John Marshall: The Farmer’s Son Who Became America’s Greatest Chief Justice

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Speaker 1: This is Lee Habeeb and this is Our American Stories, the show where America is the star and the American people up next to the story of an often overlooked founding father. Well, you may have heard of John Marshall in history class. It was probably but for a brief moment concerning the landmark decision is Supreme Court handed down in eighteen oh three Marbury versus Madison. But his life is much more than just his cases. Here to tell the story of the man is Richard Burkheiser, author of John Marshall, The Man who made the Supreme Court.

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Speaker 2: So I think the first thing say about who John Marshall was, and this is even though he spent most of his adult life in Richmond, spent a couple of years in Philadelphia, six months in Paris. Despite all that experience of city living, he was a country boy all his life. The house he was born in was a log cabin. The second house he grew up in was a frame house. The third had glass in the windows. It wasn’t Daniel Boone going through the Cumberland Gap, but it was out in the country. And it seems to me that Marshall so enjoyed that manner of life that he never entirely forsook it. The word that comes up over and over again and descriptions of him is simple. This word is used by people who are meeting him for the first time. It’s used by people who’ve known him for years. They describe him as simple. He didn’t care how he dressed. He didn’t care how his hair was cut. His wife cut it for him. He had simple attitudes toward drinking. He liked it. He liked it a lot. When he was Chief Justice. The wine merchants of Washington call their best stuff the Supreme Court because he was one of their best customers. The Court had a custom in those days that after the justices heard the cases and they would go back to their boarding house and discuss them over dinner, and afterwards they could only have wine if it was raining. So Marsha would always ask one of his colleagues, usually Associate Justice, story, brother’s story, look out the window and tell us what the weather is. And Story might say, the sky is perfectly clear, and Marshall would always answer, our jurisdiction is so vast that, by the law of chances, it must be raining somewhere. So wine was always served at the Marshall Court. Marshall liked simple games all his life. He regularly walked several miles before breakfast just to get himself going. He did it as long as he was mobile. His nickname in the army was silver Heels, partly because his mother sewed socks that had whitened the heels, but also because Marshall could jump over a bar that rested on the heads of two men. He loved the game called quoits, which is horseshoes played with metal rings, not horseshoes. And there was a club in Richmond called the Quoits Club, and the Governor of the state was ex officio a member, but the membership was limited. The members sang, they gave humorous speeches. If you mentioned politics or religion, you were find a case of champagne for the next meeting. And they also played this game of quoits. And people said that Marshall seemed to pay as much attention to judging who’s quoite got closest to the meg as he gave to his judicial decisions. So this was, in many respects a simple man, the man he most admired, apart from his father, Thomas Marshall was the father of his country. Marshall volunteered to serve in the militia in seventeen seventy five, and he was nineteen years old. He was in the army almost until the end of the Revolution. He was in three battles that Washington commanded, Brandywine, Germantown, and then Monmouth. And between Germantown and Monmouth he was at Valley Forge. So Marshall saw Washington in defeats, he saw him in victory. He saw him when the army had nothing to do but suffer from lack of clothing, lack of food, lack of pay. And Marshall’s conclusion from these experiences was that George Washington was the rock on which the revolution rested. When Washington returned his commission as Commander in Chief to Congress, Marshall wrote a letter to his old friend James Monroe, and he said at length, the military career of the the greatest man on earth is closed. May happiness attend him wherever he goes. When I think of that superior man, my full heart overflows with gratitude. Marshall didn’t just admire him as a military leader. He agreed with Washington’s diagnosis of the political problems that had made the war so difficult for the army. The form of government that the Independent America first had, the Articles of Confederation, was inadequate to its task. It didn’t give the government the power or the energy to do the things that it had to do, so when reform was necessary. When the Constitutional Convention met in seventeen eighty seven, presided over by Washington, signed by Washington, Marshall follows him once again, ratifying the Constitution. Marshall follows Washington again in joining the Federalist Party. Marshall follows Washington a third time. He is summoned to Mount Vernon along with Washington’s nephew, Bushrod Washington, and George. Washington tells these two young men, you have to run for Congress in Virginia. The Federalist Party is in trouble in this state. We need new blood. You have to run. Marshall doesn’t want to do it. He’s a lawyer in private practice. He’s a very good one. He’s making good money. He started a family, and he’s buying land and buying farms, and he needs the income. But Washington keeps insisting he’s after him and after him. And the anecdote about this visit is that Marshall decided he couldn’t keep saying no to his former commander in chief, so he decided to get up at the crack at dawn and just leave. But Washington had gotten up earlier and put on his uniform. Whether that’s literally true or not, what Marshall said later was that I yielded to Washingtonington’s representations. He was elected to the House and this puts him on the escalator to be John Adams’s Secretary of State and finally Chief Justice.

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Speaker 1: When we come back more of the story of John Marshall here on our American Stories Lehabib Here as we approach our nation’s two hundred and fiftieth anniversary, I’d like to remind you that all the history stories you hear on this show are brought to you by the great folks at Hillsdale College. And Hillsdale isn’t just a great school for your kids or grandkids to attend, but for you as well. Go to Hillsdale dot edu to find out about their terrific free online courses. Their series on Communism is one of the finest I’ve ever seen again. Go to Hillsdale dot edu and sign up for their free and terrific online courses. Can we continue with our American stories and with the story of John Marshall When we last left off, At the prodding of George Washington, Marshall been elected to Congress, But bigger things we’re about to come. Here again is Richard Berkeeiser, author of John Marshall, the Man who made the Supreme Court.

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Speaker 2: So Marshall serves in Congress. Adams makes him Secretary of State after he cleans the Hamilton loyalists out of his cabinet, and then at the end of his administration, the lame duck end of it. Because Adams has lost the election of eighteen hundred. This is his rematch with Thomas Jefferson. A very important vacancy opens up because Adams gets a letter from the then Chief Justice, Oliver Ellsworth, and Allsworth has gout his health is bad, so he tells Adams he quitting. Adams offers the post to the first man who’d held it, the great revolutionary patriot, spymaster diplomat John Jay. Then Adams gets a letter from Jay saying that he won’t take the appointment He says that the federal judiciary lacks energy, weight, and dignity, so he’s going to stay home. In New York, Adams has a meeting with his Secretary of State in the still unfinished White House. The shell has been completed, but the inside is almost like a construction site. And as Marshall recalled it, Adams asked him, who shall I nominate now? And Marshall said, I don’t know, I don’t know, Sir. Adams paused a minute and said, I believe I’ll nominate you. He was shortly confirmed sworn in, and then after a few weeks he swore in the new president, Thomas Jeffrey person. He didn’t hate hardly anybody, but he did hate his second cousin. Once removed, Thomas Jefferson returned that hatred. Jefferson hated a lot of people, but Marshall was always high on his list. Jefferson’s opinion was that Marshall was a sophist, that he would take any statement and twist it into some predetermined judicial conclusion. Marshall warned Joseph’s story before he got on the Supreme Court. He said, you must never give a direct answer to any question that Marshall asks you, if he asked me if the sun were shining, I would say, I don’t know, sir, I cannot tell. Marshall’s opinion of Jefferson was that he was a demagogue, that he pretended to be a hands off president, taking his lead from Congress, but that he secretly manipulated it through the House and did so to ride storms of popular passion for his own benefit. The sundering episode in the relationship happened when a letter that Jefferson had written to an Italian friend was published, first in Europe, then in England, and finally in America. And in this letter Jefferson said, I would put you in a fever if I named men here who have been Solomon’s in council and Sampson’s in the field, whose heads have been shorn by the Harlot England. Now Solomon, of course was a king of Israel. Sampson was a judge of Israel. So this letter was interpreted in America, and certainly by John Marshall, as a direct attack on George Washington. For years, Jefferson had taken the position that Washington was still a good man. He was being manipulated by Hamilton, but here in the Messiah Letter he seems to be pointing his finger directly at Washington. Four years later, when Alexander Hamilton is trying to get Federalists to prefer Thomas Jefferson to Aaron Burr after the deadlocked election of eighteen hundred, one of the federalists he writes as John Marshall, and Marshall wrote him back and said, I don’t know Burr.

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Speaker 1: You do.

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Speaker 2: I have to accept your opinion of him, But the morals of the author of the letter to Mazzi cannot be pure. This is how Virginia gentlemen said he is dead to me. So how did he take this job which John Jay had refused to hold again because he said it lacked energy, weight, and dignity. How did Marshall supply those qualities to it? I think the first trait he used was geniality, and this helped him work with his fellow justices. When he comes in as Chief Justice. The court has only six members, so all six of them are Federalists. They’ve all been appointed by Washington or Adams. But in only eleven years, one man retired, a couple more died, the Congress increased the size of the court to seven justices, and by then the partisan balance as two Federalists and five Republicans. That’s a significant shift. Yet all these new Republicans voted along with John Marshall. So how did this happen? I think the geniality is the first quality. Marshall was not only simple, he was likable and he liked people. When Joseph’s story first encountered him as an advocate before the Supreme Court, he wrote home, and he said, I love his laugh. I love his laugh. Another technique Marshall used was deference. He would defer to justices who were more expert in particular airs areas of the law than he was. But when he deferred, he got deference in return. So deference is not only polite or virtuous. It’s also smart. You give something and you get something back. The third quality Marshall had is that he’s always the smartest man in the room. And his intelligence was not quick. It took a while for him to get going, but when he did, his reasoning could seem almost implacable. His major decisions are eight nine, ten thousand words long, and they’re built like granite. They’re supposed to have that solidity in that weight. One advocate before the Supreme Court, William Wirt, who would later become Attorney General. He said that Marshall’s mind was like the Atlantic Ocean. Everybody else’s minds were ponds. This is how Marshall struck someone who knew what he was talking about. Marshall used all these qualities over an enormous length of time. His idol, George Washington, was Commander in Chief for eight and a half years and then President for eight so he’s in effect he’s the chief executive of the country for sixteen and a half years. Marshall is Chief Justice for thirty four years, twice as long. He’s appointed by John Adams. He serves into the second term of Andrew Jackson. He inaugurates five presidents in nine inaugurals, and he still holds the record for length of tenure of a Chief Justice. And in the middle of that period, the Court had a remarkable twelve year stretch where there were no personnel changes. So he has thirty four years to work his magic on his fellow justices, and he puts them to good use. His most famous case is probably Marbory versus Madison and We’re all taught that in school because it establishes that the Court can rule a law passed by Congress or a portion of it unconstitutional. Well, it’s true that that’s what Marbury did. I don’t think that was news when it happened. The concept of judicial review was already out there. What was most striking at the time about Marbury. It’s a nine thousand word decision, and about eighty five hundred words of it is a lecture to the Jefferson administration. It’s telling them, you thought we were the bad guys, and you said you would be the good guys who do everything right. But you have done wrong by William Marbury. He deserved his commission and you didn’t give it to him. Now he’s not going to get it because the form of redress he’s seeking is a portion of the Judiciary Act of seventeen eighty nine, which is in fact unconstitutional. But still shame on you.

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Speaker 1: And you’ve been listening to Richard Brookhiser, author of John Marshall, The Man who Made the Supreme Court, tell the story of John Marshall served a brief time in Congress. He was the Secretary of State under John Adams. We learned and then came that nomination to the Court, to the Supreme Court, just to well get under the skin of incoming President Thomas Jefferson. He would serve as the chief Justice for thirty four years, and that is still a record. And we learned that the same court, the same members well I had stood together for twelve years, another record. When we come back how Marshall shaped the Supreme Court and more here on our American stories. And we continue with our American stories and the final portion of our story on John Marshall. The most important Chief Justice of the US Supreme Court telling the story is Richard Brookheiser. Let’s begin this segment with a look into one of Marshall’s most important decisions.

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Speaker 2: Now, when we think of founding fathers who are responsible for our economic system, we mostly think of Alexander Hamilton, and he certainly deserves all that credit. But his plans and his achievements had to have legal support as well. And in Marshall’s contract law decisions and in his commerce decision, he lays the legal support for a national market in which people are free to contract with each other Gibbons versus ogden I. Like the story known as the steamboat case. Steamboats were invented several different times. At the end of the eighteenth and early nineteenth century, several people figured out how to take a watt steam engine, which was a new innovation, and put it on a boat and convert its power into a mechanism that would turn a paddle wheel. One of these inventors was Robert Fulton, and he demonstrated his first boat on the Seenne in France, and one of the spectators was the American Minister to France, Robert Livingstone. Several earlier steamboat inventors had failed because they’d lacked the money. Livingston was a wealthy New York grandees. When he saw Fulton’s steamboat, he thought, this is it. He would become a backer of Fulton. So you had the boat, you had the money, but the third thing that you needed was political protection. This is something that Livingstone could also arrange because he knew everybody in the state of New York. So in eighteen oh eight, New York granted him and Fulton a monopoly on steamboats in New York waters for thirty years. In eighteen eleven, they added that if the monopolists were sued, the steamboats of those who were suing them would be impounded while litigation proceeded. So that’s a nice extra guarantee. And the competition sprung up. Immediately people saw how this worked, they built their own boats. They took the monopoly to court. The New York’s Supreme Court upheld the monopoly. Another thing the monopoly did was it bought off the competition. There were some businessmen in Albany who had two boats, and so the monopoly said, all right, we’ll give you Lake Champlain, but we’re going to keep the Hudson River in New York Harbor and Long Island Sound. Another competitor they bought off was a New Jersey man, Aaron Ogden, who was running a boat from Elizabeth, New Jersey into Staten Island. Now. Ogden himself took on a partner, Thomas Gibbons, and for a couple of years their partnership worked very well. Then there was a crisis in Gibbons’s family. A rumor went abroad that Gibbons’s daughter had slept with her fiance. Gibbons’s solution to this rumor was that he and his wife and his daughter should all sign an advertisement in the newspaper saying that the rumor was false. Apparently the rumor was true, but mister Gibbons wanted to take out this family ad. Aaron Ogden thought this was a bad idea, but his opinion so enraged Gibbons that Gibbons came to Ogden’s house with a bullwhip. Ogden fled out the back door and sued Gibbons for trespass. This end their partnership. So when Gibbons v Ogden comes to the Supreme Court in eighteen twenty four, Daniel Webster makes an eloquent argument on behalf of Gibbons. The issue was there’s a commerce clause in the Constitution which says that Congress has power over the commerce of the United States. But Congress had passed no laws having to do with steamboats or steamboat traffic in New York State. And the lawyers for the monopoly said, oh, of course, if Congress passes a law, we have to obey it. But Congress has passed no law. New York State has a right to form a monopoly for steamboats within its waters. Webster’s argument denied that. He said, even in the absence of action by Congress, commerce is of such importance and of such unity that it has to be left in Congress’s hands. Commerce of the United States is a unit e pluribus unum. And after Marshall gave his decision, he said, the Chief Justice took my argument as a baby takes its mother’s milk. That wasn’t quite right. He essentially repeats Webster’s argument, But then he hangs his decision on a smaller point, which was that Gibbons Boats had a federal coasting license, a piece of id for revenue purposes. It proved that you had an American boat, so you would not be subject to penalties that we put on foreign boats. But Marshall said, a license is a license to do a thing. So if you have a coasting license, even if it was intended as a revenue measure, you have a license to coast, and therefore you can take your boat from Elizabeth into Staten Island. So this was a victory for Gibbons, a defeat for the monopoly. A week after the decision came down, the first competitor’s boat sailed into New York Harbor, firing cannon. People waved at it from the shore, and the number of steamboats in New York waters quadrupled almost immediately. Marshall himself took a lot of criticism in his career and after. His most industrious enemy was Jefferson. Jefferson spent his presidency and his retirement years fretting about martial decisions, and he tried at the end of his life to suggest an alternative. He said, these questions should not rest with the Supreme Court. If it’s a constitutional question, it should be resolved in a constitutional convention. He ran this idea past his protege in his right hand, James Madison, and then Madison did what he so often did with his beloved elder. He was like the man holding the guy rope to the dirigible, and he he just gave it a little earthly tug, and he said a series of constitutional conventions would be tardy, troublesome, and expensive. Jefferson never made the site proposal publicly. Another Jeffersonian who did make public proposals was Senator Richard Johnson. He’s most famous for having killed to Cumpsea. He’s probably second most famous for his campaign jingle Ripsey Rampsey Rumpsey dumpsy, I did Johnson killed to Cumpsey, but he deserves to be more famous than that. He was a serious man, a serious populist, and he thought it was wrong that the ultimate judge of these questions should be the unelected Supreme Court. He proposed to restrict the jurisdiction of the Court, proposed that the Senate could have a veto on court decisions. None of these amendments went anywhere. So this is an ongoing question about John Marshall’s legacy. I mean, whenever some party or large group of people unhappy with the Supreme Court, we hear of plans to restrict it, to pack it. Marshall himself dies in eighteen thirty five, a disappointed man. I think he feared that he had failed, he was losing his control of the court. He was also very disappointed with the election and re election of Andrew Jackson. Jackson’s statement on Marshall’s death was surprisingly gracious. But the most gracious tribute to Marshall came from Richmond, and it came from the Quoits Club, and they ruled that because he was irreplaceable, the club should have one fewer member forever.

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Speaker 1: A special thanks to Richard Burkeeiser, author of John Marshall, the man who made the Supreme Court, and a special thanks to the US National Archives for allowing us access to this remarkable story about John Marshall and Alexander Hamilton. Is largely responsible for the formation of our economic system, but as Berkheiser notes, it was Marshall who gave that economic system a legal framework. The story of John Marshall his major contributions to American life Here on our American Stories