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television companies, supports c-span as a public service. >> friends, it is such a pleasure to introduce a panel of three of america's most distinguished historians in the early supreme court to teach us about significant justices that we may not have learned about before. gerard is the -- of the indiana university. the robert h mckinney school of law, the author of many books which we had the pleasure of discussing it ncc. we talk about the life of justice, maven marcus is the professor of law and director for institutional studies at the george washington university . many years. as editor of the documentary history of the supreme court of the united states, 1789 to 1800, professor marcus published a volumes with many articles around legal history.

she was appointed by the librarian of congress is the general editor of the history of the supreme court of the united states in 2015. and walter starr is a historian and your times best-selling author of two time winner of the sewer award for excellence and civil war biography as the author of several books, including john jade, founding father and most recently salmon p chase, lincoln's vital rival. you so much for joining us. if i met, gerard, let's begin with you. why did you choose to write about justice washington and why should our ncc friends be interested? >> thanks for inviting me, jeff. it's great to be here with such a great panel. i decided to write about washington for a couple reasons. no one had written a book about

him before so that was a challenge. secondly, he was george washington's nephew and so this is a way of understanding george washington and how he was different from other approaches to him. third is he was on the supreme court at a pivotal juncture alongside john marshall and had a relationship with john marshall that predated his time on the court. in doing so, i came to understand that washington -- we should understand what the court did in those years as being largely the product of a team that is john marshall and washington. that washington really -- providing support for what marshall was trying to do in building up a court as an institution.

he's interesting in his own right because of the people he was close to and he's also interesting because of some of the opinions that he wrote as a judge. smell wonderful. thank you for that great introduction. we will dig into both his opinions, his relationship with marshall, and so much more. >> better known as a diplomat and a founding father but why did you choose to write about john jay and why should our friends be interested in him? >> well, 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 and then i fished around for a subject. i was originally thinking about governor morris, another founding father and i thought, well, let's find the biographies of his friends,

alexander hamilton, robert livingston, john jay, and i was shocked to learn that the most recent biography of john jay was from the 30s. i bought a used copy, and i read it, and it wasn't that good. i thought, god, even i could do better than this. so i started, you know, researching and writing and j has this amazing career in state and federal international. most people today 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. he doesn't have as much success, and then in france

where he and adams and franklin have great success in negotiating the treaty that ended the war and establishes our boundaries. and then, as soon as he gets off the boat upon his return from france he is tapped to be secretary for foreign affairs for the confederation. he is a leader of the movement, creating the constitution so although he is not a delegate in philadelphia, he doesn't get a statue there at the national constitution center, i would argue that he is considerably more important than some of the lesser figures who do get statues, who sort of showed up in philadelphia and didn't do much. then, as washington is forming the first federal government, you know, some people talk about john jay as secretary of treasury, some people talk about him as secretary of state but, in part, to help washington find useful jobs for

his friends, jefferson and hamilton, he says i would like to be chief justice. and even that isn't the end of his career. it goes on as chief justice to negotiate jay 's treaty. he goes on to be governor of new york. a lot of research and write about. it was a fun process. >> wonderful. >> you raise a really interesting question. why is it that jay, 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, bushrod washington, john jay and james wilson, who are far more influence, as you say on the constitution itself than some of the actual delegates are less well-known? i will explain that over the course of the conversation.

maven marcus, you've written about so many of the justices but i want to ask 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 that we the people the red 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 -- and i will let you tell the story. what did you choose to write about wilson and what was he like as a justice? >> i didn't write about wilson. we have about three pages on james wilson in the volumes. . specifically, on james wilson . but he is a very interesting person and he came from scotland in 1765 and then 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, political theory, and all of that showed throughout his

career. he was never trained specifically as a lawyer he became, he read law, i think, with john dickinson. but i am trying to remember. i finished these volumes in 2006 and since then, i have been living in the 20th century so it's hard to remember all of this. but i think he certainly had a political theory when he was delegate to the constitutional convention and was very important in the convention and in the pennsylvania 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's no question. george washington was a very

shrewd administrator and understood what was needed. and believes that the judiciary needed to be in a third, coequal branch. and that james wilson was not the person because he was just too involved with his own problems. western lands, he loved investing in western land. and had a huge amount of debt as a result of that. not an easy person to talk to or to actually deal with the people because he was intellectually far superior to

all of them. washington shows j. but wilson was very good about this. he accepted the fact that he was not chosen chief justice and he wanted to be an associate justice. i would say he was one of the workhorses along with james of the early supreme court because wilson lived in philadelphia and the capital of the united states was philadelphia. so the supreme court met in philadelphia for nine of 10 years. in a new york first year. wilson was always present when things happen. and when things needed to be done. he was very, very good about doing circuit

duty for other people when he could. towards the end of his life, when his debtors started to chase and, 1795, 1796, he can do it. he had to leave philadelphia and go down south so that his creditors could reach him. he had been in jail in new jersey and his son springing was. he is the only justice i know that had ever been in jail. but it was a very, very sad story. he ended up in north carolina with a relatively new wife. his first wife died in 1786. and james wilson went on circuit in boston. this young

lady was 50 something years old and she -- was 19. and he married her. and she did look after him for the rest of his life. and if anybody wants to read a lovely book at the very end or throughout the years that wilson was on the court. my colleague, natalie, wrote a novel called, -- obedient wife. it's about them. and i recommend it to everybody because it is a very good picture of life in the 1790s. and i was worried that people 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 are judging from a different standpoint.

wilson did not have the effect on jurisprudence which you think you would have, given his intellectual abilities. he just didn't 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 didn't leave much in the way of jurisprudence that we really use today. in fact, nobody even thought about him. he is one of the most important people at the constitutional convention. he was buried in north carolina. i think he wasn't brought back to philadelphia till about 100 years later with some he remembered who he was and brought his body back to philadelphia. so it's only lately that people have once again taken an interest in james wilson.

they should take an interest in james wilson. but for many reasons. not only is injustice. >> wonderful summary of the life of an underappreciated founder. thank you for the recommendation of the book more obedient wife. we have recommendations throughout the show. i've just been reading for wilson's influence on the phrase, the pursuit of happiness. legislative authority in britain , one of the two documents that thomas jefferson had by his side when he wrote the declaration, you are right about that. he is in the tavern with his young wife, dying of malaria, after he's been sued by his fellow supreme court justice. >> he was sued by butler, who was a senator.

>> oh. i will take it from you. he was sued by butler, who i think sat on the court. dying of debt. -- which is his defense of his remarkable combat. but i will be interested in whether all of you think it was his avarice and overextension, which was so well noted, has prevented us from properly appreciating his life. you be in the book with a remarkable defense that justice washington makes of slavery. he has respected his uncles wishes that president washington free his own slaves. and yet, -- defends the position of slavery. tell us what his position was and relate that remarkable story with his relationship with john marshall and his

influence on the marshall court. >> in 1821, he inherited mt. vernon from his uncle. he gathers the enslaved people together and tells them that he will not be freeing them. the reason for this is because jordan had -- george had freed his enslaved people against his will. and so there was an expectation among those that were enslaved there that he had brought to mt. vernon after martha washington's death that they too would be freed. justice washington was the head of the american colonization society, which was an organization that was dedicated to setting up the colony of liberia and encouraging the immigration of free blacks to africa, which meant to some degree that people would be

freeing their enslaved people so that they can go to liberia. nevertheless, washington gathered them and said, look, i'm not going to do that. in part, that was because he was struggling for money basically. he had inherited mt. vernon, which was basically on the brink of, well, it was a money loser let's say. he didn't really have the means that george washington had used to keep mt. vernon going. and also washington was a lawyer and not a businessman of any skill. he had a harder time with that. anyway, eventually he sold some of his enslaved people to be able to pay debts and such. this drew enormous criticism. for one, he was a sitting supreme court justice. two, he was george washington's

nephew. how could he do such a thing? he wrote a public letter. kind of a defensive, slightly guilty letter in which he said, well, i tried hard not to break up people's families. we understand all the problems that i have because of the financial position that i'm in. he was george washington's air in washington's virtues and vices. his virtues were commitment to country, sober temperament, dedication to building up the institutions of the new united states. but the vices were slavery. george washington had owned them all his life. so did john marshall. and so the book tries to say that, on one hand, he was the inheritor and 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 the freed slaves should receive when the 14th amendment was under discussion after the civil war. you see, both of the judicial legacy, which was much more expensive, 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 of the book is that it was one enslaved person that he freed, only one. and that was west ford, who was a washington my blood. whether he was washington's son, half-brother, nephew, we will never know.

but it's pretty certain that he was one of them. he is someone who lived at mt. vernon as a free man for many years. and he inherited land from mt. vernon from justice washington. so that's all part of the story that i try to relay. judicial, personal, and institutional. >> fascinating. as you note in the book, he studied with james wilson as well, which was a connection between most great founding fathers. walter, tell us about him as chief justice. adams said he had long known the esteemed wilson. but he prefers him. president washington chooses jay because -- you deserve all along. what was he like as chief justice of the united states?

>> all these early justices suffer in comparison to -- and they really aren't many cases from that period that are still cited today. went and did some research to see if they've been cited recently. the most important is -- georgia. it has the dubious distinction of being overturned by constitutional amendment almost immediately. >> know. >> let's get walter get a shot. >> yes. >> it doesn't get cited much in cases other than the 11th amendment as part of the background. justice alito cited it recently.

your talk about the reason why federal court is necessary to provide a neutral form of interstate disputes. as you alluded to, i think, the camp suffered a very long, in 1794, at war with great britain. washington and hamilton asked him to go to england and he's not real enthused about that. but he agrees. he goes. i was thinking that in preparation for the day. in a sense, he sets a precedent there that then gets followed various other times in our history, for example, in 1876 when the justices agree to help resolve the election dispute or the 1960s agreeing to supervise

the war commission. and they also set an important precedent on the other side in the neutrality crisis. washington and jefferson wanted the justices to answer a long list of abstract questions. and there was a lot of precedent for that. jay and the other justices, about it, said, no. that's not our job. we decide cases and controversy. in a sense, he will helps establish kind of what the court will not do it with the court will do. and it's also greatly important to just think about, if you ever been involved in starting something from scratch. jay and the other justices are starting something from scratch. and they do a pretty good job of that. so that by the time john marshall comes there's a

functioning court to build upon. >> thank you, very much, for all of that. first of all, you have a bunch of important corrections. and you're absolutely right. i was confusing and with the new deal area justice, but the pierce butler as you say, modern u.s. senator. it would be great for you to maybe give us a sense of that case. why was a significant? wilson played a part in it. i asked our dear friend, i always ask him. was it wilson correct that the idea of state sovereignty and immunity was repudiated by the constitutional embrace of national sovereignty and in that sense the decision was overturned by the 11th amendment with the unfortunate

repudiation of what wilson did. >> jeffrey, i agree with you. wilson and his colleagues were absolutely correct. and even --, who is always said to be at the center, was not dissenting on the question of whether estate could be sued. he was dissenting on a procedural question on whether congress should say something first to set the procedure for suing a state. how do you do it? who do you sue? d.c. the governor, do you see the secretary? whoever is an official of the state. that's what he was upset about. but chisholm versus georgia was decided in favor of the national government. georgia could be sued in a federal court and they all agreed on that. and then you get this whole

business, this profound shock. it was overturned immediately. it wasn't. 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 yes, it takes time. but congress tabled it. they did nothing about it. so that gave the opponents of suing states time to get together and bring it to congress once again. but by this time, instead of having the amendment so you can't sue a state in federal court is the current form of the amendment shall not be construed. and that gives judges leeway to view many things as 200 years -- litigation.

i will show you that i can talk about all that. but the interesting part is the states took their time to approve the amendment. the requisite number of states finally did it in 1795 but no one knew about it. remember? newspapers and tv. the states were along the seaboard. they did what they wanted and nobody knew anything. in some states continued to be sued in the supreme court until 1798. and what is interesting about chisholm is that georgia, which refused to appear at first in the case of chisholm versus georgia, because it said it couldn't be sued, with supreme court did after saying yes, the 90 3k said, yes you can sue. they issued the following year,

a default judgment against georgia, saying, he didn't appear, you owe mr. chisholm x amount of money. pay up. well, georgia paid up. that's what i want you to know. states were worried. they understood what the constitution said about a national government. and they didn't want judgments outstanding. new york made a judgment during this time that the supreme court issued in oswald versus new york. see have to go into this in a very good way without just saying, states can't be sued. i agree with you entirely. under the original constitution states could be sued. and now we have all this litigation showing states can be sued, which officials, how to get around it, all of that kind of thing.

right after the amendment was made known in 1798. it was only made known because john adams said to the secretary of state, whatever happened to that amendment? and so he wrote all the state officials. and by that time there were more states in the union. one more state had to approve the amendment before could become part of the constitution. that's the story of the 11th amendment and chisholm. i sort of would also like to say something about the chief justice because i agree with walter entirely, then you have to look at this as an institution that is beginning. and believe me, they all understood that everything they did, as george washington understood in terms of the executive, was going to be a precedent. and jon jay was very concerned

with x6 -- ethics. they wrote circuit, which people know about today. but they also served as judges of the circuit court, intermediate tier that was trialing courts. but they went to different parts of the united states and jay would not allow the justices to stay with friends when they were in different states, cities, towns, because he did not like the appearance of any favoritism or knowing people. he was very, very careful of that kind of thing. the other thing he was careful about, which is very interesting i think, is prayer. jon jay did not believe, in prayer, right before government

meetings. he did not believe that prayer should be part of the government. the court, the supreme court did not begin with the prayer. the circuit courts did not begin with a prayer. except for new england. and jay was present. but it was the first year that this happened. and they didn't want to antagonize the citizens who all came to hear court cases. it was kind of entertainment at the time. in new england sunday was allowed to, quote, address the throne of grace before the court session began. but jay was dead set against it. i did want to tell you. >> thanks very much for

interesting interinstitutional background and reminder of jay's vision of ethics for the court. i don't want to leave -- washington without getting a sense of his constitutional philosophy. you persuasively argued the most underappreciated founding father. from wilson, this philosophy of law from scottish indictment. -- it must have been really interesting for you to write about because they invoked washington's opinion is the central protection for rights of natural citizenship. so just give us a sense of what washington and wilson's constitutional philosophy was, as to what degree they were successful. >> he was a federalist, like

wilson and george washington. indeed, just talking about the 11th amendment. bush rod called it a sacrifice to state pride. meaning, he was a big fan. he was more interested in asserting national authority has important structural protection for liberty. you know, while he did study under james wilson, you have to say that george washington is probably far more on bush rod simply by his family leadership and the fact of many years of close interaction between them. correspondence that really began when bush rod was set up with wilson by george washington. washington paid a princely sum that he demanded to be bush rod's mentor. in other words, it's hard to imagine him taking a different

philosophy toward the constitution and george washington. it would have taken someone of very incredible intellectual independence and fortitude to be able to do that. he then carried that onto the court. in that sense, he was like my john marshall, who was also a federalist. when you come to a case like corfield, the interesting thing to me about corfield and the definition of fundamental rights that he describes in corfield, which is what makes it famous, is that it's the product of someone who is changing his mind about the case. so the most exciting thing i found when i researched this was a secret journal that bush rod contained notes in many cases in chicago. no one really paid any attention to it.

i was there. i turned the page. what i see in front of me? corfield versus coryell. that's as close as i'm ever going to get to hitting the jackpot i think. in what you learn there is one of the reasons we decided to explain why he thought certain rights are fundamental under the privileges and immunities clause of the constitution is that the claim in the case was that harvesting wasters in new jersey waters, if you lived in pennsylvania, was a fundamental right. he had a hard time thinking it through. because he said to himself in his notes, you can see and writing out, well, if you can use the waters to travel and anybody has the right to do that , why can you also take oysters out of it? what's the difference? so hit up concluding that, okay, they are different, but to explain or defend that he then went on to articulate, here are things that are fundamental rights to harvesting wasters in another states water.

that's an example of how you get a major change in constitutional law or a statement about constitutional principle because you have doubts. and you are not certain about what the answers should be. i think you carry that through. in other aspects of his judicial career, when he was on jury trials or write opinions, especially as a circuit judge, he would often say, i'm not sure if i'm right. i've 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. or really anywhere in the judiciary. i think it's kind of a refreshing thing. it reflects kind of well on his sensibility as a judge that he probably carried over. perhaps carried over from

wilson. i can't say. >> really fascinating. what a wonderful discovery of him changing his mind. and you have emphasized the importance. so going to read this simple paragraph that was quoted so often during the debates over the 14th amendment, as you describe in your book on john bingham, james madison and the 14th amendment. and then in a moment i'm going to ask you all with the influence of this decision was on the chief justice during the civil war. so washington says in 1843, we feel no hesitation in confining these expressions to privileges and immunities -- fundamental, which belong to the citizens of all free governments. what these fundamental principles are far more tedious than difficult to enumerate. it's always quoted, become cobranded under the following general heads. protection by the government,

enjoyment of life and liberty with a right to acquire and possess property of every kind, and to pursue and obtain happiness and safety. the subject, nevertheless, as described for the generalizable, and speaking with excitement here because i had forgotten. i haven't read this clause for a bit. the right to pursue happiness and safety is itself considered a privilege or amenity citizenship and a natural right connecting to the natural office -- philosophy of decoration. amazing. so walter and chief justice chase. how important was it to him? >> before he becomes justice, chase is a long career of what we would call a pro bono civil rights lawyer, before the civil war. i can't say cited in that brief or that brief. but he was familiar with the case.

in arguing for black rights. both in courts and political. it comes up most notably in the slaughter cases. decided near the end of chase's tenure on the court. in 1983. everyone, both the majority opinion and the three dissents in that case cites corfield. it's seen as kind of the paradigmatic statement of what privileges and immunities mean. it's in a different of the constitution when justice washington was interpreting it. you know, the original constitution. now it's in the amendment. but people think that is what it means. they just disagree over the majority and they read privileges and immunities there. there's just these few federal things. whereas, chief justice and the

other dissenters think that is considerably broader and reaches , in particular, the rights of the butchers in new orleans wanted to pursue their trade without submitting to the staples monopoly. we should note that chase himself does not write an opinion. at this time his health is not good and a couple of weeks after that he will be dead of a stroke. >> remarkable and so important to emphasize disagreement about the scope of the privileges or immunities. i will geek out too much by summarizing the debate for our friends, except to say, a simple question constitutional law, as walter said, the majority in slaughterhouse read the clause is a federally protected rights

that were pre-existing in the federal constitution. where's the dissenter said, it includes all of these natural rights that are recognized in slaughterhouse. and in that sense, basically a wide the bill of rights against the state because the right to make and enforce contract to sue, be sued, and engage in rights that are fundamental between state to state is protected by amenities. >> is your friend, for professor, almost all legal scholars today, left right and center, agree with the dissenters and not the majority in slaughterhouse. >> that the crucial question. the core and others recognize that essentially slaughterhouse is wrong and there are vigorous intensity of the supreme court overturn it. justice thomas has expressed that it might be too late. it's one of those cases where the original understanding is

clearly inconsistent with the majority decision. maeva, i will you talk about the significance and corfield that you feel best. i would have to ask you, because i'm so excited to remember the pursuit of happiness lane which. that i found in slaughterhouse as well with the decision that says the 14th amendment laces and the guardianship of the national government a protection against monopolies which are in an invasion of -- allowing citizens to acquire property and pursue happiness. you have any thoughts about whether this idea about pursuing and obtaining happiness and safety was a natural right was embraced at all? >> no. they did not litigate anything like this. the only mention of it was in -- where there was a disagreement, and not specifically the pursuit of happiness, but whether natural law or things that were

positive law. things that were specified. if they should take precedence in dealing with a particular problem. that's the only time i've ever seen is 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 he wrote it down, it was james wilson who was the first exercise. it was in philadelphia. he had a ridiculous sounding case, a revolutionary war veteran who is disabled and wanted his pension. there was a statute that allowed them 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. and all the justices wrote to president washington and said, you can't ask us to listen to these veterans and say whether these veterans should get a pension because that is not a judicial task. it is unconstitutional. but these were all advisory opinions. they were letters to the president. wilson was the only one who did it officially in the courtrooms. and then, the case for the supreme court because the attorney general just went to court and said, you have to order that court, the circuit court in philadelphia, to

listen to this veteran. and if you look at dialysis reports, there's a paragraph about how the supreme court divided on a procedural vote. it was 3-3. six justices in the first court. it has been assumed, from that point, that the question was, can the attorney general come into court and ask the court to order another court when there was no client. there is nobody. it wasn't an adversarial thing. it was just what they did in england and virginia. you go to court and you ask them to do something. and it's been assumed that the court had said no and in the united states we have the adversarial system cling to defend them. and that is not true. because it turns out that the

question was simply, could the attorney general do this without first seeking the -- of the president? that was the question. and that's what they divided on. but nobody knew that until we found the letters. then they told us that a few years ago. but as many justices say, we are not going to go back and change this. david shapiro. we are not going to overturn this. it looks like the adversarial system was inevitable. it wasn't. but also, that was the beginning of judicial review and eventually the court just and decide on the case because they didn't want to step on congress's toes. they say, we will wait. 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. by the time they met congress change the law and did the judges wanted. so judicial review was excepted. and then the supreme court, in 1796, considered a case called hilton versus united states, which considered the constitutionality of the carriage tax case. the case to put taxes on carriages. but what's interesting about the case is that both of 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. i just want to tell you that.

>> wonderful. thank you very much indeed for that. that story of the history of judicial review. lots of great questions. i think this is going to be our final round. so i'll ask for each panelist to take up whatever questions they feel best. i can't resist answering, how did early courts to find pursuing happiness? it's interesting that in the slaughterhouse case justice fields cites blackstone and says that only is a free government and the american sense under which the unalienable right for citizens to pursuit of happiness -- partial laws. that's the definition of civil liberty. that state in which each individual has the power to pursue his own happiness according to this, unrestrained . and the citation is to blackstone, who also uses the

phrase, pursuing your true x essential happiness. so pursuing the ordinary application of life, pursuing your calling on equal terms with other citizens was the legal definition. and then we have a great question about what we think about the portrayal of james wilson in 1776. i will let anyone else way and that it was completely unfair that he was made to be such an anxious buffoon because he was in fact the most well-educated, certainly, and the most brilliant of the founders. it was because of his unfortunate avarice and death that he has been forgotten to history. but we are giving him some love tonight. final thoughts on pushrod washington, his significance and what you want our friends to remember them for.

>> i think there would have been a marshall court without pushrod washington. no chief justice can do it all himself. ask john roberts. john marshall is given this extraordinary credit as if he did everything on the marshall court and everyone else on the court was just sort of not doing very much at all. some of that was because of the way they structured their opinions and having them almost always the written or in the name of a chief justice. but when you look at behind-the- scenes, to the extent that we can, the letters and other things that were exchanged among the justices, and especially between washington and marshall, you can see that washington was very important. and marshall said as much many times, that he really relied on washington as a collaborator and a partner on all sorts of projects. including the book that they wrote, that marshall wrote about

george washington when pushrod was his editor. so the opinions of the marshall court really should be seen as the products of a team and a collective effort. law is a collective enterprise. no one person can sort of make the law. in a democracy anyway. 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 scotus from a job -- supreme court under marshall jonathan. j sending a memorandum refusing to give advisory opinions before he went to negotiate. these are your final thoughts. i will leave us with whatever you think is most relevant. >> in a sense, the court is

still itinerant for a long, long time. jay would have been very happy. i think indeed all the members have been very happy if family supreme court building, which we now know, i think it was built in 1790. they could've just parked themselves there and kind of had a life akin to the current justices. really, i don't know, 9/10 of their work was out on the circuits. that still the case when you get to my more recent subject, sammy chase, some of his more recent decisions as chief justice are the circuit decisions in virginia, maryland, and elsewhere. you know, j, as important as chief justice, really it's the whole life. if he had women chief justice it would not have been worth my while to write a book. you are going to get all the

way from the stamp act through the marshall court. jay is alive and involved in. so it's an amazing story. if i do say so myself. >> he made a great case in your wonderful book. that's really important point for many of these people we are talking about. certainly for jay and for wilson too. if he had just been on the court. not necessarily reading about it but looking for life in context. maeva, the last word in's wonderful discussion is to you. among other things, mary asks, any recommendations on materials high school students might manage on the early courts? >> on my court, not much. i have a book that i edited recently called, with liberty and justice for all,??

it was supposed to be published april 6th. nounce may 22nd. it has lots of primary sources in it. and a wonderful essay by mary on the constitutional period, the early court. i would recommend that to her. from my point of view, the early court is really important. you mentioned advisory opinions and of course we have the famous letter from the court that says, separation of powers. courts can give advisory opinions. however, chief justice j talked to president washington for the ever decided that. chief justice jay wrote a draft in the neutrality proclamation. he was the one who advised them first and let the president issue a proclamation the congress passed the neutrality.

and then the court, which has all of these cases in the pipeline, can come up and do exactly the same thing and say exactly the same thing. but as judges in a case, that will make us look much stronger to the european nations. and that was very important to them then that worked out that way. and the case that they did, it brings up another point. marshall in the opinion of the court. the fact of the matter is, the early supreme court understood that too. and that opinion in 1794, they kept saying, and the court says. it was an opinion, a decree of the court. it had four paragraphs and every paragraph said, and the court says. then later in the decade, chief justice ellsworth always has

things that said, by the court. the opinion of the court was born in the first decade. people should really know things like that. >> wonderful. they should indeed. thank you for helping all of us know that. maeva marcus , and engaging discussion on this really important and much too little understood period of the early court. you've inspired all of us to learn more. we look forward to hearing more from all of you. gerard, walter, maeva, thank you for all joining us for an hour to learn and grow together. >> friday nights watch c-span's 2024 campaign trail. a weekly roundup of the c-span campaign coverage, providing one-stop shop to understand what candidates across the country are saying to voters. along with firsthand accounts

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