“John Marshall: The Man Who Made the Supreme Court” An Interview with Richard Brookhiser

brookhiser headshot

 Richard Brookhiser

In May 2019, JWI’s Deputy Director Garrett Snedeker and Intern Josh Hiero shared a discussion with Richard Brookhiser, author of the book John Marshall: The Man Who Made the Supreme Court (Basic Books, 2018). Brookhiser is an author and a senior editor of National Review.

Below you may find:

A link to Brookhiser’s book, which is available for purchase from Amazon.

A transcribed version of the interview, edited for clarity and length:

Garrett: Hello. My name is Garrett Snedeker. Welcome to the James Wilson podcast. Today, we’re joined by Richard Brookhiser. Richard is the author of many biographies of the American founders. Most recently, he has written a biography of the great Chief Justice, “John Marshall: The Man Who Made the Supreme Court,” from Basic Books. Richard, it’s a pleasure to be speaking with you. I’m joined by one of our interns for the James Wilson Institute, Josh Hiero, and we’re just overjoyed to be able to speak with you. Before we dive into our questions, we noted that in your acknowledgements section, you mentioned one of the close friends of our Founder and Director Hadley Arkes as one of the influences in your writing your this book, Michael Uhlmann. And so before we get into the book itself, we were hoping you could tell us a little bit more about how our dear friend Michael was a help to you in writing the book.

Richard Brookhiser: Well, he was very helpful. He steered me towards the best of the Marshall scholarship. I never even went to law school, so I was coming to this from the outside, and that’s an obvious disadvantage. I think it’s an advantage, because it means that I am looking at everything fresh and I have to make sure that I understand it myself, which helps me in explaining it to most of my readers, who were also going to be coming to it as non-lawyers, non-com law professors. But that means I needed some helpful Indians to just guide me through the Marshall scholarship.

And Michael Uhlmann was certainly very helpful, steered me towards the best books. There are not a lot of Marshall books out there, which is one of the reasons I decided to do him. He seemed to me relatively underdone considering his importance. And there are excellent books on him, but it’s not like someone who’s been president, for instance, or Benjamin Franklin or Alexander Hamilton even before the musical. There was just a lot more about all these guys, and relatively little for the great Chief Justice. So that seemed like a free field, and Michael Uhlmann was one of the expert helpers who gave me a map of it before I plunged in.

Garrett: Excellent.

Josh: I think your book is very clearly written to an audience that is familiar with Marshall, but you don’t really take for granted the reader’s knowledge. Would you be able to tell us a little bit maybe about the narrative framing process that you employed in the book, and why you specifically made decisions to focus on Marshall and his relationships? And what is it exactly about his personal connections that served as a backdrop for discussing Marshall’s understanding of law and his politics, overall?

Richard Brookhiser: Well, I thought the two personal relationships which were most important to his public career were first his early contact and his almost boundless admiration for George Washington, and then second his lifelong animosity with his second cousin once removed Thomas Jefferson, which was returned in spade by Jefferson. Marshall volunteered at the age of 19 for the Virginia militia in 1775, this was as soon as the news of Lexington and Concord had spread throughout the colonies. And then the following year, he joined the Continental Army. And he was in three battles that Washington commanded, Brandywine and Germantown in the fall of 1777, Monmouth Court House in the summer of ’78, and between Germantown and Monmouth, he was at the winter encampment of Valley Forge, where Washington was also in command.

So he saw the commander-in-chief in victory, he saw him in defeat, and he saw him in the very trying winter. And his conclusion from these first-hand experiences was that Washington was the man who had guided us through the revolution. He was the man who saw it through, who made it a success. And he never forgot that. It was imprinted upon him, when Washington at the end of the war returns his commission to Congress, in December of 1783. Captain Marshall writes his old school fellow, James Monroe, and he calls Washington the greatest man on earth. And that was an opinion he would never change. And he would follow Washington’s lead throughout the rest of his life.

When it becomes a question whether we need a new Constitution in 1787, ’88, he is one of the lesser followers of Washington and pushing for the ratification of the new Constitution. A decade later, Washington summons him to Mount Vernon to basically order him to run for Congress, this is when our first two-party system has already developed. The Federalists of Washington, and Adams, and Hamilton, versus the first Republican party of Jefferson and Madison. And again, Marshall follows Washington’s lead. He is a Federalist, and he agrees after some persuading to run for Congress. And he is the congressman who tells Congress a year later that Washington has died, and he calls him, “First in war, first in peace, first in the hearts of his countrymen.”

And this is an attitude that he would keep for the rest of his life. The only book he ever writes is a five-volume biography of Washington. The policy preferences that he has as Chief Justice are those of the Federalist party. He believes in a federal government in which in crucial respects, the federal government has supremacy over the state governments. He believes in the commercial revolution that Hamilton envisioned. A lot of that, the Hamiltonian vision is sustained by Supreme Court decisions that Marshall issued. So this is the lifelong effect of his encounter with George Washington.

Now the other important man is his cousin, Thomas Jefferson. And the animosity, the animosity begins in the Washington administration when Jefferson is Washington’s Secretary of State. It exists when Jefferson is struggling with Hamilton over Hamilton’s financial program. Jefferson is very skeptical of it. He is skeptical of it on the merits, he also thinks it’s unconstitutional. They have such a thing as the Bank of the United States. Hamilton argues brilliantly that this is an implied power under the Constitution, and this is reasoning that Marshall himself will echo in 1819, when he decided McCulloch vs. Maryland, which relates to the Second Bank of the United States. What really turns him against his cousin is Jefferson’s attitude to the French Revolution.

Like the other members of Jefferson’s party, Jefferson believes this is an unalloyed good thing. He never turns against the French Revolution, even through the Reign of Terror. The only point at which he finally abandons his faith in it is when Napoleon takes over. But for that first decade of the French Revolution, from 1789 to the end of the century, Jefferson, Madison, his party, they are all in for the French Revolution. And they seem to Marshall to be as patriotic towards France as they are to the United States, if not more so.

And this is to Marshall, unacceptable. He believes that Jefferson is lacking in proper patriotism and then he also feels he’s been a disloyal Secretary of State to President Washington. Because although he carries out Washington’s neutrality policy officially, he’s also trying to undermine it on the side. And these are unforgivable offenses to Marshall, both because he’s a patriot and kneeled during the Revolution and he is such an admirer of Washington. So after the 1790s, for him, Thomas Jefferson is permanently in his black ledger. There is no possibility that Jefferson can ever come back for him.

So those were the, you know, those were the personal relationships that I saw ramifying through Marshall’s life. Now, the other structural decision I made, I mean writing a biography is, there’s something very easy about it, because they all have a similar shape. There’s a person who’s born, and then he does stuff, and then he dies. Right? That’s the structure, you don’t get away from it. But the one modification for this particular book is that in Marshall’s most important career, which is as Chief Justice, this is the last more than a third of his life. 34 years from 1801 to 1835, where he is Chief Justice. That career is memorable largely because of the number of landmark decisions that he hands down, and that his court agrees with.

So, these cases are very important, and each one of them, I realized is a short story. They only come to the Supreme Court at the end of their course. That’s when they’ve, you know, the parties have been fighting about whatever it is. They go to court, it comes up through the lower courts, finally it arrives at the Supreme Court and the Marshall court decides what it decides. And the justices are interested in that, they are interested in the arguments that are presented to them. Now, of course there’s always politics swirling around a lot of these cases, and they are also aware of that. But they come in at the climax of an account of a story.

Garrett: Right.

Richard Brookhiser: Vivid to the reader and to me, I decided to, for each one of these cases to go back however far that would be to catch the story at the beginning of it. And sometimes, this meant going back to colonial times. The obvious example is Dartmouth v. Woodward, and this is a, that case gets decided in 1819, and it’s a fight over the governance of Dartmouth College. But the story begins before the Revolution when Dartmouth first gets its charter from George III. And the case will be decided based on the language of that charter and the structure that’s set up, and then Marshall’s decision that this was a contract, and therefore something that the Constitution prevents the states from impairing under Article 1, Section 10. But so I take it back to the very beginning and then carry the story on. And similarly with, you know, with all the other cases.

The Cherokee cases, well we have to start with what were the relationship of the Cherokees with the United States up to the point where they get in legal trouble? Gibbons v. Ogden, the steamboat case, or why did we have steamboats in the United States? Who invented them? When and how. How did this monopoly that’s being challenged in the case get established in the first place. And you know, it makes the story more clear. It’s also a lot of fun. Sometimes they’re real characters involved in these cases, some of the back story is pretty jaw-dropping. Fletcher v. Peck-

Garrett: Sure.

Richard Brookhiser: Which decided by the court in 1810, this is another contract case, really the first important one. And that begins with a crooked land deal in the state of Georgia in 1795. The state of Georgia is broke, they sell 35 million acres of land for a penny and a half an acre to four land companies which were formed for the purpose of taking advantage of this sale. And it turned out that every single member of the Georgia legislature that approved this was bribed.

The going rate for their vote was $1,000 and one guy took only $600 and he said, “Well, I wasn’t greedy. That’s why I passed on my extra $400.” I mean, it’s entertaining you know, and it should be entertaining, it should, I hope it does entertain the reader, but these are also, you know, it also shows how important all these cases are. Because people don’t go to court over nothing.

Garrett: Right.

Richard Brookhiser: You know, people would rather not do that. Most of them. They go to court either because they really want something or they’re really afraid of something. You know, they’re afraid of being cheated, they’re afraid of going to jail, and in the case of Aaron Burr, his treason trial, he would have been hanged. You know, if he’d lost, that was the penalty for treason. So he was fearful of his life, and you know, then on the other hand people want money. Jefferson thought Burr was a traitor. He wanted him punished. So they’re powerful motives on either side. And I wanted to be able to capture not only the entertainment, but the drama involved in every one of these cases.

Garrett: Well, we envisioned this conversation jumping around the book a little bit, and I hope we get to talk about some of those cases and the figures and the drama as well. But as this is the James Wilson Institute Podcast, and we have a nice, robust constituency of lawyers, judges, and clerks to judges among them, we thought we would first focus on the most general question, of how Marshall approached his role as a judge.

Richard Brookhiser: He approached it I think, I’ll use the word conservatively. You know, not trying to invoke either side in either current political debates or the political debates of his time. I mean this literally in the sense that as judge, you deal with cases. And that’s all you deal with. And what’s interesting to me, before Marshall even gets on the court, in the decade or so that the Supreme Court existed before he got the job of Chief Justice, there were several instances where the President or Congress asked the Supreme Court to do other things. Now, asked it for advice on some treaty question or asked it to supervise the pension requests of Revolutionary War veterans, there were several instances. And in all those instances, the court said no. You know, we’re not going to be a Jack of All Trades, our job here is to be the Supreme Court for cases that arise before the federal judiciary. That’s what we do, and that’s all we do.

And that informs Marshall’s behavior. He you know, he sits there with his colleagues, five of them at first and then it’s later, they become six, and the court increases from six to seven justices. And they wait to see what lands in their laps. Now, you know, they’re not blindfolded here, they are aware of what’s happening in the legal universe and they’re certainly aware of the politics that swirls around them. But they, he and they are there to decide cases. Now, the innovation that he’s often credited with, and this is in his, you know, his first monumental case, Marbury v. Madison in 1803, this is the first time that court strikes down a portion of a law passed by Congress.

And this is, you know, this is rightly considered a landmark decision. I wonder if it isn’t a little overemphasized, because Marshall wasn’t making up the doctrine of judicial review out of whole cloth in 1803.

Garrett: Right.

Richard Brookhiser: This was already a concept that people understood. It was already out there, Alexander Hamilton had written about it in the last of the Federalist Papers where he covers the judiciary at the end of the series. Marshall himself had spoken about it at the Virginia Ratifying Convention in the summer of 1788, he was one of the delegates to that convention, which was going to approve or disapprove the new constitution for the state of Virginia. And he was pro-Constitution, and then he gives a speech. One of the speeches he gives is on the judiciary and in the course of that speech, he does expound the principal of judicial review.

Garrett: Mm-hmm (affirmative).

Richard Brookhiser: And there was even before Marshall even gets on the court, there was a case in the 1790s involving the constitutionality of a tax on carriages. And now it turned out the court decided that this tax was okay. But they were certainly in a position, since the question came up, to have gone the other way. So you know, the constitutionality of a law had appeared as a question before the court, before Marshall even gets on the court. So yes, Marbury is, it is an important decision. It is the first time it’s done. And then it’s very rarely done thereafter. I mean, the most famous second time it’s done is Dred Scott, 1857. This is decades after Marshall has died. And a judge pointed out to me after my book came out that there were a couple of cases that the Marshall court decided in the 1820s having to do with who owned, it was either the shoreline or the islands in Mobile Bay. You know, was it still the federal government or was it the state of Alabama.

This was after it’s become a state and the court, there had been a law passed by Congress implying that the federal government could still dispose of these lands. And then the court said, “No, you can’t do that, it’s now a state.” Alabama is now is state, therefore it has control over these lands. So the point is, there was another instance of the court overruling a portion of the law passed by Congress, much less famous or notorious than Dred Scott, but my only point is, this wasn’t happening a lot. But it was a principle that was already understood, and Marbury is famous because it’s the first time it’s actually made real.

Garrett: Yeah, I see it as twofold. The misunderstood Marbury as being twofold. One as you articulate, the misunderstanding that the case established judicial review. It merely articulated how it was always there in the Constitution, under our Constitutional scheme. But the second is this strange misunderstanding that judicial review means judicial supremacy, and how when the court decides a case, it is as binding as if a Constitutional amendment is passed through the power and logic of the supremacy of the Supreme Court within our judicial system.

Maybe you can talk a little about why there exists that confusion?

Richard Brookhiser: Well, certainly other branches have challenged that notion that you just articulated, in Marshall’s own lifetime, Andrew Jackson famously said that he as president had as much right to decide on the constitutionality of laws as did the Supreme Court and as did Congress. He was sort of implying a tripartite responsibility. You know, later on his Chief Justice, his Attorney General at the time, later Chief Justice Roger Taney, explained in a letter that Jackson was not proposing to say that he as president could overturn a decision based on a law that he had, that the president, that Congress had passed, and the president had signed, and that a Supreme Court had interpreted.

This was Taney, you know, trying to back off a little bit. And I think he was doing it partly because he was Chief Justice then at the time. But anyway, Jackson had said that, Lincoln raises this very question in his first inaugural address, and here he’s got Dred Scott in mind. And there he said that, “Well of course the Supreme Court’s decision is always binding on the parties before it.” So for instance, in the case of Dred Scott, they decided he’s got to stay a slave. All right, Lincoln is willing to accept that as far as Dred Scott goes. But said Lincoln, does this mean this is a precedence that binds in all other cases? And Lincoln goes on to say, “Well there are two kinds of Supreme Court decisions.” There’s subtle ones and there are erroneous ones.

Garrett: Right.

Richard Brookhiser: All right, so what’s an erroneous decision? And he has a number of criteria which are rather startling. He says, you know, if it has an obvious political bias that makes it erroneous. He says, if it’s not unanimous, that makes it erroneous. Well, that gets rid of a lot of Supreme Court decisions.

Josh: Puts a lot on the table again.

Richard Brookhiser:You know, like almost all of them. I mean, even in the Marshall Court, which had a very high percentage of unanimous decisions, not even there are all the great cases unanimous. Dartmouth v. Woodward is one that isn’t. So, and yet, you know, neither Jackson nor Lincoln proposed any sort of law based on these speculations of theirs, or any constitutional amendment based on these speculations of theirs. There was a senator in Marshall’s lifetime, Richard Mentor Johnson of Kentucky, later Van Buren’s Vice President. He proposed a number of constitutional amendments which would curb the pretensions, what he felt were the pretensions of the Supreme Court.

And one would give the Senate a sort of a veto power over Supreme Court decisions. They could be appealed to the Senate. Others limited the tenure of justices. Others made them, other amendments made them electable. You had a series of these, nothing came of them. They never even got out of Congress. But at least he was trying to, he was trying to change the Constitutional, Constitutional structure. So but again, as I said before, Marshall, you know, Marshall and his court were there to rule on cases. And that potentially leaves some questions at the margins, right? Because not everything is a case, in fact most things the government does are not cases. They’re, you know, laws are passed. The presidents see that the laws are properly executed. All sort of policies are considered and followed but don’t take the shape of legal cases.

So yeah, there is room for dispute and the disputes will just go on. I don’t see any, I don’t see any way of resolving it. Now, you know, that’s just my opinion as a recent Marshall biographer. I’m sure other legal minds will tussle over that for a long time.

Garrett: Sure. I can think of numerous occasions in which you have judges who are just absolutely you know, distraught because they feel like the case that’s brought before them, at least the litigants in the case, that they’ve only been set up by two warring legal interests who want the court to take up a larger question that the two named litigants just have such a small stake in. But really it’s these profound questions that have yet to be settled. And so you’ll read these opinions in which the judges, you know, they certainly pull no punches in saying why the litigants were perhaps guided into this whole process by interests that go far beyond their own. That’s no surprise.

Richard Brookhiser: Mm-hmm (affirmative). Well, and one of the great Marshall court cases, Fletcher v. Peck, was clearly an arranged case. This had to do with that land sale by the state of Georgia and both Robert Fletcher and John Peck, they were land speculators, and the suit that they engaged in, Fletcher sued Peck, it was designed to settle every question at issue. And Marshall himself commented on this, when the case first appeared before the court in 1809. He was overheard to say, “Well, this case seems designed to settle every point that’s still unclear about this Georgia land sale.”

Well, you know, people have been doing this for a long time.

Garrett: Well, we’re grateful you brought up Fletcher v. Peck, because that case was a fine example of what we would consider a jurisprudence of natural law, on Marshall’s part. And so actually, the opportunity that you and I first had a chance to meet was when I asked a question at one of your book talks on the role that natural law played in informing the work of Marshall on the court, and so for our listeners, if you might expound upon that.

Richard Brookhiser: Okay, sure. Well, where Marshall seems most often to raise natural law is in contract cases.

Garrett: Right.

Richard Brookhiser: He does this in this case we were just talking about, Fletcher v. Peck in 1810. He does it again a bit in Dartmouth v. Woodward in 1819. This was another question of a dispute over a contract, which he says is what the charter of Dartmouth College is. Dartmouth was granted a charter in 1769, it said there should be 12 trustees, and a president. The trustees could pick the president, and they could pick their successors. So it was a self-perpetuating organism. And then after the War of 1812, for political reasons, the state of New Hampshire passes a law which adds new trustees picked by the state, and adds the Board of Overseers above the trustees. And they change the name of the college to Dartmouth University.

And the reason they do this is that Dartmouth College was a bigoted political organization. I mean, they were all Calvinists, they were all Federalists. And the Republican party which now controls the state of New Hampshire thinks this is a terrible thing. They want to open education to all points of view. Now who could disagree with that? That sounds like a wonderful thing. So they write this law to change the structure of Dartmouth College. And the problem is that the old regime at Dartmouth as they say, “Well no. You know, we don’t want to have a college open to all points of view. We want our college to be open to our points of view and our charter gives us that power to do that.” So they sue for the, you know, the seal of the college, and the original charter of the college and so on. So it becomes a case, goes to the Supreme Court. And Marshall ruled in their favor, such as his respect for contract. Now, Marshall seems to be so, he seems to me to be so concerned about this based on his experience of life between independence and the ratification of the Constitution.

Now from 1775-76 on, the states are now independent. The colonies are now states, they’re independent. They don’t have to answer to royal governors or London anymore. They’re on their own. And from Marshall’s point of view, there was just a chaos of law making. And he was a state legislator during this period. So he saw it firsthand. And you had legislatures that practiced rotation or term limits. You’d get a new crop of people every time there was an election. They’d undo the laws the last crop passed, or they’d change them. It was just going back and forth and back and forth. And Marshall’s phrase was that it destroyed confidence between man and man. What he meant by that is, people didn’t know where they stood.

They couldn’t count on anything. They couldn’t plan on anything. Because if you, you know, if you made some sort of deal or arrangement with an eye to what the law was at that moment. Well then, the law is going to change. You know, and there you were. And so you were either afraid the law was going to change, or maybe you hoped you could get it changed to benefit yourself. You know, to get you off the hook somehow. And it seemed to Marshall that everything was at sea. And this was one of his main reasons for wanting a new Constitution, something that would reign in this reckless law making on the part of the state. And he calls Article 1, Section 10, which includes the contract laws, that says it forbids the states from impairing the obligation of contracts.

Garrett: Right.

Richard Brookhiser: And he says he calls that, in Fletcher v. Peck. And I thought this was so audacious, he calls this a Bill of Rights for the people of the state.

Garrett: Mm-hmm (affirmative).

Richard Brookhiser: Now, you know, when we think of the Bill of Rights, we think of the first 10 amendments. And we think of you know, freedom of speech, freedom of the press, no establishment of religion, right to keep and bear arms, you know, no unreasonable searches and seizures, we think of those as, that’s what we think of as the Bill of Rights, and what the average person would say is the Bill of Rights. But Marshall is saying, “No, before these amendments were even passed, there was already a bill of rights in the Constitution. And one of its provisions was the contract clause.” You know, forbidding the states from impairing the obligation of contracts. In other words, if you sign your name to it, if you put it down in black and white, there it is. And you have to follow through.

And it doesn’t matter if it’s a legislature selling 35 million acres for a penny and a half, or it’s George III granting a charter to a college of Calvinists in colonial times. Or later on in Marshall’s life, a treaty of the United States signed with the Cherokee Indians. Those are deals and you’ve got to honor them. And this is the closest he seems to come to looking at natural rights in his juris prudence. Now, he does it because it’s in the Constitution.

And he even, you know, he even makes a distinction in Fletcher v. Peck. He says, he says that for the state of Georgia to undo the land deal that it signed, it would be unwise and it would be unjust.

Garrett: Unjust, right, right.

Richard Brookhiser: Unjust, that means it violates, it violates natural law because you can’t just make a deal to do something and then take it back. That is unjust. But then the third reason, his killer reason is that the state of Georgia is not an independent entity. It belongs to, he calls it an empire, which has a Constitution, whose supremacy all acknowledge. And that Constitution has Article 1, Section 10 which forbids the states, including Georgia, from impairing the obligation of a contract. So he’s, you know, he sees this as a natural rights principle. He [inaudible 00:34:48] on the basis of it because it has been inserted into the Constitution in Article 1, Section 10. And I think that’s an interesting point to bear in mind, is that yes, he’s aware of natural rights, he aware of the laws of nature and the laws of nations, but as a judge, as the Chief Justice, he can only rule on the basis of those great and good things if they are reflected in the Constitution.

In the Supreme Law that the people of the United States have adopted.

Josh: Yeah, so I’d really like to move the focus to the combination of this, the politics and judging. So Marshall was a deeply political man. And early on in your book, you do describe his great successes as a Virginia politician. Yet, while he was Chief Justice he did strive to de-politicize this court. But he faced constant political attacks from both the Jefferson and Jackson administrations. How do you think he was able to really stop these feuds from Jefferson and Jackson from ultimately undermining his court?

Richard Brookhiser: Well, he doesn’t win against Jackson. I mean, that’s the poignancy of the end of his life. And I think when Marshall dies, he’s feared that he’s failed. Part of that is he sees the tensions pulling the United States apart, he really does see something like the Civil War coming, you know, and it does come. He also loses to Jackson on the Cherokee cases, and he issues his decision, and it becomes a dead letter, approximately because the litigants abandon their case. The two missionaries in whose favor he has ruled do not ask the Supreme Court to inform the President that the law is not being executed.

So the whole thing dies and Marshall’s decision ends up being just a dead letter. But he does avoid any sort of final fatal clash with Jefferson. Now part of that, part of that is restraining some of his own colleagues. One of the first things that happens after Jefferson’s election, the new Congress, which is dominated by Jefferson’s party, the first Republican party, they pass a judiciary act in 1802 which cuts back the size of the federal judiciary. The Federalist party had expanded it, one of their last acts in 1801 in their lame duck period of dominance. And then a year later, the new Republican party trims it back. They get rid of new judgeship that the Federalists have created.

Now this is a question, because federal judges are supposed to serve for good behavior. No one has impeached and removed these men from office, they’ve simply gotten rid of their offices. And one of Marshall’s colleagues on the court Justice Chase, Samuel Chase, he says, “This is flagrantly unconstitutional.” You know, to take the job away from the man is the same thing as taking the man out of the job. You know, we should not let this stand. We should not accept this. And he wants the Supreme Court to get together privately, you know, to have a private assembly of the six of them to presumably, to protest this. And actually Marshall’s original inclination is to agree with Chase. I mean, he does think that this was unconstitutional power play by the Jeffersonian Congress. But what Marshall does, and this is very characteristic of him, he polls his fellow justices.

He asks the other four, “What do you all think?” And we know that three of them said, “Let it ride.” You know, just take it, we don’t know what the fourth one said. But we do know that it was at least 3-2, maybe 4-2. And so Marshall decided, “Okay, I will agree with my colleagues, and we will let the Judiciary Act of 1802, this provision of it, to be enforced. And too this also takes the form of a case, it’s called Stuart v. Laird, and Marshall rules on it in circuit. He lets the new, the Act of 1802 you know, ride and then it comes to the Supreme Court, he recuses himself because he’s already ruled on it. And the Supreme Court also says, “The question is at rest.”

So there’s an example of him not sticking his neck out to pick a fight with Jefferson and his allies. Now, some other times he can’t avoid it. Jefferson’s allies in Congress impeach Justice Chase a year later, for other reasons. Then they want … they do impeach him, and he’s tried before the Senate. And this I think, this was the time in his life when Marshall was the most alarmed. He thought that if Chase were removed from Office, he feared that the whole court would be cleared out. That they would just impeachment as a tool to get rid of all the Federalists and put good Republicans in their places.  And he writes a letter-

Josh: An existential fear at that time, justifiably.

Richard Brookhiser: Well yeah, there were Republican members of Congress, that impeachment was simply bad, that it simply meant, you hold bad opinions, we know men who hold better opinions, we want to get rid of you and put these guys in in your place. So and during this time, Marshall writes a letter to chase where he says, “You know, maybe it would be better to give the Congress a veto power over court decision.” Now this was an opinion that Marshall never has anything like before that moment, and never expresses anything like it after that moment. This is a measure of his anxiety at this particular moment. He’s so worried that impeachment will be used as a tool to clear out the Supreme Court, he’s even willing to let the legislature have a veto over judicial decisions.

Now, Chase is not convicted, the House managers of the impeachment bungle his prosecution. He’s very well-defended. So he is not removed from office and the threat passes. But that was a moment of high anxiety for John Marshall in 1805, this is when Chase is tried. Now then his other great head-to-head clash with Jefferson is over the treason trial of Aaron Burr. Jefferson’s first term Vice President after the election of 1804, Burr was not re-nominated by Jefferson’s party, Jefferson had long ceased to trust him. And then Burr embarks on his travels through the west, which no historian has ever completely figured out what he was doing, what he was up to. He said he wanted to settle Arkansas, he was also telling people, “Well, maybe we should invade Spanish Mexico and take Texas.” He also seems to have been telling people, “Let’s peel off the Western United States and we’ll make that and Texas Burr-istan.” Basically, you know, I’ll lead it.

You know, who knows what he was up to. He becomes somewhat opportunist. So you know, who knows what opportunities he was seeing. Jefferson very much thought that he was engaged in a plot to invade Mexico and break up the United States. And he tells Congress, you know, he tells Congress that Burr’s guilt is certain.

Josh: Yeah, that’s right.

Richard Brookhiser: Now this is before Burr has even been apprehended. That’s pretty out there for an executive to do. But anyway, so Burr is finally caught, he’s tried in the Richmond circuit. This happens to be Marshall’s circuit, so the Chief Justice is presiding over the first phase of this trial for treason. And it’s, again, this is a moment of high tension. Because clearly, Thomas Jefferson wants this man convicted and hanged by the neck until dead. I mean, he has just had it with Aaron Burr. And Marshall construes the law of treason very strictly. The Constitution sets a pretty high bar. You have to be either giving aid and comfort to our enemies, now we had no enemies at the moment, because we were not at war with anyone. So then the other option for treason is to wage war upon the United States.

And that has to be an overt act with two witnesses, or a confession in open court. Now, Burr is not ever going to confess, so they have to find two witnesses to an overt act of waging war on the United States. And the government assembles 140 witnesses who are willing to testify to what a bad guy Aaron Burr is, or you know, that he did this or he said that somewhere or other. But they don’t seem to be able to prove that he actually waged war. He was just floating down the Ohio and Mississippi River with like 30 or 40 guys, saying, “I want to settle Arkansas.”

And you know, no shots were fired. They weren’t charging him with plotting treason. They might have been able to get a conviction on that, but they overreached. They said he had committed treason. But there’s no battle, there was no fighting, there was no nothing. So the defense makes a motion to stop testimony early on and Marshall accepts the motion. And then the jury, you know, the very next day returns the verdict of not guilty, so Aaron Burr walks. And Thomas Jefferson is furious. But this is interesting about Jefferson. Jefferson can get very caught up in things, he can get very angry when he’s frustrated, but then he also cools off. I mean, he can, he doesn’t, you know, he just doesn’t carry on forever with it.

If he’s frustrated to that extent, you know, and he’s unhappy and he complains, and then he moves on. Andrew Jackson never moves on. Andrew Jackson will always go on to the death.

Josh: Yeah. So I think a lot of what you spoke on there really showed that Marshall did believe in pragmatism. I think this can especially be seen in McCulloch, where he articulates why a bank established by the federal government can’t be repudiated by a state. Now while this power, now this power was not enumerated but Marshall explains how it really could be understood from the Supremacy Clause and the logic of the Constitution. Kind of what we would describe as the natural rights basis for the document itself. What really held Marshall back from articulating these same natural rights in cases involving slavery? Because I know you mentioned that in your book as well.

Richard Brookhiser: Right, well the … the case that I focused on and there were a number of cases that came before the court involving slavery. The one I focused on had to do with the slave trade. It’s called the Antelope, after a slave ship that was brought into Savannah by a revenue cutter on the suspicion that it was a slaver looking to unload its cargo off the coast of Georgia or Florida, and indeed that’s what it was. It had several hundred Africans, that this ship had captured from other slave ships off the coast of what’s now Angola, and then brought over to the Western hemisphere, and they were trying to sell them. They went to Suriname, they couldn’t get the right price.

Richard Brookhiser: They came up to the United States and then they were captured. And this was after 1808 when the slave trade has been declared illegal, and it’s also after 1819 when it’s been declared piracy, which is a capital crime. So the question as it went up to the Supreme Court is who owns these slaves? And some of the slaves had been taken off an American ship, which means they should never have been there.

Josh: Right.

Richard Brookhiser: Right? Because the slave trade had, we have already illegalized the slave trade. So those slaves would be freed and sent to what is now Liberia. Congress had passed a law establishing a colony on the West African coast both for free blacks in the United States who wanted to go there and for any slaves brought illegally into the country.

Josh: Right.

Richard Brookhiser: Those should be freed and sent to Africa. But then there were two other categories of slaves, lawyers appeared representing the consuls of Spain and Portugal, because most of the slaves on the ships had been taken from Spanish or Portuguese vessels, off the coast of Africa. These two countries still practiced the slave trade. So where do these slaves go? Now, it’s interesting. The US attorney for Georgia, a man named Richard Wiley Habersham, argued consistently throughout this case which dragged on for years, that all of these slaves, American, Spanish, Portuguese, they should all be sent to Liberia, because we no longer recognize the slave trade.

Josh: Sure, sort of like an abolitionist movement done-

Richard Brookhiser: Well, in a way, yes. I mean, with respect to the slave trade. Habersham himself owned slaves, but he was dead set against the slave trade. What the courts finally ruled, what Marshall finally ruled, he dismissed the Portuguese claim. This was interesting because he said, “No Portuguese person has appeared in all the years this case has been going on. This you know, violates any, any notion of the value of this human property. I mean, if there was a legitimate Portuguese owner, why hasn’t he shown up?” You know, we’re talking about a lot of money, here.

And he implies, he strongly implies because the Portuguese claim was bogus, it was a supposed Portuguese ship, it was really American investors who were flying a Portuguese flag. This kind of thing went on all the time. Marshall smelled the rat. So he dismisses the Portuguese claim. So all of those slaves will also be sent to Liberia. But the Spanish claim there’s a paper trail. There are documents showing that they were taken off a Spanish ship that was a slaver, and it was going to Havana and so on and so on. So he accepts the Spanish claim is valid, and his reasons for doing it is the Law of Nations.

Josh: Yes.

Richard Brookhiser: And this, you know, this is kind of an intermediate concept I guess, between statutory law and the law of nature, the Law of Nations is, it’s somewhat nebulous, I mean treaties compose the Law of Nations, but also the history of the behavior of nations is part of it. It strikes me as kind of an amorphous body of doctrine, but also with some reality to it. And the way Marshall construes it in this case is that all nations have equal rights. The way he puts it is that Russia has the same rights as Geneva. So he’s picking the largest country on earth, and a Swiss city-state. You know, one is huge and one is tiny, but they’re both nations therefore they have equal rights.

And that means that we, just because we have illegalized the slave trade, doesn’t mean we can tell Spain to do it. Spain is still conducting it, and therefore these slaves bought and paid for by Spaniards are still the property of Spaniards. And he awards them to the Spanish consul. So that’s the decision on the Antelope. He’s not, you know, he’s not willing to follow the lead of the US attorney for Georgia Mr. Habersham, who was trying to free all these Africans. And then the final, the final bitter irony of the whole thing is that there’s a Congressman from Florida who gets Congress to pass a special bill to allow him to buy the Spanish claim. So he goes off with, I think it’s like 39 slaves that he’s purchased, and sets himself up in Florida and writes Byronic poetry while they labor for him.

Pretty, yeah, it’s funny. It’s also sickening. But you know, so that was, that was the limits of his natural rights juris prudence in that case. You know, I contrast this with the Cherokee cases where he seems to be, he seems to be looking for an opportunity to rule on the Cherokee’s favor.

Josh: Right, right.

Richard Brookhiser: Because he gets two cases come before him, and the first case were the Cherokees himself appear as parties versus the state of Georgia. He dismisses their right to sue as an independent nation, because he says that’s not what they are, he calls Indian tribes or nations domestic dependent nations, and therefore they can’t, under the Constitution, they can’t sue as if they were Britain or France. But then, you know, he really, he says if a case with proper parties appeared, we might, you know, we might settle the ultimate question of the Cherokees’ status. But we haven’t, we don’t have those yet.

And so then a second case comes to the court, it was already underway, Wooster v. Georgia. And this is a missionary to the Cherokees suing the state of Georgia for its Indian removal policies. He’s protesting one of them that ended up with him being thrown into prison, Samuel Wooster. So his case comes to the Supreme Court, and that’s where Marshall says, “Well, Indian relations are a problem for the federal government. The federal government which makes treaties with Indians, not the states. Therefore, Georgia does not have the power you know, to, to change the status of Indian tribes who live within its borders. That is only up to the federal government.” And so there, he’s, he’s sticking up for the Cherokees, and he’s you know, he’s wanted to. He’s given as many indications as he can in his role as a judge that this is the kind of thing that he’d like to see happen.

We don’t see him doing that in the case of the Antelope, or the other cases involving slaves.

Garrett: Unfortunately, we’re coming close to the end of our time here, but we thought we would get at least two more questions in.

Richard Brookhiser: Okay.

Garrett: First is, it is often said of Marshall that his legacy could be construed as the evidence we see before us, of a growing federal government and a judiciary that articulates its own justifications unmoored from the constraints from the legislative branch. Is this correct? Or is this view just a little too simplistic? Is Marshall to blame for a federal government that features at present a vast and great administrative state? Is Marshall to blame for a federal judiciary that has arrogated from the political branches decisions on abortion, marriage, and other areas of our political life?

Richard Brookhiser: I think that’s anachronistic. Yes, in his day he was certainly standing for a judiciary that would bolster the power of the federal government vis-a-vis the states, and the federal courts vis-a-vis state courts. But you know, remember he’s doing this in the 1800s, teens, 20s, and 30s. And what is the political landscape then? Well, in 1861, the country’s going to fly apart. You know, so the dynamics were very different than anything in our lifetime. You know, state power, irresponsible state power was a very real thing.

I mean, Marshall’s friends in the Federalist party were threatening secession in the War of 1812, and then his, they did it again in the Nullification Crisis.

Garrett: Mm-hmm (affirmative).

Richard Brookhiser: In his lifetime. And then, you know, he sees that something like the Civil War is going to come, one of the last letters he writes is, “Is the government a union or a lead? Since that’s the most important question before us.” And that only gets decided in blood. You know, 15-20 years after he’s dead. So yes, he’s a Federalist, yes, he’s for federal power. He was in a very different universe though.

Garrett: Finally, Josh and I had a bit of fun, just as you were mentioning before, enjoying your anecdotes about Marshall and the characters that were enveloped in his life. What is your favorite story that best captures John Marshall’s personality?

Richard Brookhiser: Here’s the one. When he comes on the court, it already has some customs. You know, in the 11 years it’s been operating. And one of them is that after, the justices here, they come to Washington once a year, and they all live together in a boarding house because none of them live there. You know, they come from wherever their homes are, and then they come to Washington and they’re together for up to a month, all in a boarding house.

So during the day, they hear the lawyers argue, they hear the cases. Then they go back to their boarding house and they discuss the cases among themselves. Before dinner, over dinner, after dinner. And the custom when Marshall becomes Chief Justice, is that during these discussions, the justices may only have wine if it’s raining. I assume that this was to cheer themselves up. So Marshall’s custom was to always ask one of his colleagues, often Associate Justice Story, you know, “Brother Story, will you look out the window and tell us what the weather is?” And Story might say, “Well the sun is going down in a clear sky.” Marshall would say, “Our jurisdiction is so vast, that by the law of chances, it must be raining somewhere.” So wine was always served to the Marshall court. This may explain the number of unanimous decisions.

And I’m serious, I’m serious about that. Because there was, this was a man who, I mean except for his cousin Jefferson, he really liked almost everybody and almost everybody liked him. Justice Story, the first time he heard him as a lawyer, he said, “I love his laugh.” And I realize I’ve written a number of biographies. This is the first person’s who’s laugh was described. You know, in this whole, I mean, it’s not that they lacked a sense of humor, but this is the first person I ever read a description of his laugh, and Story says, “I love his laugh.” So that shows you, you know, what kind of guy he was one-on-one, and that’s how he ran his court. I mean, he also, there was the power of his mind, there was the power of his legal reasoning. But the first thing, sort of the first story of his personality is this warmth, this geniality, his ability to get along with people.

And you know the expression herding cats? You know, that can be what the Supreme Court is like, or any small group politics. And Marshall had that ability. He had that gift, and that geniality, that good fellowship was a key part of it.

Garrett: Well, Richard, you have an open invitation to join us at John Marshall’s one time home in Washington DC, the DACOR Bacon House, at 18th and F.

Richard Brookhiser: Okay.

Garrett: So you can enjoy some wine as Marshall perhaps enjoyed it with us, and some other Marshallphiles.

Richard Brookhiser: Okay, great.

Garrett: Well, the book-

Richard Brookhiser: I’ll take you up on that.

Garrett: The book is, “John Marshall: The Man Who Made the Supreme Court.” Richard Brookhiser joined us for a wonderful interview. We encourage you to buy it at all bookstores nationwide or on Amazon. Richard, thank you so much for joining us.

Richard Brookhiser: Thank you, Garrett. Thanks for having me.

Garrett: All right, take care.