medco along with these television companies support "c-span2" as a public service. c-span's american history tv continues now, you can find the full schedule for the weekend under program guide for cspan.org/history. >> good afternoon. it is my honor to welcome you to a program today which honors and delivered by professor jolie richard paul a scholar who focuses on the court and the constitution. as many of you know, money was established by congress in 1961 to celebrate each year on may 1, the rule of law read this year

the society has joined in with the 60th anniversary program by the lecture that you will hear professor paul's lecture is entitled irrelevant, chief justice john marshall. professor paul, professor of law at the university of california hastings law school where he teaches constitutional law. the most recent books are entitled first, without presidents, chief justice john marshall. and the second book entitled unlikely how emergent a playwright and a spy saved the american revolution. the latter book was named one of the best books of 2009, by the washington post. i'm not one to stand is still an

professor paul is currently finishing a book on the rise of the american nationalism before the civil war so please join me in welcome our distinguished speaker today predict professor paul, if you will join me for the virtual podium, you will now be in charge. >> appreciate the opportunity to give a lecture here in the greatest chief justice john marshall which is far more than most people realize to secure the rule of law the independence about the judiciary. nevertheless couple of years, following publication of my biography of john marshall, have had a chance to seek many different groups around the country to speak to them in fact they didn't expect this kind of response to a book about the supreme court. but the event of the last several years, culminating into an impeachment trials,

january 6th insurrection, has shaken some people's confidence in the rule of law and in our fiduciary. they are looking for reassurance. as an occupational hazard for historians to draw historical parallels make predictions based on past experience. history may repeat itself but historical patterns are not predictive. if that caveat, let me suggest the following. the wealthy presidential candidate launches a populist campaign against the cultural and political elite on a promise to disrupt washington and to realign our priorities and take a foreign land this and trading relations. the attacks the opponents by spreading lies and innuendo, foreign government intervenes in the election on his behalf for ed swept into office on the wave

of a rural discontent. once selected, he chooses his political rivals of treason, he attacks the press, disparages and disrespects congress and the norms of his office. in the countries deeply polarized and many americans fear the president himself threatens the rule of law and the constitution. and i'm speaking of course of thomas jefferson. the selected in 1900 with the support of revolutionary on the populace program to drain the washington swamp and replace the federalist judges and trace the national government and return power to the states. there was a situation that john marshall faced when john adams a lame-duck president. in his final months in office,

appoints john marshall chief justice of the supreme court. and marshall did not really want this job. but each of you because no one else would. and with all the respect my host, the u.s. supreme court was professional dead and. in 1800, the court averaged six cases a year. mostly cases of little consequence. just a spent most of their time writing in the country carrying circuit cases and having to share beds with strangers. the supreme court was so insignificant at the design of the capitol they forgot to go to the courthouse. in a nondescript senate office, set of committee rooms, on the ground floor of the capitol building. which they had to share with the

district court in the circuit court. supreme court didn't have a home of its own until 1935. marshall in the federalist judiciary faced an enemy and president jefferson. jefferson had personal and political reasons for hating partial. jefferson was marshall's second cousin. in the families had feuded bitterly for two generations of the inheritance the jeffersons father had appropriated marshall's grandmother. perhaps he got even by marrying holly ambler. boris striking a semblance to her mother who just happened to be the woman who broke jeffersons heart when she rejected his marriage proposal. they were enemies.

to defend the independence of the judiciary against the jeffersonians who now control both houses of congress as well as the white house. the one thing that most people know about marshall, for review no marshall a lot of law but he did not have judicial review. some state courts had already inserted the power to strike down unconstitutional laws you before the constitution was written and the ratification days with her constitution was generally accepted that the supreme court had the power to declare laws unconstitutional. not even jefferson contested and then one of them midnight judges appointed by president adams in the last hour of his presidency.

the nomination of the justice of peace, for the district of columbia is confirmed by the senate and the secretary of state which just happens to be john marshall and he is responsible for delivering it on the last day of adams administration. that marshall is busy packing up his office and preoccupied it doesn't get around to delivering the commissions for justice of the peace before jefferson this morning the following day. a new chief justice to happens to be john marshall. he finds these commission orders to secretary of state james madison so marbury filed a lawsuit in the supreme court asking for davis ordering the secretary of state is a decision marshall first folds at

madison's then he broke the law by refusing to deliver the commission. and then he could hear the case anyway. and marshall find us that a statute under which marbury filed this lawsuit granted the supreme court original jurisdiction over matt davis. he claims that to be free of the constitution forbids congress from expanding the courts jurisdiction and and therefore, the court has jurisdiction and they dismiss marbury's case. now this case has puzzled historians for generations worried and first, marshall knows that the courts are not supposed to sign the mayors of the case if they don't have jurisdiction the first place. so why does he be told that he acted illegally.

in second language of the statute did not grant the jurisdiction. the journey said he filed the case in the royal court pretty but charles lee is too smart to make it safe like that. so perhaps, he misfiled the case on purpose. and william marbury is a wealthy bank president from a maryland family. the justice of the peace did a lousy job is even worse than being a supreme court justice. and it means nothing on the job entails the risking of the prostitutes and the drunks in deciding cases from less than $5. margaret doesn't really want this job. he doesn't need this job pretty stories that have some other for

taking supreme court. simple medicine wishes to have the case and provide him with a copy of the commission. and the only witness of the commission is john marshall who can exactly testify in court. so marshall's brother james is it district court judge, signs an affidavit attesting they meant to deliver the commission but he had forgotten and none of this makes any sense. in my research, i discovered evidence that suggests the whole case is a setup. the chief justice marshall and his brother james marshall charles late and william marbury sat down and plotted the case from the beginning to create a

vehicle from washington to assert the court authority against the threat posed by the jeffersonians. and charles lee purposely filed suit the wrong court to give marshall the opportunity to assert jurisdiction over the secretary of state into a firm the court also have the power to strike down acts of congress and madison who so didn't even bother up chart showing up for the trial. he refused any order to the commission. samantha court looking effective because they had issues. and so instead, marshall gives a strategic retreat pretty invoice confrontation that madison and jefferson while establishing the presence this survive two centuries. the marshall did far more

important and confirm the power of judiciary. in marbury established the most fundamental principle of our legal system. no one is above the law. not even the president and his cabinet. in subjects the court's jurisdiction and even the president can be held accountable. that is the essence of the rule of law. in cases like marbury and mcculloch, thorne and martin. marshall, both inserted the supremacy of the independence of the judiciary. at a time when jeffersonians wanted to be the judiciary of all federalist and they indeed, jefferson asserted that he should have the power to hire and fire the judges that will. just imagine where we would be

today if the presidents had that kind of power over the judiciary read and marbury versus madison, has unfortunately obscured his other contributions. and then a republican form of government. and the federal law and treaties and federal courts. our supreme over state law. and congress' power to regulate commerce this law that is a hope hope that one day the congress regulate slavery out of his kiss and the existence printed he declared that international laws part of our lawn and must be read into any act of congress. he defended the property rights and the rights to try and for private corporations and colleges. and prior to the opinion, they're only a handful of private corporations in the united states rated and within a

decade afterwards, there were thousands of other time marshall retired. there are more than 20000 private corporations with total authorized capitol of more than $6 billion. that was all, marshall's word pretty he assigns the rights of america and her native american in the right to occupy and he is the tribal lands free from interference by the state. any protect the rights of aliens even enemy and lands under our constitution and international law. in fact, no member of the founding generation has eight more impact on what our republic has become an john marshall. and no one did more to preserve the delicate union of our

republic at a critical moment. marshall's leadership elevated it the judiciary as a coequal branch of our federal government read but how did he succeed is the overwhelming power of the populace jeffersonians and later the jacksonians. and before marshall, all the justices issued decisions and it was no unified decision of the court reading and marshall thought that the court must speak with one unified voice read as therefore necessary to hammer out a single opinion. and to that end, marshall insisted that all the justices share the same and for most of 34 years, the supreme court lived together.

and especially ranked together as fraternity brothers read hard to imagine the justices today living together. it kind of sounds like more of a part of the reality tv show work maybe in agatha christie novel read and as a result, over 34 years commercial court issued 1,001,129 decisions all but 87 of the course opinions were unanimous in about half of all of the court's case, offered by the marshall himself and an astounding record afraid but even more extraordinary, is that every justice appointed to the court after marshall was appointed by a democrat republican president who opposed the rules. and yet this powerful considerable charm marshall

managed to find common ground in almost every case and forge the unanimous decision marshall had a gift for inventing new legal concepts that made it compromise possible for example invented the idea of self executing on self-executing treaties and the idea of defendant san martin. in his legal strategies managing the conflict between jacksonian democracy and the rights of indigenous tribes. where did all of this information come from. unlike all of the other great virginia founders, washington and jefferson and madison, marshall was more dirt poor. his 14 brothers and sisters shared a two room log cabin

which was 400 square feet. that was on the hard scrabble virginia frontier where his father scratched out the small farm. his only formal education, the single year before he joined the regimen of 17 to be five at the age of 19. marshall thought in the great battle of norfolk where the british level norfolk virginia, the largest city in the large estate in the union. in the image of the city on fire, was burned into his memory read he witnesses at the fragility of human society and the imperative of the strong military to defend us. anything chafed his conservatism. he was a progressive

conservative. in the mode of hamilton giving birth and he believed the strong central government protect the nation security in the privacy of individual liberty and property rights. he also favored modernizing influence of commerce to replace the slaved economy. in valley forge, george washington officially was impressed by the young man that he pointed marshall the judge advocate general of the u.s. army before marshall had ever attended law school and after his military service, marshall decided to spent six weeks at the college attending law lectures read he was probably there because polly ambler just happened to be in town at the time. and he wanted to have an excuse

for hanging around her neck was his only education of six weeks. my law students would probably be envious. and yet, in the decade, he was one of the leading members of the bar in richmond, virginia. he was elected to the house of delegates appointed the youngest member of the executive council of the commonwealth of virginia. and as a legislature, he fought for laws of enslaved persons and allow intermarriage between man and had many americans and whites. and of the virginia conventions the constitution, there was james madison and john marshall, they were the two leading proponents for application. facing off against patrick and the first governor and a great hero of commonwealth. in madison it was a brilliant tereus. but he was a little too awkward

and dirty to really be well-liked. marshall on the other hand wasn't sensible man who shows the delegates over his favorite richmond tavern in marshall managed to persuade just enough delegates to the constitution past by a slender margin of ten votes. and without marshall, there is no question that virginia might not have ratified the constitution and without virginia and there's no question that there would be no republic. in any defense marshall a few others and then the gerrymandering, and charles. and on a secret mission to persuade revolutionary friends, to stop the u.s. ships counting

goodness caring the superintendent partial power in 1797 amy seven the french prime minister. a notorious man who is a addition to any association, bribes and the equivalent to about $6 million plus a $400 million loan to finance the french war against britain. they refuses to pay him anything and they retaliate by ceasing the markets passports and refusing to allow them safe passage. so for nine months, marshall is trapped in paris fighting and all the while he's with his charming woman who may or may not be the illegitimate daughter a dam to - and eventually

marshall charms and not realizing that she is in fact a spy working for them. you will have to read the book to find out what happens next. but eventually marshall returns home to the states and he is hailed as a hero for standing up to the french natives even though he unwittingly triggered the war with france in 1798 pretty marshall has a note and just wants to return to ali. they insist the marshall has opposing the influence of the jeff or under jeffersonians of virginia marshall is elected in philadelphia were congresses to meeting and marshall single term in congress becomes a leader of the federalist party is the guy

who actually give the eulogy when george washington passes away. but marshall still wants to return home from philadelphia and president adams offers him a way out of congress by appointing him to be secretary of state during adam's final year in office. marshall figures he can accept the appointment as we are leaving congress and then leaving for government at the end of adams term read so president adams and john marshall me for the first time in a modest tavern in washington, still under construction. that instills marshall that since abigail does not like this will climate of washington, is going home to massachusetts at a starting over the keys to the government to marshall targeted and marshall is now in charge of

every department in government except the military. he's in charge of passports, patents land grants, and he oversees all of the u.s. attorneys any overseas the government trials the senses. and of course delivering the commissions. he must also supervise the petition of the white house, the capitol building all the roads and infrastructure in the new city before congress convenes the following january. and at the same time, france, spain, britain, and the pirates are all threatening to go to war against the united states marshall was juggling all of the somehow the staff of nine employees state department budget of $15000 which is just barely enough to cover salaries firewood and stationary. incredible thing is all of this

he does bristle entered brilliantly. now what does it say about this man, he rises from poverty with no education to the highest levels of government and the judiciary. i believe that marshall's genius for self invention is how he developed the talent for inventing the law. so how does all of this develop to the current moment. the insurrection on january 6th, still a fresh intercountry and a demonstrated both of agility and the democracy and the resilience of our institutions. but for the courage of the capitol police in 62 ports, the consistently rejected every attempt to overturn free and

fair election. our constitution would've been rendered void. our politics today however are no more ruthless or polarized in the politics in washington today. he faced not one but two constitutional crises. one precipitated by the jeffersonians and later and both of which threaten the independence of our courts. what marshall understood, is to read for compromise and he knew how to forge consensus when none seemed possible. he understood that what transcends partisan politics, but should unite the judiciary is a commitment to defend the legitimacy and the autonomy of the courts and the rule of law read in the courts must be the guarantees of the principal the

no person is above the law. the independence of our courts is the linchpin of our liberty and without it, our republican our constitution are lost. and independence of our judiciary, who do we depend and when the judiciary itself is under attack. in the last several decades, they have licensed pitched battles of the nomination federal judges and we have seen a president disparage judges expressed judicial process in his own attorney general and insist that is above the law. we seen the senate routinely filibuster the nomination to qualify judicial nominees. we seen some members of congress

threatened to pack the court with like-minded judges. it is not just the political branches however that have demeaned and politicized there and in our judiciary and unfortunately, some judges have cast out on their own legitimacy is neutral arbitrators of on the job of a judge or justice is to set aside the political loyalties and decide each case. on its own merits but up with lawyers and law students, they can readily predict the expanding accuracy certain judges will vote even before a case is heard. it suggests that the judges are putting party loyalty before the law. and when the public perceives the court is divided between renters and blisters, and undermines the public's respect for the judiciary. and more and more often as a professor of constitutional law,

by myself struggling to convince a skeptical class the course about something more than party politics the legitimacy of our is at stake and if the judges cannot set aside partisan politics and find common ground. now i know that even suggesting the common ground is a possibility in the current political environment, makes me sound terribly naïve. but john marshall also lived in a highly partisan moment and get as chief justice, he found common ground by nurturing his nutritional loyalties. every kind of judge and justice have something at stake beyond the parties political aims predict and that is the legitimacy of the court itself.

many judges and justices who will strengthen the judiciary by setting aside their own political preferences and leaning in towards the center. we need jurors who hold their troops lightly in the common pursuit of the consensus who prefer compromise to confrontation. and who recognize and appreciate the moderation. john marshall. he had the courage of his imagination and wisdom to find common ground. and the grades to hold together a fragile union. thank you for your time. >> thank you very much professor. that is wonderful oversight of history and woven into our

current environments very well. we appreciated very much. going to take some questions from the audience then you have questions, please type them into the q&a section i will get to his many of those as possible. a few are a couple leading up my own as others are coming in. and what is, the adams and jefferson revelry is well-known and documented it. and they seem to by the end of their live dispatch that the bit. engaging correspondence. as we know. the marshall and jefferson revelry. never get patched up by the end of their lives. >> no definitely not.

they were really blood enemies throughout their lives. and you know from jefferson's point of view, probably the worst thing that john adams could do to him was settle him with john marshall as his chief justice. it jefferson it was looking forward to appointing someone else. and as chief justice when he became reelected. and jefferson and then republican party, clearly set out to rid themselves of the federalist judges and they started out by teaching judge addison and they teach the judge and in new hampshire and of course they impeached justice

samuel chase. bacon face chase. [laughter] and missus chase, everybody understood truly the proxy for john marshall. the republicans were really out to get on marshall. he had been the leader of the federalist party in virginia while jefferson was ahead of the republican party. marshall had been washington's great defender at a time when jefferson was antagonistic and washington's policy of totality towards france there's a long history here of rivalry between them and they never patched things up and i suppose in a sense, it continues to this day the rivalry between the jeffersonians fans and marshall's fans. [laughter] >> chief justice marshall have slaves printed. >> chief justice marshall did

not have on the subject of slavery pretty owned and leased about 15 household slaves. a recent book and suggested the marshall also allowed implantation that had more than 100 slaves on it. i'm somewhat skeptical of that and insofar as marshall, nowhere in his correspondence and/or his diaries or count books, is there any reflection on having purchased or sold the slaves received any income or expenses with such implantation. and i'm sure that it matters, marshall has 15 household slaves were marshall's position on slavery was complex. he is a very strong opponent of

slavery read he was really tax aided by very southerners throughout his term in the congress. or in the court. brandon taken strong positions that everybody understood this really about slavery. so the decision versus maryland, were given is really about whether or not congress has enough authority to be able to regulate slavery out of and that's how it the contemporaries receive those decisions. and then i think we have to bear that in mind party. >> that is very interesting one of the questions that we have was evidence of marshall wanted congress to have the power in the to regulate slavery out of existence. and what evidence do we have of that pretty. >> while the evidence we have is the opinions in which he expressed it a very broad view

about congress' powers. and for example in addition to what appears in it opinion. marshall requested judge johnson to write a concurring decision and most of the biographies that his concurrence was actually dictated by marshall for that marshall had something to do with it. johnson says that once congress acts, all the state laws from the statute, and that is really marshall's keel without the power. he really set the stage in a way, did not have a great deal and the idea of stage fright at the time, sonoma and this was preservation of slavery. moreover as they say, the southern press saw marshall as threatening the institution of

slavery. and while he was practicing law in virginia he took pro bono cases on behalf of the slaves against them. >> thank you and another question from our audience is the marshall and story relationship, as a modern comparison. in the examples given pretty. >> that's exactly what comes to mind party except that a difference would be if the justice killian had persuaded him to think what he thinks because just as marshall, the story was of course extremely accomplished tourist and legal scholar before hundred before going to court. in this commentary on american

law. the stories really kind of, he was a republican. it was a jeffersonian before he joined the court enjoyed the courtney just had this kind of it magnetic attraction for marshall in houston will became marshall's the greatest advocate and supporter. and their friendship, long after death. >> sort of brings that injustice was a republican appointee. and certainly, decided what justice marshall on most decisions, to see a comparison there or was the justice of that mind from the onset. >> his friend was am not sure he was a republican himself.

his appointed by eisenhower. and he pointed him, he suffered as a moderate summary who could get to congress and i think eisenhower used to say, only made two mistakes is present both of them are on the supreme court. and so brandon, is not exactly in the same campus eisenhower. i think a better example, is like justice appointed by president bush first and he was assured by johnson who knew him quite well. that he was a republican conservative and of course the justice proved to be more moderate and perhaps closer to the justice stevens in these issues. >> is there any justices that have had a similar