August 19, 2025 • 27 mins
On this episode of Our American Stories, before John Marshall, the Supreme Court was still finding its place in the new American government. By the time he was done, it had the power to declare laws unconstitutional, and entrepreneurs had the legal framework to build a nation. Marshall’s landmark decision in Marbury v. Madison established judicial review, forever changing the role of the Court. Beyond the bench, he was a man of simple pleasures, devoted to quoits, wine, and his hero George Washington. Richard Brookhiser, author of John Marshall: The Man Who Made the Supreme Court, shares the story of the Chief Justice who defined the Court’s authority and left a lasting mark on U.S. history. We'd like to thank the U.S. National Archives for allowing us access to this audio.
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Episode Transcript
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Speaker 1 (00:10):
This is Lee Hibib and this is our American Stories,
the show where America is the star and the American
people up next to the story of an often overlooked
founding father. Well, you may have heard of John Marshall
in history class. It was probably but for a brief
moment concerning the landmark decision is Supreme Court handed down
(00:31):
in eighteen oh three Marbury versus Madison. But his life
is much more than just his cases. Here to tell
the story of the man is Richard Burkheiser, author of
John Marshall, The Man who made the Supreme Court.
Speaker 2 (00:47):
So I think the first thing say about who John
Marshall was, and this is even though he spent most
of his adult life in Richmond, spent a couple of
years in Philadelphia, six months in Paris. Despite all that
experience of city living, he was a country boy all
his life. The house he was born in was a
(01:10):
log cabin. The second house he grew up in was
a frame house. The third had glass in the windows.
It wasn't Daniel Boone going through the Cumberland Gap, but
it was out in the country. And it seems to
me that Marshall so enjoyed that manner of life that
he never entirely forsook it. The word that comes up
(01:32):
over and over again and descriptions of him is simple.
This word is used by people who are meeting him
for the first time. It's used by people who've known
him for years. They describe him as simple. He didn't
care how he dressed. He didn't care how his hair
was cut. His wife cut it for him. He had
(01:54):
simple attitudes toward drinking. He liked it. He liked it
a lot. When he was Chief Justice. The wine merchants
of Washington call their best stuff the Supreme Court because
he was one of their best customers. The Court had
a custom in those days that after the justices heard
(02:14):
the cases and they would go back to their boarding
house and discuss them over dinner, and afterwards they could
only have wine if it was raining. So Marsha would
always ask one of his colleagues, usually Associate Justice, story,
brother's story, look out the window and tell us what
the weather is. And Story might say, the sky is
(02:34):
perfectly clear, and Marshall would always answer, our jurisdiction is
so vast that, by the law of chances, it must
be raining somewhere. So wine was always served at the
Marshall Court. Marshall liked simple games all his life. He
regularly walked several miles before breakfast just to get himself going.
(02:57):
He did it as long as he was mobile. His
nickname in the army was silver Heels, partly because his
mother sewed socks that had whitened the heels, but also
because Marshall could jump over a bar that rested on
the heads of two men. He loved the game called quoits,
which is horseshoes played with metal rings, not horseshoes. And
(03:19):
there was a club in Richmond called the Quoits Club,
and the Governor of the state was ex officio a member,
but the membership was limited. The members sang, they gave
humorous speeches. If you mentioned politics or religion, you were
find a case of champagne for the next meeting. And
they also played this game of quoits. And people said
(03:40):
that Marshall seemed to pay as much attention to judging
who's quoite got closest to the meg as he gave
to his judicial decisions. So this was, in many respects
a simple man, the man he most admired, apart from
his father, Thomas Marshall was the father of his country.
(04:03):
Marshall volunteered to serve in the militia in seventeen seventy five,
and he was nineteen years old. He was in the
army almost until the end of the Revolution. He was
in three battles that Washington commanded, Brandywine, Germantown, and then Monmouth.
And between Germantown and Monmouth he was at Valley Forge.
(04:25):
So Marshall saw Washington in defeats, he saw him in victory.
He saw him when the army had nothing to do
but suffer from lack of clothing, lack of food, lack
of pay. And Marshall's conclusion from these experiences was that
George Washington was the rock on which the revolution rested.
(04:47):
When Washington returned his commission as Commander in Chief to Congress,
Marshall wrote a letter to his old friend James Monroe,
and he said at length, the military career of the
the greatest man on earth is closed. May happiness attend
him wherever he goes. When I think of that superior man,
(05:09):
my full heart overflows with gratitude. Marshall didn't just admire
him as a military leader. He agreed with Washington's diagnosis
of the political problems that had made the war so
difficult for the army. The form of government that the
Independent America first had, the Articles of Confederation, was inadequate
(05:31):
to its task. It didn't give the government the power
or the energy to do the things that it had
to do, so when reform was necessary. When the Constitutional
Convention met in seventeen eighty seven, presided over by Washington,
signed by Washington, Marshall follows him once again, ratifying the Constitution.
(05:53):
Marshall follows Washington again in joining the Federalist Party. Marshall
follows Washington a third time. He is summoned to Mount
Vernon along with Washington's nephew, Bushrod Washington, and George. Washington
tells these two young men, you have to run for
Congress in Virginia. The Federalist Party is in trouble in
(06:14):
this state. We need new blood. You have to run.
Marshall doesn't want to do it. He's a lawyer in
private practice. He's a very good one. He's making good money.
He started a family, and he's buying land and buying farms,
and he needs the income. But Washington keeps insisting he's
after him and after him. And the anecdote about this
(06:38):
visit is that Marshall decided he couldn't keep saying no
to his former commander in chief, so he decided to
get up at the crack at dawn and just leave.
But Washington had gotten up earlier and put on his uniform.
Whether that's literally true or not, what Marshall said later
(06:58):
was that I yielded to Washingtonington's representations. He was elected
to the House and this puts him on the escalator
to be John Adams's Secretary of State and finally Chief Justice.
Speaker 1 (07:11):
When we come back more of the story of John
Marshall here on our American Stories Lehabib Here as we
approach our nation's two hundred and fiftieth anniversary, I'd like
(07:34):
to remind you that all the history stories you hear
on this show are brought to you by the great
folks at Hillsdale College. And Hillsdale isn't just a great
school for your kids or grandkids to attend, but for
you as well. Go to Hillsdale dot edu to find
out about their terrific free online courses. Their series on
Communism is one of the finest I've ever seen again.
Go to Hillsdale dot edu and sign up for their
(07:56):
free and terrific online courses. Can we continue with our
American stories and with the story of John Marshall When
we last left off, At the prodding of George Washington,
(08:17):
Marshall been elected to Congress, But bigger things we're about
to come. Here again is Richard Berkeeiser, author of John Marshall,
the Man who made the Supreme Court.
Speaker 2 (08:28):
So Marshall serves in Congress. Adams makes him Secretary of
State after he cleans the Hamilton loyalists out of his cabinet,
and then at the end of his administration, the lame
duck end of it. Because Adams has lost the election
of eighteen hundred. This is his rematch with Thomas Jefferson.
A very important vacancy opens up because Adams gets a
(08:51):
letter from the then Chief Justice, Oliver Ellsworth, and Allsworth
has gout his health is bad, so he tells Adams
he quitting. Adams offers the post to the first man
who'd held it, the great revolutionary patriot, spymaster diplomat John Jay.
(09:13):
Then Adams gets a letter from Jay saying that he
won't take the appointment He says that the federal judiciary
lacks energy, weight, and dignity, so he's going to stay home.
In New York, Adams has a meeting with his Secretary
of State in the still unfinished White House. The shell
(09:33):
has been completed, but the inside is almost like a
construction site. And as Marshall recalled it, Adams asked him,
who shall I nominate now? And Marshall said, I don't know,
I don't know, Sir. Adams paused a minute and said,
I believe I'll nominate you. He was shortly confirmed sworn in,
(09:55):
and then after a few weeks he swore in the
new president, Thomas Jeffrey person. He didn't hate hardly anybody,
but he did hate his second cousin. Once removed, Thomas
Jefferson returned that hatred. Jefferson hated a lot of people,
but Marshall was always high on his list. Jefferson's opinion
(10:18):
was that Marshall was a sophist, that he would take
any statement and twist it into some predetermined judicial conclusion.
Marshall warned Joseph's story before he got on the Supreme Court.
He said, you must never give a direct answer to
any question that Marshall asks you, if he asked me
(10:40):
if the sun were shining, I would say, I don't know, sir,
I cannot tell. Marshall's opinion of Jefferson was that he
was a demagogue, that he pretended to be a hands
off president, taking his lead from Congress, but that he
secretly manipulated it through the House and did so to
(11:01):
ride storms of popular passion for his own benefit. The
sundering episode in the relationship happened when a letter that
Jefferson had written to an Italian friend was published, first
in Europe, then in England, and finally in America. And
in this letter Jefferson said, I would put you in
(11:22):
a fever if I named men here who have been
Solomon's in council and Sampson's in the field, whose heads
have been shorn by the Harlot England. Now Solomon, of
course was a king of Israel. Sampson was a judge
of Israel. So this letter was interpreted in America, and
certainly by John Marshall, as a direct attack on George Washington.
(11:45):
For years, Jefferson had taken the position that Washington was
still a good man. He was being manipulated by Hamilton,
but here in the Messiah Letter he seems to be
pointing his finger directly at Washington. Four years later, when
Alexander Hamilton is trying to get Federalists to prefer Thomas
Jefferson to Aaron Burr after the deadlocked election of eighteen hundred,
(12:10):
one of the federalists he writes as John Marshall, and
Marshall wrote him back and said, I don't know Burr.
Speaker 1 (12:16):
You do.
Speaker 2 (12:16):
I have to accept your opinion of him, But the
morals of the author of the letter to Mazzi cannot
be pure. This is how Virginia gentlemen said he is
dead to me. So how did he take this job
which John Jay had refused to hold again because he
(12:37):
said it lacked energy, weight, and dignity. How did Marshall
supply those qualities to it? I think the first trait
he used was geniality, and this helped him work with
his fellow justices. When he comes in as Chief Justice.
The court has only six members, so all six of
(12:59):
them are Federalists. They've all been appointed by Washington or Adams.
But in only eleven years, one man retired, a couple
more died, the Congress increased the size of the court
to seven justices, and by then the partisan balance as
two Federalists and five Republicans. That's a significant shift. Yet
(13:22):
all these new Republicans voted along with John Marshall. So
how did this happen? I think the geniality is the
first quality. Marshall was not only simple, he was likable
and he liked people. When Joseph's story first encountered him
as an advocate before the Supreme Court, he wrote home,
(13:45):
and he said, I love his laugh. I love his laugh.
Another technique Marshall used was deference. He would defer to
justices who were more expert in particular airs areas of
the law than he was. But when he deferred, he
got deference in return. So deference is not only polite
(14:09):
or virtuous. It's also smart. You give something and you
get something back. The third quality Marshall had is that
he's always the smartest man in the room. And his
intelligence was not quick. It took a while for him
to get going, but when he did, his reasoning could
(14:30):
seem almost implacable. His major decisions are eight nine, ten
thousand words long, and they're built like granite. They're supposed
to have that solidity in that weight. One advocate before
the Supreme Court, William Wirt, who would later become Attorney General.
(14:51):
He said that Marshall's mind was like the Atlantic Ocean.
Everybody else's minds were ponds. This is how Marshall struck
someone who knew what he was talking about. Marshall used
all these qualities over an enormous length of time. His idol,
George Washington, was Commander in Chief for eight and a
(15:11):
half years and then President for eight so he's in
effect he's the chief executive of the country for sixteen
and a half years. Marshall is Chief Justice for thirty
four years, twice as long. He's appointed by John Adams.
He serves into the second term of Andrew Jackson. He
inaugurates five presidents in nine inaugurals, and he still holds
(15:36):
the record for length of tenure of a Chief Justice.
And in the middle of that period, the Court had
a remarkable twelve year stretch where there were no personnel changes.
So he has thirty four years to work his magic
on his fellow justices, and he puts them to good use.
(15:57):
His most famous case is probably Marbory versus Madison and
We're all taught that in school because it establishes that
the Court can rule a law passed by Congress or
a portion of it unconstitutional. Well, it's true that that's
what Marbury did. I don't think that was news when
it happened. The concept of judicial review was already out there.
(16:19):
What was most striking at the time about Marbury. It's
a nine thousand word decision, and about eighty five hundred
words of it is a lecture to the Jefferson administration.
It's telling them, you thought we were the bad guys,
and you said you would be the good guys who
do everything right. But you have done wrong by William Marbury.
(16:39):
He deserved his commission and you didn't give it to him.
Now he's not going to get it because the form
of redress he's seeking is a portion of the Judiciary
Act of seventeen eighty nine, which is in fact unconstitutional.
But still shame on you.
Speaker 1 (16:57):
And you've been listening to Richard Brookhiser, author of John Marshall,
The Man who Made the Supreme Court, tell the story
of John Marshall served a brief time in Congress. He
was the Secretary of State under John Adams. We learned
and then came that nomination to the Court, to the
Supreme Court, just to well get under the skin of
incoming President Thomas Jefferson. He would serve as the chief
(17:21):
Justice for thirty four years, and that is still a record.
And we learned that the same court, the same members
well I had stood together for twelve years, another record.
When we come back how Marshall shaped the Supreme Court
and more here on our American stories. And we continue
(18:09):
with our American stories and the final portion of our
story on John Marshall. The most important Chief Justice of
the US Supreme Court telling the story is Richard Brookheiser.
Let's begin this segment with a look into one of
Marshall's most important decisions.
Speaker 2 (18:25):
Now, when we think of founding fathers who are responsible
for our economic system, we mostly think of Alexander Hamilton,
and he certainly deserves all that credit. But his plans
and his achievements had to have legal support as well.
And in Marshall's contract law decisions and in his commerce decision,
(18:48):
he lays the legal support for a national market in
which people are free to contract with each other Gibbons
versus ogden I. Like the story known as the steamboat case.
Steamboats were invented several different times. At the end of
(19:08):
the eighteenth and early nineteenth century, several people figured out
how to take a watt steam engine, which was a
new innovation, and put it on a boat and convert
its power into a mechanism that would turn a paddle wheel.
One of these inventors was Robert Fulton, and he demonstrated
(19:30):
his first boat on the Seenne in France, and one
of the spectators was the American Minister to France, Robert Livingstone.
Several earlier steamboat inventors had failed because they'd lacked the money.
Livingston was a wealthy New York grandees. When he saw
Fulton's steamboat, he thought, this is it. He would become
(19:52):
a backer of Fulton. So you had the boat, you
had the money, but the third thing that you needed
was political protection. This is something that Livingstone could also
arrange because he knew everybody in the state of New York.
So in eighteen oh eight, New York granted him and
Fulton a monopoly on steamboats in New York waters for
(20:16):
thirty years. In eighteen eleven, they added that if the
monopolists were sued, the steamboats of those who were suing
them would be impounded while litigation proceeded. So that's a
nice extra guarantee. And the competition sprung up. Immediately people
saw how this worked, they built their own boats. They
(20:37):
took the monopoly to court. The New York's Supreme Court
upheld the monopoly. Another thing the monopoly did was it
bought off the competition. There were some businessmen in Albany
who had two boats, and so the monopoly said, all right,
we'll give you Lake Champlain, but we're going to keep
the Hudson River in New York Harbor and Long Island Sound.
(20:58):
Another competitor they bought off was a New Jersey man,
Aaron Ogden, who was running a boat from Elizabeth, New
Jersey into Staten Island. Now. Ogden himself took on a partner,
Thomas Gibbons, and for a couple of years their partnership
worked very well. Then there was a crisis in Gibbons's family.
(21:20):
A rumor went abroad that Gibbons's daughter had slept with
her fiance. Gibbons's solution to this rumor was that he
and his wife and his daughter should all sign an
advertisement in the newspaper saying that the rumor was false.
Apparently the rumor was true, but mister Gibbons wanted to
(21:41):
take out this family ad. Aaron Ogden thought this was
a bad idea, but his opinion so enraged Gibbons that
Gibbons came to Ogden's house with a bullwhip. Ogden fled
out the back door and sued Gibbons for trespass. This
end their partnership. So when Gibbons v Ogden comes to
(22:04):
the Supreme Court in eighteen twenty four, Daniel Webster makes
an eloquent argument on behalf of Gibbons. The issue was
there's a commerce clause in the Constitution which says that
Congress has power over the commerce of the United States.
But Congress had passed no laws having to do with
(22:26):
steamboats or steamboat traffic in New York State. And the
lawyers for the monopoly said, oh, of course, if Congress
passes a law, we have to obey it. But Congress
has passed no law. New York State has a right
to form a monopoly for steamboats within its waters. Webster's
argument denied that. He said, even in the absence of
(22:49):
action by Congress, commerce is of such importance and of
such unity that it has to be left in Congress's hands.
Commerce of the United States is a unit e pluribus unum.
And after Marshall gave his decision, he said, the Chief
Justice took my argument as a baby takes its mother's milk.
(23:11):
That wasn't quite right. He essentially repeats Webster's argument, But
then he hangs his decision on a smaller point, which
was that Gibbons Boats had a federal coasting license, a
piece of id for revenue purposes. It proved that you
had an American boat, so you would not be subject
(23:33):
to penalties that we put on foreign boats. But Marshall said,
a license is a license to do a thing. So
if you have a coasting license, even if it was
intended as a revenue measure, you have a license to coast,
and therefore you can take your boat from Elizabeth into
(23:53):
Staten Island. So this was a victory for Gibbons, a
defeat for the monopoly. A week after the decision came down,
the first competitor's boat sailed into New York Harbor, firing cannon.
People waved at it from the shore, and the number
of steamboats in New York waters quadrupled almost immediately. Marshall
(24:15):
himself took a lot of criticism in his career and after.
His most industrious enemy was Jefferson. Jefferson spent his presidency
and his retirement years fretting about martial decisions, and he
tried at the end of his life to suggest an alternative.
He said, these questions should not rest with the Supreme Court.
(24:36):
If it's a constitutional question, it should be resolved in
a constitutional convention. He ran this idea past his protege
in his right hand, James Madison, and then Madison did
what he so often did with his beloved elder. He
was like the man holding the guy rope to the dirigible,
and he he just gave it a little earthly tug,
(24:59):
and he said a series of constitutional conventions would be tardy, troublesome,
and expensive. Jefferson never made the site proposal publicly. Another
Jeffersonian who did make public proposals was Senator Richard Johnson.
He's most famous for having killed to Cumpsea. He's probably
(25:19):
second most famous for his campaign jingle Ripsey Rampsey Rumpsey dumpsy,
I did Johnson killed to Cumpsey, but he deserves to
be more famous than that. He was a serious man,
a serious populist, and he thought it was wrong that
the ultimate judge of these questions should be the unelected
(25:41):
Supreme Court. He proposed to restrict the jurisdiction of the Court,
proposed that the Senate could have a veto on court decisions.
None of these amendments went anywhere. So this is an
ongoing question about John Marshall's legacy. I mean, whenever some
party or large group of people unhappy with the Supreme Court,
(26:02):
we hear of plans to restrict it, to pack it.
Marshall himself dies in eighteen thirty five, a disappointed man.
I think he feared that he had failed, he was
losing his control of the court. He was also very
disappointed with the election and re election of Andrew Jackson.
(26:25):
Jackson's statement on Marshall's death was surprisingly gracious. But the
most gracious tribute to Marshall came from Richmond, and it
came from the Quoits Club, and they ruled that because
he was irreplaceable, the club should have one fewer member forever.
Speaker 1 (26:43):
A special thanks to Richard Burkeeiser, author of John Marshall,
the man who made the Supreme Court, and a special
thanks to the US National Archives for allowing us access
to this remarkable story about John Marshall and Alexander Hamilton.
Is largely responsible for the formation of our economic system,
(27:05):
but as Berkheiser notes, it was Marshall who gave that
economic system a legal framework. The story of John Marshall
his major contributions to American life Here on our American
Stories
This is Lee Hibib and this is our American Stories,
the show where America is the star and the American
people up next to the story of an often overlooked
founding father. Well, you may have heard of John Marshall
in history class. It was probably but for a brief
moment concerning the landmark decision is Supreme Court handed down
(00:31):
in eighteen oh three Marbury versus Madison. But his life
is much more than just his cases. Here to tell
the story of the man is Richard Burkheiser, author of
John Marshall, The Man who made the Supreme Court.
Speaker 2 (00:47):
So I think the first thing say about who John
Marshall was, and this is even though he spent most
of his adult life in Richmond, spent a couple of
years in Philadelphia, six months in Paris. Despite all that
experience of city living, he was a country boy all
his life. The house he was born in was a
(01:10):
log cabin. The second house he grew up in was
a frame house. The third had glass in the windows.
It wasn't Daniel Boone going through the Cumberland Gap, but
it was out in the country. And it seems to
me that Marshall so enjoyed that manner of life that
he never entirely forsook it. The word that comes up
(01:32):
over and over again and descriptions of him is simple.
This word is used by people who are meeting him
for the first time. It's used by people who've known
him for years. They describe him as simple. He didn't
care how he dressed. He didn't care how his hair
was cut. His wife cut it for him. He had
(01:54):
simple attitudes toward drinking. He liked it. He liked it
a lot. When he was Chief Justice. The wine merchants
of Washington call their best stuff the Supreme Court because
he was one of their best customers. The Court had
a custom in those days that after the justices heard
(02:14):
the cases and they would go back to their boarding
house and discuss them over dinner, and afterwards they could
only have wine if it was raining. So Marsha would
always ask one of his colleagues, usually Associate Justice, story,
brother's story, look out the window and tell us what
the weather is. And Story might say, the sky is
(02:34):
perfectly clear, and Marshall would always answer, our jurisdiction is
so vast that, by the law of chances, it must
be raining somewhere. So wine was always served at the
Marshall Court. Marshall liked simple games all his life. He
regularly walked several miles before breakfast just to get himself going.
(02:57):
He did it as long as he was mobile. His
nickname in the army was silver Heels, partly because his
mother sewed socks that had whitened the heels, but also
because Marshall could jump over a bar that rested on
the heads of two men. He loved the game called quoits,
which is horseshoes played with metal rings, not horseshoes. And
(03:19):
there was a club in Richmond called the Quoits Club,
and the Governor of the state was ex officio a member,
but the membership was limited. The members sang, they gave
humorous speeches. If you mentioned politics or religion, you were
find a case of champagne for the next meeting. And
they also played this game of quoits. And people said
(03:40):
that Marshall seemed to pay as much attention to judging
who's quoite got closest to the meg as he gave
to his judicial decisions. So this was, in many respects
a simple man, the man he most admired, apart from
his father, Thomas Marshall was the father of his country.
(04:03):
Marshall volunteered to serve in the militia in seventeen seventy five,
and he was nineteen years old. He was in the
army almost until the end of the Revolution. He was
in three battles that Washington commanded, Brandywine, Germantown, and then Monmouth.
And between Germantown and Monmouth he was at Valley Forge.
(04:25):
So Marshall saw Washington in defeats, he saw him in victory.
He saw him when the army had nothing to do
but suffer from lack of clothing, lack of food, lack
of pay. And Marshall's conclusion from these experiences was that
George Washington was the rock on which the revolution rested.
(04:47):
When Washington returned his commission as Commander in Chief to Congress,
Marshall wrote a letter to his old friend James Monroe,
and he said at length, the military career of the
the greatest man on earth is closed. May happiness attend
him wherever he goes. When I think of that superior man,
(05:09):
my full heart overflows with gratitude. Marshall didn't just admire
him as a military leader. He agreed with Washington's diagnosis
of the political problems that had made the war so
difficult for the army. The form of government that the
Independent America first had, the Articles of Confederation, was inadequate
(05:31):
to its task. It didn't give the government the power
or the energy to do the things that it had
to do, so when reform was necessary. When the Constitutional
Convention met in seventeen eighty seven, presided over by Washington,
signed by Washington, Marshall follows him once again, ratifying the Constitution.
(05:53):
Marshall follows Washington again in joining the Federalist Party. Marshall
follows Washington a third time. He is summoned to Mount
Vernon along with Washington's nephew, Bushrod Washington, and George. Washington
tells these two young men, you have to run for
Congress in Virginia. The Federalist Party is in trouble in
(06:14):
this state. We need new blood. You have to run.
Marshall doesn't want to do it. He's a lawyer in
private practice. He's a very good one. He's making good money.
He started a family, and he's buying land and buying farms,
and he needs the income. But Washington keeps insisting he's
after him and after him. And the anecdote about this
(06:38):
visit is that Marshall decided he couldn't keep saying no
to his former commander in chief, so he decided to
get up at the crack at dawn and just leave.
But Washington had gotten up earlier and put on his uniform.
Whether that's literally true or not, what Marshall said later
(06:58):
was that I yielded to Washingtonington's representations. He was elected
to the House and this puts him on the escalator
to be John Adams's Secretary of State and finally Chief Justice.
Speaker 1 (07:11):
When we come back more of the story of John
Marshall here on our American Stories Lehabib Here as we
approach our nation's two hundred and fiftieth anniversary, I'd like
(07:34):
to remind you that all the history stories you hear
on this show are brought to you by the great
folks at Hillsdale College. And Hillsdale isn't just a great
school for your kids or grandkids to attend, but for
you as well. Go to Hillsdale dot edu to find
out about their terrific free online courses. Their series on
Communism is one of the finest I've ever seen again.
Go to Hillsdale dot edu and sign up for their
(07:56):
free and terrific online courses. Can we continue with our
American stories and with the story of John Marshall When
we last left off, At the prodding of George Washington,
(08:17):
Marshall been elected to Congress, But bigger things we're about
to come. Here again is Richard Berkeeiser, author of John Marshall,
the Man who made the Supreme Court.
Speaker 2 (08:28):
So Marshall serves in Congress. Adams makes him Secretary of
State after he cleans the Hamilton loyalists out of his cabinet,
and then at the end of his administration, the lame
duck end of it. Because Adams has lost the election
of eighteen hundred. This is his rematch with Thomas Jefferson.
A very important vacancy opens up because Adams gets a
(08:51):
letter from the then Chief Justice, Oliver Ellsworth, and Allsworth
has gout his health is bad, so he tells Adams
he quitting. Adams offers the post to the first man
who'd held it, the great revolutionary patriot, spymaster diplomat John Jay.
(09:13):
Then Adams gets a letter from Jay saying that he
won't take the appointment He says that the federal judiciary
lacks energy, weight, and dignity, so he's going to stay home.
In New York, Adams has a meeting with his Secretary
of State in the still unfinished White House. The shell
(09:33):
has been completed, but the inside is almost like a
construction site. And as Marshall recalled it, Adams asked him,
who shall I nominate now? And Marshall said, I don't know,
I don't know, Sir. Adams paused a minute and said,
I believe I'll nominate you. He was shortly confirmed sworn in,
(09:55):
and then after a few weeks he swore in the
new president, Thomas Jeffrey person. He didn't hate hardly anybody,
but he did hate his second cousin. Once removed, Thomas
Jefferson returned that hatred. Jefferson hated a lot of people,
but Marshall was always high on his list. Jefferson's opinion
(10:18):
was that Marshall was a sophist, that he would take
any statement and twist it into some predetermined judicial conclusion.
Marshall warned Joseph's story before he got on the Supreme Court.
He said, you must never give a direct answer to
any question that Marshall asks you, if he asked me
(10:40):
if the sun were shining, I would say, I don't know, sir,
I cannot tell. Marshall's opinion of Jefferson was that he
was a demagogue, that he pretended to be a hands
off president, taking his lead from Congress, but that he
secretly manipulated it through the House and did so to
(11:01):
ride storms of popular passion for his own benefit. The
sundering episode in the relationship happened when a letter that
Jefferson had written to an Italian friend was published, first
in Europe, then in England, and finally in America. And
in this letter Jefferson said, I would put you in
(11:22):
a fever if I named men here who have been
Solomon's in council and Sampson's in the field, whose heads
have been shorn by the Harlot England. Now Solomon, of
course was a king of Israel. Sampson was a judge
of Israel. So this letter was interpreted in America, and
certainly by John Marshall, as a direct attack on George Washington.
(11:45):
For years, Jefferson had taken the position that Washington was
still a good man. He was being manipulated by Hamilton,
but here in the Messiah Letter he seems to be
pointing his finger directly at Washington. Four years later, when
Alexander Hamilton is trying to get Federalists to prefer Thomas
Jefferson to Aaron Burr after the deadlocked election of eighteen hundred,
(12:10):
one of the federalists he writes as John Marshall, and
Marshall wrote him back and said, I don't know Burr.
Speaker 1 (12:16):
You do.
Speaker 2 (12:16):
I have to accept your opinion of him, But the
morals of the author of the letter to Mazzi cannot
be pure. This is how Virginia gentlemen said he is
dead to me. So how did he take this job
which John Jay had refused to hold again because he
(12:37):
said it lacked energy, weight, and dignity. How did Marshall
supply those qualities to it? I think the first trait
he used was geniality, and this helped him work with
his fellow justices. When he comes in as Chief Justice.
The court has only six members, so all six of
(12:59):
them are Federalists. They've all been appointed by Washington or Adams.
But in only eleven years, one man retired, a couple
more died, the Congress increased the size of the court
to seven justices, and by then the partisan balance as
two Federalists and five Republicans. That's a significant shift. Yet
(13:22):
all these new Republicans voted along with John Marshall. So
how did this happen? I think the geniality is the
first quality. Marshall was not only simple, he was likable
and he liked people. When Joseph's story first encountered him
as an advocate before the Supreme Court, he wrote home,
(13:45):
and he said, I love his laugh. I love his laugh.
Another technique Marshall used was deference. He would defer to
justices who were more expert in particular airs areas of
the law than he was. But when he deferred, he
got deference in return. So deference is not only polite
(14:09):
or virtuous. It's also smart. You give something and you
get something back. The third quality Marshall had is that
he's always the smartest man in the room. And his
intelligence was not quick. It took a while for him
to get going, but when he did, his reasoning could
(14:30):
seem almost implacable. His major decisions are eight nine, ten
thousand words long, and they're built like granite. They're supposed
to have that solidity in that weight. One advocate before
the Supreme Court, William Wirt, who would later become Attorney General.
(14:51):
He said that Marshall's mind was like the Atlantic Ocean.
Everybody else's minds were ponds. This is how Marshall struck
someone who knew what he was talking about. Marshall used
all these qualities over an enormous length of time. His idol,
George Washington, was Commander in Chief for eight and a
(15:11):
half years and then President for eight so he's in
effect he's the chief executive of the country for sixteen
and a half years. Marshall is Chief Justice for thirty
four years, twice as long. He's appointed by John Adams.
He serves into the second term of Andrew Jackson. He
inaugurates five presidents in nine inaugurals, and he still holds
(15:36):
the record for length of tenure of a Chief Justice.
And in the middle of that period, the Court had
a remarkable twelve year stretch where there were no personnel changes.
So he has thirty four years to work his magic
on his fellow justices, and he puts them to good use.
(15:57):
His most famous case is probably Marbory versus Madison and
We're all taught that in school because it establishes that
the Court can rule a law passed by Congress or
a portion of it unconstitutional. Well, it's true that that's
what Marbury did. I don't think that was news when
it happened. The concept of judicial review was already out there.
(16:19):
What was most striking at the time about Marbury. It's
a nine thousand word decision, and about eighty five hundred
words of it is a lecture to the Jefferson administration.
It's telling them, you thought we were the bad guys,
and you said you would be the good guys who
do everything right. But you have done wrong by William Marbury.
(16:39):
He deserved his commission and you didn't give it to him.
Now he's not going to get it because the form
of redress he's seeking is a portion of the Judiciary
Act of seventeen eighty nine, which is in fact unconstitutional.
But still shame on you.
Speaker 1 (16:57):
And you've been listening to Richard Brookhiser, author of John Marshall,
The Man who Made the Supreme Court, tell the story
of John Marshall served a brief time in Congress. He
was the Secretary of State under John Adams. We learned
and then came that nomination to the Court, to the
Supreme Court, just to well get under the skin of
incoming President Thomas Jefferson. He would serve as the chief
(17:21):
Justice for thirty four years, and that is still a record.
And we learned that the same court, the same members
well I had stood together for twelve years, another record.
When we come back how Marshall shaped the Supreme Court
and more here on our American stories. And we continue
(18:09):
with our American stories and the final portion of our
story on John Marshall. The most important Chief Justice of
the US Supreme Court telling the story is Richard Brookheiser.
Let's begin this segment with a look into one of
Marshall's most important decisions.
Speaker 2 (18:25):
Now, when we think of founding fathers who are responsible
for our economic system, we mostly think of Alexander Hamilton,
and he certainly deserves all that credit. But his plans
and his achievements had to have legal support as well.
And in Marshall's contract law decisions and in his commerce decision,
(18:48):
he lays the legal support for a national market in
which people are free to contract with each other Gibbons
versus ogden I. Like the story known as the steamboat case.
Steamboats were invented several different times. At the end of
(19:08):
the eighteenth and early nineteenth century, several people figured out
how to take a watt steam engine, which was a
new innovation, and put it on a boat and convert
its power into a mechanism that would turn a paddle wheel.
One of these inventors was Robert Fulton, and he demonstrated
(19:30):
his first boat on the Seenne in France, and one
of the spectators was the American Minister to France, Robert Livingstone.
Several earlier steamboat inventors had failed because they'd lacked the money.
Livingston was a wealthy New York grandees. When he saw
Fulton's steamboat, he thought, this is it. He would become
(19:52):
a backer of Fulton. So you had the boat, you
had the money, but the third thing that you needed
was political protection. This is something that Livingstone could also
arrange because he knew everybody in the state of New York.
So in eighteen oh eight, New York granted him and
Fulton a monopoly on steamboats in New York waters for
(20:16):
thirty years. In eighteen eleven, they added that if the
monopolists were sued, the steamboats of those who were suing
them would be impounded while litigation proceeded. So that's a
nice extra guarantee. And the competition sprung up. Immediately people
saw how this worked, they built their own boats. They
(20:37):
took the monopoly to court. The New York's Supreme Court
upheld the monopoly. Another thing the monopoly did was it
bought off the competition. There were some businessmen in Albany
who had two boats, and so the monopoly said, all right,
we'll give you Lake Champlain, but we're going to keep
the Hudson River in New York Harbor and Long Island Sound.
(20:58):
Another competitor they bought off was a New Jersey man,
Aaron Ogden, who was running a boat from Elizabeth, New
Jersey into Staten Island. Now. Ogden himself took on a partner,
Thomas Gibbons, and for a couple of years their partnership
worked very well. Then there was a crisis in Gibbons's family.
(21:20):
A rumor went abroad that Gibbons's daughter had slept with
her fiance. Gibbons's solution to this rumor was that he
and his wife and his daughter should all sign an
advertisement in the newspaper saying that the rumor was false.
Apparently the rumor was true, but mister Gibbons wanted to
(21:41):
take out this family ad. Aaron Ogden thought this was
a bad idea, but his opinion so enraged Gibbons that
Gibbons came to Ogden's house with a bullwhip. Ogden fled
out the back door and sued Gibbons for trespass. This
end their partnership. So when Gibbons v Ogden comes to
(22:04):
the Supreme Court in eighteen twenty four, Daniel Webster makes
an eloquent argument on behalf of Gibbons. The issue was
there's a commerce clause in the Constitution which says that
Congress has power over the commerce of the United States.
But Congress had passed no laws having to do with
(22:26):
steamboats or steamboat traffic in New York State. And the
lawyers for the monopoly said, oh, of course, if Congress
passes a law, we have to obey it. But Congress
has passed no law. New York State has a right
to form a monopoly for steamboats within its waters. Webster's
argument denied that. He said, even in the absence of
(22:49):
action by Congress, commerce is of such importance and of
such unity that it has to be left in Congress's hands.
Commerce of the United States is a unit e pluribus unum.
And after Marshall gave his decision, he said, the Chief
Justice took my argument as a baby takes its mother's milk.
(23:11):
That wasn't quite right. He essentially repeats Webster's argument, But
then he hangs his decision on a smaller point, which
was that Gibbons Boats had a federal coasting license, a
piece of id for revenue purposes. It proved that you
had an American boat, so you would not be subject
(23:33):
to penalties that we put on foreign boats. But Marshall said,
a license is a license to do a thing. So
if you have a coasting license, even if it was
intended as a revenue measure, you have a license to coast,
and therefore you can take your boat from Elizabeth into
(23:53):
Staten Island. So this was a victory for Gibbons, a
defeat for the monopoly. A week after the decision came down,
the first competitor's boat sailed into New York Harbor, firing cannon.
People waved at it from the shore, and the number
of steamboats in New York waters quadrupled almost immediately. Marshall
(24:15):
himself took a lot of criticism in his career and after.
His most industrious enemy was Jefferson. Jefferson spent his presidency
and his retirement years fretting about martial decisions, and he
tried at the end of his life to suggest an alternative.
He said, these questions should not rest with the Supreme Court.
(24:36):
If it's a constitutional question, it should be resolved in
a constitutional convention. He ran this idea past his protege
in his right hand, James Madison, and then Madison did
what he so often did with his beloved elder. He
was like the man holding the guy rope to the dirigible,
and he he just gave it a little earthly tug,
(24:59):
and he said a series of constitutional conventions would be tardy, troublesome,
and expensive. Jefferson never made the site proposal publicly. Another
Jeffersonian who did make public proposals was Senator Richard Johnson.
He's most famous for having killed to Cumpsea. He's probably
(25:19):
second most famous for his campaign jingle Ripsey Rampsey Rumpsey dumpsy,
I did Johnson killed to Cumpsey, but he deserves to
be more famous than that. He was a serious man,
a serious populist, and he thought it was wrong that
the ultimate judge of these questions should be the unelected
(25:41):
Supreme Court. He proposed to restrict the jurisdiction of the Court,
proposed that the Senate could have a veto on court decisions.
None of these amendments went anywhere. So this is an
ongoing question about John Marshall's legacy. I mean, whenever some
party or large group of people unhappy with the Supreme Court,
(26:02):
we hear of plans to restrict it, to pack it.
Marshall himself dies in eighteen thirty five, a disappointed man.
I think he feared that he had failed, he was
losing his control of the court. He was also very
disappointed with the election and re election of Andrew Jackson.
(26:25):
Jackson's statement on Marshall's death was surprisingly gracious. But the
most gracious tribute to Marshall came from Richmond, and it
came from the Quoits Club, and they ruled that because
he was irreplaceable, the club should have one fewer member forever.
Speaker 1 (26:43):
A special thanks to Richard Burkeeiser, author of John Marshall,
the man who made the Supreme Court, and a special
thanks to the US National Archives for allowing us access
to this remarkable story about John Marshall and Alexander Hamilton.
Is largely responsible for the formation of our economic system,
(27:05):
but as Berkheiser notes, it was Marshall who gave that
economic system a legal framework. The story of John Marshall
his major contributions to American life Here on our American
Stories
Host
Lee Habeeb
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