friends, it is such a

pleasure to introduce a panel of three of america's most distinguished historians of the early supreme court to teach us about significant justices that we may not have learned about before. gerard mallioka is the samuel r rosen professor of law at the indiana university robert h mckinney school of law. he's the author of many books which we've had the pleasure of discussing at the ncc and the most recent which we're here to talk about is washington's air the life of justice, bushrod, washington. maybe marcus is research professor of law and directer of the institute for constitutional studies at the george washington university law school where we've been colleagues for many

years 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 devised the history of the supreme court of the united states in 20 15 and walter starr is a historian a new york times best selling author a two-time winner of the seward award for excellence in civil war biography. he's the author of several books including john jay founding father and most recently salmon p chase lincoln's vital rival. thank you so much for joining us gerard maybach and walter if i may gerard let us begin with you. why did you choose to write about justice bushrod, washington? why should our ncc friends be interested in him? well, thanks jeff for inviting me and it's wonderful to be here

with such a great panel. i decided to write about bushrod, washington for a couple of reasons first. 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 that is different from other approaches you could take to him. 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. and 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 should understand what the court did in those years as being largely the product of the team. that is john marshall and bush red 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. so bushraud 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 that he wrote as a judge. wonderful. thanks for that great introduction, and we will dig into both his opinions his relationship with marshall and so much more. during our discussion walter starr same question to you. john. jay is better known perhaps than bushrud washington 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? well, i first i was a practicing lawyer for a couple decades and i was living and working in hong kong when it kind of hit me that i i wanted to write a book and

then i fished around for a subject. i was originally thinking about governor morris and other founding father. and i but i thought well, let's find the biographies of his friends and alexander hamilton robert livingston, john jay and i was shocked to learn that the most recent biography of john jay was from the 30s. and i bought a used copy and read it and it wasn't that good. i thought god even i could better than this. so i started, you know researching and writing. i mean jay has this amazing career in state federal and international. i mean most people today kind of know him for is role in writing the federalist papers or his role on the as first chief justice, but 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 broad first in spain during the revolution where he doesn't have much much success and then in france where he and atoms and franklin have great success in negotiating the treaty that ends the war and establishes our boundaries. and as soon as he kind of gets off the boat upon his return from france. tap 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's he doesn't get a statue there at national constitution center. i would argue that he's considerably more important than some of the lesser figures who do get statues. you know who sort of showed up in philadelphia and didn't do much. and then as washington is forming the first federal

government. you know some people talk about j as secretary of treasury some people talk about him as you know secretary of state, but it in in part to help washington find useful jobs for his friends jefferson and hamilton. he says i know i'd like to be chief justice. and even that isn't the end of his career, he goes on as chief justice to negotiate jay's treaty and goes on to be governor of new york. so a lot to research and write about it was it was a fun process? wonderful. um you raise a really interesting question. why is it that jay he doesn't have a statute because he wasn't at the convention. but why is it that the three justices were talking about tonight? bush was watching and john and james wilson. who arguably have far more influence as you say on the constitution itself and some of the actual delegates are less well known and we'll explore that. of course the conversation naval

marcus you've written about so many of the early 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 that we the people of the united states as a whole our sovereign and yet his influence on the court was less dramatic among other things because of his deaths and he had a dramatic personal and i'll let you tell the story on. why 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 our eight volumes. you know. 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 saint andrews and scotland. philosophy history political theory and all of that show throughout his career he was never trained specifically as a lawyer. but he became he read law i think was john dickinson. but i'm trying to remember i finished these volumes in 2006 and since then 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 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. and 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 co-equal 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 and he

also was not i would guess i wasn't there not an easy person to talk to or to actually deal with the people because he was intellectually for superior. to all of them and so washington chose jay 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. and he certainly i would say he was one of the workhorses along with james aradel. 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 those for nine of the 10 years. they met in new york the first year and wilson was always

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

wife. his first wife died and i think 1786. and james wilson went on circuit in boston at this young lady james wilson was. 50 something years old and this young lady 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 about life in, north carolina at the very end or throughout the years that wilson was on the court my colleague matt natalie wexler wrote a novel called amor obedient wife. and it's about the wilsons and the iredelles and i recommend it to everybody because it gives a very good picture of life in the 1790s and i always worry that people who talk about this course.

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 it from a different standpoint. but wilson did not have the effect on jurisprudence. would you think he would have given his intellectual abilities? because he just didn't engage enough with the court when he started to get so involved with all these. personal problems western lands debts etc. so he didn't leave much. in the way of jurisprudence that that we really use today and in fact, nobody even thought about him, you know, he is one of the most important people at the constitutional convention. he was buried in, north carolina. and i think he wasn't brought

back to philadelphia till about a hundred years later when somebody remembered who he was. and brought his body back to philadelphia. and so it's only lately that people have once again 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 let's have book recommendations throughout the show paige smith has a biography of wilson that i've just been reading for wilson's influence on the phrase the pursuit of happiness because his reflections on the extent of legislative authority in britain was one of the two documents that thomas jefferson had by his side when both declaration and you're right about that amazing and wilson where he's in the tavern with his young life dying of malaria after he's been sued

by his fellow supreme court justice. no, no, well, it's not as supreme court. he was sued by pierce butler who was a senator in north i'll take it from you, but you were sued by i think butler who i think sat on the court and no dying dying of death. he is convinced that he wants to defend his legacy and he says at least it should be said that i wasn't indolent which is his defense of his remarkable conduct, but i'll be interested about whether all of you think that it was. his address and his overextension which was so well noted that's prevented us from properly appreciating his magazine gerard you begin the bookshelon, washington with a remarkable defense that justice washington makes of slavery. he's respected his uncle's wishes that general washington president washington three his

own slaves and yet bushrad washington defends the institution of slavery. tell us what his position was and then relate that remarkable story to his relationship with john marshall and and broadly his influence on the marshall court. well in 1821 moshe rod who is inherited mount vernon from his uncle gathers his enslaved people together and tells them that. he will not be freeing them. uh, the reason for this is because george had freed his enslaved people in his will. and so there was an expectation among the those who were enslaved there that bushrud had brought to mount vernon after martha washington's death that they too would be freed. they also had a reason to believe that because 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 emigration of free blacks to africa, which meant to some degree that people would be freeing their enslaved people so that they could go to liberia nevertheless washington gathered them and said, look, i'm not going to do that and in part that was because he was struggling for money. basically. he had inherited mount vernon, which was basically on the brink of well, it was a money loser. let's say and he didn't really have the means that george washington had used to keep mount vernon going and also bush road washington was a lawyer and not a businessman of any skill so he had a harder time with that anyway, so, of course eventually he sold some of his

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

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 also the practitioner of this terrible legacy on the other hand. he did write. an opinion in core field versus coryell that became for many people the foundation of the civil rights that the freed slave should receive when the 14th amendment was under discussion after the civil war. so on you see both the sort of at judicial legacy, which was much more sort of 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 of the book is that there was one enslaved person that he freed only one and that was westford who was a

washington by blood almost certainly now whether he was was rod, washington's son or half-brother or nephew will never know but it's pretty certain that that he was one of them and he's someone who lived at mount vernon as a free man for many years and indeed inherited land from mount vernon from justice washington, so that's all part of the story that i tried to relay in the book judicial personal and sort of institution. fascinating and as you note in the book, he studied with james wilson as well, which was a connection between those two great founding fathers walter, um, tell us about jay as chief justice want adam says he long known the esteem wilson, but he prefers jay president washington chooses jay because he trusts

him more than wilson and he's so esteemed in all these ways. he didn't serve all that long, but but what was he like as chief justice of the united states? um how to put it i think, you know all of these early justices suffer in comparison swing john marshall and you know, they're they're really aren't many cases from that period that are still cited today. i went and did some research to see if they've been cited recently and the most important case the georgia vitism to just be georgia. sorry musembi, georgia. yes it it has the dubious distinction of being overturned by a constitutional amendment almost immediately. i mean the only sort of let's let's let walter give a shot and then we'll then we'll yes again. and so, you know, it doesn't get

cited much other than in cases about the 11th amendment it sort of cited as part of the background. justice alito cited it recently in a descent in terms of its sort of talking about the the reason why federal courts were necessary to provide a neutral forum for interstate disputes. and then as you alluded to i think you know, he he to camps after not very long in 1794. there's an imminent war with. great britain and washington and hamilton asked him to go to england and try to negotiate a peace treaty and he's not real enthused about that. but he agrees and goes, you know, i was thinking about it in preparation for today 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 in the 1960s when earl warren agrees to supervise the warren commission and then 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 kind of abstract questions, and there was a lot of precedent in english law for that but jay and the other justices thinking about it said said no. that's not our job. we decide cases in controversy. so in a sense, he both helps establish. kind of what the court will not do and what the court will do. um, and it's also incredibly important when you just think about if you've ever been

involved in starting something from scratch, you know, jay and the other justices are starting something from scratch. and they do a pretty good job of that so that by the time don marshall comes there's a functioning court for them to to build upon. thank you very much for all that. um, maybe first of all you you have a bunch of important corrections and you're absolutely right about pierce brother. i was confusing him with yes with new deal era justice who was in fact called pierce partner, but the pierce but yeah referring to was as you say, i found that bothering us senator and we would be great for you to maybe give us a sense. of that chisholm and georgia case with walter. just i mentioned why was it significant wilson played a part in it and wasn't he? i i asked aquila more or dear friend. i always asking wasn't wilson

correct that the idea of state sovereign immunity was repudiated by the constitutional embrace of national sovereignty and and in that sense wasn't the fact that the decision was overturned by the 11th amendment unfortunate repeatation of wilson's vision. well, jeffrey, i agree with you wilson and his colleagues were absolutely correct. and even iredell who is always. said to be a dissenter was not dissenting on the question. of whether a state could be sued he was dissenting on a procedural question whether congress should say something first to set the procedure for suing a state. how do you do it? who do you sue? do you sue the governor? do you see the secretary? you know the whoever is an official of the state. that's what iredell was upset about. but chisholm v, 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 as well the profound shock. it was overturned immediately. it wasn't that's why i wanted to tell you. somebody sent the 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 say you can't sue a state in federal court. it's the current form of the

amendment shall not be construed and that gives judges leeway to do many things as 200 years of 11th. amendment litigation will show you and i can't talk about all of 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 we don't have newspapers and tv. these states were along the sea board and they did what they wanted and nobody knew anything and so states continue to be sued in the supreme court till 1798. and what is interesting about chisholm? is that georgia which refused to appear at first in the case of

chisholm the georgia because it said it couldn't be sued. what the supreme court did after saying? yes, the 93 case said yes, you can be sued. they issued the following year a default judgment against georgia saying you 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. they followed this. i mean states were. worried. i mean they understood what the constitution said about a national government and they didn't want judgments outstanding new york paid a judgment during this time that the supreme court issued in oswald v, new york. so you have to go into this in a very big way without. just saying oh states can't be sued. i agree with you entirely under

the original constitution states could be sued. and now we have you know, all this litigation showing in which circumstances 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 and was 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 and 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, but that's the story of the 11th amendment that chisholm. but i sort of would also like to say something as as about j as chief justice. because i agree with walter and tirely. that 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 john jay was very concerned. with ethics you know, they wrote circuit which people won't know about today, but they also served as judges of the serpent courts, which was a sort of intermediate tier, but it was they were trial 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 cities states 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 jay did not believe and walter you can tell me right or wrong in prayer before he government. meetings he did not believe that 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 didn't want to antagonize the citizens who all came to hear court cases. it was kind of entertainment. at the time and 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. so i just wanted to tell you that. fascinating. thanks very much for that really interesting institutional background and reminder of jay's vision of ethics for the court gerard. i don't want to leave bush run washington without getting a sense of his constitutional philosophy. he studied with james wilson who you think persuasively argue with the most underappreciated founding father. he imbibed presumably from wilson this philosophy of natural law from the scottish enlightenment. he embodied it in this core field and coryell decision, which must have been really interesting for you to write about because john bingham when he wrote the 14th amendment invoked bush rod, washington's opinion core field in coryell as the central protection for rights of national citizenship. so just give us a sense of what

bushwah washington and james wilson's constitutional philosophy was and and to what degree they were successful in. in button, you know and writing it into this case court field and courier. so boyfriend washington was a federalist like we'll send and george washington indeed. just talking about the 11th amendment bush rod called sacrifice to state pride. he wasn't a big fan because he was more interested in asserting national authority as they kind of important structural protection for liberty. you know, it's while bush roy washington did study under james wilson. you have to say that george washington was probably a far more important influence on bush rod simply by virtue of his family leadership as well as just the fact of many years of kind of close interaction between them correspondence that really began it when bush rod was set up with james wilson by

george washington george, washington page james wilson's princely some that someone described it that he demanded to be bushrod's mentor, but in other words, it's hard to imagine bush rod washington taking a much different philosophy toward the constitution then george washington or would have taken some of very incredible intellectual independence and fortitude maybe to do that. so i think that he then carried that onto the court and in that sense, he was like-minded with john marshall who was also a federalist. you know when you come to a case like core field the interesting thing to me about core field and the definition of fundamental rights that bush road washington describes incorpfield, which is what makes it famous is that it's the product of someone. who was changing his mind about the case? so the most exciting thing i found when i researched this book was a secret journal that

was bushrod containers notes from many cases. it had been in a museum in chicago for decades and no one had really paid any attention to it and you i was there i turned the page and what did i see in front of me core field versus coryell, right? began, and that's as close i ever gonna get to hitting you jackpot. i think for for anything. um, and what you learned there is that one of the reasons he decided to explain why he thought certain rights were fundamental under the privileges and immunities clause of the constitution. is that the claim in the case was that harvesting oysters in new jersey waters if you lived in pennsylvania was a fundamental right and he had a hard time thinking that through because he said to himself and his note you 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 them? right? what's the difference?

so he ended up concluding that? okay, they are different but to explain or defend that he then went on to articulate. well, here are things that are fundamental rights as opposed to say harvesting oysters in another state's water. so i think 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 answer should be and i think he carried that through in in other aspects of his judicial career, you know one thing when he would hold jury trials or write opinions. especially as a circuit judge he would often say yeah. 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. you know and and you don't really hear any people saying that nowadays, i mean really

anywhere in the judiciary. i think it's kind of a refreshing thing and and reflects kind of well on his sort of sensibility as a judge that he probably, you know carried over perhaps you carried it over from wilson. i can't say completely fascinating what a wonderful discovery of bush road, washington and changing his mind and you really have emphasized the importance of core field and coriell. so i'm going to read the central paragraph that was quoted so often during the debates over the 14th amendment as you describe in your book on john bingham james madison of the 14th amendment and then in a moment of this decision was on chief. justice chase during the civil war so bush road road washington says in 1823. we feel no hesitation and confining these expressions to privileges and immunities which are in their nature fundamental which belong of right to the citizens of all three

governments what these fundamental principles are it would perhaps be more tedious than difficult to enumerate they may however and this is the sentence that was always quoted be comprehended under the following general heads protection by the government the enjoyment of life and liberty with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety subject nevertheless to such restraints as the government. they just they prescribed for the general good as a whole. i'm speaking with excitement here because i'd forgotten because i haven't read this pause for a bit the right to pursue happiness and safety is itself considered a privilege or immunity of citizenship and a natural right connecting core field to the natural law philosophy of the declaration amazing. so walter chief justice chase. what what did important was coryell to him? but even but before he becomes justice, you know, chase has a long career as what we would call a pro bono civil rights lawyer before the civil war.

and so i can't say oh he cited in that brief or that brief because we don't have a lot of his breeze, but he was familiar with the case and he was was arguing for black rights both in courts and in political for us before um, the core field comes up most notably in the slaughterhouse cases decided near the end of chase's tenure on the court in 1873. i mean everyone both the majority opinion and the three descents in that case sites core field. i mean, it's it's seen as kind of the the paradigmatic statement of what privileges and immunities mean now it's in a different bit of the constitution when when justice washington was interpreting, and it was in the you know, the original constitution now it's in the 14th amendment but people think that that is what it means. they just disagree violently

over the majority in slaughterhouse basically kind of reads privileges and immunities very narrowly and just look well. it's just these few federal things whereas chief justice chase and the other dissenters think that it is considerably broader and and reaches in particular the rights of the the the butchers in new orleans who wanted to pursue their trade without submitting to the state imposed monopoly. i should note that chase himself does not write an opinion. he just joins that of field by this time. his health is not good and indeed within a couple weeks after that decision has announced he'll be dead of a stroke. wow, remarkable and so important to emphasize the disagreement about the scope of the privileges or immunities clause and the meaning of choreal and slaughterhouse. i won't geek out too much by

summarizing the debate for our friends except to say it's a central question in constitutional law as walter said the majority in slaughterhouse basically read the privileges or immunities clause as if it only protected rights that were at pre-existing in the federal constitution. whereas the disinters said no, it includes all of these natural rights that were recognized in slaughterhouse and in that sense basically applied the bill of rights against the states because the right to make an enforce contracts to soon be sued and engage in rights that are fundamental between state to state is protected by privileges or communities. maybe i i just as your friend professor almost all leaguers legal scholars today left right and center agree with the dissenters and not the majority and slaughterhouse. that's a crucial question robert bork, uh and others recognize that everyone agrees. essentially that slaughterhouse was wrong and there's some vigorous attempts to get the

supreme court overturn. it justice. thomas has expressed some mild interest but suggested it might be too late and it's one of those cases where the original understanding is clearly inconsistent with the majority decision made up let you talk about the significance of core field in whatever way you think best, but i have to ask you because i was so excited to remember the pursuit of happiness language and in core field, and then i found it in slaughterhouse as well where the decision says that the 14th amendment places under the guardianship of the national government a protection against monopolies, which are invasion of privileges which encroach on liberty of citizens to acquire property and pursue happiness, and we're voided common law. do you have any thoughts about whether this idea that pursuing and obtaining happiness and safety was a natural right was embraced at all on the early supreme court? no, they did not litigate anything like this throughout the only mention of it.

was in calder v bull where there was a disagreement and not specifically the pursuit of happiness, but whether natural law for things that were positive law things that were 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 he wrote it down. it was james wilson who was the first to exercise it? it was in philadelphia. it was in a ridiculous sounding case a 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 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's not a judicial task. and it is unconstitutional but these were all advisory opinions. they were in letters. to the president wilson was the only one who did it officially. in the courtroom said i'm 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 just 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's reports, there's a paragraph about how the supreme court divided on a procedural vote. it was three three. there was six justices in the first court. and it has been assumed from that point that the question was. could the attorney general come into court? and asks the court to order another court. when there was no client, there was no nobody, you know, it wasn't an adversarial thing. he just 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. 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's what they divided on but nobody knew that till 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 changes david shapiro loved it. put it in his heart and wexler, but you know when we're 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 didn't decide the case because they didn't want to step

on congress's toes. i mean they say that will wait. we'll put it off another. tour 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 met congress changed the law and did what the judges want? and so judicial review was accepted and then the supreme court in 1796 considered a case called hilton view united states. which considered the constitutionality of the carriage tax case? it was a case that put taxes on carriages. but what's 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 want to tell you that. wonderful. thank you very much indeed for that and that story of the history of judicial review is central um, lots of great questions in the q&a box. this is i think going to be our final round so i'll ask our each panelist to take up whatever questions they feel best. i can't resist answering very beef. how did early courts define the right to pursue happiness. it's interesting that in the slaughterhouse case justice fields descent sites, blackstone and says that the whole that only is a free government the american sense of the term under which the inalienable right of every citizen to pursue his happiness is unrestrained except by just people and impartial laws and he says that that's the definition of civil liberty the great end of all human society. is that state in which each

individual has the power to pursue his own happiness according to the dictates of the interest unrestrained except by equal just and partial laws not citation is to blackstone who uses the phrase pursuing your true and substantial happiness. so it was essentially pursuing the ordinary occupations of life pursuing your calling on equal terms with other citizens. was that legal? definition and then we have a great question about what we think about the portrayal of james wilson the musical 1776 and i'll let anyone else. that way in but it was a libel completely unfair that he was made to be such an anxious buffoon because we know that in fact, he was the most well-educated certainly perhaps the most brilliant of all the founders and it was only because of his unfortunate avarice and death that he's been forgotten in history. but we're giving him some love tonight gerard. you know final thoughts on

bushrod washington his significance and what you want our friends to remember him for. well, i think there wouldn't have been a marshall court without bush road, washington. you know that no chief justice can do it. all himself asked john roberts. and john marshall though is given this extraordinary credit as if he did everything on the marshall court and everyone else on that court was just sort of not doing very much at all. now some of that was because of the way they structured their opinions in having them almost always be written or in the name of the chief justice, but when you look at sort of behind the scenes to the extent that we can at the letters and other things that were 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 a partner on all sorts of projects including the book that they wrote about george that that marshall wrote about george washington where bush rod was his editor and so, you know the opinions of the marshall court really should be seen as the i'm a team and the and a collective effort, you know law is a collective enterprise. no one person can sort of make the law in a democracy anyway, and so i think bushrod 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 takeaway should we have on chief justice j that there are some questions about him including what changed scotus from an itinerate job under jay and to a true supreme court under marshall. jonathan parts asked so that

jay's sending a memorandum refusing to give advisory opinions before he went to england to negotiate. these are your final thoughts all but you leave us with whatever you think is most relevant. oh on the itinerary chord, i mean in a sense the court is still itinerant through you know for a long long time. i mean jay would have been very happy. and i think indeed all the members of the early court would have been very happy if if the you know that lovely supreme court building which we now know had been built in osage 1790 and they could have just parked themselves there and and kind of had a life akin to the current justices, but really? i don't know nine tenths of their work was out on the circuits and that's still the case when you get to my more recent subject salmon chase some of his most important decisions as chief justice are his circuit decisions. in virginia and maryland and elsewhere you know chase, i'm sorry. j is important as chief justice,

but really it's the whole life if he had only been chief justice. it would not have been worth my while to write a book and it would not be worth people's while to read the book but you you're gonna get all the way from the stamp act the marshall court is going to live and involved in and so it's an amazing story. if i do say so myself. well, you made you made a great case for it and you're wonderful book and that's a really important point that for many of these people were talking about certainly for jay and brian wilson too if he'd just been on the court not worth necessarily reading about but when you look at the life and context among the towering founding fathers, maybe the last word in this wonderful discussion is to you and among other things mary talski asks any recommendations on materials high school students might manage on the early courts.

well on my court not much. so i do have a book that i edited recently called with liberty and justice for all question mark the constitution in the classroom and i recommend that it's it was supposed to be published april 6th. now it's made twenty second but has lots of primary sources in it and a wonderful essay by mary builder on the constitutional period 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 and of course we have the famous letter from the court. that's a separation of powers courts. can't give advisory opinions. however, chief justice j talked to president washington before they ever decided. that justice jay wrote a draft of a neutrality proclamation he

was the one who advised them. first let the president issue a proclamation then let congress pass the neutrality act 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, and that will make us look much stronger to the european nations, and that was very important to them then and it worked out that way and in the case that they did glass v sloop betsy. it brings up another point marshall and the opinion of the court. fact of the matter is the early supreme court understood that too in that opinion in 1794. they kept saying and the court says it wasn't by one person. 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 elseworth always had things that said by the court. the opinion of the court was born in the first decade not during the martial era people should really know things like that. wonderful, they should indeed and you and thank you for helping all of us know that thank you may have a marcus walter star and george my yoga for an 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 and look forward to learning more with all of you gerard walter neighbor. thank you so much for joining and thank you friends for taking an hour