Transcripts For CSPAN3 Influence Of Chief Justice John Marshall 20160410

Anniversary of the appointment of John Marshall to the Supreme Court. The capstone of that particular evening was a rousing lecture by Justice Scalia about the importance of John Marshall to the history of the court and the history of the country. Justice scalia was a grand friend of both the Marshall Foundation and the Supreme Court Historical Society. I hope you will join me in just a moment of silence to remember Justice Scalia. Thank you. We are grateful this evening that the court, chief Justice Roberts and his colleagues, allow the Supreme Court Historical Society to continue using this courtroom for its programs. It is a gift to us, and we are grateful. At this juncture, normally, i would have a few remarks to introduce our distinguished host for the evening. But it seems that chief Justice Roberts is on a tight schedule this evening, we are lucky to get him here. He has asked that his introduction be as brief as possible. Since we are so grateful to chief Justice Roberts for his continuing support of the society, and since he is, after all, the chief justice, let me just say right now, it is my privilege and my owner to honor to introduce our host for the evening, chief justice john roberts. [applause] Justice Roberts thank you. That is actually my preferred introduction even when i have lots of time. I do want to note the memorial drapery we have on the chair behind me and bench in front of it. It does, of course, commemorate Justice Scalias passing. It will be taken down on monday, 30 days after his passing, consistent with the courts tradition. At that time, we will also rearrange the bench chairs to reflect the new composition of the court. Instead of Justice Scalia to my right, it will be Justice Kennedy, and instead of Justice Kennedy on my left, it will be justice thomas. The other wings of the court, everyone switches from one side to the other. There will not be a chair at the far left, which is where our new member will sit. And the flags on the plaza will once again fly at full staff. But Justice Scalias presence will always be felt here in this courtroom. I remember when i commemorated his 25th anniversary from the bench, i indicated that he had arrived 25 years ago and the place hasnt been the same since. And that remains true. His contributions and the way he shaped this institution will be the subject of Historical Society lectures for many years to come. Tonight, it is about John Marshall in the 215th anniversary of his becoming chief justice. I do want to express my gratitude to the John Marshall foundation and the Supreme Court Historical Society for joining together to commemorate the occasion in such a fine way. If marshall were here today, i think you would be surprised at andcourtroom, the building the city of washington himself. He toured the city of june in june of 1800 with president john adams on an inspection tour to see how work was going on establishing the new capital before the move from philadelphia. Construction of government buildings was underway, and president adams, after the brief tour left to spend the summer in massachusetts, leaving roberts in charge. Time, housing was scarce. And marshall stayed for some time in the unfinished upstairs quarters of the president s future residents, while it was still under construction. He is the first person we know of to have slept in what we know as the white house. When he became chief justice, he stayed in capitol hill boarding houses and the court met in borrowed space in the partially constructed capital, or sometimes wherever else they could find room. When he announced the decision in marbury versus madison on , 1803, the court convened in the lobby of steals hotel, within a stones throw of where im standing right now. If i got it right, the throw would be in that direction, although there is some confusion about where the hotel actually stood. At the time, Justice Samuel chase was suffering from doubt and chief Justice Marshall moved the proceedings to the nearby hotel so the chase would not have to walk the capital. In 1810, the court first obtained a dedicated chamber of its own in the Capital Building. That lasted only four years until the british burned the place down. The court went wandering again for five more years. In 1819, the great chief justice and his colleagues returned to the old Supreme Court chamber in the Capital Building and convened there until 1860, when it made the move finally upstairs to the old senate chamber, and the court did not move into this building until 1935. As i mentioned, today, the Supreme Court sits very near to where John Marshall delivered his decision in marbury versus madison. The hotel in which he announced that decision is gone, the decision itself though remains as the Solid Foundation of the role of this court in articulating the meaning of the constitution. When John Marshall announced his decision, most governments, if not all of them consider the considered the constitution to be a political document. Marshalls decision made clear that it was a legal document, and it was law. The view, in turn, shaped fundamental role of this court in our nations government. And that is why, when you leave the building downstairs, you see the statue honoring John Marshall. You will also see etched in the marble, the words from marbury and his other famous decisions. Thanks to the John Marshall foundation and the Supreme Court Historical Society, you have a very unique opportunity tonight to reflect on the great chief justice, and guiding you in those reflections will be this evening speaker, professor jeffrey rosen. Professor rosen has taught at the George Washington University Law school since 1997. As a journalist, he is a frequent contributor to publications such as the New York Times magazine, they like the Atlantic Monthly and others. He is the author of many books and publications. His latest is due out later this year. I have it from inside sources that it will be out in early summer. I also assume that it will be available in the Supreme Court Historical Society gift shop with the appropriate discount for members. [laughter] Justice Roberts among his other pursuits, professor rosen has served as a constitutional consultant to Television Show law and order. If you see any misinterpretation of constitutional doctrine, you know that they forgot to ask him. Despite all this, he still finds time for a fulltime job as the president and chief executive officer of the National Constitutional center in philadelphia. Tonight, he will provide insight into the tenure and contributions of chief justice John Marshall. As was mentioned, im sorry that a family obligation that comes with two teenagers prevents me for staying for the presentation. But i know youre in for a wonderful evening. Please join me in welcoming professor rosen. [applause] professor rosen ladies and gentlemen, it is wonderful to be here. I am so honored that chief Justice Roberts took the time to introduce this magnificent occasion. Im also honored that the Supreme Court Historical Society and the John Marshall foundation have invited me to celebrate this august occasion, that you namely the anniversary of the great chief justices appointment to the Supreme Court. I bring you greetings from the National Constitution center in philadelphia. This remarkable institution sits ,ight on Independence Mall across from Independence Hall and also across from the old city hall, where the Supreme Court sat until 1800. The National Constitution center has an inspiring charter from the u. S. Congress, to disseminate information about the u. S. Constitution on a nonpartisan basis. And that is a mission of which chief Justice Marshall, who brought together federalist and republicans, would have been proud. Im also delighted to report that we are working with the John Marshall foundation on the following exciting projects. You know downstairs, theres this beautiful statue of the great chief that the great chief Justice Roberts referred to. It was cast by sculptor whose story the son of joseph story, marshalls great comrade in arms. Two castings of the statue exist. One is that the u. S. Court of appeals in d. C. On John Marshall plaza. The other is behind the Philadelphia Art Museum. Im delighted to report that the Philadelphia Art Museum is willing to work with us to move the statue to the front of the National Constitution center. [applause] professor rosen i cannot imagine a more fitting symbol for visitors across america and the globe as they visit americas only museum of the u. S. Constitution, and also, our National Center for bipartisan constitutional education and debate. With those introductory words, i have to confess that i require my constitutional reading glasses. Now honored to begin reflections on a topic that i think we can call marshall, jefferson, taft, and brandeis. Why did i use this unusual pair . Lets set the stage by remembering that the great chief John Marshall was nominated by president adams on january 20, 1801. Adams had just got a letter from john jay, declining the Supreme Court appointed. And since marshall happened to be in the room of the time he got the letter, the president offered him the vacant seats. Marshall excepted on the spot. Marshall excepted on the spot. This confirms that in life, timing is everything. [laughter] professor rosen marshall was confirmed by the senate a week later on january 27, and took office february 4. He continued to serve as secretary of state at adamss the president s term expired. So we are celebrating the 215th anniversary of marshall, almost to the day. Adams famously said my gift of John Marshall to the people of United States was the proudest act of my life. Marshall has been widely praised for transforming the Supreme Court into what its biographer calls a dominant force in american life. As all of us know well, marshall established the independence of the judiciary at a time when republicans were determined to attack the largely federalist bench by making judges entirely subservient to popular will. Under marshalls leadership, there were few dissents, largely because of his exceptional influence over prickly and strongminded colleagues on the court. It was his skill in establishing convivial personal relationship among his fellow justices that helped cement the Courts Authority and vulnerable moment in its early history. By expertly wielding the powers of the chief justice, such as the ability to assign opinions, as well as by instituting administrative reforms such as abolishing the practice of separate opinions, he was able to persuade other justices of different ideological persuasions to join him in a series of unanimous opinions. When marshall inherited the court, it was a weak institution compared to congress and the president. By the time he left, the Supreme Court was a significant player in the american scheme of government. All of this is familiar and wellknown to us all. I thought for occasion as distinguished as this, i should at least try and Say Something new. A few years ago, in a book about the Supreme Court and judicial temperament, i argued that marshalls constitutional clashes with Thomas Jefferson about the scope of congressional executive and judicial power continue to set the terms for constitutional debates today. As the chief mentioned, i just finished another, similarly riveting book. Called Louis Brandeis, american prophet. It will be published june 1, the hundredth anniversary of the Supreme Court nomination and i am so pleased to see his biographer in the audience, i understand frank gilbert, his grandson is here with us as well. The book argues that brandeis was the greatest critic of bigness in business and government since his hero, Thomas Jefferson. Finally, im starting a new book on William Howard taft, which argues that marshall was tafts hero, and that taft was one of the most successful chiefs since marshall himself. That is why im eager to compare the clashes and compromises of these two great teams of constitutional rivals. Was the greatest critic of bigness in business and government since his hero, Thomas Jefferson. Marshall and jefferson on the one hand, and taft and brandeis on the other. A comparison of these two teams of rivals has led me to the following thesis. Marshall and jefferson were personal and ideological opponents who privately derided each other in colorful terms and jefferson accused marshall of twisted vacations and marshall reciprocated by calling jefferson the great lama of the mountain. It sounds terrible but im not sure what it means. Nevertheless, marshall became the most successful chief justice in American History because of his ability to win over jeffersonian justices who were his ideological opponents of compromise and leadership. By the same token, taft and brandeis were ideological and personal opponents. Brandeis exposed to cover up by president taft in a highly publicized congressional hearing. And taft reciprocated by opposing brandeiss confirmation in vigorous terms. He said he is a muckraker, and an emotional list for his own purposes. A socialist profit by jealousy. A hypocrite, a man who is certain high ideals in his imagination, but who is utterly unscrupulous in method in reaching them. Sounds like a great lama of the mountain. Nevertheless, taft was a highly successful chief justice because he shared marshalls goal of what he called masking the court, ultimately, persuading other dissenting justices to join him in a series of unanimous opinions. After taft is appointed chief justice in 1921, he graciously buries the hatchet and invites brandeis to serve with him on a committee to explore ways of increasing the efficiency and distribute in the workload of district judges on the which is a topic that interested them both. The overture succeeded, taft later reported that brandeis and i are on most excellent terms, and have some sympathetic views. He cannot be any more cordial to me as i am to him, so the honors are easy. Brandeis reciprocated, reporting that all went happily in the Conference Room with taft. When we differ, we agree to differ without any ill feelings. It is all very friendly. Both marshall and taft were successful in part because of temperament. Joseph story said he loved marshalls laugh, which was too hearty for an intrigue or. We are very happy with the present chief, he is goodhumored, less readily, does keep things moving. Both marshall and taft recognize the importance of the team dynamic. Marshall persuaded his colleagues to live together in the same boardinghouse where they would discuss cases over a hogshead of marshalls favorite drink. Once in that unfortunate attempt at judicial restraint, the justices resolved to drink only on days when it rained. Marshall observed on sunny days, our jurisdiction extends over so large a territory that the doctrine of chances make it certain that it must be running somewhere. Am i allowed to share the fact that the John Marshall society presented the chief justice with a commemorative bottle of madeira and he assured the group that it would only be used for official purposes. Rate the unanimous he rises, we can blame it on the madeira. Taft scolded a certain team dynamic. He was response over the building of this palatial Supreme Court building, where the justices continue to discuss cases over a hogshead of madeira or at least over lunch. Marshall and taft were successful because of their willingness to compromise. By putting a premium on unanimity and filing few dissents, listen to these statistics. Marshall wrote only seven dissents in 34 years on the bench, only one of which involved a constitutional issue. We will say word about that in a moment. Taft wrote 20 dissents in total. As a result, both were able to persuade their colleagues to join their shared vision of broadly securing National Power and property rights. At the same time, marshall and taft were aided by the moderation and compromises of their ideological antagonists. Jefferson acquiesced in marshalls modern conception of judicial review because of his bipartisan belief that we were all republicans, we are all federalists. And the jeffersonian brandeis often acquiesced in tafts vision of unanimity because of their shared concern for the institutional legitimacy of the court. At its heart, the success of marshall and taft is a tribute to their moderation, collegiality, and willingness to compromise. Its also a tribute to the fact that these patriotic qualities were shared by their opponents, Thomas Jefferson and Louis Brandeis. Let me see if i can persuade you of this. Marshall and jefferson of course were distant cousins who had circled each other warily during their tumultuous years leading to jeffersons election. The election of 1800 was a clash of political principles more than a clash of personalities. The federalists, led by adams, supported a strong role government to preserve the union. They feared unchecked majority rule and hoped the independent federal courts would check democratic excesses, which federalists interpreted to include criticisms of adams himself. The republicans, led by jefferson, were suspicious of National Power in the federal courts, believes strongly in states rights as a rule of local majorities and insisted that most constitutional disputes should be settled by elected legislatures rather than unelected judges. In november 1800, the election was thrown to the house of representatives after jefferson and his running mate, aaron burr, finished in a tie with 73 electoral votes each. Rumors spread of a federalists plot to install marshall, who was then serving as adams secretary of state. Adams, recognizing that the judiciary would be the last stronghold of his party, unexpectedly appointed marshall to the Supreme Court on january 27, 1801. In a lame duck federal list senate, they confirmed him a few days later. The president and Congress Worked frantically to consolidate the power of the federalists and the judiciary before was too late. Congress created a series of new judicial offices to give adams the chance to make midnight appointments, and also reduced the size of the Supreme Court to deny jefferson the chance to make appointments of his own. Led touary 17, the house jeffersons president on the 36th ballot. On march 1, three days before jeffersons inauguration, adams famously stayed up late signing new judicial commissions, notarized by John Marshall, performing double duty as a lameduck secretary of state. Nevertheless, after taking the oath of office, jefferson behaved with moderation. Completet attempt a her of federalist officeholders. In a bipartisan gesture, he invited marshall to administer the oath of office. What were the constitutional clashes between the federalists and republicans . Marshall, Like Washington and adams, was a skeptic of direct democracy and preferred the checks and balances imposed by the constitution. Federalists emphasize the sacred rights of property, feared mob rule, and framed the constitution as a bulwark against what some viewed to be the rising tide of anarchy. Marshall greatly favored nationalism over partisanship, he was not a doctrinaire federalist. Act,ritical of the causing people to criticize him for being too moderate. Above all, marshall was an ardent nationalist. He revered George Washington. His longstanding animosity with jefferson can be traced to jeffersons criticism of adams in the 1790s. Marshall cultivated his nationalist local views while fighting for the army in the revolutionary war. He developed when he famously called his habit of considering america as my country and congress as my government. Moreover, according to smith, marshall is not a reactionary. He believed strongly in rivers government, vigorously defended a free press, and recoiled from the aristocratic pretensions of some of his fellow federalists. After serving as cumbersome and then secretary of state, he soon begin the nations most prominent federalist, but he led the party with more moderate wings. By contrast, jefferson, the stalwart virginia, was the head of the rivalry applicant party. Republicans emphasized majority rule, deplore the checks and balances built into the federal system, and sought to employ their power of the ballot box on behalf of debtors rather than creditors, the producing many rather than the oligarchic few. Louis brandeis, who was content to be called jeffersonian, had a Favorite Book about his hero which you read in 1927. It was Albert J Knox jefferson. Brandeis was so enthusiastic about it, he suggested it be distributed to every school child in kentucky. Knox call jefferson the great libertarian. He praised jefferson for attacking the increasingly powerful federal judiciary as a haven for monopolist and the exploiting classes. He saw the Supreme Court under the leadership of chief Justice Marshall as an instrument of centralization and marshall wrote to William Johnson in 1823 that he feared no danger more than the consolidation of our government by the noiseless, therefore an alarming history mentality of the Supreme Court. Jefferson deplored marshall as a crafty chief judge who sophisticates the law to his mind, construing our constitution from a coordination of general and special government, to general and supreme one alone. Jefferson like Louis Brandeis was a foe not of capitalism, but of monopoly. In his hatred of monopoly, jefferson was not alone among the american founders. The boston tea party, which sparked the american revolution, was a rebellion against the government granted monopoly held by the east india company. After the Constitutional Convention, jefferson expressed grave concern about government granted monopolies of trade. He complained to James Madison of the constitution contained no bill of rights protecting among other basic liberties, restrictions against monopolies. Jefferson supported the following constitutional amendment. Monopolies may be allowed to persist for their own productions and literature in their own inventions in the art for a term not exceeding a certain amount of years, but for no longer term and for another purposes. Madison responded that the federal government should have the power to grant charters and appropriations, and his proposal was voted down on the ground it might lead to monopolies of every sort as george mason put it. Madison resisted the constitutional amendments proposed by six date and supported by jefferson that would have provided that congress cannot rent monopolies or grant any company with exclusive advantages. It is our human justifying the constitutionality of the bank of the United States, Alexander Hamilton evoked the argument that these states believed that congress had inherent power to create trade companies or corporations, but believe the power shouldnt be used to grant exclusive privileges. Nevertheless, jefferson insisted that hamiltons bank of the United States violated the constitution because of the notion that congress had implied powers to charter corporations clashed with the 10th amendment. The nationalist marshall rejected this argument in the mcculloch case. Marshalls biographer, was brandeiss favorite teacher in law school. And also the great advocate of judicial abstinence. It is wonderful short biography of marshall, which brandeis mustve read, he describes jeffersons excitement in 1810 when he concluded at length then, we have a chance of getting a republican majority in them supreme judiciary. He expressed his confidence in the appointment of a decided republican with nothing equivocal about him. Jefferson suggested judge tyler of virginia, reminding president madison of marshalls rancorous hostility to the country. The medicine appointed joseph story, and jefferson called a pseudorepublican. Story became marshalls most enthusiastic supporter. How did marshall win over not only story, but other jeffersonian justices . Marshalls appealing personality had obvious benefits. Yet an act for remaining friends with his political opponents. And because of marshalls pleasant temperament, he remained on good terms with justices whose politics were less moderate than his. As a result of his ability to reachlocal compromises on the court, marshalls chief justices chief justice ship was marked by a remarkably high degree of unanimity, a by little dissent. During his first 10 years as chief, Marshall Road 90 of the courts opinions. The exception were cases issued when he was riding circuit, in the rare case when he dissented. He would modify his own opinions to gain approval. He didnt dominate the courts thinking by force, but instead established and maintained an atmosphere that was conducive to compromise. Just as he had won over hezbollah glover sirs, marshall also won over his fellow justices, who were mostly jeffersonian, through his judicial temperament, devotion to judicial restraint, and commitment to compromise. Even Justice Wayne johnson, the first dissenter because he wrote the first recorded dissent, more often than not agreed with marshall. In 1804, jefferson appointed johnson to the court with a specific purpose of countering marshalls growing influence on the court. In a series of increasingly urgent letters in 1822, jefferson kept urging him to dissent in every case. But he disappointed jefferson by supporting marshalls position 96 of the time. Even when you sent it, johnson was apologetic. In response to jeffersons prompting in 1922 to reinstitute separate opinions, which he thought were a means of transparency and would prevent the justices from cowering behind the cloak of anonymity and concealing their true views, johnson agreed to try and increases instance of separate opinions, but he also defended the decision, asking the president to tell him in which cases yet aired. He had erred. When Justice Patterson passed away, jefferson appointed a moderate republican to the bench. In 1807, when congress created an additional seat to handle cases from new states like ohio and kentucky, jefferson appointed thomas todd, the chief justice of the kentucky Supreme Court and a staunch republican. Though all three appointees, each of them becomes a valued contributor to the jurisprudence of the Marshall Court. They all fall under marshalls spell. Under marshalls leadership, they all come to view the court as an institution and to have their constitutions contributions reflected silently. Despite jeffersons best efforts, the court became a band of brothers under marshalls collegial leadership. As hobson summarizes the goal and years of the Marshall Court from 1811 to 1824, in a series of unanimous or near unanimous decisions, the Supreme Court affirmed congress is implied power, broadly interpreted congresss power to regular commerce, struck down state laws the conflict with the federal supremacy, with a violated asserted broad jurisdictions to decide cases arising under the constitutions and laws of the United States, and sustained its appellate power over the state judiciary. Marshalls constitutional vision had triumphed. Marshall won over the jeffersonian justices not only with madeira, and also with moderation. As larry kramer, the previous lecture to this distinguished series explained in his article understanding marbury versus madison, marshall and marbury embraced jeffersons own conception of judicial review, is called the departmentals conception, rather than the high federalist conception of judicial supremacy. As kramer describes it, the original and quite modest conception of judicial review argues that the courts had a role to play in resolving custody shall dispute. The people had the ultimate authority to enforce the constitution into interpreted, the court says that people agents acted to supplement and assist the people who retained primary responsibility for constitutional interpretations and enforcement. An opposing View Associated with more radical republicans questioned the power of judicial review entirely, arguing that the people appointed legislators as their agents to pass laws, and that therefore, the constitutionality of those laws was a question between the people and their representatives. By contrast, the theory of departmental as him, articulate and by madison and ultimately embraced by marshall was a common nation of these two republican theories. Each department or branch of government was entitled to offer its views on the constitution. If disputes arose, they could be resolved by negotiation and accommodation. If revolution resolution proved it possible, the people can decide through democratic process. In other words, the judiciarys intervention was not the final word, but served as a Reference Point for further deliberation in public debate. By contrast, the modern understanding of judicial review, in which the courts have the final and exclusive authority to decide constitutional questions emerges in the 1790s and was advocated by conservative federalists, who are antipopulist and looking for ways to strengthen National Government and encourage ordinary citizens between election days to defer passively to constitutional authorities. The election of 1800 kramer argues was among other things, referendum on constitutional authority. It was the role of the court and the question of judicial pharmacy among its central issues. The republicans landslide victory suggested that people had rejected judicial supremacy in favor of popular constitutionalism. And in debating the repeal of the 1801 judiciary act, if you republicans even question the existence of judicial review in any form. President jefferson, however, was not among them. He accepted this more moderate department was theory and did not reject judicial review all right. After the election, realizing they were about to lose control the only branch the only two branches of government with any power, the federalists tried to login control of the third branch as a possible bulwark for National Power. Part of their strategy was marshalls appointment as chief justice, and marshaling at knowledge and accept this responsibility. Therefore, when faced with marbury madison, marshall decide to make a statement with the goal of getting judicial review into the record. The marshall, federalist, the legion judicials privacy, in the opinions, he conspicuously and selfconsciously shied away from saying anything that could be read to enforce such an idea. Instead, as kramer puts a, he carefully and deliberately used only comfortable and familial familiar public and arguments. And justify judicial review in terms that republican moderates could accept and agree with. Marshall confounded his belittle enemies. In other words, marshall never claimed that the authority to interpret the constitution rested exclusively with the court. He never claimed that congress was bound by the courts interpretation, he avoided the question of enforcement if congress chose to ignore the courts decision. Jefferson was asked by the lecturer that marshall gave, kramer says he is nothing bad to say but the Court Discussion of judicial review. It was here that marshalls copywriting strategy prevailed. Jefferson was not stupid, as kramer concludes. He was capable of preaching that other uses can be made of judicial review, but he also was not opposed to it. Not in the modest form presented by marshall in marbury. Having laid down this moderate marker for judicial review, marshall advanced his nationalist constitutional vision, true judicial restraint. Marshall managed to assert nationalistic ideals throughout his tenure on the court. He expanded both federal and the same time judicial power by declining to exercise judicial power in a heavyhanded manner. When he unanimously upheld congresss power charter banks displayed marshalls believe the Judicial Authority could best be embraced by deference to the democratizing forces of National Sovereignty and conversely, the cause of National Democracy is best served by a strong but restrained judiciary. Throughout his tenure, marshall not only expansively interpreted the Commerce Clause, he also use the contract clause of government to restrain states from interfering with public and private contracts among both to protect vested property interests, and to strengthen the union by harnessing the energys of creative entrepreneurs. And the ozzie land case, marshall established the doctrinal starting point for a series of contract clause decisions, one of fletchers progeny, and the Dartmouth College case, held that the colleges colonial charter qualified as a contract between private parties, with which the New Hampshire literature cannot interfere by jim to change the privately funded institution into a state university. Aside from the comic impact, few cases better illustrate marshalls ability to bring his colleagues together than the cases initially argued, only Bushrod Washington siding with the chief justice, todd and youve all support the New Hampshire legislature all the jeffersonians, johnston, livingston, and story, ron decided, rather than expose a divided court, marshall held off on announcing a decision after the recess with three undecided justices came to his position in the chief justice of exerted no pressure on them directly or indirectly. They ultimately flocked to his cause. I mentioned the marshall had only one constitutional dissent during his long tenure. That was all done and saunders from 1827. It was also a contract clause opinion, one of the rare instances where he was unable to convince his colleagues to join him. Ogden examined the constitutionality of the new york bankruptcy statute which completely absolved insolvent debtors from all future obligations once they surrender their assets to creditors to pay the price. The basic question was whether state bank laws could modify the substance of private contracts. Four justices agreed that a new age. The marshall siding the contract clause argued that one key feature of the constitution was to guarantee the integrity of contract made between rational, moral, responsible individuals. There was marshalls overriding belief in the sanctity of contracts of american individual is in individualism. For marshall, the duty of the court was to preserve the best vested rights of contract, whether against a governments as an fletcher or individuals who reneged on their conferences their promises. In the later years of the Marshall Court, with the addition of new justices, jeffersonian and jacksonian appointees began to disrupt the practice of unanimity by increasing their dissents. Overall, there was only about one dissent out of nearly 25 cases during the Marshall Court. The lowest percentage in the courts history. Johnson a livingston wrote almost 60 of the 52 total dissents. Marshalls emphasis on the importance of unanimity endured long after he left the court in 1835. It is his enduring legacy. Of nonunanimity doubled, until 1941, the rate remained fairly constant at less than 10 . Partly due to the leadership of chief justices who were inspired by marshall. Chief Justice Edward white, a former Senate Majority leader blessed with a genial temperament that permitted him to mend fences and reinforce consensus norms of the court. Perhaps the most successful chief in promoting consensus after marshall was William Howard taft. Like marshall, taft was a and a skilled administrative reformer. He acquiesced with opinions he did not fully agree. Tafts court was remarkably cohesive. Only 7 of the dissents. Taft idolize marshall, who he called the greatest judge that america will the world has or the world has ever produced. Tafts judicial policy was based on his faithfulness of the as a disciple. He was a conservative nationalist. He viewed state legislation suspiciously, and saw a powerful judiciary as a bulwark protecting the vested rights of the framers sought to protect. In cases like stafford and wallace from 1922, taft endorsed marshalls nationalistic jurisprudence. As chief, he held with homes of the Commerce Clause must be applied to the real and practical essence of modern business wrote. Growth. Like marshall, taft differed in important cases to congresss power to regulate the economy. Although taft announced in early conference of the justices that he had been appointed to reverse if you decisions, he said i looked right at old man homes when i said that, he soon joined holmes in the case at converse at Childrens Hospital whether courts famously struck down a federal minimum wage law for women. In the adkins case, from which brandeis was recused because he had argued the molar case sustaining maximum hour laws for women that was an issue in atkins, Justice Sutherland held the freedom of contract can only abridged in exceptional circumstances. Taft, like marshall, was devoted to freedom of contract. He had served of chair of the National War Labor Board in world war i and expressed doubt on how people can live on the wages of the munitions and textile workers. Its not the function of this court to hold congressional act invalid sibling because they are simply because they are passed to carry out economic views which the Court Considers unsound. It was chief justice taft dissenting in atkins. Taft believe that lautner had been overruled, and he insisted on the sanctity. He insisted on the sanctity. By contrast, in a case in 1922, taft a struck down a federal child labor tax law, which taxed businesses employing children under the age of 14 years old. For taft, child labor tax was not in fact attacks. In that case, he quoted marshall. Should congress and the institution of its cut it will become the painful duty of this tribunal should a decision, for us say that the act was not the law of the land. Taft failed to include the entire quote from marshalls opinion which then explains that when the law is not prohibited, its really calculated to affect any of the objects of trust in the government, it goes too far and treads on to legislate ground. The child labor case where the opinion would have made the great nationalists John Marshall turn over in his grave. Brandeis joined in. Tafts ambition to mask the court was so successfully persuaded not only brandeis, but also homes and stone, the usual dissenters and defenders of federal power to join a Unanimous Court in the child labor decision. Suppressing their likely disagreements. Brandeiss decision not to dissent was especially significant, since he had voted to uphold the federal child labor law in 1918 before taft joined the court. During tafts early years, it was typical for justices to write on opinions, i do not agree, but shall submit. Tafts leadership style, in other words, consistently and directly emulated out of marshall. He was respected and wellliked, effective chief who won the respect, admiration, and friendship of his fellow justices. Taft believed important task was to promote teamwork as to give weight in solidarity to its opinions. As taft explained, i dont approve of dissent, generally. I think in many cases, where i differ from the majority, its more important to stand by the court and give its judgment weight than merely to record my individual dissent, with better to have the law certain than to have it settled either way. Taft also criticize dissent as mere expression of the egotism and held it was much more important to say what the court thinks that to say what anyone thinks. Taft would suppress his own ego and modify his own opinions in order to reach the same conclusions would suppress his own ego. Taft and worked for an entire summer on opinion, advancing a very broad federal power but to maintain unanimity, he agreed to suppress his own views. As marshall was able to bring the jeffersonian justices to join the opinions of the accord, so too was taft able to win over Justice Brandeis to join unanimous opinions and to withhold dissents. Taft opposed his he was focusing appointment. On his own ambitions to be chief justice, and the grudging nursed about the Pinchot Ballenger affair, a hugely significant dispute about the firing of one of roosevelts partisan conservation officials in the interior department, who brandeis investigated and basically accused taft of lying in a congressional hearing. The philosophical differences stark between marshall and jefferson. Brandeis idealize Thomas Jefferson. In my new book, i mentioned coming out on june 1, i argue the brandeis, and was content to be a jeffersonian, was the greatest critic of size since jefferson himself. I cant resist giving you a little excerpt, because it will give you a sense of the passion with which jefferson identified as a jeffersonian, and therefore the magnitude of tafts achievement in winning him over to the cause of unanimity. Brandeis served on the Supreme Court from 1960 to 1932. 1916 to 1932. As a wonderful lecture in the fall commemorating the hundredth anniversary of his confirmation. It was the leader of a jeffersonian tradition which was distinctive in the 21st century as it was during the new deal era. The progressive champion of federalism and the autonomy of the states. At the same time, brandeis embodies a bipartisan constitutional tradition that is once again gaining broad adherence among both sides of the political spectrum. From tea party and libertarian conservatives to occupy liberals. Namely, he was a defender of personal and economic liberty and a foe of civilization. Centralization. He believes smallscale commanders were most likely to satisfy human needs and to allow citizens to develop their faculties to use as beautiful phrase in the whitney case, through the rigorous selfeducation brandeis that was thought was necessary for full participation in american democracy. At a time of intense polarization between conservatives and libertarians, who prefer small government and free enterprise, and liberals and progressives, who advocate a more energetic social welfare state, brandeis is the historical figure who represents and blends the ideals of both sides of this crucial debate. Endorses the jeffersonian ideal of small government and local democracy, but he applied those ideals to uphold regulations that pained the accesses of big business and monopoly. He offers a unifying vision of liberty and democracy for our divided age. Like jefferson, brandeis believed that the greatest threat to our constitutional liberties was an uneducated citizenry, and that democracy could not survive both ignorant and free. And because of brandeis is pragmatic sense of human limitations, he believed that only an smallscale businesses and communities could individuals master the facts that were necessary for personal and political selfgovernment. This reason, as a Supreme Court justice, he generally championed judicial deference to state legislation, except when i clashed with protections expressively enumerated in the constitution, such as the First Amendment in the fourth amended. In those cases, he became the most precious defender of Civil Liberties of the 20th century. Brandeis was so pathetic sympathetic to jeffersons views on political economy. He developed a jeffersons distinction between merchant bankers, who left their own capital to productive enterprises, and monopolists, who underwrote risky instruments with what brandeis unforgettably called other peoples money. Brandeis especially admired jeffersons notion of limited government. His vision and for seeing the then for seeing conservation problem, which would come up after the disappearance of free land, his farreaching mine which brand is considered more cultivated than the comparatively alerted lincoln, and his conviction that with time and education, citizens would have as little need of government as possible. Brandeis is often painted as a progressive, a defender of government regulation. Im trying to resurrect the deeply jeffersonian roots of his thoughts, which make him, i think, the greatest air of jefferson. Brandeis was a defender of a state rights. Taft was a defender of state power. In the election of 1912, their policy views dramatically diverts. Taft wanted to prosecute the trusts in the megabanks for antitrust violations. Brandeis and wilson want to break them up so they can be taxed by the states. Roosevelt wanted to create strong regular tory bodies to oversee them. If taft and brandeis differed fundamentally, in their views about federal power, they shared a devotion to interpret the constitution in light of changed circumstances. Brandeis was the most important attitude of interpreting the constitution, which recs in the greatest prophet of free speech and privacy in the 20 century. It is surprising, right was surprised to learn as i began my work, that taft, like brandeis, was not an original list. He believed to that his highest and most useful function involves the translation of legal principles to meet new conditions. The idea that judges should interpret the exact intentions of those who established the constitution was the theory of one who does not understand the proper and administration of justice. Frequent, new conditions arise, which those who are responsible for the written law could not have had in view. And to which existing commonlaw principles have never before been applied. It becomes asserted for the court to make new and traditions of both. As a result, there will be response to sober popular opinion to meet sober social and economic changes. He struck similar notes in a talk called the living law. He declared that post 1912 decisions deferring to maximum our laws for women reflected what he called the judicial beginning to the fact of life, realization that no law, written or unwritten, can be understood without full knowledge of the facts of which arises and to which it is being applied. The struggle for the living law has not been fully one, evidence for brandeis, the remedy came as always in selfeducation. Lawyers and judges at a be trained in the fact of modern life of the study of economics and sociology in politics. Which embody the facts and present the problems of today. Escaping from the specialization of corporate lawyers, brandeis held up instead the model of what he called the allaround lawyer, trained in small communities, representing rich and poor employees, took some part in political life. Brandeis concluded that our greatest judges secured this training. Beeneis mightve describing himself. By praising marshall is one of the greatest of judges, the jeffersonian brandeis was endorsing marshals pragmatic by praising marshall is one of the greatest of judges, the jeffersonian brandeis was endorsing marshals pragmatic notion that legislature should have wide discretion to experiment with economic innovations without being secondguessed by courts. As mason writes, both brandeis and taft advocated knowledge by lawyers of economics and sociology. Brandeis believed that the awareness of the factual basis of social actions would stimulate judicial selfrestraint, taft advocated knowledge of the sociology of economics lawyers and judges so that lawyers and judges could more effectively carry on their secret mission of preserving those institutions without which america could not long survive , based on tafts notion that the constitution rests on personal liberty and the right of property. Because of their mutual respect, because of the recognition of the importance of unanimity for the courts institutional legitimacy, taft and brandeis were able to join together on many opinions, despite their very competing judicial philosophies. Like marshall and ogden, taft rejected a positive law to concur with the notions of homes and brandeis is the importance of considering the Lessons Learned from sociology and economics. Praised toiastically of brandeis is opinions about the railway companys challenges to dismiss claims and land valuations, and in turn, brandeis embraced the consensus of the taft court, which established among the justices expectation of reciprocity. Theres a limit to the frequency in which you can dissent without exasperating man. You may have a very important case of your own as to which you do not want to antagonize on a less important case, etc. , etc. For these reasons, some scholars have argued that taft wrote a prodigious 249 opinions for the court, his unique, most lasting achievement was not jurisprudential, but his success as administrator of complicated activities of the court. Marshall was a great administrator and taft would , have been pleased when after his death, the Federal District judge in new york described taft as the greatest figure as chief justice since John Marshall. After taft left the court in 1930, the number of unanimous decisions started to decline, and the number of dissents increased. But it wasnt until the 1940s that the consensus norm utterly collapsed. Partly because chief justice stone, former dean of columbia law school, was jeffersonian is encouragement of separate opinions and dissents. One of the other causes for the increasing number of dissents, ironically, was the change in the docket from mandatory to discretionary review, initiated by the judiciary act of 1925, which was a reform that taft himself had championed. As the dean of yale argues the the act of 25 represented a fundamental transformation of the role of the Supreme Court. Before the act, the court was primarily attributable of ultimate resort. It was the highest and last source of appellate review, whose chief function was prickly to discern and protect the federal rights of litigants. But the acts sharp restriction completely overrode this obstinate conception of the court was to be the vindicator of all federal rights, and acts extraordinary enlargement of the courts discretionary Appellate Jurisdiction express the profound recharacterization of the courts function. Marshall outlives jefferson by nine years. According to justice story, his final words were a prayer for the union. His strength in death, his cover comprehensiveness of mind, story wrote in marshals eulogy, it would be difficult to name his superior. Even the gimlet eyed Justice Holmes remarked of american law were to be represented by the single figure, skeptic alike skeptic and worship are alike would agree that the figure could be one alone, and that alone, John Marshall. As michael gerhardt, National Constitution centers supreme scholar in residence has written, marshall seems to have keenly understood the importance of treating ones enemies as well as one could. Its no accident that marshall, in spite of his strong constitutional opinions, commanded the respect of almost everyone for whom he served, in spite of the fact that most of not share his ideology. I cant resist noting as i close that the National Constitution center has inaugurated another project of which im convinced marshall would have enthusiastically approved. We have brought together, the federalist society, conservative and libertarian Lawyers Organization in america and the American Constitution Society to create the best interactive constitution on the world wide web. Scholars nominated by both groups are writing about every provision of the constitution trade they begin by drafting a common statement describing their areas of agreement, and then they draft to separate statements, describing areas of disagreement. These common statements are like marshalls unanimous majority opinions. Even have confidence that everyone in the statements about every provision of the constitution is one of both sides can accept. By contrast, the separate statements are like the jeffersonian expression of concurrences or dissents. Im thrilled to report that the College Board has decided to make this remarkable new tool centerpiece of the new ap history in u. S. Government exams. I encourage all of you to check it out and to learn from it at Constitution Center dot work. Org it can transform constitutional education in america. The greatest tribute to marshals enduring influence is not only that he won over his jeffersonian colleagues on the court. He also inspired future chief justices, such as taft, to go on to win over their ideological opponents, including brandeis, the greatest jeffersonian of the 20th century, by exhibiting a similar willingness to restrain the expression of personal views for the sake of unanimity and institutional harmony. There are so many favorite famous tributes to marshall on which i can close. Daniel webster, praising ofshall for the prevalence sound constitutional opinion that held the union together. To a large,te this sweet nature which all men loved and trusted, capable of harmonizing differences and securing the largest possible amount of Cooperation Among discordant associates. The most distinct and powerful and meaningful tribute to marshall on his 250th anniversary comes from chief justice hughes, marshals preeminence was due to the fact that he was John Marshall. Thank you so much. [applause] thank you, for an extraordinary lecture. How we could possibly get that much information into 50 minutes is astounding. And thank you for the reminder that our court remains a tool for bringing harmony out of dissonance. Within professor rosen for his extraordinary, careful scholarship, and for a terrific lecture this evening. About our great chief justice, John Marshall. We have a number of descendents of the great chief justice here this evening. I ask all of the descendents to stand, so that we can offer them a special welcome . [applause] society appreciates the contribution and participation of the John Marshall foundation, and particularly, its president , the reverend Caroline Smith parkinson, who will have a few comments at this time. Reverend parkinson we are so grateful to chief Justice Roberts, and to the Supreme Court Historical Society for your generous and gracious hospitality. As together we celebrate this anniversary of chief justice John Marshall. It has been a pleasure and an honor to partner with you in cosponsoring this event tonight. And to hear jeff rosens really challenging and provocative words for us in the midst of the political campaigns that are going on right now. [laughter] i wont say any more about that. The mission of the John Marshall foundation is to raise awareness to the great chief justice legacy. What he believed in, his contributions to the formation of our country, and his passion for the rule of law and the separation of powers. We believe that education is the key to preserving the legacy of the great chief justice. Our focus on supporting men and women who are teaching civics, American History, government, and Political Science are evident in the programs that we have developed and the organizations with whom we partner. Both the Constitutional Center and the Supreme Court Historical Society. I would like to very quickly asked the members of the John Marshall Foundation Board to stand, members of the junior board, if you would stand please. [applause] and i would also like to add ask the members of the Supreme Court Historical Society to stand. So we may say thank you to you. Thank you very much. [applause] now, marshall enjoyed his madeira very much. I dont know if there is madeira downstairs, but i do know there are other things we may drink and eat and enjoy each others company. Thank you. [applause] just a couple closing items. Signed copies of professor rosens recent writings are available in the Supreme Court Historical Society gift shop, which is downstairs on the ground floor. There also signed copies of Justice Breyers new book about the world, and Justice Sotomayor yours autobiography available there. Openift shop will remain throughout the reception, and we encourage you to visit it. There are all sorts of treasures that lurk there. Activities of the Supreme Court Historical Society, the 2016 lecture series will begin in may of this year, and all members of the society should receive invitations for that series by the end of the month. You can find our reception this evening in the east and west Conference Rooms, which mean you turn right as you exit the courtroom. We encourage you to join us for additional good times. With that, ladies and john, we thank you again for being here for great evening of information and inspiration, and we asked that we adjourned at this time and proceed to the reception. Thank you so much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2016] watching American History tv, all weekend, every weekend on cspan3. To join the conversation, like us on facebook. Story book tells both the of the fact that the manuscript, this National Treasure is what we thought, while also trying to chronologically think about what was medicine encountering at the time of. And keeping those two narrative straight was quite tricky for a while. Tonight on q a, Boston College Law School Professor Mary Sarah Bilder discusses her book madisons hand, which takes a critical look at the notes James Madison wrote during and after the Constitutional Convention of 1787. Onmadison took the notes sheets of paper, he folded those sheets in half, so he writes across the front and on the middle and on the two pages on the backside. At some point, he sowed all diesel pieces of paper together into a manuscript. One of the really wonderful things that we noticed when we were down there is that the last quarter of the manuscript, the holes the its own he had sown didnt match. This confirmed my suspicion that the end of the manuscript had been written later. We cant do that on microfilm, it was wonderful to see that in person. Sunday night at 8 00 eastern on cspans q a. Next, author and historian Caroline Janney discusses national reconciliation. Warargues that the spanish boys helped revive the country. She said this came with restrictions with denied equality for africanamerican soldiers. A division mirrored in American Society at large. This talk was part of a daylong symposium held at the library of virginia in richmond. Its about 45 minutes. The next speaker, dr. Caroline janney is professor of history at purdue. She will always be a virginia girl. She received her phd from the university of virginia, go hoos. She is also a familiar face to museum audiences