tv Richard Brookhiser John Marshall CSPAN December 9, 2018 7:00pm-8:01pm EST
programming at 11:00 with pulitzer journalist fox butter field. that all happens tonight on c-span 2's book tv, 48 hours of non-fiction authors and books. television for serious readers. this weekend's full schedule is available on our website, booktv.org. now richard brookhiser on chief justice john marshall. >> lindsay: good morning. we are going to get our program started now. but there will be coffee and food still in the back so if at any time you want to get up please do so. good morning and thank you for coming to this forum. discussing rick's new book on
john marshall and a special welcome to our friends at the manhattan institute, our co-sponsors today and our c-span audience. my name is lindsay craig president of the "national review" institute, a non-profit supporting the "national review" mission. "national review" which you've known and loved for over 60 years is a wholee owned subsidiary of nri, and our mission is to preserve and promote the legacy of william f buckley, jr., and support the top talent at the magazines he founded. important writers like rick brookhiser. a valuable tonight to reflect on his contributions to our nation. we held successful events all around the country, aimed to be not only nustalgic but also inspirational. we realize the young staff at our organizes were just barely
reaching their teens when bill passed. to them buckley and his passionate and current advocate his civil and inclusive manner those could be just words on a wikipedia page. and so this fall we took those legacy events to over 15 college campuses. last week we're at berkeley, last night, kings college and a forum with rich lowry, editor in chief about the important values buckley espoused. as reagan warned freedom can be lost in a generation. we must continue to read, appreciate the philosophy and experiments, the successes and failures, and importantly reflect with gratitude for those who have paveed the way for us, and that is an important reason why we support rick brookhiser's work on the american founding. we will continue to stand up for
the conservative values that has made this country great, exceptional in fact, and we're not afraid to say it. at our upcoming idea this march we will highlight that making the case for the american experiment is our title, so please come join us. our featured guest this morning is rick brookhiser. a journalist, biographer and historian. he first published in nr at the age of 15, and has held many roles over the years. today he is senior editor at "national review," and a fellow at the "national review" institute. he is most widely known for his series of biographerries of american founders, including alexander hamilton, governor morris and george washington. rick has been awarded many honors but notable is the national humanities medal give to him in 2008. we're proud to have him here.
after rick talks about his book he will sit with rich lowry to discuss more topics in dechght. and there are note cards on your table to incorporate a into the discussion discussion with rick. please enjoy the discussion and join me in welcoming him. [applause] >> rick: thank you for that introduction. thank you all for coming out. i'm always glad to be speaking at the union league club because i was married here 38 years ago. still married. [laughter] same wife. [laughter] i just want to thank one person, who the book is dedicated, lewis layerman, i met him in 1 1982
when he was running for governor against cuomo. new york is still suffering on to that but america has benefited because will you was freed by that to protect his great love and american history. what he has done for american history is stellar with the guilder lehrman institute, and the exiltd of the new york historical society in 2004, and alexander hamilton, we were for hamilton before he was cool so it was a great honor to be able to dedicate this back to him. i'm sorry the supreme court has been so out of the news in the last few months but i'll try to make this talk relevant anyways. and the reason that it is in the news is ultimately the fourth chief justice, john marshall. he was the man who made the
federal judiciary the pier of the legislative and the executive. so this morning i want to say a few things about him personally. i want to talk about how he led the court, i want to look at one of his important cases, and then i want to talk about some of his critics both in his lifetime and afterwards. the most important thing to say about john marshall is that even though he spent most of his adult life in richmond, one month a year in washington, d.c. when the court was in session, several years in philadelphia, six months in paris. but all his life he was a country boy. he was born in virginia the first house he lived in was a log cabin. the second house was a frame house, the third house had glass in the windows. so this isn't quite daniel boone. it's not being on the frontier
but it was definitely a life in the country. he retained his country habits and attitude all his life. the word that people use over and over again to describe him is simple. people meeting him for the first time, people who knew him for years. they describe him as simple. he didn't care how he dressed. when he was riding circuit in raleigh north carolina, he forgot to pack a pair of pants and when he arrived the local tailors were unable to supply the lack he he had to cover himself with his judicial robe all the time he was there. he -- his care was cut by his wife. if his wife hadn't cut it who knows what he would have looked like. he had simple attitudes towards drinking. he liked it. he liked it a lot. [laughter] when he became chief justice the
court had a custom already that the justices when they deliberated they would hear cases during the day then they would go to the boarding house they were staying in, and discuss them over dinner and after dinner. the court's custom was they could only have wine at these discussions if it was raining out. i assume that was to cheer themselves up. so, marshal when he became chief justice he would always ask his colleagues, usually justice story to look out the window and tell him what the weather was. justice story would say the sky's perfectly clear, and marsh 8 would say the law of chance is it must be raining somewhere. the wipe was always served to the marshall court. marshall loves simple exercise and simple games. he walked miles before benefits every morning his entire life.
his nickname in the army was silver heel. because his mother sewed him patches in his socks of the heel. he could also jump over a bar resting on the heads of two men. his favorite game was quoits like harshshoe but played with medal rings, and the point is to pitch them over a post called a mag, and people who saw marshall playing this game said he would devote as much attention to deciding whose quoit was closer to the mag as he would on his great supreme court decisions. the other important thing about him was who he most admired. one of the men was certainly his father, thomas marshall. thomas marshall home-schooled him and dedicated him to being a
lawyer. but, the other man that he admired was the father of the country, georgia washington. marshall volunteers when he was 19 years old to join the virginia militia in 1775. then the following year he joined the continental army. he was in the revolution until 1781, almost the entire length of it. he fought in 7 battles, in three of them commanded by washington, brandywine, germantown, and monmouth, he also spent the winter at valley forge where washington was in command. so marshall saw his commander-in-chief in defeat, in victory, and he saw him at this terrible winter encampment when the army was unclothed, unfed, and unpaid. and marshall's conclusion from these speernses was that washington was the rock on which the revolution rested. he was the man who saw the
project through who protit to success. when washington returned as commission to congress at the ended of the war in 1783, marshall wrote a letter a few days later to an old friend of his, and said at length then the military career of the greatest man on earth is closed. may happiness attend him wherever he goes. whenever i think of that superior man my full heart overflows with gratitude. this was not a trivial feeling. a marshall followed washington again after the war. when washington and other leaders decided that the american form of government needed to be changed, the articles of confederation under which we declared our independence were not sophist to carry out the task that a government had to do we needed a new constitution. washington presided over the
constitutional convention, in 1787, then a year later, john marshall was a delegate the virginia ratifying convention where he took a strong pro-constitution stance. then he followed washington again in 1798, the first two party system had arisen the federalists versus the republicans. the first republican parties the ancestors to do's democrat, that was the party of jefferson and madison. the federalist were adams alexander hamilton, and marshall was a federalist and in 1798 washington summoned him to mount verner and hold him he had to run for congress. the federalist party was weak in virginia and washington thought it needed new younger blood. marshall didn't want to run because he was a lawyer, private practice, was making good money, he had a growing family, he was buying land, he needed the income.
so he kept refusing and then he decided i can't keep saying no to the greatest man on earth i have to get up at the crack of dawn and get out of here. but washington had gotten up first and put on his old uniform. so marshall as he put it, he "exceeded to this representation" he ran for congress, he won and it was from congress the president john adams picked him to be secretary of state after he had a cabinet shake-up and then at the end of adams's terms, adams loses the election of 1800 to thomas jefferson, their re-match adams had beat him narrowly ininally 1800 was a blue wave. jefferson won the white house and jefferson's party took both houses of congress from the federalists so in this lame duck period of time adams and his secretary of state are trying to
fill the federal judiciary with federalists. then adams gets a letter from the then current chief justice oliver ellsworth. he said he had gout, his health was bad and he was leaving the job. ad mentz had to fill this post. the name he sent to the senate was that of the first man to be chief justice of the united states. john jay, the great spymaster, diplomat, federalist paper author. jay had been chief justice and left to be governor of new york. adams sent his name to the senate and the senate confirmed him. then adams got a letter from jay saying he wasn't going to take the job. jay said the federal judiciary lacks energy, weight, and dignity. he wasn't going to be chief justice again. so we have to imagine adams and
john marshall sitting in adams office in the still unfinished white house. the exterior shell is done but the interior is a construction site. and adams says to marshall who shall i nominate now? marshal said i don't know sir. and adams thought for a minute and said i believe i'll nominate you. so this is how john marshall gets the job in february of 1801. the other man who is very important in marshall's life is the winner of the election of 1800, thomas jefferson, marshall's second cousin once removed. marshall detests him, and jefferson hates him in return. marshall didn't hate many people, jefferson hated a fair number of people but marshall was always high on his list. in jefferson's mind marshall was a sophist, he would twist
anything to a predetermined legal conclusion. marshall -- jefferson warned joseph story before he got on the court that you must never give a direct answer to any question that marshall asks you. if he asks me if the sun were shining i would say i don't know sir, i cannot tell. marshall thought that jefferson was a demagogue. that he talked a great game about letting congress run things but he was secretly directing it behind the scenes and riding waves of popular sentiment to serve his own popularity. he also thought that jefferson had been a disloyal secretary of state, serving georgia washington foreign policies with one hand while undermining them with another. so in march, 1801, the one cousin, the new chief justice swears in the other cousin the new president.
now, marshall comes on to a court, there are only six justices in those days. they're all federalists, all been appointed by washington or adms, but in only 11 years after jefferson's administration and james madison's the partisan balance of the court has changed from two federalists to five republicans. congress has increased the size of the court to 7. so, federalists had died or retired, and they had all been replaced by republican judges. and yet, all these republican justices followed marshall's lead. so how did he do that? i think the first reason was the simplicity i talked about. his genial manner. he liked his colleagues and his cleetionz liked colleagued liked being with him. this is the reducibledentially
success in any political feel. marshall practiced deference. if there were those more experienced in areas of law than he was, he would let them take the lead. then when you show deference you get deference in return. it's not just the right thing to do, it's the smart thing to do. a third factor was that marshall was always the smartest man in the room. and many of his colleagues were brilliant jurists themselves but they all acknowledged his superiority. his mind was not quick. it took him a while to get going but once he did he was almost implacable. william wirt who started out as an advocate later became attorney general described marshall's mind as the atlantic ocean, everyone else's minds were mere pond. then the fourth factor is length
of tenure. marshall is chief justice for 34 years, still a record. he will swear in five presidents in nine inaugurals. he's picked by john adams and goes to the second term of andrew jackson. then the middle of that tenure there's an 11-year period, 1812-1823 where there are no personnel changes on the supreme court. we've only had one such period ever again. so marshall's there a long time to exercise his geniality, his deference, and his intellect. probably his most famous case the one we were all taut about in school is marbury v. madison and that established the principle of judicial review. i think the most important thing about marbury was not that principle. john marshall did not invent
that. that was already well known. alexander hamilton had written about it in the federalist paper. marshall had spoken of it in the virginia ratifying convention. but it's a long opinion, 9,000 words, and the news when it was issued it stood 8500 words of it are a scolding of the jefferson administration. theming it has misbehaved. that william marbury was entitled to a commission as a justice of the peace in the district of columbia, the jefferson administration had not delivered this commission to him, they ought to have done it. marshal decides that marbury can't get it because the means of redress that he is seeking is in fact something that the supreme court cannot do. the law that gave them that power was unconstitutional. most of the decision is shaking his finger at his second-cousin's administration. the decisions most controversial
in marshall's lifetime were the supremacy decision. the one's where the court asserts its supremacy over state court. and there was a series of these fletcher vs. pec. dartmouth v. woodward cohens v. virginia mcculloch v. maryland but the case i want to talk about this morning because of its economic significant was fletcher vs. pec. and this it had to do with a land deal in georgia in the 1790s. georgia was the poorest on it 13 colonies. but it had vast back country that went all the way to the mississippi river. what are now the states of alabama and mississippi. and georgia realized it could sell the land off to pay its debts. it made a deal in 1795 to sell
35 million acres for a penny and a half an acre. every member of the georgia legislature was bribed to make the sale. the going rate was $1,000, one legislator took only $600 and said he wasn't greedy. when word of this got out the people of georgia replaced all of these legislators at the next languaged with a new set and they passed a repeal act. which nullified the sale and also forbade it from ever appearing in a georgia court. the repeal act that said that any officer of the state who so much as referred to the land sale would be find $1,000. so georgia has undone the sale and its made it impossible to litigate it in a georgia court. now of course the purchasers of this land were not intending to move to alabama or mississippi. they were going to flip their purchases immediately for a profit. this is very old american real
estate story. so, and then the second purchasers were going to flip their track in turn, each set hoping to make a profit. but this would only work if the sale were valid. so the first thing the purchasers did was got a legal opinion from alexander hamilton, who was no longer in government. he was practicing as a lawyer in new york. hamilton wrote a brief opinion saying that the sale would probably be upheld because the article 1, second 10 of the constitution, which forbids the states from impairing the obligation of contract. he said the original sale would be considered a contract, and if this were taken to court, the courts would probably uphold its validity. but how could the purchasers bring it to court? georgia has prevented it from being litigated in georgia
court. the 11th amendment, forbids citizens of another state from suing a state. but, if a citizen of one state who is a citizen of another state that can be a matter for the federal court. so, robert fletcher of new hampshire sues john peck of massachusetts who sold him a track of georgia land. and fletcher said, you didn't have a legitimate title to it because the repeal act has nullified the original sale, i want my purchase price back, it was $3,000, give me my money back. so the case goes to court, the takes a while for it to reach the supreme court, it's argued in 1809, there's a flaw in one of the proceedings so it's reargued in 1810, and marshall writes his decision. he follows hamilton's legal
reasoning. he says retracting a sale is unjust, it's also probably impossible because he says the past cannot be recalled by the most absolute power. but his third and most important point is that it is unconstitutional. because article 1, second 10, forbids states from impairing the obligation of contracts. then what marshall adds to this argument, and it's startling to read it. he says article 1 second 10 is a bill of rights for the people of the state. of course we think of the borts as the first ten amendments, protecting freedom of speech, freedom of the press, right to keep and bear arms, no unwarrantless searches and seizures. but marshall is saying no. before the first ten amendments there was already a bill of rights in the constitution and
this protected the obligation of contract. the john marshall contracts are so importantly that protecting them becomes something we would call a bill of rights. the reason i focus on this case is that when we think of the founding fathers most responsible for our economic system we naturally think of hamilton, especially after the musical. [laughter] but he deserves that reputation. but hamilton's plans and his projects needed a legal armature to support them. and that legal support, comes from the decisions of john marshall and his court. fletcher vs. peck, another contract case decision dartmouth v. woodward, and finally a commerce clause decision gibbons v. ogden and these are the pillars of the american economic system. marshall had critics in his
lifetime. obviously a jefferson is one of the most potent of those. mostly jefferson does this in letters to friends complaining about marshall and this is a lifelong theme of his correspondence. jefferson's objection to marshall is that constitutional questions should not be left in the hands of a body that is irresponsible to the people. justices of the supreme court are picked ultimately by the people because they're nominated by the president, confirmed by the senate. and we elect the president and we elect the senate. so we have a role in picking them. but once they have their jobs, they hold them for good behavior. they never have to stand before popular judgment again. and this violated jefferson's sense of how a democracy should work. so in addition to simply abusing marshall he tried to think of
alternative ways to adjudicate constitutional questions. one idea of his was to whenever there was such a question we should call another constitutional convention. he suggested this in a letter to james madison, and madison as he so often did, threw cold water on the suggestion. he said this would be tardy, troublesome and expensive to have an ongoing series of constitutional conventions. another marshall critic was senator richard johnson, he was most famous for killing tecumseh in 1812, and second for his campaign song, ripsy, rampsy, rumpsy, dumpsy. i, dick johnson, killed tecumseh. [laughter] but johnson was a principled small-d democrat. and in the early 1820's he offered a series of
constitutional -- for the power of the court. one would allow congress to restrict its jurgz to take certain things of the courts purview. another to give the senate a veto on supreme court decisions. a third would have required a super majority of justices to rule on constitutional question. none of these amendments ever became law. they were mostly sketched in committee or defeated in the senate. and then long after johnson and jefferson and marshall died, abraham lincoln was a critic of the supreme court, particularly of the dread scott decision of 1857. this was the second time the court overturned a law of congress. this was the missouri compromise, chief justice taney explained this violated the 5th amendment. which says that there can be no
taking of property without compensation, so therefore, congress has no right to forbid a property owner from taking his human property into any territory of the federal government. lincoln attacked this decision from the day it was rendered, until his first inaugural when he'd been sworn in by chief justice taney. who one witness said looked like a galvanized corpse. lincoln said that the parties to any suit that comes to the supreme court have to abide by its decision. so therefore, poor dred scott had to remain a slave. he also said these decisions could not have value as precedence unless they matched certain criteria. he said they had to be unanimous, he said they should also show no apparent partisan
bias. well if you use those criteria that wipes out a lot of supreme court decisions, not only dred scott, many others including some in marshall's own lifetime. this was another proposal that has never taken flesh. and the issue is still with us. whenever a political period of time feels on the short end of the stick from the supreme court, their thoughts turns to ways of restricting the court's power. but we have never found the magic balance yet. marshall died in 1835, andrew jackson gave a very gracious tribute to him. much more gracious than anything jefferson would have said or marshall said about jefferson. but the most gracious tribute of all came from a club in richmond, the quoits club where marshall had played his favorite game every saturday from may to october. and they ruled that since john
marshall was irreplaceable, the quoits club should always have one fewer member. so thank you very much. [applause] >> rich: thank you rick, that was masterralist, bill buckley in terms of journalism what he valued most was the quality of the words. and this led him to make poor choices over the course of his editorship of "national review." he gave liberal writers like garry wills, and joan gideon their start by publishing them in the pages of the "national review" which annoyed the publisher bill rusher to no end. he had to remind bill we are a conservative magazine m. but enforcement he did not always have to choose between the quality of the words and ideological soundness, rick
brookhiser exemplified what bill wanted in "national review" writer to be. eloquent, cultured, succinct and witty. we can't be sure what bill would thing of anything that national revenue is doing, we don't get the memose anymore, but something i'm confident in is every time we publish something by rick brookhiser, bill bickly would love that. that goes for his latest book. our education system is dumping it aside or accident reporting it, but we've had a great revival of history writing and biographer in this country and rick was a front runner and cat lieser of that trand with his wonderful have book about georgia washington written about 20 years ago. so rick i thought we'd dig in a little bit about marshall and then talk a little bit about your craft and take questions
which people will write on the notecards. can you tell us a little bit more about the sources of marshall's ambition for the court? was this a product of a long-term view of what role it should have in our system or is it some of kind of a madsonian ambition-checking ambick dynamic where anyone is naturally going to want to increase the standing and power and prestige of their branch or department of government? >> rick: certainly there was thought element in it. and marshall comes to the court after a decade of frenzied politics. the 1790's was our first decade of partisan politics, and because it was all brand new it was really quite mad. we wring our hands over a our politics now, but i tell people
go back to 1790's, it is just worse. it's more frenzied. politicians are killing each other. hamilton wasn't the only one to die in a dual. one of marshall's colleagues on the supreme court, a republican appointe, brock host livingston killed a federalist ninety two dual. he shot the man in a groin and he bled out in five minutes. this never came up in the confirmation. [laughter] >> rich: did he have a high school yearbook? [laughter] >> rick: so there's that partisan edge to marshall when he first comes on the court. but we have to remember his home schooling. his father gave him william blackstone's comparies on the law of england to read in their little cab p.
thomas marshall was one of the american scribers of the first edition. that was the way book publishing worked then. you got a list of people who announced ahead of time they would buy the book, they were the prescribers, and then a company would print it. so blackstone was the text in the english speaking world for the law. he really tried to summarize the english common law and explain it and organize it. marshall is learning this in the virginia back country. and this really sets the direction of his mind. >> rich: you talked about how marshall's influence was with his colleagues. so your studying of the founding and observations of life in general if you had to choose what's more important in terms of having influence over others, personality or brainpower. >> rick: it's tough with marshal because he has both.
certainly initially personality. well initially and then over the long haul because these guys are coming to washington every january to february. the way the court worked then is they had a winter session, and it came to last about a month. they're all staying in a boarding house, in the same boarding house, so they're all having their meals together. you can imagine if they really didn't get along this would be -- it would get kind of funky. and marshall is always trying to smooth rough edges if they arise. at the end of his tenure there was a justice henry baldwin. andrew jackson puts on the court. and the problem with baldwin, pretty smart but he was intermittently insane. [laughter] he missed one whole year when marshall was chief justice because he was mad.
[laughter] could you imagine? the justice won't be with us. you can't conceive of it. but when baldwin wasn't mad he was extremely difficult. he was very brickly, and he hated justice story, story returned it. there's a letter to marshall to story, and says i was with brother baldwin and made remarks about you that were not unfriendly. you can see him trying to smooth ruffled feathers. and i can see that's a container of the vessel but then the heart of it is the power of this man's mind once he fully exercised it. someone compared him to a great bird taking flight. it takes a while he flops and flounces around the ground but once he gets airborne then he's
powerful. >> rich: so a very committed federalist, tell us why you think the federalist went wrong. pound for pound they have more talent, it's hamilton's vision of the country comes closer to fruition than jefferson's and it's a rich vein that runs through lincoln and roosevelt, why do they end up losing out to the jeffersonian republicans and die off? >> rick: the war of 1812. they're the anti-war party. this included close friends of marshall's were not only anti-war they were defeatists and secession ses. they wanted britain to win and wanted to break the union up. take new england out of -- governor morris wanted new york to lead too. this is the those of you, the draftsman of the constitution.
his idea was well, it didn't work. this was an extremist feeling. when the war of 1812 ends in more or less a victory they looked terrible. the other thing is that for all of thomas jefferson's occasional wacky notions and impractical ideas he did really believe that most people would be mostly right most of the time. he was a true small-d democrat. and that i think connects him more furl firmly to what america is about than even the federalists were even their vision of our prosperity and expansion, and you know the way we would relate to each other economically. but jefferson got that political thing and it was really his most
basic conviction. you. >> rich: you start off your book with an introduction about marksal and washington, i'm struck by the indication of incredible influence of washington -- be it a fairly significant contribution to american history if you're just a mentor to alexander hamilton and john marshall, let alone weighing the revolution and becoming the first american president. how important was that relationship to marshall and have you read marshall's biography of washington. >> rick: yes, it's five volumes, i can't recommend it. [laughter] well i think he choked. because he admired his subject so, and so there's a kind of heir of too much importance that distances it. the best thing he said about
washington was not the biography, he was in congress when washington had died. is he's the representative who informs the house of it and in the course of his speech he says he was first in war, first in peace, first in the hearts of this country. he took the line from henry lee, another congressmen and revolutionary war vet. but often good writing is good borrowing. and that expresses what marshall thought first in war, first in peace, first in my heart. >> rich: so for conservative viewers wondering why should conservatives revers a man john marshall who did so much to establish or cement the federal supremacy within our system, what would you -- how would you answer that? >> rick: well marshall's view of the supremacy he's establishing
is that when a case comes to the supreme court, the supreme court decides it. they're not roaming around looking for things. they're sitting there. their role is passers. people disagree about something, they take it to court somewhere, up it comes through the system. then it arrives in their happen. and they have to decide it and if there should be a conflict between a law and the constitution, which happens only once in marshall's 34 years. he says we have to decide what the law is. so it's not maybe his view of supremacy is a little different from what we experience recently. >> rich: so a couple questions from the audience. why didn't marshall recuse himself in marbury v. madison.
>> rick: this is a great question. there's another recent marshall book that he suborned perjury in setting the whole thing up. it's complicated story but the commission that william marbury got as justice of the peace was issued by president john ad adas but the man who stamped the great seal of the united states and prepared it for delivery was john marshall. and john marshall pulled his brother james marshall to deliver the commissions. and james apparently didn't take marbury's along which is why it was sitting on the desk when the jeffersonian's came in. they're attitude was if they didn't deliver this it's not leaving the office. why didn't he recuse himself? there were a number of things where jfses would not recuse
themselves. mcculloch v. maryland which was involving the second bank of the united states marshall sold his bank stock but i did see other justices in other cases who were giving tims to their relatives based on the court's hearing. wild stuff. so standards have tightened up. >> rich: how did marshall react to jackson's resistance on the decision of removing the cherokee? >> rick: the whole jangson presidency was dismaying to him. jefferson of course they had tangled. but there was a quality of jefferson that he could get exercisedder exercised over things and then he'd leave them alone. if he lost, all right, you know he'd move on. andrew jackson never moved on. he was just had a will and a --
and marshal hoped he would not be reelected. his hope i believe was that if someone else won marshall would retire and then associate justice story would be promoted to be chief justice. and marshall even attends in that election cycle he attends the first political convention in american history which is the anti-masonic party. he is invited as an eminent person who will come to their convention. and i think he's probably vetting them to see how serious they are. he's thinking how can we beat this guy. could these people be the ones. and we hear about the anti-masonic party today and it seems like a crazy thing, but people were alarmed there was a group with secret ranks and secret oaths, and andrew jackson happened to belong to it. sort of a populist way of outflanking the populist
president. jackson gets reelected of course, and as far as the cherokee decision goes, marshall just has to -- he has to live with it. jackson would not see the law was enforced and it wasn't pressed to the final stage. the final stage would have been if samuel would sayer, he's the imprisoned commissioner to the chair agency bringing a lawsuit. wooster would have had to tell his attorneys that the decision is not being followed. georgia is not o buying the decision, therefore the president -- the court must notify the president of this and he must execute the laws. but at the same time this is happening the nullification crisis with south carolina over the tariff is coming to a boil. and will georgia join south carolina in resistance? so the missionary is leaned on
by his employers, his new england religious employers and they say look, drop this lawsuit, you don't want to split the country because of your problem. so he did. so we never reached the point of the ultimate clash. >> rich: so the question of the hour that everyone's wondering, whose side would marshall be on in the back and forth between president trump, and chief justice roberts over trump's attack on obama judge who stayed one of his immigration actions? >> rich: i can't imagine marshall tweeting. [laughter] or doing any public expression outside of his decision. he wrote letters to people. but he very deliberately did not do anything in public more than that. i think he would certainly agres
a genius who has noticed this, but yes there's politics in how judges get picked and how where they come from, and how they decide. marshall knew this better than anybody. but i think he would have tried to move the court in the direction of robert's ideal. marshall was a federalist but he was not an out there federalist. he didn't lead with liz his chi. he reigned his court in. there were a couple of times where instead of confronting jefferson as frontally as federalists would have liked, including some of his fellow justices, he steps back. he doesn't want to get the court into an open political fight with the white house. so, i think that ideal of these justices as being yes, picked by the political process but then apart from it and beyond it was something he wanted to have the
court embody. >> rich: so in the 7-8 minutes we have left i want to widen the aperture how do you choose your subjects? >> rick: i chose this one because an old friend of mine, a professor at yale law school told me to write the book. he told me to write my last book, the lincoln book. he gave me the title for that book. and i -- i thought about it for a second, and i thought that's a great idea. so -- >> rich: has he given you your next book? >> rick: no genie gave me my next book. genie has the lead and given me 3 books. my first biography was georgia washington. hamilton is a natural follow from that. i want to do governor morris for the third but my publisher said you can do adams or andrew
jackson so i picked the adams, then i went to morris. i take suggestions, sometimes i come up with my own ideas different from back to book. >> rich: why haven't you done jefferson yet. >> rick: i am always doing jefferson, he pops up in all these books, and he's important in the marshall book because he's the antagonist. and marshall is like bray rabbit, he always gets away from him. but jefferson does have a point. the small-d democrat objection that he has is a accessory point probably an unresolvable point. it's a tension in there in the system we have and we're never going to get rid of it. jefferson would be very hard to do frontally. i think of his mind as a big house with a lot of rooms and they don't all have connecting doors.
there's something kind of odd about the way he lived and thought and that would be tough to get at. >> rich: how do you research? do you research as you go, or do you sit down and burrow in for months or a year? >> rick: the latter. i spend -- my books are about 80,000 words, or 200-plus pages. so i spend a year of reading only, and a year of writing, in which i'm also reading. and the one thing that's changed over the 20-plus years is google books. if i want senator jones memoirs from the -- but i even saw -- i read online a revolutionary war veteran request. this is the only evidence we have marshall is injured in the
battle of germantown. he never mentioned it but a fellow soldier said this in his pension request. and you can go online and read this man's handwriting. >> rich: do you ever get stuck on a research question or with writer's block? >> rick: never writer's block. if i'm stuck on a research question i ask my dear friend nicole, who is phd in history, and worked for the guilder layerman institute, and she can figure out everything. the one thing the marshal book, one of the famous cases was cohens v. virginia, and i had a hard time finding out anything about the coens brothers, they had sold out-of-state lottery tickets, and virginia -- this became a supremacy case. there's nothing about the cohens in all the other biographies, and i think it's a fossilized
anti-semitism. i think albert -- did a pulitzer prize winner in 1919, and thought lottery sellers name cohen. he just dismissed them, was uncurious about them and other biographers following in his footsteps did the same thing. i wanted to know who were these people. so nicole siri found an article in the maryland historical journal from 1923 or something. the cohens of maryland, and it told me the whole family history from bavaria on. >> rich: o every day so you have a wonderful blush -- your minimalist style, 80,000 words is a substantial work. you do not write -- door stowp is that a matter of choice or style as a writer? >> rick: there's a place for those big books.
if you want to know anything or almost everything that can be known and you don't want to read the collected papers, which are volumes and volumes, that's what those books do. i'm trying to tell you the story, the whole arc of the life but focus what is the most important to these people to us. i'm interested in marshal's marriage, some of his family background, but i'm mostly interested in his career and in his cases and who the litigants were. how did this get to the court. >> rich: did the cases present a new challenge in writing this? did you ever think as you're digging into these cases this is why i didn't go to law school and become a lawyer? >> rick: that was a constant fear. i didn't go to law school. i have even less legal education than marshall had. he only had one semester at
william and mary but the professor was george with, so i guess that's good. i had worries about this and i got early guidance from knowledgeable scholars who gave me tips and pointers, and you know it was just a matter of being patient and trying to figure out what was going on. i didn't always do it. marshall's opinion on treason and the trial of erin burr, it's huge. it seems there's a lot of wheel spinning in that. he goes through the english sources on the law of treason and into it, and into it, and sense the basic question is there was no active war upon the united states proven, why does he have to -- that's the nub of the case why is he doing all
this other stuff. but that's just a layman objection. >> rich: ladies and gentlemen, the book is "john mafertional." ladies and gentlemen please thank our guest. >> book tv has covered many boos about the supreme court and justices. if this is a topic that interests you go to our website at booktv.org and in the search bar type in supreme court book and you'll find a large archive of authors and materials. all of these programs are available to watch online. >> michelle obama is on tour onr
her best selling autobiography, "becoming" selling 215 million cops in the first 10 days. here's a recent stop in new york city. >> so i grew up in a vibrant community but as it started to become more black, you know we could see the deteruration and you could feel it. you could feel it in the school system as people were taking money out of the schools. you could see it in the attitudes of the school teachers towards us. i could see it as a young child. i was that kid who came home in second grade just all disgusted at the fact we weren't learning in second grade. i would come home, and like mom, we didn't get homework again. last night. i don't know how we're going to be prepared for third grade. this is outrageous. i was that kid. >> and your mother said i wasn't raising children, i was raising
adults. >> she taught us the express ourselves and speak our minds but to do it politely. in my early grade in kindergarten there were kids of all backgrounds and we played with each other, and we were at each other's homes. and the realtors were whispering saying get out, this is turning into a ghetto, you better run. and by the time i was in 8th grade the neighborhood was all black. so that's sociological phenomenon of white -- in communities all over the country. .