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tv   John Marshalls U.S. Supreme Court Landmark Cases  CSPAN  October 29, 2017 8:30pm-10:01pm EDT

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what was his role in restoring the stonewall? mr. seale: everything. president truman loved history and he loved symbols in history very much. maybe coming from his masonic background, i don't know. themthe architects told they were going to demolish and rebuild it, he said no. he worried about it. finally he went to yale and they were rebuilding a building there , and the new building inside, and he decided that would happen. here andt an architect --y gutted the house, and not everything, but most of it to trash out of the ft. myers landfill. the house was reconstructed in steel frames within the original
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wall. there was that much space between them. the walls were not conserved until later, but the house was rebuilt and it looked about what it did. it was more like a public building, maybe. it did notloors, have that saggy fielding that president roosevelt loved. but truman built it for all time so that the main thing would happen, the president would stay in the president's house. he was very emphatic about that. in fact, as the sub cellars were being dug, he came by and they were about to widen the door with air hammers, and he said stop. so they had to take the bulldozer and a truck all down, back, and, build them that is how they built the basement. there is enough space for a driveway to take them out.
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he saved these walls. he saved the mystique of the white house, president truman did. susan: you mentioned he did not conserve and that's probably where we will end. when of the properties you write about is that sandstone is very course and also subject to deterioration. so how was the sandstone preserved? mr. seale: in modern times? susan: there's two good stories. mr. seale: the scots had a stone theide of edinburgh, craiggly stone is a little stronger than ours, but you can still shoot a hsoe on it. they always washed it. they had their own recipe with a lot of weird things. and itt it on brooms went in the crevices and little holes in the stones and stayed, while the rain in scotland would
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wash off most of it over 10 to 20 years. it would leave the hole filled. so when it froze it would not crack. here, nobody wants to live in a dirty house. they did the whitewash and it was done several times before the fire in 1814. they reusede fire, almost everything. president madison just considered it a repair. and so, there were these big, black things all over the stone. they put lead-based paint. the first time the houses painted in 1817. before it was whitewashed. there is a doorway on the north side of the house we can see it is a magnificent doorway. and it shows the ornament, it's an original door. it's an ornament and the fire, te suit still on it.
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susan: in modern times they were able to preserve it how? theneale: the chief usher begin to be concerned because the house was being painted every year and the expense was terrible. so he came up with a project and presented it to president jimmy carter, who enthusiastically supported. cleaning the of stone down to the original stone took place. it took 20 years. it was repaired with plugs, with splices, with everything to make it perfect. then it was repainted in the bill clinton administration. that is how it is conserved in the most professional standards now of conserving stone. susan: is this stone house here to stay? mr. seale: i think so. i don't think a president would ever leave. susan: in the sense of
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conservation, i mean? mr. seale: oh yes. it is lovingly cared for. you have the national park service who have been the stewards of it since franklin roosevelt, 1933. no, it is watched very carefully. of course we had the secret service all around watching. anything that goes wrong is fixed. it is very carefully maintained, more so than the days of general grant when he called for the fire department to shoot the hose on it. susan: the great thing about you is there are always more stories but unfortunately have to end. bill seale, whose latest book is called "a white house of stone -- building america's first ideal in architecture." is always ifssion these stones could talk. you have managed to make the stones talk in your new book. thank you for telling the story. announcer: you're watching american history tv.
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all weekend every weekend on c-span3. to join the conversation like us on facebook at c-span history. john marshall was the fourth chief justice of the united states. he was appointed by john adams in 19 it -- legal scholars discussed at landmark cases decided during his tenure on the court and closing -- including mccullough versus maryland and marbury versus madison. it's just over one hour and 20 minutes. >> professor founded the james wilson institute in 2013, and the mission of the institute is to restore to a new generation of lawyers and citizens the understanding of the american founders about the first principles of our law and the moral grounds of their own rights, natural law. we offer programs for attorneys,
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law students, judges, and the public to advance the ideas of natural law or natural rights and the constitution. i wanted to mention a note about the house we are in today -- the house was built in 1825 during the first year of john quincy adams' administration. he had just defeated jackson in a vote in the house of representatives that was a controversial election. by a builder built who happened to be here in washington at the time in charge of the reconstruction of the white house and the capital building, which had been burnt by the british in the war of 1812. he happened also to be a friend of john marshall and justice story, and because the court only met three times each year -- later on, justice fuller also lived here.
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as it happened, it was later bought by william carroll, this particular home, and he was the clerk of the supreme court for i think almost three decades. he was a friend of abraham lincoln, and in this room, abraham lincoln attended the marriage of the daughter of william carol, so we are in an historic place in so many ways. one other note about william carol -- he was the one who bought the lincoln bible. when lincoln came to washington, he forgot his bible or did not bring it with him to springfield, so carol bought a bible for him, used it during his inauguration, and until barack obama, no other president used that bible. finally, i want to mention a couple of things about john marshall historically, and then
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we will get on with our expert panel. john marshall lived from 1755 to 1835, and before being named to the supreme court, he grew up in virginia. he argued one case before the court, and he lost, although it was said that he had a very strong argument. he served for just -- not quite a year as secretary of state for president adams. he was a federalist, unlike his cousin -- or his relation, thomas jefferson, who was not a federalist. however, when john adams needed to appoint a chief justice, john jay, who had been the first chief justice, turned it down, writing that the court lacked weight and dignity. when that letter arrived from new york turning down the job,
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it happened to be that john marshall was in president adams' office. adams turned to john marshall and asked if he would like to be chief justice. he said yes, and that is the beginning of the great man's term as the fourth chief justice. he served under presidents adams, jefferson, madison, monroe, and jackson, and truly made the supreme court a coequal branch of the government. with that, we want to turn to our first panel. it is chaired by professor hadley arcus, who started the james wilson institute. he taught for 50 years at amherst college. he was the neighbor for sir of -- he was the professor of political science. hadley has written seven books
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including first things and beyond the constitution. they are all on amazon, i'm sure. with that, please introduce your panel. thank you. >> thank you. [applause] i think i am miced already. [inaudible] we are here today, as we should be -- he's taking in the suit. [laughter] they promised me alterations.
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as i said, we are here to savor again the work of john marshall and his distinct contribution in the founding and shaping not only the court but the dimensions and reach of this new national government under the constitution. he was not a member of the constitutional convention, but he was the third chief justice, coming in at the time of the jeffersonian revolution. it required, to put it gently, some high art of statecraft at that time. during the first striking example in history of the peaceful transfer of power from one party to another when those differences between the parties potentially marked the kinds of changes that were understood in other countries as revolutionary changes, or changes in the regime itself. one of the lingering messages of that period is that that
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particular significance still embedded in the parties, or in the politics of parties, is still there, from the differences between the parties, from the ins of government and the distribution of power may not only be principles and consistent, but often quite dramatic and their contrast and imply differences as deep as changes in regime. it's hard to imagine a better place for us to meet here. john marshall lived his last two years in this court. we thank mike for his involvement in this club that is proposed of members who people have served abroad. about 20 years ago, i was involved in a case in cincinnati where the voters in a referendum adopted an amendment to their city charter equivalent of their city constitution, and that amendment sought to bar and
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override ordinances, that barred discrimination based on sexual orientation. the judge in federal court -- a nice and thoughtful man -- seemed to be taken that what seemed to him the more liberal measure, the ordinance barring discrimination, had to take precedence over the more conservative measure which was the amendment to the constitution. what we had here was a case of a judge suggesting that an ordinance or a statute could take precedence over the local constitution. and so what we found ourselves taking time out to recall again john marshall's teaching in marbury versus madison. there was ordinary law and the fundamental or basic law, which tells us how we get law. if you ask how do you get a federal law? a bill passed in two of houses of congress, signed by an executive. well, how do we know that?
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how do we know we have a legislative body with two chambers? it is in the constitution. the basic law is the law that tells us how we get laws. and of course, it claims a logical preeminence over an ordinary statute. and so, marshall spoke the plain truth on this matter, marbury versus madison, pointing out the statute may override the provisions of the constitution. the constitution is put on the same plane as an ordinary statute, which may be superseded by the next statute. and under those conditions, the constitution would lose its function as a control. it would cease to be a constitution. this meeting brought to mind a moment in the early when 1980's with rex lee was solicitor general arguing for the reagan administration before the supreme court.
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in one moment in the case in the fall of 1982, as i recall, it was on abortion, and justice blackmun leaned in and said, "are you asking us today to overrule roe v. wade today?" and he says, "no, that's not what we're asking today your honor." and he says, "we are simply asking you to overrule marbury versus madison" he showed that people tutored in the subject that marbury versus madison must be one of the most widely cited and least read. blackmun spoke as though it somehow called the whole constitutional order into question if someone dared to suggest that the supreme court might have gotten it quite wrong on a major decision, that it could be salutary for the court to revisit that decision. especially as you pointed out, lincoln cannot have raised his
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hand on march 4, 1861, and taken an oath to support the constitution if it were understood that that constitutional right articulated and the dred scott case, the right not to be dispossessed, everyone thought that that constitutional right were woven into the constitution as though it were in the text itself. lincoln waged a national campaign to counter and overturn that decision and through administrative means and congressional action, lincoln and his republican congress took the steps to overturn that decision well before the enactment of the 13th and 14th amendment. in marbury versus madison, john marshall never claimed a monopoly of the authority to interpret the constitution. all he claimed was that in the course of exercising its own authority and hearing cases, the court may encounter a conflict between a statute and the constitution, and in that kind of case, the court would be obliged, of course, to respect
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the logic of the constitutional arrangement and give precedence to the fundamental law. picking up on marshall's teaching, justice george sutherland put it this way later. he said that when the court has to weigh the statute against the constitution, it is not engaging in the exercise of a substantive power to review and nullify acts of congress, for no such substantive power exists. it is simply a necessary concomitant of the power to hear and dispose of a case and controversy properly before the court. and in that respect, marshall claimed nothing for the court and the judges that would not be claimed by any other officer acting under the constitution, so if a president were faced with a bill to induct into the military service only members of a certain race, would he really
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be confined to the utilitarian question of if this measure would work, or would he be obliged no less than any judge, to consider if this measure was compatible with the underlying logic of the fundamental law? scholars have written about foundingeriod, -- in the founding period. they are teaching about the rule of law and the pencils of rendering justice. we have with us today two master teachers who have given a good measure of their days to illuminating that part of marshall's life. and what he taught. as republican schoolmaster, one case will always stand out that is so striking that i could not for bear at least to get in on the record. even in the sketch of a minute. the case i have in mind i happen fletcher versus peck
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in 1810. some of you may recall marshall and his colleagues struck down an attempt in georgia to cancel that he could settle a matter easily by bringing it up under article one section 10 and entering the obligation of contracts, but instead of doing that, he did something far more elegant. he showed how the contract talk could be drawn deductively with the force of a syllogism, from that deeper underlying principle. something that was taken as a principled law that would have to be recognized of any entity that called itself a regime of law, and with that in place, he could do something as striking as georgia is a great state. it is part of this american
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empire. but even if georgia were a separate, sovereign state outside the union, outside the constitution, outside article one section 10, this law would still be wrong. because its wrongness is rooted in a principled that does not validity and for be mentioned at all in the text. there i think he taught a deeper lesson. the constitution did not itself invent the enduring truths that underlie constitutional order and regime of law. those truths were well in place before the constitution. the founders drew upon those principles as they set upon the task of framing the constitution. in the constitution we might say had an even deeper claim a standing as basic law when it draws upon those deep principles that will always be there and
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will be there even if there were no constitution. but let me give a proper introduction to two accomplished scholars, we're so pleased to have with us today. they will be doing the principal talk. this panel is called landmark cases. apart from their many writings, they are two seasoned, master teachers. to offer the proper fanfare i will introduce them separately so i can get them on the right way. david, a friend of many years, took his ba at harvard, his phd from toronto, a degree in law at columbia, has written with illumination on every angle of marbury versus madison with a command of the rich historical details, and the background of the laws and the layers contained in that opinion
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crafted by marshall. he has found his vocation and writing many scholarly articles and briefs on the pressing issues of the day. he serves as chief counsel to the u.s. delegation to the united nation sin the reagan administration. he served as consultant to the pontifical consul for the family of pope john paul ii and pope benedict. he held the distinguished fulbright chair and returned to l.a. as a visiting professor. in other words, he has been active as a scholar and teacher abroad in international forums. he was the inaugural holder of the griswold chair at the cleveland school of law. he has taught for many years when he has not been abroad, but he has been active also in consulting on the drafting of legislation for the legislature in ohio, on matters ranging from international trade to
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federalism to fetal heartbeats, and has immersed himself more fully in the life of a law as lived -- i know he has served as an active judge in the municipal court in lakewood, ohio, where he called home. so it has been a grand blending of the arts of rendering justice on the world stage and on the rights and wrongs of ordinary folk in the neighborhood. so would you join me in welcoming a dear friend? [applause] >> good afternoon. good to see you all here. i am starting with a quote of john marshall's. "the government of the united states has been emphatically termed a government of laws and not of men." so he said that in marbury versus madison, preaching the rule of law to his own federalist party, to the fellow justices on the supreme court,
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to the country, and to thomas jefferson. who passed some of that. deriving the phrase, a government of laws and not of men from john adams in the massachusetts constitution and ultimately from aristotle, marshall signaled that henceforth, his public life would be the law and the law would be his life. for marshall, the fabric of the rule of law was made of four interrelated kinds of law -- the common law, positive law, natural law, and constitutional law. and the greatest of these, with apologies to st. paul, was constitutional law. the common-law provided the matrix of the rule of law. it contains causes of action, procedures, precedents, remedies, methods of reasoning. you cannot read a single opinion of john marshall where you cannot hear the common-law
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lawyer speak. arms -- forms of action, interpretive methodology. the whole stuff of the law is a common-law lawyer speaking. in his most famous case, marbury versus madison, for example, to determine whether mr. marbury was entitled to his commission as justice of the peace that president jefferson had withheld, marshall engaged with common-law principles. was there sufficiency of proof that the commission was, in fact signed and sealed? the remedy sought appropriate in the legal context? was there jurisdiction at the end of the day for him? in addition to the common-law, john marshall was extremely sensitive and respectful of the positive law. the actual laws that the republic, primarily through its legislative ranch, lays down as
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well as international law and, of course, common-law itself had many positive contents. crimes, which the supreme court toyed with until 1812 but more civil causes of action. which were substantive. and these positive laws the court took judicial notice of, even the unwritten laws of international law. in doing so, chief justice marshall, who was highly respectful of text, context, and history to determine the purpose of a statute -- so, for example, in barron versus baltimore, when he had to decide whether the fifth amendment's protection against the taking of private property applied to the states, his very short opinion went through all those three elements. he first looked at the text to see whether it applied. he looked at where the text was placed in the constitution, and
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only at the end did he look to see what the history was which ratified textual interpretation, that the fifth amendment amendment did not, in fact, apply to the states. natural law, the third element in the rule of law for marshall, was not a philosophical enterprise, as it was in some ways for james wilson, but it was a practical method of reasoning that yielded two results. one, was a set of moral axioms or self-evident truths, such as they see in the declaration of independence. , in the casee called the antelope, which dealt with the slave trade, marshall wrote, and i'm quoting, that every man has a natural right to the fruits of his own labor as generally admitted, and that no other person can rightfully deprive him of those fruits and
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appropriate them against his will seems to be the necessary result of this admission. the second kind of natural law that marshall embraced were a set of logical conclusions based on what he would call the nature of the thing. if you do a search of john marshall's opinions, you will see that in virtually every opinion, there are six or a dozen or so references to the word nature. what is the nature of the power? what is the nature of this particular action? what is the nature of sovereignty? he was always going to the root of the thing that he was talking about. so, a couple of examples -- in barron versus baltimore, the one i just mentioned, it was in the nature of the powers granted to
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the central government, he said, that those powers were to be supreme over the states, even if there had not been a supremacy clause in the constitution. and in mcculloch versus maryland, it was in the nature of the power granted to congress that they were to have the discretion of choosing the means to accomplish such granted power, even if there had not been a necessary and proper clause in the constitution. he was careful to say it was necessary for the constitution thesee articulated principles in constitutional positive law for the potential reason that, without there being stated in the text, self-interest would inevitably drive people to dispute the validity of these fundamental principles.
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constitutional law, the last and most supreme element in john marshall's quadrennial here, was the fundamental and overriding structures of government and law upon which the very existence and legitimacy of the republic in its present and future time defended serious in mcculloch versus maryland, there is only one example. marshall contended once again against the jeffersonian position that the constitution was a compact of states, which marshall denied. marshall contended it was a document emanating from the people. in the beginning of that case, he realized and revealed, full well what would happen if the jeffersonian principle prevailed . no tribunal can approach such a question without a deep sense of its importance and the awful responsibility involved in its
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division, but it must be decided peacefully, he said, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature. he knew what was coming if the compact theory of states gained traction. interpreting this last and most important element of the rule of law -- namely constitutional law -- marshall was without doubt what would be called today and originalist. but listen to this -- it is an extended quote, but it crystallizes what he thinks is the most fundamental method of interpretation of the constitution's principles. "much as been said concerning the principles of construction which ought to be applied to the constitution of the united states. on this subject, the court has taken such big one occasion to declare its opinion as to make it unnecessary at least to enter into an elaborate discussion on it.
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to say that the intention of the instrument must prevail, that this intention must be collected from its word, that it's words ought to be understood in the sense in which they are generally used, that it's neither to be restricted into insignificance, nor complicated by the framers. to do all this is to repeat what has already been said more at large and is all that can be necessary." in just a few minutes, let us look at how he applies these elements to the rule of law to a few of his most important cases and in which of those, if there were a conflict, would prevail. normally what he did was used each element as a buttress and a
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way to burnish the meaning he was trying to get from the text -- in a way to burnish the meaning he was trying to get from the text. let's look at marbury versus madison. he has been criticized, and the criticism has some merit, for citing jurisdiction last, and part of the judiciary act of 1789 was contradictory to the constitution, and it has been said and jefferson said later that all the rest of the opinion was merely dicta. what was marshall trying to do in marbury versus madison? he had just seen the jeffersonian juggernaut destroy the circuit court structure of the united states. he had been forced by his colleagues on the supreme court to take what he thought was the lower position and not battle, to accept having to write
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circuit again, even to a case that came to him which was being appealed to the supreme court when he was on the circuit. he knew that the marbury versus madison case had been brought early -- late in december, in mid december 1801 to try to counter jefferson's attempt to undo the circuit courts of the united states, circuit court judges of the united states. he knew that the federalists were trying to engage the supreme court in a partisan battle against jefferson. the federalists that they had a win-win situation. jefferson's order to deliver the commission and delivers the commission. but if he does not deliver the commission, all you have to do is read the federalist
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newspapers. he has committed an impeachable offense. marshall saw that he was being drawn by charles lee and the others into a federalist attack, and other words, becoming a political element in the federalist-jeffersonian battle. so what he did was he acted the part. the first part of the case was essentially a case of common law, other because there was a statue portion, mandamus against a lower executive official allowed the courts to make sure the executive official was performing his duty, so he asks common-law questions. is there a property like somebody's cow that somebody else has, how do we all know who owns that property? how do we know where that property is?
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once we establish that, what remedy is to allow? it is an equitable kind of remedy. order the count to be returned. is this a proper one, or do we have to go through the forms of law first? do i have the authority to do so? then we get into judicial review. he was attempting to model what the court would become after the court had been very partisan in enforcing the sedition act. he told jefferson will not do political acts. we will act as a court and determine the constitution as a species of law, and that is as far as we will go. jefferson never got the message. take mcculloch versus maryland. his notion of what the principle of sovereignty was -- the fundamental and civil of mcculloch versus maryland is not
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just the implied powers ratified like the necessary and proper clause, for congress to execute one of its laws by having a subsidiary, the bank in this case. it was in the nature of constitutional sovereignty. maryland simply did not have the authority to tax an instrumentality of another government outside of itself. that is the mcculloch principle. and in the case of often versus saunders, he reverses that -- ogden versus saunders. there was a -- senior moment here -- a lottery by congress. a national lottery. the primary basis of that case
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is if the supreme court has jurisdiction over criminal appeals from the state, but at the end he does something very clever. he finds that when virginia for bade the selling of these federal lottery tickets, it was not, although the case could properly come before the supreme court, it was not acting contrary to the will of congress. you present when congress is legislating for the district of columbia, it is legislating like a state. it set up no enforcement mechanism. it did not in panel commissioners to go sell these tickets across the state line, so therefore, the intent was to respect the residual sovereignty of the state by interpreting the positive law of the law of congress and selling tickets as not intending to be sold outside the district of columbia -- it did not intel -- it did not
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impel commissioners to go sell these tickets across the state line. when there is a conflict between common law and positive law, the question is easy. it has long been in the common law. the positive law is superior. but there is a rule. you presume that the basis of law is not going to be overturned casually or dramatically by the positive law, but if the positive law says it is going to be x, it is going to be x, no matter what the common law says. what about natural law? it's very interesting. if you look at the way he used natural law in the two forms, one being moral axioms and the other being the nature of the thing, he used them in different ways. the latter he normally used to expand and burnish the exercise
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of federal power, the nature of an implied power. when he used moral axiom, it was to limit the reach of the positive law, and here's the rub -- but never overturn it on the basis of natural law. for example, in the antelope case, the case dealing with the slave trade, the cargo of this ship, which were slaves which had been taken on the high seas from another ship, wound up in the united states. spain and portugal claimed ownership. john marshall said normally an admiralty law, possession is presumptively conclusive. it is rebuttable, but it is conclusive that you own the property when it is in dispute with the property is on the ship that has been brought in, but not when it comes to men.
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the mere possession of a man is contrary to nature. you cannot presume possession of a man. show me the text. show with a contract. show me the sale. spain showed him the sale. portugal did not. spain gets its proportion of slaves, so he used the natural law to limit the impact of the slave trade, but he said, as horrendous and despicable as this trade may be -- i'm using words, but he said words similar to that -- international law still permits it. still permits it. the law of force. really interesting. he said this natural law of liberty is contravened by the natural law of force, but force brings legal rights.
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you conquer a territory, you have the legal right to impose your law. that was one of the documents the americans articulated after lexington and concord but before the declaration of independence, the declaration of why we were taking up arms, often by john dickinson, who was not in favor of independence, but he knew if the british congress, all our claims about unconstitutional actions by the british were useless because under international law, conquest allows you to set the law. positive law did in fact in slave these people, and he had to observe that. the last case that observes that is worcester. the united states had treaties with the cherokee american indians. in relationship with the treaty, the united states appointed
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people with the permission of the tribe to go into the reservations to preach to them, to civilize them. they sent ministers. georgia at the same time passed a law saying if anyone goes in without a license from georgia, they are arrested. when men did. then we have the case winchester -- worcester versus georgia. he said there is a difference between discovery and conquest. all discovery means is that you gain the right as against other european powers to trade with the native tribe. you do not gain the right to impose your will on the native tribes. he kept saying in that case there was no conquest or claim of right through conquest, and americans acceded to the rights of the british.
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so georgia has no right to deprive indians of their property. by parsing international law in this way, he protected as best as possible the humane practice of allowing indians to retain their own rights on their own soil. in the end, what marshall did was he turned a constitution into the constitution. he made the constitution the ground norm of our society. without marshall, it would have been another organizational text, but with marshall, it was a fundamental test of principles and actions that were designed to be for his generation and for
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posterity as well. thank you. [applause] >> lovely. very nice. thanks so much, david. lovely. i'm just recalling that passage from the antelope. it is conceived this is a general proposition, a distinction is taken between men who are generally free and good that are always property, although they can hazard only proof of property which is dependable, something else is necessary when men are claimed. he is reaching outside the positive law into natural law in understanding the powers of law. all right, lovely. i don't know how a young man does so much teaching and writing. we are about the same age. i was born in the
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turn-of-the-century. he was born just before me. after the turn of the year, you are still writing the first few checks with the wrong date. he took his phd from columbia, degree in law from university of virginia. he launched his career of teaching over 50 years ago, just a couple of years before i began at amherst. his career took him to the university of new york at albany, the college of william and mary and enjoys a highly active semi retirement as professor emeritus and adjunct professor of the school of public affairs at american university. his writing has been focused on constitutional law with an
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important textbook done with paul finkelman, the march of liberty, the constitutional history, but on his own, he has a remarkable string of books, including one about a critical period in the late 1940's into the early 1950's. he has done a book on the conflict of rights, the supreme court on affirmative action and a book on suicide, but he has also done books with a serious jewish interest. he is a fellow of oxford university press center for jewish studies, a fulbright lecturer at new south wales school in sydney, visiting scholar in university israel. in short, he has been covered over with honors and under the auspices of the state department he has lectured in europe, asia,
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australia, so we are immensely lucky to have caught him. hold on to him, he flies past. keep him here before he goes on to another lecture. please join me in welcoming our next speaker. [applause] >> thank you, hadley. my talk is not so much on the cases themselves but rather on the relationship between two distant relatives, john marshall and thomas jefferson, who essentially despised each other. [laughter] yet, the two of them both played very important roles in the early part of our nation. and they both had very distinct views on how a constitution should be interpreted. fortunately, marshall won. let me sort of walk you through some of this.
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clearly, one cannot quote every single letter that jefferson wrote denigrating marshall and some that marshall wrote denigrating jefferson. one quote from each will suffice. during the disputed contest of 1800, marshall felt, "almost insufferable objection to jefferson," declaring him "totally unfit for the magistrate of the nation." for his part, jefferson said that marshall became the embodiment of all he despised in the judiciary. he wrote of marshall as a man with lounging manners and a profound hypocrisy, and then it just got better. [laughter]
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we actually start the marshall-jefferson whatever you want to call it well before marbury. we start it when alexander hamilton, he a broadway thing, proposed to solve the economic problems of the new nation with a fiscal plan, which included a bank of the united states. washington, as was his custom, whenever he had a difficult decision to make would call upon his cabinet for their advice. when the plan for the bank of the united states can't of, he asked both jefferson and hamilton to submit papers. jefferson said you cannot do it because there is nothing in the constitution that specifically gives the federal government the power to establish a bank.
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according to jefferson, where a phrase will bear in the routine of means, once you give that which will allow some meaning to the other parts of the instrument are not that which would render all the others useless. as to the necessary and proper clause, it did not give congress a free hand. the constitutional congress, he claims, had not been intended to give congress broad powers but too laced them up straightly within the enumerated powers. in other words, the federal government had very limited powers. it could only do that which the constitution specifically said it could do and nothing else. hamilton wrote what many consider one of the great state papers in american history, his memorandum on the bank of the united states in which he said that -- he actually felt just the opposite, to make it brief. he said that congress can do
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everything except that which is expressly forbidden. complete opposite of jefferson. by the way, i always use this example as well as the proclamation of neutrality when i am teaching a class to make this point. the originalist do not know what they are talking about -- the originalists do not know what they're talking about. you have two men who were at the constitutional convention. jefferson had been kept up to date by madison, so here it is in 1791 four years after the constitutional convention and the people who are there do not know what the document means, so therefore, 200 years later, to try to figure out what original is and is i think it's stretching a bit.
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we also get this at the time with jefferson and how they argued at the time of the neutrality process. the reason i bring up hamilton's thing is because -- not that marshall cribbed it, but essentially, hamilton's document on the united states is the basis for mcculloch versus maryland. all the arguments and there are repeated, and there again, we get the notion that everything which -- that the government can do everything except that which is specifically for bid and -- for bid -- forbidden. if you stop and think for a moment, the united states would not be where it is now had we adopted the jefferson view. if you look around us today, look at all the things that are not mentioned in the constitution. the internet, cell phones, railroads, cars, airplanes, big pharma. think of all these things, none of which are mentioned in the constitution.
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notes from the constitutional convention indicate that there is a reason it is not mentioned. because, as someone said, chartering a bank and any other thing is part of the sovereign powers of the government. this is a constitution. we do not have to list all of those things. but jefferson, throughout his life, maintained this extremely narrow view of what the constitution could do. and here's constantly complaining his cousin is making a mockery out of everything. in marbury versus madison there is a political aspect which has to be kept into account. it is true that technically one
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of the things they taught us in law school is jurisdiction. with dred scott is wrote jurisdiction is the last thing but they want to make a point. but marshall knew it is if he decided in favor of marbury -- jefferson would not listen. if he decided in favor of medicine it would look like the courts caved. he does something very clever. what he does is he hits the first two things. is there a right to it? and then he reams jefferson for not doing what he should, he can't do it because of judiciary act. jefferson was a very smart politician. marshall had actually out politics have. the same thing would happen in 1937 after the court bill fell,
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robert jackson said to roosevelt that the old man got the best of you. it helps to have somebody on the court who has good political sense of how a government should be set up. there is a another thing jefferson did not like. that was the notion of an idea from the court. in great britain opinions were delivered with the judge on the panel writing a opinion. even if they came to the same conclusion they may have differing views. this was done in every single case trade any of you who have ever tried to reach -- read a opinion on a case to find out
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what the opinion of the court is -- it is very frustrating. oliver owsley started the practice of a unitary opinion of the court but marshall is the one who really turn it -- turned it into a mainstay. sometimes you read the opinion and they are four or five opinions. still the ideal is to have a single opinion of a court. some of you may recall that after mr. roberts when he was up for his hearing he said i want to get unity on the court again. he may have been the only one who did not understand what a delusion that was. now, even if we have differing opinions, the person who delivers their opinion does not have to be a chief justice. it can be anyone of the nine
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members of the court. during marshall's time and there is a whole debate about this because the records are not clear. marshall usually gave the opinion even if he did not write it. we do know he wrote a very famous one. the ones we are talking about are quite clearly marshall. jefferson was extremely annoyed by this. he thought justices should write periodically so we know where they are. everything is held up in a conclave. what a see if i can get the exact words. a opinion is huddled up in conclave delivered as unanimous with a solid back we had says -- with a solid acquiescence of a justice by the turn of his own reading. i could not write that. that is what jefferson said. when he appointed marshal to the court he did so in the hope that
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there would be a republican voice and the court that would stand up. as a matter of fact i think by 1819 the majority of the justices were jeffersonian appointees. especially in those cases. jefferson had too much respect for separation of power to write to johnson and asked what you are doing, you are supposed to stand up and fight. john said they gave him a opening. he had written a absolutely terrible biography of one of the framers. he said this to jefferson which gave jefferson the option of coming back and after a rather tepid praise he alluded to why are you not standing up and doing this?
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johnson wrote back and said most of the time he is right. we also have some judges who are so lazy and inept. i think he was talking about washington's cousin who was not lazy or inept. marshall does all of the work. marshall had a powerful personality and a vision. i think that is important. he knew what he wanted, he needed to say a constitution was the constitution. if jefferson had only served his first term he would have been treated far better. his second term was a disaster essentially. while he is up there if you just look at his first term he was a great president.
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you have the louisiana purchase which by itself -- if john marshall had only served four years you would be a window. he served much longer than that. it was over this long amount of time that he built up a legacy that still stands today. i don't know if they have changed anything but the very first case we read was marbury verse madison. probably the most cited case because if i am not mistaken the very first thing you tell the court when you are challenging the law is the court has a right to determine constitutionality. the other cases also develop a body of law that i don't think has really been challenged in
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the sense of how it says the federal government should work. what the powers are and the role of a constitution in the national life. unfortunately some people do not have that. that is my political comment on the side. a friend of mine, kent neumeier, who has written the biography of the justices story -- one should look at the war between jefferson and marshall and indeed the war between the democratic and republican party. they occur in two stages. the first is during jefferson's tenure as president which kent believes marshall and the court one. i think that is fair enough. by jefferson's concerted
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campaign it was the effort to impeach a justice. it contributed to his success in consolidating judicial authority. the second and longer time according to cap, lasted from 1819 until marshall's death in 1835 at which case the court -- excuse me, don't you love it when pages to together. there we go. the court was no longer the republican check on jeremy marshall hoped it would be, jefferson feared it might be. i would tend to agree with the first part of his assessment that jefferson antagonism during
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those early years help to consolidate the authority of the court did. i would respectfully disagree with the second. the two men brought differing and complementary views of government and society. having the country follow one to the logical extreme it might have well slid into the sides of democratic chaos that like france for over a century. if it had followed the other to the extreme it may have tended towards a aristocracy dominated by merchant princes. no other -- neither man would have found either of these extremes palpable. despite jefferson suggestion that liberty needed to be watered by the blood of tyrants
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from time to time he would have preferred there would be no tyranny at all. while hamilton would have certainly found the aristocracy comfortable, john marshall was instantly a member of the virginia aristocracy believed in a democratic government. the debate they started, although it pales from time to time, most constitutional scholars would say marshall's view was of a expansive view of the constitution. we still get the jeffersonian view coming up from time to time. some of the late justice antonin scalia view look like they came from some of jefferson's writing. for the most part i think that the court and the country
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benefited from marshall's interpretation. that the constitution is like close it needs to be altered from time to time to fit. we have gone without question too far in one direction or too far in another from time to time. for the most part, the court has been a stabilizing influence. for all of the writing that was done on the counter majority view, for the most part with few exceptions the american people have accepted what the court has said. even when what it has said has not been well. i think that was john marshall's legacy that has played a great part. thank you. [applause]
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>> commentary first. i have a memo on the national bank. marshall later moved along the path that hamilton moved with the national bank. it was in a different register. he said jefferson's argument as the secretary of state has a radical error. he has a construction within himself, when it comes down to is this. when the federal government can do this it should be contingent on the same powers being exercised. it should be contingent on that. it must be the same today. i am going to columbia, i will give you the authority to buy a car but i would rather you take a taxi that contingents whether he takes a taxi. that is compulsory. what is that contingent is his ability to buy a car.
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this is a powerful position. hamilton said it is not conceivable that the necessary and proper clause can form a cooperation -- corporation to form the police in philadelphia. hamilton said whatever is not precluded of the federal government -- there are two forms they can reach with matters of inheritance and land. as soon as you have any discrimination based on race or gender we can do it. one other thing, marshall lifted the curtain a bit in this case and said what if we had a legislator that would dissolve marriages without the consent of the party?
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that is under the contract clause. we don't have to reach that one, then dread scott and harriet would be married. they would go back to missouri where they are not allowed. here's later you find cases in the 1980's of dissolving makes racial marriages. just like a liberal judge in washington who said black parents are associated with the lower caste. suddenly there is nothing more corporate to local law than the reassignment of children in custody.
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what is being shown here is that even though they speak so readily of local law and running afoul of the principles. if these things can become the business of federal courts they become the business of the federal government. how did abortions only become here, the court ticket under its reach and other constitutional reach it became the business of the federal government. anyway, we have a fine audience gathered. would you identify yourself?
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>> my name is stephen, a wonderful series of talks. no one directly pointed out that jefferson is noted for requiring a territory even though there is nothing in the constitution -- >> i was pointed to that way. >> all of us know the names of the half-dozen cases that marshall presided. i know of no comparable work of when he lost his majority on the board and in the last dozen years of his life issue dissent. i don't know the second part of the program will go into this. i have never heard any of his dissent cited. i am wondering are there any of this that are worth re-examining now?
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>> i will say if i am not mistaken there are not many. over a 36 year time he suffered the fate of most dissent, there was only a handful of cases that achieve a life of their own. the rest are done. i think those are rightly forgotten. what is even more interesting is joseph story trying to dissent marshall and the early chief justice. if he were alive he would say this. i think the answer to this, time passes by a nobody remembers that. >> the most important is a case which was decided by washington mainline. he was quite a competent judge,
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the court interpreted the impairment of contracts clause two of quiet olympic contracts already made. not have prospective limitation on what the state could do to limit certain kinds of contracts that would come up. marshall gives a very powerful dissent there. because the court did not give the impairment of contracts clause a prospective bite they had to look for some other way to protect contracts against arbitrary restrictions by the state and have you process in the late 19th century. his basis was with the impairment of contracts clause been given, he would have given a moderate prospective that he would have not had the problem in the late 19 century. i will just leave that as it is. >> that was a bankruptcy case.
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isn't there a dissent than any other case? >> it was either would start or cherokee nation. but you don't remember the names of the cases. anything else? >> thank you, i am hermit. executive director of this national association. the constitution does not say that the supreme court can hold the law unconstitutional.
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i think the justice was -- it was appropriate for marshall to say that the court did have that power. since the constitution is silent on the issue, with the executive and legislative branch could they take the position that they also had the power to determine if a statute is unconstitutional and perhaps get together to overrule the position of the supreme court? >> yes, they could say that. they would probably be wrong. first of all, the question of judicial review was presumed clearly and that case of the constitution. it was presumed by madison when he articulated the bill of rights in a non-pottery way.
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many of the ways that he looked at to draw his substance of what the bill of rights would become would say something like the freedom of the press is necessary for people. therefore it ought not to be a bridge. that sounds like it is pointing to the legislature same please do not do it. madison said shall not. because he intentionally wanted that -- everybody knew he wanted that to make it judicial determination. even the most articulate it says explicitly and his letter by the supreme court is going to be dangerous. it is because they will have the power to review acts. they are asked which cannot stand in congress. it will be supreme and superior i think it is the nature of the rule of law that the judiciary
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does have a superior position in articulating positions. principles that do have a wider slave. otherwise you will have the rule of law being chopped up by three different branches deciding what they want to do. let me give you a example. the president takes a oath of office to defend the constitution. the president and a number of incidences have a skewed enforcing laws that congress has passed. even though he is under the command to execute law. there are three ways the president has justified doing such a thing. one which is the most defensible is that the law has exclusive
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power of this. with the nature of executive power it requires that it be unexamined double except -- there would be certain discretionary areas that are his and his alone. to doing the commander and chief power of pardon. you cannot tell the president what to do. i think he is right to do that. a second area is where the president -- this is where i differ. the second area is where the president thinks a law is unconstitutional. well, my view is the already had a bite of that apple. the already has a veto power. the constitution did give you this. you took that of an you take the constitution as the law has been articulated. the third is when the president does not like the policy like immigration or some other area.
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that gives the president a finite feet up. in the end even though the supreme court has abused their notion of being arrogant ultimately i think the judicial statement has to be the dominant one otherwise we will rule -- lose the rule of law. >> on the very first day i teach a law course i talk about what i refer to as the architecture of the constitution. when you look at article one that is brought and enormous, it was all the power of congress with what you can and can't do. it made it very clear to me that the framers really intended the legislative branch to be the dominant branch. article to which deals with this is much shorter. they have a two things, it meant
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different things of that time. george rogers clarke tombstone said he was commander in chief. i am a clear who means what. the shortest of the articles is article three. the reason for that is because many of the people were framers. -- most of the framers were lawyers. that was one part of the british government that they did not have any problem with. there had already been judicial review in the court prior to 1887. -- prior to 1787. they knew that was the power of government. finally there is a supremacy clause, somebody has to interpret it. that somebody is the supreme court.
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so, i think that even though judicial review is not necessarily listed per se it was understood. it was understood both by the federalists and by the anti-federalist. this is what a court did. they may not have done it often, but they did do it. >> even though jefferson was with a man he would have appointed criticizing the marbury decision initially. rose said he has come around to accept judicial review because it is part of the law of the land now you -- now and it was inevitable. he agreed it was part of the necessary structure of deciding cases. >> i guess i should weigh in. lincoln said national policy can
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be made with a private action and the rest of us need to overturn it. lincoln's understanding was that the supreme court decides this we are not going to form a mob we will respect the outcome of the court with those litigants. if we are not persuaded by the deeper principle that we cannot be citizens. we are not of likes to act on that same principle. with those two cases i mentioned how they came up with the first phase of the administration. a blessed and tonight to study because the supreme court has spoken. therefore they cannot carry passports abroad.
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they denied a patent for the same reason that he can't be a citizen and he cap can't carry a patent. what you have here are two agencies of the federal government with cases utterly different applying what they took to be the principal of the dred scott case and the circumstances. with the lincoln administration question both decisions. they issued the patent and you have the attorney general saying this administration that any black person is a citizen of the united states. then they proceeded to discuss this legislatively with congress. conversely them they challenged the court to take a second look at examine it again.
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just a point out, it has been done. it was done on the liberal side. with the democrats and the supreme court with the legislative veto back in 1982 or 83. this legislative veto was central to the war powers act. the democrats and liberals cap connecting -- kept in acting that. this would be a case of immigration. the legislative is like that. i think this is part of the ongoing conversation but no one actually gets the last word. among those branches. >> i will have the next to last word. between prescott and other kinds of cases -- first of all even with prescott -- dred scott lincoln said we need to get this to overturn.
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you can always do that. dred scott was a different kind of rule it went to the heart of what the compact was. it upset everything in the constitutional compact and the constitutional bargain. if that was wrong namely and allowing congress to legislate broadly which the minority so they should not have that power that does not go to the heart of the compact, right? now they have to get another case which they would later. dred scott is different, you can't use prescott as a example
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of a kind of case that allows for every branch of government to veto the supreme court. that was over and above any kind of ordinary case. in legislative veto is wrong, what is wrong up legislation is that in bargaining over at the executive said they will observe it as a matter of comedy. comity.tter of we don't have to observe it as a matter of law. so the political process allowed us to get together again. >> again, on the other side with his constitutional question here, our friend who was arguing the obamacare case. it was the same case by daniel webster picked up by marshall. to impose on people a contract
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that they did not want. telling them to buy medical insurance runs the end power of the national government. that is as a contract that they willingly made. with that principle it will be true even if there was no constitution. again and again they are moving to this level. you all may recall that johnson said this thing depends on introspective law. that is something only a deity could have. frank, identify yourself. >> during his presidency madison's position on the constitution and this
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interpretation was similar to that of jefferson during the bank issue. the question i had, is it accurate to characterize madison as having changed his position from what it was during the constitutional ratification days where they are authorized so forth? the question is, if he substantially changed his view, lower his views to this position. with the overall views of james madison.
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>> would think what you have to keep in mind is little to me, as he was called, was no dummy. when he learned his during wartime, the government needs a bank. it was not so much there is this theoretical and philosophical discussion. the government needed a bank. it was that simple. so he says, we have got to have it. party ineven his congress recognized all the difficulties of trying to run a war without a bank. went andnow if he ever said he changed his views. historians say he learned from bitter experience that the government needed a bank. >> that was the second flip back to having the bank. >> marshall and hamilton got it right in the first place. we have run out of time.


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