All persons having business before the honorable, the Supreme Court of the United States are admonish to give their attention landmark cases, cspans special history series, produced in partnership with the National Constitution center, exploring the human stories and constitutional dramas behind 12th historic Supreme Court decisions mr. Chief justice, former mayor please the court quite often, in our most famous decisions, theyre one that the court took that were quite unpopular. Lets go through a few cases that illustrate, very dramatically and visually what it means to live in a society of different people who help stick together because they believe in the rule of law. Hello and welcome to landmark cases. This is the first of 12 historic Supreme Court cases that we will look at this season. Mcculloch v. Maryland is our case tonight, and we will learn more about this significant case in the people and issues behind it and why it is so important in our American History process. Later, we take your calls and your questions on facebook and twitter and make you a part of this conversation. Two guests are at the table tonight to help us understand what mcculloch v. Maryland is all about. Lets introduce you. Farah peterson teachers at uva law school, and once clerk for justice even reiner, and Mark Killenbeck teaches law at the university of arkansas, his offer of a book about this, welcome to both of you. First question is why does this belong on the list of landmark cases . One of the most dominant controversies in the interpretation of the constitution then and now its whether we should read the document primarily as a limitation on government or whether a grant of power and this landmark case, chief Justice Marshall intervened in the controversy in two ways. First, he held that the federal government in congress its not limited to the specific powers listed in the document, but instead as an access to a broad range of what is called implied powers, in order to effectuate that. Second, he continued to campaign that he pursued throughout his tenure on the Supreme Court of asserting that the Supreme Court was not only the dominant interpreter of the federal law and also that he and the Supreme Court could stay with the law meant even when they disagreed with the ruling of the highest court of the state. And that was really the dominant controversy of the time, and so it was quite important. Mark killenbeck you wrote a book about it, so you think its still significant. But why should people still care about this case . The case provides a series of very important foundations for the way things operate today. One of them is this notion of the ability of congress to do that which is necessary and proper to effectuate the constitutional compact between nation and states. One of the other ones that people do not talk about as much is marshals conception of the relative role of the court in congress, judgments about policy, about what is necessary our judgment that are going to be left to the congress. This is central to the case, let the end be legitimate, etc, that deference about what is good policy is a very significant factor. The other things that enters in here is that marshals willingness to sustain the bank of the United States at a point in time that it was a low the institution, people did not like it at all, it was the panic of 1819, 3 Million People were an economic straits, it was an active judicial courage to put the bank on square footing and precisely the moment they did, its not just the rules they articulate but the circumstances that they are decided lets spend more time on those circumstances. American 1819, james monroe was president. What else should people know about that time . During the war of 1812, the war created inflation, as wars tend to do. And that inflation was exacerbated by a rash of new banks opening, and the way it worked back then was that it would hold in a certain amount of silver or gold currency, and they would issue notes that stood for one dollars worth hard currency, and its a take this paper money, you can use it as if it were hard cash, and anyone can bring it back at anytime and redeem it for gold or silver without regulation, banks like that are issuing much more paper than they could think, inflation just went wild there was a great demand for commodities like wheat and cotton, and the bubble got bigger and bigger, it was prime to burst and it unfortunately did for a range of factors, including the conclusion of the war of the napoleon acquires in europe meant that demand was not quite as strong, but the Bank Actually heard it a bit as well. The bank had a debt coming due, it had to pay back the bonds that the United States had issue in order to publish the louisiana territory, and they can only payback those bonds in silver so in order to pay it they had to go to the state banks and say we hold your paper. Give us the requisite amount of hard currency. That started forcing closures across the country. Closures led to personal bankruptcies and the whole system collapsed. Why was the second bank low . One reason was the perception that the bank had a key role, and was even the main source of the panic of 1819. The history is mixed on how much it actually did cause, but the other one was that it the moment it was happening was the rumors of corruption and theft and misrepresentation on the part of the bank in particular, the Baltimore Branch of the bank were coming to a head so, congress put together a committee in december of 1819 that issued a report and basically documented that the bank, and in particular, the Baltimore Branch, was terribly corrupt terribly inefficient and not an institution that you would trust. All this was coming out at precisely the same point that the case was being set up to be argued before the Supreme Court in february the case centers around the second bank of the United States, particular the Baltimore Branch. And it is really over issues that had been at the heart of the debate ever since the founding, really. State supremacy versus the federal supremacy. So this became a proxy for that continuing discussion, it sounds like. Absolutely. And one of the reactions that estates around the country had to the panic of 1819 was to pass laws designed to drive the bank out of the territory. Marylands law was actually one of the milder forms. Its arguable that marilyn just wanted to raise revenue and other states like ohio which would end up in litigation after mcculloch v. Maryland passed a statute that it required the bank to pay 50,000 dollars of hard cash per year, and those kind of laws were designed to drive the bank out of the state entirely. The question was really joined there does the federal government have the power to charter corporations within state boundaries . Should states have the right to say what kind of institutions are meddling in their economies and competing with their own administrations . What are the sovereign powers that the states sought to preserve. Well get into it the, players and this. First, James Mccullough. Who was . He he was a young man at the time he was a veteran in the war of 1812 who had been wounded at the battle blatant borg. He went back to baltimore and hooked up with some locals, and the head of the administrative branch. The opportunity was to get rich, to exploit his position and he formed individuals to engage in self dealing in terms of the stock of the bank, and also advocated for the bank to be very aggressive in its policies. The first bank had been very conservative, and because of its conservatism had been a big success from 70 91 to 1811. The new bake comes in 1817, it starts out with a relatively conservative set of policies and was a very weak individual, and mcculloch was pushing for the bank to be the even more aggressive and expensive, and was a force in terms of getting the things where they ended up with eruptions and the problems. He was self dealing, basically a crook as you described in your book. But the case is not about that. Did he ever felt justice . They had an initial time to try, and then in what they called a conspiracy cases his attorneys did a savvy thing and put the bank on trial rather than him and his partners and by raising the issue of the bank as this evil force, this intruder in the states, this alien presence, they were able to get mcculloch acquitted. Another character we will hear about is Daniel Webster, what was his role in this case . Daniel webster is one of the most famous lawyers in American History because he came again and again before the court to argue some of its most important cases. And he was a lawyer that americans looked to to help expound what the constitution meant. So this was an incredibly interesting and important session of the Supreme Court and he appeared several times, arguing not just mcculloch v. Maryland but also the Dartmouth College case. We are going to invite you are calls, and another 20 minutes or so, were going to take historical questions, but were also going to talk about the implications of this case on a political process so all those are welcome as you join in. If the eastern or central time zones, our number is 2027488900 if you live in the mountain or pacific time zones, our number is 2027488901. Please dial carefully so you get through to our lines, and not other people. If you treat us, use the hashtag landmark cases, and if you are on facebook you can find the cspan feed and there are already conversations going on with questions about this, what makes all of them and during our 90 minutes discussing mcculloch v. Maryland. One small point about mr. Mcculloch, dispelling up his name. We found three different citations of it as you look at various documents. Yours uses him apostrophe, there is an variations with a sea h. , how did that happen . What did he use. After i wrote the book, i was doing some research and the South Carolina society, and found, i dont know for a fact that it is his handwriting but i found a hand written note from mcculloch when he was attempting to get a job after being fired, and he spelled his name mcculloch if you go to a number of the sources, thats probably his name as he used it but what happened is both a combination of typesetting conventions and the confusion of that age. The Supreme Court alone has three different names, and that is how he spelled it. Its got us dissent . Yes. Some of his young members changed their spelling, so as you follow his genealogy it gets more confusing. But an interesting sidebar on him and the Supreme Court documents that are different than what the president uses lets get into the case itself as you imply, maryland wanted to tack the bank, and how did it get to the Supreme Court . Maryland passed this tax, it was an interesting kind of tax and was a stamp tax, its the kind that americans protested against right before the revolution. Maryland issued paper that was a little bit costly, five cents for this piece, ten seats for that peace, and said you can issue notes, banknotes, dollars and you can only issue them on these expensive papers. Mcculloch as cashier refused to use that paper. He just continue to issue notes on the right of their paper that he had been using, so he refused to pay the penalties and that is what brought the case to Maryland District Court. How do you get from Maryland District Court to the u. S. Supreme court . It went to the Maryland Court of appeals, which affirmed the validity of the tax, and then they brought it to september of 1818, and the court took a jurisdiction of the case and said it for argument one of the things that Richard Alice of the good historian discovered during his own research was that it was almost certainly a contrived case we say basically that they set this up precisely to test the constitutionality of the bank, and this is not unheard of in American History, it is a post riding of my book, interesting inside and to the significant issue since 1791, and people wanted to resolve this question. Whether or not it was constitutionality of a federal or National Bank. In 1819, the Supreme Court was moving in two new spaces around the capitol building, which had been burned during the war. And we are going to learn more about the spaces in which that operated in washington. It was in this chamber where such landmark cases such as dredge got versus stanford, and the at states versus the alassad wouldve been heard, argued and presented to the court. They wouldve seen a room that wouldve been refurnished, the walls wouldve been painted, newspapers procured and the carpet put down, new windows installed, and what was neat about this is how intimate the setting is. The arguments wouldve been open to the public, the arguing attorneys, they petitioner who wouldve been in a lower reassessed area, dark, damp and likely cold. It wouldve been daunting environment to present an argument. We they argued cases in february 1819. Their arguments in mcculloch v. Maryland lasted for nine days. Each of the council would have had a great deal of freedom to speak uninterrupted and lay out their case before the justice. The court convened and would have adjourned where the arguments went, there was two restrictions per side, and each side had three attorneys, and each attorney was able to speak up to three days. These are beautiful spaces, and you can still visit them when they go on tour. The Supreme Court at the time had seven justices, im the chief justices for John Marshall. He is referred to the chief justice, he was not the first or the fourth. Why does he get that description . When he became chief justice, he made a decision to put the court in what he viewed as its proper place. When they resigned as chief justice during the last months of adams is administration, he turned initially to john j. To be the next chief justice. In fact, he was confirmed and then adams sent a letter saying it was a new chief justice. Jay said no thank, you im not interested when i was on the court, it did not do anything it was worth doing. Marshall comes in an 1801 determined to have the court assume its rightful place. Particularly in the light of the transition from the federalists under the Adams Administration to the democratic republic and the republicans of Thomas Jefferson. Progressively, beginning with marbury in 1803, he carved out a place to say that the Supreme Court matters, its going to be the exploiter of what the constitution means. Mcculloch is one of the very critical steps in this protracted process of securing for the article three federal judiciary. Here is what the court look like, president adams appointee and adams appointee, there were three jefferson appointees, william johnson, Henry Livingston and thomas todd although he was ill and did not participate. What does that mean for the ideological discussions . One of the special things that they did in order to set the court on its path to greatness was to make sure that they can have the deep discussions in order to come to a consensus about what the opinion should look like. Because of that, even though they were justices appointed by different administrations, there was remarkably little dissension on the court. He was able to issue the majority of his opinions in one voice. In addition to danya webster, who are you argued the case for maryland . Luther martin, the attorney general of maryland who was a very good attorney and puts the last one from maryland, i saw blocking on names. Walter jones, private attorney engaged by them and, im sorry, im just drawing a blank. And then there was Joseph Hawkinson who was cocounsel with Daniel Webster and the dartmouthcole is case. The interesting thing is that there were a select few juries who argued that really knew each other personally and professionally. So for example, William Worth who argued for the bank of the United States had been the government prosecutor for treason, and Luther Martin, the former Constitutional Convention delegate for maryland would have been the defenses attorney. So these men came together again and again. In his book, peoples history of Supreme Court he says Luther Martin argued in a drunken state and it was rumored to be inebriated during his argument as well. Do you know any more about that aspect of his personality . Its true, he had a drinking problem. That was something that people discussed. It became a significant impediment, such that his last two or three years as attorney general maryland were not charitably successful. It sped up his death. For the end of his, life he actually had to move into aaron birdlife and his old client took care of them. We talk about Daniel Webster who became well known to all of us in our history books because of his grade ovations in the congress, we are going to delve more into what it was like to delve into that case. Will return to that chamber and the two senate historians. Daniel webster was an imposing figure, he had the nickname from his time at dartmouth as black dan because he had this tuft of black hair and these deep set dark eyes that commenters remarks were just piercing. He had this serious look when he stared rather intently at John Marshall. Danya webster was coming into his own in terms of his admitted to the bar of 1818, very slowly with, and was not a stranger to John Marshall or joseph story. He corresponded with each of them he was also intimately acquainted with all the attorneys involved. Joseph hawkinson who was arguing for the state of maryland had actually been has cocounsel before. William worth who was arguing with him on a tap for the bank had been on the other side of the case in Dartmouth College, so to argue before the Supreme Court was a small club and the attorneys wouldve been very aware of each other and known each other very well at this point. Danya webster spoke on the first day, he let things off on february 22nd, George Washingtons birthday. After webster had concluded his arguments on the first day, he was really anxious to get back to massachusetts and its practice, and our letters wrote to correspondence complaining that each day they thought they would be done and, nevertheless, there would be another day of arguing. He was anxious to get out of town. Let me pick up on that nine days concept. The Supreme Court gives attorneys one hour for both sides to argue the case and was nineties unusual back then . It was unusual for the time. Usually, they could only bring two lawyers and restricted to two days of argument age. Each brought the best they could find and Luther Martin was that even in his heyday when he was at his Constitutional Convention, he was known to top for such length that everyone would get tired, so he took up a full three day is in his oral argument. I wonder have the justices manage to process all of that . Its in the press accounts, and the oral histories we have at the time, they would sit there silently. There was not a give or take that what typify. They will listen respectively, they would not interrupt with questions and were there to hear what the attorneys had to say. A part of that is a reality that they were not doing formal written briefs, there are not these large quantities of printed materials submitted to the court, but the court treated them with respect and listened to them. What was working in that room like . Were there people from the general public that could come and listen to the cases, and was it popular for local people to come . It was one of the most popular forms of entertainment. The social seasons in washington were marked by certain things, and one of the social seasons were when the court convened in february and was there for five to six weeks. There was a constant parade of people coming in and listening, and joseph story talks about how during the oral argument that the chamber was full. It was very important to the city, both in terms of what the issues were, and in terms of the social scene in washington. Its time for your comments. Ill begin with bill whos watching us, youre on a landmark cases. Welcome. Hello, how are you. Whats your question. Given that he was a federalist in the era dominated by democratic republicans, was there any political or his decision at this case . Thanks, and we will spend more time in the end about the impact then and now, but what would your answer be . There was tremendous backlash, tremendous, and it took the form of pointed and heated debate in the papers where the great lawyers disagreed with the judgment, went point by point to dispute it, and the most learned possible way. And it also took the form of active political conventions, many were resisted by the states whose statues were struck down. This followed his judgments but other states around the country decided that as it seemed clear that this had been a feigned case, that it has been a set of job in other words that maryland had agreed to go to the Supreme Court with it, that their issue would be tested by a decision in that case, so they refused to follow the courts. Decision following on that callers ideological casting of this case, we have a facebook comment that sees this as the beginning of the devise of federalism. Today, if you are a liberal or conservative, you look at this differently . It wasnt the demise of federalism in one respect because the federalists had been losing power for many many years. There were no longer a dominant force in the political process, and that was something that may Thomas Jefferson especially angry was the notion that federalist judges had found a refuge in the article three courts where they could not be removed, and the political issue climate had begun to shift. We they became a very big thorn in the side of the jeffersonians and especially when Andrew Jackson would come in as president. Next is britain in humble, texas. Youre on landmark cases. Hello. Youre on the air, welcome. I wanted to know how this relates to the government today. Im settinging in eighth grade history. Youre studying this case . What if you learned about an eighth grade history. Wait. That maryland were just now learning it. I really put you on the spot, but thanks for watching the program because youll be ahead of it. What does it mean for the United States today . Its a core piece of the constitutional landscape. We talk about that earlier in terms of the deference to congressional policy, the states may not impair the operation of the federal government by taxation or anything else is very important. It is just a central part of the assumption that we have what we call a compound republic with an early areas where the exercise properly. The Supreme Court has told us that the federal government is supreme. Related to that, we have a tweet from a person called ap, and vance placement who asked where would you personally rank this case . Every nation needs a mythic past from which to draw its fundamental principles. This ranks up there with some of the most important principles that we have. Its such an important case that it is sided time and again. Well i was clicking we decided Something Like 70 cases, and it must have been sighted in a dozen of them. Just about a month and a half ago, a case came down from the Supreme Court and justice courses discussed in the dissent. This is part of the foundation of what we think of when we think of the basic principles that make up our legal system. When you talk about federalism, but that into the context of what people understood it to be at this time in our nations history. He has called it our oldest question of constitutional law, what is the relative law of the federal government in the states. It is a central facet of everything, not everything, but many things that are going on when you talk about immigration matters, you talk about medical care, what is the nature of federal power . How does it extend . What is the ability of the stakes to frustrate or Work Together with that power . It is substantial to these questions about how our goverment operates. When these sets of lawyers were making the cases before the Supreme Court, im going to ask you to take each side, so what would mccullochs lawyers be arguing . Theyd be arguing that congress had the power to create the bank. This was a debate that was joined at 1791, the first one was to contest was whether or not it was a institution, its not expressly mentioned in article one section eight, but during the Constitutional Convention they rejected a clause that would have Given Congress the power to establish corporations. The first thing that they would do was have the power to do it. And maryland said . Maryland said, look, in the constitution it specifically cant levy, they cant levy on imports or tariffs, but that list presupposes that Everything Else is free and open, that is with the fifth amendment says. They had strong to actual arguments, strong arguments from the actual history of the convention that Luther Martin, for example, was actually at and by all accounts they had some of the better legal arguments. This idea that the power to tax is the power to destroy, which was the argument that dangle webster floated for a reason why maryland could not tax the bank, its very dramatic. But it is not true. Taxes are imposed on all kinds of things without destroying them, and it presupposes there was nothing as gradations of power to be shared between the federal government. Next is to also oklahoma, your lemmer cases. Hello, i attend middle school. My question for your guest is what did this have on the power of the federal government . Thank you. It enhances the federal government the federal government may do what is necessary to achieve what is written in the text, so under the necessary and proper clause congress has got in the new sequence of that we, now you may do what is necessary to achieve those things, even though that is not mentioned, you may still do it. Next is a call from steve, watching us in tucson, hello welcome to landmark cases. Hello, im enjoying the show. Were threatening to threaten marijuana use where its legal. But what they say about that . The Supreme Court consider that issue in a very important case. In it, they regulate Recreational Marijuana use within the states. I think in that same opinion, which cited would apply for that. Agreed. Next up is nathan, watching us in baltimore, and baltimore, the home of the bank that got this case underway. Youre on landmark cases. If they had the power to destroy, according to that, would that contradict the Obamacare Ruling that the individual mandate was legal as a form of the text . The Obamacare Ruling was a very important case, and what that means is that it started with mcculloch v. Maryland. Justice breyer went through the very logical process that marshall had east, saying that these at the enumerated powers that congress has the right to pursue, the power to tax and to regulate commerce. So we must see that Congress Choice for how to pursue those is completely an outside of the bounds of the possible and permissible use of their power. Starting from the First Principles that march articulated, severely is valid in its footsteps. Another critical distinction. The tax that the individual mandate, the tax, whatever you want to call, at the penalty was on individuals as opposed to on the government itself. The question in mcculloch with the taxation of government and thought of individuals. State versus federal. So well talk a little bit about the implications, but lets move on to the decision itself and how it was reached. How did Justice Marshall, after listening to nine days approach a decision with the other justices . Our arguments on wednesday and people were very suspicious of this, saying they must have written it up in advance, except when you go through the decision with care you see that they took pieces of the arguments by the various economies, who was the last part, but they lived in it and they were very careful about this. They knew the country was watching this, so what more can you tell us about the process of getting to consensus . The process, the actual conversations that they had between each other are unfortunately lost with time. Marshall was very keen and putting it on the broadest basis. This case with just one vehicle that allowed him to get there, to get to a vision of an American Government that would be powerful enough to build the kind of interconnected, economically powerful society that he thought that america could be. Does it follow right out of marbury . Can you see line and reasoning . There is a series of cases from arbery to the bank of the United States, versus the fall, versus fisher, martin versus less he, were basic when chilly develop a theory of both the court and its role and the nation as a nation within which the federal government will have a certain degree of supremacy in certain areas, and it will continue after mcculloch through a case called the college versus virginia into osbourne versus the night of the United States, where he continues this process of fashioning a vision of a strong Central Government that will act for the good of the nation, not simply in international affairs, but also in domestic affairs, a big reversal from the assumption that it was running around when the constitution was framed. That is an keyport, new jersey. Welcome. Id like to follow up on what you just said. Doesnt the decision actually aggregate the tenth amendment to the comfort station . Its not limited by anything within the document, and whatever they want to do they can leave it out, so have we destroyed federalism . That was one of its dominant criticisms. One of the favorite quotes from the newspaper debate that followed the decision was one commentator from virginia that said that you must be a deplorable idiot if you cant tell the difference between a government of unlimited power, which is what you dont stand for and a government of limited power that can achieve that power by unlimited means. So it is true that in pursuing in the strong Central Government that marshall envisioned he did, he was less careful to preserve powers for the states. So thats a fair criticism. Related question on facebook from jason, heres my question, how does this square with the tenth amendment another contextual limits placed upon only the federal government, this ruling not seem antithetical to such restrictions and granting of other powers and people without federal interference . There are numerous questions that lurk there, but the key one is something that martial is actually articulating in cases prior to mcculloch. If the federal government does has power, that exercise of power is supreme. And by ratifying the constitution with a supremacy clause, the states expressly acknowledge this. Martin versus hunters, which is the case of state decisions, its a joseph story opinion and 1816 where he says that the states have to be careful about understanding that they surrender certain things to the federal government. Marshall, even in the midst of the soaring National Rhetoric of mcculloch makes it very clear that the court is going to reserve the right and will of necessary called a federal government and congress and limit what they are doing and will declare a congressional act unconstitutional. And the political rhetoric post mcculloch, people came to this with preconceived notions. But the language of mcculloch itself, the formulation that marshal put in place is not an absolutism. Its not an end justifies the means. Its very carefully measured. Six justices heard the case and the chief justice got them to a unanimous decision in this case. Samuel moores tweets and chief justice marshals opinion, does he decide the issue before discussing the necessary and proper clause, it seems that the issue was decided within, quote, ample buyers require ample means. Chief Justice Marshall never used one tool or five. And that is something that is very useful about his opinions. They are so useful and so frequently cited because they can go back to them again and again to find multiple avenues to get to the same conclusion. So, yes, he could have decided that the case would have an opinion one fifth the size, but isnt that delightful that he gave us something to work with . Hes watching us indicator, georgia. Youre on landmark cases. About one year or two before Justice Scalias death, there was an immigration case out of arizona about whether the states would decide that no they couldnt, but Justice Scalia dissented. I wondered whether he addressed mcculloch v. Maryland and how he got around the immigration powers in the government . You know the answer to that with just a scalia . I cant remember whether there mcculloch was mentioned, but it was an example of the doctrine of preemption and the notion is that the congress and the administration had made clear that they are the ones that are dealing with this particular issue, the states can do contradictory things we. But part of what happens there is that this is an area where Congress Actually has in article one section eight and expressly granted power to make uniform rules of immigration naturalization. You have another comment . Oh, i would just going to mention that at the time they were decided, immigration was decided on a state by state basis. The great port cities of the nation including new york and philadelphia, would set their own standard for who could come in. So this developed over time. Our current chief justice has talked about this case, and will listen to what they have to say next. They were the first person to take the job seriously. Most lawyers were the first chief, they were the fourth. The three before him only served for a couple of years, did not regard the court. They spent most of their time doing things, and they saw the rule quite differently, he took the job quite seriously and served in it for three decades. And he is responsible for establishing the principle that the court has the authority and responsibility to review acts of congress for constitutionality. He established accord as one of the coequal branches, probably. The three decades that he served meant quite a number of president. Where they all in alignment with him about his vision of the federal government . Yes. There are so many cases and its the same thing that is true today. The court will hear dozens and dozens of cases, only two or three of them at any given term are really significant constitutional cases. So a large part of what marshal did was kind of routine legal things under various statutes and enactments, but as you plot his chief justice ship, starting in 1801 and running through his death, their case after case after case it fills up after 1828 where it is clear that he has been a very faithful to this government that has significant authority. One thing that people do not talk about is that marshals at valley forge. He was in a situation with George Washington where it was clear were letting the states do their own thing was not a good idea because you had a socalled army that couldnt do what it needed to do because the states were not providing the supplies that run isis erie. And theres background parts of John Marshalls life that play a very Important Role in what eventually becomes his vision of the nation. Lets take a call from robert, in middle town, new york. Hello robert, thank you good evening, im enjoying the show. In the martial decision, he made references to the fact that cases must be decided peacefully or it would be a hostile legislation possibility. Am i correct, or would it be an overstatement to suggest that marshall was saying that we are risking civil war in the relationship between the state in the federal government we working up peacefully . Absolutely. The nation was not very old. Many people who feared for its ability to survive were heartened by the new upsurge of nationalist feelings that follow the work of 1812, not everyone was in agreement about whether the National Government was going to work and whether it was a good idea. The point that mcculloch has argued, they started a debate on the missouri question, and there was a very great fear on the part of the Southern States that a decision that said there is a robust notion of declining power on the part of the federal government would be the end of chattel slavery. And congress was debating missouri at exactly the same point that mcculloch was argued and decided. The question of slavery and mccullochs role was the major theme in the ebb and flow of opinion, even entire book written by a guy named jon taylor which lambasted the mcculloch decision because they feared it marked the end of slavery. Related to that, reading tweets to us, did the mcculloch v. Maryland set of power for the later dred scott errol . The Supreme Court only struck down to federal statutes, when was in marbury versus madison and the other one was in dred scott. In a sense, marshals vision of a very strong federal government and specifically a strong judiciary did set the stage for the later disastrous decision that was precipitately civil war. How one was the opinion when it was issued . In terms of pages . Yes. 30 or 40. Let that be difficult at the time . Its longer than many. What would a typical decision beat today . They really run the gamut. It depends on how many people on the court disagree. But in some cases, it could be short as two pages, some run over 100. You both made reference to this particular passage from the decision, but ill share it with the viewers. The power to tax involves the power to destroy, that they may defeat and render useless the power to create. That there is a plane repugnance and controlling the constitutional measures of another. Which other, with respect to those very measures is declared to be supreme, and our propositions meant to be denied. Interpret that for us. Basically, if you open the door then you run the risk of having the power exercise. One of the argument that it was made is the marilyn tax was a very strong levee and more complicated than that, but we need that go into that detail. If you can see it state to concede the federal government, they might not exercise that in ways that is the same argument that they made up of the same exercise of the federal government where they compromise in the states, its a two way street within which the federal government has had the ace in the hole or the ultimate club. It seems like a disingenuous government but you have to understand that the federal government and they were doing negotiation, that wasnt available. It was an administrative problem that we call it. How easy was it to communicate to set more detailed rules . That is why a very strong rule of what they articulated need snow so sorry. We have a very robust website where you can go and watch additional videos, we sent a video journalist to the places associated with each of the cases and those will all be posted separately, along with your opportunity to watch this program in its entirety after it airs. You can find that at cspan. Org landmark cases, and an interactive constitution, which helps us understand the provisions that we are talking about during our program. Our next call is from chester field, missouri. Youre on the air. Hi. Im really enjoying this program tonight. I wanted to ask in what way did the mcculloch v. Maryland case lay the groundwork for the future conflict between chief Justice Marshall and Andrew Jackson. Who wants to take that one . It was a central aspect, although many of the impulses that made jackson upset with the bank and marshall were already in place required to mcculloch coming down the jackson hate the bank more than he disagreed . Its difficult to tell. Jackson was one of those people who had a robust vision of his own wisdom, and he had personal issues and this becomes more pronounced. And when he becomes president 1828, it looks like the second bank is becoming an engine to oppose what he wants to do and where he wants to go. So the jackson story is also fascinating because it is the point that mcculloch argue that he is doing his triumphant tour and the United States, in that he did not play by the rules and the seminal wars. Theres a great nod of history that lurks in this whole country of jackson and marshall and mcculloch. Jackson would respond directly to mcculloch and his veto message the. Bank of the United States has charted him up for renewal, and congress voted, and he vetoed it. But i did not find to be bound for by the Supreme Court, but when i took my office, i swear to uphold it, and understand the bank to be an unconstitutional exercise a federal power. And our book for the series, landmark cases, which is written by a Supreme Court reporter, theres a wonderful period cartoon, marshals laying the many headed monster. This would be typical of the sentiment during the time . Yes. In fact, one of the key players of the Jackson Administration opposing the central bank and working day to day to get its demise was a man named roger protony who will be the next chief justice, so again there are these little connections that are quite fascinating, as you work your way through the process. Roger was the chief justice responsible for droughts got, among other things. I want to show you the cover of this book that i was just referencing, this is what it looks like. Landmark cases, 12 historic decisions, volume two. Were making it available at our cost eight dollars and 95, available on our website. Its a synopsis of all of the cases, so if these cases are new to you, and they are still an elementary and great school, and we also have some people who have studied constitutional law. It was new to you, or youre just refreshing, so your courses from law school. Just add this to your preparation to our series, it will be running over the next 12 weeks. You talked a bit before, miss peterson, about the media at the time. Can you give us a sense of how it operated in the country . Newspapers were partisan. Who was reading them and how did they affect what was happening in the court and in the city . Well, the short answer as to what was reading them, was everybody. Newspapers would arrive at a local tavern and people would just grab them and read them out loud. We are talking about an era in which americans were incredibly literal it and incredibly invested in the political life of the nation. So the specific newspaper debates that happened after mcculloch involved several men writing under assumed names in that was pretty common at the time. Writing, or disguising the fact that, for example, one of the Major Players was spencer ronan, the chief justice of virginias highest court. And they wrote long exclamations of marshals opinion, right next to where the opinion would be printed in the newspaper for everyone to see. Chief Justice Marshall took exception to this, and as we learned, he tried to do something about it by offering his own editorials. What did he do . The first set of very negative articles were written by a colleague of spencer grown, and martial road to essays and response that republican, at which point he wrote his and then John Marshall under a pseudonym wrote a series of nine essays that appeared and the newspapers defending the opinion this is something that people today would view with just extraordinary alarm. The notion that john roberts in the wake of the forceable care act might right with his own pseudonym versus tax versus penalty. It is unheard of. But it is something that both opponents of mccullough and supporters were perfectly free to do. Heres a sample of what chief justice John Marshall panned in a local Washington Area is it. June 30th, 1819, defending under the name of friend of the constitution, great constitutional questions are unavoidably brought before this department, which requires no in considerable degree of mental exertion to comprehend, and which may, of course, be grossly misrepresented. It sounds pretty defensive. Yes, and i think it is clear that he was on the defensive. Unlike today the court wasnt in the position of high regard in american culture. It handed sheaths that austerity and that respect in society that it has today. He really felt that this opinion that the rest of the federal government should defend him. And on the job and writing these editorials that he thought were so important to defend the justice and validity of his position. We know one rush to do that for him he decided to take it upon himself, but he did it under a pseudonym and was careful to make sure that nobody knew was him. How did we find out it was . Him eventually the research was done by gerald gunter, who actually there were people who did doing this, because now i can remember what i read years ago. My opinion today is that he did that Majority Court the right thing, if they havent ruled that way they did, we would be a mess. The Supreme Court would be a very minor part of our constitution. And also congress couldnt get much work done either. So, they did the right thing. By the way i remember the 15th amendment talking about in the end that congress so maybe they just wanted to double down, and congress can do these thing and its the right thing. The right decision. I think we would be, maybe the president would be the king if they hadnt ruled that way. That is just my offthecuff opinion. By the way, this is a great program. Lincoln, you need to do a program on all of his cases. He had 52 100 great trials. One is the opposite of this. He tried to tax the railroad, he represented the railroad and he said you could not tax it because of the illinois constitution. So please do Something Like this on lincoln. Thank you so much for watching. He makes the argument that this case belongs on the landmark list. It is a keystone and a bridge that marshall was building for the nation that he knew in his youth. A collection of squabbling colonies. And he built it to this strong and unified National Government we know today. We have questions like, this one from a student on twitter, what a justice on the Supreme Court at another federal court today be bound by mccullough versus maryland president today . Yes. The general rule is that all of the article three judges are bound by the president set by the Supreme Court. That is true of every Supreme Court president. Are there particular provisions of the constitution, weve referred to the necessary proper clause that are directly related to this case. Ones that people should know. About there are various things. The federal government has the power to coin money. The federal government has the power to do a number of things with regard to Financial Affairs, infrastructure for postal roads, to raise taxes to spend for the general welfare. Part of what marshal does is give you a list of these other powers that congress expressly has and then draws the connection that the necessary proper clause means it has the ability to give effect to those. Many of which are related to this question of managing Financial Affairs of the nation. This twitter question, interstate commerce is regulated by the federal government with banking because congress doesnt bank itself . I can draw a question out of it. When question that could be raised is, is a bank, which is not a part of federal government, is an exercise of the interstate commerce clause. And the answer for the entire history of the question has been yes. So one of the key issues in the decision and one of the arguments that maryland raised is that this isnt a government agency, this is just a corporation. It is organized by private part parties for private profit. And the answer to that was, this was the method that congress has chosen to perform a function that is regulating the credit of the u. S. In collecting taxes. Congress is a power to choose whatever method it wants to do those jobs. The same viewer asks on twitter, and this is the flip side of marshals early america, did this case blur the lines between the states . The lines between the states or between the states and the federal government . Did they lose some of their identity in the process . I dont think mccullough causes the individual state to lose any of its identity, i dont think that is one of the consequences of that. I dont see where that would be part of what follows. You may disagree. No, i agree. We are talking about the time in American History where people thought of the state as their country, as a primary source of personal identity. One thing they worried about is something that they view as a foreigner, that is the arm of the federal government reaching into their states. I dont think at this point it wrist blurring the lines, before the civil war the United States was a plural, not a singular noun. It wasnt until after the civil war that people started referring to it dramatically a singular. Was this cages watched internationally . Were people wondering how this young nation would establish itself and with a look at the case . The international dynamic was another part of the whole thing. A lot of the stock was held by citizens of other nations. There was some sense that the bank was also a tool of foreign power and foreign influence. Just as a practical matter, because of the Financial Investment of the bank, there was great interest in the case. If the bank was not going to be there than some of the investments that were made were going to be at risk. Indeed, when they had to repay the loan that you mentioned earlier, they borrow the money from four nations. There is a great interconnection with the financial aspect with foreign governments. What about from a diplomatic since . The United States relied on its foreign trading partners quite a bit. The u. S. Still was, even though some money factually had started, it was still prominently a producer of commodities. International markets watched and waited to see, is the u. S. Going to continue to devolve into the kind of rampant inflation and proliferation of banks that we saw during the war of 1812 . Or is it going to become a responsible trading partner . It was incredibly important. Tim is watching us from hawaii, welcome to the conversation. Aloha. Great panel, i really appreciate this. My question is with discussions about Constitutional Convention, did mccullough versus maryland play a role in that . Or did they perhaps where they injected into Constitutional Convention . If the states were going to pull today . One of the things that people worry about is if we call the Constitutional Convention today, would it be a pandoras box . Certainly, there were attempts to amend the constitution in the wake of mccullough throughout the 19th century, and they never made it to the states and out. There has been debate about changing, for example, the necessary improper claws to put in the word expressly. That did not survive the Constitutional Convention. If we had a Constitutional Convention today, im sure mccullough would be part of the landscape. On that international front, in 1904, the Australian High Court cited the mccullough case and heres a bit of what they have to. Say we have had the benefit of considering numerous decisions of the Supreme Court of the u. S. Upon analogous questions arising under the u. S. Constitution, beginning with a celebrated case of mccullough versus maryland. In which chief Justice Marshall enunciated the doctrines which have ever since been accepted as establishing up on a firm basis the fundamental rules governing the mutual relationship of that Great Republic and its constituent states. Why would a country like australia sight this case . The u. S. Is not the only nation that drives its legal cold from the british common well system. That has turned into a confederated government. Australia also deals with this beautiful problem, as does canada. And the question of how the divide power between the state or province level and the federal government, is one that all confederated government struggle with. Because the u. S. Struck out early on that question, will struck out on that path to answering the question early, our experience with it is useful to those countries as well. Next question on twitter, can you write the Supreme Court justices during this time and during them a color case . Lets go back to that list of seven justices, we talk about chief justice, thomas taught, gabriel tuvalu, and joseph story. Did any of them go on to a special role in history . Josephs story is one of the great in history. He is appointed to the court, hes also the first professor at law at harvard university. He wrote a massive number of treaties and had a great influence on american law and all sorts of areas beyond the constitution. Josephs story was one of the great justices. William johnson is a fascinating figure. He was jeffersons first appointee to the court. He thought he was going to be the guy that would start to put things to the right, and johnson for the most part, it dared to the vision and was a great disappointment to Thomas Jefferson. But hes also very bright person who wrote some good opinions. Sorry, this is kind of a fun question because actually two of the justices at that time todd and deval, did compete in scholarly estimation for the least estimation of that time. Marshals decision to do away with that opinions that have been common before him, and speak with one voice, it was incredibly important. But it did have the effect of bearings on some places. The justices of courts and britain and other common law nations, each one writes an opinion detailing his entire thought process about how the case should turn out. Then you count out the number of opinions and in one race over another and thats how you know what the decision. Was it creates a little bit of confusion which has the reasoning in order to decide similar cases. So this is another Significant Impact on the role of the court. Hi, sam. Thank you very much for the. Show i enjoyed listening to it very much. My question has to do with that decision, how is this used and then issues with the nullification and what led up to the time at the civil war . Thank you. The notification was an extension of a debate that began in the 17 nineties and wake of that alien and sedition acts. It came to ahead with South Carolina in the 18 twenties. One of the ironies of mccullough, is that one of his greatest opponents as Andrew Jackson, who became one of the greatest opponents of nullification. He took a very firm stand against that. Part of the fun of many of the president s is the rhetoric that they espouse and what they do. In the situation with regards to nullification, its contrary to the central premises to mccullough, and something that was strenuously opposed by Andrew Jackson. Next up his john in lincoln, nebraska. Hi. I was wondering what the likelihood is if it more conservative court might reverse or roll it back some. Particularly in view of the polarization we are experiencing in the political system. A related question to that from twitter, do you think the Supreme Court today would reach a similar conclusion or what they have recognized marylands right . One of the things that makes this such a landmark case is that it puts certain questions beyond dispute. Not for its time, it remained very controversial for the entirety of chief Justice Marshall. But now after the civil war, it is quite sad that the government has the power to do things like establish a bank to regulate the currency. The idea that the Supreme Court would say the Federal Reserve or the great agencies of government are not constitutional exercise of congress is power. No, that wouldnt happen. Weve gone too far to go back. But there is collateral, part of what mccullough does is reaffirm the role of the Supreme Court itself. I dont think the court under any reconstitution, no matter how much she go in either direction is going to be in the least bit interested in undermining itself. Either this or marbury, the you mentioned the Federal Reserve, how did we get to the demise of the National Bank to the Federal Reserve. A long protracted process during which we had many financial crises, depressions, panics etc. And eventually in the early 20th century, they just decided they really needed to do something about this. The Federal Reserve was what they came up with to give us a system with which we have a unified approach to these financial matters. We have about 50 more minutes and we are going to wrap up this discussion of this case. It is important we invite you to join us. The phone number is two zero to 74 89. All the way in hawaii, as our most recent caller was. We have a few more minutes to get your calls. And i would like to spend a little bit of time, because she wrote about it in your book, about James Mcculloughs circuitous life after this case. It is really an interesting story. How did you find out about it . There is not very much paper available about. Him its what historians do. Im not a historian by training, but thats what i decided to do. You just start digging. He start going through archives, the mass of publications that are available and you search for these little nuggets. What happens with James Mccullough is that he is acquitted in 1823, he goes into the maryland legislator and become speaker of the house in maryland. He becomes a very respected figure in baltimore, engaged in a number of charitable pursuits. He becomes the first comptroller of the department of treasury. In that capacity, as somebody who probably was a crook, hes now in charge of the key financial aspects of the u. S. Government. How could that have happened . Redemption. Reform. Part of what you cant find, or at least i cant find, is exactly what mccullough thought and how people viewed him to get to the point where he goes to a figure of scorn to respect. But it happened. You actually say, i probably wont be able to find it, but that it is not, history was not a typical one for his times as the urge to prosper led many people to do whatever they had to do to succeed. What were you saying . Its part of the Great American story. This is the country, the notion of opportunity and to succeed on your own merits or to merits depending on how you go about it. It was also typical of the time, it was a brand new nation. There economy was very loosely knit. There are opportunities available to the individuals to seize initiative and become successful. Mccullough did that. He did it initially the. He did it again after losing that position. Its part of what people think the u. S. Stands for. You also describe we dont have a position of comptroller in position today. But his appointment was very significant. What did it do . That was the person who is the central figure in the department of treasury, who audited, who took care of the warrants, and was sort of like the treasurer of the u. S. In the sense of receiving funds and dispersing them and being responsible. I wish there was more documentation because it is such an interesting path to go from a Corruption Case with the second bank of maryland, to speaker of a maryland house, to a president ial appointee in the treasury department. To know more about what his life story wouldve turned out what are your thoughts when you look at his life as a central character in this case . It is very typical. You see the same names and family names pop up again and again. It seems as though in early america, there is certainly not enough qualified and talented men to go around. For example, justices on the Supreme Court, each of them held positions in state government. They were judges, legislators. The same ended everything that society required. That was in part because of the bleeding out of loyalists after the revolution. And it was in part because it was so hard to get an education, so if you are one of the lucky few who had grown up and learns the skills, you would be in demand in one role or another. And we should say of course that significant parks were excluded from potential because women couldnt participate. Blacks, African Americans couldnt participate. Again, the pickings were slim or because of the conventions of society at that time. Next up his gym in omaha, nebraska. You are talking about a National Bank and im trying to follow everything you are saying, you did bring in that this was the Federal Reserve that we have now that was established in 1913. The question i have for you is the idea that having a central bank, doesnt that take away the idea, and you brought it up earlier, for powers to coin money, does not give the chance of the Federal Reserve to manipulate our currency in a way, with those that weve had last decade and the idea of giving us the inflation problem with manipulating the currencies . But either if you . The question was, does establishing a center bank create a problem of manipulated currency . Well, the second bank of the u. S. Started because america was having a tremendous problem with fluctuating currency and it was in part because there was no central bank terrain that in. Not only was it a problem of runaway inflation and fluctuation, but the government had no and borrow money from. So the bank of the u. S. Was founded and performing for functions. It was going to loan the country money, collect the taxes, test state banks to make sure they were holding true to what they had in their vaults. And establish one unified currency. It did it in a way that the Federal Reserve does not do, and theres certain things that the Federal Reserve can do such as low money the banks and pay interest on their reserves. But i think what has been consistent throughout the history of the Central Banks is the realization that when they are well run they are incredibly useful to society. With regard to banking, it is an absolutely exemplary area where we have concurrent activity. The Banking System in this country is set up so that both states and federal government have a role to play in the regulation of financial institutions. It is not exclusively a federal matter. The federal government could if they took a different route. And the states to have a robust presence in the Financial Affairs of the institution within their states. Steven is next. Hi, there is an increasing amount of concern today that the country is polarized in terms of the powers of the government, what the executive can do versus Congress Versus the courts role. It sounds like from your discussion that the country was very polarized back then. I wonder if you agree with that . And if so, what we are experiencing today is really as much of a concern as we all seem to think it is. Thank you for the question. Politics in the early nation were just as vicious, if you will, as they are now. The personal attacks on john adams and jefferson during the 1790 things, we are as at least as robust as a thing we have today. The variation we have is the extent we can get agreement. But the splintering, the perspectives, if you go into the debates of the constitution or the first bank of the u. S. In 1791, it is pretty robust. Pretty pointed. And pretty splintered. Predictions of the apocalypse are just about as constant in our politics as anything else. It is fundamental to our nation. We are a group of desperate people who come together to perform this daring experiment. This amalgamation of different states and people to form one nation. That cannot happen without friction. To put a cap or on mcculloughs life, we visited the state house where he served as speaker of the house after this case, and talk to historian who told us more about James Mcculloughs life. Lets listen. First of all, there was a law case against him and they accused him of, along with three other men, James Buchanan and george williams, the accused him of embezzling from the bank into the case was acquitted. He goes from that trial and becomes a lawyer in baltimore as a lawyer for several years and in 1826 he ran for the house of delegates and he made it so there were not a lot of hard feelings toward his bank case we are here today in the old state house. We are where james served as speaker of the house in the 1826 to 1827. He resigned after the first year i guess he wanted to do other things. He was a very active man i guess you could call him a type a personality that we have today. He was nominated by president john tyler to be the first comptroller of the United States treasury. He had ten children and three of them are living in new york city at the time, so he did go to new york city after that, lived there and unfortunately from what ive read i think he suffered from alzheimers at the end of his that is more about the life of James Mccullough, the centerpiece of mccullough versus maryland, this landmark Supreme Court decision that established the concept of federal supremacy. This is our final caller from apex, north carolina. What is your question . Earlier you are talking about hell theres a struggle between the powers in the u. S. Versus that of the federal government and the federal government infringing on the states. I heard a moment ago how they spoke about their constitutional amendments to possibly address some of those. And if they could come into things i havent heard about, that would be great. We have one minute left. Lets understand the real significance of this case constitutionally. It affirmed earlier doctrines that were not anywhere near as prominent as the consciousness at the point in time we really did need a statement with regards to a strong federal government. The constitution was a compromise, unlike all compromises it had and beauties and silences. The ruling in mccullough via maryland, John Marshall pretended those silences were not there. His vision and effectuating the strong government that he saw the u. S. Could be isnt one of the reasons we remember the case and him today. When we talk about the size and scope of the federal government and the kinds of things it does, this is a debate going on in this town, can one look to mccullough versus maryland for opening the door for the many different rules the federal government has taken on. Its part of it. Its also the implicit congress to legislate more and more. One of the things we dont understand, they didnt pass as many statutes as they do now. Even in this dysfunctional congress, they still crank out statutes. Thanks to you for being here and helping us understand the history and importance versus mccullough the maryland. To our viewers, thanks for being with us for the first of 12 programs and a special thanks to the partners at the National Constitution center for their assistance and for putting this whole series together this year