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pleasure to introduce a panel of three >> along with these television companies supports c-span 2 as a public service. friends, it is a pleasure to introduce a panel of three of america's most distinguished historians in the supreme court to teach us about significant justices that we may not have learned about before. gerard is the professor of law at the indiana university robert h. mckinney school of law. he's the author of many books we have had the pleasure of discussing at the ncc and the most recent is washington's air, the life of justice. research professor of law and director of the institute for constitutional studies at the george washington university law school.

as editor of the documentary history of the supreme court of the united states 1789 to 1800, professor marcus published eight volumes with many articles on legal history. she was appointed by the librarian of congress as the general editor of the oliver wendell holmes device history of the supreme court of united states in 2015. walter starr is a historian in the new york times best-selling author, a two-time winner of the stewart award for excellence in civil war biography, the author of several books including john j founding father and most recently lincoln's final rifle. thank you for joining us. if i may, gerard, let us begin with you. why did you choose to write about justice washington and why should our ncc friends be interested in him? >> thanks for inviting me.

it's wonderful to be here with such a great panel. i decided to write for a couple of reasons. no one had written a book about him before so that was a challenge. he was george washington's nephew and so this was a way of understanding george washington that is different from other approaches you can take. third is he was on the supreme court at a pivotal juncture for 30 years alongside john marshall and had a very close relationship with john marshall that predated their time on the court. it was a way of approaching the marshall court from a different vantage point and in doing so i came to believe that washington was really a pivotal partner for john marshall and that we ouldnderstand what the court did in those years as being largely the product of a team that is john marshall and bushrod washington and that

washington really played an important role in kind of providing support for what marshall was trying to do in building up the court as an institution. bushrod is interesting in his own right. he's interesting because of the people he was close to and he's also interesting because of some of the opinions he wrote as a judge. >> thanks for that great introduction. we will dig into both opinions and his relationship with marshall and so much more during our discussion. walter, same question to you. john j is better known perhaps then bushrod washington as a diplomat and founding father, but why did you choose to write about john j and why should our friends be interested? >> i was a practicing lawyer for a couple of decades and i was living and working in hong kong when it kind of hit me that i wanted to write a book. i fished around for a subject

and was originally thinking about governor morris and other founding father. i thought let's find the biographies of his friends. alexander hamilton, robert livingston, john j. i was shocked to learn the most recent biography of john j was from the 30s. i bought a used copy and read it and it wasn't that good. i thought even i can do better than this. so, i started researching and writing. jay has this amazing career in state, federal and international. most people today kind of know him for his role in writing the federalist papers or his role as first chief justice. he's basically the author of new york's first state

constitution, he's the first chief justice of new york's highest court, he represents america, first in spain during the revolution where he did have much success and then in france where adams and franklin have great success in the treaty that ends the war and establishes our boundaries and then as soon as he kind of gets off the boat upon his return from france he is tapped to be secretary for foreign affairs for the confederation. he's a leader of the movement to scrap the articles and create the constitution so although he's not a delegate in philadelphia he doesn't get a statue there at the national constitution center, i would argue that he's considerably more important than some of the lesser figures who do get statues short of showed up in philadelphia and didn't do much. as washington is forming the first federal government some

people talk about js secretary of treasury, some talk about him as secretary of state. in part, to help washington find useful jobs for his friends jefferson and hamilton he says i would like to be chief justice. even that isn't the end of his career. he goes on as chief justice to negotiate jay's treaty. he goes on to be governor of new york. a lot to research and write about. it was fun. >> wonderful. you raise an interesting question. why is it that he doesn't have a statue because he wasn't at the convention but why is it that the three justices we are talking about tonight who arguably have far more influence as you say on the constitution itself than some of the actual delegates? you've written so many justices but i

want to ask you about james wilson. you have a great piece on wilson as a justice. he was among the most important delegates to the convention. who came up with the idea we the people of the united states as a whole are sovereign and yet his influence on the court was less dramatic among other things because of his debts and he had a dramatic -- i will let you tell the story. why did you choose to write about wilson? what was he like? >> i didn't write about wilson. we have three pages on james wilson in our eight volumes. specifically, on james wilson he is a very interesting person. he came from scotland in 1765. he very quickly got involved in revolutionary activities in the

70s. he was very well educated. he had gone to st. andrews in scotland. philosophy, history, all of that showed throughout his career. he was never trained specifically as a lawyer, but he read law with john dickinson. i'm trying to remember. i finished these volumes in 2006. since then, have been living in the 20th century, so it's hard to remember all of this. i think he certainly had a political theory when he was a delegate to the constitutional convention and was very important in that convention and in the pennsylvania ratifying convention where he easily convinced them that they should vote for the constitution

and he very much wanted to be chief justice. there is no question. george washington was a very shrewd administrator and understood character and understood what was needed and believed that the judiciary needed to be developed into a third coequal branch and that james wilson was not the person to lead that branch because he was just too involved with his own problems. western lands he loved investing in western lands and had huge amount of debt as a result of that. he also -- i would guess, i

wasn't there, not an easy person to talk to or to actually deal with people because he was intellectually far superior. so, washington chose j. wilson was very good about this. he accepted the fact he was not chosen chief justice and he wanted to be an associate justice. he certainly, i would say, one of the workhorses along with james of the early supreme court. wilson lived in philadelphia and the capital of the united states was philadelphia so the supreme court met in philadelphia for nine of the 10 years. they met in new york the first year.

wilson was always present when things happened and when things needed to be done in the capital or to take someone's place. he was very good about doing circuit duty for other people when he could. towards the end of his life when his debtors started to chase him the second past 1795, 1796 he had to leave philadelphia and go down south so that his creditors could not reach him. he had been in jail in new jersey been in jail in new jersey after his son sprang him loose. he is the only justice i know of who had ever been in jail. it was a very, very sad story. and he ended up in north carolina with a relatively new wife. his first wife died, i think in

1786. and james wilson went on circuit in boston, met this young lady, shamus wilson wants, and this young lady was 19, and he married her, and she did look after him for the rest of his life. if anyone wants to read a lovely book about life in north carolina, at the very end, or throughout the years that wilson was on the court, my colleague, natalie wexler, wrote a novel called the more obedient wife, and it's about the wilson's, and i recommend it to everybody because it's a very good picture of life in the 1790s. and i always worry that people who talk about this court have no idea what life was like and

think of the supreme court of today, and therefore, cannot really assess the worth of that court, because they're judging it from a different standpoint. but wilson did not have the effect on jurisprudence that you think you would have, given his intellectual abilities, because he just did not engage enough with the court when he started to get so involved with all of these personal problems, western lands, debts, et cetera. so he did not leave much in the way of jurisprudence that we really used today. and in fact, nobody even thought about him. is one of the most important people of the constitutional convention. he was buried in north carolina, and i think he was

not brought back to philadelphia until about 100 years later when somebody remembered who he was. and brought his batty -- body back to philadelphia. so once again people have taken an interest in james wilson and they should take an interest in james wilson, but for many reasons, not only as a justice. >> wonderful summary of the life of an unappreciated founder. thank you for the recommendation of the book, the more obedient wife, and what's of book recommendations throughout the show. paige smith has a biography. wilson's influence on the phrase of the pursuit of happiness. his reflections on the extent of legislative authority in britain was one of the two documents that thomas jefferson had by his side for the declaration. wilson in the tavern with his

young wife, dying of malaria. after he has been sued by his fellow supreme court justice -- no, no. well, not a supreme court justice. she was sued by pierce butler who was a senator in north -- >> i will take it from you. he was sued by butler, who i thought sat on the court. >> no. >> dying in death, he is convinced he wants to defend his legacy and said at least it should not -- should be said that i was an intellect which was a remarkable comment. but his avarice and his overextension which was so well known, properly appreciating his legacy. you begin the book with a remarkable defense that justice washington makes of slavery. he has respected his uncles wishes that general washington free his own slaves and yet

washington defends the institution of slavery. tell us what his position was and really that remarkable story to his relationship with john marshall and broadly, his influence on the marshall court. >> in 1821, having inherited mount vernon from his uncle, he gathers his enslaved people together and tells them he will not be freeing them. the reason for this is because george had freed his enslaved people in his will. and so there was an expectation among those who were enslaved there that had been brought to mount vernon after watson's death, that they, too would be freed. they also had reason to believe that because justice washington was the head of the american

colonization society which was an organization dedicated to setting up a colony of liberia and encouraging the emigration of freed blacks to africa, which meant to some degree, people would be in the course of freeing their slaves to go to liberia. washington said, i'm not going to do that. in part because he was struggling for money. he had inherited mount vernon which was basically on the brink of -- it was a money loser, let's say. and he did not really have the means that george washington had used to keep mount vernon going. he was a lawyer, not a businessman of any skill, so he had a hard time with that. anyway, eventually, he sold some of his enslaved people to

be able to pay debts. this drew enormous criticism because he was a sitting supreme court justice. he was george washington's nephew. how could he do such a thing? you wrote a public letter, kind of a defensive, slightly guilty letter in which he said well, look, i've tried hard not to break up people's families. but you don't understand all the problems that i have because of the financial position that i'm in. it's definitely -- he was george washington's air both in washington's virtues and in his vices. his virtues were commitment to country, a sober temperament, dedication to building up the institutions of the new united states. but the vices were slavery. of course, he owned slaves all

his life's. george washington owned them all his life. so did john marsh. the book tried to say on one hand, he was the inheritor and also the practitioner of this terrible legacy. on the other hand, he did write an opinion that became for many people the foundation of the civil rights that freed slaves steve when the 14th amendment was under discussion after the civil war. so we see both the judicial legacy, which was much more expansive, or became so in terms of thinking about the rights of black people, in contrast to his treatment of black people personally. i should add that of course, part of the story is that there was one enslaved person that he freed, only one, and that was west ford, who was a washington

by blood here, certainly. whether he was washington's son, half-brother or nephew, we will never know, but it's pretty certain that he was one of them. someone who lived at mount vernon as a free man for many years and he inherited land from mount vernon from justice washington. so that is all part of the story but i tried to relay in the book. judicial, personal and sort of institutional. >> fascinating. as you note in the book, he studied with james wilson, as well. a connection between them. tell us about jay as chief justice. adams said he had long known as wilson but prefers jay. president washington chooses jay because he trusts him more

than wilson. he is so esteemed and all of these ways. he did not serve long but what was he like as chief justice? >> how to put it -- i think all of these early justices suffered. there really not many cases from that period that are still cited today. i went and did some research to see if they had been cited recently. the most important case, georgia the chisolm. or chisolm the georgia, yes. overturned by constitutional amendment almost immediately -- >> yeah. >> let's let walter give it a shot and then we will --

>> yes. >> it does not get cited other than in cases about the 11th amendment. sort of cited as background. justice alito cited it recently in a dissent, talking about the reason why it was necessary to provide a neutral forum in disputes. and then as you alluded to, the camps after not long in 1794. an imminent war with great britain and washington and hamilton asking him to go to england to broker a peace treaty. he is not really enthused about that but he agrees and he goes. and i was thinking about it in

preparation for today. in essence he sets up residence there and gets followed other times in our history, for example in 1876. they agreed to help resolve the election dispute. in the 1960s. they also set an important precedent. washington and jefferson wanted abstract questions. a lot of president in the english law for that. but thinking about it, they said no. that's not our job. in a sense he helps us establish the court will not do and what the court will do. incredibly important when you

think about if you've ever been involved in starting something from scratch, jay and the other justices are starting from thing -- something from scratch. they do a pretty good job of that. there is a functioning court for them to build upon. >> thank you very much for all that. is the vault, you have a bunch of important corrections. you are absolutely right. i was confusing him. in fact, he was called pierce butler. it would be great for you to give us a sense of that case. why was it significant? wilson played a part in it and i always asked, wasn't wilson correct? that the idea of sovereign

immunity was repudiated by the idea of national sovereignty and the decision was overturned by the amendment. an unfortunate repudiation. >> i agree with you. wilson and his colleagues were absolutely correct. even iredell thomas at to be at the center, it was not a question of whether the estate could be sued. he was descending on a procedural question whether congress should say something first to set the procedure for suing estate. how do you do it? who do you sue? the governor, the secretary? you know, however it is. that's what i rebel -- was asked upset about.

in favor of the national government, georgia could be sued in a federal court and they all agreed about that. then you get the profound shock overturned immediately. it was not. that's what i wanted to tell you. somebody sent a form of the 11th amendment to congress. now remember congress was not in session all the time, so it takes time. congress table to. they did nothing. that gave the opponents of suing states time to get together and bring it to congress once again. by this time instead of having the amendment say we can't sue state and federal form, it

shall not be construed and that gives judges leeway to do many things as 200 years of litigation will show you want to talk about that. the states took their time to approve the amendment. they finally did it in 1795. no one knew about it. we did not have newspapers and tv. the estates were along the seaboard and they did what they wanted and nobody knew anything. so states continued to be sued in the supreme court until 1798. and what is interesting about chisolm is that georgia which refused to appear at first in the case of chisolm the georgia

because they said they could not be skewed -- sued. what the supreme court said was that yes, you can be sued. they issued the following year default judgment against her addressing you did not appear, you owe x amount of money, pay up. georgia paid up. that's what i want you to know. states were worried. they understood what the constitution said about the government and it did not want judgments outstanding. new york paid a judgment during this time that the supreme court issued. you have to go into this in a very big way without saying the states cannot be sued. i agree with you entirely. under the original

constitution, states could be sued. now we have an all this litigation showing which states can be sued, which officials, how to get around it, all of that thing. right after the amendment was made known in 1798 and only made known because john adams said to his secretary of state, whatever happened to that amendment? and so he wrote to all the state officials. by that time, there were more states in the union, so one more state had to approve the amendment before it could become part of the constitution. that is the story of the 11th amendment and chisolm. i would also like to say something about jay as chief justice. i agree with walter entirely that you have to look at this as an institution that is beginning and they all

understood that everything they did as george washington understood in terms of the executive was going to be a precedent. and john j was very concerned with ethics. people won't know about today. they also served as judges of that servant courts. an intermediate tier. they went to different courts of the united states and jay would not allow the justices to stay with friends when they were in different cities, states and towns, because he did not like the appearance of any favoritism or knowing people. he was very, very careful about that kind of thing. the other thing he was careful about, which is very

interesting i think, is prayer. john did not believe -- and walter, you can tell me right or wrong in prayer before government meetings, he did not believe prayer should be part of the government. the court, the supreme court, did not begin with a prayer. the circuit courts did not begin with a prayer. except for new england. and jay was present, but it was the first year or two that this happened , and they did not want to antagonize the citizens who all came to hear court cases. it was kind of entertainment at the time. so in new england, somebody was allowed to, quote, address the throne of grace before the

court session began, but jay was dead set against it, so i just wanted to tell you that. >> fascinating, thanks very much . really interesting institutional background, and a reminder of jay's vision of ethics in court. i don't want to leave pushrod washington without getting a sense of his constitutional philosophy. he studied with james wilson, and underappreciated founding father. the philosophy of natural law from scottish enlightenment, embodied in this decision which must have been interesting for you to write about because one therapy 14th amendment, for pushrod washington's opinion is the central protection. so give

us a sense of what pushrod washington and james wilson's constitutional philosophy was, and to what degree they were successful in writing into this case. >> pushrod washington was a federalist like wilson and george washington. talking about the 11th amendment, he called it sacrifice to state pride. he was not a big fan because he was more interested in asserting national authority as an important structural protection for liberty. you know, while pushrod washington did study under james wilson, we have to say that had more of an influence by family leadership as well as many years of close interaction between them. correspondence that really began and went. pushrod was set up with james

wilson by george washington. he paid wilson's princely sum that he demanded to be pushrod's mentor. in other words, it is hard to imagine him taking a much different philosophy towards the constitution and george washington. it would have taken incredible intellectual independence and fortitude maybe to do that. he then carried that onto the court. in that sense, he was like- minded with john marshall, who is also a federalist. you know, when you come to a case like corfield, the interesting thing to me about the definition of fundamental rights that pushrod washington describes, which is what makes it famous, is that it is the product of someone who was changing his mind about the case. the most exciting thing i found when researching this book was a secret journal that was

pushrod's and contains his notes from many cases, sitting in a museum in chicago for decades and no one had really paid any attention to it. i was there and turn the page. what i see in front of me? corfield versus coryell. that's as close as i will get to hitting a jackpot i think for anything. what you learn there is that one of the reasons he decided to explain why he thought certain rights work fundamental under the privileges and immunities clause of the constitution is that the claimant in the case claimed harvesting oysters in new jersey waters if you lived in pennsylvania water was fundamental right. he had a hard time thinking through. he said can see him writing out, well, if you can use the waters to travel, and anybody has the right to do that. why can't you also take oysters

out of it? what is the difference? and the concluding that they are different, but to explain or defendant, he went on to articulate well, here things that are fundamental rights as it comes to harvesting oysters in another states waters. that's an example of how you get a major change in constitutional law or statement about constitutional principle, because you have doubts. and you're not certain about what the answers should be. i think you carry that through in other aspects of his judicial career, you know. when he would hold jury trials or write opinions, especially as a circuit judge, he would often say i'm not sure if i'm right. have done the best i can. this is the conclusion i've come to, but maybe i'm wrong. and you don't really hear any people saying that nowadays. really anywhere in the

judiciary. i think it's kind of a refreshing thing, and it reflects kind of well on his sensibility as a judge. that he probably carried over, perhaps carried over from wilson, i cannot say. >> completely fascinating. what a wonderful discovery of pushrod washington changing his mind. and you have really emphasize the importance of corfield and coryell. i will read this. in the debates over the 14th amendment as you described in your book on john bingham and james madison, the 14th amendment. i will ask you, walter, with the influence of the decision was on chief justice chase during the civil war. pushrod washington says in 1823, we feel no hesitation in confronting these expressions, privileges and immunities, which are in their nature fundamental which belongs to

the citizens of offered governments. what these principles are have to be more tedious and difficult to enumerate. this is what is always quoted. comprehended under the following general tenants, protection by the government, enjoyment of life and liberty with the right to acquire and possess property of every kind and pursue and obtain happiness and safety, subject over the last two grants from the government as a whole. i am speaking with excitement here because i had forgotten because of not read this clause, the right to pursue happiness and safety is itself considered a privilege of immunity and citizenship and the natural law of philosophy of the declaration, amazing. so walter, chief justice chase, how important was coryell to him? >> even before he becomes justice, he has a long career as what we would call a pro bono civil rights lawyer for

the civil war. so i can't say he cited it in that brief, because we don't have a lot of his briefs. he was familiar with the case in arguing for black rights, corfield comes up most notably in the case is decided near the end of chase's tenure in 1873. the three dissents in that case cite corfield. it is seen as the paradigmatic statement of what privileges and immunities mean. it is in a different bed of the constitution. the original constitution now. people think that is what it means and just disagree

violently. the majority in the slaughterhouse scene privileges and immunities viro narrowly whereas chief justice jace and other dissenters, it is considerably broader and breaches in particular the rights of the butchers in new orleans who wanted to pursue their trade without submitting to the state imposed monopoly. i should note that chase himself doesn't write an opinion. by this time, his health is not good. a couple weeks after that decision, it's announced he was dead of stroke. >> remarkable and so important to emphasize the disagreement of the scope of the immunities clause.

i won't eke out too much by summarizing the debate for our friends except to say it is a simple question in constitutional law as walter said. the majority basically read the immunities clause as if it only protected rights that were pre- existing in the federal constitution, whereas the dissenters said no, and includes all of these natural rights that were recognized in the slaughterhouse and in that sense applied the bill of rights against the states because the rights make it enforce the contract to sue or be sued and engaged in rights that are fundamental between state to state, protected by privileges or immunities. >> is your friend has noted, almost all scholars today, left, right and center's, agree with the dissenters and not the majority slaughterhouse. >> that is a crucial question. robert and others recognize that everyone agrees essentially that slaughterhouse

was wrong and there are some vigorous attempts to get the supreme court to overturn it. justice thomas has expressed mild interest but suggested it may be too late. it's one of those cases where the original understanding has changed on the majority decision. i will let you talk about the significance of corfield in whatever way you think best, but i have to ask you, because i was so excited to remember the pursuit of happiness language. i found it in slaughterhouse, as well where it says the decision of the 14th amendment places under the guardianship of the amendment, protection against monopolies, encroaching on liberty of citizens to acquire property and pursue happiness. do you have any thoughts on this idea that pursuing and obtaining happiness as a natural right was embraced at all in the early supreme court? >> no. they did not litigate anything

like this. or there was a disagreement, not specifically the pursuit of happiness. but whether natural law for things that were positive for specified should take precedence in dealing with a particular problem. that's the only time i've ever seen it mentioned. i think the early court was involved with things like judicial review. how about that? that was important in the first decade. and even though john marshall gets all the credit because you wrote it down, it was jay who was the first to exercise it. in philadelphia, a ridiculous sounding case. revolutionary war veteran who was disabled and wanted his

pension. and there was a statute that allowed him to go to court and ask for his pension. and he did this in philadelphia. and wilson absolutely refused to hear it. he said this is not something the judiciary does. justice is right to president washington and so you cannot ask us to listen to these veterans and say whether they should get pension, because that's not a judicial test -- task, and it is unconstitutional. these are advisory opinions. they were letters to the president. wilson was the only one who did it officially in the courtroom and set them not considering this case, that's the end of it. and then the case came before the supreme court, because the

attorney general, edmund randolph, went to court and said you have to order that court in philadelphia, the circuit court, to listen to this veteran, and if you look at dallas, dallas' reports, there is a paragraph about how the supreme court divided on a procedural vote. it was 3-3. six justices in the first court. and it has been assumed from that point that the question was could be attorney general come into court and ask the court to order another court, when there was no client, there was nobody, you know, there was not an adversarial thing. it was what they do in england, it was what they did in

virginia. you go to court and you ask them to do something and it's been assumed that the court said no. in the united states, we have the adversarial system, the plaintiff, defendant and that is not true. because it turns out that the question was simply, could the attorney general do this without first seeking the permission of the president? that was the question, and that is what they were divided on, but nobody knew that until we found the letters that told us that a few years ago. but as many justices say, we are not going to go back and change this. david shapiro and wexler, you know, we're not going to overturn this. it looks like the adversary system was inevitable. it wasn't, but that was the beginning of judicial review, and eventually, the court just did not decide the case because

they did not want to step on congress' toes. i mean, they say that. we will late, we will put it off, and they only met in february and august, and usually for a few days to a few weeks at the most. and by the time they end, congress changed the law, and it did with the judges wanted. so judicial review was accepted. in the supreme court in 1796 considered a case called helton v the united states, which considered the constitutionality of the carriage tax case. it was a case that put taxes on carriages. what is interesting about the case is that both the opponents of the tax, madison, and the proponents, hamilton and other people, they both wanted the supreme court to make the

decision. one way or the other, which means the supreme court had the power of judicial review, and everyone recognized it in 1796. so i just wanted to tell you that. >> wonderful. thank you very much for that. and that story of the history of judicial review is central. a lot of great questions. this will be our final round, so i will ask for each panelist to take up whatever questions they feel our best. i cannot resist answering how did early courts to find the right to pursue happiness? in the slaughterhouse case, justice fields dissents, saying that it's only a free government and the american sense of the term under which the inalienable rights of citizens are unrestrained except for just, equal and impartial laws. that is the definition of civil

liberty. the state in which each individual has the power to pursue his own happiness according to this, unrestrained and blackstone also uses the phrase pursuing happiness. pursuing the ordinary occupations of life, pursuing your calling on equal terms of other citizens is the legal definition, and then we have a great question about what we think about jens wilson in 1776. and i will let anyone weigh in but it was liable and completely unfair that he was made out to be such an anxious buffoon, because we know he was well-educated, certainly, perhaps one of the most brilliant of all the founders. it's only because of his unfortunate algorithm that he was forgotten in history, but we are giving him some love

tonight. you know, final thoughts on pushrod washington, his significance and what you want our friends to remember? >> i think there would not have been a marshall court without pushrod washington. no chief justice can do it all himself as john roberts. and john marshall, though, is giving this extraordinary credit as if he did everything on the marshall court and everything else, everyone else on the court was sort of not doing much at all. some of that was because of the way they structured their opinions, and having them almost always written or in the name of the chief justice, but when you look behind the scenes to the extent that we can, at the letters and other things exchanged among the justices and especially between washington and marshall, you

see that washington was very important and marshall said as much many times, that he really relied on washington as a collaborator and partner on all sorts of projects, including the book that they wrote, that marshall wrote about george washington. the opinions of the marshall court really should be seen as the product of the team, and a collective effort. law is a collective enterprise. no one person can sort of make a law in a democracy anyway. and so i think pushrod is an important figure because of his relationship with marshall, and that's what i hope people take away from the book. >> wonderful, thank you very much for that. walter, what takeaways should we have on chief justice jay? there are some questions about him including what changed the scotus from an itinerant job under jay to the supreme court

under marshall. sending the memorandum and refusing to give advisory opinions. these are your final thoughts, but give us whatever you think is most valuable. >> on the itinerary part, in a sense, the scored -- court is still i generated for a long, long time. jay would have been very happy . would have been very happy if you know, that lovely supreme court building which we now know had been built in, say, 1790 and they could have just parked themselves there and kind of had a wife akin to the current justices, but really 9/10 of their work was out on the circuits. that is still the case when you get to my more recent subject, chase. some of his most important were his circuit decisions in maryland, virginia and

elsewhere. jay is important as chief justice. if he had only been chief justice, it would not be worth people's while to read the book. you get all the way from the stamp act through marshall, alive and involved. so it is an amazing story. if i do say so myself. >> you made a great case for it in your wonderful book and i think that's important for many of these. for wilson, too. if he had just been on the court, not necessarily reading about, but in context among the towering. wonderful discussion to you, and among other things, mary asks, any recommendations on materials that fiscal students might manage on the early

courts? >> well, not much. i do have a book that i edited called with liberty and justice for all? the constitution in the classroom, and i recommend that phuket was supposed to be published april 26. now it is may 22nd, but it has lots of primary sources in it and a wonderful essay on the constitutional period and the early court. so i would recommend that to her. from my point of view, the early court is really important. you mentioned advisory opinions. of course, we have the famous letter from the court that says separation of powers. courts can't give advisory opinions. however, chief justice jay talked to president washington before they ever decided that.

chief justice jay wrote a draft of a neutrality proclamation. he was the one who advised them first , what the president issue a proclamation and let congress passed the neutrality act. and then the court, which has all of these cases, can come up and do exactly the same thing and say exactly the same thing, but as judges in a case, and that will make us look much stronger to the european nations. that was very important to the men. and it worked out that way. the case that they did brings up another point. the opinion of the court clearly supreme court understood that, too. and that opinion in 1794, they kept saying and the court says -- it was an opinion.

it was a decree of the court and it had four paragraphs. and every paragraph said and the court says -- and later in the decade, chief justice ellsworth always had things that said by the court. the opinion of the court was born in the first decade. not during the marshall era. people should really know things like that. >> wonderful. they should indeed and thank you for helping all of us know that. thank you, ava marcus and gerard for an engaging discussion on this important and too little understood period of the early court. give inspired all of us to learn more and i look forward to learning more with all of you. thank you so much for joining your thank you for taking an hour to learn and grow together. next up for c-span's

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