March 6, 2024 • 17 mins
On this episode of Our American Stories, when the Constitution was written, it didn't specify the exact role of the Supreme Court. It took a few undelivered letters for that to change. Bill McClay, author of Land of Hope, tells the story.
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Speaker 1 (00:10):
This is Lee Habib and this is our American Stories,
the show where America is the star and the American people.
Up next, another installment in our series about Us, the
Story of America series with Hillsdale College professor and author
of the terrific book Land of Hope.
Speaker 2 (00:29):
We're talking about Bill McLay.
Speaker 1 (00:31):
The election of eighteen hundred was one of many closely
contested elections in American history, and it ended with Thomas
Jefferson in the White House.
Speaker 2 (00:40):
Let's get into the story. Here's McLay.
Speaker 3 (00:47):
When Jefferson was finally inaugurated, was not in New York City,
it was not in Philadelphia. It was Washington, d C.
A very small town, more like a village than anything,
although built according to a great plan by the French
(01:09):
architect and planner of Pierre Lafant. So Jefferson assumes the presidency,
and remember Washington is laid down a marker about what
a president should be like. Adams more or less tried
to follow as best he could. Jefferson dropped that his
style was different. It was more informal, almost casual at times.
(01:36):
Being a person of Republican sensibility, he did not want
to exude the aura of a king. He wanted to
be a man among common men. There were no fancy
carriages drawn by teams of fancy horses, as Washington had
(01:56):
insisted on. Instead, Jefferson walked to the capital on the
day of his inauguration. But one should be careful taking
symbols for being identical to the things they symbolize. And
actually Jefferson was a party man. He used the executive
(02:22):
office to advance the interests of his party in a
way that neither of his two predecessors had done. Certainly
not to the same degree. John Adams did to do
some of it, but not as well, not as efficiently
and effectively as Jefferson did. He established Republican dominance in
(02:44):
the legislature, He appointed his people to the cabinet. He
managed to make what had been a Federalist government into
a Republican dominated one, and in fact, thanks to Jefferson's efforts,
it would only be a few years later that the
Federalist Party would disappear completely. So there's one area though,
(03:08):
where Jefferson was not as effective. The Federalists kept on
hanging on to one part of the national government, the judiciary.
This was sort of symbolically appropriate because Jefferson hated judges.
Why well, think about it. What is the least democratic
(03:31):
institution in the government, What branch is the least answerable
to public sentiments? Representatives and even senators. Presidents too, can
be voted out of office, but you can't do that
with the Supreme Court. You can yowl and scream and
jump up and down and curse and otherwise fulminate against
(03:54):
the Supreme Court. You can demand impeachment of justices. That
is a workable institutional option, but this is just about
the only one Otherwise there shielded from public opinion, the
shield from the vagaries of public sentiment. So Jefferson didn't
like them. He thought the government should be answerable to
(04:15):
the people. Jefferson even thought there ought to be revolutions periodically,
and the Constitution should be rewritten, should be replaced. He
didn't like the idea of venerating the Constitution like it
was the arc of the Covenant, as he sometimes said,
(04:38):
it was a document that represented popular sentiment at a
particular moment, but not to be venerated beyond that. He
had a rather low view in that sense of the Constitution, which,
by the way, he had no role in drafting. Not coincidentally, so,
Jefferson didn't like judges, distrusted judges. He was in curiated
(05:00):
with Adams when in his last days in office, Adams
appointed a Federalist named John Marshall to be Chief Justice
of the Supreme Court. And Adams managed to get through
the Congress the Judiciary Act, which greatly strengthened the Federalist
(05:21):
control over the judiciary. These are familiar things, presidents giving pardons,
shoving through last minute legislation before the ends of their terms.
It's not new. It's been going on all along. So
who was John Marshall, this new Chief Justice? What was
(05:43):
his experience being a judge? Well, he had almost no experience.
He was a relative of Jefferson, when he did not
like and he was coming into a place where the
constitutional guidelines were not clear. What was the role of
the Supreme Court? The Constitution specifies that there is to
(06:06):
be a Supreme Court, doesn't really say what it does.
But in any event, there needed to be someone, some
enforcer of free speech, of the Bill of rights, something
to serve as a check on other branches of the government.
And this is where we come to what was probably
the most consequential decision rendered by Marshall's court. And this
(06:32):
is a case called Marbury versus Madison, and Marbury versus
Madisine creates the doctrine of judicial review that the Serene
Court has the power and responsibility to declare acts of
Congress and constitutional, although it can't just do it out
of the blue. It's an appellate court. It's an appeal
has to be brought to the court that the Court
(06:54):
can rule on. That's what Marbary versus Madison was. It
was a case, extremely clever example of Marshall's judicial brilliance
that it created the basis for judicial review. I need
to give a little background about this case. It's complicated.
Speaker 1 (07:15):
When we come back more of the story of Marbury
versus Madison. Here on our American Stories. This is Lee Hibibe,
and this is our American stories, and all of our
(07:37):
history stories are brought to us by our generous sponsors,
including Hillsdale College, where students go to learn all the
things that are beautiful in life and all the things that.
Speaker 2 (07:47):
Matter in life.
Speaker 1 (07:49):
If you can't get to Hillsdale, Hillsdale will come to
you with their free and terrific online courses. Go to
Hillsdale dot edu. That's Hillsdale dot edu. And we returned
(08:10):
to our American stories and our series about us, the
Story of America series. When we last left off, we
found out that Jefferson completely recreated the federal government, not
only in his image, not only with his values, but
his parties image and values, except for one branch, the judiciary,
(08:30):
that would set up a massive fight over an undelivered letter.
Speaker 2 (08:34):
Let's return to the story.
Speaker 3 (08:42):
Okay, Adam's appoints John Marshall, a distant cousin of Jefferson,
and he did disliked Chief Justice. And then Adams passes
has Congress passed the Judiciary activated, you know, one which
creates six new federal circuit courts. There's nothing of constitution
about this. And he staffed them all with federalists, from
(09:04):
the judges down to the clerks one federalists. This is
a very crafty move, mister Adams. He was looking at
creating a federalist stronghold for years to come. Here's what happens.
Jefferson discovered that some of the this is crafty politicians
all the way down. Jefferson discovered that Adams these appointments
(09:28):
to the circuit courts had not always gone through that
The documents appointing Justices of the Peace in the District
of Columbia had not been mailed out by accident. They'd
been signed by Adams, but Jefferson held on to them.
He stopped delivery of the appointments themselves. In response to that,
(09:52):
one of the appointees, named William Marbury, sued for a
court order that would demand that Madison, who was Jefferson's
Secretary of State, would deliver Marbury's commission. This logical, So
what does Marshall do this comes before the Supreme Court.
(10:13):
He's got a dilemma. If he refused to issue the order,
it would avoid a collision with the new administration, but
it would appear he was giving in to Jefferson, and
that would set a bad precedent. It would undermine the
separation of powers. It would also deprive the judiciary of
another Federalist judge on a technicality. But what if Marshall
(10:37):
had agreed to issue the order to grant Marbury's commission?
What would happen to Jefferson ignored him? The country was
very sour towards the Federalists at this point. This would
be a disaster for the Court because it would advertise
the Court's lack of power. That too, would undermine the
(10:57):
separation of powers. So he had a dilemma. As I say,
either way that he went, he was looking at some
very real problems of likelihood of damaging the institution of
which he was a part. So his strategy to deal
(11:18):
with this was utterly ingenious. First, he argued that Marbury
had a right to his commission under his reading of
the Judiciary Act of seventeen eighty nine, which set up
the Federal court system in the first place. But the
clause that Marbury invoked was unconstitutional. Congress could not legally
(11:42):
grant the Supreme Court the power to issue britz of
ben damus, you know, demands such as the one that
they were seeking. This, in turn meant that the law
that Marbury was invoking was invalid and could not be used,
so Marbury would not be able to receive his commission. Okay,
(12:05):
you follow that. It's the brilliance of it might not
be a parent to the average person. It's important to
keep in mind the courts, particularly courts of appeal, operate
on the basis of precedent legal precedent. What was done
(12:28):
before is the basis for what's to be done now
and in the future. The way I'd like to put
it is that Marshall was playing a game of chess
here and sacrificing one of his pawns, one of his lesser,
less valuable pieces, in order to secure a more enduring victory.
(12:50):
He sacrificed Marbury's commission to treake hold of something larger.
He gave up one thing judge, in exchange for a precedent.
They could be used again and again and again, because
it established the independent power of the Supreme Court to
rule an Act of Congress unconstitutional. So he gave Jefferson
(13:16):
the outcome he wanted, the decision he wanted, but by
means of reasoning that Jefferson did not want it at all,
and there was nothing he could do about it. Because
the immediate result of the decision was in line with
what Jefferson had wanted. It was the reasoning, not the result,
(13:37):
that was more important in the end. So Marbury versus
Madison and the results of it are, in a sense
part of the Constitution, even though they weren't written into
the Constitution, they are part of our unwritten constitution in
(13:57):
a sense, and we have the sense that our Constitution
is a written document which we revere. But there are
all sorts of things that have been added to it,
both by way of amendment and by way of the
extension of its provisions into areas that may not have
(14:22):
been envisioned by the framers. Some of that has been good,
some of that has not been good. I leave it
up to you to decide where you come down on
one issue or another, but we do revisit these things.
The Constitution has an organic quality about it. It's susceptible
(14:45):
of growth without abandoning its nature, without the addition of
things that are not intrinsic to it. So when people
talk about the concept of a living constitution, there's one
sense in which, certainly true, the Constitution is a living thing.
But in another sense, it's living derives from the roots
(15:09):
that is sunk deep into the soil of American life.
You don't want to claim for living constitutions something that's
going to violate those roots, that's going to pull them
up and put the entire operation into danger. So that's
something that when we think about the sort of extra
constitutional character of Marvor versus Madison. Yes, it's extra constitutional,
(15:32):
but it's like the scaffolding, like the flying buttress that
holds up the building. We need it as much as
we need the things that are written in the Constitution.
And I think these debates over the role of the
Court are just as current today as they were in
(15:54):
the seventeen nineties and early eighteen hundreds, and just the
way that Jefferson felt, for ideological reasons but also political reasons,
the Supreme Court shouldn't have the power to tell me
what I can and can't do. But it's a nature
of the system. The Constitution is not a document designed
to produce harmony and peace at all times. It's a
(16:18):
document that teaches us how to fight, how to fight constructively,
how to channel our aggressions into avenues that will result
in constructive good and avoid the prospect of civil war
or discord. And I think it still plays that role.
I think it can play that role if we will
(16:41):
grant to it the power to do so. So when
you think about the fractiousness of the politics of our
own time, think about the fact that we've been there
before many times.
Speaker 1 (16:57):
And a terrific job on the production editing and story
telling by our own Monty Montgomery himself a Hillsdale College graduate.
A special thanks to Bill McLay, author of Land of Hope,
Pick it Up, pick the Young Readers Edition up to
wherever you get your books, and Professor McLay teaches at
Hillsdale College as well. Hillsdale is the place all of
(17:18):
you should go to to study the finer things in life,
the good things in life, the beautiful things in life.
And you can go without going because they have terrific
online courses that are available for free their Constitution one
oh one series. I learn more from that class, that
online class, than I did at three years at the
University of Virginia Law School.
Speaker 2 (17:38):
And what a story.
Speaker 1 (17:39):
Being told here, the fight over power and judicial power
and Marbury being the most important Supreme Court case ever
and we're still arguing about the power of the courts today,
the story of Marbury v. Madison Here on our American
Stories
This is Lee Habib and this is our American Stories,
the show where America is the star and the American people.
Up next, another installment in our series about Us, the
Story of America series with Hillsdale College professor and author
of the terrific book Land of Hope.
Speaker 2 (00:29):
We're talking about Bill McLay.
Speaker 1 (00:31):
The election of eighteen hundred was one of many closely
contested elections in American history, and it ended with Thomas
Jefferson in the White House.
Speaker 2 (00:40):
Let's get into the story. Here's McLay.
Speaker 3 (00:47):
When Jefferson was finally inaugurated, was not in New York City,
it was not in Philadelphia. It was Washington, d C.
A very small town, more like a village than anything,
although built according to a great plan by the French
(01:09):
architect and planner of Pierre Lafant. So Jefferson assumes the presidency,
and remember Washington is laid down a marker about what
a president should be like. Adams more or less tried
to follow as best he could. Jefferson dropped that his
style was different. It was more informal, almost casual at times.
(01:36):
Being a person of Republican sensibility, he did not want
to exude the aura of a king. He wanted to
be a man among common men. There were no fancy
carriages drawn by teams of fancy horses, as Washington had
(01:56):
insisted on. Instead, Jefferson walked to the capital on the
day of his inauguration. But one should be careful taking
symbols for being identical to the things they symbolize. And
actually Jefferson was a party man. He used the executive
(02:22):
office to advance the interests of his party in a
way that neither of his two predecessors had done. Certainly
not to the same degree. John Adams did to do
some of it, but not as well, not as efficiently
and effectively as Jefferson did. He established Republican dominance in
(02:44):
the legislature, He appointed his people to the cabinet. He
managed to make what had been a Federalist government into
a Republican dominated one, and in fact, thanks to Jefferson's efforts,
it would only be a few years later that the
Federalist Party would disappear completely. So there's one area though,
(03:08):
where Jefferson was not as effective. The Federalists kept on
hanging on to one part of the national government, the judiciary.
This was sort of symbolically appropriate because Jefferson hated judges.
Why well, think about it. What is the least democratic
(03:31):
institution in the government, What branch is the least answerable
to public sentiments? Representatives and even senators. Presidents too, can
be voted out of office, but you can't do that
with the Supreme Court. You can yowl and scream and
jump up and down and curse and otherwise fulminate against
(03:54):
the Supreme Court. You can demand impeachment of justices. That
is a workable institutional option, but this is just about
the only one Otherwise there shielded from public opinion, the
shield from the vagaries of public sentiment. So Jefferson didn't
like them. He thought the government should be answerable to
(04:15):
the people. Jefferson even thought there ought to be revolutions periodically,
and the Constitution should be rewritten, should be replaced. He
didn't like the idea of venerating the Constitution like it
was the arc of the Covenant, as he sometimes said,
(04:38):
it was a document that represented popular sentiment at a
particular moment, but not to be venerated beyond that. He
had a rather low view in that sense of the Constitution, which,
by the way, he had no role in drafting. Not coincidentally, so,
Jefferson didn't like judges, distrusted judges. He was in curiated
(05:00):
with Adams when in his last days in office, Adams
appointed a Federalist named John Marshall to be Chief Justice
of the Supreme Court. And Adams managed to get through
the Congress the Judiciary Act, which greatly strengthened the Federalist
(05:21):
control over the judiciary. These are familiar things, presidents giving pardons,
shoving through last minute legislation before the ends of their terms.
It's not new. It's been going on all along. So
who was John Marshall, this new Chief Justice? What was
(05:43):
his experience being a judge? Well, he had almost no experience.
He was a relative of Jefferson, when he did not
like and he was coming into a place where the
constitutional guidelines were not clear. What was the role of
the Supreme Court? The Constitution specifies that there is to
(06:06):
be a Supreme Court, doesn't really say what it does.
But in any event, there needed to be someone, some
enforcer of free speech, of the Bill of rights, something
to serve as a check on other branches of the government.
And this is where we come to what was probably
the most consequential decision rendered by Marshall's court. And this
(06:32):
is a case called Marbury versus Madison, and Marbury versus
Madisine creates the doctrine of judicial review that the Serene
Court has the power and responsibility to declare acts of
Congress and constitutional, although it can't just do it out
of the blue. It's an appellate court. It's an appeal
has to be brought to the court that the Court
(06:54):
can rule on. That's what Marbary versus Madison was. It
was a case, extremely clever example of Marshall's judicial brilliance
that it created the basis for judicial review. I need
to give a little background about this case. It's complicated.
Speaker 1 (07:15):
When we come back more of the story of Marbury
versus Madison. Here on our American Stories. This is Lee Hibibe,
and this is our American stories, and all of our
(07:37):
history stories are brought to us by our generous sponsors,
including Hillsdale College, where students go to learn all the
things that are beautiful in life and all the things that.
Speaker 2 (07:47):
Matter in life.
Speaker 1 (07:49):
If you can't get to Hillsdale, Hillsdale will come to
you with their free and terrific online courses. Go to
Hillsdale dot edu. That's Hillsdale dot edu. And we returned
(08:10):
to our American stories and our series about us, the
Story of America series. When we last left off, we
found out that Jefferson completely recreated the federal government, not
only in his image, not only with his values, but
his parties image and values, except for one branch, the judiciary,
(08:30):
that would set up a massive fight over an undelivered letter.
Speaker 2 (08:34):
Let's return to the story.
Speaker 3 (08:42):
Okay, Adam's appoints John Marshall, a distant cousin of Jefferson,
and he did disliked Chief Justice. And then Adams passes
has Congress passed the Judiciary activated, you know, one which
creates six new federal circuit courts. There's nothing of constitution
about this. And he staffed them all with federalists, from
(09:04):
the judges down to the clerks one federalists. This is
a very crafty move, mister Adams. He was looking at
creating a federalist stronghold for years to come. Here's what happens.
Jefferson discovered that some of the this is crafty politicians
all the way down. Jefferson discovered that Adams these appointments
(09:28):
to the circuit courts had not always gone through that
The documents appointing Justices of the Peace in the District
of Columbia had not been mailed out by accident. They'd
been signed by Adams, but Jefferson held on to them.
He stopped delivery of the appointments themselves. In response to that,
(09:52):
one of the appointees, named William Marbury, sued for a
court order that would demand that Madison, who was Jefferson's
Secretary of State, would deliver Marbury's commission. This logical, So
what does Marshall do this comes before the Supreme Court.
(10:13):
He's got a dilemma. If he refused to issue the order,
it would avoid a collision with the new administration, but
it would appear he was giving in to Jefferson, and
that would set a bad precedent. It would undermine the
separation of powers. It would also deprive the judiciary of
another Federalist judge on a technicality. But what if Marshall
(10:37):
had agreed to issue the order to grant Marbury's commission?
What would happen to Jefferson ignored him? The country was
very sour towards the Federalists at this point. This would
be a disaster for the Court because it would advertise
the Court's lack of power. That too, would undermine the
(10:57):
separation of powers. So he had a dilemma. As I say,
either way that he went, he was looking at some
very real problems of likelihood of damaging the institution of
which he was a part. So his strategy to deal
(11:18):
with this was utterly ingenious. First, he argued that Marbury
had a right to his commission under his reading of
the Judiciary Act of seventeen eighty nine, which set up
the Federal court system in the first place. But the
clause that Marbury invoked was unconstitutional. Congress could not legally
(11:42):
grant the Supreme Court the power to issue britz of
ben damus, you know, demands such as the one that
they were seeking. This, in turn meant that the law
that Marbury was invoking was invalid and could not be used,
so Marbury would not be able to receive his commission. Okay,
(12:05):
you follow that. It's the brilliance of it might not
be a parent to the average person. It's important to
keep in mind the courts, particularly courts of appeal, operate
on the basis of precedent legal precedent. What was done
(12:28):
before is the basis for what's to be done now
and in the future. The way I'd like to put
it is that Marshall was playing a game of chess
here and sacrificing one of his pawns, one of his lesser,
less valuable pieces, in order to secure a more enduring victory.
(12:50):
He sacrificed Marbury's commission to treake hold of something larger.
He gave up one thing judge, in exchange for a precedent.
They could be used again and again and again, because
it established the independent power of the Supreme Court to
rule an Act of Congress unconstitutional. So he gave Jefferson
(13:16):
the outcome he wanted, the decision he wanted, but by
means of reasoning that Jefferson did not want it at all,
and there was nothing he could do about it. Because
the immediate result of the decision was in line with
what Jefferson had wanted. It was the reasoning, not the result,
(13:37):
that was more important in the end. So Marbury versus
Madison and the results of it are, in a sense
part of the Constitution, even though they weren't written into
the Constitution, they are part of our unwritten constitution in
(13:57):
a sense, and we have the sense that our Constitution
is a written document which we revere. But there are
all sorts of things that have been added to it,
both by way of amendment and by way of the
extension of its provisions into areas that may not have
(14:22):
been envisioned by the framers. Some of that has been good,
some of that has not been good. I leave it
up to you to decide where you come down on
one issue or another, but we do revisit these things.
The Constitution has an organic quality about it. It's susceptible
(14:45):
of growth without abandoning its nature, without the addition of
things that are not intrinsic to it. So when people
talk about the concept of a living constitution, there's one
sense in which, certainly true, the Constitution is a living thing.
But in another sense, it's living derives from the roots
(15:09):
that is sunk deep into the soil of American life.
You don't want to claim for living constitutions something that's
going to violate those roots, that's going to pull them
up and put the entire operation into danger. So that's
something that when we think about the sort of extra
constitutional character of Marvor versus Madison. Yes, it's extra constitutional,
(15:32):
but it's like the scaffolding, like the flying buttress that
holds up the building. We need it as much as
we need the things that are written in the Constitution.
And I think these debates over the role of the
Court are just as current today as they were in
(15:54):
the seventeen nineties and early eighteen hundreds, and just the
way that Jefferson felt, for ideological reasons but also political reasons,
the Supreme Court shouldn't have the power to tell me
what I can and can't do. But it's a nature
of the system. The Constitution is not a document designed
to produce harmony and peace at all times. It's a
(16:18):
document that teaches us how to fight, how to fight constructively,
how to channel our aggressions into avenues that will result
in constructive good and avoid the prospect of civil war
or discord. And I think it still plays that role.
I think it can play that role if we will
(16:41):
grant to it the power to do so. So when
you think about the fractiousness of the politics of our
own time, think about the fact that we've been there
before many times.
Speaker 1 (16:57):
And a terrific job on the production editing and story
telling by our own Monty Montgomery himself a Hillsdale College graduate.
A special thanks to Bill McLay, author of Land of Hope,
Pick it Up, pick the Young Readers Edition up to
wherever you get your books, and Professor McLay teaches at
Hillsdale College as well. Hillsdale is the place all of
(17:18):
you should go to to study the finer things in life,
the good things in life, the beautiful things in life.
And you can go without going because they have terrific
online courses that are available for free their Constitution one
oh one series. I learn more from that class, that
online class, than I did at three years at the
University of Virginia Law School.
Speaker 2 (17:38):
And what a story.
Speaker 1 (17:39):
Being told here, the fight over power and judicial power
and Marbury being the most important Supreme Court case ever
and we're still arguing about the power of the courts today,
the story of Marbury v. Madison Here on our American
Stories
Host
Lee Habeeb
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