Transcripts For CSPAN3 Supreme Court Landmark Case Marbury V. Madison 20170802

Court decisions. Number 759, earnest hernandez, petitioner vurz arizona. Number eight, rowe against wade. Quite often in many of our decisions are ones the court took they are quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believe theyre rule of law. Good evening and welcome to cspans new series, landmark cases. Tonight and for 11 weeks were going to be looking at 12 cases that affect the country and society. Tonight or case is marbury versus madison. It came about between two Founding Fathers who developed an imit inty. We have two gusts at the table to help us understand the story and importance of this case in our countrys history. Akhil reed amar is a Yale Law School professor. And also at the table, federal lit gator, cliff salone. The great six addison marshal and a battle for the Supreme Court. Gentlemen, to start were going to listen to the jeff justice about this case then well hear from you on why this case is significant lets watch. In his fame decision he wrote marbury versus madison, he basically said look, were a court, we have to decide cases. If in deciding the case we have to determine what the constitution means thats our job under the constitution. He regarded the constitution as law. Thats one way that our constitution is different from a lot of others. Many countries that have constitutions theyre really just political documents. If you have a dispute under the constitution its going to be resolved however a dispute is going to be resolved. Maybe in an election if youre lucky, maybe by a force of mob. How ever a political sfut is resolved thats how they would resolve cases. Marbury versus madison this is different. The constitution, its a law. If its a law we have the courts to tell what it means. That important insight in to how the constitution works has been i think the secret to its success. Thats the concern chief justice on the meaning marbury versus madison. Cliff salone you road the book on it. Whats your take on this and why is it so significant . Well, as the chief said, the Supreme Court is the ultimate authority and constitution and interpretation. That is a very important corner stone of our tunl system. And i think Justice Oconnell nor put it well, she said because of the marbury versus madison each of us have constructional rights that no president and congress can take away. And thats really what marbury stands for. Well, you amar why does this matter . Many of you have heard of judicial review. In a nutshell it means the court, not just the u. S. Supreme court but all courts in our system, state court lower and federal court has the ability to that act of congress or state law is inconsistent with the judges understanding of the constitution itself. Now, the interesting thing about judicial review is although marbury is the first case about judicial review,8 it actually judicial review wouldnt that vigorous before the civil war. So marbury becomes in some ways more important because of stuff that happens later in our story. You look back and read some things back into marbury. Sometimes perhaps it was a more narrow decision as you remember it being. Well, you call it a story and it is a story to tell. As we begin tonight we want to introduce you to several names youll be hearing throughout the 9 ominutes and understand the role they play in the case coming to the Supreme Court. Lets start with the principals, john adams 1800 where was he in his political career . He was the incumbent president. He was elected in 1796 after serving two terms as Vice President under George Washington. In 1796 it was the first contested president ial election between him and Thomas Jefferson. Adams narrowly won. The person who got the second electoral votes served add Vice President. So Thomas Jefferson was his Vice President. He and jefferson had a very severe Rivalry Development between them personally and between Political Parties and its the first time we see the emerges of Political Parties in our country. So Thomas Jefferson in 1800 decide he want the top spot. You have the sitting president running against the sitting Vice President. Just think about the instability of that. You know, in some ways it did happen but its an assassination incentive. Person whos a heart beat away is vigorously opposed to the policies of of the number one person. These are people who worked together, adams and jefferson back in 1776. As cliff says in 1796 they run against each other but its a relatively tame affair. Jefferson tell the supporters, my term will come lets not bad mouth adams too much. But now politics have become much more intense. But with its Political Polarization you got the sitting president against the sitting Vice President , both leading large camps, big Political Parties, as cliff said that really dont respect each other. And which one, at most extreme, which one of these parties thinks that the other one is borderline treason. So thats the rematch, 1776, 1800, sitting president against sitting Vice President. What happened in the election . Therein also lies the tales its somewhat convoluted. Some of your audience may remember back in 2000 in a nutshell, jefferson wins the south, hes the south earn ner. Adams win the north, hes the northerner. And the second time around, Jefferson Partners up with a man name erin burr from new york and new york swings from the northern camp, the adam camp to jefferson, the southern camp. It seems as if jefferson and his running mate, burr have prevailed but theres a wreng l. Ill let cliff tell you the rng l. The wrinkle is it wouldnt clear who was voting for who. So what happens was that jefferson and burr got the same number of votes. A tie. It was a tie. And everybody sort of knew at the time of the election that jefferson was the main candidate. But then after it becomes clear that theyre a tie, well erin burr isnt so eager just to defer to jefferson, because theres not a majority in the Electoral College it gets decided by the house of representatives with each state having one vote. And what you had to happen in the election jefferson and burr prevailed upon an incumbent adams. It was the first time in history thats happened. But the Congress Also had been swept by jeffersons party. And the house of representatives that was going to decide who was going to be the president between jefferson and burr was the outgoing federalist congress, adams party. The lame ducks. The lame ducks. Who had just been reputeuated but the lame ducks is going to be deciding who gets the top slot. Tlabsolutely. And they are very bitter against jefferson. It has been a fierce campaign. So, you have these very angry federalist who think jeffersons going to take the country in a terrible direction and theyre the ones worth task 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 composition of those deligations. And finally those 37 ballots in just a couple weeks before the president is supposed to be inaugurated, before jefferson finally prevails. Up until that point there is great uncertainty and chaos throughout the country and there are all kinds of rumors of what may happen. So its a great it was a time of great uncertainty. 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 Marshall. He held two roles, secretary of state and appointed chief justice and held both positions at the same time. So hes adams right hand as secretary of state. And with the benefit of hind sight when we look back we can see basically that secretaries of states often become president s. So, Thomas Jefferson was a secretary of state, hes going to eventually hand over the presidency to James Madison who was secretary of state and james monroe, the next guy who was the secretary of state. And his son was secretary of state. Were not done yet, this might be good news more Hillary Clinton today. Remember john kerry didnt quite prevail. John marshall is john adams ally, his right hand, his secretary of state but hes also the new incoming chief justice. For a month he basically holds both positions. Theres one other wrinkle, since cliff mentioned, theyre all these conspiracy theory. What happens if this goes on and on and on and comes Inauguration Day theyre stideadlocked. Maybe theres a newspaper ha comes out that maybe the person who said occupy the white house in that circumstance is none other than the circumstance of state, John Marshall. John marshalls mentioned as one of the people that sort of nose himself into this really complicated situation. But for right as Adams Administration is ending, yes, John Marshall is both the secretary of state and the new incoming chief justice. And the fact one point thats important to emphasize on that is that adams nominate marshall and he gets confronted by the senate in late january, 1801, becomes chief justice in 1801, that is in the midst of this chaos. And John Marshall himself is a laying duck appointment by the outgoing john adams confirmed. So the new president coming in. He has the majority of congress but 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 for a whole case. Tell us what happened. What did john adams do . Well these are the midnight appointments and john adams who was somewhat bitter about defeat in the election, was determined to make as many points as he possibly can before he leave office. This is whether youre talking about United States attorneys, postmasters. The outgoing laying Duck Congress passes a new judiciary acts that creates a new level in the federal courts in 16 new judgeships. They do this very late in their time as the outgoing congress. And so john adams is fever ishly filling the posts, nominating people, sending it up to the hill. And at the same time, that congress creates lots of new posts in the School District of colombia which has just become the capital. He is literally staying up late until his last day in office, getting those appointments up to the senate, getting them confirmed. And his right hand man like akhil was saying, these appointments is John Marshall. Now chief justice, secretary of state, hes the one thats advising adams on the people and controlling the paper flow for them. And then as the moon oil burned the main thing that happened is not all these commissions got delivered and thats the constructirux of the. What happened . We can talk about it in two ways, in partisan terms the adams focus lost the presidency, lost the house, basically lost the senate. They tried to retreat to the judiciary, thats going to be their stronghold to resist the that they expect the jefferson yans will launch. So thats the partisan line up. The other way of thinking about it is the three branchs of government. You got jefferson basically coming in, no control. The presidency and pretty much the house and actually also the senate, but now the judiciarys going to be all these ghosts of enemies past who have now retreated into the judiciary. John marshall is responsible for getting all these new commissions out to their recipients. And it turns out that not all of them get properly delivered. They are signed by the almost midnight oil as adams is about to become cinderella, the coach is about to become the pumpkins and the horse is about to become mice. So right at the stroke of midnight he signs them all, his secretary of state and acting Supreme Court justice also, John Marshall seals them. So, theyve been sign, sealed, remember the proverb, signed, sealed, delivered but not all of them are delivered. The person who failed to deliver all these commissions was none other the John Marshalls brother, James Marshall who himself had been one of the appointees of the regime. Well, needless to say Thomas Jefferson was not excited about this. What were going to show you next is aler he wrote to Abigail Adams discussing his deep expressions of the midnight appointments. Welcome to the massachusetts Historical Society. Americas oldest society. About a quarter of 1 million manuscript pages. John and Abigail Adams and their decen desent dants have their papers here in a series of boxes obtaining their correspondents, diaries, mem wares, citizens concerning about the future of the American Government and its justice system. Inside these are boxes, you can read nearly 1,200 letters exchanged between john and Abigail Adams alone, telling us the story how it transformed from revolution to rebecpublic. Today were going to take a look at one of my favor letters written from Thom Jefferson to Abigail Adams in 1804 as the two tried to patch things up. A family tragedy brought together Thomas Jefferson and Abigail Adams. Jefferson took the opportunity when he replied to remind abigail that he and john adams had a long friendship, in fact he wrote, we have never today in one anothers way. He also for the first time spoke ex policely about the midnight appointments that had divided the. I can say with truth that one act of mr. Adams life i did consider his last appointments to office as personally unkind. They were from among my most political enemies from whom no faithful operation could ever be republicaned and laid me among men whos views were to defeat mine. Of the many of the Thomas Jefferson letters we hold this one reads definitely. Often the letter comes across as cool and reserved. Here hes sm what different, hes speaking to abigail as an sblekall all and hes concerned about how politics may have ruptured his friendships. And cliff on this em anity or this frustration, i should call it that, seethe in the books of jefferson you tell for years in the book about the appointments of the case. Both the appointments and the case for different reasons. They caming to, but first of all, in terms 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. Even in the executive branch, adams had done everything he could to pack it with his federalist allies. Jefferson in the whole series of lerts to his political allies, this is what hes saying to Abigail Adams you can imagine what hes saying to his political allies, he is very very bitter that hes inheriting a government packed with these people that adam has put there. Actual, throughout his several months in office, 1801, hes really trying to figure out what to do and hes sort of selectively, if he can figure out a way to block somebody or retrack their people he does it. But he doesnt want to launch full scales of assault. One thing is an example of how personally he took this, but he always mentioning that Jaime Marshall couldnt deliver all johns brother. Johns brother, James Marshall could not deliver all of the conditions, the pile was too big. The ones he left on the Table Including those of William Marbury and others who was supposed to be justice of the peace in the district of columbia. In a day or two after his inauguration, Thomas Jefferson himself, goes over to the state department and sees the stack of papers on a table and starts looking at it and remember hes been circumstance of state earlier under George Washington so he knows how the office work. Absolutely. And he sees this stack of papers, realizes what they are, commissions that have not been delivered. And he said, do not deliver these, because he is determined if theres any way that he can stop some of these midnight appointments and packing of the government hes going to do so. So, he personally is the one who say do not deliver these. He took it very very personally. Which is in another way of saying although the case, which we havent quite get got to is marbury versus madison, in effect is marbury versus jefferson. Madison is just a place holder, madison is just a new circumstance of state, jeffersons secretary of state. But madison is just doing what jefferson is telling him. This is really a lawsuit in effect against the sitting president of the United States, like later on the nixon case tape in your series. So itand marbury is a placem for adams so its really adams versus jefr son. The two men continued to correspond from their parts of the country throughout the rest of their years, and they ended their lives on the same day. This is a wonderful footnote to their stories. They both died on the fourth of july. They both came to a collection at the end. Now, you write in your book that despite the fact that Thomas Jefferson wen over the state department, he never wanted to mire his presidency and conduct in debate about the judiciary. However, that all dhachanged wh William Marbury filed suit. Why . Well, in december, 1801, William Marbury and three other individuals who sort of drop out of case, who were supposed to be justices of the peace and their case was not delivered, they filed suit against madison in his role of secretary of state in december 1801. In december 1801 is a very key period because its the first time this new congress headed by the democratic republicans as the Jefferson Party is noted, is sitting. So theres this great anticipation, this is the first time the Jefferson Administration in its full breath is getting ready for the congress in december 1801. And marbury and three others file suit in the Supreme Court, and they file suit asking that a mandamus, which is a technical legal term which is basically an order from the court that a mandamus issue from James Madison ordering him to deliver the commissions to them and allowing them to take their jobs. And its very clear, all four of them are sort of prominent acting federalist and its clear there is Political Task to this. They are taking on the Jefferson Administration by filing suit. The Supreme Court, which at that point, was very far from a coequal branch of government. It had no respect, no prestige and the Supreme Court sits and hearing the arguments. And their lawyer is charles lee, who had been the attorney general in the lee Adams Administration. And then the Supreme Court issues an order to show cause. What that means is that are ordering madison and jefferson to justify their actions. They say that theyre going to hear the case when they sit again in june 1802. And this shocks the Jefferson Administration. Because, now the Supreme Court is really sticking this to them. The Supreme Court is going to make them justify why they didnt deliver the commissions and its going to hear this lawsuit. And so, jefferson and his allies react with a furry to that order to show cause. One of things that will be important about the series is its interact. You can call us and well go to calls in a few minutes from now. The eastern and value time vowers 20728890. And you can tweet us questions. Well be working those in throughout the program. cspan mark cases. And finally our Facebook Page has people discussing this case and well work in the comments as well. So, part of this i should say, the Supreme Court hear it 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 predeposed him to be very much a believer in the central government. Thomas jeffersons more of a stage rights guy. And remember 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 popular but John Marshall is actual a leader. So theres all that politics. And theres personality there, second cousins from virginia, theyre both quicked to the randolph clan. Marshalls motherinlaw was the farmer fiance. Then remember, the one final thing is its marshall himself who as secretary of state fails to effectuate the delivery of these thing. Now he as chief justice hearing about the transactions as he in effect a witness and the Supreme Court is sitting as a trial court in whats called or not jurisdiction, so there really is a question truthfully at least by standards whether John Marshall should be hearing this case or recuse himself. Not because hes a federalist, everyones a federalist or a republican youre going to be on one side or the other. 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 richard, virginia. We traveled there with our cameras and next your going to see a little of his home and how they interpret it for todays visitors. This house really gives us an insight into the personality of John Marshall. Now, if you could imagine this room we call the large dining room it was the fir room that visitors into the house would have entered into. Its part of a grand room, one of which was to house John Marshalls early law practice. Eventually right outside this window you would have been able to see his two story brick law office. Until that time he used this room to entertain his clients. The desk that we see right over here is actually John Marshalls desk, it would have been in that twostory brick law office. He was very well known for being a very very long winded writer. That would have taken place sitting right here. John marshall would have been in residence during his time as Supreme Court 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 would have been at the head of the table in an event that was notoriously known. This event would have been held once a month when John Marshall was in his home. If you could imagine 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 tip. It was in this room that patrick haernd son, madison, monroe would have been discussing some of the most relevant, philosophical fulfifill of of call philosophical issues and what would have been become laid out. And certainly, some of those discussions had to do with the Supreme Court, its role if society and the parties big split on the direction in the country. Were going to talk about a bill more of Supreme Court as John Marshall found it. One of our viewers on facebook ask, what could we gleam about the afforded the Supreme Court . Ws well, the federal list papers are a series of newspaper on ads originally accomplished under a pseudo nim. Its three people we know, john jay, hamilton, James Madison and they later put all these newspaper up into a pick and these newspaper on tried to persuade americans during year in which the constitution as a proposal pending before the country these people tried to persuade people to vote for constitution. Lair on, John Marshall among others would say this is a very good statement of what the talking thought it was going b to be all about and it was a good resource. The people had access to it, it was not just some document. Ordinary people had access to this when they were asked to vote yes or no on the document. The essays were written by Alexander Hamilton and its a defense of what we talked about earlier, judicial review. It doesnt try to prove judicial review is in the constitution, lots of people thought it was in it, and judicial review is the ability, not only the Supreme Court, but 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 consistent with the constitution. In 78 hamilton says yes, its in the constitution and thats a reason to vote for and its a good thing. Critics have said during the process, judicial review is in the constitution is a bad thing because thats going to mean judges are too powerful. Hamilton and others have said its in the constitution, youre right and thats a good thing because it means judges in the constitution will put that above everything else. In 1800 when John Marshall joined the court there were six justices. John marshall, samuel chase, William Patterson of new jersey is that correct. Yes. Bush washington who was related to george. William curbing and alfredo more. Now was number set anywhere at six . Yes, it was said in the judiciary act of 1789. Did they not anticipate there they may be tied votes . The Supreme Court early on is not nearly so important as its become, and so just that little number. An even number how odd from our point of view, and thats one of many little signals that although they anticipate a judicial verify, i dont think they thought it would be quite the 800 pound gorilla that it had since become. The Supreme Court had no home at that time, where did it meet . Thats an interesting story which perfectly symbolizes the weak and meager status in the Supreme Court in our sense of government. In washington at that time as it becomes the capital of 1800. You have the president s house which becomes the white house under construction, nobody thought about where the Supreme Court was going to meet, it was that insignificant. Some of the people planning the city started racing this and they couldnt get the attention of anybody, including the secretary of state John Marshall. Once he becomes the chief justice he becomes more interested in that country. They end up giving the Supreme Court this Small Committee room in the capital which they shared with the local courts. That was the home the Supreme Court is given very late in the game. They basically borrowing space on the capital. Almost an afterthought member article 3 is third out of three. The constitution first talks about the congress in article one. The presidency if article two. Article three, third out of three t shortest article, as cliff said its actually a mere statute that prescribes the number of justices thats not set out in fact constitution itself. It was originally six, it went down to five and cliff may want to tell us a 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, constructional vision, dour perhaps and the judiciary more generally, not just the Supreme Court, not quite as powerful as they have since become. I want to get one more fact on this on the table before we get call it is and that is William Marbury filed this case in 1801, it took the court until 1803 to hear the case but thats become congress intervened, what did they do . Congress basically shut down the Supreme Court where it talked about the fact there was this reaction but the everysewn yans in order to show cause in 1801 and the Court Setting it for resolution in june, 1802. The jefr son yans swing into action in congress and they repeal the judiciary act, they get rid of these midnight appointments that have been made and they change the Supreme Court schedule and basically say its not going to mote at all during 1803. It wont meet until february, 1803. Theyre clearly try to get distance before dour hears the march burr case and before the District Court hears whats expected to be a tunl challenge to the repeal of this judiciary act and getting rid of the midnight appointments. The only time in the History Congress actually shut down the Supreme Court for an entire year. Did they send the jaustices back in the sir kits to hear cases too . A same way before you call a time out before the other side tries a field goal to psych out the kicker. They cant meet as a Supreme Court, and before theyre going to meet again t new law says you got to go back on the road ride circuits as individual justices. And with you do all of that under this new repeal law, you will in effect have committed yourself to the legitimate maysy of this law and youre going to kind of have to do that before you have a chance to skull with all your colleagues on the Supreme Court. So remember the Supreme Court at the time the justices really have two functions. They serve as the highest court within the system but they also as a collectivity, but theyre also riding circuit to individual judges in different part of the country, that are trying cases up and down the continent. And let me just say, the justices hating riding care sits. The roads were primitive the conditions were awful, they hated it. Youre away from your family. No prestige in that job. But on prestige theyre kind of in a basement, the not great room in a capital building. Before John Marshall comes along the justices dont speak with one voice, theres not an opinion of the court. Justices say what they think but theres not a formal recording process in which all these statements are automatically published in United States reports. So and john jay was mentioned early on, marshalls predecessors, one of them, the first chief justice actually left the job because hed rather be governor of new york. So it wouldnt quite and other justices who were running for governorships and other things while they were justices, so it wouldnt the plum job in washington, d. C. And part of the reason why is because you had to spend a lot of time on the road. We have callers let me do that. Robin is watching us in trenton. Hi robin. Hi. Im hoping you can clarify somebody one way or the other. Can you tell me whether or not that 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 ready on both sides. Thank you. Thank you very much. Akhil amar. We may have a little bit of a disagreement, cliff and i. I think the classic view, yes, that case is establish that. I tend to think before marbury it was clear it was supposed to be judicial review in the system, you see it in 78 and state courts have done this under constitution and justice stake circuits have ruled on constitution yalt and upheld congressional law. Before marbury there was a lot of judicial review of a certain sort had been established. After marbury, judicial review is a little bit better established but again its not the 800pound gorilla. A court isnt going to strike down a course of congress again until 1850s, a case called dread scott. A court in marbury doesnt say, you wont find a intense the Supreme Court interprets the constitution. The technical issue at stake in marbury isnt some its not about abortion or School Prayer or obamacare or the death penalty, its very a very very technical issue about the judiciary itself. Original versus appellate jurisdiction. Do you disagree . I do. I think the answer to your question is yes, it is the case that establishes this that. Two points on that. First, there is the very simple fact that cannot be contested that it is the first time that the Supreme Court strikes down an act of congress as being unconstitutional and establishes that principal. And indeed is the first time in the history of the world where a court had struck down that statute of a coordinate branch in a national government. But it definitely is the first time in our history when that happens. The opinion say its the province of Judicial Department, the court to say what the law is. The other point thank you is very important, because it is in the federalist in 78 and people had talked about it. But one point that i think people tend to forget, is that the federal judiciary had fallen into sort of bill and repute. They were hostage to the review you see jeffersons allies both before the marbury decision, while the case is pending and some of them afterwards who are saying there is nothing in the constitution that suggest that the Supreme Court has the spour to declare a statute unconstitutional. And the marbury opinion strongly refuts that. Were already at our half upon. David from tulsa, oklahoma your question. Yes, i agree with mr. Salone on his opinion about the significance of the decision. I also think that the United States of americas very fortunate that this case came along early in its history because previously with the bank of the United States that had there was constructionitutional there as to who was decide. It was it was also the aliens acts under president john adams that created such a turmoil. And i think that the federal ending of the marbury versus madison, if you ever been to the Supreme Court when you walk in theres that gigantic sculpture on marshall, didnt leave any doubt to who is the most significant ever of the Supreme Court. In the view of the court. It is in the court. And actually david, i think both of the things that you mention cut against your point in a certain way. So, people have been talking, oh the Supreme Court is the ultimate interpreter of the constitution. Not quite and im not endorsing kim davis here. Lets talk about the aliens decision act. This was a law john adams signed that made it a crime to criticize the president. Made it a crime to criticize the congress which isdom fated by the party. Did not make it a crime to criticize the Vice President who is the leader of the over party. All these rules expired after the next election, it was disgusting. Total violation of first amendment. And yet, and yet and yet, federalist judges, Supreme Court justices writing circuit upheld that law against constructionit challenges again and again. And so, who in the end drives a stake through the hart of this sedition act, the president , Thomas Jefferson when he sweeps into office, and notwithstanding these judicial order upholding the sedition act, he pardons everyone. So, he was actually the last were and liberty on amendment. Now you mentioned the bank. Do that one briefly. The baeng of the United States do not reach the United States of the Supreme Court until in the in the 1780, doesnt reach the Supreme Court until 1819. Once again the last word was had by president Andrew Jackson who actually vetoes it. He says its constitutional, i dont think so. So both of your comments are illustrations that president s plays a role in the constitution and sometimes the last word. Richard from oregon. Hello richard. Im a 35 plus year Trial Attorney and i particularly enjoy this program for the way it puts a human con telkt in, also establishes the patrol car sees of jefferson and marshall and establishes the authority of the court which finally becomes clear in the scott case some 50 years later. So i wanted to say thank you for an important program. Well, thank you for call. In fact dread scott will be the next feature in the 12 cases weve chosen. By the way, this is a good point to tell you about our partners at the National Constitution center. We started this project almost a year ago, with their help we went to them and said wed like to do this put its not our area and expertise. Theyve been helpful in helping us go through case and research as we made decision about the cases. And also educational material about the cases themselves. Weve been enjoying the partnership many weeks to go as we help you and or us learn about sought to establish the Supreme Court 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 Marshalls Supreme Court 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 heres 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 mags wills house from 1929 until the 90s when we realized the deterioration. Its pretty much during this time period where he makes it the sanctioned uniform so to speak for the Supreme Courtgists to wear the black robes rather than the red robes the English Court would wear. It was pretty much up to each individual justice what they wanted to wear. Many of the Supreme Court justice were wearing pretty much modified English Court robes which would have been red. And many of them were wearing English Court wigs. It was under the chief justice he made it mandatory all would be wearing these black robes. This is mainly to say that were responsible for interpreting the constitution. This is not a show of the power. We are of the people, not above the people, which is something he was extraordinarily passionate about. Demonstrates one of the many ways John Marshall was think about establishing a society. When was it heard . Initially there was this proceeding in december 1801, and then it was heard again in 1803. And the lower level. Yes. And was conducted in the way we hear cases today or oral argument or Something Else st. It was a original action. Marbury had filed suit in the Supreme Court under the judiciary anth saying i can file an original action. So basically the Supreme Court had to have a trial to establish the facts. So they had to have witnesses. And so marburys lawyer, charles lee, the former attorney general, puts on witnesses. 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. But he puts them on as witnesses. Theyre very reluctant to testify. They object. They feel they shouldnt have to testify about the inner workings of the executive branch. But there is basically an original trial going on in the Supreme Court, but theres one very unusual fact about this trial, which is that the defendant, James Madison, Thomas Jefferson, they refused to participate in it at all. Theyre showing total disdain for it. Jeffsons attorney general, hes in the courtroom but when hes called upon by John Marshall he 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 testify about whether he knows what happened to these commissions. And he very strenuously objects on various grounds to testifying. And again, John Marshall makes a series of very careful rulings. But very different of what you would see in the Supreme Court today. So how important was it to the capitol city that this case was going on . The most important witnesses in the case, and so it is a trial are named marshall. John marshall s witness, and thats why from a certain point of view, we dont do this at home, kids. He should not have heard the case. Theres one person who actually knows from firsthand knowledge that the great seal of the United States was affixed to this commission, and thats the hand that did it. And thats John Marshalls hand as secretary of state. And James Marshall, his brother, actually submits an affidavit. When you read it carefully it says i think marbury was one of the commissions i was supposed to deliver im not exactly sure. So its interesting. So did all six of the justice participate . No, actually. Two of the justices were ill and could not be there. So there were four of the six. And it took four to have a quorum, and that led to some issues. How many days did the trial take place . It took place over four days. And how long for the court to deliberate its opinion . Well, it was 13 days later. And that seems by todays standards to short period of time. At the time the public was wondering what was taking the courts so long. Because the Supreme Court tended to issue its rulings very quickly in short opinions. One thing that akhil alluded to earlier, and it relates to the robes, one thing John Marshall started was this practice of opinions to the court as opposed to each Court Justice giving their own quick aopinion. There was speculation in the press about what was taking so long. So hes writing opinions, and theyre all getting together and theyre all wearing the same robes. Hes trying to create something from the vapors, institution we call the court instead of just a bunch of cats that are being herded. So written opinion, 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 a majority or one statement of reason, the opinion of the court. And remarkably perhaps he has them all staying in the same boardinghouse. The dinner party. He talked about it. And the wine flows, and the conversation flows. And he is a very charming host. Very gregarious. And i do have to tell one story about having all the justice together in one boardinghouse. Because he instituted a rule they could only have their evening, if it was raining out. So each night he would have a justice go to the window and report. And frequently a justice would say it looks really clear out there. And he would say our jurisdiction is so vast, it must be raining somewhere, break out the madeira. Hi, miguel. Are you there . All right, let me move onto lydia up next in irving, texas. Youre on the air. Hi. I am just curious about something. And that is that the are you there . Yes, were listening. Doesnt the constitution take position over the Supreme Court over papers written by i dont understand that. Sure. But the federalist paper help us understand. Of course, yes, the constitution is the supreme law of the land. The federalist papers are just one generally useful aid or guide to understanding. Janet in rockyface, georgia. Your question. My question will be for mr. Amar. There are two religions that are prominent in the United States. Like the shureea law and the janet, how does this connect into marbury vs. Madison . I dont think it connects really well, were going to have to stop because heres the thing, that John Marshall heres the maw izing thing about the oath, it doesnt require a profession of religion. Youre allowed to say help me god if you like, but you dont have to. Two of the folks up there including washington and lincoln were not conventional church goers. Theres no religious test for public office. When the chief justice delivers the opinion, the cases boil 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. Two both these questions he believes they 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 opinion up until that point. And question number three, and heres the point where everyone looks to the thinking of the chief justice. Point three, if the law provided a remedy, the proper remedy or a director order from the Supreme Court. And it was on this point number three, John Marshall decided what that became historic . Remember were taking marshalls orerring the issues. The answerss no, he should have recused himself. Hes a witness with firsthand knowledge of a judeicated fact. The second question is does the court have jurisdiction. Does it have the power to even hear the case . Because if it doesnt have jurisdiction, its a bunch of people in black or other colored robes telling folks what to do without authority. And John Marshall did it 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 hes going to say even though jefferson and madison have done it totally illegal at the end of the day he says it turns out we dont have jurisdiction. And we dont have jurisdiction because this Congressional Staff that could be read as giving us jurisdiction is actually unconstitutional, and our job is to give effect to the constitution even if thats at the expense of a congressional statute. Now, from a modern point of view if thats true, he should have probably decided that from the very beginning as either the first or second question. But in the same point number three, he went onto declare what the Courts Authority was. And i have a paragraph to read because this becomes a part of it. He wrote and read it is emphatically the province and duty of the Judicial Department to say hut the law is. Those who ally the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide the operation of each. A law repugnant to the constitution is void and the courts as well as others are bound by that instant. And there we have it. Theres actually a worthy opinion that really is about the unique powers of the Supreme Court as opposed to all the other judges in the smgs. And notice he said as well as other departments. Some interpret it to him saying making a unique claim. I do think marbury is actually read just as a congress can tell us how we have to rule, there are certain domains in which other branches of government may be able to make independent interpretations like jefferson parderning the sedition act convicts. Well, i do think hes saying very clearly that all of the departments do have a responsibility to evaluate the constitutionality. But at the end of the day, the final day it is emphatically the province and duty of the Judicial Department 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 at times of great stress like the ninetysixen tapes case or enforcing the brown vs. Board of education. It is emphatically the province and duty of the Judicial Department. As we said, the two justices wanted it to be unanimously. And the other four, they all joined in the opinion which was read. You have to tell the story of how it was read. Its hard to imagine it was in a boardinghouse. Yes. They were staying at steals boardinghouse, which was across the street from the capitol. Its where the library of congress currently is. And they were staying there now. Two justice were not in washington because they were sick. And there were only four justice there. It takes four justice for a quorum. Justice samuel chase, known as bacon face had come down with a painful case of the gout. The Supreme Court tried to convene, but they only had three justice and so they didnt have a quorum. So then at a certain point marshall had a realization. If old bacon face cant come to the court, the courts going to come to him. So they hold it in the parlor of the hotel. In the parlor of steles is where marshall reads this most famous of Supreme Court opinions. Its not only famous, its also the longest. 9,400 words. And you said he read the entire thing to the assembliage, which took him how long . As you were going through the three questions, it looks like hes going to really issue a sweeping review to the Jefferson Administration and order them to deliver the commissions, and there would be a square confrontation between marshall and the Supreme Court and jefferson. And it was very possible that jefferson would just defy them, i the Supreme Court was very weak. So hes going through the questions, yes, marbury has a right to commission, yes he has a right to the 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. Well, the statute does, but its unconstitutional. Exactly. And we are striking down the statute because its unconstitutional. Therefore we cant give him this order. So the result is 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 about marbury also. Because a lot of people at the time thought the Supreme Court was just going to be a political actor. These were all federalist appointees. People expected they were going to 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 being unconstitutional, they actually seem to be acting as a court, waving in a range of issues. Or at the very least pulling back at the last moment. Remember madison refuses to show up in court. Jefferson is not dignifying the jurisdictional pretenses of the court, signaling they might not accept a court order, they might not carry it out. And thats maybe the best case scenario. Heres intermediate case scenario. At the same time, there are impeachment proceedings in the pipeline against a lower court judge and actually soon thereafter a Supreme Court justice none other than old bacon face. So it might be you issue this Supreme Court paper and jefferson laughs in your face and what are you going to do, best case. Middle case, you issue this paper and theyre going to go after you. Worstcase scenario, and we know it doesnt come to this but they dont know how its going to happen, theres a french revolution and heads had rolled. And jefferson kind of said very airily you cant make an omelet without breaking some eggs, we know that jefferson isnt quite that but John Marshall cant be 100 sure its not going to end very, very badly indeed. So theres some prudence here as well. He doesnt push it too hard. Hi, miguel, your question. Hello . Can you hear me . Yes, miguel, your question. 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 legislators could ov override their Supreme Court decisions. And i think jefferson and many thought that would happen. But i think what was suggested here was not the case. My question to the panel is one of the books that i remember reading i thought was wonderful was albert John Marshall biography, which reads like an up right novel. And just wanted to know what your opinion was regarding that book, which again its a wonderful, wonderful book. Thank you, miguel. Our time is short, so ill find out what our guests think about that biography. No, its terrific biography. Marshall is a fascinating character. And he was brilliant. Theres another biography by james smith, which is terrific. And hes just a very, very interesting character. But thats one of the ones that really bring him to life. Akhil quick question to you. The more we hear about this case, the more it seems its soly a creation of marshalls will. Im critical of some aspects of it, but judicial review is very wellestablished in fact. And contrary to what miguel said, state legislators before marbury did not have had ability to overturn state Court Rulings that state laws had violated state constitution. The Supreme Court itself justice riding circuit and even validated congressional statutes. So marshall is not making up judicial review at all. Hes pulling a fast one in certain ways because if he doesnt, his branch is going to vanish into nothing, the federalist are never going to be heard from again, hes trying to rally the troops even as hes retreating. Although marshall is seen very much as judicial review, courts as against congress, much of the drama here and then later Supreme Court poins, some of the most important is going to be courts against president. We have 15 minutes to talk about the importance of this case. Let me just say one thing while we were talking about John Marshall because akhil mentioned the recusal part a couple of times. Recusal is when a judge says i cant sit on this case because i have a personal interest in it. And the standards for recusal were very different at the time. In todays world theres no question to anybody that somebody shouldnt sit if they have that personal involvement. The standard recusal at that time was definitely if you had a financial interest. And beyond that it was sort of vague and murky. One of the things telling about that is in the whole sequence of marbury and its aftermath including jeffersons very bitter criticism of it, the rest is like he never writes that. And everybody knew it, and there were people who wrote articles in newspaper 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 he should have recused. So onto the impact 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 talking about the importance of marbu marbury vs. Madison. Lets listen. Marbury v. Madison 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 the constitution means. That is not the typical pattern in parliamentary systems where the legislator will have the last word, what the fundamental instrument of government means. The idea of judicial review for constitutionality i think is implicit in the constitutional document. But John Marshall 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. Heres some of what he had to say. Well, i think the court has and i think instinctively relying on marbury that goes beyond what the actually 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 been there. Thats congressman john goodlack. Id like to show you a decision over innumbers that have cited marbury as precedent. In fact we found that marbury was cited by the court over 200 times. But there are a number of key cases very recent. They include baker v. Carr in 1962. Gr griswold v. Connecticut. U. S. V. Windsor in 2013. And most recently last year king v. Burwell. Amy mulligan asks should we as americans be concerned about judicial view becoming judicial activists . Former chief justice that doesnt mean were going to agree on how that power is going to be exercised. And there should be healthy disagreements about that. Frequently if somebody doesnt like the outcome of a decision of a Supreme Court that invalidates an action thats unconstitutional, they view that as judicial activism, from whichever perspective. So there should be a very, very vigorous discussion about how the Supreme Court 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. So since you mentioned king v. Burwell i want to give a shout out. There have been four times since oufr history when a new president representing us as a sort of rising Political Force has confronted a court representing ghosts of pres past. And the first is jefferson confronting marshall. And marshall to his credit he pokes jefferson a little bit. But at the last minute he shows some prudence and doesnt take a huge bite. This is going to happen again when we get to the dredd scott case, roger tawny representing what becomes the jeffersonians, hes opposed to abraham lincoln, the antislavery president. And theres going to be a confrontation there. And then a third time fdr is going to confront all these 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, and he could have picked a fight with barack obama and twice he declines to invalidate the big platform of obama, what he ran on, obamacare. And in so doing, he took the court out of 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 v. Madison way back when. Its possible he borrowed a page from the chief justice. Theres a campaignian case to marbury v. Madison that is almost unheard of or not talked about. In that case its a constitutional challenge to the statute that the jeffersonians had passed repealing the judiciary act, making the justices right circuit again. A lot of people expected these federalist justice to strike that down as unconstitutional. They thought thats where the courts power to invalidate constitutional grounds was going to come. And the Supreme Court very quietly in a brief opinion up held the constitutionality of that statute. And what that showed was having established it had the power of judicial review. The Supreme Court was going to exercise it very juditiously and not for predictable political purposes. So today if you go to the National Archives millions of people do every year, they have an area where the great documents of our country are on display. They also have documents of marbury v. Madison. Does it belong there . I think it does. It comes right after the bill of rights and the constitution. And the statement there is because its a cornerstone of our constitution. And i think it absolutely is. If we really want to understand modern day judicial review, many of us care about the rights of individuals versus Appellant Versus jurisdiction, what we call rights, a lot of them 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 i want us to remember mr. Lincoln because his generation gives us a new birth of freedom, a second founding thats going to launch a very vigorous project of judicial enforcement of rights. Thats what marbury has become today, even though it wont actually that robust at the beginning. But its become really important because of the reconstruction, because of the 13th, 14th, and 15th amendment. And in fact four of the amendments we selected of the 12 weve got about seven minutes left and i had so much i wanted to do. Let me take a call from cat from churchview, virginia. Youre on the air. Hi, my question is adam and jefferson were friends how did adam justify his action when he kind of went against jefferson and his presidency in the whole like debate thing . Okay, thanks. We spent some time on that in the beginning. How did he justify his actions t . Adams from his perspective when hed been defeated and he saw the jeffers and jeffersonians coming in, he was worried about the future of the country. And as he was putting these federalist into the government and ensuring they were there from his perspective, he was safeguarding the last he was very fearful of what was going to happen to the country. As we talked about before, fortunately they reconciled. And he does not try to hold over and defy the will of the electorate, and thats a historic first. You were mentioning all these historic firsts. One Political Party losing fair and square at a National Level and actually yielding power to its political rival, thats a pretty new again, that gives the world an amazing lesson, it seems to me and gives adams his due in that regard. And remember hes worried, the french revolution, is it going to spiral out of control . So some of this is maybe even selfprotection on his part. Mistaken, but to sort of give him his due. One of the crowning achievements of his presidency, well show you next a letter that adam said wrote to John Marshall in the waning days of his life. In 1801 following four years of serving as president of the United States, john adams would leave washington, d. C. And once again return home at his home at peacefield where we are today. He would spend the next 20 years of his life with his wife and their children and grandchildren. This was a very lively house. Its 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. During that time she would make an addition to the house. And it includes a second floor where john adams could entertain his mind. It was from this desk that john adams would correspondent with Thomas Jefferson. And they shared over 300 letters in their lifetime. In one of the earliest letters adams would wright to jefferson you and i ought not die before weve had a chance to explain ourselves to one another. He loved to receive letters, he loved to write them. And sometimes he was even surprised with a gift, including from his old friend John Marshall who he appointed as chief justice of the United States. John adams is at his desk and hes writing to John Marshall that he has received this gift. He writes, dear sir, the extreme imb imble silty of my own age theres no part of my life that i look back upon with more pleasure 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 cope or hail, halt, i am ultimately your friend or wellwisher. Though on the point of departure, john adams. So the chief justice John Marshall served on the court for 34 years. Hes often referred to, the sitting court chief justice called him the great chief justice. One book i read made the point that having established this principle, he became more powerful than the next three president s of the United States. Would you go that far . No, and i dont think thats the right way to look at it. John marshalls legacy is that he created the Supreme Court as a coequal branch of government. And in marbury he established judicial review and evaluating the statute. He defines the contours of National Power 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 of the United States. What should we remember him for . Well, heres one thing in in addition, i cant remember who it was who said 90 of life is showing up. John marshall shows up. He just stays for a long time, 34 years. His predecessor left. The next guy left. When you look at the constitution theres not a termination for the presidency until the 20th century, until fdr. So imagine a world where president s are perpetually reelected president s for life. And we dont have that because George Washington steps down and jefferson leaves peacefully and monroe and the tradition begins. But washington established that. And his great biographer was none other than John Marshall. So washington establishes we wont have a presidency for life, John Marshall really puts kind of a different spin on good behavior. He doesnt cut and run. He just stays and stays and stays and workwise new appointees, basically jeffersonian appointees and tries to create a Nonpolitical Court thats above party. And he just stays. And a lot of life is just showing up. We know what happened to James Madisons political career. What ever happened to marbury . Marbury continued to be very active in Business Affairs in washington, d. C. Over the course of the next 30 years or so. He had his hand in lots of different business ventures, a bank, a place that inported suits from england. The house that marbury lived in during this time still stands. Its in georgetown. Its actually the embassy of ukraine today. You can see it there. It was basically marburys command post during this time period. Well, special thanks to our two terrific guests, Akhil Reed Amar and cliff sloan. And thanks to our viewers. Your questions always make it so interesting. We hope youll be with us throughout the series. Landmark cases returns live next february on cspan. Here more stories on people who sparked Ground Breaking cases, justice and lawyers who were key to the Supreme Courts review. American ristry tv is in prime time all week with our landmark cases series. On wednesday well look at scott v. Sanders. In 1857 it declared that all blacks and could never become citizens of the United States. It begins at 8 00 p. M. Eastern. Cspans washington journal, live every day with news and policy issues that impact you. Coming up wednesday morning, a discussion on efforts to stabilize various Affordable Health Care Insurance markets with aei Health Care Scholar and the recently elected National Commander of the disabled American Veterans talks about health care and employment issues affecting veterans. Cspans washington journal live beginning at 7 00 a. M. Eastern wednesday morning. Join the discussion. A senate panel will exam recommendations for increasing water security and drought preparedness. Live coverage of this Senate Subcommittee hearing begins at 10 00 a. M. Eastern here at cspan 3. The General Services administration recently cancelled its search for a few fbi headquarters to replace the aging j. Ed gar hoover building. The officials from the fbi and General Services administration will testify about some of the obstacles they face and the future of the bureaus headquarters. Lives at 10 00 a. M. Eastern on cspan. You can follow both on cspan. Org and with the free cspan radio app. Up next on American History tv law professor Jeffrey Rosen talks about the influence of chief justice John Marshall. He talks about the ideological differences and marshalls influence on later Supreme Court justice. Supreme Court Historical Society and John Marshall foundation cohosted the event. Were delighted to welcome you here to join us in celebrating the 215th anniversary of the appointment of john marsher will to the superior court of the United States. This evening is a joint venture between the Supreme Court Historical Society and the John Marshall foundation. This is not the first time that those two organizations have partnered. As an example theyjo