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Transcripts For CSPAN3 Landmark Cases Marbury V. Madison 202
Transcripts For CSPAN3 Landmark Cases Marbury V. Madison 202
Transcripts For CSPAN3 Landmark Cases Marbury V. Madison 20240712
We hear arguments number 18, roe against wade. Quite often our most famous decisions are the ones the court took that are quite unpopular. Lets go through a few cases that illustrate very dramatically have vielgsy what it means to live in society of 310 million different people who help stick together because they believe in a rule of law. Good evening and welcome to cspans new series landmark cases. Tonight and the next 11 weeks were going to be looking at cases that developing the development. Its also interesting because it all came about after two
Founding Fathers
who developed differing views how the country should be governed. We have guests to help us understand the story. A
Yale University
luprofoaw pro and hes the author of several books including americas constitution, a biography. To start were going to listen to the current chief justice talking about the importance of this case. And then after we hear his point of view well like to hear from both of you on why this case is significant. Lets watch. Watch marshal established the court in his famous zigd marb barry verse mad ison he basicaly said, look, were a court and we have to decide cases. He regarded the constitution as law. Thats one way that our constitution is different from a lot of others. Many countries that have constitution theyre really just political documents. And if you have a dispute under the constitution its going to be resolved however disputes are going to be resolved. Maybe by the mob. However, political would resolve thats how they would resolve in constitution and elections. It sets up the political structures, but oats also a law and if its a law we have the courts to teal what it means and thats finding on the other branch and that important insight has been i think the secret to its success. Thats the ear of crust s. Whats your take on it, why is this case significant . Because of marbury vs. Madison our
Supreme Court
is the ultimate authority of questions on constitutional interpretation. That is a very important cornerstone of our constitutional system. She said because of marbury vs. Madison each of us has
Constitutional Rights
no president can take away. Your thoughts on this case matters . So many of your audiences have heard of this concept called judicial review, and that means not just the u. S. Supreme court but all courts in our system, state courts, lower federal government having the ability to disregard even after act of congress or state law in the judges view if an act of congress orinate lis inconsistent. Actually initial review wasnt that vigorous before the civil war. And so it becomes in some ways more important because of the stuff that happens later in our story. At the time perhaps it was omore narrow decision than we remembered it. Well, you call it a story and it is a story to tell you. As we begin tonight we want to introduce you to several names youll be hearing throughout the 90 minutes and understand the role they played in the marbury vis mad kn case coming to
Supreme Court
, but lets start with the 1800s. He was the incumbent president and elected after serving two terms as
Vice President
under
George Washington
. It was the first contested election between him and jefferson. Adams narrowly won and under the system we had at the time the pest who got the most is he and jefferson had a very severe rivalry develop between them personally and also between
Political Parties
that they were having, and its really the first time we see the emergence of
Political Parties
in our country. In the 1800s john oddm was an an incan cull bnt battling running. You have the sitting president running against the sitting
Vice President
. And just think actually about the instability of that. In some ways it did happen that oats an assassination incentive, a person whos a heartbeat away is vigilously aprovide to the policy of a number one person. These are the people who worked together back in 1776. Theyre on the committee that drafts the declaration of defense. But now politics have become much more intense, much more polarized. This would never happen again in
American History
,olerized politics, of course. With this polarization youve got the sitting president against the sitting
Vice President
both leading large camps, big
Political Parties
. But really dont really respect each other. And each one of these thinks that the other is borderline treasoninous. And what happened in the election . Therein also lies the tale because its a little convoluted. Some of your audience might remember back in 2003, vs. Gore. Its kind of a roller coast ride in a nutshell. That happened 1796. The swing state where north meet south, today its ohio. Back then its new york, which was a slave state. And the
Second Time Around
Jefferson Partners
up with a man named erin burrr from new york and new york swings from the northern camp to jefferson, the southern camp. So it seemed jefferson and his running meat prevailed but theres a wrinkle. Well, the precinctal is that at the time it wasnt clear if someone was voting for president or
Vice President
. They just cast their votes and as we said the first who got the seconds most became the
Vice President
. And so what happened was that jefferson and burr got the same number of votes. Everybody sort of knew at the time of the election that jefferson was the main candidate, but then afterward it becomes a tie. Because theres not a majority in the
Electoral College
it gets decided with each statevise one vote, and first of all jefferson and burr had prevailed against the inkim bincumbent adams. The
Congress Also
had been wet would theyd just been repudiated by the lame duck allies who are going to decide who gets the top slot. And it just been a fierce campaign. We think politics and you have these very angry federalists who think jefferson is going to take the country in a terrible direction and theyre the ones who are tasked with deciding whether its going to be jefferson and burr, and it leads to great chaos. The house of representatives cannot decide because of the tauchl titian of those delegations. And it peernly goes 37 bouts in just a couple of weeks before the new one president is supposed to be inaugurated. Up i will tlt thereat and theres it was a time of great uncertainty. And again this is all in the context where there had never been an incumbent president ousted in an election before. Trying the constitution system that had been in place for just a short time. Our next important principal in this is john marshal. He held two roles, secretary of state and was appointed chief justice and held both of those positions at the same time. So hes adams right hand with secretary of state and when we look back you can see basically secretaries of state often become president s. So
Thomas Jefferson
was a secretary of state. Hes going to vany hand over the president to samz madison and john quincy addles, john adams son was secretary of state. This might be good news for
Hillary Clinton
today but remember john kerry didnt quite prevail. John marshal is john adams ally but hes also the the new incoming chief justice. And for a month he what happens if the deadline goes on and on and on and come
Inauguration Day
theyre still deadlocked . Well, heres one possibility. Maybe theres this anonymous newspaper essay that kpz out maybe the person should occupy the white house in that circumstance is none other than the secretary of state john marshal. So john marshal is even mentioned as one of the possible people trying to sort of nose himself into this really complicated situation. But right as
Adams Administration
is ending, yes, john marshal is both the secretary of state and the new incoming chief justice. One point very important to emphasis down there is adams nominates marshal and gets confirmed in late january, 1801, becomes chief justice in 1801. And john marshal himself has a lame duck appointment by the outgoing john adams confirmed by the outgoing senate. So he learns that john adams finds a way to continue his point of view within the federal structure by the judiciary, so that gives rise a for a whole case. Thiese are the med night appointments and john adams somewhat bitter and nursing defeat is determined to make as many appointments as he possibly can before he leaves the office. And this is throughout the
United States
government. But with the judiciary in particular this outgoing
Lame Duck Congress
passes a new judiciary which creates a new level in the federal courts in 16 new judgeships. And they do this very late in their time at the outgoing congress. And so john adams is feverishly filling those posts, nominating people to them. And at the same time that congress creates lost of new posts from the
District Of Columbia
which had just become the capitol. And he is literally staying up late until his last day in
Office Getting
those appointments up to the senate, getting them confirmed and his righthand man on these appointments is
John Marshall
, now chief justice, secretary of state. And hes the one controlling the paper flow for them. One thing that happened is not all these got delivered and thats the crux of the stor. Cun happened. We can talk about it two ways, in partisan terms the federalists, the adams folks lost the presidency, lost the house, and basically lost the
Senate Although
its a little more complicated. So what did they try to do . They tried to retreat to the judiciary. So thats the partisan lineup. The other way of thinking about it is just the three branches of government. Again, youve got jefferson basically coming in. Hell control the presidency and pretty much the house and also the senate but now the judiciary is going to be all these ghosts of enemies past who now retreated into the judiciary. John marshal is responsible for getting all these new commissions out to their recipients, it turns out not all of them get properly delivered. They are signed by the almost midnight oil as adams is about to become, you know, cinderella, you know, the couch is about to become a perk kn and signs them all. Hes secretary of state and acting
Supreme Court
justice also john marshal seals them. Theyre not all delivered with and it gets even better. The person who fails to deliver some of these commissions is none other than john marshals brother,
James Marshal
who himself has been one of the new appointees under this new midnight judges regime. Sif sfoois it to say
Thomas Jefferson
was not happy about this flooding of the judiciary by his political opponent and this is something that stayed with him for the rest of his life. What were going to shoal you next is a letter he wrote to
Abigail Adams
showing his deep frustrations. Welcome to the massachusetts historical society, americas oldest historical and about a quarter of a million pages, 340 years of family experience. John and
Abigail Adams
and their dissentients and their paper here in the series of car kiefbl boxes containing their correspondence, diaries, memoirs, citizens concerned about the future of the
American Government
and its justice system. Inside these archival boxes you can read nearly 1,200 letters exchanged between john and
Abigail Adams
alone. One of the most interesting correspondents in the adams fam well was with
Thomas Jefferson
. And today were going to look at one of my favorite. A family tragedy brought together
Thomas Jefferson
and
Abigail Adams
in june 1804. Abigail wrote to express her condolences on the death of jeffersons daughter, pollee. He also for the first time spokes explicitly about the midnight appointments that had divided the pair. I can say with truth that one act of mr. Adams life and one only only gill and laid me u the embarrassment of acting through men whose views were to defeat mine. Of the many
Thomas Jefferson
letters we hold in the adams family papers this one reads a little differently. Often
Thomas Jefferson
comes across a cool reserved levelheaded virginian. Here hes somewhat different. Hes speaking to abigail as an intellectual equal and very concerned how politics may have ruptured his friendships. This frostration, i should call it, seethed in jefferson as you tell in the book for years about these appointments and this case. Well, he took both the appointments and the case for
Different Reasons
they came together. But first of all in terms of with adams as was indicated in that letter jefferson took it very personally. I mean, he had won the election, he was taking over the government. But even in the executive branch adams had done everything he could to pack it with his federalist allies. And jefferson in a whole series of letters to his political allies he is very, very bitter hes inheriting a government that is packed with these people that adams has put there. And actually throughout his first several months in office, 1801, hes really trying to figure out what to do and he sort of selectively if he can figure out a way to block somebody or to retract their appointment, he does it, but he doesnt want to launch a fullscale assault. And one thing just as an example of how personally he took this, akhil was mentioning that
James Marshal
l couldnt deliver johns brother. Could not deliver all the commissions. The pile was too big. He left some on a table in the state department. And the ones that he left on the table included those of victim marbury and some others who were supposed to be justice of the peace in the
District Of Columbia
. And a day or two after his inauguration,
Thomas Jefferson
himself goes over to the state department and sees this stack of papers on a table and starts looking at it and, remember, hes been secretary of state earlier under
George Washington
, so he knows how the office works. Absolutely. He has intimate familiarity with it. And he sees this stack of papers, realizes what they are, commissions that have not been delivered, and he says, do not deliver these. Because he is determined if theres any way that he can stop some of these midnight appointments and some of this packing of the government, he going to do so. So he personally is the one who says, do not deliver these. He took it very, very personally. Which is another way of saying, although the case which we havent yet quite gotten to is marbury versus madison in effect is marbury versus jefferson. Madison is just a placeholder. Madison is the new secretary of state. Jeffersons secretary of state, but madison is just doing what jefferson is telling him. So this is really a lawsuit, in effect, against the sitting president of the
United States
. Like later on, the nixon tapes case in your series. And marbury is a proxy for adams, so its really adams versus jefferson in the
Supreme Court
. Or marshall. Thats right. We should tell you that the story ends amicably between jefferson and adams if you dont know this part of it. The two men continued to correspond from their respective parts of the country throughout the rest of their years, and they ended their lieshs on the same day. This is always a wonderful footnote, they died on the fourth of july on the 50th anniversary of the declaration of independence. In fact, they had come together intellectually together. And forgiven. We got to put that in there. You write in your book, despite the fact that
Thomas Jefferson
went over to the state department, president jefferson never wanted to mire his presidency or the congress in a debate about the judiciary. However, that all changed when
William Marbury
filed suit. Why . Well, in december 1801,
William Marbury
and three other individuals who sort of drop out of the case in the popular history, but who were supposed to be justice of the peace and their commissions were not delivered, they file suit against madison in his role as secretary of state in december 1801. Now, december 1801 is a very key period because its actually the first time that this new congress, headed by the democratic republicans, as jeffersons party was known, is sitting. And so theres this great anticipation this is really the first time the
Jefferson Administration
in its full breadth is getting together for this congress in december 1801. And marbury and these three others file suit in the
Supreme Court
and they file suit asking that an order from the court that an order is issued to
James Madison
to deliver the commissions and allowing them to take their jobs. Its very clear all four of them are prominent, active federalists and its very clear there is a political cast to this. And they are taking on jefferson and the
Jefferson Administration
by filing suit. And the
Founding Fathers<\/a> who developed differing views how the country should be governed. We have guests to help us understand the story. A
Yale University<\/a> luprofoaw pro and hes the author of several books including americas constitution, a biography. To start were going to listen to the current chief justice talking about the importance of this case. And then after we hear his point of view well like to hear from both of you on why this case is significant. Lets watch. Watch marshal established the court in his famous zigd marb barry verse mad ison he basicaly said, look, were a court and we have to decide cases. He regarded the constitution as law. Thats one way that our constitution is different from a lot of others. Many countries that have constitution theyre really just political documents. And if you have a dispute under the constitution its going to be resolved however disputes are going to be resolved. Maybe by the mob. However, political would resolve thats how they would resolve in constitution and elections. It sets up the political structures, but oats also a law and if its a law we have the courts to teal what it means and thats finding on the other branch and that important insight has been i think the secret to its success. Thats the ear of crust s. Whats your take on it, why is this case significant . Because of marbury vs. Madison our
Supreme Court<\/a> is the ultimate authority of questions on constitutional interpretation. That is a very important cornerstone of our constitutional system. She said because of marbury vs. Madison each of us has
Constitutional Rights<\/a> no president can take away. Your thoughts on this case matters . So many of your audiences have heard of this concept called judicial review, and that means not just the u. S. Supreme court but all courts in our system, state courts, lower federal government having the ability to disregard even after act of congress or state law in the judges view if an act of congress orinate lis inconsistent. Actually initial review wasnt that vigorous before the civil war. And so it becomes in some ways more important because of the stuff that happens later in our story. At the time perhaps it was omore narrow decision than we remembered it. Well, you call it a story and it is a story to tell you. As we begin tonight we want to introduce you to several names youll be hearing throughout the 90 minutes and understand the role they played in the marbury vis mad kn case coming to
Supreme Court<\/a>, but lets start with the 1800s. He was the incumbent president and elected after serving two terms as
Vice President<\/a> under
George Washington<\/a>. It was the first contested election between him and jefferson. Adams narrowly won and under the system we had at the time the pest who got the most is he and jefferson had a very severe rivalry develop between them personally and also between
Political Parties<\/a> that they were having, and its really the first time we see the emergence of
Political Parties<\/a> in our country. In the 1800s john oddm was an an incan cull bnt battling running. You have the sitting president running against the sitting
Vice President<\/a>. And just think actually about the instability of that. In some ways it did happen that oats an assassination incentive, a person whos a heartbeat away is vigilously aprovide to the policy of a number one person. These are the people who worked together back in 1776. Theyre on the committee that drafts the declaration of defense. But now politics have become much more intense, much more polarized. This would never happen again in
American History<\/a>,olerized politics, of course. With this polarization youve got the sitting president against the sitting
Vice President<\/a> both leading large camps, big
Political Parties<\/a>. But really dont really respect each other. And each one of these thinks that the other is borderline treasoninous. And what happened in the election . Therein also lies the tale because its a little convoluted. Some of your audience might remember back in 2003, vs. Gore. Its kind of a roller coast ride in a nutshell. That happened 1796. The swing state where north meet south, today its ohio. Back then its new york, which was a slave state. And the
Second Time Around<\/a>
Jefferson Partners<\/a> up with a man named erin burrr from new york and new york swings from the northern camp to jefferson, the southern camp. So it seemed jefferson and his running meat prevailed but theres a wrinkle. Well, the precinctal is that at the time it wasnt clear if someone was voting for president or
Vice President<\/a>. They just cast their votes and as we said the first who got the seconds most became the
Vice President<\/a>. And so what happened was that jefferson and burr got the same number of votes. Everybody sort of knew at the time of the election that jefferson was the main candidate, but then afterward it becomes a tie. Because theres not a majority in the
Electoral College<\/a> it gets decided with each statevise one vote, and first of all jefferson and burr had prevailed against the inkim bincumbent adams. The
Congress Also<\/a> had been wet would theyd just been repudiated by the lame duck allies who are going to decide who gets the top slot. And it just been a fierce campaign. We think politics and you have these very angry federalists who think jefferson is going to take the country in a terrible direction and theyre the ones who are tasked with deciding whether its going to be jefferson and burr, and it leads to great chaos. The house of representatives cannot decide because of the tauchl titian of those delegations. And it peernly goes 37 bouts in just a couple of weeks before the new one president is supposed to be inaugurated. Up i will tlt thereat and theres it was a time of great uncertainty. And again this is all in the context where there had never been an incumbent president ousted in an election before. Trying the constitution system that had been in place for just a short time. Our next important principal in this is john marshal. He held two roles, secretary of state and was appointed chief justice and held both of those positions at the same time. So hes adams right hand with secretary of state and when we look back you can see basically secretaries of state often become president s. So
Thomas Jefferson<\/a> was a secretary of state. Hes going to vany hand over the president to samz madison and john quincy addles, john adams son was secretary of state. This might be good news for
Hillary Clinton<\/a> today but remember john kerry didnt quite prevail. John marshal is john adams ally but hes also the the new incoming chief justice. And for a month he what happens if the deadline goes on and on and on and come
Inauguration Day<\/a> theyre still deadlocked . Well, heres one possibility. Maybe theres this anonymous newspaper essay that kpz out maybe the person should occupy the white house in that circumstance is none other than the secretary of state john marshal. So john marshal is even mentioned as one of the possible people trying to sort of nose himself into this really complicated situation. But right as
Adams Administration<\/a> is ending, yes, john marshal is both the secretary of state and the new incoming chief justice. One point very important to emphasis down there is adams nominates marshal and gets confirmed in late january, 1801, becomes chief justice in 1801. And john marshal himself has a lame duck appointment by the outgoing john adams confirmed by the outgoing senate. So he learns that john adams finds a way to continue his point of view within the federal structure by the judiciary, so that gives rise a for a whole case. Thiese are the med night appointments and john adams somewhat bitter and nursing defeat is determined to make as many appointments as he possibly can before he leaves the office. And this is throughout the
United States<\/a> government. But with the judiciary in particular this outgoing
Lame Duck Congress<\/a> passes a new judiciary which creates a new level in the federal courts in 16 new judgeships. And they do this very late in their time at the outgoing congress. And so john adams is feverishly filling those posts, nominating people to them. And at the same time that congress creates lost of new posts from the
District Of Columbia<\/a> which had just become the capitol. And he is literally staying up late until his last day in
Office Getting<\/a> those appointments up to the senate, getting them confirmed and his righthand man on these appointments is
John Marshall<\/a>, now chief justice, secretary of state. And hes the one controlling the paper flow for them. One thing that happened is not all these got delivered and thats the crux of the stor. Cun happened. We can talk about it two ways, in partisan terms the federalists, the adams folks lost the presidency, lost the house, and basically lost the
Senate Although<\/a> its a little more complicated. So what did they try to do . They tried to retreat to the judiciary. So thats the partisan lineup. The other way of thinking about it is just the three branches of government. Again, youve got jefferson basically coming in. Hell control the presidency and pretty much the house and also the senate but now the judiciary is going to be all these ghosts of enemies past who now retreated into the judiciary. John marshal is responsible for getting all these new commissions out to their recipients, it turns out not all of them get properly delivered. They are signed by the almost midnight oil as adams is about to become, you know, cinderella, you know, the couch is about to become a perk kn and signs them all. Hes secretary of state and acting
Supreme Court<\/a> justice also john marshal seals them. Theyre not all delivered with and it gets even better. The person who fails to deliver some of these commissions is none other than john marshals brother,
James Marshal<\/a> who himself has been one of the new appointees under this new midnight judges regime. Sif sfoois it to say
Thomas Jefferson<\/a> was not happy about this flooding of the judiciary by his political opponent and this is something that stayed with him for the rest of his life. What were going to shoal you next is a letter he wrote to
Abigail Adams<\/a> showing his deep frustrations. Welcome to the massachusetts historical society, americas oldest historical and about a quarter of a million pages, 340 years of family experience. John and
Abigail Adams<\/a> and their dissentients and their paper here in the series of car kiefbl boxes containing their correspondence, diaries, memoirs, citizens concerned about the future of the
American Government<\/a> and its justice system. Inside these archival boxes you can read nearly 1,200 letters exchanged between john and
Abigail Adams<\/a> alone. One of the most interesting correspondents in the adams fam well was with
Thomas Jefferson<\/a>. And today were going to look at one of my favorite. A family tragedy brought together
Thomas Jefferson<\/a> and
Abigail Adams<\/a> in june 1804. Abigail wrote to express her condolences on the death of jeffersons daughter, pollee. He also for the first time spokes explicitly about the midnight appointments that had divided the pair. I can say with truth that one act of mr. Adams life and one only only gill and laid me u the embarrassment of acting through men whose views were to defeat mine. Of the many
Thomas Jefferson<\/a> letters we hold in the adams family papers this one reads a little differently. Often
Thomas Jefferson<\/a> comes across a cool reserved levelheaded virginian. Here hes somewhat different. Hes speaking to abigail as an intellectual equal and very concerned how politics may have ruptured his friendships. This frostration, i should call it, seethed in jefferson as you tell in the book for years about these appointments and this case. Well, he took both the appointments and the case for
Different Reasons<\/a> they came together. But first of all in terms of with adams as was indicated in that letter jefferson took it very personally. I mean, he had won the election, he was taking over the government. But even in the executive branch adams had done everything he could to pack it with his federalist allies. And jefferson in a whole series of letters to his political allies he is very, very bitter hes inheriting a government that is packed with these people that adams has put there. And actually throughout his first several months in office, 1801, hes really trying to figure out what to do and he sort of selectively if he can figure out a way to block somebody or to retract their appointment, he does it, but he doesnt want to launch a fullscale assault. And one thing just as an example of how personally he took this, akhil was mentioning that
James Marshal<\/a>l couldnt deliver johns brother. Could not deliver all the commissions. The pile was too big. He left some on a table in the state department. And the ones that he left on the table included those of victim marbury and some others who were supposed to be justice of the peace in the
District Of Columbia<\/a>. And a day or two after his inauguration,
Thomas Jefferson<\/a> himself goes over to the state department and sees this stack of papers on a table and starts looking at it and, remember, hes been secretary of state earlier under
George Washington<\/a>, so he knows how the office works. Absolutely. He has intimate familiarity with it. And he sees this stack of papers, realizes what they are, commissions that have not been delivered, and he says, do not deliver these. Because he is determined if theres any way that he can stop some of these midnight appointments and some of this packing of the government, he going to do so. So he personally is the one who says, do not deliver these. He took it very, very personally. Which is another way of saying, although the case which we havent yet quite gotten to is marbury versus madison in effect is marbury versus jefferson. Madison is just a placeholder. Madison is the new secretary of state. Jeffersons secretary of state, but madison is just doing what jefferson is telling him. So this is really a lawsuit, in effect, against the sitting president of the
United States<\/a>. Like later on, the nixon tapes case in your series. And marbury is a proxy for adams, so its really adams versus jefferson in the
Supreme Court<\/a>. Or marshall. Thats right. We should tell you that the story ends amicably between jefferson and adams if you dont know this part of it. The two men continued to correspond from their respective parts of the country throughout the rest of their years, and they ended their lieshs on the same day. This is always a wonderful footnote, they died on the fourth of july on the 50th anniversary of the declaration of independence. In fact, they had come together intellectually together. And forgiven. We got to put that in there. You write in your book, despite the fact that
Thomas Jefferson<\/a> went over to the state department, president jefferson never wanted to mire his presidency or the congress in a debate about the judiciary. However, that all changed when
William Marbury<\/a> filed suit. Why . Well, in december 1801,
William Marbury<\/a> and three other individuals who sort of drop out of the case in the popular history, but who were supposed to be justice of the peace and their commissions were not delivered, they file suit against madison in his role as secretary of state in december 1801. Now, december 1801 is a very key period because its actually the first time that this new congress, headed by the democratic republicans, as jeffersons party was known, is sitting. And so theres this great anticipation this is really the first time the
Jefferson Administration<\/a> in its full breadth is getting together for this congress in december 1801. And marbury and these three others file suit in the
Supreme Court<\/a> and they file suit asking that an order from the court that an order is issued to
James Madison<\/a> to deliver the commissions and allowing them to take their jobs. Its very clear all four of them are prominent, active federalists and its very clear there is a political cast to this. And they are taking on jefferson and the
Jefferson Administration<\/a> by filing suit. And the
Supreme Court<\/a>, which at that point was very far from a coequal branch of government. It had no respect. No prestige. And the
Supreme Court<\/a> sits and hears the arguments and their lawyer is charles lee, who had been the attorney general in the
Adams Administration<\/a>. And then the
Supreme Court<\/a> issues an order to show cause. And what that means is theyre ordering madison and jefferson to justify their actions. And they say that they are going to hear the case when they sit again in june 1802. And this shocks the
Jefferson Administration<\/a> because now the
Supreme Court<\/a> is really sticking it to them. The
Supreme Court<\/a> is going to make them justify why they didnt deliver the commissions, and its going to its going to hear this lawsuit, and so jenniferen and h jefferson and his allies act with a fury to show cause. One of the things that is important about this series is its interactive. You can call us. Well go to calls in a few minutes from now. Here are the phone numbers. You can tweet us questions. Well be working those in throughout the program. cspan. Use landmarkspaces. Our
Facebook Page<\/a> has an area people are discussing this case and well work in those comments as well. One other part of this. So the
Supreme Court<\/a> agrees to hear it with adams appointee
John Marshall<\/a> as the chief justice in the case, but he and jefferson also have a personal family relationship and are political enemies. So, they are second cousins and they dont much like each other. John marshall is a nationalist. He was there at valley forge with general washington in the revolutionary war, and that army experience really predisposed him to be very much a believer in the central government. Thomas jeffersons more of a states rights guy. And, remember, adams excuse me, marshall himself maybe was putting himself forward as a possible president ial alternative if there was a deadlock between jefferson and burr. Marshall is the most popular federalist. John adams is no longer very popular. Hes been repudiated, but
John Marshall<\/a> is actually the leader, in effect, of the federalist party, so there is all that politics, and there is some personality. I said second cousins from virginia. Theyre both connected to the randolph clan. Marshalls motherinlaw was the former fiance or had been courted at least by jefferson, and there was some bad blood there. So there is that whole overlay on top of that. But then remember one final thing. Its marshall himself who as secretary of state in effect fails to effectuate the delivery of these things. Now hes as chief justice hearing a lawsuit about that factual transaction as to which hes in effect a witness. And the
Supreme Court<\/a> is sitting as a trial court in whats called original jurisdiction. So there really is a question, truthfully, at least by todays standards, of whether
John Marshall<\/a> should be hearing this case at all or whether he should just recuse himself. Not because hes a federalist because everyones a federalist or republican. Youre going to be on one side or the other. Not because he friends with adams. Everyone is friends with everyone else. But he is a witness to the very transaction involved, and yet he has shown no indication whatsoever that he needs to bow out of this. Hes threatening, at least in the early stages, to issue this order. To his successor, madison and his rival, jefferson. John marshalls home was richmond, virginia. We traveled there with our cameras, and next youre going to see a little bit of his home and how they interpret it for todays visitors. This house really gives us an insight into the personality of
John Marshall<\/a>. Now, if you could imagine, this room, which we call the large dining room, was the first room that visitors to the house would have entered into. Its quite a grand room. It would have been used for many different purposes. One of which was to house
John Marshall<\/a>s early law practice. Eventually, right outside this window you would have been able to see his twostory brick law office, but until that time he used this room to entertain his clients. The desk that we see right over here is actually
John Marshall<\/a>s desk. It would have been in that twostory brick law office. It would have been used by marshall to write when he was
Supreme Court<\/a> chief justice. That was something that he was very wellknown for, was being a very longwinded writer. So that would have taken place sitting right here. John marshall would have been in residence during his time as
Supreme Court<\/a> chief justice for probably about a third of the year. This spot where im currently standing would have been basically the location that
John Marshall<\/a> would have been at the head of the table in an event that was notoriously known as the lawyers dinners. This event would have been held once a month whenever
John Marshall<\/a> was in his richmond home. And if you can imagine, this being the head of a massive table that would have stretched all the way across this room, it would have been filled with the most prominent men in richmond at that time, and it was in this room that men like patrick henry, madison, monroe, john j. Would have been discussing some of the most relevant philosophical, political topics, things that were being created in our early republic. So its in this room over lots of food and drink that many of the decisions on to what our country would become were laid out. And certainly some of those discussions had to deal with the
Supreme Court<\/a> and its role in society and the two parties and their big split on the direction of the country. So, in this section, were going to talk a little bit more about the
Supreme Court<\/a> as
John Marshall<\/a> found it. In 1800. And, in fact, one of our viewers on facebook asks, what can we glean from the federalist papers about the scope of powers afforded to the
Supreme Court<\/a>. Well, the federalist papers are a series of newspaper opeds originally published under a pseudonym, actually three people we now know, john j. , alexander hamilton,
James Madison<\/a>, and they later pulled all these newspaper opeds into a book. And these newspaper opeds tried to persuade americans during the year in which the constitution as a proposal is pending before the country. These newspaper opeds basically tried to persuade people to vote for the constitution. And later on,
John Marshall<\/a>, among others, would say this is a very good statement of what the frame what the supporters of the constitution thought it was going to be all about, and its a good resource because the people had access to it. Its not some secret document. Ordinary people had access to this when they were being asked whether to vote yes or no on the document. The federalist 78, about 85 essays in all written by alexander hamilton, we now know, and its actually a defense of what we talked about earlier, judicial review. It doesnt try to prove judicial review is in the constitution. A lot of people thought it was in it. Not just the
Supreme Court<\/a>, any state court, lower federal court, to disregard a law, state law or even an act of congress if in the judges view that law is inconsistent with the constitution. In federal pivist 78 hamilton s yes, its in the constitution and thats a reason to vote for it because its a good thing. Critics said judicial review is in the constitution and its a bad thing because its going to mean judges are too powerful. Hamilton and others said its in the constitution, youre right, but its a good thing because it means judges will enforce the constitution above everything else. A debate that echos today. I want to talk about that later. When
John Marshall<\/a> entered the court, there were six justices. John marshall, samuel chase,
William Patterson<\/a> of new jersey. Bush washington. He was the nephew. William curbing and alfred moore. Was the number set anywhere at six . Yes, it was set in the judiciary act of 1789. So did they not anticipate that there might be tie votes . The
Supreme Court<\/a> early on was not nearly so important as its become. And so just that little number, an even number, how odd, you know, from our point of view. And thats one of many little signals that although they anticipated judicial review, i dont think they thought it would be quite the 800pound gorilla that it has since become. The
Supreme Court<\/a> had no home at the time. Where did it meet . Well, thats a very interesting story which perfectly symbolizes the very sort of weak and meager status of the
Supreme Court<\/a> and our system of government because in washington at that time, as it becomes the capital in 1800, you have the president s house, which became the white house, under construction. You have the capitol under construction. And nobody had even thought about where the capitol where the
Supreme Court<\/a> was going to meet. It was that insignificant. And some of the people who were planning the city kept sort of raising this and they couldnt get the attention of anybody, including including the secretary of state
John Marshall<\/a>. Once he becomes chief justice, he becomes much more interested in that question and they end up giving the
Supreme Court<\/a> this very small, dank
Committee Room<\/a> in the capitol which they shared with the local d. C. Courts. So that was the home that the
Supreme Court<\/a> is given very late in the game. Theyre basically borrowing space in the capitol. Almost an afterthought. Remember, article iii, the judicial article, is third out of three. The constitution first talks about the congress and article i, then the presidency and article ii, article iii is third out of three. Its the shortest article. As cliff said, its actually a mere statute that prescribes the number of justices. Thats not set out in the constitution itself. Its it was originally six. It went down to five, and cliff might want to tell us a little bit about that. Its over time gone up as much as ten. Fdr very famously tried to tinker with the number in order to get a better set of outcomes from the justices. So all of these, it seems to me, are little signals that in the original constitution vision, constitutional vision, the court perhaps and the judiciary more generally, not just the
Supreme Court<\/a> but the whole judiciary, not quite as powerful as they have since become. I want to get one more fact about this on the table before we get some calls in, and that is that
William Marbury<\/a> filed this case in 180. It took the court until 1803 to hear the case. Congress intervened. What did they do . Yes, a remarkable part of the story. Congress basically shut down the
Supreme Court<\/a>. It talked about the fact there was this reaction by the jeffersonians in order to show cause in 1801 and the
Court Setting<\/a> it for resolution in june 1802 and the jeffersonians then swing into action in congress and they repeal the judiciary act. They get rid of these midnight appointments. That had been made. And one of the other things that they to is they change the
Supreme Court<\/a> schedule and basically say its not going to meet at all during 1802. It wont meet until february 1803. They clearly are trying to get some distance before the court hears the marbury case and the
Supreme Court<\/a> hears what is expected to be a constitutional challenge to this repeal of the judiciary act and getting rid of the midnight appointments. Its an amazing thing. The only time in our history the
Congress Actually<\/a> shut down the
Supreme Court<\/a> for an entire year. Did they send the justices back to the circuit to write cases, too . A couple things theyre doing. Its a shot across the bow. Maybe in the same way you call a timeout before the other side tries a field goal to psych out the kicker. But also, yes, they cant sit they cant meet as a
Supreme Court<\/a>, and before theyre going to meet again, the new law says you got to go back on the road, ride circuit as individual justices and when you do all of that, under this new repeal law, you will in effect have been committing committed yourself to the legitimacy of this new repeal law and youre going to kind of have to do that before youve really had a chance to consult with all of your colleagues on the
Supreme Court<\/a>. So, remember that the
Supreme Court<\/a> at the time, the justices really have two functions. They serve as the highest court within the system, but theyre also riding circuit as judicial judges in different parts of the country. Theyre trying cases up and down the continent. And let me just say, the justices hated riding circuit. The roads were primitive. Yeah. The conditions were awful. They absolutely hated it. They had to go to inns and share beds with other travellers. Youre away from your family. No prestige in that job. On prestige, they were kind of in the basement, you know, in a not great room in the capitol building. And before
John Marshall<\/a> comes along, the justices dont speak with one voice. Theres not an opinion of the court. Individual judges justices sort of say what they think, but there is actually not a formal recording process in which all of these statements are automatically published in
United States<\/a> reports. So and john j. Was mentioned early are on. Marshalls predecessors, one of them, the first chief justice, actually left the job because hed rather be governor of new york. So it wasnt quite and there were other justices who were running for governorships and other things while they were justices. So it wasnt the plum job in washington, d. C. , and part of the reason why is because you had to spend a lot of the time on the road. Okay. I have to jump in because we have callers. Let me do that. Robin is watching us in trenton. Youre first among our callers tonight. Hi, robin. Caller hi. Im hoping you can clarify something one way or another. Can you tell me whether or not this case was the one that decided the supremacy of the court in terms of the courts ability to say what the law is . Ive read on both sides. So, thank you. Thank you, very much. Akhil ammar . We may have a bit of a disagreement, cliff and i. I think the classic view is, yes, that case established that. I tend to think that before marbury it was pretty clear there was supposed to be judicial review in the system. You see it even in the federalist 78 and state courts had done this under state constitutions and justices riding circuit had ruled on constitutionality, and even the
Supreme Court<\/a> had ruled on constitutionality but upheld congressional law. So before marbury, there was a not the 800pound gorilla. The court, is it going to strike down an act of congress again until 1850, a case called dread scott . And the court in marbury doesnt say you wont find the sentence the
Supreme Court<\/a> is the ultimate interpreter of the constitution. That sentence doesnt appear in u. S. Reports until after world war ii. And the we havent gotten to mabrey yet, but the technical stake at issue in marbury is not about abortion or
School Prayer<\/a> or obamacare or the death penalty, its about a very, very technical issue about the judiciary itself. Original versus appellate jurisdiction. So thats the narrow reading of marbury. Do you disagree . I do disagree, and i think the answer to your question is, yes, it is the case that establishes that. And two points on that. First, there is the very simple fact that cannot be contested, that is the first time that the
Supreme Court<\/a> strikes down an act of congress as being unconstitutional and establishes that principle, and indeed, is the first time in the history of the world where a court had struck down a statute of a coordinate branch and international government. But it definitely is the first time in our history that it happens. The opinion says it is emphatically the province of the
Judicial Department<\/a> to say what the law is. But i think the other point that is very important because it is in the federalist. 78. And people had talked about it. But one point i think people tend to forget is that the federal judiciary had fallen into sort of ill repute among the jeffersonians. They were very hostile. They viewed it as the tool of the federalist. And as a result, you see jeffersons allies both before the marbury decision, while the case pending, and some of them even afterwards who are saying there is nothing in the constitution that suggests that the
Supreme Court<\/a> has the power to declare a statute unconstitutional. And the marbury opinion very strongly and forever refutes that. Were already at our halfway point, so i need to tell you that for time. David, tulsa, oklahoma. Your question for us, please. Caller yes, i would i agree with mr. Sloan on his opinion about the significance of the decision. I also think that the
United States<\/a> of americas very fortunate that this case came along early in its history because previously with the bank of the
United States<\/a>, it had to there was constitutional crisis there. As to who was to decide if there was to be a bank of the
United States<\/a>. There was also the alien sedition act under president john adams that created such a turmoil. And i think that that all ended with marbury versus madison. If youve ever been to the
Supreme Court<\/a>, when you walk in, there is that gigantic sculpture of
John Marshall<\/a>. It doesnt leave any doubt as to who is the, you know, the most significant member ever of the
Supreme Court<\/a>. In the view of the court who built the building. It is in the court, and, actually, david, i think both of the things that you mentioned cut against your point in a certain way. So, people have been taught, oh, the
Supreme Court<\/a> is the ultimate interpreter of the constitution. Well, not quite. And im not endorsing kim davis here, but lets just lets talk about the alien sedition act. The alien sedition act was a law john adams signed that made it a crime to criticize the president. Made it a crime to criticize the congress, which is dominated by the president s party. Did not make it a crime to criticize the
Vice President<\/a> , who is the leader of the other party. Made it a crime for challengers to criticize incumbents. Not incumbents to criticize challengers. All these rules expired after the next election. It was disgusting. Total violation of the first amendment, and yet, and yet, federalist justices,
Supreme Court<\/a> justices riding circuit upheld that law against constitutional challenges again and again and again, including samuel chase, who is on the u. S. Supreme court, and so who in the end puts drives a stake through the hart of the sedition act . The president ,
Thomas Jefferson<\/a>, when he sweeps into office, and not withstanding these judicial orders upholding the sedition act, he pardons everyone. So he was actually the last word. And more in favor of liberty and the first moment. Now, you mentioned the bank. Do that one briefly. The bank of the
United States<\/a>, the big controversial issue does not reach the
United States<\/a>
Supreme Court<\/a> until in the 1780s. Doesnt reach the
Supreme Court<\/a> until 1819. John marshall will uphold it. Once again, last word was had by a president , andrew jackson, who actually vetoes. He says, you said it was constitutional, i dont think so. Both of your examples, actually, are illustrations that president s as well as justices play important roles in the constitutional conversation and sometimes the last word. Richard is in lake oswego, oregon. Hi, richard. Caller hello, how are you . Great, sir. Your question for us. Caller well, im a 35plus year trial attorney. I appreciate this program for putting the human context and establishes the proxies, jefferson and marshall, and establishes the nascent authority of the court that finally becomes clear in the dread scott case some 50 years later. So i just want to say thank you for such an important program. Well, thank you for the call. In fact, dread scott will be our next featured of the 12 cases weve pictured chosen by the way, this is a good time to tell you about our partners at the
National Constitution<\/a> center. We started this project almost a year ago with their help. We would like to do this, but not our area of expertise. They have been very helpful along the way in helping us go through all the possibility of cases. The decisions we made about which cases, and also the educational materials about the cases themselves. Enjoying the partnership in many more weeks to go as we help you and us learn the history of the
Supreme Court<\/a>. Well, one of the ways that
John Marshall<\/a> sought to establish the
Supreme Court<\/a> was even through symbolism. Were going to return to his house and look at one change he made that was very different from the english system of the courts. Lets watch. These are
John Marshall<\/a>s
Supreme Court<\/a> robes. This is the only surviving example of his chief justice robes. So theyre right around 200 years old. Its made out of black silk. And you can see here is the lapels and here are the sleeves here. And after after a couple hundred years, there starts to be some deterioration. These had been on display at
John Marshall<\/a>s house from 1929 until the 90s when we realized the level of deterioration and needed to stabilize them. He would have worn this early in his tenure as
Supreme Court<\/a> chief justice. Its pretty much during this time period where he makes it the sanctioned uniform, so to speak, for the
Supreme Court<\/a> justices to wear black robes rather than the red robes that the
English Court<\/a> would wear. So, prior to
John Marshall<\/a>s appointment as
Supreme Court<\/a> chief justice, it was pretty much up to each individual justice to what they wanted to wear. Many of the
Supreme Court<\/a> justices were wearing pretty much modified
English Court<\/a> robes, which would have been red. Many oh them were also wearing the
English Court<\/a> wigs, and it was under marshall as
Supreme Court<\/a> chief justice that he made it mandatory that the judges would all be wearing these black robes. This was really mainly to say that we are responsible for interpreting the constitution. This is not a show of power. This is we are of the people. We are not above the people. Which is something that he was extraordinarily passionate about. Demonstrates one of the many way that
John Marshall<\/a> was thinking about how this court would become established in society. So, cliff, i want to walk through the essentials of the case. We have to get to the case. When was it heard . So, initially, there was this proceeding in december 1801 and then it is heard again in february 1803, the next stage of the case. And it was heard in that courtroom you described in the capitol building. Yes, exactly. That dank, lowerlevel court. Yes. And it was conducted the way we hear cases today as oral argument or
Something Else<\/a> . No, it was very different because it was an original action. Marbury had filed suit in the
Supreme Court<\/a> under a part of the judiciary act that he said i can file an original action asking the
Supreme Court<\/a> for a mandamus. So they had to have witnesses. And marburys lawyer, charles lee, the former attorney general, puts on witnesses. Now, he has a bit of a problem because the witnesses work for the government and theyre suing the government. There are these two clerks at the state department. Well, they work for
James Madison<\/a>, but he puts them on as witnesses. Theyre very reluctant to testify. They object. They think they shouldnt have to testify about the inner workings of the executive branch. And
John Marshall<\/a> makes a series of very careful rulings. They can testify about the facts of where theyre commissioned, but they cant get into internal deliberations. But there is basically an original trial going on in the
Supreme Court<\/a>, but theres one very unusual fact about this trial. Which is that the defendant,
James Madison<\/a>,
Thomas Jefferson<\/a>, they refuse to participate in it at all. Theyre showing total disdain for it. The attorney general, jeffersons attorney general, levi lincoln, and he had done this in december 1801 also. Hes in the courtroom, but when hes called upon by
John Marshall<\/a>, refuses to participate as a lawyer in the trial at all or to make any arguments. Theyre not going to dignify it by doing that, but as the trial proceeds in february 1803, they actually call him as a witness to test about whethify about wh knows what happened in these commissions. He very strenusually objects on various grounds to testifying and
John Marshall<\/a> makes very careful rulings. Very different than the
Supreme Court<\/a> today. How aware was the capital city and the rest of the country that this case was going on . Well, its in public. We have a tradition of public trials and people show up. The most important witnesses in the case, since it is a trial, are named marshall. John marshall is really a witness, and thats why, you know, from a certain point of view, dont do this at home, kids, you know . He should not have heard the case because he actually writes as if the facts just are clear. Theres one person who actually knows from firsthand knowledge that the great seal of the
United States<\/a> was affixed to this commission, and thats the hand that did it, and thats
John Marshall<\/a>s hand as secretary of state. And
James Marshal<\/a>l, his brother, actually submits an affidavit. When you read it carefully, it actually says i think marburys was one of the commissions i was supposed to deliver. Im not exactly sure. So so, its interesting. So, did all six of the justices participate . No, actually. Two of the justices were ill and could not be there. So there were only 4 of the 6 and it took 4 to have a quorum, and that then led to some issues. How many days did the trial take place . It took place over two days in february 1803. And then how long did it take for the court to deliver its opinion . Well, it was 13 days later, and that seems by todays standards to be a very short period of time. At the time, the public was wondering what was taking the court so long because the
Supreme Court<\/a> tended to issue its rulings very quickly in in short opinions. One thing akhil alluded to earlier, and it relates to the robes, one of the praebts that
John Marshall<\/a> began was this practice of opinions for the court as opposed to each of the justices just giving their own quick opinion. So even though it was a relatively short period, a couple weeks, there was speculation in the press about what is taking so long. So hes writing opinions and theyre all getting together and theyre all wearing the same robes. Hes trying to create summon from the vapors this institution that we call the court, instead of, you know, just a bunch of cats that are being herded. So written opinions, which the constitution doesnt require, but has been our tradition since the marshall era. They all wear the same robes and they all try, if possible, to at least get to at least a majority for one statement of reasons. The opinion of the the court. And, remarkably, perhaps, he has them all staying in the same boarding house. Like dinner parties that we talked about. Yes, exactly. Where the wine flows and the conversation flows. He is a very charming host. Very gregorius. I do have to tell one story about having all of the justices together in one boarding house because he instituted a rule that they could only have their evening medira, the wine of the era, if it was raining out. Each night he would have a justice go to the window and report. Well, it looks very clear out there. Our jurisdiction is so vast, it must be raining somewhere. Its 5 00 somewhere. Lets take a call from miguel in corpus christi, texas. Hi, miguel. Are you there . All right. Let me move on to lydia, up next in irving, texas. Youre on the air. Caller hi i am just curious about something, and that is that doesnt the are you there . Yes, were listening. Caller oh, okay. Doesnt the constitution take precedent or reign supreme over the federalist papers, which are just basically articles written and published. I dont understand that. Thank you. Sure, but the federalist papers might help us understand what the words of the constitution mean and were understood as meaning to the generation that ratified it. But, of course, yes, the constitution is the supreme law of the land. The federalist papers are just one genuinely useful aid or guide to understanding what it really meant ridge thatly. Janet is in rocky face, georgia. Your question, janet . Caller yes, my question will be for mr. Aman. Mmhmm. Caller were having a lot of how are we related to the sharia law now. There are two religions here that are prominent in the
United States<\/a> that they want to use their own laws at the courts, like the sharia law and the jewish janet, how does this connect into marbury versus madison . Caller i dont think that there is a connection. Okay. Were going to were going to top stop. Thank you so much because we dont have time to bring it into todays. Let me just say one thing. Heres whats amazing,
John Marshall<\/a> swears in
Thomas Jefferson<\/a>. Because hes chief justice and the two men dont like each other very much. Cliffs book has a very engaging story how marshall turns his back on jefferson. But heres the amazing thing about the oath, it doesnt require any profession of religion. Youre allowed to say, so help me god, if you like, but you dont have to. Two of the folks up on
Mount Rushmore<\/a> including jefferson and lincoln were not conventional churchgoers. Ours is a system mr. Jefferson would want us all to understand there is no religious test for public office. When the chief justice delivers the opinion, the case is boiled down to three central questions. The first was, did marbury have a right to his commission . The court said what . Yes. He did have a right to his commission. Question two, if he had a right and the right was violated, did the law provide a remedy for him . Yes, it did. And on both of these questions, marshall is very clear that he thinks that the
Jefferson Administration<\/a> and jefferson have acted against the law. That they were duty bound to give them the commissions once they were duly appointed. And so its actually the harshest criticism of a president ial administration in a
Supreme Court<\/a> opinion up until that point. And question number three. And heres the part where everyone looks to the thinking, the of the chief justice. Point three. If the law provided a remedy, was the proper remedy, this mandemus or direct order from
Supreme Court<\/a> . And it was on this point number three
John Marshall<\/a> decided what and this case became historic. So, remember, were taking marnls orderings of the issues. Can
John Marshall<\/a> sit . The answer is no, he should have recused himself. Hes a witness with firsthand knowledge of the case. The second is does the court have jurisdiction, the power to hear the case . If it doesnt have jurisdiction, its a bunch of people in black or other colored robes telling other folks what to do without authority. So from a modern point of view,
John Marshall<\/a>, you know, inverted everything. Why . In order to score a bunch of political points against jefferson in some ways. At the end of the day, hes going to pull back, and at the end of the day hes going to say, ah, even though jefferson and madison what theyve done is totally illegal in all these ways, at the end of the day, he says, actually, it turns out we dont have jurisdiction and we dont have jurisdiction because this congressional statue that could be read as giving us jurisdiction is actually unconstitutional, and our job is to give effect to constitution, even if thats at the expense of the congressional statute. Now, from a modern point of view, if thats true, he probably should have decided that at the very beginning as the first or second question. Even before that, he probably should have said, am i entitled to hear the case . Recusal. But in saying point number three, he went on the to declare what the
Courts Authority<\/a> was. I have a paragraph to read because this becomes the heart of it. He wrote and read, it is emphatically the province and duty of the
Judicial Department<\/a> to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on operation of each. A law repugnant to the constitution is void, and that courts as well as other departments are bound by that instrument. So there we have it. And no two things. Court, there is no
Supreme Court<\/a>. There not a word in the opinion about the unique powers of the
Supreme Court<\/a> as opposed to all the other judges in the system. And note all that he says as well as other departments. We today have tended to read marbury as if hes saying making a unique claim about how only courts only the
Supreme Court<\/a>. In context, do i think marbury is better read as saying court along with other folks are bound by the constitution. And just as, you know, a congress cant tell us how we have to rule, there are certain domains in which other branches of government might be able to make independent constitutional determinations like jackson vetoing the bank bill or jefferson pardoning the sedition act convicts. Well, i do think he is saying very clearly that at all a al the departments do have a responsibility to evaluate the constitutionality, but at the end of the day, the final word, it is emphatically the province and the duty of the
Judicial Department<\/a> to say what the law is. Thats the heart of marbury. And thats why it has been a beacon in our own history, in the
Supreme Court<\/a>, at times of great stress like the nixon tapes case or enforcing brown versus board of education. Invoked in marbury. Its been an example around the world. It states it very clearly, it is emphatically the duty of the judiciary department. The chief justice wanted this to be unanimous. Of the four other justices sitting in, john marnl, samuel chase,
William Patterson<\/a> and bush washington. They all joined in the opinion. You have to tell the story of how it was read. Its hard to imagine. It was in a boarding house. Yes. They were staying at testells boarding house, across the street frost capitol, whi street from the capitol. There were only four justices there. It takes four justices for a quorum. Justice samuel chase, who was known as old bacon face, had come down with a very painful case of the gout. And he could not hobble across the way to the capitol. And so the
Supreme Court<\/a> tried to convene, but they only had three justices. So they didnt have a quorum. And then at a certain point, marshall had a realization, if old bacon face couldnt come to the court, the courts going to come to him. So they hold the
Supreme Court<\/a> in the parlor of stells hotel. Theres a lot going on at the time. Dancing assemblies, a traveling dentist who is staying there who set up shop there. In the parlor of stells is where marshall reads this most famous of
Supreme Court<\/a> decisions. Its not only famous, its also the longest, 9400 words, you said, and he read the entire thing which took him how long . Ever time it out . No, im not sure. It was at least a couple hours. One thing thats very important and the sense of high drama as he reading it. As you were going through the three questions, it looks like hes going to really issue a sweeping rebuke to the
Jefferson Administration<\/a> and order them to deliver the commissions. That would we a square confrontation between marshall and the
Supreme Court<\/a> and jefferson. And it was very possible that jefferson would just defy them and the
Supreme Court<\/a> was very weak. And so hes going through the questions, yes, marbury has a right to the commission. Yes, he has a right to a remedy. And then he gets to that last point and says, but the statute doesnt give us jurisdiction. Therefore, we cant rule in marburys favor. Or the statute does, but is unconstitutional. Yes, exactly. Exactly. And we are striking down the statute because its unconstitutional. So. And so, therefore, we cant give him this order. And so the result is that technically jefferson and madison win and marbury loses, but theres an awful lot in the opinion that is all about how marbury was right and they were wrong. So each side wins some, loses some. And that actually was a very important aspect of marbury also. Because a lot of people at the time thought that the
Supreme Court<\/a> was just going to be a very predictable political actor. These were all federalist appointees. People expected they were just going do the expected federalist action. And instead, with this kind of mixed decision, in addition to being the first decision that strikes down the statute as unconstitutional, they actually seem to be acting as a court, rising above politics and weaving in a range of legal issues. Or at the very least, pulling back at the last moment remember, as cliff said, madison refuses to show up in court. Jefferson is not dignifying the jurisdictional pretenses of the court. Signaling that they might not accept a court order. They might not carry it out. And thats maybe the bestcase scenario. Here intermediatecase scenario. At the same time, there are impeachment proceedings in the pipeline again a lower court judge and actually soon thereafter, a
Supreme Court<\/a> justice, none other than old bacon face. So bestcase scenario might be you issue this piece of paper and jefferson laughs in your face and what are you going to do . Best case. Middle case, you issue this piece of paper, and not only do they try to impeach a lower court judge named pickering and a justice named chase, theyre going to go after you. Worstcase scenario. We know its going to come to this, but they dont know. There was a french revolution that had just happened and heads rolled. Jefferson very airily, well, you know, you cant make an omelette without breaking some eggs. The tree of liberty has to be watered with the blood of tyrants. John marshall cant be 100 sure its not going to end very, very badly, indeed, there is some prudence here as well. He doesnt push it too hard, even though it is a political scolding of epic proportions. Miguel is watching us in connecticut. Hi, miguel. Your question. Hello . Yes, youre on. Your question. Caller im calling from corpus christi. Go ahead, sir. Your question. Caller yes, good evening. Thank you, cspan, for doing this. I think jefferson and the others were quite shocked when they realized the implications of the opinion. Because its my understanding that state legislatures could override their
Supreme Court<\/a> decisions, and jefferson many thought that would happen. What was suggested here was not the case. My question to the panel is, one of the books that i remember reading and i found just wonderful was albert
John Marshall<\/a> biography. Which reads like a french novel. I just wanted to know what their opinion was regarding that book, which, again, its a wonderful, wonderful book. Thank you, miguel. Our time is short. Ill find out what our kbeguest think that of biography. Its a trisk biography. Marshall is a fascinating character. He would have been tremendous company. He enjoyed people, it seems like everybody except
Thomas Jefferson<\/a> who he really had that emnity with. Hes just a very, very interesting character. But thats one of the ones that really bring him to life. Akhil, a quick question for you on twitter from allegheny tab lo tableau. The more we hear about this case, the more it seems its solely marshalls will. Im critical of it. Judicial review is not made up at all. Its very wellestablished, in fact. In states, and in fact, contrary to what miguel said, state legislatures before marbury did not generally have the ability to overturn state
Court Rulings<\/a> that state laws had violated state constitutions. So cliff earlier said marbury is the first thing at the
National Level<\/a> of the
Supreme Court<\/a>. The
Supreme Court<\/a> itself, justices riding circuit had even invalidated congressional statutes. So, marshall is not making up judicial review at all. Hes pulling a fast one in certain ways, because if he doesnt, you know, his branch is going to vanish into nothing. The federalists are never going to be heard from again. Hes trying to rally the troops. Even as hes retreating. And one thing that youve heard us talk about is that although
Marshall Marbury<\/a> is seen vush as judici very much judicial review. Courts against congress. Much of the drama is going to be courts against president. We have 15 minutes to talk about the importance of this case. Quick comment . Let me say one thing while were talking about
John Marshall<\/a>. Akhils mentioned the recusal point a couple of times. I do think just for everybody to understand, in recusal is when a judge says i cant sit on this case because i have a personal interest it. The standards for recusal were very different at the time. In todays world, there is no question to anybody that somebody shouldnt sit if they have that personal involvement. The standards for recusal at that time was definitely if you had a financial interest, and beyond that, it was very sort of vague and murky. One of the things that is very telling about that, in the whole sequence of marbury and its aftermath, including jeffersons very bitter criticism of it the rest of his life, he never raised that as a point. To the and everybody knew it. And nobody and there were people who wrote articles in newspapers attacking marbury and attacking marshall on many grounds. Nobody raised that. So to the contemporary ears and eyes at the time, it didnt occur to people that he should have recused. So, on to the impact of this case both at the time and today. Im going to start with today because judicial review is still being debated in this country. We have two points of view to show you. First, from the
Supreme Court<\/a>
Ruth Bader Ginsburg<\/a> talking about the importance of marbury versus madison. Lets listen. Marbury and madison is is probably the most famous case this court ever decided. All people who serve government take an oath to support and defend the constitution. But this court has the last word on what that constitution means. That is not the typical pattern in parliamentary systems where the legislature would have the last word. On what the fundamental instrument of government means. The idea of judicial review for constitutionality, i think, is implicit in the constitution at document. But
John Marshall<\/a> made it explicit in the great case of marbury against madison. And we also traveled to capitol hill to talk to the chairman of the house judiciary committee, a republican,
Bob Goodlatte<\/a> of virginia. Hes some of what he had to say. Well, i think the court has, and i think mistakenly relying on marbury for something that goes beyond what the actual decision made. Gone too far. In a number of decisions with regard to getting involved in constitutional decisions or other decisions that are either not to be found in the constitution, and yet they found something there, or not finding something that i think most people today looking back would have found that it should have been there. Thats congressman
Bob Goodlatte<\/a>. Id like to show you a number of decisions over the years that have cited marbury as precedent as they made the decision. In fact, we found that marbury was cited excuse me by the court over 200 times, but there are a number of key cases, some of them very recent in which marbury versus madison was cited. They include baker versus carr in 1962 saying the
Supreme Court<\/a> can hear reapportionment cases. Thats going to be one of the featured. Griswold versus connecticut, became fundamental in the roe v. Wade situation. Executive privilege in the case of the nixon tapes is not absolute. U. S. V. Winder is, defense of marriage act in 2013 is unconstitutional, and most recently, last year, king v. Burrwall, which is the health care review. Marbury v. Madison has long tentacles in the court. Amy mulligan asks, should we as americans be concerned about judicial review becoming judicial activism . Well, the very important point is that judicial review is an essential cornerstone of our system. Former chief
Justice Rehnquist<\/a> said it was the greatest gift americans gave to the science of government and it is a very, very important principle, but that doesnt mean were all going to agree on how that power of review is exercised, and there are going to be and there should be healthy disagreements about that. And frequently if somebody doesnt like the outcome of a decision of the
Supreme Court<\/a> that invalidates an action that is unconstitutional, they view that as judicial activism from whichever perspective. But so there should be a very, very vigorous discussion about how the
Supreme Court<\/a> exercises that jurisdiction, but the fact that it has that authority to provide the last word on constitutional issues is, i think, a very important protector of our liberty. Akhil . So, since you mentioned king versus burwell, i want to give a shoutout to chief justice roberts, who began our conversation. There have been four times in
American History<\/a> basically when a new president representing sort of a rising
Political Force<\/a> has confronted a court that represents the old
Political Force<\/a>, ghosts of president s past. And the first is jefferson confronting marshall. And theres this confrontation. And marshall, to hi credit, he pokes jefferson a little bit, but at the last minute, he actually shows some prudence and doesnt try to destroy pick pick a huge fight. This is going to happen again when we get to the dred scott case. Roger tawny representing the democrat party. What becomes the jeffersonians. Hes opposed to abraham lynn continue, the antislavery person. And, again, this dramatic inauguration with the ghosts of the old regime meeting the new president. Theres going to be a conversation there. And then a third time fdr is going to confront all thee judges from republican administrations past and theres going to be a crisis. And the fourth time is john roberts representing basically a lot of republican president s who dominate the whose appointees dominate the court, and he could have picked a fight with barack obama, and twice in sebelius and in king versus burwell, he declines to invalidate the big platform of obama, what he ran on, obamacare, and inso doing, he, like
John Marshall<\/a>, took the court out of the politics a little bit. It was not partisan. He joined, actually, with folks on the other side, and id like to think its maybe because he studied marbury versus madison way back when. He went to the same law school, i think, you did, and its possible that he borrowed a page from the great chief justice. You know, on this point about judicial review and judicial activism. There was a companion case to marbury versus madison that is almost never heard of or talked about called stewart versus laird. And in that case there was a constitutional challenge to the statute that the jeffersonians had passed, repealing the judiciary act. Again, a lot of people expect those federalist justices to strike that down as unconstitutional. Thats where they thought the courts assertion of its power to invalidate statutes on constitutional ground was going to come and the
Supreme Court<\/a> in a very quiet opinion upheld the constitutionality of that opinion about two weeks after marbury versus madison. What that showed is having established it had the power of judicial review, the
Supreme Court<\/a> was going to exercise it very judiciously and not for predictable political purposes. So today if you go to the national archives, millions of people do every year, they have the area where the great documents of our government are on display. The declaration of independence, and documents from marbury versus madison. Does it belong there . I absolutely thing it does. It comes right after the bill of rights and the constitution. The explaintory statement says it is a cornerstone of our constitution, and i absolutely think it is. What also really belongs there, if we want to understand modernday judicial review, we care more about, many of us, rights of individuals rather than original versus appellate jurisdiction. And what we call the bill of rights, all the big cases about liberty, many of which are going to be in your series, a lot of them actually arent strictly the bill of rights because theyre not about the federal government, theyre about states misbehaving. And thats because of the 14th amendment. And the reconstruction. And so id want us to remember mr. Lincoln alongside all of that because his generation gives us a new berth of freedom, a second founding that is going to launch a really of judicial enforcement of rights against all levels of government. That is what marbury has become today. Even though it wasnt actually that robust at the beginning, but it is become really important because of the reconstruction, because of the 13th, 14th and 15th amendments. And four of the cases are 14th amendment related cases and weve heard for example senator leahy call this the second founding of america when the amendments were passed. We have about seven minutes left and ill have do this quickly. Let me take a call from cat in churchview, virginia. Hi, youre on the air. Caller if adam and jefferson were friends how about adams justify his actions when he went against jefferson in the presidency in the whole debate thing. Thanks. We spent some time on that in the beginning. How did he justify his actions . Well, they had been friends and then they became fairly bitter political enemies. And adams, from his perspective, when he had been defeated and he saw jefferson and the jeffersonny ans coming in, he was worried about the future of the country and as he put all of the federalists into government and trying to ensure that they were there in the courts from his perspective, he was safeguarding the last bastion, because he was fearful about what would happen to the country but as we talked about before, they reconciled before the end of their life. And to give him his due, he leaves. He does not try to hold over and defy the will of the electorate and that is a historic first. Since youre mentioning the historic firsts, marbury is a first of sorts, one
Political Party<\/a> losing fair and square to another at a
National Level<\/a> and actually yielding power to its political rival, that is a pretty new and gives the world an amazing lesson, it seems to me. And give adams his due in that regard. And hes worried the french revolution, is it going to spiral out of control. So some of this is maybe selfprotection on his part. Mistaken. But just to give him his due. But john adams considered his appointment of
John Marshall<\/a> to the
Supreme Court<\/a> one of the crowning achievements of his presidency. One of the letters written to marshall in the waning days of his life. In 1801, following four years of serving as president of the
United States<\/a>, john adams would leave washington, d. C. And once again return home to his home at piece field where we are today. Woe spend the next 26 years of his life at peace field with his beloved wife abigail and their children and grandchildren. This is a very lively house. It is where they spent most of their time. In fact john adams left this house very few times. During his presidency abigail would spend much of her time back here at peace field. Dowering that time she would make an addition to the house, we call it the 1800 wing and it includes a study on the second floor where john adams could entertain his mind. From this desk that john adams would correspond with
Thomas Jefferson<\/a> and they shared over 300 letters in their lifetime. In one of the letters adams would write to jefferson you and i ought not die before we have had a chance to explain ourselves to one another. Many of the letters were the lifeline for john adams to the outside world. He loved to receive letters and sometimes surprised with a gift including from his own friend
John Marshall<\/a> who he appointed as chief justice of the
United States<\/a>. John marshall presented john adams with a copy of the book he had written on the life of
George Washington<\/a>. John adams is at his desk and writing to
John Marshall<\/a> that he has received this gift. He writed, dear, sir, the extreme em bis illity of old age must be my apology for n neglecting to write and thank you for your book. It is not for want for steam or respect or admiration that i have not written frequently to you. There is no part of my life that i look back upon than the short time i spent with you and it is the pride of my life that i have given to this nation a chief justice equal to coke or hail, holt or mansfield. I am your friend and well wisher though on the point of departure, john adams. So the chief justice
John Marshall<\/a> serves on the court for 34 years, call the great chief justice. What was his next several years like . Did he decide many other cases. One book i read made the point establishing this principal he became more powerful than the next three president s of the
United States<\/a>. Would you go that far . No. And i dont think that is the right way to look at it. He created the
Supreme Court<\/a> as a coequal branch of government and in marbury he established the principal of judicial review and invalidating a judicial statute, there are opinions where he has authority to review state
Supreme Court<\/a> decision where he defines the contours of
National Power<\/a> including congressional power. But through his the scope of his opinions, his brilliance, and also his personality, he took what was this very lowly disdained court and really turned it into the
Supreme Court<\/a> of the
United States<\/a>. What should we remember him for. Well here is one thing in addition to what cliff said. I cant remember who it was who basically said 90 of life is just showing up. John marshall shows up. He just stays for a very long time. 34 years. His predecessor jon jay left, the next guy
Oliver Ellsworth<\/a> left. So imagine an alternative universe, because in the constitution there is not a term limit until the 20th century until fdr, so imagine a world where president s are reelected for life and we dont have that because
George Washington<\/a> leaves and john adams leaves and then madison and monroe and the tradition begins. But washington established that and his great biographer was none other than
John Marshall<\/a>. So washington establishes we wont have a president for life. John marshall really puts kind of a different spin on life, good behavior. He doesnt cut and run. He stays and stays and stays and works with new appointees, basically a jeffersonian appointee and creating a court above party and he stays and a lot of life is just showing up. We know what happens to
John Marshall<\/a>s political career. What about
William Marbury<\/a> who gave his name to this case. I always get asked that question. Marbury continues to be very active in
Business Affairs<\/a> in washington, d. C. Over the course of the next 30 years or so. He his hand in lots of different business ventures, a bank, a place that imports suits from england. But the house that marbury lives in during this time still stands. It is in georgetown. It is the embassy of ukraine today. And you can see it there. It was basically marburys command post during this entire period. Well special thanks to our two terrific guests for the first in the landmark cases series. Akhil reed amore and cliff sloan. We have more discussion, thank you for starting it off with us. We appreciate it. And thanks to our viewers. We hope youll be with us throughout the series. Cspan has unfiltered coverage of congress, the white house, the
Supreme Court<\/a>, and
Public Policy<\/a> events. You could watch all of cspans
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Public Service<\/a> and brought to you today by your television provider. We take you live to a hearing on over sight of the
Energy Department<\/a> during the covid19 pandemic. This is being held by the house energy and commerce subcommittee. Live cspan coverage on cspan3. And were live at a hearing on over sight of the
Energy Department<\/a> during the covid19 pandemic. House energy and commerce subcommittee is the host. They appear to be running a few minutes behind. But we do expect it to start shortly. Live coverage here on cspan3. Wearing have some technical problem. So well correct that. Can you hear what im saying . I know youre all riveted by my but i thought i would make sure you all could hear what im saying . How does that work . Again, were experiencing some minor technical difficulties and we will begin as soon as they are eliminated. So we have to press the button. Got it. Probably blissful thinking that were not there in august, but it is very possible we will be, i guess. Right. Thank you. Can you hear me . When is the
Republican National<\/a> convention . I dont know. When is that . Isnt that in july. It is in august. It is the third week of august, i think. And what about the democratic one, is that in july. I think it is after ours. Both of them have been postponed until august. That is right. It will be in jacksonville, not charlotte, right. I think youre right. I think it is in jacksonville. I think someone is still trying to get on. We have fred and cmr on. Morgan griffith is still in the holding cell. What is going on in the great state of vermont, mr. Welch . Well it is raining. But were going to get a heat wave. Were going to be under the heat of the dome. But were moving from strawberries to blueberries and soon to corn, summer vegetables. And all with maple syrup. It is going to get up to 75 here, peter. 75. Well its rough. Well have to have the
Telecom Subcommittee<\/a> in the ice bath. Testing, testing. Testing. One, two, three. What is that painting behind you . It is a great picture water color of the grand haven lighthouse. They gave it to me when i the coast guard festival mr. Secretary. Mr. Secretary. Yes, sir. Were experiencing some issues with our it was working a few moments ago but all of a sudden it decided it didnt want to cooperate so it will be a few more moments. Thats fine. 35 bills. It will probably get done by the end of the day. In just a moment well be joined by mia mcginnis of the committee for responsible federal budget, having this conversation on the day that that is the lead story in the wall street journal. The
United States<\/a> budget deficit surpassed 3 trillion in the 12 months through june as stimulus spending soared and tax revenue plunged putting the government on pace to register the largest deficit since world war ii. Noting a share of
Gross Domestic Product<\/a> came to 14 last month compared to 10. 1 in february. In june alone the deficit widened to a monthly record of 864 billion. Nearly as much as the gap for the entire previous fiscal year. Mia mcginnis joining us now via zoom. Your reaction first to the numbers released by the
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