WEBVTT 00:00:00.000 --> 00:00:02.640 Welcome back to the Deep Dive. Today we are performing 00:00:02.640 --> 00:00:04.860 what I think is best described as an autopsy 00:00:04.860 --> 00:00:07.660 on the American government. Or, more accurately, 00:00:07.940 --> 00:00:11.060 we're going to look at the exact moment the heart 00:00:11.060 --> 00:00:13.699 started beating. That is a pretty dramatic way 00:00:13.699 --> 00:00:16.539 to open, but honestly, it's not an exaggeration. 00:00:16.620 --> 00:00:19.559 If you look at the machinery of the United States, 00:00:19.739 --> 00:00:22.719 you know, the courts, the economy, the balance 00:00:22.719 --> 00:00:25.739 of power, it all traces back to one specific 00:00:25.739 --> 00:00:28.320 source came. We have a massive stack of source 00:00:28.320 --> 00:00:31.059 material today. biographies, legal analysis, 00:00:31.239 --> 00:00:33.719 case histories. And they all point to one man, 00:00:33.799 --> 00:00:36.899 a man who quite literally took a piece of paper, 00:00:37.079 --> 00:00:40.079 the Constitution, and turned it into actual enforceable 00:00:40.079 --> 00:00:42.500 power. We are talking about John Marshall. The 00:00:42.500 --> 00:00:44.859 great Chief Justice. And I think before we get 00:00:44.859 --> 00:00:46.859 into the weeds, we have to set the stakes here. 00:00:46.979 --> 00:00:48.600 Because when we think of the Supreme Court today, 00:00:48.659 --> 00:00:51.359 we think of this monolith. It's the final word. 00:00:52.060 --> 00:00:54.380 Nine people in robes who can stop a president 00:00:54.380 --> 00:00:56.600 or strike down a law passed by Congress. Right. 00:00:56.700 --> 00:00:58.740 It feels permanent. It feels inevitable, like 00:00:58.740 --> 00:01:01.320 Mount Rushmore or something. Exactly. But before 00:01:01.320 --> 00:01:03.840 John Marshall shows up, the Supreme Court was. 00:01:05.340 --> 00:01:07.959 Well, it was a joke, to put it mildly. It was 00:01:07.959 --> 00:01:10.400 described at the time as a minor organ of the 00:01:10.400 --> 00:01:13.640 government. Think of it as the the unair conditioned 00:01:13.640 --> 00:01:16.519 basement of the federal system. Nobody wanted 00:01:16.519 --> 00:01:18.400 the job. I read that they didn't even have their 00:01:18.400 --> 00:01:20.359 own building. They met in a committee room in 00:01:20.359 --> 00:01:22.599 the Capitol. They did. Yeah. And if the court 00:01:22.599 --> 00:01:26.299 made a ruling in, say, 1795, the states might 00:01:26.299 --> 00:01:28.459 listen or they might just shrug and move on. 00:01:28.640 --> 00:01:31.640 It lacked dignity. It lacked weight and most 00:01:31.640 --> 00:01:34.340 definitely lacked authority. So our mission today 00:01:34.340 --> 00:01:36.799 is to figure out how he did it. How does a guy 00:01:36.799 --> 00:01:39.640 born in a log cabin with barely any formal education 00:01:39.640 --> 00:01:42.540 essentially invent the third branch of government? 00:01:42.920 --> 00:01:45.500 How does he take it from a minor organ to the 00:01:45.500 --> 00:01:47.840 final arbiter of American life? And we have to 00:01:47.840 --> 00:01:49.620 do that while holding two very different images 00:01:49.620 --> 00:01:52.540 of the man in our heads. On one side, you have 00:01:52.540 --> 00:01:54.480 the last of the Romans, the hero of the republic 00:01:54.480 --> 00:01:57.530 who saved the Constitution. On the other, a man 00:01:57.530 --> 00:02:00.030 deeply, deeply entrenched in the slave system, 00:02:00.150 --> 00:02:02.370 whose personal and professional life is full 00:02:02.370 --> 00:02:04.370 of contradictions that we are still wrestling 00:02:04.370 --> 00:02:07.049 with today. Paper into power. That's the theme. 00:02:07.129 --> 00:02:09.389 So let's go back to the paper. Or rather, let's 00:02:09.389 --> 00:02:12.129 go back to the logs. Because that whole log cabin 00:02:12.129 --> 00:02:14.689 origin story is such a cliche in American politics. 00:02:14.889 --> 00:02:17.629 I was born in a log cabin, so vote for me. But 00:02:17.629 --> 00:02:20.509 for Marshall, this was real. Oh, it was very 00:02:20.509 --> 00:02:23.439 real, but it's also a little deceptive. Yes, 00:02:23.500 --> 00:02:26.060 he was born in 1755 in Germantown, Virginia, 00:02:26.280 --> 00:02:28.599 which was basically the frontier back then. And 00:02:28.599 --> 00:02:30.800 yes, it was a simple log cabin. And when you 00:02:30.800 --> 00:02:33.500 say family, you mean a big family. Massive. He 00:02:33.500 --> 00:02:37.460 was the oldest of 15 siblings. 15 kids in a log 00:02:37.460 --> 00:02:40.099 cabin. Can you just imagine the noise? I mean, 00:02:40.120 --> 00:02:42.240 just the chaos. Marshall is the oldest. So by 00:02:42.240 --> 00:02:44.599 the time he's 10 or 12, he is essentially a third 00:02:44.599 --> 00:02:47.259 parent. He's raising this whole tribe of kids 00:02:47.259 --> 00:02:50.360 out in the wilderness. But, and this is the key 00:02:50.360 --> 00:02:52.699 nuance you get from the biographies. While the 00:02:52.699 --> 00:02:55.319 setting was frontier poverty, the connections 00:02:55.319 --> 00:02:58.080 were pure aristocracy. This is where Lord Fairfax 00:02:58.080 --> 00:03:01.159 comes in. Exactly. His father, Thomas Marshall, 00:03:01.300 --> 00:03:03.340 wasn't just some farmer scratching out a living. 00:03:03.460 --> 00:03:06.379 He was a surveyor. And he wasn't just any surveyor. 00:03:06.460 --> 00:03:09.740 He worked for Lord Fairfax. And for those of 00:03:09.740 --> 00:03:11.620 us who aren't up on our 18th century Virginia 00:03:11.620 --> 00:03:15.159 real estate moguls, who exactly is Lord Fairfax? 00:03:15.319 --> 00:03:17.780 Think of him as the Jeff Bezos of colonial Virginia. 00:03:18.099 --> 00:03:21.840 He owned 5 million acres of land. Five million. 00:03:22.039 --> 00:03:24.500 He was the ultimate power broker in the colony. 00:03:24.639 --> 00:03:26.879 So Thomas Marshall isn't just a random guy. He's 00:03:26.879 --> 00:03:29.340 the right -hand man to the richest, most powerful 00:03:29.340 --> 00:03:32.340 guy in the state. Which means John Marshall grows 00:03:32.340 --> 00:03:34.879 up with this incredible duality. He's wearing 00:03:34.879 --> 00:03:37.360 homespun clothes and moccasins. He's shooting 00:03:37.360 --> 00:03:39.560 game for dinner. But he's also getting invited 00:03:39.560 --> 00:03:43.060 to the manor house. He has a foot in two completely 00:03:43.060 --> 00:03:45.879 different worlds. He understands the rough, violent, 00:03:46.060 --> 00:03:48.759 self -reliant life of the frontier, but he is 00:03:48.759 --> 00:03:51.599 also exposed to the manners, the education, and 00:03:51.599 --> 00:03:54.539 I think the expectations of the elite. And speaking 00:03:54.539 --> 00:03:56.740 of education, that reflects this duality too, 00:03:56.840 --> 00:03:59.560 right? Because on paper, the man who became arguably 00:03:59.560 --> 00:04:01.900 the greatest legal mind in American history was 00:04:01.900 --> 00:04:04.379 pretty much uneducated. Strictly speaking, yes. 00:04:04.560 --> 00:04:07.379 He had exactly one year of formal schooling away 00:04:07.379 --> 00:04:10.159 from home. One year. Today, you can't even get 00:04:10.159 --> 00:04:12.060 an internship at the Supreme Court without three 00:04:12.060 --> 00:04:14.340 degrees from Ivy League schools. It's just a 00:04:14.340 --> 00:04:17.040 different era. But you can't mistake a lack of 00:04:17.040 --> 00:04:20.000 schooling for a lack of learning. His father 00:04:20.000 --> 00:04:22.779 had a surprisingly good library, borrowed largely 00:04:22.779 --> 00:04:25.839 from Lord Fairfax, of course. So you have this 00:04:25.839 --> 00:04:29.319 image of Marshall at 12 years old, sitting on 00:04:29.319 --> 00:04:31.540 a stump in the woods, reading Alexander Pope's 00:04:31.540 --> 00:04:34.300 poetry and Blastone's commentaries on the laws 00:04:34.300 --> 00:04:36.699 of England. Light beach reading for a 12 -year 00:04:36.699 --> 00:04:39.550 -old. I mean. Blackstone is dense. It is the 00:04:39.550 --> 00:04:42.670 absolute DNA of English common law. Marshall 00:04:42.670 --> 00:04:45.009 is absorbing the deep structure, the logic of 00:04:45.009 --> 00:04:47.430 the law, before he has ever even seen a courtroom. 00:04:47.850 --> 00:04:50.930 Plus, the family had a live -in tutor, a Scottish 00:04:50.930 --> 00:04:53.569 deacon named James Thompson, who lived with the 00:04:53.569 --> 00:04:55.550 family in that crowded cabin just to teach the 00:04:55.550 --> 00:04:57.810 kids. There is one other family connection we 00:04:57.810 --> 00:04:59.990 have to flag here early, because it really feels 00:04:59.990 --> 00:05:02.269 like a plot device from a bad novel. We have 00:05:02.269 --> 00:05:04.290 to talk about his mother. Mary Randolph Keith. 00:05:04.509 --> 00:05:06.709 And the Randolphs are basically Virginia royalty. 00:05:07.310 --> 00:05:09.649 They are. She was the granddaughter of a prominent 00:05:09.649 --> 00:05:11.970 politician. But more importantly for our story, 00:05:12.129 --> 00:05:14.269 she was a second cousin of a man named Thomas 00:05:14.269 --> 00:05:17.490 Jefferson. So, John Marshall and Thomas Jefferson, 00:05:17.870 --> 00:05:20.189 the two guys who will spend the next 30 years 00:05:20.189 --> 00:05:22.790 locked in this epic battle over the soul of the 00:05:22.790 --> 00:05:26.379 United States, are cousins. distant cousins, 00:05:26.600 --> 00:05:30.139 but they knew it. And they absolutely loathed 00:05:30.139 --> 00:05:32.959 each other. It adds this incredible layer of 00:05:32.959 --> 00:05:35.319 Shakespearean family drama to the founding of 00:05:35.319 --> 00:05:37.600 the country. It wasn't just abstract political 00:05:37.600 --> 00:05:39.879 disagreement. It was personal. They represented 00:05:39.879 --> 00:05:41.899 two completely different ways of looking at the 00:05:41.899 --> 00:05:44.980 world. And it all originated from the same extended 00:05:44.980 --> 00:05:47.439 family tree. Nothing like a family feud to shape 00:05:47.439 --> 00:05:49.399 a nation. We will definitely get to the feud. 00:05:49.519 --> 00:05:51.740 But first, we have to get him out of the cabin. 00:05:51.839 --> 00:05:55.230 It's 1775, Lexington and Concord. The revolution 00:05:55.230 --> 00:05:58.370 starts. Marshall is 20 years old. And this is 00:05:58.370 --> 00:06:01.050 so crucial to understanding him. Marshall isn't 00:06:01.050 --> 00:06:03.329 an intellectual first. He is a soldier first. 00:06:03.490 --> 00:06:05.589 He doesn't sit around and debate the war in a 00:06:05.589 --> 00:06:08.790 salon. He joins it. He sews the words liberty 00:06:08.790 --> 00:06:11.709 or death onto his hunting shirt and marches off. 00:06:11.829 --> 00:06:13.910 He joins the 3rd Virginia Regiment. And this 00:06:13.910 --> 00:06:16.490 isn't some lead from the back staff officer situation. 00:06:17.009 --> 00:06:20.240 No. Not at all. He's a captain. He is on the 00:06:20.240 --> 00:06:22.899 line. He fights the Battle of Brandywine, the 00:06:22.899 --> 00:06:25.600 Battle of Germantown, which erratically shares 00:06:25.600 --> 00:06:27.920 the name of his birthplace, and the Battle of 00:06:27.920 --> 00:06:30.079 Monmouth. He was in the thick of the combat. 00:06:30.360 --> 00:06:33.660 He saw what war was. But the defining moment, 00:06:33.759 --> 00:06:36.339 the thing that I think really creates John Marshall, 00:06:36.519 --> 00:06:41.319 the Chief Justice, is the winter of 1777 to 78, 00:06:41.579 --> 00:06:43.980 Valley Forge. That is the crucible. No doubt 00:06:43.980 --> 00:06:46.160 about it. We all learn about Valley Forge in 00:06:46.160 --> 00:06:48.060 grade school. It's cold. There are no shoes. 00:06:48.160 --> 00:06:50.060 People are starving, eating these awful fire 00:06:50.060 --> 00:06:53.480 cakes. But connect the dots for me. How does 00:06:53.480 --> 00:06:56.199 freezing at Valley Forge lead to a specific legal 00:06:56.199 --> 00:06:58.819 philosophy 20 years later? OK, so think about 00:06:58.819 --> 00:07:01.019 why they were freezing. It wasn't just that it 00:07:01.019 --> 00:07:03.300 was a harsh winter. It was that the supply chain 00:07:03.300 --> 00:07:05.839 had completely and utterly collapsed. The Continental 00:07:05.839 --> 00:07:08.160 Congress technically ran the war, but under the 00:07:08.160 --> 00:07:10.680 Articles of Confederation, they had no real power. 00:07:10.740 --> 00:07:13.060 They had no power to tax the states. They had 00:07:13.060 --> 00:07:15.600 to basically ask nicely, hey, Pennsylvania, can 00:07:15.600 --> 00:07:17.319 you please send some blankets? Hey, New York, 00:07:17.379 --> 00:07:19.180 any chance you could send some beef? And the 00:07:19.180 --> 00:07:21.879 states would just say no, or maybe later. They 00:07:21.879 --> 00:07:23.720 would say, sorry, we need to keep these supplies 00:07:23.720 --> 00:07:26.500 for our own state militia. Or they would just 00:07:26.500 --> 00:07:29.120 ignore the request entirely. So Marshall is there 00:07:29.120 --> 00:07:31.620 watching his friends die, not because of British 00:07:31.620 --> 00:07:33.740 bullets, but because the central government is 00:07:33.740 --> 00:07:36.279 too weak to function. He is seeing the fatal 00:07:36.279 --> 00:07:39.279 dysfunction of states' rights in real time in 00:07:39.279 --> 00:07:41.540 the most brutal way possible. So while he is 00:07:41.540 --> 00:07:44.000 freezing his toes off, he is having this political 00:07:44.000 --> 00:07:47.300 epiphany. He's thinking, we need a boss. We need 00:07:47.300 --> 00:07:49.379 a government that can actually give orders and 00:07:49.379 --> 00:07:51.779 have them followed. Precisely. He later wrote 00:07:51.779 --> 00:07:54.199 a very famous line about this. He said, I entered 00:07:54.199 --> 00:07:56.319 the army of Virginian and I left it in American. 00:07:56.600 --> 00:07:59.800 He realized that without a strong, coercive national 00:07:59.800 --> 00:08:02.220 government, the country would just dissolve into 00:08:02.220 --> 00:08:04.980 13 squabbling little countries that hated each 00:08:04.980 --> 00:08:07.720 other. That trauma is the engine of his entire 00:08:07.720 --> 00:08:10.199 career. He becomes a lifelong Federalist because 00:08:10.199 --> 00:08:12.639 he saw the alternative at Valley Forge and the 00:08:12.639 --> 00:08:14.879 alternative was starvation and death. That is 00:08:14.879 --> 00:08:17.199 a powerful reframing. It isn't some abstract 00:08:17.199 --> 00:08:19.480 political theory for him. It is literally a matter 00:08:19.480 --> 00:08:23.100 of survival. So the war ends. He needs a job. 00:08:23.439 --> 00:08:25.339 He does where a lot of ambitious young men in 00:08:25.339 --> 00:08:27.819 his position did. He becomes a lawyer. He briefly 00:08:27.819 --> 00:08:30.120 attends William and Mary, where he starts a debate 00:08:30.120 --> 00:08:33.200 club, by the way, always the organizer, and reads 00:08:33.200 --> 00:08:36.519 law under the great George Wythe. The legendary 00:08:36.519 --> 00:08:39.759 George Wythe, teacher of Jefferson, Monroe, Henry 00:08:39.759 --> 00:08:42.519 Clay. He's the Yoda of Virginia law, the absolute 00:08:42.519 --> 00:08:45.080 master. Marshall gets admitted to the bar in 00:08:45.080 --> 00:08:48.460 1780. And because he is smart, He's incredibly 00:08:48.460 --> 00:08:50.320 charming and he has those Fairfax connections. 00:08:50.679 --> 00:08:52.899 He rises fast. He gets elected to the Virginia 00:08:52.899 --> 00:08:55.860 House of Delegates. He marries Mary Polly Ambler, 00:08:55.879 --> 00:08:57.460 which is a whole story on its own that we should 00:08:57.460 --> 00:08:59.519 touch on later. And he starts making serious 00:08:59.519 --> 00:09:02.299 money. But he isn't just a lawyer. He is a political 00:09:02.299 --> 00:09:04.360 operator from the get go. And this is where he 00:09:04.360 --> 00:09:06.690 firmly aligns himself with the Federalists. Right. 00:09:06.730 --> 00:09:09.409 So in the late 1780s and 1790s, you have two 00:09:09.409 --> 00:09:11.809 teams forming in American politics. You have 00:09:11.809 --> 00:09:14.669 the Federalists, Alexander Hamilton, John Adams, 00:09:14.830 --> 00:09:17.350 George Washington, who want a strong central 00:09:17.350 --> 00:09:20.070 government, a national bank, a professional army, 00:09:20.250 --> 00:09:22.750 a modern commercial nation. And then you have 00:09:22.750 --> 00:09:25.460 the Democratic Republicans. led by his cousin 00:09:25.460 --> 00:09:28.080 Thomas Jefferson and James Madison, who want 00:09:28.080 --> 00:09:31.179 an agrarian nation of small farmers, strong states, 00:09:31.299 --> 00:09:33.320 and a weak central government. And Marshall, 00:09:33.480 --> 00:09:35.759 the survivor of Valley Forge, is team Federalist 00:09:35.759 --> 00:09:38.179 all the way, no question. All the way. He plays 00:09:38.179 --> 00:09:40.299 a major role in the Virginia Ratifying Convention 00:09:40.299 --> 00:09:43.779 for the Constitution in 1788. And it's funny, 00:09:43.879 --> 00:09:46.100 he is fighting alongside James Madison there. 00:09:46.200 --> 00:09:49.139 They are allies against the anti -Federalists 00:09:49.139 --> 00:09:51.000 like Patrick Henry, who think the new Constitution 00:09:51.000 --> 00:09:52.980 creates a government that's too powerful, too 00:09:52.980 --> 00:09:55.190 much like a monarchy. Politics makes strange 00:09:55.190 --> 00:09:58.070 bedfellows, as they say. And eventually very 00:09:58.070 --> 00:10:00.070 strange enemies. Yeah. Marshall was apparently 00:10:00.070 --> 00:10:02.450 particularly good at countering the fiery populist 00:10:02.450 --> 00:10:04.649 rhetoric of guys like Henry. He was logical. 00:10:04.669 --> 00:10:06.929 He was calm. And he just broke down the arguments 00:10:06.929 --> 00:10:10.190 piece by piece. OK, let's fast forward to 1797. 00:10:10.809 --> 00:10:14.289 Marshall is a known quantity, a rising star in 00:10:14.289 --> 00:10:17.090 the Federalist Party. And President John Adams 00:10:17.090 --> 00:10:20.049 sends him on a diplomatic mission that sounds 00:10:20.049 --> 00:10:23.309 absolutely insane to modern ears. The XYZ affair. 00:10:23.789 --> 00:10:25.730 Set the scene for us. It really is like something 00:10:25.730 --> 00:10:28.710 out of a spy thriller. Adams sends Marshall, 00:10:28.950 --> 00:10:31.309 along with Elbridge Gerry and Charles Coatsworth 00:10:31.309 --> 00:10:34.330 Pickney, to France. The goal is to negotiate 00:10:34.330 --> 00:10:37.039 peace. Because the French Navy, in the middle 00:10:37.039 --> 00:10:40.019 of their own revolutionary wars, is seizing American 00:10:40.019 --> 00:10:42.419 ships on the high seas. And the French foreign 00:10:42.419 --> 00:10:44.919 minister, a man named Talleyrand, plays games. 00:10:45.220 --> 00:10:47.399 Oh, he's a master of intrigue. He won't meet 00:10:47.399 --> 00:10:49.519 with them directly. Instead, he sends three secret 00:10:49.519 --> 00:10:51.620 agents who are later referred to in the documents 00:10:51.620 --> 00:10:55.299 as X, Y, and Z. Hence the name. Right. And these 00:10:55.299 --> 00:10:57.399 agents basically deliver a message. They say, 00:10:57.460 --> 00:10:59.679 you want to talk to Talleyrand? Great. Here's 00:10:59.679 --> 00:11:01.779 the price of admission. Give us a personal bribe 00:11:01.779 --> 00:11:05.139 of $250 ,000 for Talleyrand and a huge multimillion 00:11:05.139 --> 00:11:07.279 dollar loan for the French government. Then we'll 00:11:07.279 --> 00:11:09.799 say hello. This is just blatant extortion. It's 00:11:09.799 --> 00:11:12.600 an insult to the country. It is. And the Americans 00:11:12.600 --> 00:11:15.639 are stunned. Pinckney and Marshall in particular 00:11:15.639 --> 00:11:18.279 are furious. Marshall is the one who writes the 00:11:18.279 --> 00:11:20.840 official dispatches back home detailing this 00:11:20.840 --> 00:11:23.299 incredible insult. They refuse. They basically 00:11:23.299 --> 00:11:26.100 say, no, no, not a sixpence. And when this news 00:11:26.100 --> 00:11:28.519 gets out in America? The public goes wild. They 00:11:28.519 --> 00:11:31.559 love the spine. Marshall comes back to a hero's 00:11:31.559 --> 00:11:34.659 welcome. The slogan of the day becomes millions 00:11:34.659 --> 00:11:38.519 for defense, but not one cent for tribute. It's 00:11:38.519 --> 00:11:40.620 a huge political victory for the Federalists, 00:11:40.659 --> 00:11:43.740 and Marshall is the face of it. So Marshall rides 00:11:43.740 --> 00:11:46.360 this wave of popularity right into Congress in 00:11:46.360 --> 00:11:49.610 1799. He does, even though his district in Virginia 00:11:49.610 --> 00:11:51.929 heavily favored the other party. That's how personally 00:11:51.929 --> 00:11:55.129 popular he was after the XYZ affair. And in Congress, 00:11:55.190 --> 00:11:56.990 he quickly becomes the leader of the moderate 00:11:56.990 --> 00:11:59.450 Federalists. He defends President Adams on some 00:11:59.450 --> 00:12:01.769 controversial decisions, like extraditing a murder 00:12:01.769 --> 00:12:04.309 suspect to Britain. He's the go -to guy for a 00:12:04.309 --> 00:12:06.549 logical, powerful defense of the administration. 00:12:06.970 --> 00:12:10.289 And President Adams notices. In 1800, Adams makes 00:12:10.289 --> 00:12:12.669 him Secretary of State. Which was a huge job. 00:12:12.710 --> 00:12:15.169 He was the nation's chief diplomat, but he also 00:12:15.169 --> 00:12:17.990 had all sorts of domestic tasks, like supervising 00:12:17.990 --> 00:12:19.710 the construction of the new capital in Washington, 00:12:19.870 --> 00:12:22.990 D .C. But then, everything changes. The election 00:12:22.990 --> 00:12:25.789 of 1800 happens, what some people call the Revolution 00:12:25.789 --> 00:12:28.830 of 1800. Yeah, the Federalists are just swept 00:12:28.830 --> 00:12:31.610 out of power. It's a disaster for them. Jefferson 00:12:31.610 --> 00:12:34.870 wins the presidency. They lose control of Congress. 00:12:35.370 --> 00:12:37.889 Adams becomes a lame duck, just holding on to 00:12:37.889 --> 00:12:40.509 power for a few more months until the inauguration 00:12:40.509 --> 00:12:43.269 in March of 1801. And they are panicked. They 00:12:43.269 --> 00:12:45.549 genuinely think Jefferson is some kind of radical 00:12:45.549 --> 00:12:48.230 Jacobin who is going to burn down the government 00:12:48.230 --> 00:12:50.970 and start a French -style revolution. So they 00:12:50.970 --> 00:12:52.990 try to build a fortress in the one branch of 00:12:52.990 --> 00:12:56.049 government they can still control. The judiciary. 00:12:56.409 --> 00:13:00.090 This is the infamous Midnight Judges Act. In 00:13:00.090 --> 00:13:02.330 the final weeks of their term, they pass a law 00:13:02.330 --> 00:13:04.509 creating a whole bunch of new federal courts 00:13:04.509 --> 00:13:06.850 and judgeships, and they start frantically filling 00:13:06.850 --> 00:13:09.409 them with loyal Federalists. These are lifetime 00:13:09.409 --> 00:13:11.389 appointments, so they're hoping to keep Federalist 00:13:11.389 --> 00:13:14.389 influence alive for decades to come. And amidst 00:13:14.389 --> 00:13:16.690 all this scrambling, the Chief Justice of the 00:13:16.690 --> 00:13:18.830 Supreme Court, a man named Oliver Ellsworth, 00:13:19.009 --> 00:13:21.990 resigns due to poor health. So Adams is scrambling. 00:13:22.320 --> 00:13:23.980 He needs a new chief justice and he needs one 00:13:23.980 --> 00:13:27.139 fast. He first offers the job to John Jay, who 00:13:27.139 --> 00:13:30.240 had been the first chief justice. And Jay basically 00:13:30.240 --> 00:13:32.360 laughs at him. He writes back a famous letter 00:13:32.360 --> 00:13:35.519 saying the court lacks energy, weight and dignity. 00:13:35.940 --> 00:13:37.899 He wouldn't take the job if you gave it to him. 00:13:38.000 --> 00:13:39.799 That's how little people thought of the Supreme 00:13:39.799 --> 00:13:42.159 Court. The first guy to have the job says no 00:13:42.159 --> 00:13:45.279 thanks. It's insulting. So Adams, in a moment 00:13:45.279 --> 00:13:47.980 of either genius or desperation, turns to his 00:13:47.980 --> 00:13:50.470 secretary of state. Marshall is in his office 00:13:50.470 --> 00:13:53.690 and Adams just says, John, I believe I must nominate 00:13:53.690 --> 00:13:56.649 you. Marshall's completely surprised, but he 00:13:56.649 --> 00:13:59.350 accepts. But wait a minute. He is still the secretary 00:13:59.350 --> 00:14:02.210 of state. Yes. For about a month from February 00:14:02.210 --> 00:14:05.470 to early March 1801, he holds both jobs simultaneously. 00:14:05.929 --> 00:14:08.250 He's the chief justice of the United States and 00:14:08.250 --> 00:14:11.190 the secretary of state. And in his role as secretary 00:14:11.190 --> 00:14:13.330 of state, he is tasked with signing, sealing 00:14:13.330 --> 00:14:15.509 and delivering all these commissions for the 00:14:15.509 --> 00:14:18.519 new midnight. judges before Jefferson takes over 00:14:18.519 --> 00:14:20.879 at midnight on March 3rd. And this is where the 00:14:20.879 --> 00:14:23.600 great Chief Justice makes a huge rookie mistake, 00:14:23.840 --> 00:14:26.740 a clerical error that changes history. It's incredible. 00:14:26.840 --> 00:14:30.340 He's overworked. It is late. He is signing stacks 00:14:30.340 --> 00:14:32.659 of papers by candlelight. He gets most of them 00:14:32.659 --> 00:14:35.500 out. But at the end of the night, he leaves a 00:14:35.500 --> 00:14:37.899 stack of signed and sealed commissions on his 00:14:37.899 --> 00:14:40.929 desk. He just assumes the incoming administration 00:14:40.929 --> 00:14:43.330 will do the courteous thing and have them delivered. 00:14:43.490 --> 00:14:45.950 He assumes James Madison, who is Jefferson's 00:14:45.950 --> 00:14:48.409 new secretary of state, will just do him a favor 00:14:48.409 --> 00:14:51.269 and deliver jobs to his political enemies. That 00:14:51.269 --> 00:14:54.490 seems incredibly naive. It was incredibly negligent. 00:14:54.669 --> 00:14:57.250 He leaves the papers. Jefferson's administration 00:14:57.250 --> 00:14:59.750 walks in the next day. They see the commissions 00:14:59.750 --> 00:15:01.690 for these Federalist judges sitting on the desk, 00:15:01.730 --> 00:15:04.360 and Jefferson says, nope, toss them. And one 00:15:04.360 --> 00:15:06.440 of those tossed papers, one of those undelivered 00:15:06.440 --> 00:15:08.679 commissions, belonged to a man named William 00:15:08.679 --> 00:15:11.279 Marbury. Which brings us to the case that changes 00:15:11.279 --> 00:15:14.039 absolutely everything. But before we break down 00:15:14.039 --> 00:15:16.980 Marbury v. Madison, we need to understand what 00:15:16.980 --> 00:15:19.340 Marshall did to the court itself, the culture 00:15:19.340 --> 00:15:22.460 of the court, before that famous ruling. Because 00:15:22.460 --> 00:15:24.860 the vibe change was immediate and it was profound. 00:15:25.279 --> 00:15:28.080 You mentioned earlier the court was a minor organ. 00:15:28.669 --> 00:15:30.789 And that nobody wanted the job. It was also just 00:15:30.789 --> 00:15:33.049 dysfunctional. Before Marshall, the justices 00:15:33.049 --> 00:15:36.149 used the British system called Syriatum. That 00:15:36.149 --> 00:15:38.570 means if a case is heard, every single justice 00:15:38.570 --> 00:15:41.450 writes their own separate opinion. So Justice 00:15:41.450 --> 00:15:44.529 A says, I think this. Justice B says, I think 00:15:44.529 --> 00:15:47.129 that. Justice C says, I disagree with both of 00:15:47.129 --> 00:15:48.870 them. So you don't get a clear ruling. You get 00:15:48.870 --> 00:15:51.480 a transcript of a debate club. Exactly. There 00:15:51.480 --> 00:15:54.240 is no clear law of the land, just a bunch of 00:15:54.240 --> 00:15:56.779 guys talking past each other. It was confusing, 00:15:56.879 --> 00:15:59.679 and it weakened the court's authority. Marshall 00:15:59.679 --> 00:16:02.519 stops that on day one. He convinces the other 00:16:02.519 --> 00:16:04.899 justices to issue a single majority opinion of 00:16:04.899 --> 00:16:08.279 the court. One voice, one ruling, one authority. 00:16:08.500 --> 00:16:10.320 How does he get them to agree to that? These 00:16:10.320 --> 00:16:12.500 are all lifetime appointees. They've got egos. 00:16:12.500 --> 00:16:14.820 You can't just tell them to be quiet. He uses 00:16:14.820 --> 00:16:18.830 his secret weapon, the boarding house. See, Washington, 00:16:18.950 --> 00:16:21.049 D .C. was basically a swamp back then. There 00:16:21.049 --> 00:16:23.690 wasn't much good housing. So Marshall arranged 00:16:23.690 --> 00:16:25.830 for all the justices to live together in the 00:16:25.830 --> 00:16:28.049 same boarding house when the court was in session. 00:16:28.190 --> 00:16:30.409 They ate all their meals together. They drank 00:16:30.409 --> 00:16:32.909 Madeira wine together every night. They avoided 00:16:32.909 --> 00:16:35.190 outside socializing. He basically turned the 00:16:35.190 --> 00:16:37.529 Supreme Court into a fraternity. Effectively. 00:16:37.830 --> 00:16:40.740 But it was a brilliant move. Marshall was incredibly 00:16:40.740 --> 00:16:43.480 charming. He was funny. He was self -effacing. 00:16:43.600 --> 00:16:45.720 He would guide the conversation over dinner, 00:16:45.919 --> 00:16:48.220 gently bringing everyone around to his point 00:16:48.220 --> 00:16:51.120 of view. The sources say he wasn't the most learned 00:16:51.120 --> 00:16:53.820 scholar on the court, but he had this charismatic 00:16:53.820 --> 00:16:56.779 force. He could put his own ideas into the minds 00:16:56.779 --> 00:17:00.120 of others. His cousin Jefferson absolutely hated 00:17:00.120 --> 00:17:02.440 this. He complained that the crafty chief judge 00:17:02.440 --> 00:17:04.819 was leading the other justices huddled up in 00:17:04.819 --> 00:17:07.730 conclave. He felt Marshall was hypnotizing them. 00:17:07.809 --> 00:17:09.730 It's not hypnotism. It's just called leadership. 00:17:10.109 --> 00:17:12.890 It is absolute brilliance. So by the time William 00:17:12.890 --> 00:17:15.730 Marbury's lawsuit hits the docket, Marshall has 00:17:15.730 --> 00:17:17.890 the court united and speaking with one voice. 00:17:18.289 --> 00:17:21.650 And he needs them united because he is walking 00:17:21.650 --> 00:17:24.329 into a political trap that could destroy the 00:17:24.329 --> 00:17:27.289 judiciary forever. OK, lay out the trap for us. 00:17:27.609 --> 00:17:30.950 Marbury wants his paper, his commission. He sues 00:17:30.950 --> 00:17:32.950 James Madison, the new secretary of state, to 00:17:32.950 --> 00:17:35.150 get it. He goes directly to the Supreme Court 00:17:35.150 --> 00:17:38.430 and asks for something called a writ of mandamus. 00:17:38.670 --> 00:17:40.970 Which is just a fancy Latin term for a court 00:17:40.970 --> 00:17:42.750 order commanding a government official to do 00:17:42.750 --> 00:17:45.730 their job. In this case, Madison, give him the 00:17:45.730 --> 00:17:48.250 paper. So here is Marshall's dilemma. It's a 00:17:48.250 --> 00:17:50.490 lose -lose situation. If he rules for Marbury 00:17:50.490 --> 00:17:52.890 and says, Madison, you have to give him the job. 00:17:53.529 --> 00:17:56.089 What happens? MSN laughs. President Jefferson 00:17:56.089 --> 00:17:59.009 ignores the order. The Supreme Court has no army, 00:17:59.069 --> 00:18:01.430 no police force. It can't make anyone do anything. 00:18:01.650 --> 00:18:04.410 If the president openly defies them, the court 00:18:04.410 --> 00:18:07.170 is revealed as powerless. It's a paper tiger. 00:18:07.390 --> 00:18:09.670 Game over for the judiciary. OK, so that's a 00:18:09.670 --> 00:18:11.670 disaster. So why not just rule for Madison? Just 00:18:11.670 --> 00:18:14.380 say, sorry, Marbury, you lose. Tough luck. Then 00:18:14.380 --> 00:18:16.680 Marshall and the Federalists look like cowards. 00:18:16.859 --> 00:18:19.259 He looks like he is bowing down to his political 00:18:19.259 --> 00:18:22.380 rival, his cousin Jefferson. He would be validating 00:18:22.380 --> 00:18:24.980 the idea that the president is above the law 00:18:24.980 --> 00:18:27.019 and can do whatever he wants. The court would 00:18:27.019 --> 00:18:29.359 look submissive. So if he says yes, he's ignored 00:18:29.359 --> 00:18:32.019 and looks weak. If he says no, he looks weak 00:18:32.019 --> 00:18:35.180 and submissive. It is a Kobayashi Maru, a no 00:18:35.180 --> 00:18:38.480 -win scenario. And Marshall somehow finds the 00:18:38.480 --> 00:18:41.970 third option. The decision. which comes down 00:18:41.970 --> 00:18:44.670 in 1803, is an absolute masterpiece of political 00:18:44.670 --> 00:18:46.970 and legal jiu -jitsu. Okay, so walk us through 00:18:46.970 --> 00:18:48.950 the steps of the ruling. How does he get out 00:18:48.950 --> 00:18:52.190 of the box? Right. Step one, he asks, does William 00:18:52.190 --> 00:18:53.829 Marbury have a legal right to the commission? 00:18:53.990 --> 00:18:56.349 The answer is yes, absolutely. It was signed 00:18:56.349 --> 00:18:58.390 by the president. It was sealed by the secretary 00:18:58.390 --> 00:19:01.190 of state. It is his property. He says Jefferson 00:19:01.190 --> 00:19:03.730 is wrong to withhold it. It is a violation of 00:19:03.730 --> 00:19:05.930 a vested legal right. So right off the bat, he 00:19:05.930 --> 00:19:08.009 slaps Jefferson in the face. He calls him out 00:19:08.009 --> 00:19:10.849 for acting illegally. He does. Then step two. 00:19:11.259 --> 00:19:14.299 He asks, if he has a right and that right has 00:19:14.299 --> 00:19:16.420 been violated, does the law provide a remedy? 00:19:16.799 --> 00:19:19.940 He answers, yes, of course. We are a nation of 00:19:19.940 --> 00:19:22.980 laws, not of men. If you are wronged, the courts 00:19:22.980 --> 00:19:25.400 must be able to help you. OK, so at this point, 00:19:25.440 --> 00:19:27.640 it really sounds like he is building up to issuing 00:19:27.640 --> 00:19:29.920 the order to Madison. It does. It sounds like 00:19:29.920 --> 00:19:32.039 he's about to walk right into the trap. But then 00:19:32.039 --> 00:19:35.019 comes step three, the brilliant pivot, the judo 00:19:35.019 --> 00:19:37.920 throw. He looks at the specific law that Marbury 00:19:37.920 --> 00:19:40.869 is using to sue in the Supreme Court. That law 00:19:40.869 --> 00:19:44.809 is Section 13 of the Judiciary Act of 1789. This 00:19:44.809 --> 00:19:46.829 was the law passed by Congress that gave the 00:19:46.829 --> 00:19:49.269 Supreme Court the power to issue these writs 00:19:49.269 --> 00:19:52.069 of mandamus in cases like this directly. Marshall 00:19:52.069 --> 00:19:54.490 says, OK, let me read the Constitution, specifically 00:19:54.490 --> 00:19:56.910 Article 3, which lays out the power of the judiciary. 00:19:57.950 --> 00:19:59.970 And the Constitution, he says, lists the very 00:19:59.970 --> 00:20:02.309 specific types of cases the Supreme Court can 00:20:02.309 --> 00:20:04.990 hear directly. What's called its original jurisdiction. 00:20:05.289 --> 00:20:07.930 Things like cases involving ambassadors or states. 00:20:08.150 --> 00:20:10.730 And guess what? Writs of mandamuses for government 00:20:10.730 --> 00:20:13.930 officers are not on that list. So he is saying 00:20:13.930 --> 00:20:17.769 that Congress, way back in 1789, passed a law 00:20:17.769 --> 00:20:20.309 that tried to give the court extra power, but 00:20:20.309 --> 00:20:22.349 the Constitution itself doesn't actually allow 00:20:22.349 --> 00:20:25.069 it. Exactly. He says Congress passed a law that 00:20:25.069 --> 00:20:28.309 conflicts with the Constitution. And it is emphatically 00:20:28.309 --> 00:20:30.309 the province and duty of the judicial department 00:20:30.309 --> 00:20:34.269 to say what the law is. And when a law conflicts 00:20:34.269 --> 00:20:37.470 with the Constitution, that law is void. He strikes 00:20:37.470 --> 00:20:39.390 down the law. He declares that section of the 00:20:39.390 --> 00:20:43.069 Judiciary Act unconstitutional. Therefore, the 00:20:43.069 --> 00:20:44.829 Supreme Court does not have the jurisdiction, 00:20:45.049 --> 00:20:48.690 the power to help Marbury. So William Marbury 00:20:48.690 --> 00:20:51.210 loses his case. So Marbury doesn't get the job. 00:20:51.410 --> 00:20:53.609 Jefferson wins the case. Madison doesn't have 00:20:53.609 --> 00:20:55.690 to deliver the commission. Jefferson wins the 00:20:55.690 --> 00:20:58.339 tiny battle. But Marshall wins the war for the 00:20:58.339 --> 00:21:00.440 future of the country because by denying the 00:21:00.440 --> 00:21:02.720 court a small power, the power to help Marbury, 00:21:02.859 --> 00:21:05.400 he claimed for it the ultimate power, judicial 00:21:05.400 --> 00:21:07.980 review. He established for the first time that 00:21:07.980 --> 00:21:09.759 the Supreme Court is the final interpreter of 00:21:09.759 --> 00:21:12.279 the Constitution and can strike down laws passed 00:21:12.279 --> 00:21:14.880 by a co -equal branch of government, the Congress. 00:21:15.140 --> 00:21:17.420 And Jefferson couldn't do anything about it because 00:21:17.420 --> 00:21:19.200 at the end of the day, Marshall ruled in his 00:21:19.200 --> 00:21:22.789 favor. Exactly. Jefferson couldn't ignore an 00:21:22.789 --> 00:21:25.190 order that didn't exist. He just had to sit there 00:21:25.190 --> 00:21:28.670 and fume while Marshall quietly crowned the court 00:21:28.670 --> 00:21:31.710 as a fully co -equal branch of government. It 00:21:31.710 --> 00:21:34.890 is absolute genius. He traded a low -level justice 00:21:34.890 --> 00:21:36.930 of the peace appointment for the power to say 00:21:36.930 --> 00:21:39.990 what the law is for everyone, forever. And that 00:21:39.990 --> 00:21:43.309 is the foundation of modern American law. Every 00:21:43.309 --> 00:21:45.789 single time the Supreme Court strikes down a 00:21:45.789 --> 00:21:48.549 ban on something or upholds a right or interprets 00:21:48.549 --> 00:21:50.549 a statute, they are standing on the shoulders 00:21:50.549 --> 00:21:53.730 of Marbury v. Madison. So the engine is built. 00:21:53.890 --> 00:21:56.289 Now Marshall takes it out for a drive. For the 00:21:56.289 --> 00:21:59.349 next 30 years, he uses this new power to define 00:21:59.349 --> 00:22:01.829 the nation. And the consistent theme seems to 00:22:01.829 --> 00:22:05.230 be. The nation over the states. Federal supremacy. 00:22:05.390 --> 00:22:07.869 That's the core of it. The best example is probably 00:22:07.869 --> 00:22:10.750 McCulloch v. Maryland in 1819. This is the famous 00:22:10.750 --> 00:22:13.730 bank case. Right. Congress had created the second 00:22:13.730 --> 00:22:15.869 bank of the United States. The state of Maryland 00:22:15.869 --> 00:22:18.230 hated it. They thought it was an unconstitutional 00:22:18.230 --> 00:22:21.170 monster that helped northern merchants. So they 00:22:21.170 --> 00:22:23.089 passed a law to tax the branch in Baltimore, 00:22:23.289 --> 00:22:25.450 hoping to drive it out of business. And the bank 00:22:25.450 --> 00:22:28.299 manager, James McCulloch, said. I'm not paying 00:22:28.299 --> 00:22:31.720 your tax. So the case goes to Marshall. And there 00:22:31.720 --> 00:22:34.200 are two huge questions for Marshall to answer. 00:22:34.400 --> 00:22:37.819 One, can Congress even create a bank in the first 00:22:37.819 --> 00:22:39.980 place? The word bank isn't in the Constitution. 00:22:40.119 --> 00:22:42.619 And the strict constructionists like Jefferson 00:22:42.619 --> 00:22:45.019 would say, if it isn't explicitly on the list 00:22:45.019 --> 00:22:47.630 of powers, you can't do it. Marshall completely 00:22:47.630 --> 00:22:49.490 rejects that. He says, look, the Constitution 00:22:49.490 --> 00:22:52.329 is a framework. It's an outline, not a detailed 00:22:52.329 --> 00:22:55.150 legal code. It gives Congress the power to tax, 00:22:55.269 --> 00:22:58.789 to borrow money, to regulate commerce. A bank, 00:22:58.890 --> 00:23:01.789 he argues, is necessary and proper to carry out 00:23:01.789 --> 00:23:04.549 those enumerated powers. This is the origin of 00:23:04.549 --> 00:23:07.410 implied powers. This is the huge concept. He 00:23:07.410 --> 00:23:09.509 writes that the Constitution is intended to endure 00:23:09.509 --> 00:23:12.750 for ages to come and must be adapted to the various 00:23:12.750 --> 00:23:15.609 crises of human affairs. It's a living document. 00:23:16.009 --> 00:23:18.970 Not a dead one. So yes, Congress can create a 00:23:18.970 --> 00:23:21.650 bank. And then the second question. Can the state 00:23:21.650 --> 00:23:24.210 of Maryland tax it? Here he drops one of his 00:23:24.210 --> 00:23:28.089 most famous and powerful lines. The power to 00:23:28.089 --> 00:23:31.650 tax involves the power to destroy. If a state 00:23:31.650 --> 00:23:34.390 can tax a federal institution, they can tax the 00:23:34.390 --> 00:23:37.089 mail, they can tax the military, they can bleed 00:23:37.089 --> 00:23:39.250 the federal government dry. And since the people 00:23:39.250 --> 00:23:41.069 of all the states created the federal government, 00:23:41.190 --> 00:23:43.849 one state cannot be allowed to destroy it. Federal 00:23:43.849 --> 00:23:48.710 law is supreme. This really feels like he is 00:23:48.710 --> 00:23:50.750 building the skeleton of the modern American 00:23:50.750 --> 00:23:53.589 state piece by piece. What about the economy? 00:23:53.710 --> 00:23:55.730 Because today, if you think about it, we can 00:23:55.730 --> 00:23:58.009 buy something on Amazon from a warehouse in Ohio 00:23:58.009 --> 00:24:00.230 and have it shipped to Texas without paying some 00:24:00.230 --> 00:24:02.990 kind of special Ohio export tax. You can thank 00:24:02.990 --> 00:24:04.930 Marshall for that. That comes from Gibbons v. 00:24:04.950 --> 00:24:07.849 Ogden in 1824, the great steamboat case. I love 00:24:07.849 --> 00:24:09.769 that this whole massive legal doctrine comes 00:24:09.769 --> 00:24:12.089 from a fight over steamboats on the Hudson River. 00:24:12.390 --> 00:24:15.269 It was big business. New York had granted a legal 00:24:15.269 --> 00:24:18.160 monopoly to Robert Fulton. to run steamboats 00:24:18.160 --> 00:24:20.259 in its waters. They tried to use that monopoly 00:24:20.259 --> 00:24:23.140 to stop a competitor, a man named Thomas Gibbons, 00:24:23.259 --> 00:24:25.519 who was running a ferry from New Jersey to New 00:24:25.519 --> 00:24:28.000 York. But Gibbons had a license from the federal 00:24:28.000 --> 00:24:30.839 government. So it's a showdown, state power versus 00:24:30.839 --> 00:24:33.400 federal power. And Marshall looks at the commerce 00:24:33.400 --> 00:24:36.880 clause of the Constitution. He does. And he interprets 00:24:36.880 --> 00:24:39.839 the word commerce incredible broadly. The other 00:24:39.839 --> 00:24:41.980 side argued commerce is just buying and selling 00:24:41.980 --> 00:24:44.259 things, like a bushel of wheat. Marshall says, 00:24:44.359 --> 00:24:47.240 no, no, no. Commerce is intercourse. It is navigation. 00:24:47.619 --> 00:24:50.000 It is the movement of goods and people between 00:24:50.000 --> 00:24:52.579 the states. He rules that states cannot put up 00:24:52.579 --> 00:24:54.779 these kinds of protectionist barriers to interstate 00:24:54.779 --> 00:24:57.339 trade. He essentially tore down the economic 00:24:57.339 --> 00:25:00.299 borders between the states. He created a single, 00:25:00.440 --> 00:25:04.279 unified American market. Without Gibbons v. Ogden, 00:25:04.440 --> 00:25:06.539 the United States might have looked like Europe 00:25:06.539 --> 00:25:09.339 before the European Union. Every state with its 00:25:09.339 --> 00:25:11.700 own tariffs and restrictive laws, it would have 00:25:11.700 --> 00:25:13.799 absolutely strangled the Industrial Revolution 00:25:13.799 --> 00:25:15.960 in the crib. So he protects the federal government. 00:25:16.039 --> 00:25:18.680 He protects the national market. What about private 00:25:18.680 --> 00:25:20.940 businesses and corporations? He protects them, 00:25:20.940 --> 00:25:24.359 too. Look at Dartmouth College v. Woodward. New 00:25:24.359 --> 00:25:26.420 Hampshire's legislature tried to take over Dartmouth 00:25:26.420 --> 00:25:28.880 College and turn it from a private school into 00:25:28.880 --> 00:25:32.440 a public one. Marshall said, no, the college's 00:25:32.440 --> 00:25:34.319 original charter from the King of England is 00:25:34.319 --> 00:25:37.359 a contract. And the Constitution explicitly says 00:25:37.359 --> 00:25:39.920 that states cannot pass laws that impair the 00:25:39.920 --> 00:25:42.720 obligation of contracts. So he is the best friend 00:25:42.720 --> 00:25:46.259 a business or a corporation ever had. He's creating 00:25:46.259 --> 00:25:49.380 stability. He is creating a stable, predictable 00:25:49.380 --> 00:25:52.210 environment for investment. If a state government 00:25:52.210 --> 00:25:54.410 can just rip up your contract because the political 00:25:54.410 --> 00:25:56.809 winds have changed, nobody is going to invest 00:25:56.809 --> 00:25:59.490 money or build anything. Marshall guaranteed 00:25:59.490 --> 00:26:02.230 a level of stability that was essential for capitalism 00:26:02.230 --> 00:26:04.490 to flourish. We can't talk about his time on 00:26:04.490 --> 00:26:06.490 the bench without mentioning the incredible political 00:26:06.490 --> 00:26:09.269 drama of the Aaron Burr treason trial. Oh, this 00:26:09.269 --> 00:26:12.730 is Hollywood stuff. It's 1807. Aaron Burr, the 00:26:12.730 --> 00:26:15.109 former vice president, the man who shot and killed 00:26:15.109 --> 00:26:17.750 Alexander Hamilton, is on trial for treason. 00:26:18.039 --> 00:26:20.460 He was accused of plotting to raise an army, 00:26:20.619 --> 00:26:22.980 break off the Western territories and create 00:26:22.980 --> 00:26:25.339 his own empire. And Marshall presided over the 00:26:25.339 --> 00:26:27.400 trial in his capacity as a circuit judge. He 00:26:27.400 --> 00:26:30.119 did. And he did two incredibly bold things that 00:26:30.119 --> 00:26:33.220 infuriated President Jefferson. One, he issued 00:26:33.220 --> 00:26:35.519 a subpoena for President Jefferson himself. He 00:26:35.519 --> 00:26:38.819 ordered the sitting president to hand over documents 00:26:38.819 --> 00:26:42.019 for a criminal trial. Yes. He was asserting the 00:26:42.019 --> 00:26:44.799 power of the judiciary over the executive. The 00:26:44.799 --> 00:26:47.559 president is not above the law. Jefferson was 00:26:47.559 --> 00:26:50.319 furious but eventually complied, in part. And 00:26:50.319 --> 00:26:53.019 secondly, Marshall defined treason very, very 00:26:53.019 --> 00:26:55.099 strictly, exactly as it's written in the Constitution. 00:26:55.779 --> 00:26:58.380 It says treason requires an overt act of war 00:26:58.380 --> 00:27:01.279 and two witnesses to that act. Marshall stuck 00:27:01.279 --> 00:27:03.220 to the letter of the law. The government's witnesses 00:27:03.220 --> 00:27:05.359 were shady and they couldn't prove an actual 00:27:05.359 --> 00:27:08.119 overt act of war. So Burr walked free. Burr was 00:27:08.119 --> 00:27:10.400 acquitted. Jefferson wanted him hanged, no question. 00:27:11.240 --> 00:27:13.500 But Marshall followed the law, even though it 00:27:13.500 --> 00:27:16.279 was deeply unpopular. It was a powerful statement 00:27:16.279 --> 00:27:19.119 about his independence and the rule of law over 00:27:19.119 --> 00:27:21.539 political passion. It really sounds like he is 00:27:21.539 --> 00:27:23.680 on an unbroken winning streak that never ends. 00:27:23.920 --> 00:27:27.140 But then we hit the Jacksonian era and things 00:27:27.140 --> 00:27:30.279 start to get darker. Yeah, the so -called era 00:27:30.279 --> 00:27:33.440 of good feelings ends. Andrew Jackson rises to 00:27:33.440 --> 00:27:36.660 power. And Jackson represents everything Marshall 00:27:36.660 --> 00:27:40.259 fears and disguises. Raw populism, mob rule, 00:27:40.539 --> 00:27:43.039 a deep disregard for institutions, and the rule 00:27:43.039 --> 00:27:45.460 of law. And this collision course happens over 00:27:45.460 --> 00:27:47.480 the rights of Native Americans. This is the great 00:27:47.480 --> 00:27:49.559 tragedy is the Marshall Court. It's focused on 00:27:49.559 --> 00:27:51.779 the Cherokee Nation in Georgia. The Cherokee 00:27:51.779 --> 00:27:53.400 had done everything the U .S. government asked. 00:27:53.480 --> 00:27:55.160 They adopted a written constitution. They had 00:27:55.160 --> 00:27:58.000 farms. They had a newspaper. And they had a treaty 00:27:58.000 --> 00:28:00.289 guaranteeing them their land. But Georgia wanted 00:28:00.289 --> 00:28:02.329 the land for cotton farming, and they passed 00:28:02.329 --> 00:28:04.970 laws essentially dissolving the Cherokee government 00:28:04.970 --> 00:28:07.309 and seizing their territory. So the Cherokee 00:28:07.309 --> 00:28:09.490 sooth. They put their faith in the American legal 00:28:09.490 --> 00:28:11.990 system. They go to Marshall. And in the first 00:28:11.990 --> 00:28:15.109 case, Cherokee Nation v. Georgia, Marshall kind 00:28:15.109 --> 00:28:18.609 of punts. It's a bit technical. He says, I sympathize, 00:28:18.609 --> 00:28:20.450 but you aren't a foreign nation, so you can't 00:28:20.450 --> 00:28:22.589 sue here directly. You are a domestic dependent 00:28:22.589 --> 00:28:24.970 nation. It's a painful technicality. Very painful 00:28:24.970 --> 00:28:29.200 one. But a year later. In 1832, in a case called 00:28:29.200 --> 00:28:32.579 Worcester v. Georgia, he tries to fix it. This 00:28:32.579 --> 00:28:34.720 case involved white missionaries who were arrested 00:28:34.720 --> 00:28:37.559 by Georgia for living on Cherokee land without 00:28:37.559 --> 00:28:40.339 a state license. And in this case, Marshall rules. 00:28:40.599 --> 00:28:43.319 He rules unequivocally. He says Georgia's laws 00:28:43.319 --> 00:28:45.759 have no force whatsoever in Cherokee territory. 00:28:46.519 --> 00:28:48.799 Treaties are the supreme law of the land, and 00:28:48.799 --> 00:28:50.339 only the federal government can deal with the 00:28:50.339 --> 00:28:52.759 tribes. The missionaries should be freed. It 00:28:52.759 --> 00:28:55.740 is a huge, landmark victory for tribal sovereignty. 00:28:56.470 --> 00:28:58.670 Legally. Legally. But then we get the brutal 00:28:58.670 --> 00:29:01.349 political reality. President Andrew Jackson supposedly 00:29:01.349 --> 00:29:04.269 says, John Marshall has made his decision. Now 00:29:04.269 --> 00:29:06.890 let him enforce it. Is that quote real? Did he 00:29:06.890 --> 00:29:09.069 actually say that? It's likely apocryphal. We 00:29:09.069 --> 00:29:10.750 don't have a direct source for those exact words. 00:29:11.130 --> 00:29:13.890 But his actions said the same thing. Jackson 00:29:13.890 --> 00:29:16.009 refused to send federal troops to enforce the 00:29:16.009 --> 00:29:18.349 order. Georgia kept the missionaries in jail 00:29:18.349 --> 00:29:21.609 and continued to brutalize the Cherokee. Eventually, 00:29:21.750 --> 00:29:24.329 the Cherokee were forced off their land onto 00:29:24.329 --> 00:29:27.220 the Trail of Tears. It just exposes the fundamental 00:29:27.220 --> 00:29:31.180 flaw in the system. The court has judgment, as 00:29:31.180 --> 00:29:33.619 Hamilton wrote, but it has no sword and no purse. 00:29:34.160 --> 00:29:37.160 Marshall was apparently devastated. He wrote 00:29:37.160 --> 00:29:39.079 to his friend and colleague Justice Joseph's 00:29:39.079 --> 00:29:41.180 story that he feared the Constitution was failing. 00:29:41.660 --> 00:29:44.519 He saw that the rule of law is fragile. It relies 00:29:44.519 --> 00:29:46.480 on the willingness of the executive branch to 00:29:46.480 --> 00:29:49.079 enforce it. If the president decides to go rogue, 00:29:49.240 --> 00:29:51.539 the court is just a bunch of old men in robes 00:29:51.539 --> 00:29:54.109 writing opinions. We can't talk about the limits 00:29:54.109 --> 00:29:56.250 of Marshall's vision of liberty without facing 00:29:56.250 --> 00:29:59.269 the biggest contradiction of all, slavery. This 00:29:59.269 --> 00:30:01.349 is where the gleaming statue of the great Chief 00:30:01.349 --> 00:30:04.450 Justice really starts to crack and crumble. For 00:30:04.450 --> 00:30:06.450 a long, long time, biographers gave him a pass. 00:30:06.589 --> 00:30:08.269 They'd say, oh, he owned a few house servants. 00:30:08.349 --> 00:30:11.170 He was a kindly master. He hated slavery in theory. 00:30:11.450 --> 00:30:13.859 Kind of waved it away. But the more recent source 00:30:13.859 --> 00:30:16.299 material, the hard data, says otherwise. The 00:30:16.299 --> 00:30:18.880 historian Paul Finkelman, among others, did a 00:30:18.880 --> 00:30:21.140 deep dive into the property records, the tax 00:30:21.140 --> 00:30:23.980 records. And Marshall didn't just own a few people. 00:30:24.119 --> 00:30:26.619 He owned hundreds of enslaved people over his 00:30:26.619 --> 00:30:29.500 lifetime at various plantations. He was an active 00:30:29.500 --> 00:30:32.339 participant. He bought and sold human beings, 00:30:32.500 --> 00:30:35.299 even using them as collateral to pay off his 00:30:35.299 --> 00:30:38.299 son's gambling debts. He was fully enmeshed in 00:30:38.299 --> 00:30:40.730 the slave economy. And how did that personal 00:30:40.730 --> 00:30:43.470 reality bleed into his judicial rulings? Because 00:30:43.470 --> 00:30:46.390 he had chances as a judge to lean towards freedom, 00:30:46.549 --> 00:30:48.769 didn't he? He did. There were numerous cases 00:30:48.769 --> 00:30:50.769 where enslaved people sued for their freedom 00:30:50.769 --> 00:30:53.230 based on technicalities or having resided in 00:30:53.230 --> 00:30:55.589 free territories. Marshall wrote seven majority 00:30:55.589 --> 00:30:58.049 opinions in cases involving slavery. He ruled 00:30:58.049 --> 00:30:59.849 against the enslaved person in every single one. 00:30:59.990 --> 00:31:03.450 Zero for seven. Zero for seven. Even in cases 00:31:03.450 --> 00:31:05.190 where the law was ambiguous and he could have 00:31:05.190 --> 00:31:07.990 leaned the other way. Take the famous case of 00:31:07.990 --> 00:31:11.109 the antelope in 1825. It involved a slave ship 00:31:11.109 --> 00:31:13.490 that was captured off the coast of Florida. Marshall 00:31:13.490 --> 00:31:16.569 wrote the opinion. And in it, he actually admits 00:31:16.569 --> 00:31:19.910 that slavery is against natural law, that it 00:31:19.910 --> 00:31:22.250 is morally wrong and contrary to the laws of 00:31:22.250 --> 00:31:24.829 nature. But there's a but. But, he says, is protected 00:31:24.829 --> 00:31:27.930 by positive law, the actual laws of nations and 00:31:27.930 --> 00:31:30.710 the laws of property. So he orders most of the 00:31:30.710 --> 00:31:32.829 captured Africans to be returned to their owners 00:31:32.829 --> 00:31:36.680 as property. He chose property rights over human 00:31:36.680 --> 00:31:39.099 rights. every single time it came before him 00:31:39.099 --> 00:31:41.680 on the bench. It is a chilling kind of compartmentalization. 00:31:42.099 --> 00:31:44.220 I know this is morally wrong, but the statute 00:31:44.220 --> 00:31:46.559 says it is property, so my hands are tied. It's 00:31:46.559 --> 00:31:49.319 what some call legal formalism. He hid behind 00:31:49.319 --> 00:31:51.519 the law to support a system from which he personally 00:31:51.519 --> 00:31:54.039 and financially benefited. He was also a leader 00:31:54.039 --> 00:31:56.380 in the American Colonization Society, whose goal 00:31:56.380 --> 00:31:58.960 was to ship free black people to Africa to a 00:31:58.960 --> 00:32:01.940 colony in Liberia because they didn't believe 00:32:01.940 --> 00:32:04.220 a multiracial society could ever work in America. 00:32:04.700 --> 00:32:07.240 It is a stark reminder that these founding fathers 00:32:07.240 --> 00:32:10.720 weren't marble statues. They were complex men 00:32:10.720 --> 00:32:13.500 with deep and, in this case, sometimes horrific 00:32:13.500 --> 00:32:16.279 flaws. And we are seeing a reckoning with that 00:32:16.279 --> 00:32:18.859 now. The John Marshall Law School in Chicago 00:32:18.859 --> 00:32:22.200 recently changed its name to the University of 00:32:22.200 --> 00:32:24.880 Illinois Chicago School of Law. They said they 00:32:24.880 --> 00:32:26.859 could no longer square their institutional mission 00:32:26.859 --> 00:32:29.559 of promoting justice with Marshall's record on 00:32:29.559 --> 00:32:32.440 slavery. It is complicated. He built the legal 00:32:32.440 --> 00:32:34.759 house we all live in, but he kept the door locked 00:32:34.759 --> 00:32:37.579 for a huge number of people. That is the perfect 00:32:37.579 --> 00:32:40.059 way to put it. Let's finish by getting to know 00:32:40.059 --> 00:32:42.200 the man behind the ropes a bit. Because despite 00:32:42.200 --> 00:32:44.799 the power and the title, he was kind of an oddball 00:32:44.799 --> 00:32:47.700 character, right? Not what you'd expect. He was 00:32:47.700 --> 00:32:49.660 a total mess. If you saw him on the street in 00:32:49.660 --> 00:32:52.039 Richmond, you would think he was a vagrant. He 00:32:52.039 --> 00:32:55.259 famously wore rusty old black shorts, mismatched 00:32:55.259 --> 00:32:58.799 socks, shirts that were unbuttoned. He just refused 00:32:58.799 --> 00:33:00.740 to dress like an aristocrat. He was completely 00:33:00.740 --> 00:33:02.920 without pretension. I love the turkey story. 00:33:03.019 --> 00:33:05.839 You have to tell the turkey story. It is a classic. 00:33:06.099 --> 00:33:09.900 A young, fancy lawyer, new to Richmond, sees 00:33:09.900 --> 00:33:12.359 this disheveled old man wandering through the 00:33:12.359 --> 00:33:15.990 market and assumes he is a servant. He tosses 00:33:15.990 --> 00:33:18.309 the old man a coin and asks him to carry his 00:33:18.309 --> 00:33:21.250 big Thanksgiving turkey home for him. And Marshall, 00:33:21.430 --> 00:33:23.910 without saying a word, takes the turkey, walks 00:33:23.910 --> 00:33:26.390 the young man home, and politely bows and hands 00:33:26.390 --> 00:33:28.950 it over. A neighbor has to run over and tell 00:33:28.950 --> 00:33:31.089 the kid, you just tipped the Chief Justice of 00:33:31.089 --> 00:33:33.109 the United States. And his love for the game 00:33:33.109 --> 00:33:35.690 of quoits. He was obsessed with quoits. It's 00:33:35.690 --> 00:33:37.509 a game like horseshoes, but you throw these heavy 00:33:37.509 --> 00:33:39.829 iron rings. He was the champion of the Richmond 00:33:39.829 --> 00:33:42.349 Quites Club, and he was famous for getting right 00:33:42.349 --> 00:33:44.470 down on his hands and knees in the dirt to measure 00:33:44.470 --> 00:33:47.009 the distance with the straw. He took his fun 00:33:47.009 --> 00:33:49.269 very, very seriously. And his marriage to his 00:33:49.269 --> 00:33:52.029 wife, Polly, it's actually a very sad but also 00:33:52.029 --> 00:33:54.910 very touching story. It is. Polly suffered from 00:33:54.910 --> 00:33:57.630 severe anxiety and what they called nervous ailments. 00:33:57.910 --> 00:34:00.309 She was essentially an invalid for most of their 00:34:00.309 --> 00:34:02.910 long marriage. And Marshall was incredibly devoted 00:34:02.910 --> 00:34:05.069 to her. He would take his shoes off when he came 00:34:05.069 --> 00:34:06.990 in the house so his footsteps wouldn't make noise 00:34:06.990 --> 00:34:09.670 and startle her. He centered his entire domestic 00:34:09.670 --> 00:34:12.710 life around her comfort and well -being. When 00:34:12.710 --> 00:34:15.429 she died in 1831 after nearly 50 years of marriage, 00:34:15.630 --> 00:34:18.530 he was absolutely crushed. He didn't live much 00:34:18.530 --> 00:34:21.730 longer after her, did he? No. He died in 1835 00:34:21.730 --> 00:34:23.630 while in Philadelphia for medical treatment. 00:34:24.130 --> 00:34:26.530 And this brings us to the final great legend 00:34:26.530 --> 00:34:29.849 of John Marshall, the Liberty Bell. Did it actually 00:34:29.849 --> 00:34:31.989 crack for him? Is that a real thing? The story 00:34:31.989 --> 00:34:34.090 goes that the Liberty Bell told for his funeral 00:34:34.090 --> 00:34:36.530 procession, and that is when it sustained its 00:34:36.530 --> 00:34:40.170 famous crack, never to ring again. It is almost 00:34:40.170 --> 00:34:42.269 certainly a myth. The crack probably happened 00:34:42.269 --> 00:34:44.510 a bit later, but the poetry of it is just too 00:34:44.510 --> 00:34:46.789 good to ignore. The Bell of Liberty cracking 00:34:46.789 --> 00:34:50.010 as the last of the founders dies. So when we 00:34:50.010 --> 00:34:51.750 look at his tombstone in Richmond, what does 00:34:51.750 --> 00:34:54.809 it say? Here lies John Marshall, the man who 00:34:54.809 --> 00:34:57.949 invented the Supreme Court. No, it is shocking 00:34:57.949 --> 00:35:00.630 in its simplicity. He wrote the inscription himself. 00:35:00.869 --> 00:35:03.010 It lists his parents. It lists his marriage to 00:35:03.010 --> 00:35:06.230 Polly and the date of his death. That is it. 00:35:06.570 --> 00:35:10.670 No chief justice, no secretary of state, no general, 00:35:10.809 --> 00:35:14.469 no mention of his famous cases. Just a son and 00:35:14.469 --> 00:35:16.409 a husband. The man who was happy to carry his 00:35:16.409 --> 00:35:18.789 own turkey right to the end. To the very end. 00:35:18.929 --> 00:35:21.570 So let's wrap this up. What is the big takeaway 00:35:21.570 --> 00:35:23.670 for the listener commuting to work right now? 00:35:23.730 --> 00:35:26.570 Why does this man from 200 years ago still matter 00:35:26.570 --> 00:35:29.099 so much? The takeaway is that the government 00:35:29.099 --> 00:35:31.199 isn't some machine that just runs itself. It 00:35:31.199 --> 00:35:33.579 was built consciously by people. Marshall took 00:35:33.579 --> 00:35:36.739 a piece of paper, a constitution full of ambiguities 00:35:36.739 --> 00:35:39.599 and aspirations, and through sheer force of will 00:35:39.599 --> 00:35:41.900 and intellect, he willed a powerful government 00:35:41.900 --> 00:35:44.500 into existence. He made the constitution's paper 00:35:44.500 --> 00:35:47.280 into real power. But he also left us a question. 00:35:47.559 --> 00:35:49.820 Marshall was the great champion of implied powers. 00:35:50.019 --> 00:35:51.900 He believed the government had to grow and adapt 00:35:51.900 --> 00:35:54.340 to meet the crisis of the day. The living constitution. 00:35:54.500 --> 00:35:57.949 That was his idea. So if... John Marshall walked 00:35:57.949 --> 00:36:01.369 into Washington, D .C. in 2026 and saw the sheer 00:36:01.369 --> 00:36:03.969 size and scope of the federal government today, 00:36:04.130 --> 00:36:06.489 the EPA, the FBI, the Department of Education, 00:36:06.670 --> 00:36:08.849 the trillions and trillions of dollars in spending. 00:36:09.230 --> 00:36:12.170 Would he say, yes, this is exactly what I meant 00:36:12.170 --> 00:36:14.949 by implied powers? Or would he be horrified? 00:36:15.549 --> 00:36:18.369 Would he think that the necessary and proper 00:36:18.369 --> 00:36:21.150 clause he unleashed had completely eaten the 00:36:21.150 --> 00:36:22.989 rest of the document and destroyed the limited 00:36:22.989 --> 00:36:24.949 government he thought he was building? That's 00:36:24.949 --> 00:36:26.550 the question, isn't it? I think he would probably 00:36:26.550 --> 00:36:28.110 just want to know if he could tax it. He almost 00:36:28.110 --> 00:36:30.550 certainly would. That is it for this deep dive 00:36:30.550 --> 00:36:33.010 into the life and legacy of John Marshall. Thanks 00:36:33.010 --> 00:36:34.409 for listening. See you next time.