tv Supreme Court Landmark Case Marbury v. Madison CSPAN October 6, 2015 12:00am-1:31am EDT
explores some of the human stories behind the supreme court's zegses. we begin with marbury vs. madison. that's next on c-span. >> all those who have business before the supreme court are admonished to draw near and give their attention. >> landmark cases. the special theories produced in cooperation with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. 759, petition. >> we hear arguments of number 18 in roe v wade. >> quite often, are ones that
the court took the unpopular decision. >> let's go through a few cases that illustrate very dramatically and visually what ofmeans to live in a society 310 million different people, who helped stick together because they believe in the rule of law. host: good evening and welcome to c-span's new series landmark cases. tonight and for the next 11 weeks we will look at 12 cases that have affected the country and the development of the court and society. tonight the cases in marbury v madison, one of the earliest cases. it is interesting because it came about between two founding fathers who developed an enmity after the election and differing views of how the country should be governed. we have guests at the table to help us discuss the case and the
history. let me introduce you to them. akhil is a yale professor and has been since 1985. us -- author of several books. also at the table, federal litigator former supreme court clerk and observer, the co-author of a book on marbury v. madison. to start, we will listen to the current chief justice talking about the importance of this case. after we hear his point of view, we would like to hear from both of you. let's watch. [video clip] >> john marshall established the court as the interpreter of the constitution in his famous decision he wrote in marbury v. madison. he said, we are in court that has to decide cases.
if in deciding a case we have to determine what the constitution means, well that is our job under the constitution. he regarded the constitution as law. that is one way our constitution is different from a lot of others. many countries that have constitutions, they are just political documents. if you have a dispute under the constitution, it is going to be resolved however they are resolved. maybe an election if you are lucky. maybe by force of arms if you are not. however political disputes are resolved, that is how they solve constitutional problems. john marshall in marbury v madison said, this is different. the constitution is a political document that sets out the political structure. it is a law and it is binding on the other branches. that important insight into how the constitution works is the secret to the success. host: that is the current chief justice on the meaning of marbury v. madison.
you wrote the book on it. what is your take on it? why is this significant? >> as chief justice roberts said because of marbury v. madison, , the supreme court is the ultimate authority on questions of constitutional interpretation and it is an important cornerstone of the system. i think justice sandra day o'connor put it very well. she said because of marbury v. madison, each of us and have constitutional rights that no president or congress can take away. that is what marbury stands for. host: give me your thoughts on why this matters. >> so, your audience has heard of judicial review. in a nutshell, it is not just the supreme court. all courts in the system have the ability to disregard the act of congress or state law, if, in a judge's view, the law is inconsistent with the
constitution. the interesting thing about judicial review is, marbury is the first case about judicial review, it actually was not that they grace before the civil war. -- that vigorous before the civil war. marbury becomes more important to later in the story. looking back, it was a more narrow decision than we remember it being. host: you tell a story to tell that has a cast of characters. as we begin we want to introduce , you to names you will be hearing throughout the 90 minutes and understand the role that they played in marbury v. madison coming to this report. -- the supreme court. let's start with the principles. john adams where was his , 1800. political career?
>> he was the income and -- incumbent president. he was the president who was elected in 1796. he served under george washington. it was the first contested residential election between him and thomas jefferson. , and underwly won the system at the time, the person with the second-most electoral college votes served as vice president, so thomas jefferson was vice president. in the course of adams' presidency, jefferson and he had a very severe rivalry developed between them personally and also between political parties they were heading. it is the first time we see the emergence of political parties in the country. in 1800, he was the embattled incumbent president. running for reelection. host: thomas jefferson decides he wants the top spot. >> you have a sitting president running against a sitting vice president and, just think,
actually, about the instability of that. in some ways, it is an assassination incentive. if the person who is a heart the vigorouslyt away is opposed to the policies of the other. these are people who work together. adams and jefferson in 1776, they are on the committee, the draft of the declaration of independence. in 1796, they run against each other as the first contested election. but it was a relatively tame affair. jefferson said, "my turn will come now, politics have become more polarized. let's not badmouth adams too much." then it became much more intense. politics have become polarized. you have the sitting president and the sitting vice president leading large camps and each one of the parties thinks that the
other one is borderline treasonous. that is the election rematch with 1796 and 1800. adams against jefferson. host: what happened? >> therein lies the tale. it is a little convoluted. you remember bush against gore. it was that kind of roller coaster ride. in a nutshell, jefferson wins the south and adams wins the north. that happened in 1796. the swing state where north meets south, today it is ohio. back then, it is new york, a slave state. the second time around, jefferson partners up with ehrenberg -- aaron burr from new
york swung from the northern camp to jefferson's southern camp. it seems that jefferson and his running mate, burr, had prevailed. there was a wrinkle. >> the wrinkle was that it was not clear if someone was running -- voting for president or vice president. they just casted their boat -- vote. the person who got the second most became the vice president. what happened was that jefferson and burr got the same number of votes. it was a tie. everybody knew jefferson was the main candidate. but then after it becomes clear they are tied, burr is not so eager to just defer to jefferson. not a majoritys
in the electoral college, it gets decided by the house of representatives with each state having one vote. what had happened in the election was that jefferson and burr prevailed against adams. the first time in history that an incumbent president has been ousted by an election. nobody knew at this point who the successor would be. but the congress also had been swept by jefferson's party and the house of representatives that was going to decide who is going to be the president, between jefferson and burr, was the outgoing federalist party. >> the lame-duck who had been repudiated! they were going to decide which of the jeffersonians gets it. >> absolutely. they are bitter and it had been a fierce campaign. we think politics is harsh and negative now, but it was nothing
compared to the elections in 1800. you have angry federalists who think that jefferson will take the country in a terrible direction and they are the ones who are tasked with deciding whether it will be jefferson or burr. it leads to great chaos. the house of representatives cannot decide because of the composition of the delegations. 37, just ally goes couple of weeks before the new president is supposed to be a nod. before jefferson finally prevails. up until that, there is great uncertainty and chaos. there were all kinds of rumors about what might happen. they may try to put a federalist in office. there was great uncertainty. and this was all in the context where there had never been an incumbent president ousted in an election before. host: trying the constitutional system.
that had been in place for just a short time. the next important principle is john marshall. unthinkable today, he held two roles. secretary of state and appointed chief justice and help both at the same time. >> he was adams' right-hand as state, and with the benefit of hindsight, we can look act and see secretaries of state often become president. so thomas jefferson was a secretary of state, and eventually hand over the president to james madison who was secretary of state. and then james monroe, john quincy adams. was a secretary of state. might be good news for hillary clinton today. but remember john kerry, he did not quite prevailed. adams -- john marshall is john adams' ally and right-hand. but he is also the new incoming chief justice.
for a month, he held two positions. there was another wrinkle with all of these conspiracies with this going on and on and the deadline. comment inauguration day they are still deadlocked? here is one possibility. maybe, under the circumstances, there is an anonymous newspaper essay that comes out. maybe the person who should occupy the white house in that circumstances is none other than the secretary of state, john marshall. john marshall is even mentioned as one of the possible people trying to put himself into this complicated situation. right as adams' administration is ending, john marshall is secretary of state. and the new incoming chief justice. >> one point that is important to emphasize adams nominates , marshall and he gets confirmed
by the senate in late january of 1801 in the midst of the presidential chaos. john marshall himself is a lame-duck appointment by the outgoing president john adams, confirmed by the outgoing federalist. host: so, the new president has a majority and congress and learns that john adams finds a way to continue his point of view within the structure by the judiciary, giving rise to this case. tell us what happens. what did john adams do? >> these are the midnight appointments. john adams, who was somewhat bitter and nursing grievances about his defeat in the election, is determined to make as many appointments as he can before he leaves office. this is throughout the federal government, whether you're
talking about states attorneys, postmasters. but with the judiciary, in particular, the outgoing lame-duck congress passes a new judiciary act to create a new level in the federal courts and 16 judgeships. they do this very late in their time. john adams is feverishly filling those posts, nominating people for them. sending it up to the help. at the same time, congress posts to theof new district of columbia, which had just become the capital in june 1800. he has a whole rash of appointments in the district. he is literally staying up late until his last day in office, getting those appointments up to the senate, getting them confirmed. and his right-hand man on the appointments is john marshall,
now chief justice, secretary of state. he is the present advised in adams on flow. thepaper -- and controlling paper flow. host: the midnight oil burnt and not all of the commissions got delivered. >> >> we can talk about it two ways. in partisan terms the , federalists lost the presidency and the senate. it is a little more complicated. what they tried to do is retreat to the judiciary as a stronghold until the incursions of the jeffersonians launch. that is the partisan line. the other way of thinking about it is just the three branches of government. you have jefferson coming in, controlling the presidency and pretty much the house and also
the senate. but now the judiciary is going to be the ghosts of enemies past, they have retreated into the judiciary and john marshall is responsible for getting all of these new commissions out to the recipients. it turns out not all of them get properly delivered. they are signed by the almost-midnight oil, as adams is about to turn into cinderella and the coach turns into a pumpkin. right before the stroke of midnight, he signs a law, his secretary of state, and acting supreme court justice john marshall signs them and seals , them. remember the proverb, delivered. -- signed sealed and delivered. but they are not all delivered. the first who pale -- failed to deliver some of these is none
other than john marshall's brother, james marshall, who is a new appointee. host: suffice it to say, thomas jefferson is not happy about the flooding of the judiciary by his political opponent. this is something that stayed with him for the rest of his life. what we will show you next is a letter he he wrote to have a dell adams, explaining his deep frustration with the midnight appointments. [video clip] >> welcome to the massachusetts historical society. america's oldest historical society. it is the turn of the 20th century, home to a remarkable collection. a quarter of a million -- million manuscript pages, 300 years of an american family experience. john and abigail adams and their descendents have their papers here in a series of archival boxes containing their correspondence diaries, memoirs, , stories of being farmers,
diplomats citizens , concerned about the future of the american government and its justice system. inside these, you can read nearly 1200 letters exchanged by john and abigail adams that tell how the revolution got transformed into a republic. one of the most interesting correspondence in the adams family was with thomas jefferson. today, we are going to take a look at one of my favorite letters written from thomas , jefferson to abigail adams. in 1804. a family tragedy wrought -- brought together jefferson and abigail adams in june 1804. she wrote to express condolences on the death of jefferson's daughter, holly. jefferson took the opportunity when he replied to remind abigail he and john adams had a
long friendship. and that, he, we never stayed in one another's way. he also for the first time spoke explicitly about the midnight appointments that had divided the pair. "i can say that only one act of mr. adams life and one only ever gave me a moment of personal displeasure. i did consider his last appointment to office as personally unkind. they were from among my most ardent political enemies, from whom no faithful cooperation could ever be expected and laid me under the investment of acting through men who work -- who had views to defeat mine." this one reads differently. often, jefferson comes across as cool and reserved. here he is somewhat different. he's speaking to abigail as an intellectual equal and he is concerned about how politics may have ruptured their friendship.
host: this enmity, or frustration, seethed in jefferson for years. about these appointments and the case. >> oh, both the appointments and the case for different reasons. they came together. in the sense of adams, within that letter, jefferson took it very personally. he had won the election, he was taking over the government, and even in the executive branch -- adams had done everything he did to pack it with federalist allies. an in-depth letters, this is what he's saying cap abigail adams. imagine what he is saying to political allies, madison, monroe, and others. he is very bitter he is inheriting a government packed
with these people that adams has been there. throughout his first several months in office in 1801, he is trying to figure out what to do. he is sort of selectively -- if he can figure out a way to block somebody or retract the appointment, he does it. he does not launch a full-scale assault. one thing, just as an example of how personally he took this, ak hil was mentioning how james marshall could not deliver all of the commissions, john's brother. the pile was too big. he left some on the table in the state department. the ones he left on the table included those of william marbury and some others who were supposed to be justices of the peace in the district of columbia. a day or two after the inauguration, thomas jefferson himself goes over to the state department and sees this stack of papers on a table, and starts
looking at it. remember, he was secretary of state earlier under george washington, so he knows how the office works. >> absolutely. he has intimate familiarity. he sees the stack of papers, realizes what they are, and he says, do not deliver these. he is determined, if there is any way to stop the midnight appointments, he is going to do so. so he personally is the one who says, do not deliver these. >> another way of saying it is, the case that we have not gotten to is marbury v. madison. in effect, it is marbury versus jefferson. madison is a placeholder. he is the new secretary of state, jefferson's secretary of state. madison is just doing what jefferson is telling him. this is a lawsuit in effect against the sitting president of
the united states. like later on, the nixon tapes case in your series. host: and marbury is a proxy for adams, so it is really adams versus jefferson. we should tell you that this story ends amicably between jefferson and adams. if you don't know this part of it, the two men continued to correspond from respective parts of the country throughout their years. they ended their lives on the same day. this is always a wonderful footnote to the life stories. ofy both died on the fourth july on the 50th anniversary of the declaration of independence, and they had come together intellectually at the end. it's great to put that in there. you write in your book that despite the fact that thomas jefferson went over to the state department, he never wanted to meyer his presidency in a debate about the judiciary. but that changed when william marbury filed suit. why? williamcember 1801,
marbury and three other individuals who drop out of the case in the popular history, but were supposed to be justices of the peace, they filed suit against madison, in his role as secretary of state. december 1801 is a very key period. it is the first time the new congress had -- was headed by a democratic republicans, as jefferson's party is known is , sitting. there is great anticipation. this is the first time the jefferson administration, in its full breadth, is getting together for this congress. and marbury and these three others file suit in the supreme court and file suit asking that a writ of mandamus, an order from the court, orders james madison to deliver these so they can take their jobs.
it is very clear, all four of them are prominent active federalists and it is clear there is a political past to this. they are taking on jefferson and the jefferson administration by filing suit. the supreme court, at that point, was far from a coequal branch of government. they had no respect, no prestige. the supreme court sits and hears the arguments and the lawyer had been attorney general in the adams administration. and then the supreme court issues an order to show cause. what that means is they are ordering madison and jefferson to justify their actions. they say they will hear the case in june of 1802. this shocked the jefferson administration.
because now, the supreme court is really sticking it to them. the supreme court is going to make them justify why they did not deliver the commission and it is going to hear this lawsuit. the jefferson allies react with a fury. host: one of the things important about this series is it is interactive. we invite participation. you can call in a few minutes from now. here are the numbers. if you live in the mountain or pacific time zones -- you can also tweet us questions. we will work those in throughout the program. cases. #landmark on the facebook page, an area where people are already discussing the case, we can work in those comments as well. another personal part of this, we should say, is the supreme
court agrees to hear it with adams appointee, john marshall. but he and jefferson also have a personal family relationship and they are political enemies. >> they are second cousins, and they don't much like each other. john marshall was a nationalist , he was there at valley forge with general washington in the revolutionary war. that army experience really predisposed him to be a believer in a central government. thomas jefferson is more of a "states rights" guy. himself mayrshall be was putting himself forward as a possible presidential alternative if there was a deadlock between jefferson and burr. marshall is the most popular federalist. john adams is no longer very popular having been repudiated. ,john marshall is the leader in
effect of the federalist party. there is a personality there. second cousins from virginia, both connected to the randolph clan. marshall's mother-in-law was the , or had been courted at least, by jefferson. there was blood there. that is another overlay on top of this. and one final thing, is marshall himself, who as secretary of state failed to effectuate the , delivery of these things. aw as chief justice, hearing lawsuit about that factual transaction, as to which he is in effect a witness. the supreme court is sitting at a trial court in what is called a original jurisdiction. there is really a question, truthfully, by today's standards, whether marshall should be hearing this case at all or if he should recuse himself. federalist,he is a
everyone is either a federalist or republican. not because he is friends with adams. but because he is a witness to the very transaction involved, and yet he has shown no indication whatsoever he needs to bow out. threatening, at least in the early stages, to issue this order host: next, you will see a little bit of his home and how they interpreted for -- interpret it for visitors. >> this just as the insight into the personality of john marshall. you can imagine this room was the first room the visitors to the house would have entered. it was used for many purposes. one of them was to house john marshall's early law practice. eventually, you would see his
office. until this time, he used to this room. this was john marshall's desk. it would have been in the office. it would have been used by john marshall to write when he was the justice. he was a long-winded writer. that would have taken place sitting right here. marshall, during his time as his supreme court chief justice, was here about a third of the year. the spot where i am standing would have been the location where john marshall would have then at the head of the table at the event that was notoriously known as the "lawyers dinners." this was a massive table that would have stretched across the
room and would have been filled with the most prominent men in richmond at that time, like patrick henry, madison, monroe, john jay, would discuss the most relevant political and philosophical topics and things being created in the early republic. over lots of food and drink, decisions as to what the country would become were laid out. host: certainly, those discussions has to do with the supreme court, society, and a egg split. in this section, we will talk about the supreme court and a few are on facebook. >> the federalist papers are a
series of newspaper op-eds published under the pseudonym of publius. it was john jay, hamilton, and madison. they were to persuade americans during the year in which the constitution, as a proposal, was pending before the country. they were trying to persuade people to vote for the constitution. later on, marshall, among others, would say that this is a good resource. it is not a secret document. ordinary people had access to this when they were being asked to vote yes or no on the document.
there are 85 essays. a federalist paper defends judicial review. it does not try to prove that judicial review is in the constitution. lots of people thought it was in it. in any court, even the state court, they can disregard a state law or an act of congress, if, in the judge's view, the law conflicts with the constitution. hamilton says, yes, it is in the constitution and it is a reason to vote for it. it is a good thing. critics said that judicial review was in the constitution and it is a bad thing because it would mean judges are too
powerful. hamilton and others said that it was a good thing and it meant the judges would enforce the constitution of of all else. -- above all else. host: supreme court justices, john marshall, william chase, paterson, cushing, and moore. the number was set at six. did they not anticipate tied vote? >> the supreme court was not as important as it became. it was in the even number. how odd from our point of view. they anticipated judicial review.
they did not anticipate it would be the 800-pound gorilla it would become. >> it symbolizes the very weak supreme court in the system of government. in washington, as it becomes the capital, you had the presidents house, the capital under construction, and no one thought where the supreme court would meet. it was that insignificant. some planning the city were raising that and could not get the intention of anybody, including john marshall. when he becomes chief justice, there is more pressure. they ended up giving the supreme court a small room in the capital that they shared with the local d.c. courts.
they are basically are away in space. >> article iii's third out of three. -- article iii is third out of three. it is the shortest article. it is a statute that prescribes the number of justices. it is not set out in the constitution. it was at six and went down to five. it has gone up to 10. fdr tried to tinker with the number to get a better set about comes from the justices. all of these are signals that, in the original constitutional vision, the court and the
judiciary generally were not as powerful as they have since become. host: we want to get one more on the table. william marbury filed the case in 1801 and it took until 1803 to hear the case because congress intervened. >> congress shutdown the supreme court. we're talking about the fact that there was a reaction of jeffersonians to the order to show cause. the court said it for resolution in 1802 and the jeffersonians swung into action in congress to repeal the judiciary act to get rid of the midnight appointments. the other thing they do is change the supreme court schedule and say they will not meet at all during 1802. they are clearly trying to get
some distance before the case in here's -- the court hears the marbury case and the expected review. it is amazing. the only time in history that congress shuts down the supreme court for an entire year. >> it is a shot across the bow and tries to give them some time to think about it. they call a timeout to psyche out the kicker. before they go to meet, the new law says you have to go back on the road. you have been committing yourself to legitimacy of the repeal law and you will have to consult with all the colleagues on the court.
remember that the supreme court, at the time, the justices have two functions. they are the highest court within the system and they also, as a collective, are riding circuits and trying cases up and down. >> the justices hated riding circuits. the roads were primitive. they absolutely hated it. >> you are away from your family. >> no prestige. you are in need basements of a not great room in the capitol building. before john marshall, the justices do not speak with one voice. individual justices say what
they think and there is not a formal recording process in which the statements are automatically published in reports. and, john jay was mentioned earlier. marshall's predecessor lost the job because he would rather be governor of new york. other justices were running for governor. it was not the plum job in washington dc -- washington, d.c. you have to spend a lot of time on the road. host: you are first among the callers tonight. >> i want you to call of -- clarify something. was this the case that decided the supremacy of the court, in terms of the ability to say what the law is?
>> we may have a bit of a disagreement on this. the classic view is, yes, the case does establish that. i tend to think that, it was pretty clear that there was supposed to be review in the system and you see it in federalist 78 with justices riding circuit ruling on constitutionality and the supreme court ruling on constitutionality. before marbury, there was judicial review that had been established. after marbury, the jews judicial -- that the judicial review is better established -- after marbury, the judicial review is
that are established. you will not find the sentence, "the supreme court is the interpreter of the constitution." that will not appear until after world war ii. the technicals of marbury is not about abortion. it is about a technical issue with the judiciary. that is the narrow reading. host: do you disagree? >> idu. -- host: do you disagree? >> i do. it is the first time the supreme court strikes down an act of congress as being unconstitutional and establishes that. it is the first time in the history of the world where the court has struck down the statute of a co-awarded branch in the national government.
it is the first time in our history when it happens and the opinion says that it is the duty of the judiciary to do. it is in the federalist 78 and people had talk about it. i think that people tend to forget that the federal judiciary had fall and into ill repute among the jeffersonians, who viewed it as a pool of federalist. the marbury decision, while the case is pending, some are saying that there is nothing in the constitution that suggests the supreme court has the power to
render a statute unconstitutional and the marbury opinion strongly repudiates that. host: we are already at the halfway point. >> i agree on the opinion of the decision and i think that the united states is lucky that we had the case come along early in the history. the bank of the united states caused a crisis to show crisis -- caused a constitutional crisis. there was also the alien sedition act with john adams that created a turmoil.
it ended with marbury v. madison. the supreme court, you walk in and you see a sculpture of john marshall. it does not leave any doubt of who is the most significant member of the court. >> david, i think oath of the things you mentioned cut against the point. people have been taught the supreme court is the ultimate interpreter of the constitution. not quite. i am not endorsing kim davis here. let's talk about the alien sedition act. john adams signed a law that made it a crime to criticize the president and he did not make it a crime to criticize the vice president.
it is a crime to criticize the incumbent. all of these rules expired after the next election. it was discussing -- disgusting. and yet, the federalist judges upheld the law. including, samuel chase, who is on the supreme court. who puts a stake through the alien sedition act? the president, thomas jefferson. he pardons everyone and is the last word. he was more in favor of liberty and the first amendment.
, the bank of the united states a cut -- the bank of the united states, a controversial issue, does not reach the supreme court until 1819. john marshall will uphold it. andrew jackson will veto, saying, you think it is constitutional. i don't think so. host: hi, richard. >> how are you? host: your question? >> i am a trial attorney and i tuned into the program for the way that it puts a human context and establishes the proxies of jefferson and marshall and the nascent authority of the court, which finally becomes clear in the dred scott case later. i want to say, "thank you."
host: dred scott will be the next one featured. i want to tell you about the partners at the national constitution center. we started a project with their help. they have been very helpful along the way and helped us go through all the possibility with the cases and helped us find resources. also, the educational materials. we have been in joining the partnership and we hope that you and us learn more about the history of the supreme court. john marshall sought to establish the supreme court for symbolism. we will return to his house and look at the change that he made that was different from the english system of the court. let's watch. >> these are supreme court
robes. this is the only surviving example of the robe. they are around 200 years old. it is made out of black silk. you can see the lapels and the sleeves. after a couple hundred years, there is some deterioration. they had been on display until the 1990's. they realized a level of deterioration and wanted to stabilize them. during this time, he makes a sanctioned uniform for the supreme court justices to where. -- to wear. black robes rather than red. it was up to each justice what they wanted to wear and many were wearing english court robes and wigs. marshall made it mandatory they would all wear black robes.
he wanted to say that this was not a show of power and they were of the people and not above. it was something he was extraordinarily passionate about. host: it is one of the many ways that john marshall thought the court would get established in society. >> there was a proceeding in 1801 and the next stage was 1803. yes. host: was it conducted the way we hear cases today?
>> the original action was marbury filing suit in the supreme court with the judiciary act, saying i can file the original action and the supreme court had to have a trial to establish the fact. they had witnesses and the former attorney general puts on witnesses. it had been a problem. the witnesses work for the government and they are suing the government. they work for james madison. he puts them on as witnesses and they are reluctant to testify. they object and think that they should not have to testify about the inner workings of the
executive branch with john marshall making very careful rulings about them testifying but not getting into internal delivery. there is a trial going on in the supreme court and there is an unusual fact of the trial, the defendant, madison, jefferson, they refuse to participate in it and show total disdain. the attorney general is in the courtroom. when he is called upon by john marshall, he refuses to participate as a lawyer at all. they are not going to dignify it.
as the trial proceeds, they eventually call him as a witness to testify about whether he knows what happens to the commissions and he strenuously objects on various grounds to testifying and john marshall makes a series of very careful rulings that are different from what you would see in the supreme court. >> the cases in public. the most important witness in the case is marshall. from a certain point of view, do not do this at home. he should not have been in the case. there is one person who knows that the seal of the united states was on the commission. that is john marshall.
james marshall, his brother, submits that the affidavit that says, "i think that marbury was one of the commissions i was supposed to deliver and i am not exact a sure -- exactly sure." >> two of the justices were not there. it took 4 to have a quorum and that led to an issue. host: how many days did the trial take place question mark >> over two days -- take place? >> over two days. by today's standards, a short span of time. at the time, the public was wondering what was taking so long. the supreme court tended to issue rulings very quickly in short opinions.
one the practices john marshall began was opinions for the court, as opposed to each justice giving a quick opinion. it was a short span of a couple of weeks and there was speculation about what is taking so long. >> they are writing an opinion, they are all wearing the same robes, he is trying to create an institution. written opinions, the constitution does not require. it has been a tradition since the marshall era. they all have the same robes and they are all trying to get a majority for a statement of reason. >> remarkably, -- >> at the dinner party, the wine flowed and he was a charming host. >> and very gregarious. he has all of the justices together and instituted a rule they can only have the wine of the era if it was raining out.
justices would report. and he said, the jurisdiction is so vast that it must he raining somewhere -- be raining somewhere. host: let's go to lydia in texas. >> i am just curious about something. doesn't the -- are you there? host: we are listening. >> doesn't the constitution take precedence over the federalist papers? i don't understand it.
>> the federalist papers may help us understand what the constitution means to the generation that decided that. the federalist papers are just a genuinely useful aid to understanding what it really meant. host: your question. >> it is on sharia law. there are two religions here that are prominent. they do not want to use their own law, like sharia. host: how does this connect to marbury v. madison? >> there is a connection. host: thank you. we do not have time to bring it into today. >> john marshall swears in thomas jefferson. they are chief justices who do not like each other very much.
here is the important thing about the robe, it does not require religion. through the folks on the benchmark were not churchgoers. mr. jefferson would want us all to understand there is no religious test for public office. when the chief justice delivers the opinion it goes down to three central questions.
did marbury have a right to his commission? >> yes, he did have a right. host: if he had a right, and the right was violated, did the law provide a remedy for him? >> yes, and marshall thinks he is very clear that the jefferson administration and jefferson have acted against the law, that they were duty-bound to give them the commissions once they were duly appointed. it is the harshest criticism of a presidential administration in a supreme court decision up to that point. host: here is the part where everyone looks to the thinking of the chief justice. if the law provided a remedy, the proper remedy was mandated were ordered from the supreme court. john marshall decided what that became historic? >> we are taking marshall's ordering of the issues. here is the first issue to
take. can john marshall sit? marshall said no, he should have excused himself. he has firsthand knowledge. oes the court have the power to hear the case? if it doesn't, it is a bunch of people in robes telling other folks what to do without authority. from a modern point of view, john marshall inverted everything to school a -- score a bunch of political points against jefferson. at the end of the day he will pull back and say even though what jefferson and madison have done is illegal in all these ways, at the end of the day, it turns out we don't have jurisdiction because of congressional statutes that could be read as giving us jurisdiction is nconstitutional and our job is
to give credence to the constitution even at the expense of a congressional statute. from a modern point of view, if that was true, he probably hould have decided that at the very beginning in the first or very beginning in the first or second question. before that, he should have id am i entitled to hear the case, recusal? host: he went on to declare what the court's authority is. i have a paragraph to read. he wrote, it is emphatically the province and duty of the judicial department to say what the law is. those who apply the rules of particular cases, must, of necessity expound and interpret that rule. if two rules each conflict with other, the courts must decide of each. ration there we have it. >> those two things. he says courts, not the supreme court. there is not a worthy opinion
about the unique powers of the . supreme court as opposed to all of the other judges in the system. notice he says as well as other departments. we have tended to read marbury as if he is making a unique claim that it's the supreme court in context. i think marbury is better read as saying court, along with other folks, are bound by the upreme court as opposed to all constitution and congress can't tell us how we have to rule, there are domains in which other branches of government might be to make independent bank ackson vetoing the bill or jefferson pardoning the sedition act convicts. >> i think he is saying clearly that all of the departments have a responsibility to evaluate constitutionality. at the end of the day, it is emphatically the province and duty of the judicial department to say what the law is.
that is the heart of marbury nd that is why it has been beaconed in our own history and supreme court, in times of great stress, nixon's tapes, brown versus board of education, it is emphatically the province of the judicial epartment. host: john marshall, samuel paterson and agreed in the opinion. it is hard to imagine it was in a boarding house. >> yes. they were staying at stout boardinghouse, which was across street from the capital where the library of congress in the opinion. it is hard to imagine it was in a boarding house. >> yes. they were staying at stout boardinghouse, which was across street from the capital where the library of congress
currently is, and they were staying there. two justices were not in washington because they were sick. there were only four justices there. it takes four for a forum. -- quorum. justice samuel chase, who was known as old bacon face, had come down with a very painful case of the gout and he could not hobble across the way to the capital. the supreme court tried to convene, that they only had three justices. they did not have a quorum. constitution and congress marshall had a realization. if old bacon face can't come to the court, the court will go to him. so they pulled the supreme court over at stout's hotel. there is a lot going on. there are dancing assemblies. a traveling dentist is staying there who set up shop. in the parlor is where marshall reads his most famous of supreme court opinions. host: it is not only famous, it is also the longest. 400 words.
e read the entire thing to the assemblage, how long? >> i'm not sure, that it was at least a couple of hours. one thing that was very important, and there is a sense of high drama as he is reading it. as you go through the three questions, it looks like he is going to issue a sweeping rebuke of the jefferson administration and order them to deliver the commissions. there would be a confrontation between marshall and the supreme court and jefferson and it was possible that jeff's would defy them. the supreme court was very weak. yes, marbury has a right to the commission. yes, he has a right to the remedy. he gets to the last point and says, but the statute does not give us jurisdiction. therefore, we can't rule in marbury's favor. >> the statute does, but it's unconstitutional. >> we are striking down the statute because it is unconstitutional.
therefore, we can't give him this order. the result is technically, jefferson and madison win and marbury loses but there was an awful lot in the opinion that is all about how marbury was right and they are wrong, so each side wins some, loses some. that was a very important aspect of marbury. a lot of people at the time thought the supreme court would be a predictable political actor. hese were all federal list appointees. a lot of people expected this to be federalist action. with this mixed decision, in addition to be the first decision that strikes down a statute that is unconstitutional, they seem to be acting as a court, rising above politics and weaving in a range of legal issue. >> or at the very least, pulling back at the very last oment.
madison refuses to show up in court. efferson is not dignifying jurisdictional pretenses of the court signaling they might not accept a court order might not out and that may be the best case scenario. there is the intermediate case in there. at the same time there are impeachment procedures in the pipeline against a lower court judge and soon there are after a supreme court justice, and then old bacon face. the best case might be issued this piece of paper, it jefferson less in-your-face, and what you do. two, you go and issue the paper and they go after a lower court and they may go after you. worst-case scenario, the french revolution had just happened
and and heads had rolled. jefferson had said veryarily, you can't make an omelet egg, the aking some tree of liberty must be watered with the blood of tyrants. john marshall can't be 100% sure that it's not going to end very, very badly indeed. there is some prudence as well. he didn't push it too hard even though it is a political colding of epic proportions. host: miguel, your question. egg, the tree caller: i'm calling from corpus christi. host: ok. your question. caller: good evening. thank you for doing this. think jefferson and the others were quite shocked when they realized the implications of the opinion, because it is my understanding that state egislatures could override their supreme court decisions, and i think jefferson, many thought that would happen and what was suggested was that was
not the case. i remember reading that i found wonderful was a john marshall biography which reads like a french novel by dumas. i wanted to know what your opinion was regarding that book, and it is a wonderful book. host: thank you. our time is short. i will find out what the guests think. >> it is a terrific biography. there are a number of great biographies of marshall. marshall is a fascinating character. he would have been tremendous company. he enjoys -- it seems like everyone but thomas jefferson, who he had really had the enmity with. there is another biography by gene smith, which is terrific. he is a very interesting character. that is one of the ones that really bring him to life. host: a question from
allegheny. the more we hear about this case, the more it seems it is wholly a creation of marshall's will. >> i am critical of some aspects of it, but judicial review is not made up at all. it is very well established in states and in fact, contrary to what miguel said, state legislatures before marbury did not generally have the ability to overturn state court rulings that state laws had violated state constitutions. marbury was the first at the national level at the supreme court. the supreme court itself, the justices were writing circuit and had invalidated federal statutes. marshall is not making up judicial review. he is pulling a fast one in certain ways, because if he doesn't, his branch will finish -- vanish into nothing.
>> i think it absolutely has. >> also, if we really want to understand modern day judicial review, we care more about any of us, rights of individuals rather than original versus appellate judicial and what we call the bill of rights, the big cases of liberty, any of which are in your series, a lot of them aren't actually strictly the bill of rights. they're not about the federal government, they're about states misbehaving. that's about the 14th amendment and the reconstruction and i want us to remember mr. lincoln alongside all of that because his generation gives us a new birth of freedom, a second founding that is really going to launch a very advice rouse project of judicial enforcement
of rights against all levels of government. that's what marbury has become today. it wasn't actually that robust at the beginning. it's become really important because of the reconstruction because of the 13th, 14th and 15th amendments. host: four of the cases that we 14th ed of the 12 are amendment cases. the second founding of america when the 13th, 14th and 15th amendments have passed. we go about seven minutes 14th amendment left. let me take a call from cat in church view, virginia, you're on the air. >> hi, my question is if adam and jefferson were friends, how did a dam justify his actions when he kind of went against jefferson in the presidency in the whole like debate thing? host: we spent some time on that in the beginning. how did he justify his actions? >> well, they had been friends and they became fairly bitter political enemies.
adams, from his perspective, when he had been defeated and saw jefferson and the jeffersonans coming in. putting the federalists in the courts from his perspective, he was safeguarding the last bastian. he was fearful for what was going to happen to the country. fortunately, they reconciled. >> to give him his due, he leaves. he does not try to hold over and defy the will of the electorate. that's a historic first. you were mentioning all of the miss storic firsts. marbury is important, it's a first of sorts. one political party losing fair and square to another at a national level and actually yielding power to his political rival, that's a pretty new, the world an amazing
lesson, it seems to me and give adams his due in that regard. remember, he is worried, the french revolution, is it going to spiral out of control, so some of this is maybe even self-protection on his part, mistaken, so to give him his due. host: john adams considering his appointment of john marshall to the supreme court one of the crowning achievements of his presidency. lesson, it seems to me and give adams his due in that regard. remember, he is we'll show you next the letter that jefferson wrote to john marshall in the waning days of his life. >> in 1801 following four years of serving as president of the united states, john adams would leave washington, d.c. and once again return home to his home peacefield where we are today. he would spend the next 26 years of his life at peacefield with his beloved wife abigail and their children and grandchildren. this was a very lively house. it's where they spent most of this time. john adams left this house very few times. during john adams' presidency,
abigail would spend much of her time back at peacefield. she would make it an addition to the house, we call it the 1800 wing. it includes a study on the said floor where john adams could entertain his mind. john from this desk that adams would correspondent with thomas jefferson and they shared over 300 letters in their lifetime. in one of the earliest letters, adams would right to jefferson, you and i not ought die before we have had a chance to explain ourselves to one another. many of these letters john adams would were the lifeline for john adams to the outside world. he loved to receive letters. he loved to write them and sometimes he was even surprised with a gift including from his old friend, john marshall, who he appointed as chief justice of the united states. john marshall presented john adams with a copy of his book that he had just written on the life of george washington. john adams is at his desk and he is writing to john marshall that he has received this gift.
he writes, "dear sir, the extreme imecility of old age must be my apology for neglecting to write. thank you for your book. it's not want for esteem or respect or admiration that i have not written frequently to you. there is no part of my life that i look back upon with more pleasure than the short time i spent we and it is the pride of my life that i have given to this nation, a chief justice coke or hale, hope or mansfield, i am your friend and well wisher on the point of departure, or hale, hope or mansfield, i am your friend and well wisher on the point of departure, john adams. host: so the chief justice john marshall served on the court for 34 years. he is often referred to in fact as the sitting justice, the great chief justice. what was his next several years like? did he decide many other cases. one book i read that having
established this principal, he became more powerful than the next three presidents of the united states. would you go that far? >> i don't think that's the right way to look at it. john marshall's legacy is that he created the supreme court as a co-equal branch of government. in marbury, he established the principal of judicial review and invalidating a federal statute. there are a whole series of pinions where he establishes supreme court review of other decisions, where he defines the ntours of national power including congressional power, but through his, the scope of his opinions, his brilliance and also his including congressional persona ook what was this very lowly disdained court and really turned it into the supreme court of the united states. host: what should we remember
him for? >> one thing in addition to what cliff said. i can't remember who said 90% of life is showing up. john marshall shows up. he stays for a very long time, 34 years. left.edecessor john jay oliver else worth left. agine an alternative universe. you universe. you look at the constitution, there is now a term limit for the presidency until the 20th century, until f.d.r. imagine a world where are perpetually re-elected presidents for life. we don't have that because george washington steps down after two terms. adams leaves office peacefully d jefferson steps down and dison, monroe, and a tradition begins but washington established are that.
and his great biographer is none other than john marshall. washington establishes it, we won't have a presidency for life. that. and his great biographer is none other than john marshall. washington establishes it, we won't have a presidency for life. john marshall really put kind of a different spin on life tenure, good behavior. he doesn't cut and run. he stays and stays and works and creates intees a nonpolitical court that is above party and he just, he stays and a lot of life is just howing up. host: you know what happened to james madison's political