Transcripts For CSPAN3 Chief Justice John Marshalls Legacy 20171028

Cohosted the event. It is one hour and 45 minutes. Panel withernoons the legacy of John Marshall today, perfectly embodies the mission of the foundation. It is to educate the public about the rule of law and the constitution through the character and services of americas great chief justice. , with professional development, continuing program such as today and through a variety of awareness through this time. Marshall is a chief justice with the National Constitution center curated by our own kevin walsh. Website for out our more information about that exhibit and other events. Look far inve to our legal system today to see if the influence of marshall. I am as eager as you to hear from our scholars on this topic. I am honored to turn over the panel for their introduction to the honorable richard leon a Senior District judge of the states District Court. Judge leon was appointed to the District Court in 2002. While in private practice he irancontra and whitewater investigation. In addition to his Public Service he is a adjunct professor of law at the Georgetown University on center and at the George Washington University Law school. Thank you so much for being with us here today, judge leon. [applause] judge welcome everyone to the John Marshall institute. That sums it up pretty well. It is great to be back here actually. The less than i was in this beautiful building was with my law firms. This is brought back very fond memories. It is regretful that not many and certainly not many citizens know much about John Marshall other than many say he is a Supreme Court justice. That is very sad. When you consider the impact he has had and still has. My courthouse which is located across from the National Gallery is nextdoor to John Marshall park. Featured in that park is a sculpture of him. Sculptureal of that is in the Supreme Court itself. It is magnificent. I never met him, obviously. If you believe what you read he was a very handsome and imposing person. You can tell that by looking at the sculpture. A practicale person. I remind my court when they walk in the door that you should take note of that sculpture. More importantly they should take note of chief Justice Marshall and his a ternary life. For example i ask them and i would ask you the same did you know that he came from Humble Beginnings . Somewhere he had the drive and him to become a chief justice of the United States. He also have the drive to lead men in battle during the revolutionary war. Waske jefferson who comfortably secure in his manner , he was like washington. He was a member of the virginia ratification convention. He served as a special envoy there. He served as a member of the house of representatives and he was secretary of state for the United States. Those are all positions he covered, we do not know the positions he turned down. Associate justice of the Supreme Court, attorney general of the United States, ambassador to france. It is pretty clear that George Washington, john adams and many of the Founding Fathers the at him as one of the premier members of the coterie godfathers of our country. Things before he became chief justice. Serve as the longest ever chief justice of the Supreme Court and we will talk about the achievements in that realm. There is little question among scholars of his commitment to the law. His commitment to the rule of law and our nation. Many would be more specific in that regard. I think he took the judiciary and elevated it to a truly equal branch of government. A professor at Richmond School at privateworked practice and work for justice scalia. He currently serves on the board of the John Marshall foundation. He will serve for the end of the year. Is a associate from here in town. He has a phd from notre dame. At the law school he is a constitutional fellow. Then we have the six circuit judge on the far left. Have 15 minute presentation, it may be longer than that. That at some point we will start taking questions. [applause] thank you to the James Wilson Institute for joining with us at the John Marshall foundation to put on this event. About howen thought you explain John Marshall and what his legacy is i did some field research. On a plane or a train station and looking to make conversation, said that someone will ask what i do and i say i teach law. Interesting responses to asking who John Marshall is. He was a judge, a lot of lawyers think that he may have been the first chief justice. Earlier today we heard he was third and fourth grade it depends how you count John Rutledge who did not hear any cases but actually held the office. I usually spirit that. Here is how i have come to explain it. I will try to substantiate this through the course of our remarks. Let me put it right up there. In the category of american three builders, there are men who stand out. George washingtons number one, the father of our country. Lincoln, he is the man that held the union together so that our country today is what it is because of him and his understanding of the union. It meant holding us together and taking us through a body civil war. Number three, John Marshall. Wholink between washington served as the first biographer and was looked to as a father figure at valley forge with washington and hamilton. By the way his actual father was there. Through the course of his public career in all three branches of the federal government serving congress, secretary of state and chief justice. Union,e a account of our what it is and what holds us together as people. A government under the law. Reading some of his opinions in late 1880s and early 1820s. After being bored born on the writing allthe time of this later on so that this other frontier lawyer who is a postman in new salem reading all of the papers including Supreme Court opinions. Forming his opinion on the union could carry us through. Invite intended to partly because we can talk about that. So that is one way. When we did the exhibit which hopefully many of you have our pamphlet here, how do we know this story is coming through and we did what the focus not just on what he did while wearing a row. Who was he as a human being. We started with his public career. John marshall subscribed to the public view as a 19yearold lieutenant in the minutemen. Fighting has broken out in lexington and concorde. Partials first lieutenant. The captain is not there. He said you are stuck with me i guess. Then he takes them through his military maneuvers and they do some games. They sat around and talked. That is really the first Public Service that we see with marshall. The minutemen. He lookedeman fearsome. And guns. Omahawks get this. Lettersheck in big bold , liberty or death. Those famous words of Patrick Henry which is father would have heard and related to him back at words thee are the men right on their chest. They meant it. That is what they were facing. Liberty was important to them. He joined the Constitutional Army and ended up in a different unit that his dad. His father is among the founding generation, if you had to ask yourself would you be prefer that particular founder or his dad, i think Thomas Marshall could make a good point. They had 15 children. All of them massively successful in their own way. His own way. He is in a different unit, he is not a lawyer but they pretend he is one. They make him a deputy jack because he was a natural leader with good judgment. He had the ability to acquire knowledge of war and military affairs. There were laws of war that needed to be recognized. There he is. He is fighting. Major engagements. There are accounts of him at valley forge. Many say he is the most well tempered man. His unit, if you go back to the unit was a good health compared to so many others. They knew how to keep them around. If you want to think of his role in baseball we used to have a team captain. He is also the coach and development guide. , a young man of the revolution because this is where his vision comes from. All those jobs he turned down when he said to George Washington i cannot be attorney general of the United States i need to do my Legal Practice when he turns down associate justice he needs to do his Legal Practice. ,e was one of the best lawyers we see Patrick Henry with the liberty or death connection. If you are a wealthy virginia and you could hire the very best lawyer that money could buy you a higher Patrick Henry and John Marshall. They were the dream team. They had these cases together including one that was mentioned earlier a case that he argued in front of the Supreme Court involving the british. , he probablyase would have rejected it. Prominent esteem of federalists who were there at the seat of government. Observe hisd later rise. He says in a autobiographical that he is a rare bird. They had come under the sway of jefferson. James madison had come under the sway of jefferson. So had Patrick Henry he of eventually gets pushed away and so did james monroe who marshall went to school with. So a lawyer from virginia had a statesman. He is in philadelphia for his Supreme Court arguments, he impresses a lot of people. They probably talk a lot about him. When we are in trouble with france and there is a delegation het is going to negotiate talks to marshall. Finally, he says yes. Pretty gooduld do a job. It worked out well for him even though it was a total failed negotiation. They get to france and france does not want to speak with them at all. No, they have Trouble Holding him in some time. They are then made public after he takes up the name and replace them with a letter. This is the xyz affair. Where marshall you may see as a failed negotiations gets turned into a National Hero for standing up to the pretensions of france. So that when he comes back he is hailed as a hero. To see himy comes up when he sails back on the ship. They go down to philadelphia and he is met outside of the city and brought in. They have various celebrations, it shows you they needed a win. There is a funny letter we included where Thomas Jefferson is a little jealous of the attention he is getting. They were less if things go well for him it will not go well for him. Here is a funny letter where visits the hotel he is staying. It online and i encourage you to do so. Marshall he kept his title. You, i wasn to see so lucky to find that you are gone. And says youback can see the superscript. The funny thing is marshall was reputed as that is the one true thing he wrote. It shows you something of the relationship. You go from statesman, he becomes a secretary of state. Not a bad job. All of hamiltons people are getting their own thing. Who doesto marshall hold the position. As secretary of state he receives the letter from the first true chief justice. Marshall is secretary of state receiving a letter where he says no. Essentially the federal court will never amount to anything, that is a paraphrase of the actual words. Orwill never have the Energy Weight fitting a national tribunal. Marshall, io suppose it must be you. He said he will accept respectfully. Ok, last two parts of the exhibit, one was called the transformation of the federal judiciary. Actuallyginning he was right. He was wrong predictably. By the end of the Marshall Court the Supreme Court of United States did have that energy and dignity. Transformation, we can come back to this, this is a attempt to make sure that the judiciary which is stocked by federalists is above politics. Writingludes not just the circuit because they had to. Because the republicans have revealed a judiciary act that allows other people to ride circuit. With a committee that did that. Not just marbury versus madison but imagine testifying at the impeachment trial. That withad to do samuel chase. It was not successful. On the first Supreme Court decision with a state law and constitutional with whom i disagree about many things that i do. He said without marbury if we did not have judicial law it would not be a big deal. Things would fall apart. Transformation did not happen in the early part. This was the time when marshalls former friend and confidante broke apart politically but they always say friends. He was able to get along with everyone. He could disagree without being disagreeable. What i called his disagreeing ability. That is what really marks his old friend is now president in the late 18 hundreds. Someone who has this close relationship is holding the residence when the court is having these complicated issues. Virginia, likeus osborne versus the bank of United States. That was ohios attempt to question the second bank. Saysall never actually there is something fundamentally wrong. Instead, the question was about jurisdiction. Does the court have jurisdiction over the state officials. If they do and you can drag them into court you can make your will follow. With the subset of issues we are decided that. He did not chastise ohio for refusing to take whatever they said as law. That is the golden age of the Marshall Court. If you think what would we call marshall and thinking about where he fits with our constitutional tradition. We dont have a living constitution. What do we have . Living tradition, interpreting that constitution, and in that tradition, like many traditions, the tradition has life in so far as we continually and reinterpret, and classics of that tradition. The tradition of shakespeare is a classic and literature. Of art. Classic works lets say in the world of constitutional statement chip and constitutional law, marshall himself is a classic. Someone whose career, and pronouncements as a judge bear revisiting over time, as we go inward what we do constitutional law, it is argued that marshall is on our side. You know someone is a classic when the structure of discourse part by being, in mantle invoke the of the classic. And let me give you an example, and this can be good or bad. To think about our commerce i didntrisprudence, mention the golden age decisions, and it is an important one, saunders berger ogden aboutversus the steamboat monopoly. This is his interpretation of the Commerce Clause. The Commerce Clause raises also to hard, hard questions. They arete 1800s, coming back to the courts. Early 1900s, we are seeing fights over the scope of this power, and ultimately we see changed judicial interpretations in the 1930s. If you are a lawyer for the new win . How do you how do you say that this distinction between direct and indirect effects on congress is art on commerce is artificial, or this distinction between agriculture and mining in commerce, would you win by saying, we are not asking for anything new . We just asking you to go back to what marshall said. Now, they may or may not have been right. Im inclined to think it is a big mistake to think about marshall, as if you can draw a from ogden to fill burn. Can the federal government penalize farmer filburn for im not sure you can dry straight line. In the Administrative State this is not something you can do but to show you the structure of thementation, when professor talks about the First Principles of our jurisprudence, had we know it is our jurisprudence . What you do as you point to marshall, doing it. That is what a classic is. So let me give you a couple of remarks but instead of taking my word for it, let me give you the observations of charles ogden. I think the single best book on marshall, especially for its justicethe great chief John Marshall and the rule of law. The professor edited marshalls papers and spent a lot of time with him intimately, all of his personal papers and things like that. He knows him very well. He says, more than anyone else John Marshall invented american constitutional law, a novel branch of law that brought constitutional interpretation into the ordinary task of. Djudicating lawsuits commonplace has judicial interpretation of the constitution become in our own day, that it easy to miss the significance of this development. It is the assimilation of the constitutional consideration that may be marshalls most enduring legacy. Set ofished the principles that continue to animate our constitutional law. Still, the broader significance of his career may lie less in his interpretations of the his effort tohan infuse constitutional pronouncements with the quality of an ordinary legal judgment. In this way he contributed immeasurably to the american peoples ultimate acceptance of such pronouncements as so much law. Ok, a few things to point out. What we talk about we talk about lawhalls method of common adjudication, it is not what you might think about today, were judges get to make the rules in the course of deciding cases. It was something very different. It was looking at a customary articulation, of principles over time. We live in a different jurisprudential world. Do you accept Supreme Court announcement as to much law . The first monday in october. Go back and look at yesterdays papers. Look at those previews of the Supreme Court term. I wrote around up of the last term and a preview of this one, for first things magazine. Our title with Michael Walker was, not very rosy. And that was drawn from the ofelt case. Alt but rather than dwell on that, i will spend a little time on the perhaps, perhaps irremediable, because the current chief justice, a signature moment of esh with hisstice dissent from the bench in the very case. He askedi, just did we think we are . You doing that we are . Who gets to define what is orthodox, in constitutional interpretation . Its the same as saying in america, there is no orthodoxy. There is. So, who gets to define it . Is it where it gets to muscle their nominees through, their younger nominees so they can then occupy this position as sort of a property right . The path ologies of our culture and our inability to disagree without being disagreeable just get played out in the pages of the u. S. Report . How do you define what is the right way to interpret our constitution . Do i just count noses on the current Supreme Court . That is not how things work in a living tradition. Things die and tend to become corrupted. In a living tradition we tend to look to the classics. I would say, look to john and continue arguing about what his legacy is, because i think he represents the central case of the internal point of view for judges and lawyers on our constitution. I will wrap up and just say i think his legacy is very widely misunderstood, and not just by the people that i mean by current judges. Because we can say, you misunderstand. Go back and read that opinion so that we have a claim about marshalls centrality, a sociological claim, people are wrong about it. My claim is, we can make a lot better by bringing a practice and profession of constitutional closely into, more line with what marshall did. So that we can continue the task. Think about washington, lincoln, and marshall, again. Washington has got his bridge. Lincoln has got his tunnel. He got his steamboat from new jersey to new york, something that he invented in a way by harnessing the principles of natural law, common law, and the positive law of our constitution. Lincoln,ngton, marshall. Cheer for number three. [applause] thank you, garrett. And thank you, karen. Kevin. Terrific presentation, there. Id like to thank a number of groups that gave me the honor of inviting me here today. Jameske to think the wilson institute, ive been writing by james wilson for the past two years. Marshall the John Foundation which is something that im just getting to know, just a little bit, recently, in preparation for this event. And i loved hearing about this of 50 or 60 different artifacts connected with John Marshalls life that are up at the National Constitution center in philadelphia, at the moment. You dont have to go all the way to philadelphia to take a look at artifacts and artwork that connect John Marshall to the work of the Supreme Court today. George washington may haves monument, but John Marshall has this building. And as i was thinking about this and my comments today, it occurred to me how many images onJohn Marshall are housed the street at the Supreme Court. The first images deal with marshall, the jurist and touch on the themes we have touched on. Judicial review, methodology of interpreting the constitution, and the relationship of the federal and State Governments. Rightare available to us in the front of the building when you first come in. I am going to hit those but im actually going to focus a little bit more my comments today on the second, third and fourth categories of artwork that you find at the court. Those are talked a little bit about, in his role as a colleague, or managerplayer of the Supreme Court, or marshall as chief justice and the innovations that he brought to that particular institution. And then, finally, the role of marshall has played, ongoing with the Current Court today. When you first walk up to the Supreme Court, what are the first things is the 70 foot bronze doors, and on the righthand side you have four panels depicting the supremacy of law, as the designers of the door called them. The bottom right begins with king john fixing his seal to the magna carta. Have 1275,ter you which put some of the provisions of the magnet carla the magna carta into statutory language for the first time. This is king james is wearing off with edward cooke in 1608, a key moment for framers of the constitution. No, king james, you cannot come into this Supreme Court, it was one of the first moments of judicial independence. Thinking and theorizing of the magna carta as not just a compact or statute, but as a higher law that even kings could not violate. And in the fourth panel, i will zoom in your next of the animation that is available, the conversation between John Marshall and joseph story, right out in front of the Capitol Building about mark berry versus rbury versusark berry madison. Story talk to him around 18031804. That event did happen. The story are telling here is a lengthy story about the development of the concept of the rule of law, and higher law, fundamental law. But as other people have commented, marshall had something with marbury. The constitution is higher law because it has been ratified by the people, but it is also in particular, law and therefore the provinc therefore it is e province and duty to say what the law is. Insight to saye that this constitution that would ratified in 1787 and 1888, preference and it was the responsibility of judges trained in the common lot to say in particular what that meant. In the second image is right , facing 1st street. This is another allegorical figure in the middle, Charles Evans hughes. Imagine going to work every day that was the case for Charles Evans hughes. But on the right side here, you have John Marshall. And there he is, reading a scroll. Pediment of the described him as symbolizing, research past. As opposed to William Howard taft which was research, present. There is another more interesting meeting to this, which has been touched upon by a thespeakers, about methodology used to construe the constitution. Gunther unearthed a number of interesting essays that he found to have been written by marshall, in which marshall talked about more freely, then he would as a judge, in the way judges interpret the constitution. And he says the sacred rule of interpretation is to look to the intentions of those who drafted that particular document, whether it was the constitution or statute. So there you have an originalist ir, but then he quickly construe the intention of a contract, statute, or the thetitution, you begin with words themselves. It is actually the text, the words themselves, the context, which heture from can actually define whatever you might call intention. Throughout his 35 year career, him focusing again and again on the words, using language that is reminiscent of the left and the right, we talk about looking at the text of the constitution according to its ordinary meaning. Juristic element of marshall is that marshall is a nationalist. And nothing represents the better than this huge statue. There are three of them, actually. One here, one before your part, and one in philadelphia that i think the National Constitution center is hoping to get its hands on. Done by the son of and when i look at reminiscent of never to come abraham lincoln, with one hand outstretched, with his most recent pronouncement in one hand, on the left. L as aicates marshal nationalist. John marshall had maybe three months of Legal Education, one year at the most, at william and mary. He says his greatest education came in the battle of monmouth and valley forge, in the revolution, when he learned about the importance of a strong central government. When a government cant fund soldiers, something is amiss. And there is a constant concern about states going awry, in one way or another, prejudicial states. That seems to be consistent theme and it is statute nicely presents this. And right by the statute is sort of, John Marshalls greatest hits. K berry versus Madison Marbury versus madison. , that the phrase governments outcome of by, and for the people. They language lincoln used in the gettysburg address, not tg h exacte language that link and used in the gettysburg address, but similar to the language that marshall was using. The government we are talking to theere is Supreme State governments, so the supremacy argument was linked to this concept, this republican concept of, by, and for the people so that is John Marshall the jurist, some of material that is familiar to this crowd, for sure. And there is John Marshall, when you peel back the onion a little bit, John Marshall the colleague. Itself theyme court have redesigned the way the Supreme Court looks, from about 18101860, when it sat in the basement underneath the capitol dome. Keys mentioned, one of his innovations was moving the opinion of the court, but he managed to stitch together a court that had a lot of different personalities, most of which who were appointed by party thatrom the was not John Marshalls are how he do this so how did he do this . Nearby is the chair of the John Marshall sat in, it is the only chair they still have from that time. And this coincides with what scholars consider the golden age, and marshall was really coming into his own. Every justice in the Supreme Court since 1972, will sit, ceremonially, in this chair for a brief moment. That, andtomayor did said she could just feel history flowing through her. A lot of people feel their the opportunity to sit in John Marshalls chair for a moment. And it is on display, right there on the ground floor. Due to John Marshalls ability to stitch together this court, was his conviviality and his civility and his love of madera. Was raised on federalism and madeira, it was said. And the John Marshall dining room brings that together. Anotherices meet in dining room and this more informal dining room, upstairs, is called of the John Marshall dining room, with a portrait of , where they have more informal lunch and dinner settings. And of course, it was john was heretothree months a year, when the justices in d. C. , where they would board. That was another and innovate it that was another innovation. And this to me unlocks John Marshall today. Together. Put this this is a storyline of John Marshalls career on the court, wiki cases and particularly, these two rows, right here, which are basically the number of justices who were appointed by a federalist president versus justice who justices who were reported justices who were appointed by republican president s. If you have a Unanimous Court he can do pretty much what you want. In fletcher eck, there are three nominees from Thomas Jefferson. As you get into the golden era asmartin golden era shall comes into his own also by the way, a former student of james wilson. Those two federalists against fremont three madison into from jefferson. It is pretty extraordinary. It is like beethoven composing music, death. Unanimousd together decisions of a prominently nationalist character, with nominees from madison, monro, John Quincy Adams and jackson. So anyway, this is a nice illustration of one of the miracles that marshall wrought. He also designed the chief ship. Ce this was not a plum assignment in the 1780s. You went through john jay, Patrick Henry turned it down, Alexander Hamilton was offered the position and turned it down. I wonder what Linmanuel Miranda would have done with 35 years of Alexander Hamilton as chief justice. [laughter] we will never know, fortunately. So he pivots, he changes the by doing oneship thing, staying put. Instead of running off to become governor of new york, like john jay did, or minister of france, he decides to stay put. He limits his judicial day, which is one promoting the legacy of George Washington. In the east Conference Room there is another beautiful portrait of John Marshall by rembrandt peel. There is a similar portrait hanging in the room where the justices met after the civil war, of George Washington. A similar design, and it is reminiscent of John Marshalls love of washington and his devotion to him. Volume biography of him, he was trying to the together cliff notes version toward the end of his days, and interesting little details. Floating about John Marshalls head, who is that . Well, it turns out you can see John Marshalld, as a sort of lawgiver. The next presentation is John Marshalls hovering above the justices and advocates at the Supreme Court bar, in the courtroom himself. This the only american in spanish marble that rings the court, in between napoleon and blackstone. Nd there he sits he is over here and he faces the justices themselves. He has been there since 1935. If we want to see justices and lawgivers, you can ask a judge later whether that is appropriate. Im inclined to be a bit skeptical but they say it is supposed to be an honor to John Marshall. He is not just there in the courtroom. He is also there, in the room where it happens, in a Conference Room itself, in the back of the court, where only the justices meet. No secretaries, no law clerks, just them. The most junior justice basically functions as a secretary. John marshall is right up there, above this fireplace. Thei think this portrait, marshall scholars are my quibble with an, but i think this one gets closest to the way people actually described in physically. And there was this wonderful John Marshall visited the white house when Andrew Jackson was president and a woman wrote a letter, describing him physically. And it sort of matches up. ,he says, this is mary coffee there was nothing striking in his appearance. A small, rob own demand, small head, his features were small, remarkably low forehead for a man but fine eyes, small, black, restless and a trading eye. And actually he was considered , i bit sloppily in his attire. The story goes around that when individuals saw him and thought andas sort of a handyman, the guy actually gave him some big thing to carry back to his house and John Marshall actually went along and did it for him. [laughter]. O anyway, there he is hes there in the Conference Room, with the justices. And this is a, panel, the ongoing legacy of John Marshall. And now we are going to pivot from artistry to big data. Seamless. I was curious to see what impact he has had come of his, on the work of the court. He was the chief justice, so how have other chief justice is fared over the length of the Supreme Courts history. The answer is, not too well, on the whole. For instance, roger tawney, the first chief justice after John Marshall, he more or less fades away. Pretty interesting. Every other chief justice, more or less as the same pattern. In the end, the stories the same. Hase. N c fuller. Edward Douglas White erie William Howard taft. He actually hung in there a bit has a renaissance in 2006. Charles evans hughes. Poundstone. Craig vincent. Earl warren. And, warren burger. Are all the chief justices we have, where we have more than one decade between their passing. So well see how chief justice fares in history, but it is interesting to watch these legacies unfurl. That trendson box and that is the great chief. And it is amazing to me. From the 1840s up to today, he is excited about the same number of times. About 4050 cases a decade. Most always, they want. Had a big spike in the 1880s cited todayt he is excited tod the same as he was in the 1920s, 19 40s, 1950s. The justices a classic and i think this is a nice illustration of proof that he remains our classic, more than any other chief justice, by far. Chief justices loom large when they are alive and taking but once they move on, we forget them. Except for him. Curious to compare him with other historical sources, that often get cited by justices. So, lets say the federalist papers. Together an ungainly chart that shows marshall versus everybody else. It is hard to read but basically, marshall looms large. Have had aist papers bit of a renaissance since the 1950s and 1960s, thanks to developments in constitutional theory and original as a. But since the 50s and 60s they have gone up and out. John marshall was cited occasionally and the federalist papers, especially if he had something on point. In other papers he would actually have to distinguish himself from the federalist papers, which was interesting to see. The antifederalists, i have written a little bit about the antifederalists. They were nowhere to be found in the courts history but they had spiked since the 1960s. Scale has no question, change. There has beenrt an upward trend throughout Supreme Court history. And that our favor, james wilson. Ready for him . James wilson, here he is. And he is doing well. In 1890, bytation, the way, but pretty much selected pretty much ignored by history until just recently. I compare marshall to those historical figures and here you have it. Marshall is the big blue line, up here. The federalist papers is this redline, here. Federalist papers have come into competition with John Marshall for Supreme Court attention, and the others are little bit further down. All of this, i think illustrates, something that the Supreme Court has this really interesting poster that was created in 1935, 10 years or so before the Supreme Court moved into its new building, that commemorated the Supreme Court and its history. There, they have around them a number of Supreme Court justices. Here is james wilson in the upper lefthand corner. Prominent come in the middle, is John Marshall. And i think if we were to do something similar today, where we design a poster that represented the Supreme Court, the other figures would more or less change but the guy in the middle would stay the same. And that is John Marshall. Thank you for your attention. [applause] i am going to have to bow out judicial duties, but i will turn over the moderating function to stanley, here. And he will entertain questions from the audience. So, enjoy the rest of the program. [applause] good job. Good job. The job. All right. Rbury andne sites ma they dont necessarily cite the cheek. Cite the chief. Its their kind of reference to that era. Just one quick follow on, on the marshall citations. Has ay versus madison very interesting citation history predraft the 19th century was primarily cited as the case having to do with command executive officials to do things. Review,font of judicial people said he didnt really invented. That really was a 20thcentury thing, in part prompted by attacks by roosevelt, Theodore Roosevelt was attacking the defensively, court defenders were citing marbury. Marshallu recall shooting up in the 50s and 60s, that was cooper versus aaronstyle citations of mark ury, and they are rubbing themselves around marshall. I am the deputyfo director of the James Wilson Institute. And pleasure in planning this panel and unfortunately the judge had to leave us but i will try and serve as a moderate or in his stead. You. Ank marvelous, marvelous. Just a few footnotes. I recall that, regarding marshals slovenliness, that he once went to court and forgot to pack his britches. Which makes you wonder when he was wearing under his robes that they. Robes thatpoint day. The second point is that we have overlooked gabriel do all gabriel duval. I think he wrote nothing in his decades of service, except once went he dissented without opinion. I think that is a record. Third, is it true that mussolini contributed marble to the Supreme Court construction . And if so, what is that tell you about the Roosevelt Court . That is for you, he said. [laughter] i have an alternative big three. Instead of three big names, i think the three elements that thehe constitution, constitution, were the First Congress, the first president at the thirdanda half chief justice. The First Congress was astounding, from the bank, to the judiciary, the departments, the terrace, the territories, the bill of rights. And i think every time we tried to think of, who were the great grace that made our constitution when it is, we forget that a department of government was one of those three. And isnt it wonderful that the intoitution, as it shaped its coherent self, was put together by the three departments, the congress, the executive, and the judiciary. He wore shorts, apparently. In response to your first query. That is what he was wearing. [laughter] mussolini, i think that is actually true. Also, they were throughout the interior of the Supreme Court, were fashionable. And i think they are all over the Supreme Court. This was a different time. When you bring them all together, there is great strength there. In the house of representatives, that is right. To your point about the First Congress, i would have a little bit of a bone to pick with big data, or whoever. I have a google calendar, and i can click something, i get the notre dame games to populate my schedule automatically. But also, american holidays. Know, they putu Thomas Jeffersons birthday on there, but not John Marshalls. Record, his birthday is september 20 4, 1755, also the date congress ratified or past, the first judiciary act, said 30 four years later the judiciary came into being by now to congress, John Marshalls birthday. Now he wasnt there, but it was shepherded by his predecessor, oliver douglas. Some of us may remember the mercury dime, which had the fascias on the opposite side. It did have the fascias on the back. The other story about marshall, i have heard this from a doctor at columbia, marshall said lets have a drink when it is raining, unfortunately he does in unfortunately it did not rain d. C. , so marshall said it is raining somewhere in the United States. My question is for professional walls. Did lincoln ever refer to marshall in his writings . Lets take what i think is the most prominent. If you were to say, what is this, why marshall instead of someone else . I would say, in his opinions, influenced a generation of statesmen and nation builders, as the most direct line. To paraphrase the hamilton musical, are we a nation of states . What is the state of our nation . Alexander hamilton asked that. And we mentioned the typography of the constitution and how long it is, if you go to the archives they did not have different and everything was the same size except we the people. Real big. So i would sit with the most powerful influence was exactly on this question. What is the nature of our union . Federal government derived from the states, in agreement with this dates agreement with the states . And in this, the line from mcculloch versus maryland, through websters second reply to haynes, during nullification. This was a debate over nullification. Was south carolina, threatening to nullify the terrace, and websters famous second replied to haynes, talking about government of the people, by the people, for the people, that came from a colic mcculloch. Came from aboutey were talking slavery and how they understood the union, and it is that second it is marshall through webster to lincoln, as the most powerful sort of thing, the most powerful influence on this, of the people, by the people, for the people. , what say, well, what was were the most powerful influences on lincoln rhetorically, i think it was these speeches by great by great statesman, especially jefferson. That there is no doubt he wouldve been reading these Supreme Court opinions, especially these ones from 1819, 1820, 1824. There were in the papers and he would have been lapping it up or he. Up. Apping it quote he specifically marshall, by name . I am not aware, actually, that he will quote them by name. And this, by the way is how marshall wouldve added. A name for the exhibit that got , wise, my favorite marshall as the hidden hero of selfgovernment. Marshalls genius was that it wasnt about marshall. Marshal identifies himself with the court, the court with the constitution, and the constitution, with the people. Marshall said i havent invented, i tapped into what was there. Of thecolns combination declaration and the constitution, was an understanding that i would say developed from the 1820s, marshall, and John Quincy Adams, as well. Marshall didnt say the is the frame of silver, with the declaration being the apple of gold. That would be lincoln. But he wouldve agreed. During your presentation you puppet, butl was a i think maybe you meant a puppetmaster . What i wanted to ask, i did not place a he was above it. What i hoped to learn about marshalls legacy from peers of his threat the years was how the role of chief justice became transformed,ecame for the future holders of those positions. Is no question that after marshall, the chief justice suddenly had the center chair. Ey echoed a tremendous number of John Marshall opinions. Chief justices before john itshall, for the most part, used it as a stepping stone for higher office. And they get a other things, as chief justice. But i think marshall, 35 years set president for he set precedent for future justices. I know chief Justice Roberts has followed by John Marshall and his model. So, institutional activities were honed during marshalls time, and for the most part they have stuck to that. This follows on a question earlier, about why you wouldnt see lincoln saying more. Well, he is locked in a battle ney. Ta ey think they tan got the power to settle the question of slavery over the territories. The dred scott case was a victim of marshalls success. So lincoln is going more and our union is not ultimately based in the Supreme Court of the United States and what ultimately says about the constitution. That is an instrument of the government itself, a legal instrument, the constitution itself implementing the basic First Principles set forth in the declaration. , written it wind of sense because marshalls challenges were different. In the 1820s, when there is threats to take the supreme Appellate Jurisdiction over state courts away, marshall was working to establish a certain type of judicial supremacy, through their jurisdictional rulings. And that is the kind of judicial lauded,cy that webster and that story praised in his commentaries on the constitution. Court, it isme what theerent from Supreme Court says the constitution means is what the constitution means for everybody. Michael mabon, thank you. Ybach, thank you. One word up i we hear more of today was slavery. Did the Marshall Court have before it any issues of slavery in court cases . And if so, are there one or two that would be worth hearing about . The big one has artie been discussed, the angelo case the antelope case. The angelo case was about the International Slave trade the antelope case was about the International Slave trade. Its a good one because you have marshall coming out extensively about his views on slavery. You dont get that as much in the other cases, were marshall analyzes slavery in a property context language, rather than the language you get in the antelope case, which has natural implications. Law opposition to slavery, which marshall shared, but the second piece, which somerset lays down and marshall just basically runs with, a foreign actor provides positive positive lawons protections for slavery and national and natural law cant trump those. Only positive law cant support it. It is where the concept today. That in the absence of positive law, the default is freedom. I did that was i believe that was mansfield. And when marshall looked at the protection of the slave trade. Marshalls personal view of slavery has been written about. Marshall, as close as we can tell, at the high point, his highest level of owning slaves was 18. He had some properties, where he had some very when he died he only had one household slave left. It is clear by everything he wrote that he was totally opposed to nullification. He if he had lived longer, clearly would have been a unionist rather than an abolitionist. But it seems that there was nothing in his personal writings that i have come across, where he talks about slavery as being on the way to extinction. He seems to have thought we were but we had to keep the union going at all costs. He was not comfortable with it. He wasnt as uncomfortable as say, George Washington was, at the end of his life, who did major things to emancipate his staff. Made hisnk he compromise in his own heart and lived with it, literally lived with it as a necessary element of preserving the union. I just would add a note to that. Marshall, before he became court justice, argued for cases before the court on slaves. He represented slaves and three in those cases, and he took no payment for those cases. He represented abolitionists, as well. Robin last one was spurlock, who was very active in the affairs of blacks in virginia. And he talked about that in human traffic. Why do we have all these free blacks that have been known by people in the south, they were liberated. Let me just go back to Something Else that kevin was raising. Writings ares still there. Thee not appealing to things that come out of this tribe of americans, we are appealing to the standards of judgment that have been founded on universal principles about natural rights and the inherent right of human beings. So it would be the same in all places. He risked his life for the sake of establishing this regime. In ogden, at the very end, it is a throwaway line, he chastised his readers for spending too much time demonstrating. All the literate readers knew, he had in place axioms like the youof contradiction and if did not knowing it invents, you can step into the demonstration. It was one of the things you had to know before you stepped into the demonstration. Marshalls part of her crew, as with hamilton, who at a knack of tracing judgments back to those that weunlike anything have known. I think marshall was making his way to something not distinctly american, explaining the grounds of jurisprudence. Of course there are very things that are distinctly american in here. People say, do you need the constitution . Yes, i want to know who succeeds the president if he dies in office. Buts a structural thing, on those very deep principles. What he is appealing to is not the singly american, is thatling to jurisprudence would have to be there and anything we call the regime of law. I agree in part, but not entirely. ,nd that is because the idea the rules of interpretation, there are certain principles of jurisprudence that are here, and any civilized understanding of law. But to the extent they are woven into positive law that a particular tribunal is able to apply, i think is itself a question of positive law. If you take cap i think we have different readings, you and i, in part because fletcher versus peck comes to the court through the act of 1789, which was precise in what circumstances you would have to toue a writ of error overcome a state judges decision. Whether it is found in the contract clause of the or in those, principles that undergird our institutions, the judgment is the same. But he needs to tie it, i think tothe federal law in order stay within history section. Take Something Else look the like the our union nature of our union, whether it is confederation formed by compact or through government emanating from the people. Some people say that was settled at the beginning. Others say was not settled. Marshall would not, in his things like that or not is wrapped up in the nature of law itself but questions about our particular constitutional order, marshall of theer three because case of granite versus lee. A decade set, differently than the principles, however wellestablished they were during that time, we would be in a different order. ,ut you are absolutely right through office, interwoven in all of these things are those principles that you talk about. Careful,k he was very though, to try to make the basis of his judgments stay within the kind of law they were allowed to provide. Obviously, a much larger debate. It is the conversation. We step into the scalia problem. He was doing was framed by the positive law and now the question is, what is the source of that positive law . What makes that positive long rifle and, and obligatory for us . Is tracedswer is, it back to this deep principle of governed by consent, the rule of majority in constitutional restraint is the only operational form of government consent by the governed. We never enacted it. So, we have that problem. If there is no underlying principle for an, than the power to pass those lost may dissolve itself simply into the rule of the strong. So i think marshall could give thoseount about why positive laws, and framing the jurisdiction of the court. To illustrate this agreement, i am not sure. Because, can you cite the declaration of independence itself, as law, . There was a mistake, i think to. Ix different kinds of law i in a samesex marriage case, a law a judge cited the declaration of independence as a law. We need to distinguish the principles that undergird our order, and what is the law that a particular tribunal is authorized to apply . A distinction is not nonexistent, but it is a but it is a distinction and i think it is a real one. Is thatriginal lists, our law has an origin. And there was original law. Our law today is a function of the original law, plus all authorize changes. If you say, what is the origin of our constitutional law, it is ratification and going into effect of the constitution. That is the origin of that law. His answerk would be and he would have no problem with a lot of other things you disagreed about. But i think for an originalist, the original federal law, the law of the constitution starts with the constitution. And it subsists within a broader set of ideas. Heated back and forth agreement. [laughter] derek . Mr. Webb early in the 20thcentury, there were claims based upon the principles, making of a big part of his brief. John Marshall Harlan was seen as the center of other civil rights cases, plessy versus ferguson, and basically says this is the one case where they directly questioned race and looked at finding law. Binding law. And he says no. He cites John Marshall. In mcculloch versus maryland, where marshall in a less quoted, it will not be in the greatest hits, but he says for maryland this is urging us to render a decision based on his view, his theory of the union. And these theories are fine. But what you need is the text itself. And again and again i think in his opinions, what marshall is looking for, this text. And when principal and text code here, that is cohere, that is a happy moment. I fear as a litigator, his voice goes up, we actually have text here. We have something terra firma and not just pure theory. But theory is important to unpack. [indiscernible] the principal on next text ex post facto laws would be there even if we didnt have the constitution. Remember albert and james were opposed to putting it into the constitution, they thought it was so obvious that everybody would know it. So i thought it was, it would be there even if we didnt have it. Mr. Webb so looking at james olson, he actually says if the constitution have the contract clause then that itself would be worthwhile. He came to the conclusion of that was a good thing to have ratified by the people themselves. Mr. Walsh lets go to where ex post facto, it is not a Marshall Court case but it is a dispute between chase and iredell. I would say is the ex post facto clause was not there, ok, so that may still be a principal, but the Supreme Court would not have had Appellate Jurisdiction to review the decision of the connecticut Supreme Court. That is how i because this get fromon 25, had you the Supreme Court of connecticut so that is all i am talking about, what is your tribunal and the kind of law . Natural law is a source of law and you will find no quibble. The gentleman in the back. Ok. My question is really fascinating history, how did attorney marshall gain all of this understanding . He studied law, he went to william and mary, but what were his classical law sources, because he had great experiences but he had a seemingly natural tendency rooted in classical law or what was the origin . Mr. Walsh one source was blackstone. That he was standing right next to blackstone in the courtroom, but that was a gift his father gave him, his commentaries. And like lincoln, who said basically, if you want to become a good lawyer read. Mr. Webb and reread again. His formal instruction was, you know. About three months or so he had a kind of very robust practice where he learned on the job. And just mr. Walsh i think the hobson book, the great chief justice, the Second Chapter is an attempt to answer that question. It is called the commonlaw background of John Marshall. And that is the thing. If all you know where his constitutional cases, then he might accept the caricature of marshall as a big picture guy who was not so focused on president s and and other things, but the other kind of law is what he was doing. His very successful law practice he was familiar with the forms for equity, the written system, commonlaw, and in an autobiographical letter he wrote in 1827, he says from my infancy i was destined for the bar. His dad wanted him to be a lawyer. This was virginia, not massachusetts, so you will not be administered. You will be a lawyer. And when he had troubles with the mother country started, i set down my blackstone and i picked up the political essays of the day, so his father actually was a subscriber to the First American edition of blackstones commentaries. His formal Legal Education was limited to three months of lectures at william and mary, but the chancellor was there and so one of the things that hobson draws out is marshall saw the practice in the colonial courts, but in the state courts and helped contribute to how practice worked. And it gives you a sign of how he acquired his Legal Education. Edmund pendleton, one of the great virginia lawyers, is often contracted is one of those, i will give you the logical argument from First Principles, contrasted with the george whit, who says i was i will stun you with learning. So they say marshall was more pendleton, one thing people say. But he was a real lawyer who was, who can cite cases and distinguish them with the best of them in some of his law of nations decisions them. In some of his law of nations decisions, he has no trouble distinguishing opinion if he thinks it was mistaken. The one area of lower he deferred to college and did not trust is learning as much was admiralty, where he had less experience and once he was on the court, his junior colleague joe another individual saying, he knows where to go. He knows the critical points of an argument and exploits of them well. All i will say is another thing about his background mr. Webb his role as chief justice, he was the elder brother of 15 siblings and historians have suggested that his ability, he was a good older brother, and that served him well serving as chief justice for those 35 years. Ok. Um, in the middle. The gentleman with the blue tie. Thank you for a great panel and all of these interesting facts. After the story about the bridges, the most surprising story i heard was the antidote about him disagreeing with the federalist papers and his opinions. Can you explicate that a little bit . What the circumstances were, and if it says any light on his dairy of interpretation or how he regarded the federalist papers as part of a shared understanding about how to interpret the text . That is great. It can next with earlier commentary. Whenever he talked about them he praised them to the sky. He was always careful to do that. The one area where he does not disagree with them, but distinguishes them in response to lawyers urging him to look, that was maccallum versus maryland, where they are saying there is concurrent jurisdiction and power between the federal government and State Government with the tax. Mr. Webb antifederals were concerned that the tax power would be unlimited and protect the states from wheeling the power themselves. Marshall is saying in this particular essay that the estate will retain the states will retain their ability to tax. In this case we are talking about whether the state can tax a federal entity, so a separate issue. So he was basically responding to this citation to the federalist papers. Which suggests the concurrent tax power extends to this case of, marylands ability to tax the federal bank, and marshall says, no, not so much. That was one of the recollections i have about the federalist papers. Mr. Walsh the need to distinguish a particular authority does not reflect this agreement with the philosophy. To give you an example of how the needs to distinguish can arise, a case where he cites the federalist papers favorably and talks about it as a written book, is the case of killings versus virginia. So he is citing not only the federalist papers, but talking about the judiciary of 1789 and how it is odd the First Congress, which knew so much and was filled with statesman, would have given us jurisdiction if somehow we were categorically not able to do that when it happens that the state is a party, so this was a criminal case. The big thing he had a distinguished, to madison. Sh, versus if you remember, his jurisdictional holding was you cannot add to the original juris diction of the Supreme Court. With that, would it include state party cases . So versus virginia was a state party case . He has gotten himself a very confined and meeting so whenever he needed to distinguish cases that he himself wrote, it was always entertaining to watch and instructive, as a lawyer, but finding himself needing to distinguish his own case does not mean he disagreed committee means he was saying something that would cause him trouble later on. Philosophically. From helped him enormously good it is right on point. In a loosely. It is right on point. It is right there in the federalist papers. I think you know, i think that was helpful for him. He was happy decided. In marbury versus madison, he does not cite those federalist papers. It was a shout out to Alexander Hamilton. In marburynteresting versus madison, decide the federalist papers, and federal 78 and may be a shifted his attention to that from which he then sort of laid out the theory of judicial review. I call that citations of the federal state. It is interesting, because it goes to original as a as a theory and the way it works out is the federalist papers he is citing in cohens versus virginia, i want to say 81, 482, but is by hamilton and it is on the relationship of the Supreme Court to the state judiciary. And it opened by basically saying, it will take time to work out, to liquidate the meaning of this, when you are making a new government, the questions of intricacy are shorter, particularly when you are carving a new government and you are putting them on to existing sovereignties. He said, it is this time only where we can liquidate the meaning of this, but i happen to have the thing here to give you a sense of how he describes it. Opinion of the federalist has always been considered a great authority. It is a complete commentary on our constitution and is appealed to by all parties in the questions to which the instrument has given birth. Its merit entitled into this high rank and it is performed in the constitution, putting a very much in their power to explain the views with which it was framed. These essays having been published while the constitution was before the nation for adoption, and having been written in answer to, not entirely on its powers and a state sovereignty, are entitled for more consideration where they frankly about that the power is given. And defended. He goes on to say we have to be able to take these cases, not just because the language of the article three says all cases arising under the constitution, but the part he goes on to say is, hamilton saying the idea that you have multiple state Supreme Courts that are the final word, would be a hydra in government. So, this is then when you would see the appeal to the federalist, tied in with the theory of government, and some of these first printable, the axiom he has wheeled out is one tied with the separation of powers and the Judicial Branch needs to be coextensive with the legislative and executive. So he used it to great effect, especially when it agreed with something. We have time for one more question. Gentleman in the front . Thank you. Um, the statement has been made that if i understood it correctly, that it makes a big difference whether you view the constitution as a compact of the state, emanating from the people. I do not quite understand why it makes any difference. And also, isnt it clear that the constitution was ratified by the states, i would have thought it is a contract of the state. Excellent question. There are a lot of different ways to come out it. One is to think about the constitution as a legal instrument. Think, what kind of legal instrument is this . Because the kind of legal instrument it is is then tied it to the rules used to interpret it. You have existing rules for interpreting written contracts, for interpreting statutes, rules of principles for interpreting treaties. So in one way you might and rules for trusts. And in each of those you are trying to get to a level of intent. For example, on the big question, with the front end and isimplied powers, a treaty going to be strictly construed. You will not find implied powers granted in a treaty, youll find it in a corporate charter. And you would not necessarily find in a statute, but that is where he distinguishes the statute that talks about all the minor shift and the constitution is a charter or form of government, so part of it had to do with the rules of interpretation. And part of it had to do with exit. Right . So if you make a contract, you can unmake. There could be a penalty for breach, but if this is just the confederation, rather than a perpetual union, then you can take leave of your confederation partners. The french thing, that was not really a treaty, but you cant say, we are out of the wto. We are out of this particular thing. So what is interesting in mcculloch when he is very clear about it is the constitution, some of it is dealing with implied powers, but the subtext of this was what the powers of the state were to leave. And so that, i think, those two are the big reasons why it would matter. And there were treatises, commentaries, especially from the jeffersonians in virginia that were saying, this is it, this is what it comes down to. Marshall decisively was on one side, that side was vindicated by his three. But i am not sure it was for really quick. Againbb he raises this and again, the thing between the relationship on the State Government and federal government, whether it is a contract or emanates from the people. I think it was his point that the federal government is within its fear its sphere, supreme, as compared to the states. And in fletcher versus plessy, there is a paragraph where he talks about georgia suddenly departing from the standards of the union when it comes to the contract laws or the x post fact of ex post fact 00. Georgia among the other states, is ultimately under the sovereignty of the federal government when it comes to sort of the provisions of the federal, the u. S. Constitution, so for me it is illustrating this point about supremacy. Mr. Walsh and to tie those together, come to think of it, the third reason has to do with exit, and the other is interpreted authority, so one of these jurisprudence is no man can be a judge in his own case. Can the Supreme Court of the United States, the federal government, be the judge of the extent of the federal governments own legislative authority . This was a challenge it to the Supreme Courts supremacy. If this is a treaty, you might say each of the treaty parties can decide, but they have not delegated to some super body, some body out there, the interpretive authority. Where marshall said, no, this is a charter government and a government needs to be able to look at the scope of its own power. It goes to answering that. Mr. Webb and rhetorically, it helped that marshall could, in a small effective way, sounds like Thomas Jefferson. And he signaled that the powers of the federal government and the state come from the people themselves. He is acting ultimately on their behalf. It is part of the way i think he was successful and able to get all of these jefferson nominees and madison nominees and monroe nominees. On these issues. Just in closing, do either of you have any thoughts you elect to express on how marshalls legacy should be considered, not just by lawyers come a but appreciated by all americans, especially in light of his contributions to our civic life and the way that we think about ourselves living under a nation of laws. As we findll laws, them rooted in for the both of righteousness, but lost nonetheless. When i was in this exhibit, i curated this exhibit commit and ive never been one before. You tell the story. When i think about marshall and our obligation to him and to our fellow citizens, it is, it does not sound like an exhausting job but it is really important. It is custodian. We have custody. We did not invent this out of scratch, our form of selfgovernment is inherited. It has been carried through washington and through wars, through marshall you have lincoln and all these others. And it is a precious inheritance, but it can go away. So for the general product of selfgovernment under law, including right, disagree ability. That is a character trait. He knew, he thought with his own mind, but he always listened to the arguments of the other side and addressed them and i think that his way of finding some unity is really instructive. Madisonis odd that rather than marshall is the icon for the federalist society. Marshall in some ways is more of a federalist. But i think that is because the society started at a time when the problem, the main problem that is thetal concentration of power in the federal government with the sort of living constitutionalism has the tribunes of this. Marshall, during his time the fundamental problem was centripetal. He was worried that the state would pull this thing apart. So to the extent that we have these forces in our discourse and law, i think we can look at the way that he successfully stateted our ship of through multiple presidencies and left us with a legacy that we need to be custodians of. Mr. Webb there is a temptation when you think about John Marshall, thinking about the duty of the Judicial Department to say with the law is, and the constitution be construed by lawyers, heaven for bid, or judges. There are pieces of the constitution of course that are fit for litigation, but the theer is sort of cabineting constitution just within article iii. President s, congressmen, and the citizens themselves need to be looking to the constitution, as marshall says, as judges look at the constitution and the laws. Going through all the data, looking at how key he is. He is a classic, if you want to understand the way that the court works today, look at marshall. And look at both sides. John marshall, he is very much alive and with us today, so the extent you want to understand the work of the court and the constitution itself, marshall is a good place to begin. Twoets give a hand to our guests. [applause] you are watching American History tv, 48 hours of programming on American History every weekend on cspan3. Follow us on twitter for information on a schedule and keep up with the latest history news. On q a. Ek we were shoving and jostling. The target was charles murray. I was a little bit behind him. And it looked like he was going to fall to the ground. At the time he was a 74yearold man, so i did what any decent human being would do when you see a man on the verge of falling, i grabbed him on the arm. To make sure he did not fall, but also there was a large, i was really thankful of being separated from them and being left behind. And i took his arm and that is when it turned on me. Somebody pulled my hair. Announcer Allison Stenger discusses the violent protests on the campus last march following a lecture by political scientist charles murray. Watch sunday night at 8 00 p. M. Eastern. The secret history of the kennedy assassination and here to talk about the pending release of documents concerning the assassination of jfk. Good morning. We will see thousands and thousands of pages of documents released online. It is fascinating people all around the world will see these documents at the same moment. And it is going to be a very difficult be very difficult to understand what is in their. Includes 3100it documented that have never been seen by the public before. Something like 30,000 other documents that have been released in the past in redacted form with pieces left out. We still have no word about what the president is expected to release. Host is it your expectation that everything will come out or does he have the ability to holdings back . The only person with hold the documents there is a law that requires the release of every document in the governments files related to the assassination, and the only person who could block it is the president. Donald trump has said he will release all of them unless there is compelling National Security information that has to be withheld, and i think there is a frantic effort at the white house this week by the cia and fbi to try to block some of this release. Host in your mind, what would classify as a National Security concern. To my mind, i guess i speak as a historian, i think it should all be released and i think it should have been released years ago. We have been dealing with conspiracy theories for over 54 years. But apparently the argument may be made this week that some of the documents were prepared in the 1990s, involved relatively recent intelligence or Law Enforcement operations that might be still endangered if the documents are released. Host the national archives, there is a website to go to to see the documents that already exist, and the pending documents as they come out. Why does it take so long to get these released so many years later . The story is, in 1991 oliver stone produced his film jfk which produced a million theories about the assassination. Congress reacted the following year by attaching a law that required the release of all documents related to the assassination to try to tamp down the conspiracy theories. As a result of that, millions of pages of documents were made public. A small handful of the documents come about 3100 have been held back all these years because agents from the fbi and cia argued they could endanger National Security. Under that law, there was a 25 year deadline and the deadline to release everything in full is on thursday. Secrethe author of a history of the kennedy assassination here to talk about the documents. What information would you like to see come out . Are there and answered questions in your mind . The material i am interested in involves what i have always considered the secret hidden chapter of the kennedy assassination, which is it involves mexico city, a mysterious trip that Lee Harvey Oswald paid to mexico several weeks before the assassination, where we know from previously declassified files that he met with russian and cuban spies, and other people who were at the height of the cold war might have wanted to see president kennedy did. And we know that he was not about marxism. And the fact that the cia had him under aggressive surveillance in mexico city when he was there. In mexico city, he apparently was talking openly about his intention to kill the president. The question in my mind was, what did the cia know in realtime weeks before the assassination about the threat that he posed. Host does a change that he acted alone narrative . It might. It does not point to a second gunman, but maybe he was in contact with people who may have encouraged him to do this, maybe even offered to help him to do this, maybe help after he was able to carry it out. That leads to the question whether there were accessories or coconspirators in the crime. Host so people can go to the website when it is released, is immaterial the average person could is it material the average person could understand . I fear a lot of people will be disappointed when they begin to go through the material. This is government officials writing to other government officials. A lot of it is codenames and pseudonyms, some of it will be in foreign linkages, some of it will be based on past experiences, a legible. Ethical be hard, even for people with a background on this, to make sense of these documents for maybe even months. Host is it a possibility that they could reveal how helpful the cia and fbi performed in this matter in the lead up of the assassination and how they acted afterwards . Absolutely. I think the narrative of the kennedy assassination has changed over the years from the idea that oswald was the lone wolf, this delusional young man whose plot could not have been foiled. The fbi and the cia said they did not have the chance to stop it. But actually it seems he may have told other people what he was going to do, may have gotten help. And i think a lot of the documents we are going to say is we will see how much more the cia and fbi knew about lee harvey also on before the assassination. Oswald before the assassination. what will you do with the information coming out . I would be intrigued to try to rewrite some of my book, but i do not think that will be the situation. I think we will be presented with more evidence to show that the coverup with the cia and fbi of what they knew before the assassination, i think we will get more information to bolster that. Host ok. Thank you for your time. Thank you. Announcer next on history bookshelf, Angela Hudson talks about her book, real native genius how an exslave and a white mormon became famous indians. She chronicles the lives ofwarner mccary and lucy stanton after they married and began performing as christian native americans during the mid19th century. This was recorded at George Mason University in fairfax, virginia in 2015, part of the fall for the book annual festival. This is just under 50 minutes. Our author today is