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tv   Supreme Court Landmark Case Marbury v. Madison  CSPAN  August 1, 2017 11:36pm-1:11am EDT

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[ applause ] from all of us, president sexton, thank you for that enlightening, educational and entertaining lecture. we are looking forward to publishing a version of that in the "journal of supreme court history" but those of us who have heard it will enjoy it all the more for the presentation we heard today. thank you very much for that. [ applause ] coming up on c-span3 on american history tv land mark
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cases we'll look at marbury versus madison, the case from 1803 established the constitution as the supreme law of the united states. all persons having business before the honorable, the supreme court of the united states are admonished to draw near and give their attention. >> landmark cases produced in cooperation with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> number 759 -- >> we'll hear arguments number 18 roe against wade. >> quite often many of the decisions are where the court took the unpopular. >> these decisions change our
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lives. >> let's go through a few cases that illustrate dramatically and visually what it means to live in a society of 310 million different people who help stick together because they believe in a rule of law. good evening and welcome to c-span's new series, "landmark cases." tonight and for 11 weeks we're going to be looking at 12 cases that affect the country and affected the development of the court and society. tonight or case is marbury versus madison. one of the court's earliest cases. it came about between two founding fathers who developed an emnity. after the election of 1800 and differing views of how the country should be governed. we have two guests a it the table to help us understand the story and importance of this case in our country's history.
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akhil reed amar is a yale law school professor. he is the author of several books. and also at the table, federal litigator, former supreme court clerk and court observer, cliff sloan. gentlemen, to start we're going to listen to current chief justice talking about the importance of this case and after we hear his point of view we want to hear from you on why this case is significant. let's watch. john marshall established the court as the interpreter of the constitution. in his famous decision he wrote, basically look, we're a court. we have to decide a case. if in deciding the case we have to determine what the constitution means that's our job under the constitution. he regarded the constitution as law. that's one way that our constitution is different from a lot of others. many countries that have
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constitutions they're really just political documents. if you have a dispute under the constitution it's going to be resolved however a dispute is going to be resolved. maybe in an election if you're lucky, maybe by a force of arms if you're not, maybe by a mob. how ever a political dispute is resolved that's how they would resolve cases. john marshall in marbury versus madison said this is different. the constitution, it's a law. if it's a law we have the courts to tell what it means. and that's binding on the other branches. and that important insight into how the constitution works has been, i think, the secret to its success. >> that's the current chief justice on the meaning of marbury versus madison. cliff sloan, you wrote the book on it. what impact does it have? >> well, as the chief said, the
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supreme court is the ultimate authority on questions of constitutional interpretation. that's a very important cornerstone of our constitutional system. and i think sandra day o'connor put it very well. she said because of marbury versus madison each of us have constitutional rights that no president and no congress can ever take away and that's really what marbury stands for. >> well, you amar why does this matters? >> many of you have heard of this concept of judicial review. in a nutshell it means the court, not just the u.s. supreme court but all courts in our system, state court lower and federal court has the ability to disregard even an act of congress or a state law if in the judge's view that act of congress or a state law is inconsistent with the judge's
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understand of the constitution itself. now, the interesting thing about judicial review is although marbury is the first case about judicial review, it actually -- judicial review wasn't that vigorous before the civil war. so marbury becomes in some ways more important because of stuff that happens later in our story. and we look back and read some things into marbury. at the time, perhaps it was a more narrow decision than you remember it being. >> well, you call it a story and it is a story to tell. as we begin tonight we want to introduce you to several names you'll be hearing throughout the 90 minutes and understand the role they played in the marbury versus madison case coming to the supreme court. let's start with the principals, john adams 1800 where was he in his political career? >> he was the incumbent president. he was elected in 1796 after serving two terms as vice president under george washington. in 1796 it was the first
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contested presidential election between him and thomas jefferson. adams narrowly won and under the system that we had at the time, the person who got the second most electoral college votes served as vice president. so thomas jefferson was his vice president. and in the course of adams' presidency, he and jefferson had a very severe rivalry develop between them personally and also between political parties that they were heading and it was really the first time we see the emergence of political parties in our country. in 1800, john adams was an embattled incumbent president running for re-election. >> so thomas jefferson in 1800 decide he want the top spot. >> you have the sitting president running against the sitting vice president. just think about the instability of that. you know, in some ways it did happen but it's an assassination incentive.
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you know, a person who is a heartbeat away is vigorously opposed to the policies of the number one person. these are people who worked together, adams and jefferson back in 1776. they're on the committee that drafts the declaration of independence. as cliff says in 1796 they run against each other, the first contested election but it's a relatively tame affair. jefferson tell the supporters, my term will come lets not bad mouth adams too much. but now politics have become much more intense. much more polarized. this would never happen again in america, polarized politics, of course. but with its political polarization you got the sitting president against the sitting vice president, both leading large camps, big political parties, as cliff said that really don't respect each other. and each one, at its most
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extreme, each one of these parties thinks that the other one is borderline treasonous. that's the rematch, 1796, 1800, sitting president against sitting vice president. >> what happened in the election? >> therein also lies the tales it's somewhat convoluted. some of your audience may remember back in 2000 -- in a roller coaster ride complication. nutshell, jefferson wins the south, he's the southerner. adams win the north, he's the northerner. that happened 1796. the swing state where north meets south, today it's ohio. back then it's new york which was a slave state and the second time around, jefferson partners up with a man named aaron burr from new york and new york swings from the northern camp, the adams camp to jefferson, the southern camp. it seems as if jefferson and his
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running mate, burr have prevailed but there's a wrinkle. i'll let cliff tell you the wrinkle. >> the wrinkle was at the time it wasn't clear if someone was voting for president or vice president. and as we said the person who got the second most became the vice president. and so what happened was that jefferson and burr got the same number of votes. >> a tie. >> it was a tie. and everybody sort of knew at the time of the election that jefferson was the main candidate. but then after it becomes clear that they're a tie, well, aaron burr isn't so eager just to defer to jefferson, because there's not a majority in the electoral college it gets decided by the house of representatives with each state having one vote. and what you had to happen in that election is that first of
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all, jefferson and burr had prevailed against an incumbent, adams. it was the first time in history that's happened. nobody knew at this point who the successor was going to be. but the congress also had been swept by jefferson's party. and the house of representatives that was going to decide who was going to be the president between jefferson and burr was the outgoing federalist congress, adam's party. >> the lame ducks. >> the lame ducks. >> who had just been repudiated but it's the lame duck adams allies who is going to be deciding who gets the top slot. >> absolutely. and they are very bitter against jefferson. it has been a fierce campaign. i mean, we think politics is harsh and negative now. it has nothing on the election in 1800. so you have these very angry federalists who think jefferson's going to take the country in a terrible direction
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and they're the ones who are tasked with deciding whether it's going to be jefferson and burr and it leads to great chaos. the house of representatives cannot decide because of the composition of those delegations and it finally goes 37 ballots and in just a couple weeks before the new president is supposed to be inaugurated before jefferson finally prevails. up until that point there is great uncertainty and chaos throughout the country and there are all kinds of rumors of what might happen and federalist plots they will try to put a federalist in office. so it's a great -- it was a time of great uncertainty. again, this is all in the context where there had never been an incumbent president ousted in an election before. >> trying the constitution system that had been in place for just a short time. now, our next important principal in this is john marshall. he held two roles, secretary of state and appointed chief justice and held both positions at the same time.
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>> so he's adam's right hand as secretary of state. and with the benefit of hind sight when we look back we can see basically that secretaries of states often become presidents. so, thomas jefferson was a secretary of state, he's going to eventually hand over the presidency to james madison who was secretary of state and james monroe, the next guy who was the secretary of state. and john quincy adams, john adams' son. we're not done yet, this might be good news more hillary clinton today. remember john kerry didn't quite prevail. but john adams is -- john marshall, excuse me, is john adams' ally. he's his right hand, his secretary of state but he's also the new incoming chief justice. for a month he basically holds both positions. there's one other wrinkle, since cliff mentioned, they're all these conspiracy theory.
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what happens if the deadline goes on and on and own and they're still deadlocked. maybe, maybe, maybe, maybe the person who should occupy the white house in that circumstance is none other than the secretary of state, john marshall. john marshall's mentioned as one of the possible people trying to nose himself into this really complicated situation. but right as adams' administration is ending, yes, john marshall is both the secretary of state and the new incoming chief justice. >> and the fact -- >> one point that's important to emphasize on that is that adams nominates marshall and he gets confirmed by the senate in late january 1801, becomes chief
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justice in february 1801. that is in the midst of this presidential chaos. and john marshall himself is a lame duck appointment by the outgoing president john adams, confirmed by the outgoing federalist senate. >> so the new president coming in. he has the majority of congress but he learns that john adams finds a way to continue his point of view within the federal structure by the judiciary. so that gives rise for a whole case. tell us what happened. what did john adams do? >> well these are the midnight appointments and john adams who was somewhat bitter and nursing grievouses about his defeat in the election is determined to make as many appointments as he possibly can before he leaves office. this is -- whether you're talking about united states attorneys, postmasters. but with the judiciary in
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particular, this outgoing lame duck congress passes a new judiciary acts that creates a new level in the federal courts in 16 new judgeships. they do this very late in their time as the outgoing congress. and so john adams is feverishly filling the posts, nominating people to them, sending it up to the hill. and at the same time, that congress creates lots of new posts in the district of colombia which had just become the capital in june of 1800. he is literally staying up late until his last day in office, getting those appointments up to the senate, getting them confirmed. and his right hand man like akhil was saying, these appointments is john marshall. now chief justice, secretary of state, he is the person who is advising adams on the appointments and he is the one controlling the paper flow for them.
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>> and then as the midnight oil burned the main thing that happened is not all these commissions got delivered and that's the crux of the story. what happened? >> one wrinkle. we can talk about it two ways. in partisan terms, the federalists, the adams folks, they lost the presidency. they lost the house. they basically lost the senate although it's a bit more complicated. so what do they try to the? -- do? they tried to retreat to the judiciary, that's going to be their stronghold to resist the incursions that they expect t t the jeffersonians will launch. so that's the partisan line up. the other way of thinking about it is the three branchs of government. you got jefferson basically coming in, no control. the presidency and pretty much the house and actually also the senate, but now the judiciary's going to be all these ghosts of enemies' past who have now retreated into the judiciary.
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john marshall is responsible for getting all these new commissions out to their recipients. and it turns out that not all of them get properly delivered. they are signed by the almost midnight oil as adams is about to become cinderella, the coach is about to become the pumpkins and the horse is about to become mice. so right at the stroke of midnight he signs them all, his secretary of state and acting supreme court justice also, john marshall seals them. so, they've been sign, sealed, remember the proverb, signed, sealed, delivered but not all of them are delivered. and it gets even better. the person who failed to deliver all these commissions was none other the john marshall's brother, james marshall who himself had been one of the new appointees under this new
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midnight judge's regime. >> well, needless to say thomas jefferson was not excited about this flooding of the judiciary by his political opponent. what we're going to show you next is a letter he wrote to abigail adams discussing his deep disappointment about the midnight appointments. welcome to the massachusetts historical society. america's oldest society. and home to a remarkable collection about a quarter of a million manuscript pages. 300 years of one american family's experience. john and abigail adams and their descendants have their papers here in a series of boxes containing their correspondents, their diaries, memoirs, citizens concerned about the future of the american government and its
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justice system. inside these boxes you can read nearly 1200 letters exchanged between john and abigail adams alone telling us the story of how it transformed from revolution to republic. today we're going to take a look at one of my favor letters written from thomas jefferson to abigail adams in 1804 as the two tried to patch things up in the wake of the midnight appointments. a family tragedy brought together thomas jefferson and abigail adams in june 1804. the death of jefferson's daughter poly-. jefferson took the opportunity when he replied to remind abigail that he and john adams had a long friendship, in fact he wrote, we have never stood in one another's way. he also for the first time spoke explicitly about the midnight
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appointments that had divided the pair. i can say with truth that one act of mr. adams' life and one only gave me a moment of displeasure. i did consider his last appointments to office as personally unkind. they were from among my most political enemies from whom no faithful cooperation could ever be expected and laid me under the embarrassment of men whose views were to defeat mine. of the many of the thomas jefferson letters we hold this one reads definitely. often thomas jefferson comes across as a cool, reserved level-headed virginiian. here he's somewhat different, he's speaking to abigail as an intellectual equal and he's concerned about how politics may have ruptured his friendships. >> and cliff on this emnity or this frustration, i should call
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it that, seethed in jefferson as you tell it in the book for years about the appointments and this case. >> both the appointments and the case for different reasons. they came together, but first of all, in terms with adams as was indicated in that letter, jefferson took it very personally. i mean, he had won the election, he was taking over the government. and the judges -- even in the executive branch, adams had done everything he could to pack it with his federalist allies. jefferson in the whole series of letters to his political allies, i mean, this is what he's saying to abigail adams, you can imagine what he's saying to his political allies to madison and monroe and others. he is very, very bitter that he's inheriting a government that is packed with these people that adams has put there. actual, throughout his several months in office, 1801, he's really trying to figure out what
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to do and he's sort of selectively, if he can figure out a way to block somebody or to retract their appointment he does it. but he doesn't want to launch full-scale assault. one thing is an example of how personally he took this, but he always mentioning that james marshall couldn't deliver all of the -- >> john's brother. >> john's brother, james marshall could not deliver all of the conditions, the pile was too big. he left some on the table in the state department. and the ones he left on the table included those of william marbury and some others who were supposed to be justice of the peace in the district of colombia. in a day or two after his inauguration, thomas jefferson himself, goes over to the state department and sees the stack of papers on a table and starts looking at it -- >> and remember he's been secretary of state earlier under george washington. so he knows how the office works. >> absolutely.
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and he sees this stack of papers, realizes what they are, commissions that have not been delivered. and he said, do not deliver these, because he is determined if there's any way that he can stop some of these midnight appointments and packing of the appointments and packing of the government he's going to do so. captions copyright national cable satellite corp. 2008 captioning performed by vitac saying although the case, which we haven't quite get got to is marbury versus madison, in effect is marbury versus jefferson. madison is just a place holder, madison is just a new circumstance of state, jefferson's secretary of state. but madison is just doing what jefferson is telling him. this is really a lawsuit in effect against the sitting president of the united states, like later on the nixon case tape in your series. >> so itand marbury is a placem
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for adams so it's really adams versus jefr son. the two men continued to correspond from their parts of the country throughout the rest of their years, and they ended their lives on the same day. this is a wonderful footnote to their stories. they both died on the fourth of july. they both came to a collection at the end. now, you write in your book that despite the fact that thomas jefferson wen over the state department, he never wanted to mire his presidency and conduct in debate about the judiciary. however, that all dhachanged wh william marbury filed suit. why? >> well, in december, 1801, william marbury and three other individuals who sort of drop out
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of case, who were supposed to be justices of the peace and their case was not delivered, they filed suit against madison in his role of secretary of state in december 1801. in december 1801 is a very key period because it's the first time this new congress headed by the democratic republicans as the jefferson party is noted, is sitting. so there's this great anticipation, this is the first time the jefferson administration in its full breath is getting ready for the congress in december 1801. and marbury and three others file suit in the supreme court, and they file suit asking that a mandamus, which is a technical legal term which is basically an order from the court that a mandamus issue from james madison ordering him to deliver the commissions to them and allowing them to take their jobs.
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and it's very clear, all four of them are sort of prominent acting federalist and it's clear there is political task to this. they are taking on the jefferson administration by filing suit. the supreme court, which at that point, was very far from a coequal branch of government. it had no respect, no prestige and the supreme court sits and hearing the arguments. and their lawyer is charles lee, who had been the attorney general in the lee/adams administration. and then the supreme court issues an order to show cause. what that means is that are ordering madison and jefferson to justify their actions. they say that they're going to hear the case when they sit again in june 1802. and this shocks the jefferson administration. because, now the supreme court is really sticking this to them.
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the supreme court is going to make them justify why they didn't deliver the commissions and it's going to hear this lawsuit. and so, jefferson and his allies react with a furry to that order to show cause. >> one of things that will be important about the series is it's interact. you can call us and we'll go to calls in a few minutes from now. the eastern and value time vowers 2-072-8890. and you can tweet us questions. we'll be working those in throughout the program. @c-span #mark cases. and finally our facebook page has people discussing this case and we'll work in the comments as well. so, part of this i should say, the supreme court hear it -- but he and jefferson also have a personal family relationship and
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are political enemies. >> so, they are second cousins and they don't much like each other. john marshall is a nationalist, he was there at valley forge with general washington in the revolutionary war. and that army experience really predeposed him to be very much a believer in the central government. thomas jefferson's more of a stage rights guy. and remember marshall himself, maybe was putting himself forward as a possible presidential alternative if there was a deadlock between jefferson and burr. marshall is the most popular federalist. john adams is no longer popular but john marshall is actual a leader. so there's all that politics. and there's personality there, second cousins from virginia, they're both quicked to the
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randolph clan. marshall's mother-in-law was the farmer fiance. then remember, the one final thing is it's marshall himself who as secretary of state fails to effectuate the delivery of these thing. now he as chief justice hearing about the transactions as he in effect a witness and the supreme court is sitting as a trial court in what's called or not jurisdiction, so there really is a question truthfully at least by standards whether john marshall should be hearing this case or recuse himself. not because he's a federalist, everyone's a federalist or a republican you're going to be on one side or the other. he is a witness to the very
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transaction involved, and yet he has shown no indication whatsoever that he needs to bow out of this. he's threatening, at least in the early stages to issue this order to his successor madison and his rival jefferson. >> john marshall's home was richard, virginia. we traveled there with our cameras and next your going to see a little of his home and how they interpret it for today's visitors. >> this house really gives us an insight into the personality of john marshall. now, if you could imagine this room we call the large dining room it was the fir room that visitors into the house would have entered into. it's part of a grand room, one of which was to house john marshall's early law practice. eventually right outside this window you would have been able to see his two story brick law office. until that time he used this
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room to entertain his clients. the desk that we see right over here is actually john marshall's desk, it would have been in that two-story brick law office. he was very well known for being a very very long winded writer. that would have taken place sitting right here. john marshall would have been in residence during his time as supreme court chief justice for probably about a third of the year. this spot where i'm currently standing would have been basically the location that john marshall would have been at the head of the table in an event that was notoriously known. this event would have been held once a month when john marshall was in his home. if you could imagine a massive
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table that would have stretched all the way across this room. it would have been filled with the most prominent men in richmond tip. it was in this room that patrick haernd son, madison, monroe would have been discussing some of the most relevant, philosophical fulfifill of of call -- philosophical issues and what would have been become laid out. >> and certainly, some of those discussions had to do with the supreme court, its role if society and the parties big split on the direction in the country. we're going to talk about a bill more of supreme court as john marshall found it. one of our viewers on facebook ask, what could we gleam about
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the -- afforded the supreme court? ws well, the federal list papers are a series of newspaper on ads originally accomplished under a pseudo nim. it's three people we know, john jay, hamilton, james madison and they later put all these newspaper up into a pick and these newspaper on tried to persuade americans during year in which the constitution as a proposal pending before the country these people tried to persuade people to vote for constitution. lair on, john marshall among others would say this is a very good statement of what the talking thought it was going b to be all about and it was a good resource. the people had access to it, it was not just some document.
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ordinary people had access to this when they were asked to vote yes or no on the document. the essays were written by alexander hamilton and it's a defense of what we talked about earlier, judicial review. it doesn't try to prove judicial review is in the constitution, lots of people thought it was in it, and judicial review is the ability, not only the supreme court, but state court, lower federal court to disregard a law, state law or even an act of congress, if in the judge's view that law is consistent with the constitution. in '78 hamilton says yes, it's in the constitution and that's a reason to vote for and it's a good thing. critics have said during the process, judicial review is in the constitution is a bad thing because that's going to mean judges are too powerful. hamilton and others have said it's in the constitution, you're right and that's a good thing because it means judges in the
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constitution will put that above everything else. >> in 1800 when john marshall joined the court there were six justices. john marshall, samuel chase, william patterson of new jersey is that correct. >> yes. >> bush washington who was related to george. william curbing and alfredo more. now was number set anywhere at six? >> yes, it was said in the judiciary act of 1789. >> did they not anticipate there they may be tied votes? >> the supreme court early on is not nearly so important as its become, and so just that little number. an even number how odd from our point of view, and that's one of many little signals that although they anticipate a judicial verify, i don't think they thought it would be quite the 800 pound gorilla that it had since become. >> the supreme court had no home
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at that time, where did it meet? >> that's an interesting story which perfectly symbolizes the weak and meager status in the supreme court in our sense of government. in washington at that time as it becomes the capital of 1800. you have the president's house which becomes the white house under construction, nobody thought about where the supreme court was going to meet, it was that insignificant. some of the people planning the city started racing this and they couldn't get the attention of anybody, including the secretary of state john marshall. once he becomes the chief justice he becomes more interested in that country. they end up giving the supreme court this small committee room in the capital which they shared with the local courts. that was the home the supreme court is given very late in the game. they basically borrowing space on the capital. >> almost an afterthought member
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article 3 is third out of three. the constitution first talks about the congress in article one. the presidency if article two. article three, third out of three t shortest article, as cliff said it's actually a mere statute that prescribes the number of justices that's not set out in fact constitution itself. it was originally six, it went down to five and cliff may want to tell us a bit about that. it's over time gone up as much as ten fdr, very famously tried to tinker with the number in order to get a better set of outcomes from the justices. so all of these it seems to me are little signals that in the original constitution vision, constructional vision, dour perhaps -- and the judiciary more generally, not just the supreme court, not quite as powerful as they have since become. >> i want to get one more fact on this on the table before we get call it is and that is
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william marbury filed this case in 1801, it took the court until 1803 to hear the case but that's become congress intervened, what did they do? >> congress basically shut down the supreme court where it talked about the fact there was this reaction but the everysewn yans in order to show cause in 1801 and the court setting it for resolution in june, 1802. the jefr son yans swing into action in congress and they repeal the judiciary act, they get rid of these midnight appointments that have been made and they change the supreme court schedule and basically say it's not going to mote at all during 1803. it won't meet until february, 1803. they're clearly try to get distance before dour hears the march burr case and before the district court hears what's
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expected to be a tunl challenge to the repeal of this judiciary act and getting rid of the midnight appointments. the only time in the history congress actually shut down the supreme court for an entire year. >> did they send the jaustices back in the sir kits to hear cases too? >> a same way before you call a time out before the other side tries a field goal to psych out the kicker. they can't meet as a supreme court, and before they're going to meet again t new law says you got to go back on the road ride circuits as individual justices. and with you do all of that under this new repeal law, you will in effect have committed yourself to the legitimate maysy of this law and you're going to kind of have to do that before you have a chance to skull with all your colleagues on the supreme court. so remember the supreme court at
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the time the justices really have two functions. they serve as the highest court within the system but they also as a collectivity, but they're also riding circuit to individual judges in different part of the country, that are trying cases up and down the continent. >> and let me just say, the justices hating riding care sits. the roads were primitive the conditions were awful, they hated it. >> you're away from your family. >> no prestige in that job. >> but on prestige they're kind of in a basement, the not great room in a capital building. before john marshall comes along the justices don't speak with one voice, there's not an opinion of the court. justices say what they think but there's not a formal recording process in which all these statements are automatically
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published in united states reports. so -- and john jay was mentioned early on, marshall's predecessors, one of them, the first chief justice actually left the job because he'd rather be governor of new york. so it wouldn't quite -- and other justices who were running for governorships and other things while they were justices, so it wouldn't the plum job in washington, d.c. and part of the reason why is because you had to spend a lot of time on the road. >> we have callers let me do that. robin is watching us in trenton. hi robin. >> hi. i'm hoping you can clarify somebody one way or the other. can you tell me whether or not that this case was the one that decided the supremacy of the court in terms of the court's ability to say what the law is? i've ready on both sides. thank you. >> thank you very much.
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akhil amar. >> we may have a little bit of a disagreement, cliff and i. i think the classic view, yes, that case is establish that. i tend to think before marbury it was clear it was supposed to be judicial review in the system, you see it in '78 and state courts have done this under constitution and justice stake circuits have ruled on constitution yalt and upheld congressional law. before marbury there was a lot of -- judicial review of a certain sort had been established. after marbury, judicial review is a little bit better established but again it's not the 800-pound gorilla. a court isn't going to strike down a course of congress again until 1850s, a case called dread
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scott. a court in marbury doesn't say, you won't find a intense the supreme court interprets the constitution. the technical issue at stake in marbury isn't some -- it's not about abortion or school prayer or obamacare or the death penalty, it's very a very very technical issue about the judiciary itself. original versus appellate jurisdiction. >> do you disagree? >> i do. i think the answer to your question is yes, it is the case that establishes this that. two points on that. first, there is the very simple fact that cannot be contested that it is the first time that the supreme court strikes down an act of congress as being unconstitutional and establishes that principal. and indeed is the first time in the history of the world where a court had struck down that
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statute of a coordinate branch in a national government. but it definitely is the first time in our history when that happens. the opinion say it's the province of judicial department, the court to say what the law is. the other point thank you is very important, because it is in the federalist in '78 and people had talked about it. but one point that i think people tend to forget, is that the federal judiciary had fallen into sort of bill and repute. they were hostage to the review -- you see jefferson's allies both before the marbury decision, while the case is pending and some of them afterwards who are saying there is nothing in the constitution that suggest that the supreme court has the spour to declare a
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statute unconstitutional. and the marbury opinion strongly refuts that. >> we're already at our half upon. david from tulsa, oklahoma your question. >> yes, i agree with mr. salone on his opinion about the significance of the decision. i also think that the united states of america's very fortunate that this case came along early in its history because previously with the bank of the united states that had -- there was constructionitutional there as to who was decide. it was -- it was also the alien's acts under president john adams that created such a turmoil. and i think that the federal ending of the marbury versus
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madison, if you ever been to the supreme court when you walk in there's that gigantic sculpture on marshall, didn't leave any doubt to who is the most significant ever of the supreme court. >> in the view of the court. >> it is in the court. and actually david, i think both of the things that you mention cut against your point in a certain way. so, people have been talking, oh the supreme court is the ultimate interpreter of the constitution. not quite and i'm not endorsing kim davis here. let's talk about the aliens decision act. this was a law john adams signed that made it a crime to criticize the president. made it a crime to criticize the congress which isdom fated by the party. did not make it a crime to criticize the vice president who
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is the leader of the over party. all these rules expired after the next election, it was disgusting. total violation of first amendment. and yet, and yet and yet, federalist judges, supreme court justices writing circuit upheld that law against constructionit challenges again and again. and so, who in the end drives a stake through the hart of this sedition act, the president, thomas jefferson when he sweeps into office, and notwithstanding these judicial order upholding the sedition act, he pardons everyone. so, he was actually the last we're and liberty on amendment. now you mentioned the bank. >> do that one briefly. >> the baeng of the united states do not reach the united states of the supreme court until in the -- in the 1780,
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doesn't reach the supreme court until 1819. once again the last word was had by president andrew jackson who actually vetoes it. he says it's constitutional, i don't think so. so both of your comments are illustrations that presidents plays a role in the constitution and sometimes the last word. >> richard from oregon. hello richard. >> i'm a 35 plus year trial attorney and i particularly enjoy this program for the way it puts a human con telkt in, also establishes the patrol car sees of jefferson and marshall and establishes the authority of the court which finally becomes clear in the scott case some 50 years later. so i wanted to say thank you for an important program. >> well, thank you for call. in fact dread scott will be the
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next feature in the 12 cases we've chosen. by the way, this is a good point to tell you about our partners at the national constitution center. we started this project almost a year ago, with their help we went to them and said we'd like to do this put it's not our area and expertise. they've been helpful in helping us go through case and research as we made decision about the cases. and also educational material about the cases themselves. we've been enjoying the partnership many weeks to go as we help you and/or us learn about sought to establish the supreme court was even through symbolism. we're going to return to his house and look at one change he made that was very different from the english system of the courts. let's watch. >> these are john marshall's supreme court robes. this is the only surviving example of his chief justice
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robes. so they're right around 200 years old. it's made out of black silk. and you can see here's the lapels, and here are the sleeves here. and after -- after a couple hundred years, there starts to be some deterioration. these had been on display at john mags will's house from 1929 until the '90s when we realized the deterioration. it's pretty much during this time period where he makes it the sanctioned uniform so to speak for the supreme courtgists to wear the black robes rather than the red robes the english court would wear. it was pretty much up to each individual justice what they wanted to wear. many of the supreme court
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justice were wearing pretty much modified english court robes which would have been red. and many of them were wearing english court wigs. it was under the chief justice he made it mandatory all would be wearing these black robes. this is mainly to say that we're responsible for interpreting the constitution. this is not a show of the power. we are of the people, not above the people, which is something he was extraordinarily passionate about. >> demonstrates one of the many ways john marshall was think about establishing a society. when was it heard? >> initially there was this proceeding in december 1801, and then it was heard again in 1803.
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>> and the lower level. >> yes. >> and was conducted in the way we hear cases today or oral argument or something else st. >> it was a original action. marbury had filed suit in the supreme court under the judiciary anth saying i can file an original action. so basically the supreme court had to have a trial to establish the facts. so they had to have witnesses. and so marbury's lawyer, charles lee, the former attorney general, puts on witnesses. he has a bit of a problem because the witnesses work for the government and they're suing the government. there are these two clerks at the state department, well they work for james madison. but he puts them on as witnesses. they're very reluctant to testify. they object. they feel they shouldn't have to testify about the inner workings of the executive branch.
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but there is basically an original trial going on in the supreme court, but there's one very unusual fact about this trial, which is that the defendant, james madison, thomas jefferson, they refused to participate in it at all. they're showing total disdain for it. jeffson's attorney general, he's in the courtroom but when he's called upon by john marshall he refuses to participate as a lawyer in the trial at all, or to make any arguments. they're not going to dignify it by doing that. but as the trial proceeds in february 1803 they actually call him as a witness to testify about whether he knows what happened to these commissions. and he very strenuously objects
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on various grounds to testifying. and again, john marshall makes a series of very careful rulings. but very different of what you would see in the supreme court today. >> so how important was it to the capitol city that this case was going on? >> the most important witnesses in the case, and so it is a trial are named marshall. john marshall s witness, and that's why from a certain point of view, we don't do this at home, kids. he should not have heard the case. there's one person who actually knows from first-hand knowledge that the great seal of the united states was affixed to this commission, and that's the hand that did it. and that's john marshall's hand as secretary of state. and james marshall, his brother, actually submits an affidavit.
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when you read it carefully it says i think marbury was one of the commissions i was supposed to deliver -- i'm not exactly sure. so it's interesting. >> so did all six of the justice participate? >> no, actually. two of the justices were ill and could not be there. so there were four of the six. and it took four to have a quorum, and that led to some issues. >> how many days did the trial take place? >> it took place over four days. >> and how long for the court to deliberate its opinion? >> well, it was 13 days later. and that seems by today's standards to be a very short period of time. at the time the public was wondering what was taking the courts so long. because the supreme court tended to issue its rulings very quickly in short opinions. one thing that akhil alluded to earlier, and it relates to the
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robes, one thing john marshall started was this practice of opinions to the court as opposed to each court justice giving their own quick aopinion. there was speculation in the press about what was taking so long. >> so he's writing opinions, and they're all getting together and they're all wearing the same robes. he's trying to create something from the vapors, institution we call the court instead of just a bunch of cats that are being herded. so written opinion, which the constitution doesn't require but has been our tradition since the marshall era. they all wear the same robes and they all try if possible to at least get a majority or one statement of reason, the opinion of the court. >> and remarkably perhaps he has them all staying in the same boardinghouse. >> the dinner party. he talked about it. and the wine flows, and the conversation flows. and he is a very charming host. >> very gregarious.
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and i do have to tell one story about having all the justice together in one boardinghouse. because he instituted a rule they could only have their evening, if it was raining out. so each night he would have a justice go to the window and report. and frequently a justice would say it looks really clear out there. and he would say our jurisdiction is so vast, it must be raining somewhere, break out the madeira. >> hi, miguel. are you there? all right, let me move onto lydia up next in irving, texas. you're on the air. >> hi. i am just curious about something. and that is that the -- are you there? >> yes, we're listening. >> doesn't the constitution take position over the supreme court -- over papers written
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by -- i don't understand that. >> sure. but the federalist paper help us understand. of course, yes, the constitution is the supreme law of the land. the federalist papers are just one generally useful aid or guide to understanding. >> janet in rockyface, georgia. your question. >> my question will be for mr. amar. there are two religions that are prominent in the united states. like the shureea law and the -- >> janet, how does this connect into marbury vs. madison?
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>> i don't think it connects really -- >> well, we're going to have to stop because -- >> here's the thing, that john marshall -- here's the maw izing thing about the oath, it doesn't require a profession of religion. you're allowed to say help me god if you like, but you don't have to. two of the folks up there including washington and lincoln were not conventional church goers. there's no religious test for public office. >> when the chief justice delivers the opinion, the cases boil down to three central questions. the first was did marbury have a right to his commission. the court said what? >> yes, he did have a right to his commission. >> question two, if he had a right and the right was violated, did the law provide a
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remedy for him? >> yes. two both these questions he believes they acted against the law, that they were duty bound to give them the commissions once they were duly appointed. and so it's actually the harshest criticism of a presidential administration in a supreme court opinion up until that point. >> and question number three, and here's the point where everyone looks to the thinking of the chief justice. point three, if the law provided a remedy, the proper remedy or a director order from the supreme court. and it was on this point number three, john marshall decided what that became historic? >> remember we're taking marshall's orerring the issues. the answers's no, he should have recused himself. he's a witness with first-hand
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knowledge of a judeicated fact. the second question is does the court have jurisdiction. does it have the power to even hear the case? because if it doesn't have jurisdiction, it's a bunch of people in black or other colored robes telling folks what to do without authority. and john marshall did it in order to score a bunch of political points against jefferson in some ways. at the end of the day he's going to pull back and he's going to say even though jefferson and madison have done it totally illegal at the end of the day he says it turns out we don't have jurisdiction. and we don't have jurisdiction because this congressional staff that could be read as giving us jurisdiction is actually unconstitutional, and our job is to give effect to the constitution even if that's at the expense of a congressional statute. now, from a modern point of view if that's true, he should have
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probably decided that from the very beginning as either the first or second question. >> but in the same point number three, he went onto declare what the court's authority was. and i have a paragraph to read because this becomes a part of it. he wrote and read it is emphatically the province and duty of the judicial department to say hut the law is. those who ally the rule to particular cases must of necessity expound and interpret that rule. if two laws conflict with each other, the courts must decide the operation of each. a law repugnant to the constitution is void and the courts as well as others are bound by that instant. and there we have it. >> there's actually a worthy opinion that really is about the unique powers of the supreme court as opposed to all the other judges in the smgs. and notice he said as well as
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other departments. some interpret it to him saying making a unique claim. i do think marbury is actually read just as a congress can tell us how we have to rule, there are certain domains in which other branches of government may be able to make independent interpretations like jefferson parderning the sedition act convicts. >> well, i do think he's saying very clearly that all of the departments do have a responsibility to evaluate the constitutionality. but at the end of the day, the final day it is emphatically the province and duty of the judicial department to say what the law is. that's the heart of marbury. and that's why it has been a beacon in our own history, in
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the supreme court at times of great stress like the ninety-sixen tapes case or enforcing the brown vs. board of education. it is emphatically the province and duty of the judicial department. >> as we said, the two justices wanted it to be unanimously. and the other four, they all joined in the opinion which was read. you have to tell the story of how it was read. it's hard to imagine it was in a boardinghouse. >> yes. they were staying at steals boardinghouse, which was across the street from the capitol. it's where the library of congress currently is. and they were staying there now. two justice were not in washington because they were sick. and there were only four justice there. it takes four justice for a
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quorum. justice samuel chase, known as bacon face had come down with a painful case of the gout. the supreme court tried to convene, but they only had three justice and so they didn't have a quorum. so then at a certain point marshall had a realization. if old bacon face can't come to the court, the court's going to come to him. so they hold it in the parlor of the hotel. in the parlor of steles is where marshall reads this most famous of supreme court opinions. >> it's not only famous, it's also the longest. 9,400 words. and you said he read the entire thing to the assembliage, which took him how long?
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>> as you were going through the three questions, it looks like he's going to really issue a sweeping review to the jefferson administration and order them to deliver the commissions, and there would be a square confrontation between marshall and the supreme court and jefferson. and it was very possible that jefferson would just defy them, i the supreme court was very weak. so he's going through the questions, yes, marbury has a right to commission, yes he has a right to the remedy. and then he gets to that last point and says but the statute doesn't give us jurisdiction, therefore we can't rule in marbury's favor. >> well, the statute does, but it's unconstitutional. >> exactly. and we are striking down the statute because it's unconstitutional. therefore we can't give him this order. so the result is technically jefferson and madison win and
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marbury loses. but there's an awful lot in the opinion that is all about how marbury was right and they were wrong. so each side wins some, loses some. and that actually was a very important aspect about marbury also. because a lot of people at the time thought the supreme court was just going to be a political actor. these were all federalist appointees. people expected they were going to do the expected federalist action. and instead with this kind of mixed decision in addition to being the first decision that strikes down the statute as being unconstitutional, they actually seem to be acting as a court, waving in a range of issues. >> or at the very least pulling back at the last moment. remember madison refuses to show up in court. jefferson is not dignifying the jurisdictional pretenses of the
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court, signaling they might not accept a court order, they might not carry it out. and that's maybe the best case scenario. here's intermediate case scenario. at the same time, there are impeachment proceedings in the pipeline against a lower court judge and actually soon thereafter a supreme court justice none other than old bacon face. so it might be you issue this supreme court paper and jefferson laughs in your face and what are you going to do, best case. middle case, you issue this paper and they're going to go after you. worst-case scenario, and we know it doesn't come to this but they don't know how it's going to happen, there's a french revolution and heads had rolled. and jefferson kind of said very airily you can't make an omelet without breaking some eggs, we know that jefferson isn't quite
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that -- but john marshall can't be 100% sure it's not going to end very, very badly indeed. so there's some prudence here as well. he doesn't push it too hard. >> hi, miguel, your question. >> hello? can you hear me? >> yes, miguel, your question. >> good evening. thank you, c-span for doing this. i think jefferson and the others were quite shocked when they realized the implications of the opinion. because it's my understanding that state legislators could ov override their supreme court decisions. and i think jefferson and many thought that would happen. but i think what was suggested here was not the case. my question to the panel is one of the books that i remember
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reading i thought was wonderful was albert -- john marshall biography, which reads like an up right novel. and just wanted to know what your opinion was regarding that book, which again it's a wonderful, wonderful book. >> thank you, miguel. our time is short, so i'll find out what our guests think about that biography. >> no, it's terrific biography. marshall is a fascinating character. and he was brilliant. there's another biography by james smith, which is terrific. and he's just a very, very interesting character. but that's one of the ones that really bring him to life. >> akhil quick question to you. the more we hear about this case, the more it seems it's
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soly a creation of marshall's will. >> i'm critical of some aspects of it, but judicial review is very well-established in fact. and contrary to what miguel said, state legislators before marbury did not have had ability to overturn state court rulings that state laws had violated state constitution. the supreme court itself justice riding circuit and even validated congressional statutes. so marshall is not making up judicial review at all. he's pulling a fast one in certain ways because if he doesn't, his branch is going to vanish into nothing, the federalist are never going to be heard from again, he's trying to rally the troops even as he's retreating.
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although marshall is seen very much as judicial review, courts as against congress, much of the drama here and then later supreme court poins, some of the most important is going to be courts against president. >> we have 15 minutes to talk about the importance of this case. >> let me just say one thing while we were talking about john marshall because akhil mentioned the recusal part a couple of times. recusal is when a judge says i can't sit on this case because i have a personal interest in it. and the standards for recusal were very different at the time. in today's world there's no question to anybody that somebody shouldn't sit if they have that personal involvement. the standard recusal at that time was definitely if you had a financial interest. and beyond that it was sort of vague and murky. one of the things telling about that is in the whole sequence of marbury and its aftermath including jefferson's very
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bitter criticism of it, the rest is like he never writes that. and everybody knew it, and there were people who wrote articles in newspaper attacking marbury and attacking marshall on many grounds. nobody raised that. so to the contemporary ears and eyes at the time, it didn't occur to people he should have recused. >> so onto the impact both at the time and today. i'm going to start with today because judicial review is still being debated in this country. we have two points of view talking about the importance of marbu marbury vs. madison. let's listen. >> marbury v. madison is probably the most famous case this court ever decided. all people who serve government take an oath to support and defend the constitution. but this court has the last word on what the constitution means.
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that is not the typical pattern in parliamentary systems where the legislator will have the last word, what the fundamental instrument of government means. the idea of judicial review for constitutionality i think is implicit in the constitutional document. but john marshall made it explicit in the great case of marbury against madison. >> and we also traveled to capitol hill to talk to the chairman of the house judiciary committee, a republican. here's some of what he had to say. >> well, i think the court has and i think instinctively relying on marbury that goes beyond what the actually decision made gone too far in a
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number of decisions with regard to getting involved in constitutional decisions or other decisions that are either not to be found in the constitution and yet they found something there or not finding something that, i think, most people today looking back would have found that it should have been been there. >> that's congressman john goodlack. i'd like to show you a decision over innumbers that have cited marbury as precedent. in fact we found that marbury was cited by the court over 200 times. but there are a number of key cases very recent. they include baker v. carr in
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1962. gr griswold v. connecticut. u.s. v. windsor in 2013. and most recently last year king v. burwell. >> amy mulligan asks should we as americans be concerned about judicial view becoming judicial activists? >> former chief justice -- that doesn't mean we're going to agree on how that power is going to be exercised. and there should be healthy disagreements about that.
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frequently if somebody doesn't like the outcome of a decision of a supreme court that invalidates an action that's unconstitutional, they view that as judicial activism, from whichever perspective. so there should be a very, very vigorous discussion about how the supreme court exercises that jurisdiction. but the fact that it has that authority to provide the last word on constitutional issues is, i think, a very important protector of our liberty. >> so since you mentioned king v. burwell i want to give a shout out. there have been four times since oufr history when a new president representing us as a sort of rising political force has confronted a court
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representing ghosts of pre-s past. and the first is jefferson confronting marshall. and marshall to his credit he pokes jefferson a little bit. but at the last minute he shows some prudence and doesn't take a huge bite. this is going to happen again when we get to the dredd scott case, roger tawny representing what becomes the jeffersonians, he's opposed to abraham lincoln, the anti-slavery president. and there's going to be a confrontation there. and then a third time fdr is going to confront all these judges from republican administrations past. and there's going to be a crisis. and the fourth time is john roberts representing basically a lot of republican presidents,
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and he could have picked a fight with barack obama and twice he declines to invalidate the big platform of obama, what he ran on, obamacare. and in so doing, he took the court out of politics a little bit. it was not partisan. he joined actually with folks on the other side. and i'd like to think it's maybe because he studied marbury v. madison way back when. it's possible he borrowed a page from the chief justice. >> there's a campaignian case to marbury v. madison that is almost unheard of or not talked about. in that case it's a constitutional challenge to the statute that the jeffersonians had passed repealing the
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judiciary act, making the justices right circuit again. a lot of people expected these federalist justice to strike that down as unconstitutional. they thought that's where the court's power to invalidate constitutional grounds was going to come. and the supreme court very quietly in a brief opinion up held the constitutionality of that statute. and what that showed was having established it had the power of judicial review. the supreme court was going to exercise it very juditiously and not for predictable political purposes. >> so today if you go to the national archives millions of people do every year, they have an area where the great documents of our country are on display. they also have documents of marbury v. madison. does it belong there? >> i think it does. it comes right after the bill of
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rights and the constitution. and the statement there is because it's a cornerstone of our constitution. and i think it absolutely is. >> if we really want to understand modern day judicial review, many of us care about the rights of individuals versus appellant versus jurisdiction, what we call rights, a lot of them aren't strictly the bill of rights because they're not about the federal government. they're about states misbehaving. and that's because of the 14th amendment. and i want us to remember mr. lincoln because his generation gives us a new birth of freedom, a second founding that's going to launch a very vigorous project of judicial enforcement of rights. that's what marbury has become today, even though it won't actually that robust at the
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beginning. but it's become really important because of the reconstruction, because of the 13th, 14th, and 15th amendment. >> and in fact four of the amendments we selected of the 12 -- we've got about seven minutes left and i had so much i wanted to do. let me take a call from cat from churchview, virginia. you're on the air. >> hi, my question is adam and jefferson were friends how did adam justify his action when he kind of went against jefferson and his presidency in the whole like debate thing? >> okay, thanks. we spent some time on that in the beginning. how did he justify his actions t? >> adams from his perspective when he'd been defeated and he saw the jeffers and
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jeffersonians coming in, he was worried about the future of the country. and as he was putting these federalist into the government and ensuring they were there from his perspective, he was safeguarding the last -- he was very fearful of what was going to happen to the country. as we talked about before, fortunately they reconciled. >> and he does not try to hold over and defy the will of the electorate, and that's a historic first. you were mentioning all these historic firsts. one political party losing fair and square at a national level and actually yielding power to its political rival, that's a pretty new -- again, that gives the world an amazing lesson, it seems to me and gives adams his due in that regard. and remember he's worried, the
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french revolution, is it going to spiral out of control? so some of this is maybe even self-protection on his part. mistaken, but to sort of give him his due. >> one of the crowning achievements of his presidency, we'll show you next a letter that adam said wrote to john marshall in the waning days of his life. >> in 1801 following four years of serving as president of the united states, john adams would leave washington, d.c. and once again return home at his home at peacefield where we are today. he would spend the next 20 years of his life with his wife and their children and grandchildren. this was a very lively house. it's where they spent most of their time. in fact john adams left this house very few times. during his presidency abigail would spend much of her time back here. during that time she would make
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an addition to the house. and it includes a second floor where john adams could entertain his mind. it was from this desk that john adams would correspondent with thomas jefferson. and they shared over 300 letters in their lifetime. in one of the earliest letters adams would wright to jefferson you and i ought not die before we've had a chance to explain ourselves to one another. he loved to receive letters, he loved to write them. and sometimes he was even surprised with a gift, including from his old friend john marshall who he appointed as chief justice of the united states. john adams is at his desk and he's writing to john marshall that he has received this gift. he writes, dear sir, the extreme
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imb imble silty of my own age -- there's no part of my life that i look back upon with more pleasure than the short time i spent with you. and it is the pride of my life that i have given to this nation a chief justice equal to cope or hail, halt, i am ultimately your friend or well-wisher. though on the point of departure, john adams. >> so the chief justice john marshall served on the court for 34 years. he's often referred to, the sitting court chief justice called him the great chief justice. one book i read made the point that having established this principle, he became more powerful than the next three presidents of the united states. would you go that far?
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>> no, and i don't think that's the right way to look at it. john marshall's legacy is that he created the supreme court as a co-equal branch of government. and in marbury he established judicial review and evaluating the statute. he defines the contours of national power including congressional power. but through his -- the scope of his opinions, his brilliance, and also his personality, he took what was this very lowly disdained court and really turned it into the supreme court of the united states. >> what should we remember him for? >> well, here's one thing in in addition, i can't remember who it was who said 90% of life is
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showing up. john marshall shows up. he just stays for a long time, 34 years. his predecessor left. the next guy left. when you look at the constitution there's not a termination for the presidency until the 20th century, until fdr. so imagine a world where presidents are perpetually re-elected presidents for life. and we don't have that because george washington steps down and jefferson leaves peacefully and monroe and the tradition begins. but washington established that. and his great biographer was none other than john marshall. so washington establishes we won't have a presidency for life, john marshall really puts kind of a different spin on good
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behavior. he doesn't cut and run. he just stays and stays and stays and workwise new appointees, basically jeffersonian appointees and tries to create a nonpolitical court that's above party. and he just stays. and a lot of life is just showing up. >> we know what happened to james madison's political career. what ever happened to marbury? >> marbury continued to be very active in business affairs in washington, d.c. over the course of the next 30 years or so. he had his hand in lots of different business ventures, a bank, a place that inported suits from england. the house that marbury lived in during this time still stands. it's in georgetown. it's actually the embassy of ukraine today. you can see it there.
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it was basically marbury's command post during this time period. >> well, special thanks to our two terrific guests, akhil reed amar and cliff sloan. and thanks to our viewers. your questions always make it so interesting. we hope you'll be with us throughout the series.
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"landmark cases" returns live next february on c-span. here more stories on people who sparked ground breaking cases, justice and lawyers who were key to the supreme court's review. american ristry tv is in prime time all week with our landmark cases series. on wednesday we'll look at scott v. sanders. in 1857 it declared that all blacks and could never become
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citizens of the united states. it begins at 8:00 p.m. eastern. c-span's washington journal, live every day with news and policy issues that impact you. coming up wednesday morning, a discussion on efforts to stabilize various affordable health care insurance markets with aei health care scholar and the recently elected national commander of the disabled american veterans talks about health care and employment issues affecting veterans. c-span's washington journal live beginning at 7:00 a.m. eastern wednesday morning. join the discussion. a senate panel will exam recommendations for increasing water security and drought
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preparedness. live coverage of this senate subcommittee hearing begins at 10:00 a.m. eastern here at c-span 3. the general services administration recently cancelled its search for a few fbi headquarters to replace the aging j. ed gar hoover building. the officials from the fbi and general services administration will testify about some of the obstacles they face and the future of the bureau's headquarters. liveat 10:00 a.m. eastern on c-span. you can follow both on and with the free c-span radio app. up next on american history tv law professor jeffrey rosen talks about the influence of chief justice john marshall. he talks about the


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