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1795 United States House of Representatives elections in Kentucky

From Wikipedia, the free encyclopedia

Both of the Kentucky incumbents were re-elected.

District Incumbent Party First
Result Candidates
Kentucky 1
"The Southern district"
Christopher Greenup Anti-Administration 1792 Incumbent re-elected to a new party.
Democratic-Republican gain.
Christopher Greenup[1] (Democratic-Republican)
Kentucky 2
"The Northern district"
Alexander D. Orr Anti-Administration 1792 Incumbent re-elected to a new party.
Democratic-Republican gain.
Alexander D. Orr[1] (Democratic-Republican)

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  • ✪ John Marshall: The Man Who Made the Supreme Court
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Good afternoon and welcome to the William G McGowan theater here at the National Archives I'm David Ferriero the Archivist of the United States and I am pleased you can join us today whether you're here in the theater or joining us through Facebook or YouTube before we Before we hear from Richard Brookhiser about his new biography of John Marshall I'd like to tell you about two other programs coming up this week in the McGowan theater, tomorrow our Veterans Day celebration continues with the program on support and resources available the Vietnam Veterans called Remembering Veterans a conversation of what happens after duty honor country former senator and Secretary of Defense Chuck Hagel and Congressman Sam Johnson will deliver remarks and we'll be joined by a panel of Vietnam veterans who are current and former representatives of the Vietnam Veterans of America Disabled American Veterans and the Department of Veterans Affairs and on Thursday November 15th at 7:00 we'll host the US premiere of the Tokyo Trials a documentary created in observance of the 70th anniversary of the Tokyo war crimes trials at the end of World War two check our website archives gov or sign up at the table outside to get email updates on other activities and programs here at the National Archives and another way to get more involved with the National Archives is to become a member of the National Archives foundation the foundation supports all of our education and outreach activities. As you know the National Archives preserves the records of the federal government among them the most significant documents in our history and growth as a nation in 2003 when we opened the public vaults exhibition upstairs we asked the public to vote on a list of a hundred milestone documents of American history three of those 100 are decisions issued by John Marshall Supreme Court Marbury vs. Madison, McCulloch versus Maryland and Gibbons versus Ogden. John Marshall is such a towering figure of the Supreme Court of the United States that many people believe he was the first Chief Justice he was the fourth but his record holding 34 years as chief justice he was the most influential. The precedent-setting decisions issued by his court have stood for two centuries and shaped the role of the judicial branch of our government. Richard Brookhiser wrote his first article for National Review was published the day after his fifteenth birthday he went to work for the National Review after graduating from Yale and has stayed ever since. For twenty years he wrote a column for the New York Observer and has also written for a number of magazines including the New Yorker Cosmopolitan Commentary and Vanity Fair after writing about modern politicians he turned to past political figures and became a historian of the founding period he curated Alexander Hamilton the Man Who Made Modern America an exhibition at the New York Historical Society before the Broadway show and hosted two films that aired on PBS Rediscovering George Washington and Rediscovering Alexander Hamilton he's currently a columnist for American History and has been awarded the National Medal of Humanities and a Guggenheim Fellowship please welcome Richard Brookhiser. please welcome Richard Brookhiser [applause] Thank you for that introduction thank you for coming out book publicity is pretty hectic I was in Richmond yesterday and I realized when I was flying to New York on Sunday about halfway down I'd forgot to pack my blazer but I'm doing better than John Marshall who the first time he served as a circuit court judge which is something justices of the Supreme Court did till after the Civil War he had to go to Raleigh and he forgot to pack a pair of pants when he got to Raleigh the local tailors were too busy to supply his lack so he did his duties covered only in his judicial robe so I've spared you that about two months ago a friend asked me if I had paid Justice Kennedy to retire in order to publicize my book and of course I had I had no idea that we'd have the Kavanaugh hearings but I knew the Supreme Court would be in the news I knew there'd be some decision that would be in the news possibly a personnel change that would be in the news the Supreme Court is always in the news the man who first put it there was the fourth Chief Justice John Marshall so today what I want to do is talk a little bit about who he was talk about how he accomplished this how he raised the prestige of the court I want to look at two of his great decisive cases and then survey some of the criticisms that were made of him during his lifetime and afterwards so I think the the first thing say about who John Marshall was and this is even though he spent most of his adult life in Richmond one month a year in Washington spent a couple years in Philadelphia six months in Paris but despite all that experience of civil of city living he was a country boy all his life the house he was born in was the log cabin the second house he grew up in it was a frame house the third had glass in the windows so this wasn't quite pioneering it wasn't Daniel Boone going through the Cumberland Gap but it was out in the country and it seems to me that Marshall so enjoyed that manner of life that he never entirely forsook the world that comes up over and over again in descriptions of him is simple, this word is used by people who were meeting him for the first time it's used by people who've known him for years they described him as simple he didn't care how he dressed, I mean he usually wore pants but he but he didn't he was not he did not care how he dressed he didn't care how his hair was cut his wife cut it for him if she didn't who knows what would have happened he had simple attitudes toward drinking he liked it he liked it a lot when he was chief justice the wine merchants of Washington called their best stuff the Supreme Court because he was one of their best customers.The court had a custom in those days that after the justices heard the cases and they would go back to their boardinghouse and discuss them over dinner and afterwards they could only have wine if it was raining and I imagine this was to cheer themselves up so Marshall would always ask one of his colleagues usually Associate Justice Story, brother Story look out the window and tell us what the weather is and Story might say the sky is perfectly clear and Marshall would always answer our jurisdiction is so vast that by the law of chances it must be raining somewhere. So wine was always served at the Marshall Court. Marshall liked simple games all his life he regularly walked several miles before breakfast just to get himself going he did it as long as he was mobile, his nickname in the army was silver heels partly because his mother sewed socks that had white in the heels but also because Marshall could jump over a bar that rested on the heads of two men. He loved the game called quoits which is horseshoes played with with metal rings not not horseshoes and the point is as in horseshoes to get the ring around the post or the meg and there was a club in Richmond called the Quiots Club was a gentlemen's club and then every Saturday from May to October and the governor of the state was ex-officio a member but the membership was limited the members sang they gave humorous speeches if you mentioned politics or religion you were fined a case of champagne for the next meeting they also played this game of quiots and people said that Marshall seemed to pay as much attention to judging who's quoit got closest to the Meg as he gave to his judicial decisions so this was in many respects a simple man. The man he most admired apart from his father Thomas Marshall was the father of his country Marshall volunteered to serve in the militia in 1775 and he was 19 years old and then he joined the Continental Army the next year he was in the Army almost until the end of the revolution 1781. He was in three battles with the Washington commanded Brandywine in September of 1777 Germantown in October of 77 and then Monmouth in June of 1778 and between Germantown and Monmouth he was at Valley Forge where Washington was also in command also presiding. So Marshall saw Washington and defeats he saw him in victory he saw him when the army had nothing to do but suffer from lack of clothing lack of food lack of pay and Marshalls conclusion from these experiences was that George Washington was the rock on which the Revolution rested when Washington returned his commission as commander-in-chief to Congress at the end of 1783 Marshall wrote a letter to his old friend James Monroe and he said at length the military career of the greatest man on earth is closed may happiness attend him wherever he goes. When I think of that superior man my full heart overflows with gratitude. Marshall didn't just admire him as a military leader he agreed with Washington's diagnosis of the political problems that had made the war so difficult for the army the form of government that the independent America first had the Articles of Confederation was inadequate to its task it didn't give the government the power or the energy to do the things that it had to do so when reform was necessary when the Constitutional Convention met in 1787 presided over by Washington signed by Washington, Marshall follows him and once again he's a delegate to the Virginia ratifying convention in 1788 he gives several speeches there one on the judiciary he is a partisan of ratifying the Constitution then after it's ratified goes into effect Washington as the first president and a two-party system develops not anticipated or mentioned anywhere in the Constitution but it almost immediately springs up. Marshall follows Washington again in joining the Federalist Party this was the party that believed in a financial system that would encourage the growth and diversity of the American economy and it was a party that believed in a strong arms neutrality in the world war between Britain and revolutionary France. The other party was the first Republican Party the party of Jefferson and Madison it's now the Democratic Party not the GOP but it was called the Republican Party in those days and they took different views on both of those policies and in 1799 Marshall follows Washington a third time he is summoned to Mount Vernon along with Washington's nephew Bushrod Washington and George Washington tells these two young men you have to run for Congress in Virginia the Federalist Party is in trouble in this state we need new blood you have to run. Marshall doesn't want to do it he's a lawyer in private practice he's a very good one he's making good money he started a family and he's buying land and buying farms and he needs the income but Washington keeps insisting he's after him and after him and the anecdote about this visit is that Marshall decided he couldn't keep saying no to his former commander-in-chief so he decided to get up at the crack of dawn and just leave but Washington had gotten up earlier and put on his uniform whether whether that's literally true or not what Marshall said later was that I yielded to Washington's representations so he ran for Congress he was elected to the house and this puts him on the escalator to be John Adams' Secretary of State and finally Chief Justice the man that Marshall most hated he didn't hate hardly anybody but he did hate his second cousin once removed Thomas Jefferson. Thomas Jefferson returned that hatred Jefferson hated a lot of people but Marshall was always high on his list. Jefferson's opinion was that that Marshall was a sophist that he would take any statement and twist it into some predetermined judicial conclusion Marshall warned Joseph Story before he got on the Supreme Court he said you must never give a direct answer to any question that Marshall asks you if he asked me if the Sun were shining I would say I don't know sir I cannot tell. Marshall's opinion of Jefferson was that he was a demagogue that he pretended to be a hands-off president taking his lead from Congress but that he secretly manipulated it through the house and did so to ride storms of popular passion for his own benefit the Sundering episode and their relationship happened in 1797 when a letter that Jefferson had written to an Italian friend was published first in Europe than in England and finally in America and in this letter Jefferson said his friend was named Philip Mazai he said I would put you in a fever if I named men here who have been Solomon's and counsel and Sampson's in the field whose heads have been shorn by the harlot England now Solomon of course was the king of Israel Samson was a judge of Israel so this letter was interpreted in America certainly by John Marshall a direct attack on George Washington. For years Jefferson had taken the position that Washington was still a good man who was being manipulated by Hamilton but here in the Mazai letter he seems to be pointing his finger directly at Washington. Four years later when Alexander Hamilton is trying to get Federalists to prefer Thomas Jefferson to Aaron Burr after the deadlocked election of 1800 one of the Federalists he writes is John Marshall and Marshall wrote him back and said I don't know Brewer you do I have to accept your opinion of him but the morals of the author of the letter to Mazai cannot be pure this is how Virginia gentlemen said he is dead to me for Marshall there was there was no coming back after the Mazai letter so Marshall serves in Congress after being elected in for the second term of the Adams administration. Adams makes him Secretary of State after he cleans the Hamilton loyalists out of his cabinet and then at the end of his administration the lame-duck end of it because Adams has lost the election of 1800 this is his rematch with Thomas Jefferson he'd narrowly beaten Jefferson in 1796 but Jefferson beats him rather solidly in 1800 so one thing that the parting Federalists do is they pass a Judiciary Act of 1801 which increases the size of the federal judiciary this was a prudent measure that that would would have made justice more widely available to the American people it was also a patronage measure because they got to fill all these positions with Federalists but then a very important vacancy opens up because Adams gets a letter from the then Chief Justice Oliver Ellsworth third man to hold the job and Ellsworth has gout his health is bad he doesn't want to keep doing it so he tells Adams he's quitting. Adams's offers the post to the first man who'd held it John Jay. Jay was the great revolutionary patriot spy master diplomat author of some Federalist papers and he was the first Chief Justice from 1789 to 1795 then he left the court to be governor of New York for two terms and in 1801 Adams sends his name to the Senate Jay is confirmed then Adams gets the letter from Jay saying that he won't take the appointment he says that the federal judiciary lacks energy weight and dignity so he's going to stay home in New York. Adams has a meeting with his Secretary of State in the still unfinished White House the shell has been completed but the inside is almost like a construction site and as Marshall recalled it Adams asked him who shall I nominate now and Marshall said I don't know I don't know sir. Adams paused a minute and said I believe I'll nominate you. So this is how John Marshall age 45 had his name submitted to the Senate he was shortly confirmed sworn in and then after a few weeks he swore in the new president his second cousin Thomas Jefferson. So how did he take this job which John Jay had refused to hold again because he said it lacked energy weight and dignity how did Marshall supply those qualities to it. I think the first trait he used was geniality this helped him work with his fellow justices. When he comes in as Chief Justice the court has only six members so all six of them are Federalists, they've all been appointed by Washington or Adams but in only eleven years one man retired couple more died Congress increased the size of court to seven justices by then the partisan balance is two Federalists and five Republicans that's a significant shift yet all these new Republicans voted along with John Marshall and they continued to do so for most of his tenure so how did this happen. I think the geniality is the first quality Marshall was not only simple he was he was likable and he liked people when Joseph Story first encountered him as an advocate before the Supreme Court he wrote home and he said I love his laugh I love his laugh a Marshall had a gift for spreading an air of good fellowship around him and his follow justices responded to that. Another technique Marshall used was deference he would defer to justices who were more expert in particular areas of the law than he was one example was land titles. Land titles, especially in Kentucky, were very bad it was bad surveying lots of conflicts many cases a number of which came to the Supreme Court then Marshall would let those opinions be written by Associate Justice Todd who was from Kentucky and knew what the situation was. Another area where he deferred was Admiralty law he would often let Joseph Story take the lead there but when he deferred he got deference in return so deference is not only polite or virtuous it's also smart you give something and you get something back the third quality Marshall had is that he's always the smartest man in the room and his intelligence was not quick, it took a while for him to get going but when he did his reasoning could seem almost implacable, his major decisions are eight, nine 10,000 words long and they're built like granite they're supposed to have that solidity and that weight. One advocate before the Supreme Court William Ward who would later become Attorney General he said that Marshall's mind was like the Atlantic Ocean everybody else since everybody else's minds were ponds so this is an opinion of a legal adapt this is how Marshall struck someone who knew what he was talking about. Marshall used all these qualities over an enormous length of time his idol George Washington was commander in chief for eight and a half years and president for eight so he's in effect he's the chief executive of the country either in reality or formally for sixteen and a half years Marshall is chief justice for 34 years twice as long he's appointed by John Adams he serves into the second term of Andrew Jackson. He inaugurates five presidents in nine inaugurals he still holds the record for length of tenure of a chief justice and in the middle of that period the court had a remarkable 12-year stretch where there were no personnel changes it's only had one one comparable stretch since that was in the late late 20th century but this is in the center of Marshall's rule. So he has 34 years to work his magic on his fellow justices and he puts them to good use. His most famous case is probably Marbury vs. Madison and we're all taught that in school because it establishes that the court can rule a law passed by Congress or a portion of it unconstitutional. I think well it's true that that's what Marberry did I don't think that was news when it happened the concept of judicial review was already out there it was not something that Marshall created Alexander Hamilton had written about it in the Federalist Papers, Marshall himself has spoken about it in his speech on the judiciary of the Virginia ratifying convention this was a familiar concept. What was most striking at the time about Marbury it's a 9,000 word decision and about 8,500 words of it is a lecture to the Jefferson administration, it's it's telling them you you thought we were the bad guys and you said you would be the good guys who do everything right but you have done wrong by William Marbury he deserved his commission and you didn't give it to him now he's not going to get it because the form of redress he's seeking is a portion of the Judiciary Act of 1789 which is in fact unconstitutional but still shame on you. Many of his decisions had to do with supremacy the supremacy of the federal judiciary over state courts, Dartmouth v Woodward, McCulloch V Maryland, Cohen's V Virginia, Osborn V 2nd backed the United States what Marshall is is contending with there is what Alexander Hamilton and the Federalists had had called a Hydra in government he said 13 courts different courts of final appeal would be a hydra and the Hydra of course was the monster that had many heads on many necks and if you tried to cut one off two more would grow and Hercules only kills it by burning the stubs of the necks as he cuts the heads off so so this is what Marshall is trying to do he's trying to be Hercules in the judicial realm and make sure that the states are not themselves the final courts of Appeal but today I want to focus on on two other decisions one having to do with contracts and one having to do with Commerce. The first is Fletcher versus PAC this was in 1810 that had to do with the land sale that the state of Georgia had made in the 1790s. Georgia was the poorest of the original 13 States all it had was land, it had land that went all the way to the Mississippi what are now the states of Alabama and Mississippi and so Georgia politicians believed if we can sell this land off we'll balance our books. So in 1794 they sold 35 million acres for a penny and a half an acre every single legislature late-late or had been bribed the going price was a thousand dollars one man had sold his vote for only six hundred dollars he explained that he wasn't greedy. The the purchasers of this track is called the Yazoo tract because there's a river of the Yazoo River that flows into the Mississippi on the western end of it so Yazoo was the name for the whole chunk they weren't intending to move to the Yazoo River they were they were intending to flip their purchases for a profit this is a very old American thing you know buying real estate and flipping it and that's what they immediately did they flipped it to sellers who in turn expect it to flip it for profits of their own but while this was going on the state of Georgia had a new election all the corrupt legislators were turned out of office and the new crop wrote a repeal Act which nullified the sale and also forbade it from being litigated in Georgia courts. They established a penalty that any Georgia state employee who so much as referred to it would be fined $1,000, they stipulated that the act be burned in the public square of the state capital and when when the fire was about to be lit supposedly an old man stepped out of the crowd and said that the fruits of corruption should be burned by fire from heaven so he took a magnifying glass out of his jacket and held it up to the sun and that's how the original Yazoo sale was ignited. But meanwhile the purchasers had resold and there were new purchases and they wanted to know what was the legal status of this land they've just bought so they consulted one of the best lawyers in the country Alexander Hamilton who was no longer at the Treasury Department he was in private practice in New York and he wrote a trim little 500 word opinion in which he said that if this goes to court the courts will probably rule according to the contract clause of the Constitution that the original sale was a contract and states may not impair it this is according to article 1 section 10 which prevents the states from impairing the obligation of contract and Hamilton's opinion was published in a pamphlet in 1795 or 96 so this the state of affairs went on for a number of years the Yazoo purchasers tried to get relief from Congress where where all relief measures were blocked so they turned to the courts in the 1800's. There was but how were they how are they going to do it they couldn't go to a Georgia Court Georgia had blocked that option, citizens of other states could not sue the state of Georgia because the Eleventh Amendment forbade that that was the first amendment after the first ten it was passed very rapidly only only two was years and it forbade citizens of other states from suing a state not their own in court but if two citizens of different states are involved in a lawsuit that is a matter for federal jurisdiction so Robert Fletcher of New Hampshire sued John Peck of Massachusetts. Peck had sold him some Yazoo land for $3,000 and Fletcher went to court to say you don't legitimately own this because the repeal Act has nullified the original sale I want my three thousand dollars back. This case rose to the Supreme Court in 1809 there was a technical problem with one of the appeals so it was re-argued in 1810 and Marshall wrote the decision and his decision is essentially an expanded version of Alexander's Hamilton's opinion of 1795. Marshall says that the repeal Act impairs the obligation of contract the original sale was a contract and Georgia is trying to impair it and this is unconstitutional. He oh he says it in a very audacious way he says that article 1 section 10 is a bill of rights for the people of each state no we think of the bill of rights and at the time the Bill of Rights was thought of as the first ten amendments protecting freedom of speech freedom of the press right to keep and bear arms no warrantless searches that's what we think of as the Bill of Rights but Marshall's saying no before the first ten amendments there was already a bill of rights in the Constitution and that was article 1 section 10 which forbids the states from impairing the obligations of contracts this is how important Marshall thought contracts were he wanted to instill a sense of discipline on the American people if you sign on the dotted line if you put it down in black and white you've got to do it and you can't count on some legislature at a later date to save your bacon or you you need not fear that your contract will be nullified by state politicians later on so he is he is trying to secure the ability of Americans to contract with each other. In 1824 there's a second case having to do with Thomas and this is Gibbons versus Ogden known as the steamboat case. Now steamboats were invented several different times at the end of the 18th and early 19th century. Several people figured out how to take a watt steam engine which was a new innovation and put it on a boat and convert its power into a mechanism that would turn a paddle wheel. One of these inventors was Robert Fulton and he demonstrated his Sienne in France and one of the spectators was the American minister to France Robert Livingston, several earlier steam boat inventors had failed because they'd lacked the money Livingston was a wealthy New York grandee when he saw Fulton's steamboat he thought this is it he would become a backer of Fulton. So you had the boat you've had the money but the third thing that you needed was political protection this is something that Livingston could also arrange because he knew everybody in the state of New York. So in 1808 New York granted him and Fulton a monopoly on steamboats in New York waters for 30 years in 1811 they added that if the monopolists were sued the steamboats of those who were suing them would be impounded while litigation proceeded. So that's a nice extra guarantee and they competition sprung up immediately people saw how this worked they built their own boats they took the monopoly to court, New York's Supreme Court upheld the monopoly another thing that monopolies did was it bought off the competition there were some businessmen in Albany who had two boats and so the monopoly said alright we'll give you Lake Champlain but we're going to keep the Hudson River in New York Harbor and Long Island Sound another competitor they bought off was a New Jersey man Aaron Ogden who was running a boat from Elizabeth New Jersey into Staten Island so they Ogden and the monopolies went to court in New Jersey and this had a tragic conclusion because as Fulton was crossing back to New York City over the Hudson River now this is in the winter there are no bridges so you have to go over the ice and Fulton's lawyer Thomas Addis Eemmett fell through the ice into the Hudson Fulton pulled him out but he caught a fatal case of pneumonia so he died saving his lawyer's life there any lawyers here I hope you you remember that act of gallantry but the monopolies marched on and they came to an arrangement with Ogden he'd pay them $600 a year he'd be a licensee of the monopolies so he could run his boat into Staten Island now Ogden himself took on a partner Thomas Gibbons and for a couple of years their partnership worked very well then there was a crisis in Gibbons family a rumor went abroad that Gibbons's daughter had slept with her fiance, Gibbons's solution to this rumor was that he and his wife and his daughter should all sign an advertisement in the newspaper saying that the rumor was false. Apparently the rumor was true but Mr. Gibbons wanted to take out this family ad. Aaron Ogden thought this was a bad idea but his opinion so enraged Gibbons the Gibbons came to Ogden's house with a bullwhip Ogden fled out the back door and sued Gibbons for trespass this ended their partnership. Gibbons hired as his as his boatman a ferry boatman from Staten Island named Cornelius Vanderbilt. He was a young man he was uneducated but he was great for this situation he loved it he built a secret compartment inside Gibbons's boats so that when Process Servers came aboard no one could find him, he loved dodging through New York Harbor chased chased by the Harbor police he was also sent to Washington DC to hire counsel and the counsel he hired was Daniel Webster, congressman and at this point rising is the greatest lawyer in the United States. So when Gibbons V Ogden comes to the Supreme Court in 1824 Daniel Webster makes an eloquent argument on behalf of Gibbons.Now the issue was there is a commerce clause in the Constitution which says that Congress has power over the Commerce of the United States but Congress had passed no laws having to do with steamboats or steamboat traffic in New York State so Thomas Addis Emmett and the lawyers for them and monopolies said well of course if Congress passes a law we have to obey it but Congress has passed no law so in the absence of any law New York state has a right to form a monopoly for steamboats within its waters. Webster's argument denied that he said even in the absence of action by Congress commerce is of such importance and of such unity that it has to be left in Congress's hands he said the Commerce of the United States is a unit he described it as e pluribus unum and after Marshall gave his decision he said the Chief Justice took my argument as the baby takes its mother's milk, that wasn't quite right Marshall, in his decision, another long one, he essentially repeats Webster's argument and he says I'm not satisfied that it's been refuted but then he hangs his decision on a smaller point which was that Gibbons boats had a federal coasting license now what was a federal coasting license it was a piece of ID for revenue purposes that proved that you had an American boat so you would not be subject to penalties that we put on foreign boats no we did this in order to protect American shipping and that's what the coasting license was for but Marshall said a license is a license to do a thing. So if you have a coasting license even if it was intended as a revenue measure you have a license to coast and therefore you can take your boat from Elizabeth into Staten Island so this was a victory for Gibbons, a defeat for the monopoly a week after the decision came down the first competitors boat sailed into New York Harbor firing cannons the people waved at it from the shore and the number of steam boats in New York waters quadrupled almost immediately. Now why do I tell these stories of these particular cases I like the back stories and I think I think it is interesting in a life of Marshall to look beyond his own life to the lives of his litigants. Marshall and the Supreme Court are hearing cases at the end of their run they've risen up through the legal system and then they arrive at the Supreme Court. But at the beginning when they're first brought to court and even before that there's a long story of people wanting something people fearing something people entangled and to try and resolve that they go to court so I think it's important for us to look back and see why these Americans are bringing their problems into court but the other reason that I focus on these particular cases is that they establish the armature for the American economic system. You know when we think of founding fathers who are responsible for our economic system we mostly think of Alexander Hamilton, particularly after the musical um you know rightly so and I like the musical I'm a fan and and he certainly deserves all that credit that his plans and his achievements had to have legal support as well and in Marshall's contract law decisions and in his commerce decision even though Gibbons versus Ogden is a little a little reserved there's a little that little twist in it he lays the legal support for a national market in which people are free to contract with each other. And it's a system that we still have despite many modifications and criticisms of it. Marshall himself took a lot of criticism in his career and after his most industrious enemy was Jefferson not so much in public but in letters that he wrote. Jefferson spent his presidency and his retirement years fretting about Marshall decisions that he called Marshall's reasoning twist-0-fications. He compared his decisions to the eels of the law he said he hangs inference upon inference like Jacob's ladder. And he tried at the end of his life to suggest an alternative he said these questions should not rest with the Supreme Court if it's a constitutional question it should be result in a constitutional convention that should be the mechanism by which these questions are decided and he ran this idea passed his protege and his right hand James Madison and then Madison did what he so often did with his beloved elder he he was like the man holding the the guy rope to the dirigible and he you know he just gave it a little earth earthly tug and he said you know a series of constitutional conventions would be tardy troublesome and expensive and Jefferson never never made the site proposal publicly. Another Jeffersonian who did make public proposals was Senator Richard Johnson he's most famous for having killed Tecumsah at the Battle of the Thames in the war of 1812 he's probably second most famous for his campaign jingle ripsi Ramsey rump see dump I did Johnson killed Tecumseh but he he deserves to be more famous than that he was a serious man he was a serious a small D Democrat serious populist and he thought it was wrong that the ultimate judge of these questions should be the un-elected Supreme Court. So he proposed a series of amendments in the early 1820s he proposed to restrict the jurisdiction of the court he proposed that the Senate could have a veto on court decisions he proposed an amendment that the court if it was deciding a constitutional question would have to have a supermajority none of these amendments went anywhere none of them got out of Congress most of them were squelched in committee. Then maybe the courts most eloquent critic after Marshall died would be Abraham Lincoln. This is because of the Dred Scott decision of 1857 written by Marshall's successor Roger Tawney. And when Dred Scott was the second decision to overturn a law of Congress it overturned the Missouri Compromise and it enraged opinion in the north and Lincoln attacked it repeatedly up until his first inaugural address which he's delivering in the presence of Roger Tawney himself, who's about to swear him in Tawney was described that day as looking like a galvanized corpse but Lincoln Lincoln who was a lawyer himself he admitted that Supreme Court decisions were final as to the parties of the cases so poor Dred Scott would have to remain a slave because that's what the Supreme Court had ruled but should the decision have precedential value in similar cases and here Lincoln said he distinguished he said there were Supreme Court decisions which were settled and decisions which were erroneous and a settled decision would have to follow the previous practice of the government and it would also have to be unanimous. Dred Scott was not unanimous it was a majority opinion of six with two - with one concurrence and two dissents the court had expanded to nine justices by 1857 so Lincoln is saying a subtle decision has to be unanimous that would get rid of a lot of Supreme Court decisions even some Marshall Court decisions many of those were unanimous but not all of them not all of them were and even some of the most important ones had concurrences or dissents. So Lincoln was erecting a very high standard and he said if the policy of the government upon vital questions affecting the whole people is to be irrevocably irrevocably fixed by decisions of the Supreme Court the instant they are made the people will have ceased to be their own rulers having to that extent practically consigned their government into the hands of that eminent tribunal. Now unlike senator Johnson or unlike Thomas Jefferson Lincoln had no practical solution to propose to this but he raised the issue he raised the criticism and it keeps coming back I mean whenever some party or a large group of people is unhappy with the Supreme Court we hear of plans to restrict it either to restrict its jurisdiction more more recently to pack it. No one has suggested a senate veto recently although Professor Mark Touch note at Harvard has been talking in those terms for a number of years. So this is an ongoing question about John Marshall's legacy, Marshall himself dies in 1835 I think a disappointed man I think he feared that he had failed he was losing his control of the court in the last few years new judges more difficult to influence or be led he was also very disappointed with the election and re-election of Andrew Jackson if Jackson had not been elected reelected in 1832 I think Marshall would have retired in the hope that the new president would have promoted justice Story to be chief justice but Jackson won re-election so Marshall stayed on until he died and Jackson's statement on Marshall's death was surprisingly gracious much more gracious than anything that Marshall and Jefferson ever said of each other that the most gracious tribute to Marshall came from Richmond and it came from the Quiots Club and they ruled that because he was irreplaceable the club should have one fewer member forever after. So thank you very much, I'll take questions now. [applause] We have a microphone there and a microphone. Yeah my question is about the institution of slavery and John Marshall was could you explain his personal life as having been having owned slaves and and how he ruled and how yes and if if perchance if if he my guess is that he was chosen because there were other southern Supreme Court justices on the court at the time the small small R's or the Republicans versus the Federalists and that's why he was chosen versus John Jay who was a very strong Federalist who would probably be opposing the the southern Republicans quite a lot if and if John Jay who was an abolitionist >> yeah >> if he had if he had been chosen this if he had stayed I mean if he had decided to become the Supreme Court justice or >>well Jay lived a long time he lived until 1828 or nine and and he was as you say an abolitionist there has been a discovery about Marshall earlier this year man named Paul Finkelman and I was I was lucky enough to finish my book after his came out I knew it was coming out and I we corresponded and he was very gracious about his results he found that that Marshall owned ten times as many slaves as we'd ever thought he did every biography I had read said that he owned ten or twelve slaves and and this was based on records of purchases that he made which stopped in the 1790s so people tracked him up to that point and then assumed the number stayed static but what what Finkelman did was he looked at Marshall's wills, Marshall wrote a couple of them you know change them added some codicils and he looked at properties that he left to his various sons and then he compared these with census records which showed how many slaves were attached to these properties and he concluded that you know Marshall probably had 130 250 slaves by the time he's at the end of his life and he gives you know chunks of them to various of his children. Marshall's slavery jurisprudence he hears a number of cases having to do with slaves probably the most famous and the one I write about my book is the Antelope this is about a slave ship that was captured of cruising off the coast of Florida and brought into Savannah and this is long after the United States illeagalized the slave trade but it still went on in on the sly for a number of years and it's a very complicated case there were Spanish and Portuguese claimants who who claimed to own most of the slaves on this ship and you know Marshall admits in his decision that slavery and the slave trade are against the laws of nature it's it's against the law of nature to compel someone to labor for you without compensation but he falls back on the law of nations which he says all nations possess equal rights he says Russia is equal to Geneva in a Russia's the largest country on Earth and Geneva is a Swiss city-state but they're two they're two nations so so they're equal so Spain and Portugal are still engaged in the slave trade and it's not the business of the United States to stop them from doing it. Marshall follows the positive law and he he doesn't use the spirit that he brings to his Cherokee cases his two Cherokee cases Cherokee Nation V Georgia and Worcester V Georgia the first was a defeat for the Cherokees but Marshall all but asked for a second case he said you know we could look at this question again in a proper case with proper parties so he the second one Worcester V Georgia it is a victory for the Cherokees who want to remain in Georgia and not be either subservient to the laws of Georgia or expelled from the state and nothing happens. I mean Marshall made its decision Georgia ignored it the president was not enforcing it and finally the two missionaries who were bringing the case Samuel Worcester and another man they dropped their suit so the end result is that the Cherokees were expelled to Oklahoma, but there Marshall was seems to have been looking for a way to help American Indians he doesn't seem to me to do that for for slaves and this is an area where I think he does not follow the example of his federalist idols. Washington owned slaves all his life but he freed all his slaves in his will and he knew that would be a public statement he knew people would take that as a public statement. Alexander Hamilton is one of the founders of the New York manumission society which is instrumental in turning New York from a slave state to a free state. Marshall accepts slavery as it is. Next question. >>Yes thank you my name is Ed Spanis I recently wrote a series on John Marshall, Alexander Hamilton and the American system which was published on my wife's blog which is called American System Now. In doing it over the years I've read a ot of books on John Marshall when I found yours I must say very readable and I really like the way you told the stories about the cases >>thank you, go out and buy the book >>you may want me to just sit down now probably one thing that struck me was that almost all writers about Marshall talked about his nationalism and you avoided that label or that characterization I think as hit maybe in one point and I know nationalism has taken on sort of a bad connotation in the 20th century but his nationalism I think was this was the nationalism of Alexander Hamilton which was nation-building right and as you allude to it a number of points he took you call it I think the armature of the American economic system I called it Marshall establishes >>is there a question >> have the legal infrastructure of it I know you've studied both men can you say anything more I'm sure you can about the relationship between Hamilton and Marshall >>Well they may have met as early as Valley Forge they were both there certainly their corresponding by the 1790s when Marshall comes to write his biography of George Washington's the only book he ever writes doesn't write a book on the law writes a biography of George Washington and he he praises every Federalist that he names and of Hamilton he said he had a patient industry not always the companion of genius very very shrewd but the reason I didn't use the word nationalism as it would have been anachronistic. Yeah I agree with you that I think there was there was national sentiment there and something that we would call nationalism but it just wasn't a word that Hamilton or Marshall used so that's the only reason I didn't use it. Next question. >> Thank you so much for your extraordinary remarks I look forward to reading your book right the Marbury vs. Madison case has been settled law although when Justice Scalia at his confirmation hearings was asked about his opinion he declined to comment on the case and there has been Touchner as you said at Harvard from the leftist perspective has taken a more restrictive perspective there's been issues between conservatives originalist textualists-- critical legal theorists and libertarians on whether or not Marshall's opinion was in fact supported by the text of article 3 because it was again not its inherent power as opposed to textual power he makes the decision in Marbury using a lot of dicta talking and as you said to Jefferson and his administration about what should have been done with Marbury but then on the basis of jurisdiction in the statute says it's not a case of original jurisdiction finding the statute unconstitutional >>Therefore Marbury can't get his writ of mandamus >>correct >>which is the remedy that he's seeking >>so interestingly he asserts judicial power and the right to review in a case in which he finds in favor of the executive although he chastises the executive but in the case in the case that you cite Worcester versus Georgia he finds in favor of the Cherokee yet Jackson as the executive refuses to carry out the order of the court >>That's right well but the court okay he made his decision and it was the decision was that treaties with Indians are the responsibility of the federal government not the states okay the federal government made a treaty with the Cherokees of granting them this land and it's not the place of Georgia to interfere with those arrangements now Georgia had no intention of obeying this decision and Jackson is supposed to have said Mr. Marshall's made his decision let him enforce it that's probably apocryphal it's like recorded 30 years afterwards but he did say in a letter to a friend of his that Marshall's decision has fallen stillborn now we're missing the last act because the next step would have been that the imprisoned missionaries who were suing the state of Georgia would then have asked their lawyer to notify the court that the decision had not been put into effect and then you would have had the clash between the president and the court what would have happened would Jackson have defied the court or if he had gone along with the court now the politics of this remember at the same time that this is all going on South Carolina has nullified the tariff and Jackson is contemplating a force bill the bill to allow him to collect the tariff in South Carolina by force if they keep this up if he follows the court and moves against Georgia will Georgia join South Carolina in the resistance and will Mississippi and Alabama also do it because they have Choctaws and Chickasaws who are also at risk of being moved beyond the Mississippi and they they want them out of there the white governments of those states want them out of there so Jackson is trying to prevent this local defiance in South Carolina from spreading to three other states this is the political crisis and the missionaries the backers of the missionaries the American missionary board which was the Congregationalist group that employed them they told these guys in prison they said look the unity of the country is at stake here you should drop your suit and they did so you didn't get to that final step now in defense of these missionaries when the Cherokees you know a new treaty was extorted from the Cherokees and then off they worked force marched to Oklahoma these two missionaries went with them and they died in Oklahoma with their parishioners so they dropped their suit but but they were loyal to their parishioners okay that's that's all we have time for but thank you very much for coming. >> folks just a reminder there is a book signing one level up at the archives bookstore books are at the cash registers holidays are just around the corner


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