewhere around two or 3 00 oclock depending on how long the arguments went. There was a restriction of two lawyers per side but the suppression court waived that so each side had three attorneys in each attorney could speak up to three days. Host beautiful spaces inside the uuppercaseletter can still view them but this up in at the time had seven justices in the chief justice was John Marshall and often referred to as the great chief justice because he is not the first but why does he get that description . Because he made a decision to put the court in its proper place. During the last months of the Adams Administration initially he turned to john jay to be the next chief justice and in fact he was confirmed then adam sent a letter and he said no think youre not interested because when i was on the court it didnt do anything worth doing so marshall comes 1801 determined to have the core estimates right will place particularly in the light of the transition from the federalist under the Adams Administration to those under jefferson. Progressively beginning with marbury he carved out a place to say the suffering Court Matters it will be the expositor of what the constitution means and mcculloch v. Maryland was one of those critical steps to secure the article three as a meaningful role in government. Host so in addition to chief justice appointee also relative of the first president to the adams appointee there were three jefferson appointees johnson and livingston and thomas todd to participate in this particular case and to madison appointee so what did that mean for those ideological discussions the court is having . One of the special things that he did was put them on the path to make sure that they lived together while they were in session and had those discussions about what the opinion should look like. Because of that, even though justices were appointed by the administration there was remarkably little dissension on the court. He could issue the majority of the opinions in one voice. Host in additional to Daniel Webster what about the case from maryland . Luther martin a very good attorney general and also walter jones and, im drawing a blank. And then there was cocounsel. But then as now there are much fewer lawyers who argue they knew each other professionally and prefer slowly so for example arguing for the bank of the United States is the governments prosecutor in the aaron burr trial for treason in march in the former delegate from maryland was the defense attorney for ehrenberg. They came together again and again. Peter iron says about the attorney general it is reportedly argued that fletcher case in a drunken state ten years earlier and was rumored to be any related during the James Mcculloch argument he was a skilled orator. Do you know about that . It is absolutely clear he had a drinking problem that people openly discussed and it became a significant impediment the last two or three years as attorney general were not terribly successful. And it sped up his death. Toward the end of his life moving into ehrenbergs house and his old client took care of him. Talking about Daniel Webster who was wellknown in our history books because of congress but now we will delve what it was like to argue this case and we will return to that chamber. Webster had a nickname at his time as a black man because he had black hair and deep set dark eyes that were piercing. And a very serious look on his face making this argument you will hear reports how he would stare intently at John Marshall. But it was difficult to come into his own as an advocate before the Supreme Court. He was first admitted to the bar january 1814 very shortly after he arrived to serve as a member of congress in 1813 in New Hampshire but no stranger to John Marshall. He corresponded with them. Also intimately acquainted with all the attorneys involved. Hopkinson who is arguing for the state of maryland was his cocounsel the year before. The attorney general who was arguing with him on behalf of the bank was on the other side of the case for the Dartmouth College case. So to argue before the Supreme Court it was a relatively small club and the attorneys would have been very aware of each other and know each other very well at this point. Daniel webster spoke on the first day february 22, washingtons birthday after he 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 done but then thered be another day of arguing three days was a long time and he was anxious to get out of town. He picked up on that nine days now they give them one hour to argue a case with 75 cases per year was nine days unusual . It was. Usually that they only bring two lawyers and they speak for two days of argument each. So each tied could bring three lawyers and Luther Martin even in his heyday at the Constitutional Convention in philadelphia was known to talk on at length that everybody would get tired so he took up a full three days and that was quite unusual. Host how did the justices process that . What is interesting at the time with the histories that we have is that they would sit there silently there was not that giveandtake on oral argument. They would listen respectfully they did not interrupt with questions and they would hear what the attorneys had to say part of that is the reality they were not doing formal written briefs with this large quantity of printed material but they treated them with respect. What was working in that room like . Could the general public, liste listen . Was it popular . It was one of the most popular forms of entertainment those social seasons were marked by certain things when the port convened in february and was there five or six weeks. There was a constant parade of people coming in and listening and to talk about how during those oral arguments that chamber was full it was very important to the city both what the issues were in the social scene in washington. It is time for your questions and comments beginning with illinois you are on landmark cases. Caller hi everyone. Host what is your question . Caller given that marshall was a federalist from the democratic republicans was there any partisan backlash to his decision in this case . Host yes and we will spend more time about that impact. There was tremendous backlash. Tremendous and it took a pointed and heated debate the newspaper where the great lawyers disagreed with the judgment point by point in the most possible way and also took the form of active political resistance because many of Justice Marshalls opinions were written by the state whose statutes he struck down. So marilyn followed that but other states around the country decided especially as it seemed the case this was a setup job that maryland had agreed to go to the Supreme Court. Their issue was the bank could not be tested by a decision in that case so they refused to follow the courts to ship decision. Host with that ideological casting we see this as the beginning of the demise of federalism so today if you are a liberal or conservative do you look at this case differently . It wasnt the demise of federalism in one respect because they were losing power over many years and no longer a dominant force in the political process and that is what made Thomas Jefferson especially angry was the notion the federalist judges had found a refuge in the article iii courts and they could not be removed. So the political dynamics had already started to shift but marshall had was supposedly the figure that was a thorn in the side especially when jackson would come as president. Host next is texas. Caller hello . I wanted to know how it relates to the government today. I am studying eighth grade history. To congressional judgments about the policy. Certainly the notion that the states may not impair the operation of the federal government by taxation or anything else is very an portent. Its just a simple part of the assumption that we have a compound republic inserted areas where it exercises the Supreme Court told us the federal government is supreme. Related to that, we have a message from the quest called a p. Who asked where would you personally rank the case is important . Every nation needs a pass to draw its fundamental principles and this brings up there with some of the most important principles that we have. Its such an important case that its site aits cited time and tn it must have been cited in a dozen of them. Just about a month and a half ago a case came down from the Supreme Court or Justice Ginsburg cited it and discussed it in the dissent so this is a part of the basic principles that make up the basic. When you talk about federalism, but that in the context of what people understood it to be in this time of the nations history. Justice oconnor called it the oldest question of constitutional law. When you talk about the immigration matters and medical care. What is the ability to frustrate or Work Together with the former is central to the questions about how the government operates today. What would the lawyers be arguing . They would be arguing that congress did have the power to create the bank. The first point maryland wanted to contest is whether it was a legitimate institution. It isnt expressly mentioned in article one section eight during the convention they rejected the clause that would have given the power to establish the corporations so the first thing the bank is going to do is say may i have the power to do this. Maryland said it enumerates which taxes the states can levy. That list presupposes that Everything Else is free and op open. So they had strong textual arguments and from the actual history of the convention and by all accounts they had some of the better legal arguments. The power to tax and destroy which was the argument Daniel Webster floated for the reason why maryland couldnt pass the bank. Its very dramatic but its not true. They impose all kinds of things and presuppose it was no such thing as gradations of power. Tulsa oklahoma you are on with landmark cases. Caller [inaudible] my question for the guests are what impact did this case happen if says the federal government may do that to achieve those things that are written in the text so under the necessary and proper clause congress has in the first sequence of the article specific powers enumerated for whatever is necessary to achieve those things even though it isnt specific you may do it. The attorney general is threatening to banish marijuana Recreational Use i of the states where it is legal. What will it they say about that they considered that case and in it they held that the commerce allows them to recreate Recreational Use within the state. I think the same opinion also apply to this. Baltimore is the home that cop is underway. Nathan, you are on landmark cases the goahead. Caller it contradicts the obamacare ruling. V. Obamacare ruling was the important case that came down in 2012 and what that means as in so many cases Justice Breyer very carefully went through the process that marshall had used saying these are the enumerated Powers Congress have the right to pursue and to tax and regulate commerce. So, we must see that congresss choice for how to pursue those is left completely and totally outside of town of the permissible use of their power. Another critical distinction is the tax whatever you want to call it, the penalty was an individual as the government itself and a question was taxation government not on individuals. We were talking about the implications but lets move on to the decision itself and how it was reached. How did Justice Marshall after nine days of arguments approach a position with his other justices . The decision was announced on saturday and there were some people who were very suspicious of this thinking that he already pre charged the case and must have written it up in advance when you go through the decision of care you see that he took pieces of the various arguments who was the last to argue, that part of what has to she noted earlier they live together, they were there working to gather and is no doubt they were being very careful about the case and thinking it through as the arguments unfolded. They obviously knew the country was watching. What more can you tell about the process of getting to the consensus . The actual conversations that they have between eac had betwee lost in time but its clear that in the background marshall was very keen to put the power on the basis so it was one vehicle that allows them to get to a vision of the American Government that would be powerful enough to build the kind of economically powerful society that he felt america could be. Does it all right out, can you see the online and reasoning . There is a series of cases per bank of the United States versus fisher where marshall and his colleagues developed both the court and its role in to the nation that will have a certain degree of supremacy in critical areas and to continue after mcauliffe threw the case into osbourne versus the bank of the United States where he continues this process of fashioning a vision of a strong Central Government that will act for the good of the nation. Its a big reversal that was running around when the constitution was right. Passed in keyport new jersey. I would like t to followup n what you just said. Doesnt the decision aggregate the tenth amendment to the constitution . Congress can do whatever it wants. Its not limited to anything in the document and basically destroyed federalism. That was one of its criticisms at the time. One of my favorite quotes that followed the decision was the one commentator from virginia said you must be a deportable idiot. It can achieve by unlimited means, so it is true that in pursuing the strong Central Government that marshall in addition, he was less careful to preserve power to the state. Related question. Heres my question, how does this square with the amendment placed upon the federal government does this not seem antithetical to such restriction and granting the powers without federal interference. There are questions that live there but the key is something that marshall has articulated in cases prior and that is if the federal government does have the power, it is supreme and by ratifying the constitution and the supremacy clause, the states expressly acknowledged this about the case of the Supreme Courts decisions. But it is a story opinion in 1816 where he says the states have to be careful about understanding that they surrender certain things to the federal government. And marshall even in the midst of the soaring national rhetoric, it makes it clear that the court is going to reserve the right and the will is necessary to call the federal government and congress to limit what they are doing and will declare congressional acts. In the heat of political rhetoric people can do this with preconceived notions, but the language itself in the formulatioformulationformulation place is not an absolutist on and this justifieend justifies. Samuel moore says on the opinion doesnt he effectively decide the issue before even discussing the necessary calls it seems as though the issue was decided within ample power to require the means of the opini opinion. He never used one tool player five will do. They are so useful because you can go back to them again and again to find multiple avenues to get to the same conclusion so yes he could have decided the case with an opinion, but isnt it wonderful and delightful that he gave us so much to work with. Host rupture in decatur georgia you are on landmark cases. Caller about a year or two before Justice Scalias staff, there was an immigration case out of arizona about whether the states could also enforce immigration laws. The case was decided that no they couldnt come up with the Justice System did and i was wondering how he thought around the fact that the immigration power is in the federal government. Do you know the answer to that with Justice Scalia . I cant remember, but that case was an example of a doctrine that we call preemption and the notion is if the congress and the administration has made clear they are going to deal with this particular issue then that states cannot intrude and two contradictory things. That is consistent with the principles got a part of what happens is an area where congress has an article one section eight expressly granted power to make the uniform rules. I was going to mention that the time it was decided, it was on a statebystate basis including new york and philadelphia to set their own standards. So these kind of rules arcing is that developed over time. The current chief justice talked about the case. Most lawyers have this image as the first chief that he wasnt. The three before him serve a couple of years and didnt regard as an important institution. Its most famous for the negotiation and basil and quite frankly. He took the job seriously and served for decades and is responsible for establishing the principle that the court has the authority and responsibility to review acts for constitutionality, said he established the court in a prominent position as one of the branches of government. In the three decades he served it means quite a number. For all owere all of them in alt with his vision of the federal government . There are so many cases and its the same that is true today. The court will hear dozens of cases in any given term it is constitutional cases. So a large part of what marshall did was kind of routine under various statutes and enactments, but as you plot starting in 1801 and running through his death, there are case after case where it is clear he is being faithful to this vision of the government that has the authority. One thing people dont talk much about his marshall was at valley forge with George Washington in a situation that was clear letting the states do their own thing wasnt necessarily a good idea because you had a socalled army that could and do what they needed to do because the states were not providing the supplies necessary. There is background parts to play a very Important Role in what would become the vision of the nation. We will take a call from robert in middletown new york. She made some references to the fact the case must be decided or there would be a source of hostile legislation. Am i correct wouldv wanted to n overstatement to suggest we are risking civil war in the relationship between the state and federal governments . Absolutely. Many people were heartened by the feeling that followed the war of 1812. Not everyone was in agreement about whether it was going to work or whether it was a good idea. At the point that hes argued they are starting a protracted debate on the misery question missouri question that said there is a robust power. Congress was debating at exactly the same point but mcauliffe was argued and decided. Its a question of the role honestly believe that became one of the major theme even an entire book written. Did they set up power. The Supreme Court only struck down federal statute and the other was in dred scott. So in a sense of strong federal government and judiciary set the stage for the leader disastrous decision. How long was the opinion when it was issued . In terms of pages, 30 or 40. Would that be typical of the time . And what woulwhat a typical dee today . It depends how many people on the court disagreed that some could be as short as two pages. Use both referenced the particular passage to this decision. The power to tax involves the power to destroy. The power to destroy me defeat and render useless the power to create. But there ithere is a plain repd what government in the power to control the constitutional measures of another which other with respect to those measures is declared to be supreme over that which excerpts the patrol, the oppositionists off to be denied. Would you interpret that for us . If you open the door then you run the risk of having the proper exercise. They may exercise that in ways that are going to cost. Its the exact same argument people made against the exercise on federal power. Is called the supremacy clause. It seems like a disingenuous argument but you have to remember that the ability to control the states were dealing with a specificity that it might be able to withhold certain times there was an administered to the problem. How easy was it to communicate and set the default rules. We have a very robust website you can go and watch additional videos to the places associated with the cases and those will be posted separately along with the opportunity to watch this program in its entirety after it airs. You can find that on the landmark cases and also a link to the National Constitution centers which can help you explore more about some of the constitutional provisions that we are talking about inappropriate. The next call, you are on the air. In what way did they lay the groundwork with Andrew Jackson. It was a central aspect although the impulses that would make jackson upset with the bank and marshall were already in place prior to coming down. If jackson hates the bank more than he disagreed with the justice . Its difficult to tell. Jackson was one of those people that had a vision of his own wisdom and he had personal issues with banks in tennessee and this becomes more pronounced after he believes that the 1824 election is stolen and even more pronounced once he becomes president in 1828 and it looks like the second bank is becoming an engine to oppose what she wants to do and where he wants to go. The jackson story is also fascinating because it is precisely the point that they argued jackson is doing a triumphant tour of the United States in the wake of congressional exposure and the fact he hadnt played by the rules of the seminal war so there is a huge amount of great history. The charter came up for renewal while he was president and Congress Overwhelmingly voted to renew the charter and he vetoed it and veto message he sent explaining his actions he said i dont feel bound by the actionss of the constitutionality of the bank. That is what the Supreme Court believes but when i took my oath of office to uphold the the constitution i swore to uphold it as i understand for the exercise of federal power. In our complimentary book for the series landmark cases which is written by the Supreme Court reporter and there is a wonderful editorial cartoon from the period general jackson slaying the many headed monster and i wonder if we can show that on the screen here. One of the key players opposing the second bank and working daworking daytoday tio get its demise so again there are these little connections that are fascinating as the work your way through the process. He was the chief justice responsible for dred scott among other thin things. Iin backcourt positions volue two we are making it available at the cost 895 and its available on the website each one of the cases that will be in the series they are new to you and it sounds like for some of the callers weve got some folks whove studied constitutional law along the way so if you are refreshing some of the courses you might want to add this to your preparation running over the next 12 weeks. Can you give us a sense of how it operated in this country, how did they affect what was happening in the city . Of the papers would arrive at a local tavern. We are talking about americans latourette and completely invested. It involved several men writing under assumed name that was pretty common at the time one of the players was the chief justice of virginia highest court and the they rode on marshalls opinion but it would still be printed in the newspaper for everyone to see. In the response published at which point he wrote his and then John Marshall again under a pseudonym that appeared in the newspapers defending the opinion and this is something that people today would view with extraordinary alarm in the wake of the Affordable Care act to write his own pseudonym and essay with regard to the attacks versus penalty but its something the opponents and supporters felt perfectly free to do. In the local Washington Area newspaper 1819 defending the great constitutional questions are unavoidably brought before the department that requires a considerable degree of mental exertion to comprehend the end which may of course be grossly misrepresented. Its clear that he was on the defensive. The court wasnt in the position of high regard in the american culture. The rest of the federal government should have thanked him and had done the job of fighting the editorials he thought was important to defend the justice. When no one rushed to do that for him he decided to take it upon himself but he did it under a pseudonym and was careful to make sure nobody knew it was h him. Eventually the research was done by Gerald Gunther who actually there were people who did go to story at the time but it wasnt widely known. He was an extraordinary scholar and teacher, published a volume of the defense where he assembled the essays and publish them around 1960. Host louisville kentucky bar on this landmark cases. I read the case 45 years ago and im glad you are doing this because now i can remembe cantr what i read years ago. I dont know what my opinion was the end of today as they did the right thing. If they havent ruled the way they did, we would be in a mess. It would be a part of the constitution and also congress couldnt get much work done either. So they did the right thing obviously is. This is a great program. Abraham lincoln, you need to do the program in all the cases he had 50 to 100 greatest trials. They represented the railroads for the illinois constitution so please do Something Like this. Thank you so much for watching. He made the argument that the case definitely belongs on the landmark. It is the nation that he knew and view as a correction to the strong and unified National Government we know today. We have questions like this one on twitter for the Justice Department Supreme Court on another federal level court in the precedent even today. The general rule is that all of the article three judges have a level are bound by the precedenprecedentset by the supd that is true of every Supreme Court president not just simply mcauliffe. Are there particular provisions of the constitution weve referred to the necessary and proper clause that are directly related to this case that people should know about. There are various things. Although there wasnt the currency at the time, the federal government has the power to do things with regards to Financial Affairs and infrastructure for the roads to raise taxes to spend for the general welfare and part of what marshall does is give you a list of these other Powers Congress expresslexpressly has and then e connection that the necessary clause means it has the adobe to give effect to those many of which are to the Financial Affairs of the nation. Interstate commerce writes that its regulated by the federal government with banking and if it is regulated by the federal government because congress doesnt bank itself. One question that could be raised is a bank that isnt actually part of the federal government is an exercise of the interstate Commerce Clause and the answer for the entire question has been yes so one of the key issues in the decision and one of the arguments is this isnt a government agency, this is just the corporation organized by private parties and the answer to that was this was the method congress has chosen to perform a function that is regulating the credit of the United States and collecting taxes and congress is empowered to whatever method it wants to do that job. Host the same viewer asks is this the flipside of the discretion and did this case formed a line between the states . Guest the lines between the states or between the states and the federal government . Host did they lose some of their identity in the process . Guest i dont think he causes the individual states to lose their identity i dont think that is one of the consequences of that. I dont see where that would be part of what follows. We are talking about the time in history where most people thought of the state as the country as the primary source of personal identity and one thing they worried about is something that they viewed as a forerunner that is the arm of the federal government reaching into the state so i dont think at this point it risked the life impact between this time it was a plural noun not singular and people started referring to it even grammatically singular. The case was watched internationally with people wondering how this young nation would establish itself and with a look into the case. It was another part of the whole thing because a lot of it was held by citizens of other nations and there was a sense that the bank was also a tool of foreign power and influence so as a practical matter because of the Financial Investment in the bank there was great interest because the bank wasnt going to be there than some of the investments made were going to be at risk when they had to be paid alone that you mentioned earlier they borrowed the money from the foreign nations to settle the debt so there was a great interconnection in the aspect of the states at that time. What about and the diplomatic states . Guest it was a producer of commodities and International Markets watched and waited to see if they were going to continue to devolve into the kind of rampant inflation and proliferation that resulted in the war of 1812 or is it going to become a responsible trading partner. Watching in hawaii, welcome to the conversation. Caller i appreciate this. With discussions about Constitutional Convention, do you see the influence of mcaulifftheconvention . Host guest one of the things people worry about todays difficult if the constitution today would be a pandoras box. Certainly there were attempts in the wake of the course of the 19th century that were offered they never made it to the state, that there has been debate about changing for example the necessary and proper clause to put in the word expressly which didnt survive the Constitutional Convention so if we had a Constitutional Convention today im sure it would be a part of the landscape. On that international front, in 1904, the Australian High Court cited the case and heres a bit of what they have to say. We have had the benefit of considering numerous decisions of the Supreme Court of the United States of america upon analogous questions arising beginning with celebrated cases decided in 1819 which chief Justice Marshall enunciated the doctors which have ever since then accepted as establishing upon a firm basis the rule governing the mutual relations between the public and its constituent states. Why would a country like australia have it fight on the case . Guest the United States isnt the only nation that derives its legal code from the British Commonwealth system. Australia also deals with this problem as does canada and the problem of how to decided power is one that all governments struggled in because the United States struck out early on that question, i mean on the path to answer the question early on our experience is useful to those as well. Host next question comes from pamela young and she asks can you rate the Supreme Court justices during this time and during the case . So lets go back to the list of the seven injustices we talked about the chief justice and the others washington, william johnston, the one who didnt participate, Gabriel Duvall and joseph story. If any of them to want to ear ga special role in history . Guest joseph story is one of the greatest in history. He is appointed to the court and is also the first professor of law at Harvard University and wrote a massive number of treaties and had a great influence on american law in all sorts of areas belong to the constitution. So by any measure was one of the great justices. William johnson is a fascinating figure. Jeffersons first appointee and he had great hopes. He thought he was going to be the guy that would start to put things to the right and johnson for the most part adhered to the vision and was a great disappointment to Thomas Jefferson also a bright person who wrote some good opinions. This is kind of a fun question because actually two of the justices at that time did compete in scholarly estimatio estimations. So, marshalls decision to do away with the opinion and to speak with one voice was incredibly important for the court did have the effect of bearing on some places. The courts in britain and other commonlaw nations each justice writes an opinion detailing his entire thought process about how the case should turn out and then you count out the number of opinions and in on one race over another and thats how you know what the decision was. It creates a little bit of confusion which has the reasoning in order to decide similar cases. So this is another Significant Impact on the role of the court. Jeffersonville indiana. Hello, welcome. Caller thanks very much for the show. I enjoyed listening to it very much. My question has to do with the decision and how whether the issue has to do with nullification and what led up to the time of civil war . Guest the nullification was an extension of the debate that began in the 1790s and wake up the alien and sedition acts and it came to a head with South Carolina in the 1820s. One of the ironies is that one of its greatest opponents as Andrew Jackson who became one of the greatest opponents of the nullification. He took a very firm stand against dot so it is the difference between the rhetoric that they espouse and what they do and in the situation with regards to the nullification its contrary to the central premises and something that was strenuously opposed by Andrew Jackson. Host next is john in lincoln nebraska. Caller i was wondering what the likelihood is if they might reverse or roll it back somewhat in the authorization that we are now experiencing in the political system. Host a related question to that do you think the Supreme Court today would reach a similar conclusion or would they have recognized the right of . Guest one of the things that makes it such a landmark case is that it puts certain questions beyond the view not for its time, it remained an incredibly controversial decision for the entirety of the chiechief Justice Marshalls te. Now for the civil war it is sad that the government has the power to do things like established a thing to regulate the currency. The idea that the Supreme Court would for example say the Federal Reserve for the great agencies of government are not constitutional exercise of congress power, no, that wouldnt happen. Weve gone too far to go back. Guest theres a collateral thing we keep forgetting. Part of what it does is reaffirm the role of the Supreme Court itself and i dont think the court under any constitution no matter how much you go in either direction is going to be the least bit interested in undermining itself. Host the university of marbury which establishes its role to the review. You mentioned the Federal Reserve. How did we get from the demise of the national ban bank to the difficulties of . Guest a long protracted process during which we have many financial crises. Depression, panic, etc. And eventually in the early 20th century they just decided they needed to do something about this and the Federal Reserve was what they came up with to give us a system with which we have a unified approach based on these financial matters. Host we have about 15 minutes and we are going to wrap up the discussion of this case and we invite you to join us. 2027489 euro one for those of you in the roundabout pacific will be in hawaii as the most recent call was. And we have a few more minutes to get the coals in. I would like you to spend a little bit of time because you wrote about it in the last chapter of the book about the executive is life after this case because it is quite an interesting story. First how did you find out about it because there isnt very much paper available about him. Guest its what historians do. Im not a historian by training. Its what thats what i decidedt you just start digging into going through archives and the mass of publications that are available searching for these little nuggets and what happens is he is acquitted in 1823, he goes into the Maryland Legislature and becomes speaker of the house in maryland. He becomes a very respected figure in baltimore and engaged in a number of charitable pursuits. Eventually becomes the comptroller of the department of treasury under president tyler and in that capacity, as somebody who probably was a crook, he is now in charge of the key financial aspects of the government. Host how could that have happened . Guest redemption, reform. Part of what you can find or at least i havent been able to is exactly what he 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. Host you say and i probably wont be able to find it, but it is not to make his story was a typical one for the times as they urged to prosper and led many individuals did whatever they could to succeed. What were you saying . Guest its part of the american story. This is the notion of opportunity and the ability to succeed on your own merits or demerits depending upon how you go about it. It was also typical of the time because it was a brandnew nation. The economy was very loosely knit. There were opportunities available to the individuals to cease and initiative and become successful. He did that again after losing that position. Position. Its part of what people think the United States stands for. Host we dont have a position of the comptroller in general today that it was significant. This was the central figure in the department of treasury who took care of the pain and was sort of like the treasure of the unit in receiving the funds and dispersing them. It is such an interesting path to go from this case with maryland all the way to the speaker of the maryland house and then a president ial appointee in the Treasury Department to know more about how the life story would have turned out. What are your when you look at his life as a central character in the case . Is very typical. You see the same names and family names pop up again and again. There just were not enough qualified and talented men to go around, so for example justices on the Supreme Court, each of them held a division in state government. They were judges, legislatures. They did everything but the society required. That was in part because of the bleeding out of loyalists. If you have been one of the lucky few, you would be in demand than one level or anoth another. Significant parts were ex w. Clute even from the potential because women couldnt participate and africanamericans couldnt participate. Again, the pickings were slim because of the conventions of the society. Next up is jim in omaha nebras nebraska. Caller you are talking about a National Bank and do you bring in the idea of the Federal Reserve this week now the Federal Reserve this week now that was established in 1913. The question i have is the idea that having the central bank doesnt that take away the idea and you prototype earlier to regulate the however does it take to manipulate the currency in a way that with those he had in the last decade and the idea of the inflation problem with manipulating the currencys . Host subquestion was toast and establishing the bank creates a problem of the manipulated and the crime scene . It started because america was having a tremendous problem with fluctuating because there was no central bank to help rein that in. Not only was it the runaway inflation and fluctuation that the government had no one to borrow money from. It was intended to collect the taxes in the United States and the state banks make sure they were holding true to what they said they had and established a unified currency. There are certain things the Federal Reserve can do to loan money to the banks and pay interest on the their reserve. I think what has been consistent is the realization that when they are well on they are incredibly useful to the society. It is an exemplary area that we have the activity the Banking System in the country is set up so that both states and federal government has a role to play in the financial institutions. Its not exclusively a federal matter. They could make it exclusive if they wish but they took a different route and they do have a robust presence in the Financial Affairs of the institutions within their states. The caller an increasing number of concern is polarized in terms of the power of the government. The country was fairly well polarized and i wonder if he would agree with that. Part guest politics were just as vicious as they are now. The personal attacks on john adams and jefferson tha in the 1790s were as robust as anything we have today to the extent we can get agreement, but the perspective if you go into the debate of the constitution or first bank of the United States in 1791, it is pretty robust. Predictions of the square just as constant as anything else is fundamental to the nation. We are a group of people who come together to perform this experiment, this amalgamation of different states and people. Host we visited the state house where he served as the speaker after this case and talked to historian who told us more about his life. Lets listen. There was a case against him and they accused him of along with three other men, James Buchanan and george williams, the accused him of embezzling from the bank into the case was acquitted. He goes from that trial and becomes a lawyer in baltimore as a lawyer for several years and in 1826 he ran for the house of delegates and he made it so that there were not a lot of hard feelings toward his bank case we are here today in the old state house. We are where james served as speaker of the house in the 1826 to 1827. He resigned after the first year i guess he wanted to do other things. He was a very active man i guess you could call him a type a personality that we have today. He was nominated by president john tyler to be the first comptroller of the United States treasury. He had ten children and three of them are living in new york city at the time, so he did go to new york city after that, lived there and unfortunately from what ive read i think he suffered from alzheimers at the end of his life. Host thats more about the life of James Mccullough in the landmark Supreme Court decision theyve been talking about that established the concept of federal supremacy. The final caller from apex north carolina, what is your question. Caller earlier you were talking about how theres a struggle between the powers in the states versus that of the federal government and the [inaudible] triggered a moment aga heard a e about how there were constitutional amendments written to possibly address some of those. Host we have one minute left and we will use that as a way to understand the significance of the case constitutionally. Guest is confirmed earlier doctrines that were not merely anywhere as prominent as the consciousness at the point in tn time that we really did read a statement with regards to the strong federal government. Guest the competition was a piece of compromise and michael compromise it contained ambiguity and silence. The ruling in mccullough versus maryland pretended they were not there and hes vision and effectuating the strong government that he saw the United States could be as one of the reasons we remember the case in him today. Today when we talk about the size and scope of the government and the kind of things it does, and this is a central debate going on in town, one debate for opening up the door for the many different roles the federal government has taken on. Guest its part of it. Part of it is also the implicit congress to legislate more and more. One of the things we dont understand is they didnt pass anywhere near as many statutes back then as they do now. Even in this Dysfunctional Congress they still crank out the statutes. Host thanks to both of you for being our inaugural guests in the series of landmark cases in helping us understand the history and importance of mccullough versus maryland. To the viewers thanks for being with us for the first of 12 programs and a special thanks to the partners at the National Constitution center for their assistance and for putting this whole series together this year