The Pete Quiñones Show - Episode 1352: The Road to Civil War Pt. 5 - Marshall's Court - w/ George Bagby

Episode Date: April 5, 2026

81 MinutesSafe for WorkGeorge Bagby is a content creator and publisher of long-forgotten books. George joins Pete to continue a series detailing the long lead up to America's Civil War.George's Twitter AccountGeorge's Pinned Tweet w/ Links George's YouTube ChannelPete and Thomas777 'At the Movies'Support Pete on His WebsitePete's PatreonPete's Substack Pete's SubscribestarPete's GUMROADPete's VenmoPete's Buy Me a CoffeePete on FacebookPete on TwitterBecome a supporter of this podcast: https://www.spreaker.com/podcast/the-pete-quinones-show--6071361/support.

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Central Bank of Ireland. Tartreacht or covalchuk, I reckon you do next to drubloat in Iska, fan at a gladdock and a year of course or nine, or on one of the two, to coon of all, on Gord the coasts.

Beak on dinner with neither to cover comfort and trowrach in the subalty to the either the

matter of the matter of a lot of other than other than a year a year ayesha

and subalto be shupui and water safety in the Heighting if you want to get the show early and ad free

head on over to thepec Cignonas show.com I'm going to say this slow because I know a lot

of you are doing this at one and a half speed or two times speed. If you want an RSS feed, it is only available if you subscribe through Substack or Patreon. You will get the audio file if you subscribe through my website, subscribe star, or Gumroad. And the links are all there at the piquinonez Show.com. I just want to give thanks, continued thanks to all of you who support me and a me to do this and be able to put out the amount of content I can do and hopefully the kind of quality that keeps you coming back. So I'm only able to do this because of you. So head on over to the Pekinguneo Show.com and you will get the episodes early and ad free. Thank you. I want to welcome everyone back to the Pekignano show. George Bagby is back and we are going to do part five of the

lead up to America's Civil War. How are you doing this evening, Mr. Bagby? I'm doing well. Been very busy, doing lots of reading and studying. It's been very good. Awesome. Awesome. Looks like we're going to talk about the Marshall Court tonight, so I'll hand it over to you. Yes, indeed. So the big question of the Supreme Court is just how many powers does this body of government have and how many is it supposed to have and such. The most important figure in the entire history of the court is John Marshall of Virginia. And he proves to be in some ways more important in a constitutional sense than Alexander Hamilton was because John Marshall was the great chief justice.

John Marshall was the man that was most instrumental in reading Hamilton's constitutional opinions into constitutional law, or at least our tradition of what we think of when it comes to how we interpret the Constitution. So ironically, it was yet another Virginian that proved to be the, the, most instrumental of the Hamiltonians, which shows that this was not just a sectional thing. This was a broader American kind of conflict. You have Hamilton from New York. You've got John Marshall, who is the most important of the Hamiltonians from Virginia.

So the powers of the Supreme Court, especially the power of the court to review cases, to review congressional legislation, to review actions of the executive, the power of judicial review is what this is called, is a controversial power in the history of the court. And there are great many people attached to the court in its history that have expressed skepticism of the court's powers. Charles Evans Hughes, who was an unusual Supreme Court justice, chief justice, in that he was in presidential politics and actually ran against Woodrow Wilson as the Republican nominee before going back and, of the Supreme Court, Hughes said, we are under a Constitution, but the Constitution is what the judges say it is. And that's a kind of truism, a kind of proverbial observation about the Constitution. The judges have a tremendous amount of power to say what the Constitution means at any

controversial point, the Supreme Court and the federal judiciary are designated aristocratic branches of the federal government. They are special branches in that they don't stand for election. We don't have any popular check on the powers of the judiciary, certainly not in practice, though the Constitution does provide for something like this, it hasn't proven to be an effective check on the judiciary. The judiciary, the federal judiciary and the Supreme Court, they are specialized members of government. They are chosen for their expertise, or at least their excellent political connections that get them this kind of sinecure job that is more or less impossible to lose. And this was a, this was very early, a controversial element about the judiciary.

Article 3 of the Constitution gives us a little option that has proved. to be completely insufficient to check the power of the judiciary. I've got it marked here. Here we go. Here's Article 3 of the Constitution. The judicial power of the United States shall be vested in one Supreme Court and in such imperial courts as Congress may from time to time ordain and establish. The judges, both of the Supreme and Superior Courts,

shall hold their offices, during good behavior and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office. So there is this slight description of a check on the power of the judiciary. They should hold their offices during good behavior. This was early grounds to challenge the tenure. of federal judges. And during the Jefferson administration, impeachment was attempted to check the power of the federalists that were running the Supreme Court at the time. Partisan judges who were doing very controversial things, and we'll get into. This was completely unsuccessful in Jefferson's administration.

And it has not seriously been attempted ever since. Federal judges have not faced impeachment. No Supreme Court justice has ever been removed from the bench since the impeachment of Justice Chase during the Jefferson administration. That failed. And it has not been attempted since then. So it's been a kind of tradition about the judiciary. The judiciary has become the unchecked branch of the federal government.

No impeachment has been attempted since the administration of Thomas Jefferson. And in practice, it has become completely independent and unaccountable. So this is a very important branch in that it is not elected, and it has a a lot of special arbitrary powers, most of which it has granted to itself. And that is the controversy about judicial review, the doctrine of judicial review, because it was created by John Marshall and invested as a power of the Supreme Court. And we'll talk about the implications of that. This is, let me remind our listeners, precisely the kind of fear the anti-federalists had about this proposed constitution, the Philadelphia Constitution. It's Masters Week. Just outstanding. Get ready for four days of the unmissable.

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18 plus membership acquired content streamed via the internet. Royal London Ireland, award winning. Year after year after year after year. For the fourth consecutive year, Royal London Ireland has won the overall financial services excellence award by brokers Ireland because real excellence isn't a one-off

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Royal London Insurance Act trading is Royal London Ireland is regulated by the Central Bank of Ireland Tartreacht or half-valtuch is going to Heirin. do you do you know the one of the United States,

fan at the Gleadockin a year of course on NIE, or on one of the do to Kuna Aal on Gawad the Coaster. Beak of the Dinnah in Comport and truerach in Sawvaltocker

Eid. She's the thing that's a lot of Makh, or other to answer to RON in Iska in Macacup. FAN Socker, be Shoupi and Savolte. Tilly OLLUS Lofal

at Water Safety Punk A.E. Let's talk about the truth of the United. The Supreme Court in Article 3, there's not very much that's said about it, that they're going to have the power to review cases arising from the states that concern the Constitution and the powers of the federal government. If I can read a bit of Section 2 from Article 3 here, this outlines the powers of the Supreme Court. It is a little involved.

but it's important to understand exactly what the Constitution says on this. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made, or which shall be made under their authority, to all cases affecting ambassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be party, to controversies between two or more states, between a state and citizens of another state,

between citizens of different states, between citizens of the same state, claiming lands under grants of different states, and between a state or the citizen thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations, as the Congress shall make. So this is an allusion to judicial acts of Congress. which establish federal courts and also define to some degree the powers of the Supreme Court. Notice there is nothing in Article 3 about just how many Supreme Court justes we will have, nor even anything about subordinate federal courts, the Federal Appeals Court jurisdiction and such things. It just says that Congress has the power to establish.

establish such things, and that Congress shall make laws to define them. Now, this is so broad and so defined as to be very dangerous as a political power, and the anti-federalists early speculated that this would be used to curtail the powers of the states, that the Supreme Court would strike down state laws and even state constitutions, curtailing the claim of the states to sovereignty. This was actually precisely what federalist justices, most notably Justice John Marshall of Virginia, had in mind he manifested in his career the specific concerns of the anti-federalists, thereafter better known as the Republicans, confusingly.

Thomas Jefferson's opposition party was known as the Democratic Republicans. They have more in common or more of a heritage associated with the Democratic Party, the oldest political party in the United States, that unfortunately has suffered from schizophrenia in recent times. Complete personality change, in other words, not at all proud of. of their connections to Thomas Jefferson and Andrew Jackson, who were their greatest leaders in times past. So another historian of the Supreme Court, Jay Allen Smith, wrote about the concerns of the judiciary

overruling the legislative power, both the power of Congress to make laws. Of course, Congress is a representative body. It's a Republican body. It has accountability to the electorate and so on. And also state legislatures, the concept of judicial supremacy, giving the federal courts or even state courts power to review legislature that arises from an accountable Republican body, the legislature or Congress, is a controversial doctrine. Nevertheless, it was very early established in our constitutional history by John Marshall. So Jay Allen Smith, a historian of the Supreme Court, he said, the advocates of judicial supremacy were careful to support judicial supremacy.

as a means of protecting popular rights and enforcing constitutional checks on officials. No other instance in the whole history of constitutional development where public opinion, there is no other instance where public opinion has been so misled as to the fundamental nature of a political arrangement. The real purpose was to centralize political authority largely in the Supreme Court through the power of final interpretation. So this was an ambition of the Federalists. This was something that they privately hoped they could accomplish, and they were very careful not to be explicit about this publicly. Nevertheless, the anti-federalists and Republicans were wise to their scheme. And John Taylor of Caroline is the best example of the man that saw the federalist

judicial scheme quite clearly. In his book, Constitutions Construed, which is his great attack on John Marshall's tenure, specifically the landmark case, McCullough versus Maryland, which we'll talk about in a moment. So early in Washington's administration, we see the first of the Judiciary Acts of Congress. We see the Judiciary Act of 1789. This is the act of the legislature that creates subordinate federal court jurisdictions. and also establishes the Supreme Court with its original justices. There were six originally, which is an interesting choice on their part.

We now think of the Supreme Court as deciding most controversial questions of constitutional import, and we have had a tradition now for quite a while of having nine Supreme Court. court justices. Incidentally, if you're wanting a very good and succinct and critical evaluation of the Supreme Court as a branch of government, I recommend the book Nine Men by Fred Rodel. This is a classic of the genre. It's also very manageable, written for a popular audience. And I much appreciate Fred Rodell for his skepticism of various points in the Supreme Court's

assumed powers. It's also very realistic, right? This is a matter that is particularly American in the sense that American or the framers, the founding fathers, they were. very optimistic that they could write down our fundamental laws in a succinct way, that this was going to be the basis of our political union, and that the meaning of the article of union, the Constitution was going to be a straightforward kind of thing. This was unrealistic optimism, as we've already discussed at some length here.

They were figures of the Enlightenment. It's very important for us to keep that in mind. And even the opposition of the Federalists with Thomas Jefferson, and his friends like John Taylor, they were also men of the Enlightenment. They believed they could read the Constitution and clearly understand what it established. In retrospect, we can look at this and say, men of goodwill, men of education, men of highest motives could come away from

from reading the Constitution and its associated interpretation, such as the Federalist Papers, the constitutional debates, the convention debates, they could come away from that with radically different ideas about what kind of union government we have. This is a special American political tragedy, but it is also unavoidable conflict. It's Masters Week. Just outstanding. Get ready for four days of the unmissable. What a fantastic part.

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What about that? 18 plus membership acquired content streamed via the internet. Royal London Ireland, award winning. Year after year after year after year. For the fourth consecutive year, Royal London Ireland has won the overall financial services excellence award by brokers Ireland. Because real excellence isn't a one-off.

It's something you deliver again and. And again, when it comes to life insurance and pension products, choose a provider you can trust. Talk to a financial broker or visit Royal London.com.combe broker. Royal London Insurance Act Trading is Royal London, Ireland is regulated by the Central Bank of Ireland. Tartreacht or hallvaltuch, Iska, if you can you do any kind of drubloat in Iska, Fane at the Gleadok, and ear to hear of them Gleagh at 999

or one of the other do with the coon of all on Gord the coasts. Beak on the dinner in the Comport and trowalach the Ead. She's the thing

the far to make or Gleast Thoreauhullough or other to answer to the Ackop. FAN'sokud, be shupui and sovolta

Tilly Olyleash, to fall at Water Safety, Punk A.E. Let's talk yet and write us in the Heiden. That ambitious statesmen like Hamilton

who wanted to establish a more centralized form of government had everything that was necessary to carry out their wishes. And those opponents of a more centralized form of government,

the Republicans later more strongly associated, particularly with the South for several reasons, could come away thinking that they understood the real design of the government and could manage the union in some way with their own particular vision. They come into fundamental conflict with one another, and this is the legal interpretation of the sectional conflict. There are other grounds on which they fall into competition with one another and eventually decide to fight one another on this issue. It's basically a, it amounts finally to a political separation, a independence movement,

in fact, the differences in interpretation are so fundamental that it finally results in civil war. the Southerners resolving on independence because they no longer believe that they can maintain their particular interpretation and the checks that they've developed against this centralizing tendency. Both, well, I think maybe especially the Republicans, the Southerners, Republican in the Jeffersonian sense, I mean, are. particularly deluded on this point, that they could read the Constitution and say, yes, but we disagree with its interpretation from these official sources, such as the Supreme Court. All we need is to have our men in the Supreme Court. They finally get that in the Jackson administration. He puts a Jeffersonian in the Chief Justice's Chair, Justice

Justice Tauny of Maryland, the famous man who decides the Dred Scott decision, which is another landmark decision we'll eventually get to. This is not enough. The institutions have been built. It's a Hamiltonian machine. And they cannot retool it and curtail its powers. And the next presidential, The next big presidential administration of Lincoln, the ascension of the GOP into the White House and Congress cinches it for them. They realize, wow, we can't turn this back. And that's why they finally decide on independence. So much of this is built into the interpretation of the law. So back to the Judiciary Act, the first one, 1789.

It gave the Supreme Court the power to affirm or reverse on appeal state laws after a high court ruling in their states of origin or give a ruling that a certain federal law was bad. So we see kind of implicit in that congressional. act, a kind of judicial review, giving the Supreme Court a purpose. What kinds of cases will the justices here? We see the Supreme Court justices in the early days, this original panel of six justices, all of them, notable federalists, they travel far and wide. Court actually does not have very many cases that ascend to that high level of jurisdiction.

The Supreme Court justices instead spend most of their time traveling around hearing cases in the federal courts in the various regions. So they spend an awful lot of time traveling. For much of their history, they don't even have a dedicated building. in the Capitol when John Marshall ascends to the Supreme Court under the Adams administration, the Supreme Court is actually meeting in a room in the basement of the Capitol. It's kind of an ironic oversight. This very important branch of government doesn't have an independent building.

Actually, until the 1940s, that's when the current Supreme Court building is built behind. the Capitol in Washington, D.C. by the Roosevelt administration. In 98, we see the Sedition Act passed Congress and is signed into law by President John Adams. This results in a great many important federal cases because this is a federal law, and we've already gone over the contents of the Sedition Act. It is a very partisan kind of act. Curtailing the press, curtailing political speech is specifically concerned with what's called malicious speech against elected officials, specifically the Adams administration,

and specifically President Adams and the Federalist Party. And here we see the outbreak of specific partisan kind of speechifying and politicking from the bench. Justice Samuel Chase, a very important early Supreme Court justice, and a high federalist, a Hamiltonian, if you will. he takes specific delight in prosecuting Republican newspaper editors. These are newspapermen, journalists and such, who are supportive of Thomas Jefferson's policies, are more pro-French in their beliefs. We can identify them as on the radical side. And yet the federalists are...

enforcing the Sedition Act against them. They are imprisoning newspaper editors. They are fining them. And they take the opportunity to grandstand on the bench, to make political speeches from the bench in relation to the rulings on the Sedition Act. This is very unpopular and discreditable, and it results in a backlash by 1800 when we see the attempt of President John Adams to run for re-election, we see the first party change in the executive, the ascension of Thomas Jefferson to the White House. Just before Jefferson takes office, the lame gun. duck federalists who still have John Adams in there for a few more months, they make a couple of really bold moves. In 1801, they pass the second Judiciary Act. They greatly expand the

federal judiciary. They create a lot, a bunch of new federal appointments, so they are hoping to hold judicial power far after their departure from Congress and from the White House. So they're hoping for a federalist continuity. They create many more federal judge seats by the 1801 Judiciary Act and President Adams appoints John Marshall to the Chief Justice position in the Supreme Court. This is one of the most consequential choices ever made by a president to put Marshall in the chief chair in the Supreme Court. Lastly, John Adams on his last night as president moves quickly to try to appoint as many of these judges from the Judiciary Act as he can. He appoints 42 judges and deposits their commissions in the executive mailbox before leaving office and giving way to Thomas Jefferson's inauguration.

So when Jefferson shows up with his cabinet, notably he makes James Madison, who is himself destined to go to the White House, He makes James Madison his Secretary of State. So the Secretary of State at that time did other things as well as being the chief foreign minister. He also sent out the mail. James Madison decides not to send out the judge commissions, the so-called midnight judges of the last night of Adams' administration. Because the Republicans are aware the federalists are trying to perpetrate their power into the future by appointing as many justices as they can or as many judges as they can before they leave office. Many of these judges, by the way, are very minor roles like justices of the peace. They're like local officials.

They don't have very much power in the federal judiciary. But this becomes important. Jefferson makes mention of the Sedition Act in his inaugural address. And we recall Jefferson is also the author of the Kentucky Resolution, which advocates for state interposition of these federal laws that violate the Bill of Rights. really doing a lot to build up the southern tradition of state sovereignty, states' rights to check federal legislation and actions of the executive and the judiciary. Jefferson also calls out the partisan official grandstanding during the Adams administration. This is a slight illusion in his inaugural address that is directed,

towards Justice Chase of the Supreme Court and other federal judges who are known to use their position to grandstand for political causes, basically attacking Republican sentiment. They're attacking the opposition party of their time from the bench and then prosecuting, punishing, imprisoning, and fining their political. political enemies through the Sedition Act. This comes to a head with Marbury versus Madison and the impeachment of Judge Chase. So the Federalists leave the Congress and they give way to the wave of Republican congressmen that rise with Thomas Jefferson in the 1800 election.

So Congress is now switched over to the opposition party. The opposition party is running Congress. The Democratic Republicans are there, and they have the White House as well. Jefferson and his cabinet are in favor of curtailing the judiciary and the powers thereof through impeachment. This is their plan. They call up Justice Chase to Congress with articles of impeachment. The House votes in the majority in favor of impeaching Justice Chase for his frank partisanship

on the bench. He goes to the Senate. Aaron Burr is presiding over the trial. in the Senate because the Senate acts as a the judge in impeachment cases. Ironically, Aaron Burr has just been in his duel with Alexander Hamilton. He actually comes back from the duel directly to preside over the impeachment of Justice Chase. This is discreditable.

Aaron Burr loses an awful lot of status through his famous duel with Hamilton for obvious reasons. He killed a prominent statesman. Totally beside the point whether or not this was justified under the circumstances or whatever, Hamilton did accept the challenge of the duel from Burr and so on. That itself is an interesting tale that I'll get into later. but we have the acquittal of Chase. Chase does face a vote in front of the Senate, and he is acquitted, so he keeps his office. This is the only time that a Supreme Court justice has ever faced impeachment. And it was due to that very controversial clause that judges shall hold their office in good behavior. So how do you define bad behavior?

Well, partisan behavior seems to fit that bill, but it did not carry with Chase. The Senate was not convinced, and they release the judge. He is acquitted on the articles of impeachment. The second matter is the first of Marshall's landmark cases, Marbury v. Madison. Marbury was one of the judges that was appointed by President John Adams at midnight on his last day in office. This was an important moment. Marbury brings suit against James Madison, specifically because James Madison did not post his commission of appointment to the federal judge. judgeship. This was a short-term appointment. This was not an important appointment. William Marbury, his name immortalized in this landmark Supreme Court decision,

was appointed Justice of the Peace in the District of Columbia for a period of two years. This is very low stakes. But this was a test case. a test case that Marshall made an opportunity out of. Marshall decides, he decides to take this case under the request of a court order. So Marbury has petitioned the Supreme Court for mandamus, which is the Supreme Court delivering an order for something to be accomplished, namely the commissioning of the executive appointment of Marbury. So Marshall rules in Marbury v. Madison.

He says that the judges were entitled to their commissions. So he is faulting Madison for not saying. sending the commissions. Marshall goes on to say, and this is very important, and we see something of Marshall's brilliance here, he was an incredibly capable legal mind. Though he was not educated in law specifically, he turns out to be one of the most brilliant legal minds that the country has ever seen the like of because he is extremely clever in his ruling. He is avoiding conflict with the executive. And at the same time, he is amplifying the powers of the Supreme Court. Though he rules that Madison was at fault for not sending

the commission and that Marbury was entitled to this commission, Marshall attacks the Judiciary Act of 1789 from Congress. He does not attack the executive nor order the executive to make the appointments. Instead, he actually turns to the congressional authorization of Supreme Court powers and declares the congressional bill establishing Supreme Court powers is technically unconstitutional. So this, a simpler ruling would be the mandamus. What Marbury was asking for. He wanted his job.

He wanted to be a federalist judge. That would have been the simple ruling. but Marshall knew he would be in direct conflict with the executive there. And he wisely avoided that conflict. He was not going to tell the president what to do, who to appoint. He was not going to deliver a mandamus. In fact, he turns to the Judiciary Act of 1789 from Congress, which defines various Supreme Court abilities.

and he declares the ability to issue a mandamus unconstitutional. So he said that technically the Supreme Court cannot order the delivery of the commission and that the 1789 Act permitting the order of mandamus is void. This establishes the precedent the most consequential. precedent of the Marshall Court, which is judicial review. The Supreme Court assumes the power through logical argument, not from precedent, that they have the power to check the lawmaking abilities of Congress, even though they are not an elected body, they are an aristocratic and in practice totally unaccountable body.

So this establishes the judicial review in effect of executive actions and of Congress. It creates judicial review and it does not follow precedent. The Supreme Court may not be ordered to do something, but may order. In effect, that's the result of Marbury v. Madison. So this establishes the concept of judicial review in our legal tradition. Fred Rodell writes in his history, an opinion is huddled up in conclave. No, no, this is Jefferson quoted by Rodel.

Jefferson is critical of this power assumed by the court of judicial review. he says an opinion is huddled up in conclave perhaps by a majority of one delivered as if unanimous and with the silent acquiescence of lazy or timid associates of the supreme court by a crafty chief judge who sophisticates the law to his mind by the turn of his own reasoning And so Jefferson is very opposed to this, saying that this is an unaccountable power grab on the part of Marshall. Now, things follow from this. Marshall is the author of several major landmark decisions in Supreme Court, and I will here go through a few of them. In 1819, where several major decisions come through the court, Marshall presides over the case of Dartmouth versus Woodward.

This concerns Dartmouth College in New Hampshire. Dartmouth College happened to be a federalist stronghold, a small at that time, all-male college, a private college, established by King George III, actually, who gave the college its charter. They had had a falling out because of political differences with the state government of New Hampshire. So the state government of New Hampshire had become a Republican kind of stronghold. They were unusual in New England and that they had diverged from the Federalists. The government of New Hampshire wanted to re-charter Dartmouth College and have a say in who is going to be a member of the board, who had the authority to choose professors and govern the school.

So this was a question of charters, but John Marshall made this question of contracts. So the charter establishes a state corporation. Now, this is a little strange because this predates the Republican institutions of America. This is actually a royally chartered institution. This is not a controversial point in the case itself. They take that for granted. So there was the attempted state takeover, and they're attacking the original stated purpose of this institution.

Dartmouth College was started by a congregationalist minister specifically to educate the Indians in Christian theology. They had diverged from that and in a kind of panic, the board of Dartmouth College, when they're dealing with this suit with New Hampshire that wants to make their school a public university, in effect, with board members appointed by the state, it would no longer be a private institution, and they want to force out the Federalist Old Guard that run the school. The school, amusingly, goes into French Canada to recruit Indians for education as quickly as they can. They actually bring them down the Connecticut River to Hanover, New Hampshire, where Dartmouth College is. And as soon as the Indians come in sight of the town of Hanover

with its smokestacks and its busy streets and everything, they panic, they jump overboard and swim over to Vermont and disappear into the wilderness. And so Dartmouth is embarrassed. They're trying to do what their original charter said and have Indians there at the university free of charge to educate them in Christian theology, supposedly to show that they really are doing what their charter said. But it's this amusing little episode where that completely fails. They appeal to the Supreme Court on the matter of the charter. And Dartmouth hires Daniel Webster of New Hampshire, a lawyer, a brilliant man, as we will see, a centralizing sort of force in American politics.

We will later analyze his career as relates to the union and the sectional conflict, where he figures very largely. He becomes one of the giants of the Senate. Though he does not represent his home state of New Hampshire, he ends up representing Massachusetts. But Webster had actually gone to Dartmouth. And Webster is in the end of federalist sentiments in the way of Hamilton. He is a nationalist in his thought. He is also an advocate of Hamilton's ideas about the future of the United States wrapped up in these corporate structures.

So he plays this key role in this particular case which safeguards corporate charters. This is the importance of Dartmouth versus Woodward. Webster defends Dartmouth in front of the Supreme Court, and this is the occasion of a very famous speech that he makes. Webster emotionally recollects his experiences with Dartmouth, says that Dartmouth is being attacked by those that ought to love it most, And he says, it is a small school, but there are those who love it. And of course, he is counting himself as one of them. And this is a very powerful bit of rhetoric at the time. And it's one of the most famous lines Marshall ever delivers.

That's all next to Marshall's opinion. When Marshall writes his opinion for the case, he says, the charter is a contract. And this is a sacred sort of legal device that states may not interfere with. So it is unregulatable by the states. It is unchangeable by the states. Now, this in retrospect is extremely important. It means that business corporations, not just universities, but business corporations are held to be founded by legal contracts.

Though the state actually creates these immortal legal persons, the state cannot regulate them after they are chartered. So, according to Albert Beveridge, who is one of the great biographers of John Marshall, in addition to being a famous progressive Republican senator from Indiana. This created a brand new confidence in the business classes, the merchant classes. It made, it encouraged and enlivened all manner of investors and corporate securities because now there is a landmark Supreme Court decision safeguarding corporate charter

generally. There is no law impeding these contracts. And it strikes down the state power asserted by New Hampshire at the time to regulate corporations that they themselves had chartered. The next case is McCullough versus Maryland, which was also decided in the same year as Dartmouth. And once again, Daniel Webster is presenting the case to the Supreme Court. So he is a lawyer presenting the case. This is an interesting one because it concerns the Bank of the United States. And so it has particular interest for us because this is a fundamental question about the interpretation of the Constitution, if the Constitution shall be interpreted broadly or not. The state of Maryland had passed a tax on the second Bank of the United States.

The first bank dissolves in 1811. After its 20-year charter, Congress authorized the establishment of this federal corporation, the Bank of the United States, in Washington's administration. But James Madison, though he actually called on its re-charter, left it up to Congress. and his own vice president, James Madison's own vice president,

cast the deciding vote against the rechartering of the Bank of the United States in 1811. Very consequential choice, because this was right before the very expensive war of 1812. So Madison kind of sabotaged his own ability to prosecute that war by the dissolution of the bank. Nevertheless, the state of Maryland, which was an adherent to Jefferson's interpretation of the Constitution, the strict interpretation, had instituted a confiscatory tax on the Bank of the United States, designed to close its operations in the boundaries of Maryland. Now, this was a federally chartered corporation. So the question is whether a state can impose its will on something the federal government wants done. But it is a very complex argument because Marshall must first assert that the

federal government had the authority to establish this corporation. Marshall revisits the argument Hamilton made for the broad construction of the Constitution. And this is the key element in McCullough v. Maryland. Marshall reads Hamilton's liberal construction of the clauses of the Constitution that permit the government to do what it finds convenient. he reads it into a landmark case of the Supreme Court. Marshall notably says in this case, the power to tax is the power to destroy.

Now, in that, he is in conflict with Maryland's declared power to tax, to tax a federally chartered corporation. Marshall first argues using Hamilton's argument that the Bank of the United States is a constitutional corporation. Second, Marshall argues, state supremacy over federal charters and law is unconstitutional. So he strikes down Maryland's law that. taxes the Bank of the United States. This is a landmark decision for two important reasons. Hamilton's interpretation becomes the official interpretation of the Supreme Court. Secondly, Marshall uses this special power of the Supreme Court to strike down a state law

from a state legislature. and he is insisting on the inferred constitutional powers of that old argument between Jefferson and Hamilton from Washington's administration. Lastly, with Marshall, we have Gibbons versus Ogden, which is an 1824 case. This is a complex one, and it involves business. corporations and interstate commerce. So some years previous, the remarkable Robert Fulton had installed a steam engine on a ship in Hudson River, just beside New York City.

And he patents his steamship invention, and gets key backing, financial backing, from the Livingston family, which is an old and important political family in the state of New York. They produce several governors and such. They establish a steamship monopoly in New York so that only the Livingston-Fulton company can run steamships in Hudson River and elsewhere. They actually get a steam monopoly in New Orleans as well. So they are branching out to other areas.

And this is patent, and they're trying to keep anyone from using their special steam technology. In 24, a operator, who had contracted to use the Fulton steam technology on ships in New Jersey, had received his own special monopoly to operate steamships off the coast of New Jersey, by the New Jersey Governor, Mr. Ogden. Now, Mr. Gibbons, who holds the steamship monopoly in New Jersey, has his contract revoked by the state of New Jersey. This goes to law and goes to the Supreme Court because the

federal government has jurisdiction over interstate commerce and the Livingston-Fulton outfit is trying to monopolize interstate commerce. So Gibbons suit against New Jersey revoking the his right to run his steamships off the coast of New Jersey. He is asserting that states should not hold monopolies on trade because this is an element that concerns other states. So this is an involved argument, but we can see the importance of it. This is a matter of interstate commerce. Once again, Daniel Webster is delivering the brief forgiveness before the Supreme Court. So we see Webster's very important legal career figuring prominently in the story of John Marshall. Webster argues New Jersey Governor Ogden is wrong to deny

steam, to deny the steam monopoly or the license to run steam ships to Mr. Gibbons because Congress has power over interstate commerce. And this monopoly doesn't come from Congress. It comes from a state government. So we see here, Gibbons versus Ogden is another conflict between state governments and the federal power. And it involves the interpretation of federal powers. Although Marshall had ruled in the Dartmouth College case on the sanctity of contracts, and he has precedent to rule in Ogden's favor for the in the unalterable character of corporate charters, which is what this concerns, Marshall, again, is extremely clever. And his goal is to amplify federal powers using Hamilton's construction and to establish the Supreme Court as this means to increase the power of the federal government.

And so though we can look at the precedent and say Marshall could have ruled in that way, Marshall does something very clever and again increases federal power over the states. So Marshall rules in Givens v. Ogden, where the Congress has special powers, the states have none. So he abolishes the state charters related to the steamship monopolies. Now, in response to this, a Republican senator, not Republican in the sense of the GOP, I realize these terms do get very confusing. But in the context, I'm referring to people that are in sympathy with Jefferson's strict interpretation of the Constitution. Senator Richard Johnson of Kentucky said of the Marshall Court, we are admonished to receive their opinions as the ancients did the responses of the Delphic Oracle

or the Jews, the communications of heaven. Another Supreme Court justice from the 20th century, Harlan Stone, Stone said of the powers established in the Marshall Court, particularly judicial review. The only check upon our own exercise of power is our own sense of self-restraint. So Supreme Court justices have extremely broad powers. they conduct their decision-making in secret. They even choose or ignore petitions for review of any number of controversies. They conduct that process in secret as well.

We do not know the internal workings of the court, and these things remain secret. are likely never to be publicized. In extension from that, I've prepared a list of cases to illustrate how Supreme Court rulings have changed norms in very unexpected places. Way back in 2014, I was just a... a new history teacher and I've been set to teach an American government class, what eventually became a class I entitled Political Science. One of my favorite accomplishments, I actually put together a textbook for that class, which was made of primary source readings, including Supreme Court cases. But way back in 2014, or it might have been the spring of 2015, I remember well, I got up to explain to my seniors in my political science class how Supreme Court opinions built on one another.

And my special focus was the upcoming gay marriage case, which we were anticipating to come from the court that summer when they would release their opinions. And I got up in front of my students and I gave them the history of a number of modern Supreme Court cases. So I started my review with Griswold v. Connecticut, which was the Supreme Court case of 1965. Griswold v. Connecticut established a famous Supreme Court doctrine called the right of privacy. Griswold v. Connecticut was a suit of the Griswold family against the state of Connecticut to strike down a blue law of Connecticut that forbade the use of contraceptives by married couples. This was a very old law dating back to colonial days. Connecticut was also not doing anything serious to enforce that law in 1965, but it remained on the books.

And this was one of these special advocacy kinds of cases that make their way to the Supreme Court. There was money and a bunch of high-profile lawyers willing to litigate this pro bono because they wanted to change laws with the Supreme Court precedent. So they took it to the Supreme Court and the Supreme Court struck down the law against the use of contraception. perception, effectually ruling that sexual behavior is only fruitful when an individual or couple wants it to be. That's the takeaway from Griswell versus Connecticut, but it does establish the famous doctrine of the so-called right of privacy. something evidently that does not apply to the NSA or Congress itself, which reauthorizes the Patriot Act with regularity. The second case was related to Griswold, and that's Eisenstadt v. Baird.

Eisenstott v. Baird is another ACLU case decided in 1972. it was a professor in Boston who decided to distribute contraceptives to his undergraduate students at college. This was against the law in the state of Massachusetts for the very simple reason that it's encouraging promiscuity among the unmarried. and that this was a legitimate state interest because the state disproportionately ends up saddled with the results of promiscuity. You are encouraging the production of bastards in the community, literally, by promoting promiscuity by distributing contraceptives to the unmarried. So this violates a law of the state of Massachusetts, and the Massachusetts' help. Department was party to this case and once again the right of privacy strikes this down so no longer is sexual behavior recognized in state law as something

necessarily involving the married or should involve exclusively the married so sexuality and reproduction is not something natural or recognized by legislation. It is married or not married. It is productive, natural, or not. Next is Loving v. Virginia, 1967, which was another special advocacy kind of case that strikes down Virginia's law against miscegenation. Mr. Loving of Virginia with his poetically appropriate name, perhaps, had married a woman who was part black and part Native American. This is technically against the law of Virginia, which legislates against miscegenation. What's more important here is not the miscegenation, but the Supreme Court finding that marriage is a constitutional right that cannot be denied.

in law. So that's the takeaway here that I was focusing on. Next, of course, is Roe v. Wade, 1973, which strikes down all state laws against abortion. The justification for Roe versus Wade was the right of privacy, established with Griswold v. Connecticut, or, you know, stated by the Supreme Court. This means that even after conceptual, of sex does not necessarily have any connection with procreation unless it is desired. So we have a stopgap with the technology of abortion. Next is Lawrence versus Texas, a case from 2001. This strikes down all state laws.

against sodomy or unnatural sexual acts. The story of it is incidental, not particularly important. What happened was in Houston there was a police chase underway, and there was a fugitive who is running through a residential area, breaking into houses, running through houses while police were hot on his tail. happens is the Houston Police Department go into a private residence and find two men. They are arrested because this is a law on the books and they were witnessed in the act of a felony. And it is taken once again the ACLU active to change social norms whenever they see an opportunity,

litigated it all the way to the Supreme Court where the Supreme Court strikes it down. strikes down indeed all state laws defining natural sects. Now with those cases I outlined them to my students and I announced to them back in I think the spring of 2015 is when when I did this particular lesson. I said in my view the logical progression of the Supreme Court is overwhelmingly in favor of gay marriage. And indeed, only a couple months later we got Obergefell v. Hodges, which strikes down all state laws defining the limits of marriage as between a man and a woman. That it is in fact natural law.

it's designed by our creator to be procreative. All of the previous precedents on this matter served to undermine that interpretation, indeed to manifest a distinct hostility against that interpretation. And I still remember speaking to my students and just kind of matter-of-factly saying, we're going to have a gay marriage ruling, given all these precedents. This is the direction the Supreme Court's been moving in my whole life. And indeed, long before. But I turned out vindicated. I wasn't happy about that.

But it is the process of judicial review that was established so long ago that changes American legal norms, not through the acts of legislatures, but through the acts of judges who have a particular vision of what they think the law should be, which is one of the downsides of judicial review, aside from the fact that it's a way of making laws outside of the legislative process. And this is the great argument historically against the doctrine of judicial review, from which all of the cases that we have covered here fall under, that it is a power assumed by the Supreme Court outside of precedent that amplifies their unaccountable pseudo-legislative power. And this was a particular point of opposition in the growing sectional conflict. So that is my brief on the career of John Marshall and his landmark cases. We will continue on these points. I'll make reference to these things later on.

But I do have a certain satisfaction in looking back at that. Because I am a partisan for the grandeur of the great state of Virginia, where I lived many happy years, that it wasn't enough for the remarkable Alexander Hamilton to state his opinions as a cabinet official. it took a Virginian to really install them into our constitutional law. It took John Marshall, who is one of the great Virginians, though I question the ultimate impact of his legacy, obviously. Yeah, I think with everything you just went over and considering the overarching theme of this series, I think, people if they're paying attention they know exactly where this is going and why this becomes relevant later yeah i think so yeah so um thank you we'll be back uh back soon probably next week to uh pick it up but please uh remind people where they can uh where they can support you and uh find

your work yes indeed um I've got a website. It's www. tallmanbooks.com. I have been hard at work at a couple of volumes in my Chronicles of America series. And I also have a biography of John Taylor of Caroline. That's already, it's just waiting for its cover.

I've got a couple of volumes related to what we've been talking about here that should be coming online any day now. So if you watch my account on X, which is at Tallman Books, you'll see me announce the availability of those volumes there. I've got one volume, Washington and his colleagues, which is an overview of the Washington and Adams administrations,

very succinct volume about them. and I have another one called John Marshall and the Constitution by one Corwin. And this is a high federalist take on John Marshall. This guy thinks John Marshall hung the moon. But nevertheless, it is a very valuable and succinct overview of the life and career of John Marshall. So I have both of those books coming online very soon just in the next couple of days. If you watch my social media, you'll be able to see links to those when they come online. And I'll let you know when John Taylor's biography comes online, I'm really excited about that one.

I was motivated to do John Taylor after I edited Corwin's volume. I wanted to have a counterbalance to his federalist position. Awesome. Awesome. Well, thank you, Mr. Bagby. and excuse me. Have a good evening. Until the next time. My pleasure. Thank you.