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tv   Influence of Chief Justice John Marshall  CSPAN  August 2, 2017 4:47am-5:59am EDT

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c-span 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 marshall's influence on later supreme court justice. supreme court historical society and john marshall foundation co-hosted the event. >> we're 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 they joined forces
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to celebrate the 200th anniversary of the appointment of john marshall to the supreme court. the caption of that particular evening was a rousing lecture by justice scalia about the importance of john marshall to the history of the court and the history of the country. justice scalia was a grand friend of both the marshall foundation and the supreme court historical society. i hope you will join me in just a moment of silence to remember justice scalia. thank you. so we are grateful this evening that the court chief justice robert and his colleagues allowed the supreme court historical society to continue using this courtroom for its programs. it is a gift to us, and we are grateful.
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at this juncture normally i would have a few remarks to introduce our kwigsed hosts for the evening. but it seems that chief justice roberts is on a tight schedule this evening. we are lucky to get him here. he has asked his introduction be as brief as possible. since we are so grateful to chief justice roberts to his continuing support of this society, and since he is after all the chief justice, let me just say right now it is my privilege and my honor to introduce our host for the evening, chief justice john roberts. [ applause ] >> thank you very much. it's actually my preferred introduction even when i have lots of time. i do want to note, though, the memorial drapery we have on the chair behind me and the bench in
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front of it. it does of course commemorate justice scalia's passing. it will be taken down on monday, 30 days after his passing with the court's tradition. and at that time we will also rearrange the bench chairs to reflect the new composition of the court. instead of justice scalia to my right it'll be justice kennedy. and instead of justice kennedy to my left it'll be justice thomas. and everybody's will switch from one side to another. and there will not be a chair at the far left, which is where our new member will sit. and the flags on our plaza will once again fly at full staff. but justice scalia's presence will always be felt here in this courtroom. i remember when i commemorated his 25th anniversary from the bench, i indicated he had
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arrived 25 years ago and the place hasn't been the same since. and that remains true. but his contributions and had way he shaped this institution will be the subject of historical society lectures for many years to come. tonight, though, it's about john marshall and the 215th anniversary of his becoming chief justice. and i do want to express my gratitude to the john marshall foundation and the supreme court historical society for joining together to commemorate that occasion in such a -- in such a flying way. now, if marshall were here today, i think he'd be very surprised at the courtroom, he'd be very surprised at this building and the city of washington itself. he toured the city in june of 1800 with president john adams on an inspection tour to see how work was going in establishing the new capitol before the move from philadelphia.
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construction of government buildings was underway. and president adams after the brief tour, he apparently a very good sense of weather, he left to spend the summer in massachusetts leaving marshall in charge to get things ready in washington. at the time, of course, housing was scarce and marshall stayed for sometime in the unfinished up stairs quarters of the president's future residence while it was still under construction. so he was was the first person we know of to have slept what is the white house. when he became chief justice he stayed in capitol boardinghouses. and the court met in borrowed space. when he announced the decision in marbury v. madison the court convened in the lobo of steles
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hotel. there's some confusion about where steels hotel actually stood. but at the time justice chase was suffering from gout and they moved it to the hotel so he would not have to walk to the capitol. that lasted only four years until the british burned the place down, and the court went wandering again for five more years. in 1819 the great chief justice and his colleagues returned to the old supreme court chamber in the capitol building, convened there until 1860 when it made the move finally up stairs to the old senate chamber. of course the court didn't move into this building until 1935. now, as i mentioned today the supreme court sits very near where john marshall delivered his decision in marbury v.
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madison. the hotel in which he announced that decision is gone. the decision itself will remain the solid foundation of the role of this court in articulating the meaning of the constitution. when john marshall announced his decision, most governments if not all of them, consider the constitution to be a political document. marshall's decision in marbury made clear it was a legal document, that it was law. and that view in turn shaped the fu fundamental role of this court and the nation's government. that is why when you leave the building down stairs and you see the statue honoring john marshall you will also see etched in the marble from marbury and sp of his other decisions. as i mentioned, you have a very unique opportunity tonight to reflect on the great chief justice. and guiding you in those
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reflections will be this evening's speaker professor jeffrey rosen. profezzer rosen has taught at the george washington university law school since 1987. he's the author of many books and publications. his latest a biography of justice louie brandice is due out later this year. i have it from inside sources it'll be out early summer. and i also assume it will be available in the supreme court society gift shop with the appropriate discount for members. among his other pursuits professor rosen has served as quote, a constitutional consulitant, end quote to the television show "law and order." so if you see any misinterpretations of constitutional doctrine, you
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know they forgot to ask him. despite all this he still finds time for a full time job as the chief officer of the national constitutional school of philadelphia. tonight he'll provide insights into the 10ure of the great chief justice john marshall. as was mentioned i'm sorry the sort of family obligations that comes with two teenagers prevents me from staying for the presentation. but i know you're in for a wonderful evening. but please join me in welcoming professor rosen. [ applause ] >> ladies and gentlemen, it is wonderful to be here. i'm so honored that chief justice roberts took the time to introduce this magnificent
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occasion. i'm also honored that the supreme court society and the john marshall foundation have invited me to celebrate this occasion, namely the 215th anniversary of the great chief just's appointment to the supreme court. i bring you greetings from the center in philadelphia. this remarkable institution sits right on independence mall across from independence hall and also across from the old city hall where the supreme court sat until 1800. the national constitution center has an inspiring charter from the u.s. congress to disseminate information about the u.s. constitution on a non-partisan basis. and that is a mission of which chief justice marshall, who brought together federalists and republicans would have been proud. i'm also delighted to report that we're working with the john marshall foundation on the
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following exciting project. you know down stairs there's this beautiful statue of the great chief that chief justice roberts referred to. it was cast by a sculptor, story, who was the son of joseph story. two castings of this statue exists. one is at the u.s. court of appeals. the other is behind the philadelphia art museum. i'm happy to report the philadelphia art museum is happy to work with us to move the statue to the national constitution center. and i cannot imagine a more fitting symbol for visitors across america and across the globe as they visit america's only museum of the u.s. constitution and also our national center for bipartisan constitutional education.
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all right, with those introductary words i now have to confess i require my constitutional reading glasses and i begin reflections on a topic i think we can call marshall have jefferson, taft and -- why did i choose this unusual pair? well, let's set the stage by remembering the great chief john marshall was nomflated by president adams january 20th, 1801. since marshall just happened to be in the room at the time he got the letter, the president offered him the vacancy. marshall accepted on the spot. this confirms that in lifetiming is everything. marshall was confirmed by a senate a week later on january 27th and he took office on february 4th. although he continued to serve as secretary of state at adams
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request. adams famously said my gift of john marshall to the people of the united states was the proudest act of my life. and marshall has been widely praised for transforming the supreme court into what his biographer john edward smith calls a dominant force in american life. as all of us know well marshall established a judiciary at a time -- under marshall's leadership there were few dissents. indeed it was marshall's skill in establishing personal relations among his fellow justice that helped cement the
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court's authority. as well as by instituting administrative reforms such as abolishing the practice, he was able to persuade other justice of different ideological persuasions to join him in a series of unanimous opinions. so it was a weak institution compared to congress by the president. by the time he left, the supreme court was a significant player in the american scheme of government. so all of this is familiar and well-known to us all. and i thought for an occasion as distinguished as this, i should at least try to say something new. so a few years ago in a book, i argued that marshall's clash with thomas jefrferson continue to set the tone today. i just finished another similar
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riveting book. this is called american profit and will be published on june 1st. i'm so pleased to see that great biographer in the audience and i understand frank gilbert is here as well. the book argues he was the greatest critic of business since his hero. also this new book argued that marshall was taft's hero. that's why i'm eager to compare the clashes and compromises of these two great teams of constitutional rivals. marshal and jefferson following thesis. marshall and jefferson were personal and ideological
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opponents who privately derided each other in colorful terms. jefferson accused marshall of twisting and marshall resip tate reciprocated by calling him the great lama of the mountain. something to be from looking down from the top of the mountain. marshall became the most successful chief justice in american history because of his ability to win over jeffersonian justices through compromise and leadership. by the same token, taft and brandeis were personal and ideological opponents. brandeis exposed a coverup by taft in a congressional hearing and taft reciprocated by saying he is a muck raker, an emotionalist, a socialist prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination
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but who is utterly unscrupulous in method in reaching them. sounds like the great lama of the mountain. nevertheless, taft was a highly successful chief justice because he shared marshall's goal of what he called massing the court. ultimately, persuading brandeis, holmes and other justices to join him in a series of unanimous opinions. so after taft is appointed chief justice in 1921, he graciously buries the hatchet and invites brandeis to serve with him to explore ways of increasing efficiency of judges which was a topic that interested them both. the overture succeeded. taft reported that brandeis and i are on excellent terms. he can not be any more cordial to me than i am to him. the honors are easy. brandeis reported that all went happily in the conference room with taft. when we differ, we agree to differ without any ill feelings.
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it's all very friendly. both marshall and taft were successful in part because of their temperaments. joseph story said he loved marshall's laugh which was too hearty for an intriguer. holmes praised the laugh to his friend. he said we're happy with the present chief. he is good humored, laughs readily and does keep things moving. both marshall and taft recognized the importance of the team dynamic. marshall persuaded his colleagues to live together in the same boarding house where they would discuss cases over a hog's head of marshall's favorite drink. once in that unfortunate attempt at restraint, they resolved to drink on days it rained. he observed on sunny days, our jurisdiction extends over so large a territory, that the doctrine of chances makes it certain it must be raining somewhere. am i allowed to share the fact of the john marshall society presented the chief justice with
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a commemorative bottle. and he assured the group that it would only be used for official purposes. if the unanimity rate rises now, we can attribute it to that. taft, too, cultivated the certain team dynamic. he was responsible for the building of this supreme court building. where the justices continue to discuss cases over a hog's head or at least over a lunch. marshall and taft were successful because of their willingness to compromise. they filed few dissents. marshall wrote only seven dissents in 34 years only which involved a constitutional issue. taft wrote 20 dissents in total. as a result, both marshall and taft were able to persuade their colleagues to join their shared
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vision of broadly construing national power and property rights. at the same time, marshall and taft were aided by the moderation and compromises of their ideological antagonists. jefferson acquiesced in marshall's review because of his belief that we are all republicans, we are all federalists. and the jeffersonian brandeis acquiesced because of their shared concern for the institutional legitimacy of the court. at its heart, the success of marshall and taft is a tribute to their moderation and willingness to compromise but it was shared by jefferson and his successor louis brandeis. let me see if i can persuade you. marshall and jefferson were
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distant cousins who had circled each other during the years leading to jefferson's election. the election of 1800 was a clash of political principals more than a clash of personalities. the federalists led by adams supported a strong federal government to preserve the union. feared unchecked majority rule. hoped that independent federal courts would check democratic excesses, which the federalists included criticism of adams. the republicans were suspicious of power and the courts. believed in states' rights and local majorities and insisted disputes should be settled by elected legislatures rather than unelected judges. in november 1800, the election is thrown into the house of representatives after jefferson
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and his running mate finished in a tie with 73 electoral votes each. rumors spread of a federalist plot to deprive jefferson of the presidency and to install marshall who was then serving at secretary of state. adams, recognizing the judiciary would be the last strong hold, unexpectedly appointed marshall to the supreme court on january 27, 1801. the lame duck federalist senate confirmed him just a few days later. the lame duck president and congress worked to consolidate the power of the federalists in the judiciary before it was too late. congress created a series of new judicial offices to make midnight appointments and reduce the size of the supreme court to deny jefferson the chance to make appointments. on february 17, the house elected jefferson as president on the 36th ballot. on march 1, three days before jefferson's inauguration, adams stayed up late signing the knew judicial, which was notarized. after taking the only of office, jefferson behaved with moderation. he did not attempt a complete
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purge of federalist office holders but only those guilty of misconduct or appointed after adams knew he had been defeated. he invited marshall to administer the oath of office. so what were the constitutional clashes between the federalists led by marshall and the republicans led by jefferson? marshall, like jefferson and adams -- forgive me. marshall like washington and adams was a skeptic of direct democracy and preferred checks and balances. federalists feared mob rule and framed the constitution against what some viewed to be the rising tide of anarchy. because marshall favored nationalism, he was not a federalist. he was critical of the acts of 1798 causing northern federal i haveists to criticize him.
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above all, marshall was an ardent nationalist who revered washington. jefferson had criticism of adams in the late 1790s. marshall cultivated his nationalist political views while fighting for the army in the revolutionary war where he developed what he famously called his habit of considering america as my country and congress as my government. more over, according to smith, marshall was not a reactionary. he believed in representative government. vigorously defended a free press and recoiled from the aristocratic pretensions of some of his fellow federalists. after serving as a congressman and as secretary of state, he soon became the nation's most prominent federalist. he led the party's more moderate wing.
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by contrast, jefferson, a stallwart virginian was the head of the rival republican party. the republicans emphasized majority rule, deplored checks and balances built into the federal system and sought to employ their power at the ballot box on behalf of debtors. the producing many rather than the few. brandeis, who was content to be called a jeffersonian had a favorite book. it was "jefferson." he was so enthusiastic about it that he suggested it should be distributed to every school child in kentucky. he was a foe of the new deal. he praised jefferson for attacking the powerful federal judiciary as a haven for monopolists and the exploiting classes. he saw the supreme court under the leadership of marshall as an instrument of centralization and marshall wrote to william johnson in 1823 that he feared no danger more than, quote, the
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consolidation of our government by the noiseless and, therefore, unalarming instrumentality of the supreme court. jefferson deployed marshall as crafty who sophisticates the law to miss own mind, construing our constitution to a general and supreme one alone. jefferson was a foe not of capitalist but of monopoly. and in his hate of monopoly, jefferson was not alone among the american founders. the boston tea party which sparked the american revolution was a rebellion against the monopoly held by the east india company. after the constitutional convention, jefferson expressed grave concern about government granted monopolies of trade. he complained to james madison that the constitution contained no bill of rights protecting among other basic liberties
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restrictions against monopolies. jefferson supported the following constitutional amendment. monopolies may be allowed to persons for their own production in literature and their own inventions in the arts for a term not exceeding a certain number of years but for no longer term and for no other purpose. madison responded that the federal government should have the power to grant charters of incorporation. but it was voted down on the ground it might lead to monopolies. of every sort as george maysson put it. madison resisted the constitutional amendment proposed by six states and supported by jefferson that would have provided that congress do not grant monopolies or erect any company with advantages of commerce. in his argument justifying the bank of the united states, alexander hamilton invoked the argument that these states believe that congress had inherent power to create trade companies or corporations but believed that the power shouldn't be used to grant exclusive privileges. nevertheless, jefferson insisted
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that hamilton's bank of the constitution because the notion that congress had implied powers to charter corporations clashed with the tenth amendment. the nationalist marshall rejected this argument in the case. marshall's biographer james bradley thayer was brandeis' favorite teacher. in law school and the great advocate of judicial abstinence. in the short biography of marshall, he described jefferson's excitement in 1810 when he concluded, we have a chance of getting a republican majority in the supreme judiciary. he expressed his confidence in the appointment of a decide republican, with nothing equivocal about him. jefferson suggested judge tyler of virginia, reminding president madison of marshall's hostility to the country. madison appointed joseph story
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who jefferson called a pseudo republican. story became marshall's most enthusiastic supporter. how did marshall win over not only story but other jeffersonian justices? marshall's appealing personality had obvious benefits. he had a knack for remaining friends with political opponents. patrick henry crossed party lines to support him during his race for congress because of their mutual affection. because of marshall's pleasant temperament, he remained on good terms with justices from samuel chase to william johnson. as a result of his ability to reach political compromises on the court, marshall's chief justiceship was marked by a high degree of unanimity. accompanied by little dissent. during his first ten years, wrote 90% of the opinions. the exceptions were cases issued when he was in circuit in which he had a personal interest and the rare case when he dissented.
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marshall would modify his own opinions in order to gain approval for his opinions for the court. he didn't dominate the court's thinking by force but instead established and maintained an atmosphere during conferences that was conducive to compromise. just as he won over his political adversaries, he also won over his fellow justices who were mostly jeffersonian through his judicial temperament and commitment to compromise. william johnson, the first dissenter, because he wrote the court's first recorded dissent, more often than not agreed with marshall. in 1804, jefferson had appointed johnson to the court for the specific purpose of countering marshall's growing influence on the court. and in a series of increasingly urgent letters in 1822, jefferson kept urging johnson to dissent. in nearly every case. but johnson disappointed jefferson by supporting marshall 96% of the time.
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and even when he dissented, johnson was apologetic in a case where he wrote, i have the misfortune to dissent from the majority of my brethren. in response to jefferson's prompting to reinstitute separate opinions, which he thought were a means of transparency and would prevent the justices from concealing their true views, johnson agreed to try to increase his issue ing separate opinions. he also defended heis joining o marshall in important cases. he asked the president to tell him in which cases he erred. johnson grew to be under marshall's spell. when patterson passed away, livingston was appointed. a moderate republican, leading expert on commercial law to the bench. in 1807 when congress created an additional seat to handle cases from new states like ohio and kentucky, jefferson appointed thomas todd who was the chief
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justice of the kentucky supreme court and a staunch republican. all three, johnson, livingston, patterson or jefferson appointees, each of them becomes a valued contributor to the jers prude jurisprudence of the marshall court. they fall under marshall's spell. under his leadership, they come to view the court as an institution and have their contributions reflected silently in the unanimous decisions the chief justice announced. despite jefferson's best efforts, the court became what one author called a band of brother under marshall's leadership. as hobson summarizes the golden years of the marshall court, in a series of near unanimous decisions, the supreme court affirmed congress's implied power, broadly interpreted commerce, struck down state laws that conflicted the constitution against laws impairing the obligation of contract, a certificated broad jurisdiction to decide cases arising under
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the constitution and laws of the united states and sustained its appellate power. over state judiciaries. marshall's constitutional vision triumphed. marshall won over the justices not only with drink but with moderation. as larry cramer, a previous lecturer to this series, explains in his article understanding marbury versus madison, they embraced jefferson's conception of judicial review, the departmentalist conception, rather than judicial supremacy. as cramer describes it, the modest conception argued that courts had a role to play in resolving constitutional disputes. the people had the ultimate authority to enforce the constitution and to interpret it. the courts as the people's agents acted to supplement and assist the people who retained primary responsibility for constitutional interpretation and enforcement. an opposing view associated with more radical republicans
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questioned the power of judicial review arguing that the people appointed legislators as their agents to pass laws and that therefore the constitutionality of the laws was a question between the people and their representatives. by contrast the theory of deapartmentalism embraced by marshall was a combination of these two republican theories. each department or branch of government was entitled to offer its views on the constitution. if disputes arose, they do decide among competing interpretations through the democratic process. the judiciaries interpretation was not the final word. served as a reference point for further deliberation and public debate. by contrast the modern understanding of judicial review in which the courts have the final and exclusive authority to decide constitutional questions emerged in the 1790s and was advocated by conservative high hamiltonian federalists who were
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looking for ways to strengthen the national government and encourage citizens between election days to defer passively to constitutional authorities. the election of 1800, cramer argues was a referendum on constitutional authority with the role of the court among its central issues. the republicans landslide victory suggested the people had rejected judicial supremacy in favor of popular constitutionalism. in debating the repeal of the 1801 judiciary act, a few republicans even questions the existence of judicial review in any form. president jefferson was not among them. he accepted this more moderate departmentalist theory and did not reject judicial review outright. after the election, realizing they were about to lose control of only branch of -- the two branchs of government with any power, the federalists tried to lock in control of the third branch as a possible bullwork of national power. part of the strategy was marshall's appointment.
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and march shal acknowledged and accepted this responsibility. when faces with marbury and madison, marshall decided to make a statement with the goal of getting judicial review into the record to reflect a movement to delegitimize it. marshall believed in judicial supremacy, in the opinion he conspicuously shied away from saying anything that could be read to enforce such an idea. instead as cramer puts it, he carefully used comfortable language and justified judicial review in terms that republican moderates like jefferson could not only accept but with which they agreed. by appearing to rule against marbury on behalf of madison, marshall confounded his political enemies. in other words, marshall never claimed the authority to interpret the constitution rested exclusively with the court. he never claimed it was bound by the court's interpretation. he avoided the question of enforcement if congress chose to
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ignore the decision. though jefferson was vexed by the lecture, cramer said he has nothing to say about the court's discussion of judicial review. it was here that marshall's compromising strategy prevailed. jefferson was not stupid as cramer concludes. he was perfectly capable of appreciating that other uses could be may of judicial review but he also was not opposed to it not in the modest form. presented by marshall in marbury. having laid down this moderate marker for judicial review, marshall advanced his nationalist review through judicial restraint. marshall managed to assert nationalistic ideals throughout his tenure on the court. he delicately expanded federal and at the same time judicial power by declining to exercise judicial power in a heavy handed manner. mccullough which upheld congress's power to charter the bank displayed marshall as
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belief that judicial authority could best be embraced by deference to the democratizing forces of national sovereignty and conversely the cause of national democracy is best served by a strong but restrained judiciary. throughout his tenure, marshall not only interpreted the commerce clause, he used contract clause to protect property interests. and to strengthen the union by hashnessing the creativity of entrepreneurs. in the yazu last case, he established the starting point for a series of contract clause decisions. one held that the college's charter qualified as a contract between private party with which new hampshire could not interfere, by attempting to change the privately-funded
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institution into a state entity. aside from its economic impact, few cases better illustrate marshall's ability to bring his colleagues together. the case is initially argued, you have washington siding with the chief justice. todd and duvall support the new hampshire legislature. the others are undecided. rather than expose a divided course, marshall held off on announcing a decision after the recession. the three undecided justices come to his position and the chief justice exerted no pressure on them directly or indirectly but they absorbs his notion of unanimity and ultimately flocked to his cause. i mention that marshall had one constitutional dissent during his tenure. that was from 1827. it was a contract clause opinion. it was one of the rare instances he was unable to convince his colleagues to join him. ogden examined a new york bankruptcy statute which absolved debtors from obligations.
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once they sur rendered their assets. the question was whether state bankruptcy laws could modify private contracts. four justices agreed that the new law was needed for a new age. marshall, citing the text of article 1, section 10 and the contract clause, argued one key feature was to guarantee the integrity of contracts made between rational, moral, responsible individuals. it was his overriding belief in contracts the basis for american individualism rooted in natural law reasoning which caused him to dissent. for marshall the duty of the court was to preserve the rights of contract whether against state government as in fletcher or individuals who reneged on their promises as in ogden. in the later years and with the addition of new justices, jeffersonian and jacksonian appointees began to disrupt it by increasing dissents. overall, there was still about
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one dissent out of nearly 25 cases during the marshall court. the lowest percent average in the court's history. johnson and livingston wrote almost 60% of the 52 total dissents. marshall's emphasis on the importance of unanimity endured long after he left the court in 1835. in fact, it is his most enduring legacy. though the rate of non-unanimity doubled under chief justice tawny, until 1941, the rate of dissent was constant at less than 10% of the opinions. this was partly due to the traits and leadership of chief justices who were inspired by marshall and who succeeded him like chief justice fuller, an excellent social leader blessed with conciliatory and diplomatic traits or chief justice white blessed with an ability to mend fences.
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and reenforce consensus norms in the court. perhaps most successful chief in promoting consensus after marshall was the legendary consensus builder, william howard taft. like marshall, taft was both a skilled leader and skilled administrative reformer. like marshall, taft encouraged unanimity in practice by acquiescing in opinions with which he did not fully agree. like marshall's court, taft's court was cohesive. 84% of the opinions were unanimous. 7% of the opinions were issued with a dissent. taft idolized marshall who he called the greatest judge that america or the world has produced. taft's judicial philosophy was influenced by his view of himself as a disciple of john marshall and alexander hamilton. like marshall, he was a conservative nationalist. he called himself a progressive conservative who viewed state
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regulation suspiciously, championed the national government and saw a powerful judiciary as a bulwark to protect. from 1922, taft endorsed marshall's nationalistic jurisprudence by upholding power. under the commerce clause. as chief, he held with holmes, but the commerce clause must be applied to the real and practical essence of modern business growth, sustaining laws ranging from the packer and stockyard and grain and futures act to the motor vehicle theft act. i wonder how well that one worked. like marshall, taft deferred in important cases to congress's power to regulate the economy. although taft announced in an early conference of the justices that he had been appointed to reverse a few decisions and he said he looked at old man holmes when i said that, he soon joined holmes in dissent in the 1923 case atkins versus children's hospital where the court struck down a federal minimum wage law for women.
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in the atkins case from which brandeis was excused, justice southerland held freedom of contract can only be held in exceptional circumstances. taft was devoted to freedom of contract. he served as chair of the national war labor board in world war i. it's not the function of this court to hold congressional acts invalid because they are passed to carry out economic views which the court believes to be unwise or unsound. that sounds like justice holmes. in fact, it was chief justice taft dissenting in atkins. taft believed that he had been overruled in the case which brandeis argued. and he insisted on the sanction
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at this time of stare decisis. by contrast, in a case called bailey against drexel furniture in 1922, taft struck down a federal trial labor tax law which taxed businesses employing children under the age of 14. for taft, child labor tax was not in fact a tax but an impermissible attempt to regulate a subject matter forbidden bit 10th amendment. he quoted marshall and mccullough. should they adopt measures prohibited by the constitution to say the act was not the law of the land. taft failed to include the entire quote from marshall's opinion which explained that when the law is not prohibited and is calculated to affect any of the objects entrusted to government, then a judicial inquiry into the law's necessity treads on legislative ground. mason, taft's biographer and brandeis' writes that the opinion would have made the nationalists, chief justice marshall, turn over in his grave. what's remarkable about the bailey case is that brandeis joined it. taft's ambition to mask the court was so successful, he
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persuaded holmes and stone, the usual defenders of the federal power, to join a unanimous court in the decision suppressing their likely disagreement. brandeis' decision was significant. since he had voted to uphold a federal child labor law in 1918 before taft joined the court. during taft's early years it was typical for justices to write on slip opinions, i do not agree but shall submit. taft's leadership style consistently and directly emulated that of marshall. he was a respect and well liked leader, an effective chief who won the respect, admiration and friendship of his fellow justices. taft believed an important task was to promote team work to give weight and solidarity to its opinions. as taft explained, i don't approve of dissent generally. for i think in many cases, where i differ from the majority, it's important important to stand by
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the court and give its judgment weight than to record my individual dissent where it's better to have the law certain than to have it settled either way. taft also criticized dissents as mere expressions of egotism. and held that it was much more important to say what the court thinks than say what any one thinks. taft would modify his own opinions to reach the same conclusions as his colleagues. in wisconsin and illinois, from 1929, taft worked for a summer on an opinion advancing a broad theory of federal commerce power but he agreed to suppress his own views. as marshall was able to bring the jeffersonian justices to join the opinions of the court, so, too, was taft able to win over brandeis to join unanimous opinions and to withhold dissent. taft as i mentioned had vigorously opposed his nomination in 1916. his opposition to brandeis was personal and philosophical
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focusing on his ambition to be chief justice and the grudge he nursed about the affair which was a hugely significant dispute about the firing of one of roosevelt's partisans, a conservation official who he accused taft of lying in a congressional hearing. the philosophical differences were as stark as those between marshall and jefferson. justice taft's hero was marshall. so in my new book -- did i mention it's coming out on june 1st? [ laughter n ] . i argue that brandeis was the greatest critic of size of government since jefferson himself, and i can't resist giving you a little excerpt. it will give you a idea of the
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magnitude of the cause of wing him over. brandeis served from 1916 to 1932. there will be a wonderful lek su tour in the fall. it's as distinctive in the 21st century as in the new deal era. at the same time, brandeis embodies a bipartisan traditional situation. from tea party and libertarian conservatives to occupy liberals. namely, he was a defender of personal and economic liberty and a foe of centralization in business and government. the states fulfilled his jeffersonian belief that small-scale communities were most likely to satisfy human needs and to allow citizens to develop their faculties to use his beautiful phrase in the whitney case, through the riggous self-education that brandeis thought was necessary for pull participation in
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american democracy. at a time of intense polarization between conservatives and libertarians who prefer small government and free enterprise and liberals and r progressives, brandeis is the historical figure who represents and blends the ideals of both sides of this crucial debate. he endorsed the jeffersonian eye dials of small government and local democracy, but he applied those ideals to uphold regulations that retained the accesses of big business and monopoly. he has a vision of unity for our divided age. like jefferson, brandeis believed that the greatest threat was an uneducated citizenry and that democracy could not survive both ignorant and free. and because of and were dice's pragmatic sense of limitations, he believed that only in small scale businesses and communities could individuals master the
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facts that were necessary for personal and political self-government. for this reerngs as a supreme court justice, he genuinely championed deference to state legislation. except as to the first amendment and fourth amendment. in those cases he became the most prescient defender of civil liberties of the 20th century. brandeis was sympathetic to jefferson's views and economy and developed the distinction between merchant bankers who lent their own capital for productive enterprises and those who underwrote risky investments for what he called "other people's money." brandeis' vision in seeing the conservation problem which came up after the disappearance of freeland, his far-reaching mind which brandeis considered more cultivated than lincoln. he was a tough grader, and with
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his conviction that with time and education, citizens would have as little need of government as possible. so brandeis is often painted as a progressive and a defender of government regulation. i'm trying to resurrect the deeply jeffersonian roots of his thought, which make him, i think, the greatest heir of jefferson in the 20th century. he was a defender of state's rights. and taft, a marshall yan defender of power. their policy views diverged. tapt wanted to prosecute the banks. theodore roosevelt wanted bodies to oversee them. they shared a devotion to interpret the constitution in light of changed circumstances. brandeis, of course, was the
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most important advocate of interpreting the constitution in light of new technologies of the 20th century, which makes him the greatest prophet of free speech of the 20th century. but it's surprising or i was surprised to learn as i began my work that taft like brandeis was not an originalist. he believed, too, that the court ace highest and most useful function involved the translation of legal principles to meet new conditions. the idea, as taft put it, that judges should interpret the exact intentions of those who established the constitution was the theory of one who does not understand the proper administration of justice. frequently, new conditions arise, which those who are responsible for the written law could not have had in view. and to which existing common law principles have never before been applied. and it becomes necessary for the court to make new applications of both. as a result, taft wrote, there will be found a response to sober popular opinion as it
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changes to meet the exigency of social, political and economic changes. brandeis struck very similar notes in a talk called "the living law", where he declared that post-1912 decisions referring to maximum hourly laws for women is a realization that no law can be underis stood without a full knowledge of the facts out of which arises and to which it is to be applied. but the struggle for the living law has not been fully won, he said, as evidenced that the fact that the loughner case had not been overruled. for brandeis, the remedy came as always in self-education. lawyers and judges had to be trained in the facts of modern life, by the study of economics and sociology and politics. escaping from the specialization of corporate lawyers, brandeis held up instead the model of what he called the all-around lawyer, trained in small communities, representing rich and poor, employers and
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employees, who took some part in political life. and brandeis concluded that our greatest justices, marshall, kent, story and shaw, secured this taking as had alexander hamilton, whom brandeis called an apostle of the living law. brandeis might have been describing himself. by praising marshall as one of the greatest judges, the jeff sown yan brandeis was endorsing marshall's pragmatic notion. as mason writes, both brandeis and taft advocated knowledge by lawyers of economics and sociology. brandeis believed that the awareness of a factual basis of social action would stimulate judicial self-restraint. lawyers could carry on their sacred mission of preserving
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those institutions without which america could not long survive, based on the fact that the constitution rests on property. taft and brandeis were able to join together on many opinions despite their very competing judicial philosophy. like marshall and ogden, he concurred with the notions of holmes and brandeis as to the importance of lessons learned from economics. he praised two of brandeis's opinions, involving railroad companies to dismiss claims to land valuations and in turn, brandeis embraced the consensus of the taft court which established among the justices expectations of reciprocity. there's a limit to the frequency with which you can dissent without exasperating men. you may have a very important case of your own as to which you do not want to antagonize on a
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less-important case, et cetera, et cetera. for these reasons, some scholars have argued that from october 1921 to july 19 29, taft wrote 249 decisions for the court. his last was not jurisprudential. his role as supervisor of federal courts throughout the country, marshall was a great administrator and taft would have been pleased when after his death, augustus hand described him as the best since john marshall. after taft left the court in 1930, the number of unanimous decisions declined and the number of dissents increased. but it wasn't until the 1940s that the consensus norm utterly collapsed. namely because justice stone of
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of of and the change of the docket from mandatory to discretionary review by the act of 1925, which was a task that taft had championed. the act of '25 represented a fundamental transformation of the role of the court. before the act, it was a tribunal of ultimate resort. it was the highest and last source of appellate review. but the act's sharp constriction of the court's mandatory appellate jurisdiction completely overrode this obstinate conception that the court was to be the vindicator of all federal rights, and the act's extraordinary enlargement of the court's discretionary jurisdiction expressed a profound recharacterization of the court's function. marshall died on july 6, 1835,
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having outlived jefferson by nine years. according to justice story, his final0l words were, "prayer fo the union and strength and depth and comprehensiveness of mind." as written in his eulogy, it would be difficult to name his superior. even the gymlet-eyed justice holmes, scentic and worshipper could agree. as michael gearhart, who is the national constitution center's superb psycholo supe supe superb scholar. in spite of the fact that most did not share his ideology. i can't resist noting as i close that the national constitution
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center has inaugurated another project of which i'm convinced marshall would have enthusiastically approved. we have brought together the federalist society, the leading conservative and libertarian lawyers organization in america and the american constitutions s society to create the best interactive constitution on the world-wide web. scholars nominated by both groups are writing about every provision of the constitution, and they begin by drafting a common statement, describing interest areas of agreement and draft two separate statements describing areas of disagreement. these common statements are like marshall's unanimous majority opinions and you can have confidence that every word in these statements is one that both sides can accept. by contrast, the separate statements are like the jeffersonian dissents. i am thrilled to report that the college board has decided to make this remarkable new tool a
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centerpiece of the ap exams. and i encourage all of you to check it out and to learn from it at constitution center.org. we think it has the potential to transform constitutional education in america. the greatest tribute to marshall's enduring influence is not only that he won over his jeffersonian colleagues on the court, he also inspired future chief justices, such as taft, to go on to win over their ideological opponents, including brandeis, the greatest jeffersonian of the 20th century, by exhibiting a similar willingness to retrastrain the expression of personal views for the sake of institutional harmony. there are so many famous tributes to marshall on which i could close. thayer in his great biography quotes daniel webster, for the
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prevalence of sound constitutional opinion that held the union together. thayer and webster attributed this to a large, sweet nature which all men loved and trusted, capable of harmonizing differences and securing the largest possible a cooperation amongst discordant associates. the most powerful and meaningful tribute to marshall comes from chief justice hughes, marshall's preeminence was due to the fact that he was john marshall. thank you so much. ñ
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>> thank you, professor rosen, for an extraordinary lecture. how he could possibly get that much information into 50 minutes is astounding, and thank you for the reminder that our court remains a tool for bringing harmony out of dissonance. so we thank professor rosen for his extraordinary, careful scholarship and for terrific lecture this evening. about our great chief justice, john marshall. could i, we have a number of descendants of the great chief justice here this evening. could i ask all of the descendants to stand so that we can welcome them a special
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welcome? [ applause ] the society appreciates the contribution and participation of the john marshall foundation, and particularly its president, the reverend caroline smith-parkinson who will have a few comments at this time. >> we are so grateful to chief justice roberts and to the supreme court historical society for your generous and gracious hospitality as to we gather to celebrate this anniversary of chief justq8le john marshall. it's been a pleasure and an honor to partner with you in co-sponsoring this event tonight. and to hear jeff rosen's really
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challenging and provocative words for us in the midst of the political campaigns that are going on right now. and i won't say anymore about that. the mission of the john marshall foundation is to raise awareness to the great chief justice legacy. what he believed in, his contributions to the formation of our country and his passion for the rule of law and the spra separation of powers. we believe that education is the key to preserving the legacy of the great chief justice, and our focus on supporting men and women who are teaching civics, american history, government and political science are evident in the programs that we have developed and the organizations with whom we partner. both the constitutional center and the supreme court historical
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society. i would hilike to very quickly k the members of the john marshall foundation board to stand, the members of the junior board, if you all would stand, please, judge? judge. [ applause ] and i would also like to ask the members of the supreme court historical society to stand. so we may say thank you to you. thank you very much. [ applause ] now marshall enjoyed his madeira very much. i don't know if there is madeira downstairs but i do know there are other things we may eat and drink and enjoy each other's company. thank you. [ applause ] >> just a couple of closing items. signed copies of professor
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rosen's recent writings are available in the supreme court historical society gift shop, which is downstairs on the ground floor. there are also signed copies of justice breyer's new book about the world and justice sotomayor's auto biography there. the gift shop will remain open throughout the row sepeception encourage you to visit it. there are all sorts of treasures that lurk there. as for future activities of the sme supreme court historical society, the 2016 lecture series will begin in may of this year, and all members of the society should receive invitations for that series by the end of the month. you can find our reception this evening in the east and west conference rooms, which mean you turn right as you exit the courtroom. and we encourage you to join us
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for additional good times. so, with that, ladies and gentlemen, we thank you again for being here for a great evening of information and inspiration. and we ask that we adjourn at this time. and proceed to the reception. thank you so much. [ applause ] c-span's cities tour takes book tv to tacoma, washington as we explore its rich history and literary culture, located on the puget sound, tacoma was chosen in the 19th century at western terminus of the northern pacific railroad. saturday at noon eastern on book tv we'll travel the city, talking to local authors, including tonya irsen, author of
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"god in captivity." she'll share about faith-based programs in prisons. >> there's a lawsuit, a big case against prison fellowship ministry, which is a big organization that was started by chuck colson. he worked in the nixon white house, he went to prison for watergate crimes, became born again and founded this international prison ministry. it was all of these issues, you get a tv in your cell, access to parole in this way. so americans united for the separation of church and state did sue them and the organization lost. they have to repay the state of iowa. but they kept making the argument that they're not partisan, that they're faith based. >> we'll also learn about the first african-american mayor, harold moss, as he recounts his role in the civil rights movement in the pacific northwest. his book is "fighting for dreams
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that mattered." >> you've got to stop screaming at that council because you're not going to get anywhere. now you want to get on the other side of that bench, you're going to have to calm down. and, you know, i got that from whites and blacks. and so i had to change my attitude. because i really realized that you on the other side of the bench makes the laws. >> on sunday at 2:00 p.m. eastern on american history tv, we'll visit the tacoma narrows bridge to hear about its collapse into puget sound on november 7, 1940. the bridge was considered the third-longest suspension bridge in the world. and today the collapse is used as a case study for civil engineers in the study of bridge design. >> there was no suspension bridge, anything like this anywhere like that in our part of the world, in the pacific northwest. so there was an unfamiliarity with how just a big thing like this was supposed to behave.
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so people, excited about it, there is a certain musical kind of gracefulness about a bridge like this. so people, i guess, just wanted to think it wasn't anything wrong. >> watch these programs and more as c-span's cities tour brings you to tacoma washington, saturday at noon eastern on c-span's book tv and on american history tv on c-span 3. the c-span cities tour working with our affiliates and cities across the country. warren burger was u.s. supreme court chief justice from 1969 to 1986. next, new york university law school professor, john sexton talks about chief justice burger's life and legacy. mr. sexton was a law clerk to the chief justice and later served as nyu's president and

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