Transcripts For CSPAN2 Book Discussion On From Marshall To M

Amount of cases and things to talk about, we needed to find someone with a passion for not only the history of the court but understand the dynamics of the history of virginia that were occurring when these cases were being tried. I was fortunate in that i reached up to one of my law school professors. And the 1st thing he said. We were very fortunate. He agreed to come on board. It was a journey he did an amazing job. I had know experience with publishers, editors, or archivists but but i do through this project. And at times controversial history of the United States District Court for the district of virginia. Our court was one of the first courts in america and is one that has a history but a tremendous amount of debt. Others tried to capture that history and found it to be an overwhelming project. So after a couple of years of frustration, we turned to john pierce. Hes not only a lawyer but also a story in and published author and the proof is in his work the history of the court. Im sure you will find it exciting. Its rich in history and it has a lot of intrigue to it and it is a good read. Tell us first knowing other people couldnt handle this project why did you decide to take this on tax [laughter] it was no punishment at all. Its fair to say that i jumped at the opportunity to work on this project and i did for the reason it for the reason any writer would want to do this book because very simply put, its a great story and thats what any writer looks for is a great story. If you are working with something of that nature is both an honor and not only a challenge that an honor to deal with this. So it was a enjoyable experience. For those that enjoy researching history, tell us about how you got a handle on this huge volume of material in such a short period of time. Most of the books that ive been involved in had a lot of material in a long histories of institutions that have lasted for a long time. I will mention the richmond bar. All of those required you to work with massive amounts of material covering a long period of time and often times a dangerous subject matter. So you develop certain habits and approaches to handle the material that pay off in the long run. In this case first i will tell you i always work from a detailed chronological outline. While im doing my research, i pin everything on to a chronological outline. One sentence with a brief source to the reference of that information and what i ended up with in this case was 31 pages of outline. You then use your outline how you can morph your chronology to an outline and thats where you determine where the chapter breaks are going to become how you are going to break down the material and organize it in such a way that makes sense. So the first decision i have to make and it was critical, i was charged with writing about the notable cases over a 220 or period which gives rise to the question how do you define a notable case in where are you going to find them . I made an arbitrary decision very early on that a notable case would be a case that had been written up in the New York Times or washington post. I did a search under every judges name and what i got was literally hundreds if not thousands of newspaper articles. I had a wonderful librarian who took the names of the parties and the dates to the newspaper coverage and matched those up with a reportedly all opinions. So i had both of the newspaper coverage and the actual formal opinions not only of the trial level but the appellate level and i eventually obtained copies of those opinions and we played everyone into the chronological outline. I think i read probably 600 opinions into probably 300 cases that find their way into a book. It was experienced frankly it was having done this before and knowing how to approach it. Of the glory is that i ended up with the newspaper coverage and the formal legal opinions. Equally valuable because its only through the newspaper coverage that you find out the nicknames for the witnesses and the judges comments from the bench, the local color, thats the sort of thing. In addition to having a historical perspective, you practiced as a lawyer in the court for many years. Did that give you the unique insight to determine what cases are important and which ones are not . I had written about the courts in bits and pieces going back perhaps as long as 40 years. I didnt really have a complete picture except for the really critical cases in the segregation cases, the cases in recent years involving the uranium contracts and the james river. I was aware of those cases but frankly it was my experience as a lawyer that probably helped me more in reading and understanding the cases themselves. When i was in law school i couldnt understand why my professors were asking me the facts combined with the holdings i never really understood why i was practicing law. After i began working on this book i learned. It took me over 50 years that i learned for the first time i was important. So that was one of the critical skills. Hispanic i know one of your observations has been that in the history in the district of virginia you thought it was a very effective vehicle for talking about the history of jurisprudence in america. It is. I think that writing about the Eastern District of virginia or the history of any court is probably the most viable ways to teach virginia our history and the reason for that is ultimately the most important issues in our culture are in our society and they find their way to court. Just think about it for a while. Abortion, gun rights, healthcare enemy combatants public corruption. We have a healthy dose of such recently in virginia. But the important thing is coming and this is why some experience with virginia becomes important. The history of an institution but especially of the court is only important if you place it in the context. Youve got to be able to type those cases to events that are taking place and have issues that are alive in the culture and society in which you are writing about. As an example if you are going to be writing about the cases in the Eastern District of virginia is essential that you know about the war in europe and the activities that the activities of the french and spanish and english in the west indies and the emerging latin american republics. You cannot understand the cases in the Eastern District without that context so you have to be able to fill that part of the story. Most people revealing the history of the 18th and 19th centuries tended to focus more on the prominent members of the executive or legislative branch rather than the Judicial Branch. Why has the Judicial Branch and so overshadowed at the other branches in the reporting of the history in virginia . Writing in the history of virginia that number one unless youre talking about the federal courts its rare that the Virginia State court cases really had a great impact on society as a whole. The cases in the federal courts have. But i think during the early days of the republic particularly when they were adopting the constitution promulgating the first judiciary act people naturally look to the Founding Fathers who were essentially legislative people. They were not judges. Now we are getting close to a tie in with virginia because the one jurist in American History probably had the most impact on making the Judicial Branch of government equal with executive and legislative branches was John Marshall. Thats the most convenient place to begin since he was the one that inspired so much of the basic principle of constitutional law in america today. Lets Start Talking about John Marshall. He was on the u. S. Supreme court. He was also a trial judge, was he not . Thats something i realized for the first time in writing this book and its something i dont think that most laymen and lawyers realize even today. John marshall was appointed the fourth chief justice in 1801. And he died in 1835. He was chief justice of the United States for those 34 years. And as i say was probably the individual who in the history of the land probably had the most dramatic impact on the sheet and power of our federal government today. If Thomas Jefferson had have appointed a justice of the United States, we would be looking at a very different government today, three different federal government. But at the same time the thing people dont realize is the entire time John Marshall sat on the Supreme Court as the chief justice, he also looked at a trial judge in the Eastern District, what would have been the Circuit Court for the Eastern District of virginia. It was named the Circuit Court because every Supreme Court justice had a circuit and in those days there was inconvenience and discomfort and all that sort of thing. When he was chief Justice Marshall spent two months a year in washington. He spent ten months a year either in virginia or North Carolina writing as a trial judge. That meant that he impaneled juries, sentenced criminals from a pooled on the admission of evidence all the things the justices do today and in the course of that he wrote a number of opinions and you get a very different view as a trial judge from the view that you receive as americans refer to balance the great chief justice. And he sat on a number of very critical cases while being a judge in the Eastern District. Tell us about the structure of the courts back in those days. In addition to the Supreme Court you had to Circuit Courts and the trial court that the plane that dynamics of the two. There were three levels of courts under the first to do she react. There were District Courts that have limited jurisdiction. Petty crimes but one important aspect was admiralty cases. In the then the circuit cases were the primary federal courts. There was nothing between the Circuit Courts and the Supreme Court. There were no federal Appeals Court in that day. We all know know now that Circuit Court of appeals and eighth Circuit Court of appeals. There were no Circuit Court of appeals in the federal system cases went to directly from the Circuit Courts to the United States Supreme Court. The Supreme Court of justice was assigned to every Circuit Court and sat on the Circuit Court with the district judge for that circuit. And so here you have the chief justice of the United States spending most of his time as a trial judge. Life today for a justice is pretty cushiony to say the least. [laughter] also the accommodation and lifestyle of a Supreme Court justice back at the age of John Marshall. First you have to understand first during the decade it was a very weak institution. I think there were some years during the decade when the Supreme Court only rendered one opinion per year which today seems unimaginable. It wasnt totally clear at that point whether the Supreme Court had the power of the judicial review not only statutes but also federal statutes and state statutes. So it was recognized as a weak institution. The justices when they met in washington all of the justices in the first decade wrote separate opinions. So you didnt have a unified opinion of the court that you could look to. Marshall when he became chief justice not only under his leadership the court adopted a number that affected our lives to this very day in a very dramatic fashion but during martial, the two months they were in marshall they stayed together in the same room and engaged in any outside social activities. It was all introspective and they began to write collective opinions for the first time. In other words he would have an opinion of the United States Supreme Court. Not a halfdozen separate opinions by the individual judges. I assumed back in those days it was a very highly compensated position. In fact while up you may have some to contribute here. [laughter] of the federal judges and Supreme Court received very meager compensation for years and years. In fact it was often times a tossup whether a politician but offer to become a federal judge or elect to run for congress again. So it wasnt particularly lucrative. A lot of the cases the Supreme Court would hear this session as well as prior sessions turned on the principles that really originated with ten of John Marshall when it comes to the separation of powers and the various Constitutional Authority that each of the branches of government have. Talk about that for a minute. I certainly dont hold myself out as a Supreme Court scholar. But i think i did list about six cases in the book that have led to marshall being characterized as the great chief justice. First is the case which they held that they have the right to review the statutes adopted by congress. Youve got to get give in this case that solidified the congress right to regulate interstate commerce. Youve got mcauliffe versus maryland, which in essence said that congress had the implied power to implement the expressed power of the constitution and give it a collins versus virginia which upheld the right of the Supreme Court to review state criminal cases which the constitutional issue was alleged to arise. We have one more with madison that kind of beside the separation of power between the branches of government. One of the more intriguing parts of the book deals with the relationship between John Marshall and Thomas Jefferson they had somewhat of a strained relationship to be mild about it. Talk about the genesis of that and what kind of a relationship today have both familiar and professional. One of marshalls biographers described the relationship and i havent forgotten the term and i hope i can quote it correctly he described it as an unrelenting mutual hatred. [laughter] there may be a little understatement of their. They hate each other. They were distant cousins but they hated each other and it was large measure political and it was large measure personal. They just simply did not like each other. The Political Part of it is we tend to think of the Founding Fathers as a group that nothing could be further from the truth. Look at our show and medicine at washington. They were federals and preferred a Strong National government. Jefferson and henry and mason they were antifederalist. They were statewide, weak federal government people. And the political battles for the first two decades of this country were fought not only in the Constitutional Convention but in the courts and in the congress and let me alert you to the fact the battle between the federalists and antifederalists still ranges today. We see it in the federal courts in this country every day. So it is the one constant is the difference between the two philosophies of strong federal government, Central Government limited federal government more power to the state and it goes that way in the 1790s and in a large degree that way today. We will turn to the trial of aaron burr. You mentioned in your book that the tension between jefferson and marshall came to the forefront during the trial in some of the runup to it. Tell us a little about that. Two things that i would like to mention first about the trial of aaron burr for treason gets important to do this because two large extent the trial of aaron burr writing has been overlooked in history. Particularly where it took place near richmond. First the trial for treason was probably the most important single event ever to take place in the city of richmond. You could mention the surrender of the city to the yankees any team 65 but i think that the trial still ranks right up there at the head of the patch with apologies to o. J. Simpson. [laughter] i think the trial may well be the most important that ever took place in the United States. Here you have a former Vice President of the United States being prosecuted for treason. The prosecution being initiated by Thomas Jefferson president of the united president of the United States and with John Marshall his archenemy sitting on the bench as the trial judge. I wonder how many satellite trucks that would bring. [laughter] bring to capitol square. An