Transcripts For CSPAN3 Early 20240705 : vimarsana.com

Pleasure to introduce a panel of three of americas most distinguished historians of the Early Supreme Court to teach us about significant justices that we may not have learned about before. Gerard mallioka is the Samuel R Rosen professor of law at the Indiana University Robert H Mckinney school of law. Hes the author of many books which weve had the pleasure of discussing at the ncc and the most recent which were here to talk about is washingtons air the life of justice, bushrod, washington. Maybe marcus is Research Professor of law and directer of the institute for constitutional studies at the George Washington University Law school where weve been colleagues for many years as editor of the documentary history of the Supreme Court of the United States 1789 to 1800 professor marcus published eight volumes with many articles on legal history. She was appointed by the librarian of congress as the general editor of the Oliver Wendell holmes devised the history of the Supreme Court of the United States in 20 15 and walter starr is a historian a New York Times best selling author a twotime winner of the seward award for excellence in civil war biography. Hes the author of several books including john jay founding father and most recently Salmon P Chase lincolns vital rival. Thank you so much for joining us gerard maybach and walter if i may gerard let us begin with you. Why did you choose to write about justice bushrod, washington . Why should our ncc friends be interested in him . Well, thanks jeff for inviting me and its wonderful to be here with such a great panel. I decided to write about bushrod, washington for a couple of reasons first. No one had written a book about him before so that was a challenge. Secondly. He was George Washingtons nephew. And so this is a way of understanding George Washington that is different from other approaches you could take to him. Third is he was on the Supreme Court at a pivotal juncture for 30 years alongside John Marshall and had a very close relationship with John Marshall that predated their time on the court. And it was a way of approaching the Marshall Court from a different Vantage Point and in doing so i came to believe that washington was really a pivotal partner for John Marshall and that we should understand what the court did in those years as being largely the product of the team. That is John Marshall and bush red washington and that washington, really played an Important Role in kind of providing support for what marshall was trying to do in building up the court as an institution. So bushraud is interesting in his own right . Hes interesting because of the people he was close to and hes also interesting because of some of the opinions that he wrote as a judge. Wonderful. Thanks for that great introduction, and we will dig into both his opinions his relationship with marshall and so much more. During our discussion walter starr same question to you. John. Jay is better known perhaps than bushrud washington as a diplomat and a founding father, but why did you choose to write about john jay . And why should our friends be interested in . Well, i first i was a practicing lawyer for a couple decades and i was living and working in hong kong when it kind of hit me that i i wanted to write a book and then i fished around for a subject. I was originally thinking about governor morris and other founding father. And i but i thought well, lets find the biographies of his friends and Alexander Hamilton robert livingston, john jay and i was shocked to learn that the most recent biography of john jay was from the 30s. And i bought a used copy and read it and it wasnt that good. I thought god even i could better than this. So i started, you know researching and writing. I mean jay has this amazing career in state federal and international. I mean most people today kind of know him for is role in writing the federalist papers or his role on the as first chief justice, but hes basically the author of new yorks first state constitution. Hes the first chief justice of new yorks highest court. He represents america broad first in spain during the revolution where he doesnt have much much success and then in france where he and atoms and franklin have Great Success in negotiating the treaty that ends the war and establishes our boundaries. And as soon as he kind of gets off the boat upon his return from france. Tap to be secretary for Foreign Affairs for the confederation. Hes a leader of the movement to scrap the articles and create the constitution. So although hes not a delegate. In philadelphia, hes he doesnt get a statue there at National Constitution center. I would argue that hes considerably more important than some of the lesser figures who do get statues. You know who sort of showed up in philadelphia and didnt do much. And then as washington is forming the First Federal government. You know some people talk about j as secretary of treasury some people talk about him as you know secretary of state, but it in in part to help washington find useful jobs for his friends jefferson and hamilton. He says i know id like to be chief justice. And even that isnt the end of his career, he goes on as chief justice to negotiate jays treaty and goes on to be governor of new york. So a lot to research and write about it was it was a fun process . Wonderful. Um you raise a really interesting question. Why is it that jay he doesnt have a statute because he wasnt at the convention. But why is it that the three justices were talking about tonight . Bush was watching and john and james wilson. Who arguably have far more influence as you say on the constitution itself and some of the actual delegates are less well known and well explore that. Of course the conversation naval marcus youve written about so many of the early justices, but i want to ask you about james wilson. You have a great piece on wilson as a justice. He was among the most important delegates to the convention who came up with the idea that we the people of the United States as a whole our sovereign and yet his influence on the court was less dramatic among other things because of his deaths and he had a dramatic personal and ill let you tell the story on. Why did you choose to write about wilson . And what was he like as a justice . I didnt write about wilson we have about three pages on james wilson in our eight volumes. You know. Specifically on james wilson, but he is a very interesting person and he came from scotland. In 1765 and then very quickly got involved in revolutionary activities in the 70s. He was very well educated. He had gone to Saint Andrews and scotland. Philosophy history political theory and all of that show throughout his career he was never trained specifically as a lawyer. But he became he read law i think was john dickinson. But im trying to remember i finished these volumes in 2006 and since then have been living in the 20th century. So its hard to remember all of this. But i think he certainly had a political theory when he was a delegate to the Constitutional Convention and was very important in that convention and in the pennsylvania ratifying convention. Where he easily convinced them that they should vote for the constitution and he very much wanted to be chief justice. There is no question. And George Washington was a very shrewd administrator and understood character and understood what was needed. And believed that the judiciary needed to be developed into a third coequal branch. And that james wilson was not the person to lead that branch because he was just too involved. With his own problems western lands. He loved investing in western lands and had huge amount of debt as a result of that and he also was not i would guess i wasnt there not an easy person to talk to or to actually deal with the people because he was intellectually for superior. To all of them and so washington chose jay but wilson was very good about this. He accepted the fact that he was not chosen chief justice, and he wanted to be an associate justice. And he certainly i would say he was one of the workhorses along with james aradel. Of the Early Supreme Court because wilson lived in philadelphia and the capital of the United States was philadelphia. So the Supreme Court met in philadelphia for those for nine of the 10 years. They met in new york the first year and wilson was always present when things happened and when things needed to be done in the capital or to take someones place and he was very very good about doing circa duty for other people when he could towards the end of his life when his debtors started to chase him. The second, you know past 1795 1796. He couldnt do it. He had to leave philadelphia. And go down south. So that his creditors couldnt reach him. And he ended up. Well, he had been in jail in new jersey and his son sprang on loose. Is the only justice i know of who had ever been in jail. But it was a very very sad story. And he ended up in North Carolina with a relatively new wife. His first wife died and i think 1786. And james wilson went on circuit in boston at this young lady james wilson was. 50 something years old and this young lady was 19. And he married her and she did look after him for the rest of his life. And if anybody wants to read a lovely book about life in, North Carolina at the very end or throughout the years that wilson was on the court my colleague matt Natalie Wexler wrote a novel called amor obedient wife. And its about the wilsons and the iredelles and i recommend it to everybody because it gives a very good picture of life in the 1790s and i always worry that people who talk about this course. Have no idea what life was like and think of the Supreme Court of today and therefore cannot really assess the worth of that court. Because they are judging it from a different standpoint. But wilson did not have the effect on jurisprudence. Would you think he would have given his intellectual abilities . Because he just didnt engage enough with the court when he started to get so involved with all these. Personal problems western lands debts etc. So he didnt leave much. In the way of jurisprudence that that we really use today and in fact, nobody even thought about him, you know, he is one of the most important people at the Constitutional Convention. He was buried in, North Carolina. And i think he wasnt brought back to philadelphia till about a hundred years later when somebody remembered who he was. And brought his body back to philadelphia. And so its only lately that people have once again taken an interest in james wilson, and they should take an interest in james wilson, but for many reasons not only as a justice. Wonderful summary of the life of an unappreciated founder. Thank you for the recommendation of the book the more obedient wife, and lets have book recommendations throughout the show paige smith has a biography of wilson that ive just been reading for wilsons influence on the phrase the pursuit of happiness because his reflections on the extent of legislative authority in britain was one of the two documents that Thomas Jefferson had by his side when both declaration and youre right about that amazing and wilson where hes in the tavern with his young life dying of malaria after hes been sued by his fellow Supreme Court justice. No, no, well, its not as Supreme Court. He was sued by Pierce Butler who was a senator in north ill take it from you, but you were sued by i think butler who i think sat on the court and no dying dying of death. He is convinced that he wants to defend his legacy and he says at least it should be said that i wasnt indolent which is his defense of his remarkable conduct, but ill be interested about whether all of you think that it was. His address and his overextension which was so well noted thats prevented us from properly appreciating his magazine gerard you begin the bookshelon, washington with a remarkable defense that justice washington makes of slavery. Hes respected his uncles wishes that general washington president washington three his own slaves and yet bushrad washington defends the institution of slavery. Tell us what his position was and then relate that remarkable story to his relationship with John Marshall and and broadly his influence on the Marshall Court. Well in 1821 moshe rod who is inherited mount vernon from his uncle gathers his enslaved people together and tells them that. He will not be freeing them. Uh, the reason for this is because george had freed his enslaved people in his will. And so there was an expectation among the those who were enslaved there that bushrud had brought to mount vernon after Martha Washingtons death that they too would be freed. They also had a reason to believe that because justice washington was the head of the American Colonization Society which was an organization that was dedicated to setting up the colony of liberia and encouraging the emigration of free blacks to africa, which meant to some degree that people would be freeing their enslaved people so that they could go to liberia nevertheless washington gathered them and said, look, im not going to do that and in part that was because he was struggling for money. Basically. He had inherited mount vernon, which was basically on the brink of well, it was a money loser. Lets say and he didnt really have the means that George Washington had used to keep mount vernon going and also bush road washington was a lawyer and not a businessman of any skill so he had a harder time with that anyway, so, of course eventually he sold some of his enslaved people in part to be able to pay debts and such and this really enormous criticism because of course one he was a city Supreme Court justice too. He was George Washingtons nephew. How could he do such a thing . And he wrote a public letter. It kind of a defensive slightly guilty letter in which he said. Well, look, i tried hard not to break up peoples families and but you dont understand all the problems that i have because of the financial position that im in. Um, its definitely he you know, he was George Washingtons heir both in his in washingtons virtues and in his vices. His virtues were commitment to country sober temper temperament dedication to building up the institutions of the new United States, the vices were slavery and of course, he owns slaves all his life. George washington had owned them all his life. So did John Marshall and so the book tries to say that on one hand . He was the inheritor and also the practitioner of this terrible legacy on the other hand. He did write. An opinion in core field versus coryell that became for many people the foundation of the civil rights that the freed slave should receive when the 14th amendment was under discussion after the civil war. So on you see both the sort of at judicial legacy, which was much more sort of expansive. Or became so in terms of thinking about the rights of black people in contrast to his treatment of black people personally. I should add that of course part of the story of the book is that there was one enslaved person that he freed only one and that was westford who was a washington by blood almost certainly now whether he was was rod, washingtons son or halfbrother or nephew will never know but its pretty certain that that he was one of them and hes someone who lived at mount vernon as a free man for many years and indeed inherited land from mount vernon from justice washington, so thats all part of the story that i tried to relay in the book judicial personal and sort of institution. Fascinating and as you note in the book, he studied with james wilson as well, which was a connection between those two great Founding Fathers walter, um, tell us about jay as chief justice want adam says he long known the esteem wilson, but he prefers jay president washington chooses jay because he trusts him more than wilson and hes so esteemed in all these ways. He didnt serve all that long, but but what was he like as chief justice of the United States . Um how to put it i think, you know all of these early justices suffer in comparison swing John Marshall and you know, theyre theyre really arent many cases from that period that are still cited today. I went and did some research to see if theyve been cited recently and the most important case the georgia vitism to just be georgia. Sorry musembi, georgia. Yes it it has the dubious distinction of being overturned by a constitutional amendment almost immediately. I mean the only so