is this is just under an hour.

>> host: we are going to get the program started now. but there will be coffee and food is still in the back of. thank you all for coming to the fore on discussing the new book on john marshall and a special welcome to our friends at the manhattan institute our cosponsors today into the c-span audience. and the organization supporting the national review mission it is my pleasure to welcome you.

now that you've known and loved for over 60 years it is a wholly owned subsidiary in our mission to preserve and promote the legacy of the william f. buckley junior. this past february marked ten years since the passing of the valuable opportunity to reflect on his contributions to the nation. we held successful events around the country aimed to be not only nostalgic but also inspiration inspirational. we realize the staff at the organizations were just barely reaching the 13 into them but passionate and persistent advocacy of the principles, his civil and inclusive manner those could be just words on a page so this fall we took those events to over 15 college campuses. last we were at berkeley, kings

college and in a forum with rich lowry the editor-in-chief and discussion about the input values that buckley espoused. as ronald reagan warned of freedom can be lost in a generation. we must continue to appreciate the philosophy and experiments, the success and failures and importantly reflects with gratitude for those that have paved the way before us, and that is an important reason why we support his work on the american founding thanks to supporters like you we will continue to stand up for the principles of the conservative values that have made the country great, exceptional in fact and we are not afraid to say at our upcoming ipo summit we will highlight that making the case for the american experiment is the title so please come and join us. our guest this morning of course is great for the -- brookhiser.

today the senior editor at national review at the national institute and most widely known for his series of arv is on the american come including alexander hamilton, and george washington. rick has been awarded many honors but notable among them is the national humanities medal given to him in 2008. we are so fortunate he is dedicatehe'sdedicated with a stn to documenting and bringing it to new audiences. after rick talks about his book he will sit to discuss a few more topics in depth. they will be to incorporate so please enjoy your discussion with rick brookhiser and please join me in welcoming him.

[applause] i was married here 38 years ago. i just want to thank one person the man to whom the book is dedicated. i met him in 1982 covering for the national review and he was running as governor against mario cuomo. new york is still suffering from that on to the second generation. but america has benefited because blue was freed by pettitte to pursue his great love america's history.

it was stellar at the institute with the exposition of the historical society in 2004 and alexander hamilton. it was a great honor for me to be able t to dedicate this booko him. i am sorry that court has been out of the news the last few months but i will try to make this topic relevant anyway. the reason it is in the news is ultimately the fourth chief justice john marshall he was the man who made the federal judiciary the executive and so this morning i just want to say a few things about him personally. i want to talk about how he led the court and i want to talk about one of his important cases and then i want to talk about some of his critics both in his

lifetime and afterwards. several years in philadelphia and six months but all of his life he was a country boy born in virginia the first house he lived in was a walled cabin. the second house was a frame house. it was definitely a life in the country and he retained his habits and attitude all his life the worst part over and over again to describe him as a symbol. people making him for the first time and who knew him for years described him as a simple.

he didn't care how he dressed. one time he forgot to pack a pair of pants and when he arrived the local tailors were unable to supply so he had to cover himself with his judicial robe off of time he was there. when he became the chief justice, the court had accustomed already that the justices when they deliberated they would hear cases during the day and then they would go to the boarding house they were staying in and discuss them during and after dinner. if they could only have wine in these discussions if it was

raining outside i assume it was to cheer themselves up so when he became the chief justice he would ask one of his colleagues usually the associate justice to look out the window and tell him what the weather was so the story would say the sky is perfectly clear and our jurisdiction is so vast it must be raining somewhere. marshall loved simple exercise. it's partly because his mother sewed him socks with white patches in the heels and also he could jump over a bar resting on the heads of two men. his favorite game was like horseshoes.

people who saw marshall playing the game said he would devote as much attention to decide as he was on his great supreme court decisions. the other important thing about him was that he most admired. to join the militia 1775 and the following year the continental army. he was in the revolution until 1781 almost the entire life

could. he fought seven battles and three of them commanded by washington, germantown. he also spent the winter in valley forge where washington again was in command he saw been in victory into a terrible winter when the army was unclothed, undead and unpaid. the conclusion from these experiences is that washington was the rock on which the revolution rested. he was the ma man who saw the project through and brought it to success. when washington returned a "-begin-double-quote war in 1783, marshall wrote a letter to an old friend of his and said the military career of the greatest man on earth is closed

may happiness attend and wherever he goes and whenever i think of that superior man, my heart overflows with gratitude. this isn't a trivial feeling. when washington and the other leaders decide they need to be, the articles of confederation under which we declared our independence were not sufficient washington presided over the constitution of 1787 and then a year later john marshall was a delegate to the virginia ratifying convention.

the first republican part partys the ancestors of today's democrats that wasn't jefferson and madison and the federalists. marshall was a federalist and in 1798 washington summoned him to mount vernon and told him he had to run for congress. the federalist party was weak in virginia and washington thought it needed new younger blood. he was a lawyer in private practice making good money. he had a growing family buying the land and needed the income said he kept refusing and then he decided i can't keep saying no to the greatest man on earth just have to get up at the crack of dawn and get out of here.

then from congress president john adams picked him to be secretary of state after a cabinet shakeup. then at the end of the term, adams loses the election of 1800 to thomas jefferson in the rematch and eas he's beaten him narrowly in 1796. they tried to sell the federal judiciary with federalists. he was leaving a job and at

times had to fill the post. it's a great spthe great spy mat federalist paper over, jay had been the chief justice from 1789 to 1795 and then left to be the governor of new york. he wasn't going to be chief justice again so we have to imagine adams were john marshall sitting in the office in the still unfinished white house.

adams thought for a minute so i believe i will nominate you. marshall detests him and jefferson hates him in return. marshall didn't hate many people, jefferson hated a fair number of people that marshall was always high on his list. in jefferson's mind, he would twist anything to a predetermined legal condition. jefferson warned of the story before he got on the court that you must never give a direct answer to any question that marshall asks you.

marshall thought jefferson was a demagogue it is secretly directing it behind the scenes and riding waves of popular sentiment to serve his own popularity. he also thought that jefferson had done the least of any disloyal secretary of state serving george washington's foreign on the one hand while undermining them with another. there are all federalists that have been appointed by washington or atom but only in 11 years after jefferson's administration and the partisan balance of the court has changed

from two federalists to five republicans. congress increased the size of the court to seven so they died or retired and have all been replaced by republican judges. and yet all of these justices followed marshall's lead. the first reason was the simplicity that i talked about. he liked his colleagues and a white being with him and this is the irreducible basis of succe success. marshall also practiced deference if there were those that were more expert in the areas of law he would let them take the lead if it was admiral t. it would be the story as it was the land titles that would be justice and then when you show deference to get deference

in return so it is the smart thing to do. the third factor is that he was the smartest man in the room. many colleagues were brilliant terrorists themselves but they all acknowledged his superiori superiority. it took him a while to get going but once he did, william who started as an advocate later became the attorney general and described the mind of the atlantic ocean. the fourth factor is the length of tenure. he was chief justice for 34 years, so a record. he will swear in the five presidents and buying inaugura inaugurals. he goes to the second term of andrew jackson then in the middle there is an 11 year

period 1812 to 23 where there are no personal changes on the supreme court. we've had only one such ever again. so he's only there for one thing to exercise his geniality and intellect but the one we were most talked about was marbury versus madison and established the principle of the judicial review. alexander hamilton had written about it in the papers. it's a long opinion, 9,00 9,000s are a scolding of the jefferson administration telling him he

was entitled in the district of columbia jefferson and the administration had delivered the commission to him they ought to have done it. he can't get it because of the means of redress is something the court cannot do that most of this is shaking the finger at the administration the ones where the court asserts its supremacy over state courts and there was a series of the senate dartmouth and collins and nicole

versus maryland. but the case i want to talk about this morning because of its economic assistance had to do with a land deal in georgia in the 1790s, the poorest of the 13 colonies that they had a vast country that went all the way to mississipp mississippi rt are now the states of alabama and mississippi. georgia realized they could solve this off so they made a deal to sell 35 million acres every member of the legislature was bribed to make the sale and the going rate was thousand dollars 1 cent he wasn't greedy. when th the word of the words ot outcome of the people of georgia

replaced all the legislators at the next election and they passed a repeal act by qualified the sale from ever appearing in the georgia court. they were going to flip their purchases immediately for profit this was very old real estate story than the second purchasers were going to flip their trends in turn each hoping to make a profit but this would only work if the sale were valid so the first thing they do is they got a legal opinion from alexander hamilton was no longer in

government i but practicing as a lawyer in new york and hamilton wrote a brief opinion saying that they would probably be upheld and it forbids states from impairing the obligation of contracts. he said the original would be considered a contract and if this were taken to court, the courts would probably uphold its validity. but how could the purchasers bring it to court they've prevented it from being litigated in the georgia courts. the amendment forbids citizens of another state from suing a state that if the citizens of one state to.

john peck of massachusetts sold him a tract of georgia land and fletcher said you didn't have a legitimate title to it because it has nullified the original sale. i want my price bracket was $3,000 so the case goes to court and takes a while to reach the court and is argued in 18,093rd is a flaw in one of the proceedings, so it is re- argued in the team time. it's also probably impossible because he says the past cannot be recalled by the most absolute power but his third and most important point is that it is unconstitutional because article one section ten forbids the

states from the obligation of contracts. it's the bill of rights to the people of the states. of course we think of it as the first ten amendments protecting freedom of speech, freedom of the press, the right to keep and bear arms, no unwanted searches and seizures. this protected the obligation of contracts. so john marshall contracts are so important that protecting them becomes something we will call a bill of rights. the reason i focus on faces when we think of the founding fathers most responsible for our

economic system we can think of hamilton but he deserves that reputation. these are the pillars of the economic system. jefferson is one of the most potent mostly jefferson does this in letters to friends complaining about marshall.

the objection is that the constitutional questions should not be left in the hands of the body that is irresponsible to the people. justices of the supreme court are picked by the people because they are nominated by the president and confirmepresidente senate and we elect the president and the senate so we have a role in picking them. they never have to stand before popular judgment again into this violated how the democracy should work so in addition to simply abusing marshall, he tried to think of alternative ways to agitate the constitutional questions and the idea is whenever there was such a question we should call on other constitutional conventions. he suggested this in a letter to james madison as he so often did during cold water he said this

would be tardy, troublesome to have an ongoing series of convention. another was senator richard johnson most famous for having told tecumseh in the war of 1812 mps publicly secon1812and he's t famous for his campaign song. but he was a principled democrat and he offered a series of constitutional amendments to limit the power of the court. one would allow congress to restrict its jurisdiction to take certain cases out of the courts purview. another proposed to give the senate a veto in the supreme court decisions. third would have required a supermajority of justices to rule on the constitutional

questions. none of these amendments have ever became law long after jefferson and marshall died, abraham lincoln was a critic of the supreme court particularly during the dred scott decision. this is the second time the court overturned a law in congress and this was the missouri compromise the chief justice explained this violated the fifth amendment that there can be no taking of property without compensation so therefore congress has no right to forbid a property owner from taking this into any territory of the federal government. this is from the day that he was

rendered into its first inaugural when he had been sworn in at the chief justice. lincoln said the parties have to abide by its decision so therefore dred scott had to remain a slave, but he also said decisions could not have value as precedenc precedent unless th certain criteria. he said the have to be unanimous and they also show no apparent bias. if you use that criteria that wipes out a lot of the decisions, not only dred scott as many others including marshall's own lifetime so this is another proposal that has never taken flesh. the issue is still with us.

whenever a political party deals on the short end of the stick from the supreme court, the false turn to waves and restricting the power but we've never found the magic balance yet. andrew jackson gave a very gracious tribute to him much more than anything jefferson or marshall would have said about jefferson but the most gracious of all came from a club in richmond where marshall played his favorite game and they ruled since john marshall was irreplaceable but they should always have one fewer men were.

>> keyvalue to boost the quality and this led him to make some poor choices over the course of the national review he gave liberal writers like very well to start or at least increased prominence by publishing them in the pages of the review that annoyed the publisher of time to no end in occasionally had to remind him we are the conservative magazine. but they had to choose between the work and sound this. but rick brookhiser exemplified what bill wanted in the national review, to be eloquent, culture, succinct and we couldn't be sure anymore what he would think of anything in the national review is doing these days they don't get the memo anymore. but that's something i am completely confident and every

time we publish something that bill buckley would love to into that goes for his latest book educational system i think is increasingly failing us. he was a front-runner with his wonderful book about george washington returned about 20 years ago or so now. i thought we would dig in a little bit and talk about craft and take questions people write on the notecards. can you tell us more about the sources of his ambition for the courts? was it a product of a long-term view of the role that it should have in the system were kind of

a madisonian ambition dynamic where anyone is naturally going to want to increase their standing and power and prestige? the 1790s was the first decade of politics and because it was brand knew it was quite bad. we wring our hands about politics now but i tell people go back to the 1790s with his just more friendly. politicians are killing each other. hamilton wasn't the only one to die in a duel. one of the colleagues on the supreme court, that republican appointee kildee federalist in

the duel and he bled out in five minutes and this never came up in the confirmation. [laughter] when he first comes to the court we have to remember his homeschooling. his father gave him commentary to read. he was one of the american subscribers to the first edition in the way that the book publishing worked if you have a list of people that would announce ahead of time it was the text in the english-speaking world for the law.

they try to explain and organize it. we talk about the influence of his colleagues. so studying the observations about life in general if you had to choose what is more importa important. the initial personality and then over the long haul they are coming to washington every january to february. the way the court worked that if they had a winter session and it came to last about a month.

marshall is always trying to smooth the rough edges as they arrive andrew jackson puts on the court the problem with old when he is pretty smart but insane. he missed one whole year when marshall was chief justice because he was mad. he was extremely difficult and hated the story for some reason.

it's a story saying i was with brother baldwin and he made remarks that were not unfriendly to. i think that is a container of the vessel but the heart of it is the power of this man's mind. someone compared him to a great bird taking flight. tell us why you think the federalist went wrong. it runs down through lincoln and

why did they end up losing out to the jeffersonian republicans and a dying off? >> they are the antiwar party and the hard core of the party included some close friends of marshall's. it's time to tear it up and start over. the other thing is for all of thomas jefferson's occasional wacky notions of impractical

ideas, he did really believe that most people would be mostly right most of the time. that connects him more firmly than even the federalists were in their vision of prosperity in the expansion. >> touching on the relationship and just struck by another indication that the incredible influence of washington if they come traditions of american history if you are just a mentor to alexander hamilton and john

marshall and becoming the first american president but how important is that relationship to marshall and had you read the biographies? >> is five volumes and i can't recommend it. he mired the subject so and so there is too much obvious importance. the best thing he said about washington wasn't biography that it was season congress when the word comes to washington 1799 if he's the representative that informs the house and of course in the speech he said he was first for his countrymen. he took that line from henry lee

and other congressmen and fellow revolutionary war veteran that good writing is often good borrowing as bill often do and that expresses what he thought. .. . >> they are sitting there. their role was tacit and people disagree about something, they take it to

court somewhere then it comes up through the system and arrives in their laps. they have to decide if there should be a conflict between the law and the constitution that only happens once in marshall's 34 years we have to decide what the law is. so maybe his view of supremacy and what we experience recently. >> a couple of questions from the audience. why did - - didn't marshall recuse himself marbury versus madison quick. >> it's a great question as there are other books that he performed perjury while setting the whole thing up it is a complicated story but the commission as justice of the

peach one - - justice of the peace was issued by adams but the man who stamped the great state seal of the united states said that seal was the secretary of state john marshall and he told his brother james deliver these commissions and he did not take along marbury's which is white was sitting on a desk and their attitude was we will not be the federalist parties postmaster if they did not deliver it then it doesn't leave the office so this is the origin of the suit. . >> there were a number of things now justices would recuse himself but they case involving the second bank of the united states marshall sold his bank stock but i did see other justices in other cases were giving tips. [laughter] which is kind of wild.

. >> so how did marshall react to the resistance on the decision? . >> the whole jackson presidency was dismaying to him. jefferson of course,, they had tangled but there was a moment where he could get very exercised over things then he would leave him alone. if he lost he would move on but jackson never moved on. he just had a will and a follow-through. his hope i believe is somebody else one marshall would and then the associate justice would be promoted to chief justice. marshall even attempts the

first political convention in american history. he is invited as an eminent person to come to the convention he is probably vetting them to see how serious they are how could he beat this guy? you hear about the party today and it sounds like it's crazy that people were alarmed there were secret oats and they happen to belong to it so that was a populist way to flank the populist president but of course, jackson got elected and as the cherokee decision goe goes, marshall delivered it jackson would not see the law with force and it wasn't pressed to the final stage. that would have been if samuel

was stir the imprisoned missionary, he would have tell the attorneys the decision is not being followed. therefore the court must notify the president and he must execute the laws. but at the same time this was happening south carolina is coming to a boil and will georgia join south carolina in the resistance? so he is leaned on by the religious employers and they drop the lawsuit so he did so we never reach the point of the clash. >> so the question of the hour

whose side would marshall me on between president trump and chief justice over the obama judge with the immigration actions quick. >> i can imagine marshall tweeting. [laughter] . >> or doing any public expression. he wrote letters to people. he very deliberately did not do anything in public. . >> certainly i think doesn't come to a genius but yes there are politics involved how judges get picked and where they come from not and marshall knew this better than anybody. but i think he would have tried to move the court in the

direction of the ideal. marshall was a federalist but he wasn't out there. he didn't lead with his chin he reined in his court there were a couple of times instead of looking at jefferson as frontally as some of his federal justices would have liked, he steps back he doesn't want to get the court into an open political fight. so the ideal of these justices to be picked by the political process that that is something that he wanted. >> and so to widen it a little bit how do you choose your subjects quick. >> i chose this one because a friend of mine who was a professor at yale law school told me to write this book and

he told me to write my last book. he gave me the title of that book i thought about it for a second and i said that's a great idea. . >> did he give you the next book? no. he has given me too jeannie has given me three. the first book was george washington so then it was a natural follow but then my publisher said do adams or jackson so i picked the adams. i take suggestions sometimes i come up with my own ideas it is different from book to book. >> why not jefferson yet

quick. >> he pops up in all of these and he is very important in the marshall book because he is the antagonist. marshall is like a prayer rabbit and always gets away from you. but he does have a point. the democratic objection that he has is a serious point and is unresolvable it is tension that is in there and we never got rid of it. jefferson i think would be very hard to do frontally. i think of his mind as a big house with a lot of rooms and they don't all have connecting doors. there is something odd about the way he lived and thought that would be tough to get at. >> how do you research? as you go or do you sit down

and burrow in four months quick. >>. >> my books are about 80000 words and about 200 pages i will spend a year reading and then one year writing. the one thing that has changed over the 20 years i have been doing this, is google books. if i want senator jones memoirs i just click but i saw online a revolutionary war veterans pension request this is the only evidence that marshall was injured at the battle of germantown. he never mentioned it but a federal soldier said this in the pension request you can read his handwriting. . >> do you ever get stuck on a research question or writer's

block quick. >> not writers block if i'm stuck on a research question i asked my friend and she can figure out everything. the one thing that is remarkable one of the famous cases is collins versus virginia i had a hell of a time finding out anything the collins brothers they sold out of state lottery tickets of $500 and it was the supremacy case so there's nothing from all the other biographies i think doing a pull up right - - pulitzer prize in 1919 lottery versus collins. and just dismiss them and was not curious about them so that's when i was following in

his footsteps just did the same thing but who were these people quick so nicole found an article now in the historical journal from the 19 twenties and it told me the whole family history. >> you have a wonderful blurb and it refers to your minimalist style so 8000 words is substantial that you do not write ron chanel style doorstop is that your choice or your style quick. >> i guess it is style. there is a place for those big books if you want to know almost everything that can be found and don't want to read the collective papers, that's what those books do. but i'm trying to tell you the story of the whole arc of the

life but focusing on what is most important about these people. so yes i am interested in marshall's marriage, his background but in his career and who the litigants were. . >> do you ever think as you did again this is why i didn't go to law school? [laughter] . >> that was the constant fear. i didn't go to law school with the education that marshall had he only had one semester at william and mary. i had worries about this i do get some early guidance from knowledgeable scholars who gave me some tips and pointers

and then it was just a matter of being patient and trying to figure out what was going on. i didn't always do it. marshall's opinion on treason and the trial of aaron for huge. that there still a lot of wheel spinning in that. he goes through these english sources on treason and into and into it and sets the basic question since there was no active or upon the united states proven, that is the case what about the other stuff? but that is just a layman's objection. >> john marshall. richard brooke kaiser. [applause] [inaudible conversations]

and jefferson wrote this 14 years after he wrote the declaration of independence.

we must me content for what we can get and eternally press forward for what yet to get it takes time to persuade men even for their own good. my point is you need to step back to say these things take time and take small steps to get there. >> we spend trillions now and the war in afghanistan going on 18 years i think it's ridiculous and i think foreign-policy has caused us to have more enemies doing more harm than good. >> in the house of representatives with reforms pelosi has pledged that my counterparts that i just think there is too much power for the american people and i

don't think that's going to change . >> we are at the united states senate it is unprecedented nobody else has ever got an opportunity to do this. it is production on the documentary of the u.s. senate on the floor when they begin i will wing around the chamber and get sought shots during the session and afterwards we will go back down on the floor. truly special. >> if mitch mcconnell how much control did he have over the content quick. >> zero. when we met with him for the

first time we had a couple of positions. you have to grease the skids with the democrats if we want access to the republicans we have to have access to the democrats and number two you have no editorial control. they said that's fine but we don't want you to focus on the acrimony. we said you cannot ask us to do that because were not going to concentrate on it but we cannot shy away from it we have to come out with a product that we feel people on the journalism side and those that watch the senate not to give a big wet kiss but also say we didn't do a hatchet job either.

eisenhower versus warren the super battle for rights and liberties this is one hour 15 minutes. [inaudible conversations] . >> hello everyone. i am pleased to see everyone here tonight. thank you for joining us. i am the vice president for institutional advancement and one of many people here who was lucky enough to have professor simon as a student