Welcome back to the Deep Dive. Today we are performing
what I think is best described as an autopsy
on the American government. Or, more accurately,
we're going to look at the exact moment the heart
started beating. That is a pretty dramatic way
to open, but honestly, it's not an exaggeration.
If you look at the machinery of the United States,
you know, the courts, the economy, the balance
of power, it all traces back to one specific
source came. We have a massive stack of source
material today. biographies, legal analysis,
case histories. And they all point to one man,
a man who quite literally took a piece of paper,
the Constitution, and turned it into actual enforceable
power. We are talking about John Marshall. The
great Chief Justice. And I think before we get
into the weeds, we have to set the stakes here.
Because when we think of the Supreme Court today,
we think of this monolith. It's the final word.
Nine people in robes who can stop a president
or strike down a law passed by Congress. Right.
It feels permanent. It feels inevitable, like
Mount Rushmore or something. Exactly. But before
John Marshall shows up, the Supreme Court was.
Well, it was a joke, to put it mildly. It was
described at the time as a minor organ of the
government. Think of it as the the unair conditioned
basement of the federal system. Nobody wanted
the job. I read that they didn't even have their
own building. They met in a committee room in
the Capitol. They did. Yeah. And if the court
made a ruling in, say, 1795, the states might
listen or they might just shrug and move on.
It lacked dignity. It lacked weight and most
definitely lacked authority. So our mission today
is to figure out how he did it. How does a guy
born in a log cabin with barely any formal education
essentially invent the third branch of government?
How does he take it from a minor organ to the
final arbiter of American life? And we have to
do that while holding two very different images
of the man in our heads. On one side, you have
the last of the Romans, the hero of the republic
who saved the Constitution. On the other, a man
deeply, deeply entrenched in the slave system,
whose personal and professional life is full
of contradictions that we are still wrestling
with today. Paper into power. That's the theme.
So let's go back to the paper. Or rather, let's
go back to the logs. Because that whole log cabin
origin story is such a cliche in American politics.
I was born in a log cabin, so vote for me. But
for Marshall, this was real. Oh, it was very
real, but it's also a little deceptive. Yes,
he was born in 1755 in Germantown, Virginia,
which was basically the frontier back then. And
yes, it was a simple log cabin. And when you
say family, you mean a big family. Massive. He
was the oldest of 15 siblings. 15 kids in a log
cabin. Can you just imagine the noise? I mean,
just the chaos. Marshall is the oldest. So by
the time he's 10 or 12, he is essentially a third
parent. He's raising this whole tribe of kids
out in the wilderness. But, and this is the key
nuance you get from the biographies. While the
setting was frontier poverty, the connections
were pure aristocracy. This is where Lord Fairfax
comes in. Exactly. His father, Thomas Marshall,
wasn't just some farmer scratching out a living.
He was a surveyor. And he wasn't just any surveyor.
He worked for Lord Fairfax. And for those of
us who aren't up on our 18th century Virginia
real estate moguls, who exactly is Lord Fairfax?
Think of him as the Jeff Bezos of colonial Virginia.
He owned 5 million acres of land. Five million.
He was the ultimate power broker in the colony.
So Thomas Marshall isn't just a random guy. He's
the right -hand man to the richest, most powerful
guy in the state. Which means John Marshall grows
up with this incredible duality. He's wearing
homespun clothes and moccasins. He's shooting
game for dinner. But he's also getting invited
to the manor house. He has a foot in two completely
different worlds. He understands the rough, violent,
self -reliant life of the frontier, but he is
also exposed to the manners, the education, and
I think the expectations of the elite. And speaking
of education, that reflects this duality too,
right? Because on paper, the man who became arguably
the greatest legal mind in American history was
pretty much uneducated. Strictly speaking, yes.
He had exactly one year of formal schooling away
from home. One year. Today, you can't even get
an internship at the Supreme Court without three
degrees from Ivy League schools. It's just a
different era. But you can't mistake a lack of
schooling for a lack of learning. His father
had a surprisingly good library, borrowed largely
from Lord Fairfax, of course. So you have this
image of Marshall at 12 years old, sitting on
a stump in the woods, reading Alexander Pope's
poetry and Blastone's commentaries on the laws
of England. Light beach reading for a 12 -year
-old. I mean. Blackstone is dense. It is the
absolute DNA of English common law. Marshall
is absorbing the deep structure, the logic of
the law, before he has ever even seen a courtroom.
Plus, the family had a live -in tutor, a Scottish
deacon named James Thompson, who lived with the
family in that crowded cabin just to teach the
kids. There is one other family connection we
have to flag here early, because it really feels
like a plot device from a bad novel. We have
to talk about his mother. Mary Randolph Keith.
And the Randolphs are basically Virginia royalty.
They are. She was the granddaughter of a prominent
politician. But more importantly for our story,
she was a second cousin of a man named Thomas
Jefferson. So, John Marshall and Thomas Jefferson,
the two guys who will spend the next 30 years
locked in this epic battle over the soul of the
United States, are cousins. distant cousins,
but they knew it. And they absolutely loathed
each other. It adds this incredible layer of
Shakespearean family drama to the founding of
the country. It wasn't just abstract political
disagreement. It was personal. They represented
two completely different ways of looking at the
world. And it all originated from the same extended
family tree. Nothing like a family feud to shape
a nation. We will definitely get to the feud.
But first, we have to get him out of the cabin.
It's 1775, Lexington and Concord. The revolution
starts. Marshall is 20 years old. And this is
so crucial to understanding him. Marshall isn't
an intellectual first. He is a soldier first.
He doesn't sit around and debate the war in a
salon. He joins it. He sews the words liberty
or death onto his hunting shirt and marches off.
He joins the 3rd Virginia Regiment. And this
isn't some lead from the back staff officer situation.
No. Not at all. He's a captain. He is on the
line. He fights the Battle of Brandywine, the
Battle of Germantown, which erratically shares
the name of his birthplace, and the Battle of
Monmouth. He was in the thick of the combat.
He saw what war was. But the defining moment,
the thing that I think really creates John Marshall,
the Chief Justice, is the winter of 1777 to 78,
Valley Forge. That is the crucible. No doubt
about it. We all learn about Valley Forge in
grade school. It's cold. There are no shoes.
People are starving, eating these awful fire
cakes. But connect the dots for me. How does
freezing at Valley Forge lead to a specific legal
philosophy 20 years later? OK, so think about
why they were freezing. It wasn't just that it
was a harsh winter. It was that the supply chain
had completely and utterly collapsed. The Continental
Congress technically ran the war, but under the
Articles of Confederation, they had no real power.
They had no power to tax the states. They had
to basically ask nicely, hey, Pennsylvania, can
you please send some blankets? Hey, New York,
any chance you could send some beef? And the
states would just say no, or maybe later. They
would say, sorry, we need to keep these supplies
for our own state militia. Or they would just
ignore the request entirely. So Marshall is there
watching his friends die, not because of British
bullets, but because the central government is
too weak to function. He is seeing the fatal
dysfunction of states' rights in real time in
the most brutal way possible. So while he is
freezing his toes off, he is having this political
epiphany. He's thinking, we need a boss. We need
a government that can actually give orders and
have them followed. Precisely. He later wrote
a very famous line about this. He said, I entered
the army of Virginian and I left it in American.
He realized that without a strong, coercive national
government, the country would just dissolve into
13 squabbling little countries that hated each
other. That trauma is the engine of his entire
career. He becomes a lifelong Federalist because
he saw the alternative at Valley Forge and the
alternative was starvation and death. That is
a powerful reframing. It isn't some abstract
political theory for him. It is literally a matter
of survival. So the war ends. He needs a job.
He does where a lot of ambitious young men in
his position did. He becomes a lawyer. He briefly
attends William and Mary, where he starts a debate
club, by the way, always the organizer, and reads
law under the great George Wythe. The legendary
George Wythe, teacher of Jefferson, Monroe, Henry
Clay. He's the Yoda of Virginia law, the absolute
master. Marshall gets admitted to the bar in
1780. And because he is smart, He's incredibly
charming and he has those Fairfax connections.
He rises fast. He gets elected to the Virginia
House of Delegates. He marries Mary Polly Ambler,
which is a whole story on its own that we should
touch on later. And he starts making serious
money. But he isn't just a lawyer. He is a political
operator from the get go. And this is where he
firmly aligns himself with the Federalists. Right.
So in the late 1780s and 1790s, you have two
teams forming in American politics. You have
the Federalists, Alexander Hamilton, John Adams,
George Washington, who want a strong central
government, a national bank, a professional army,
a modern commercial nation. And then you have
the Democratic Republicans. led by his cousin
Thomas Jefferson and James Madison, who want
an agrarian nation of small farmers, strong states,
and a weak central government. And Marshall,
the survivor of Valley Forge, is team Federalist
all the way, no question. All the way. He plays
a major role in the Virginia Ratifying Convention
for the Constitution in 1788. And it's funny,
he is fighting alongside James Madison there.
They are allies against the anti -Federalists
like Patrick Henry, who think the new Constitution
creates a government that's too powerful, too
much like a monarchy. Politics makes strange
bedfellows, as they say. And eventually very
strange enemies. Yeah. Marshall was apparently
particularly good at countering the fiery populist
rhetoric of guys like Henry. He was logical.
He was calm. And he just broke down the arguments
piece by piece. OK, let's fast forward to 1797.
Marshall is a known quantity, a rising star in
the Federalist Party. And President John Adams
sends him on a diplomatic mission that sounds
absolutely insane to modern ears. The XYZ affair.
Set the scene for us. It really is like something
out of a spy thriller. Adams sends Marshall,
along with Elbridge Gerry and Charles Coatsworth
Pickney, to France. The goal is to negotiate
peace. Because the French Navy, in the middle
of their own revolutionary wars, is seizing American
ships on the high seas. And the French foreign
minister, a man named Talleyrand, plays games.
Oh, he's a master of intrigue. He won't meet
with them directly. Instead, he sends three secret
agents who are later referred to in the documents
as X, Y, and Z. Hence the name. Right. And these
agents basically deliver a message. They say,
you want to talk to Talleyrand? Great. Here's
the price of admission. Give us a personal bribe
of $250 ,000 for Talleyrand and a huge multimillion
dollar loan for the French government. Then we'll
say hello. This is just blatant extortion. It's
an insult to the country. It is. And the Americans
are stunned. Pinckney and Marshall in particular
are furious. Marshall is the one who writes the
official dispatches back home detailing this
incredible insult. They refuse. They basically
say, no, no, not a sixpence. And when this news
gets out in America? The public goes wild. They
love the spine. Marshall comes back to a hero's
welcome. The slogan of the day becomes millions
for defense, but not one cent for tribute. It's
a huge political victory for the Federalists,
and Marshall is the face of it. So Marshall rides
this wave of popularity right into Congress in
1799. He does, even though his district in Virginia
heavily favored the other party. That's how personally
popular he was after the XYZ affair. And in Congress,
he quickly becomes the leader of the moderate
Federalists. He defends President Adams on some
controversial decisions, like extraditing a murder
suspect to Britain. He's the go -to guy for a
logical, powerful defense of the administration.
And President Adams notices. In 1800, Adams makes
him Secretary of State. Which was a huge job.
He was the nation's chief diplomat, but he also
had all sorts of domestic tasks, like supervising
the construction of the new capital in Washington,
D .C. But then, everything changes. The election
of 1800 happens, what some people call the Revolution
of 1800. Yeah, the Federalists are just swept
out of power. It's a disaster for them. Jefferson
wins the presidency. They lose control of Congress.
Adams becomes a lame duck, just holding on to
power for a few more months until the inauguration
in March of 1801. And they are panicked. They
genuinely think Jefferson is some kind of radical
Jacobin who is going to burn down the government
and start a French -style revolution. So they
try to build a fortress in the one branch of
government they can still control. The judiciary.
This is the infamous Midnight Judges Act. In
the final weeks of their term, they pass a law
creating a whole bunch of new federal courts
and judgeships, and they start frantically filling
them with loyal Federalists. These are lifetime
appointments, so they're hoping to keep Federalist
influence alive for decades to come. And amidst
all this scrambling, the Chief Justice of the
Supreme Court, a man named Oliver Ellsworth,
resigns due to poor health. So Adams is scrambling.
He needs a new chief justice and he needs one
fast. He first offers the job to John Jay, who
had been the first chief justice. And Jay basically
laughs at him. He writes back a famous letter
saying the court lacks energy, weight and dignity.
He wouldn't take the job if you gave it to him.
That's how little people thought of the Supreme
Court. The first guy to have the job says no
thanks. It's insulting. So Adams, in a moment
of either genius or desperation, turns to his
secretary of state. Marshall is in his office
and Adams just says, John, I believe I must nominate
you. Marshall's completely surprised, but he
accepts. But wait a minute. He is still the secretary
of state. Yes. For about a month from February
to early March 1801, he holds both jobs simultaneously.
He's the chief justice of the United States and
the secretary of state. And in his role as secretary
of state, he is tasked with signing, sealing
and delivering all these commissions for the
new midnight. judges before Jefferson takes over
at midnight on March 3rd. And this is where the
great Chief Justice makes a huge rookie mistake,
a clerical error that changes history. It's incredible.
He's overworked. It is late. He is signing stacks
of papers by candlelight. He gets most of them
out. But at the end of the night, he leaves a
stack of signed and sealed commissions on his
desk. He just assumes the incoming administration
will do the courteous thing and have them delivered.
He assumes James Madison, who is Jefferson's
new secretary of state, will just do him a favor
and deliver jobs to his political enemies. That
seems incredibly naive. It was incredibly negligent.
He leaves the papers. Jefferson's administration
walks in the next day. They see the commissions
for these Federalist judges sitting on the desk,
and Jefferson says, nope, toss them. And one
of those tossed papers, one of those undelivered
commissions, belonged to a man named William
Marbury. Which brings us to the case that changes
absolutely everything. But before we break down
Marbury v. Madison, we need to understand what
Marshall did to the court itself, the culture
of the court, before that famous ruling. Because
the vibe change was immediate and it was profound.
You mentioned earlier the court was a minor organ.
And that nobody wanted the job. It was also just
dysfunctional. Before Marshall, the justices
used the British system called Syriatum. That
means if a case is heard, every single justice
writes their own separate opinion. So Justice
A says, I think this. Justice B says, I think
that. Justice C says, I disagree with both of
them. So you don't get a clear ruling. You get
a transcript of a debate club. Exactly. There
is no clear law of the land, just a bunch of
guys talking past each other. It was confusing,
and it weakened the court's authority. Marshall
stops that on day one. He convinces the other
justices to issue a single majority opinion of
the court. One voice, one ruling, one authority.
How does he get them to agree to that? These
are all lifetime appointees. They've got egos.
You can't just tell them to be quiet. He uses
his secret weapon, the boarding house. See, Washington,
D .C. was basically a swamp back then. There
wasn't much good housing. So Marshall arranged
for all the justices to live together in the
same boarding house when the court was in session.
They ate all their meals together. They drank
Madeira wine together every night. They avoided
outside socializing. He basically turned the
Supreme Court into a fraternity. Effectively.
But it was a brilliant move. Marshall was incredibly
charming. He was funny. He was self -effacing.
He would guide the conversation over dinner,
gently bringing everyone around to his point
of view. The sources say he wasn't the most learned
scholar on the court, but he had this charismatic
force. He could put his own ideas into the minds
of others. His cousin Jefferson absolutely hated
this. He complained that the crafty chief judge
was leading the other justices huddled up in
conclave. He felt Marshall was hypnotizing them.
It's not hypnotism. It's just called leadership.
It is absolute brilliance. So by the time William
Marbury's lawsuit hits the docket, Marshall has
the court united and speaking with one voice.
And he needs them united because he is walking
into a political trap that could destroy the
judiciary forever. OK, lay out the trap for us.
Marbury wants his paper, his commission. He sues
James Madison, the new secretary of state, to
get it. He goes directly to the Supreme Court
and asks for something called a writ of mandamus.
Which is just a fancy Latin term for a court
order commanding a government official to do
their job. In this case, Madison, give him the
paper. So here is Marshall's dilemma. It's a
lose -lose situation. If he rules for Marbury
and says, Madison, you have to give him the job.
What happens? MSN laughs. President Jefferson
ignores the order. The Supreme Court has no army,
no police force. It can't make anyone do anything.
If the president openly defies them, the court
is revealed as powerless. It's a paper tiger.
Game over for the judiciary. OK, so that's a
disaster. So why not just rule for Madison? Just
say, sorry, Marbury, you lose. Tough luck. Then
Marshall and the Federalists look like cowards.
He looks like he is bowing down to his political
rival, his cousin Jefferson. He would be validating
the idea that the president is above the law
and can do whatever he wants. The court would
look submissive. So if he says yes, he's ignored
and looks weak. If he says no, he looks weak
and submissive. It is a Kobayashi Maru, a no
-win scenario. And Marshall somehow finds the
third option. The decision. which comes down
in 1803, is an absolute masterpiece of political
and legal jiu -jitsu. Okay, so walk us through
the steps of the ruling. How does he get out
of the box? Right. Step one, he asks, does William
Marbury have a legal right to the commission?
The answer is yes, absolutely. It was signed
by the president. It was sealed by the secretary
of state. It is his property. He says Jefferson
is wrong to withhold it. It is a violation of
a vested legal right. So right off the bat, he
slaps Jefferson in the face. He calls him out
for acting illegally. He does. Then step two.
He asks, if he has a right and that right has
been violated, does the law provide a remedy?
He answers, yes, of course. We are a nation of
laws, not of men. If you are wronged, the courts
must be able to help you. OK, so at this point,
it really sounds like he is building up to issuing
the order to Madison. It does. It sounds like
he's about to walk right into the trap. But then
comes step three, the brilliant pivot, the judo
throw. He looks at the specific law that Marbury
is using to sue in the Supreme Court. That law
is Section 13 of the Judiciary Act of 1789. This
was the law passed by Congress that gave the
Supreme Court the power to issue these writs
of mandamus in cases like this directly. Marshall
says, OK, let me read the Constitution, specifically
Article 3, which lays out the power of the judiciary.
And the Constitution, he says, lists the very
specific types of cases the Supreme Court can
hear directly. What's called its original jurisdiction.
Things like cases involving ambassadors or states.
And guess what? Writs of mandamuses for government
officers are not on that list. So he is saying
that Congress, way back in 1789, passed a law
that tried to give the court extra power, but
the Constitution itself doesn't actually allow
it. Exactly. He says Congress passed a law that
conflicts with the Constitution. And it is emphatically
the province and duty of the judicial department
to say what the law is. And when a law conflicts
with the Constitution, that law is void. He strikes
down the law. He declares that section of the
Judiciary Act unconstitutional. Therefore, the
Supreme Court does not have the jurisdiction,
the power to help Marbury. So William Marbury
loses his case. So Marbury doesn't get the job.
Jefferson wins the case. Madison doesn't have
to deliver the commission. Jefferson wins the
tiny battle. But Marshall wins the war for the
future of the country because by denying the
court a small power, the power to help Marbury,
he claimed for it the ultimate power, judicial
review. He established for the first time that
the Supreme Court is the final interpreter of
the Constitution and can strike down laws passed
by a co -equal branch of government, the Congress.
And Jefferson couldn't do anything about it because
at the end of the day, Marshall ruled in his
favor. Exactly. Jefferson couldn't ignore an
order that didn't exist. He just had to sit there
and fume while Marshall quietly crowned the court
as a fully co -equal branch of government. It
is absolute genius. He traded a low -level justice
of the peace appointment for the power to say
what the law is for everyone, forever. And that
is the foundation of modern American law. Every
single time the Supreme Court strikes down a
ban on something or upholds a right or interprets
a statute, they are standing on the shoulders
of Marbury v. Madison. So the engine is built.
Now Marshall takes it out for a drive. For the
next 30 years, he uses this new power to define
the nation. And the consistent theme seems to
be. The nation over the states. Federal supremacy.
That's the core of it. The best example is probably
McCulloch v. Maryland in 1819. This is the famous
bank case. Right. Congress had created the second
bank of the United States. The state of Maryland
hated it. They thought it was an unconstitutional
monster that helped northern merchants. So they
passed a law to tax the branch in Baltimore,
hoping to drive it out of business. And the bank
manager, James McCulloch, said. I'm not paying
your tax. So the case goes to Marshall. And there
are two huge questions for Marshall to answer.
One, can Congress even create a bank in the first
place? The word bank isn't in the Constitution.
And the strict constructionists like Jefferson
would say, if it isn't explicitly on the list
of powers, you can't do it. Marshall completely
rejects that. He says, look, the Constitution
is a framework. It's an outline, not a detailed
legal code. It gives Congress the power to tax,
to borrow money, to regulate commerce. A bank,
he argues, is necessary and proper to carry out
those enumerated powers. This is the origin of
implied powers. This is the huge concept. He
writes that the Constitution is intended to endure
for ages to come and must be adapted to the various
crises of human affairs. It's a living document.
Not a dead one. So yes, Congress can create a
bank. And then the second question. Can the state
of Maryland tax it? Here he drops one of his
most famous and powerful lines. The power to
tax involves the power to destroy. If a state
can tax a federal institution, they can tax the
mail, they can tax the military, they can bleed
the federal government dry. And since the people
of all the states created the federal government,
one state cannot be allowed to destroy it. Federal
law is supreme. This really feels like he is
building the skeleton of the modern American
state piece by piece. What about the economy?
Because today, if you think about it, we can
buy something on Amazon from a warehouse in Ohio
and have it shipped to Texas without paying some
kind of special Ohio export tax. You can thank
Marshall for that. That comes from Gibbons v.
Ogden in 1824, the great steamboat case. I love
that this whole massive legal doctrine comes
from a fight over steamboats on the Hudson River.
It was big business. New York had granted a legal
monopoly to Robert Fulton. to run steamboats
in its waters. They tried to use that monopoly
to stop a competitor, a man named Thomas Gibbons,
who was running a ferry from New Jersey to New
York. But Gibbons had a license from the federal
government. So it's a showdown, state power versus
federal power. And Marshall looks at the commerce
clause of the Constitution. He does. And he interprets
the word commerce incredible broadly. The other
side argued commerce is just buying and selling
things, like a bushel of wheat. Marshall says,
no, no, no. Commerce is intercourse. It is navigation.
It is the movement of goods and people between
the states. He rules that states cannot put up
these kinds of protectionist barriers to interstate
trade. He essentially tore down the economic
borders between the states. He created a single,
unified American market. Without Gibbons v. Ogden,
the United States might have looked like Europe
before the European Union. Every state with its
own tariffs and restrictive laws, it would have
absolutely strangled the Industrial Revolution
in the crib. So he protects the federal government.
He protects the national market. What about private
businesses and corporations? He protects them,
too. Look at Dartmouth College v. Woodward. New
Hampshire's legislature tried to take over Dartmouth
College and turn it from a private school into
a public one. Marshall said, no, the college's
original charter from the King of England is
a contract. And the Constitution explicitly says
that states cannot pass laws that impair the
obligation of contracts. So he is the best friend
a business or a corporation ever had. He's creating
stability. He is creating a stable, predictable
environment for investment. If a state government
can just rip up your contract because the political
winds have changed, nobody is going to invest
money or build anything. Marshall guaranteed
a level of stability that was essential for capitalism
to flourish. We can't talk about his time on
the bench without mentioning the incredible political
drama of the Aaron Burr treason trial. Oh, this
is Hollywood stuff. It's 1807. Aaron Burr, the
former vice president, the man who shot and killed
Alexander Hamilton, is on trial for treason.
He was accused of plotting to raise an army,
break off the Western territories and create
his own empire. And Marshall presided over the
trial in his capacity as a circuit judge. He
did. And he did two incredibly bold things that
infuriated President Jefferson. One, he issued
a subpoena for President Jefferson himself. He
ordered the sitting president to hand over documents
for a criminal trial. Yes. He was asserting the
power of the judiciary over the executive. The
president is not above the law. Jefferson was
furious but eventually complied, in part. And
secondly, Marshall defined treason very, very
strictly, exactly as it's written in the Constitution.
It says treason requires an overt act of war
and two witnesses to that act. Marshall stuck
to the letter of the law. The government's witnesses
were shady and they couldn't prove an actual
overt act of war. So Burr walked free. Burr was
acquitted. Jefferson wanted him hanged, no question.
But Marshall followed the law, even though it
was deeply unpopular. It was a powerful statement
about his independence and the rule of law over
political passion. It really sounds like he is
on an unbroken winning streak that never ends.
But then we hit the Jacksonian era and things
start to get darker. Yeah, the so -called era
of good feelings ends. Andrew Jackson rises to
power. And Jackson represents everything Marshall
fears and disguises. Raw populism, mob rule,
a deep disregard for institutions, and the rule
of law. And this collision course happens over
the rights of Native Americans. This is the great
tragedy is the Marshall Court. It's focused on
the Cherokee Nation in Georgia. The Cherokee
had done everything the U .S. government asked.
They adopted a written constitution. They had
farms. They had a newspaper. And they had a treaty
guaranteeing them their land. But Georgia wanted
the land for cotton farming, and they passed
laws essentially dissolving the Cherokee government
and seizing their territory. So the Cherokee
sooth. They put their faith in the American legal
system. They go to Marshall. And in the first
case, Cherokee Nation v. Georgia, Marshall kind
of punts. It's a bit technical. He says, I sympathize,
but you aren't a foreign nation, so you can't
sue here directly. You are a domestic dependent
nation. It's a painful technicality. Very painful
one. But a year later. In 1832, in a case called
Worcester v. Georgia, he tries to fix it. This
case involved white missionaries who were arrested
by Georgia for living on Cherokee land without
a state license. And in this case, Marshall rules.
He rules unequivocally. He says Georgia's laws
have no force whatsoever in Cherokee territory.
Treaties are the supreme law of the land, and
only the federal government can deal with the
tribes. The missionaries should be freed. It
is a huge, landmark victory for tribal sovereignty.
Legally. Legally. But then we get the brutal
political reality. President Andrew Jackson supposedly
says, John Marshall has made his decision. Now
let him enforce it. Is that quote real? Did he
actually say that? It's likely apocryphal. We
don't have a direct source for those exact words.
But his actions said the same thing. Jackson
refused to send federal troops to enforce the
order. Georgia kept the missionaries in jail
and continued to brutalize the Cherokee. Eventually,
the Cherokee were forced off their land onto
the Trail of Tears. It just exposes the fundamental
flaw in the system. The court has judgment, as
Hamilton wrote, but it has no sword and no purse.
Marshall was apparently devastated. He wrote
to his friend and colleague Justice Joseph's
story that he feared the Constitution was failing.
He saw that the rule of law is fragile. It relies
on the willingness of the executive branch to
enforce it. If the president decides to go rogue,
the court is just a bunch of old men in robes
writing opinions. We can't talk about the limits
of Marshall's vision of liberty without facing
the biggest contradiction of all, slavery. This
is where the gleaming statue of the great Chief
Justice really starts to crack and crumble. For
a long, long time, biographers gave him a pass.
They'd say, oh, he owned a few house servants.
He was a kindly master. He hated slavery in theory.
Kind of waved it away. But the more recent source
material, the hard data, says otherwise. The
historian Paul Finkelman, among others, did a
deep dive into the property records, the tax
records. And Marshall didn't just own a few people.
He owned hundreds of enslaved people over his
lifetime at various plantations. He was an active
participant. He bought and sold human beings,
even using them as collateral to pay off his
son's gambling debts. He was fully enmeshed in
the slave economy. And how did that personal
reality bleed into his judicial rulings? Because
he had chances as a judge to lean towards freedom,
didn't he? He did. There were numerous cases
where enslaved people sued for their freedom
based on technicalities or having resided in
free territories. Marshall wrote seven majority
opinions in cases involving slavery. He ruled
against the enslaved person in every single one.
Zero for seven. Zero for seven. Even in cases
where the law was ambiguous and he could have
leaned the other way. Take the famous case of
the antelope in 1825. It involved a slave ship
that was captured off the coast of Florida. Marshall
wrote the opinion. And in it, he actually admits
that slavery is against natural law, that it
is morally wrong and contrary to the laws of
nature. But there's a but. But, he says, is protected
by positive law, the actual laws of nations and
the laws of property. So he orders most of the
captured Africans to be returned to their owners
as property. He chose property rights over human
rights. every single time it came before him
on the bench. It is a chilling kind of compartmentalization.
I know this is morally wrong, but the statute
says it is property, so my hands are tied. It's
what some call legal formalism. He hid behind
the law to support a system from which he personally
and financially benefited. He was also a leader
in the American Colonization Society, whose goal
was to ship free black people to Africa to a
colony in Liberia because they didn't believe
a multiracial society could ever work in America.
It is a stark reminder that these founding fathers
weren't marble statues. They were complex men
with deep and, in this case, sometimes horrific
flaws. And we are seeing a reckoning with that
now. The John Marshall Law School in Chicago
recently changed its name to the University of
Illinois Chicago School of Law. They said they
could no longer square their institutional mission
of promoting justice with Marshall's record on
slavery. It is complicated. He built the legal
house we all live in, but he kept the door locked
for a huge number of people. That is the perfect
way to put it. Let's finish by getting to know
the man behind the ropes a bit. Because despite
the power and the title, he was kind of an oddball
character, right? Not what you'd expect. He was
a total mess. If you saw him on the street in
Richmond, you would think he was a vagrant. He
famously wore rusty old black shorts, mismatched
socks, shirts that were unbuttoned. He just refused
to dress like an aristocrat. He was completely
without pretension. I love the turkey story.
You have to tell the turkey story. It is a classic.
A young, fancy lawyer, new to Richmond, sees
this disheveled old man wandering through the
market and assumes he is a servant. He tosses
the old man a coin and asks him to carry his
big Thanksgiving turkey home for him. And Marshall,
without saying a word, takes the turkey, walks
the young man home, and politely bows and hands
it over. A neighbor has to run over and tell
the kid, you just tipped the Chief Justice of
the United States. And his love for the game
of quoits. He was obsessed with quoits. It's
a game like horseshoes, but you throw these heavy
iron rings. He was the champion of the Richmond
Quites Club, and he was famous for getting right
down on his hands and knees in the dirt to measure
the distance with the straw. He took his fun
very, very seriously. And his marriage to his
wife, Polly, it's actually a very sad but also
very touching story. It is. Polly suffered from
severe anxiety and what they called nervous ailments.
She was essentially an invalid for most of their
long marriage. And Marshall was incredibly devoted
to her. He would take his shoes off when he came
in the house so his footsteps wouldn't make noise
and startle her. He centered his entire domestic
life around her comfort and well -being. When
she died in 1831 after nearly 50 years of marriage,
he was absolutely crushed. He didn't live much
longer after her, did he? No. He died in 1835
while in Philadelphia for medical treatment.
And this brings us to the final great legend
of John Marshall, the Liberty Bell. Did it actually
crack for him? Is that a real thing? The story
goes that the Liberty Bell told for his funeral
procession, and that is when it sustained its
famous crack, never to ring again. It is almost
certainly a myth. The crack probably happened
a bit later, but the poetry of it is just too
good to ignore. The Bell of Liberty cracking
as the last of the founders dies. So when we
look at his tombstone in Richmond, what does
it say? Here lies John Marshall, the man who
invented the Supreme Court. No, it is shocking
in its simplicity. He wrote the inscription himself.
It lists his parents. It lists his marriage to
Polly and the date of his death. That is it.
No chief justice, no secretary of state, no general,
no mention of his famous cases. Just a son and
a husband. The man who was happy to carry his
own turkey right to the end. To the very end.
So let's wrap this up. What is the big takeaway
for the listener commuting to work right now?
Why does this man from 200 years ago still matter
so much? The takeaway is that the government
isn't some machine that just runs itself. It
was built consciously by people. Marshall took
a piece of paper, a constitution full of ambiguities
and aspirations, and through sheer force of will
and intellect, he willed a powerful government
into existence. He made the constitution's paper
into real power. But he also left us a question.
Marshall was the great champion of implied powers.
He believed the government had to grow and adapt
to meet the crisis of the day. The living constitution.
That was his idea. So if... John Marshall walked
into Washington, D .C. in 2026 and saw the sheer
size and scope of the federal government today,
the EPA, the FBI, the Department of Education,
the trillions and trillions of dollars in spending.
Would he say, yes, this is exactly what I meant
by implied powers? Or would he be horrified?
Would he think that the necessary and proper
clause he unleashed had completely eaten the
rest of the document and destroyed the limited
government he thought he was building? That's
the question, isn't it? I think he would probably
just want to know if he could tax it. He almost
certainly would. That is it for this deep dive
into the life and legacy of John Marshall. Thanks
for listening. See you next time.