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00:00Today, it is the most powerful court in the land, but it didn't start out that way.
00:06It had so little prestige as an institution that it was really an afterthought.
00:10The United States Supreme Court is a human institution, shaped and forged by the justices
00:16themselves.
00:17John Marshall really changed the way judges do business.
00:21He thought that a unanimous court spoke with a stronger voice.
00:25This is the story of One Nation Under Law, the Supreme Court.
01:00The issues change.
01:01Before the Civil War, the issues were slavery or state sovereignty, federalism.
01:07In the last part of the 20th century, the issues were culture war issues.
01:11But again, you have this constitution that doesn't yield real clear answers.
01:18Justices are trying to apply the constitution in light of all of American history and in
01:25light of the peculiar circumstances.
01:27And it's hardly surprising that under all these circumstances, different people will have
01:34different views on what the constitution means.
01:37It would be an incredibly weird country if everyone agreed on everything.
01:47The court will never be that far out of tune with the prevailing attitudes and prejudices
01:54of its time.
01:56Nevertheless, when the court speaks, it's supposed to speak for what the country stands for, our
02:02basic values, our highest aspirations.
02:05And so we put a lot of faith in the court, and a lot of us want the court not
02:09to let us
02:10down.
02:13The Supreme Court did not always hold such sway in the life of the nation.
02:18In the early years of the Republic, justices were unsure how far their power extended and
02:25shy to exert it.
02:27One man changed all that.
02:31I think nobody until Marshall, until Marshall comes along, I think that anybody really have
02:38a coherent to become.
02:41The base that Marshall built in law and in tradition transcends his life and animates the
02:50rest of American history.
02:52Part of the genius of John Marshall is that in a very real sense, he invented the Supreme
02:58Court.
03:19The United States Supreme Court was written into being at the Constitutional Convention in
03:241787.
03:26The judicial power of the United States shall be vested in one Supreme Court, and in such
03:32inferior courts as the Congress may from time to time ordain and establish.
03:38The framers knew they wanted an independent judiciary, free from the pressures of politics, but little
03:44else was determined.
03:46The Supreme Court.
03:47The Supreme Court's inaugural session did not portend a powerful future.
03:52For the first year, nothing comes to the court.
03:55They literally have a two-hour session in 1709.
03:57They have no cases and they all go home.
03:59They're given a second-floor room in some building in New York.
04:03I mean, nobody sees this as having the majesty of the executive branch or the legislative branch.
04:11The Supreme Court was a court of law, but it wasn't established as a constitutional court.
04:17So its early decisions tended to be just everyday, run-of-the-mill legal disputes, not great constitutional questions.
04:27Congress originally set the number of seats on the court at six, lifetime appointments all.
04:33But it was no mean task keeping the bench filled.
04:37Membership on the Supreme Court was in a great deal of flux.
04:41People didn't stay on the court very long.
04:44The first Chief Justice, John Jay, left to be governor of New York.
04:49The President wanted to appoint John Jay to the court again, and he refused.
04:54He declined. He said, the Supreme Court is not an institution with a lot of energy.
05:00It's just not a great job. I'm going to take a pass on that.
05:04It had so little prestige as an institution at that point that it was really an afterthought.
05:10The court was off on the sideline and played almost no role.
05:25It was the tumble of partisan politics, not the imperatives of the Constitution, not the majesty of the law,
05:31that drew the Supreme Court into the momentous battles of the early republic,
05:36that vaulted a 45-year-old Virginia politician named John Marshall to the bench,
05:41and that started the court toward its destiny as a dynamic and co-equal branch of the federal government.
05:50By the time George Washington retired from the presidency in 1797,
05:55the country had split into factions, the first political parties.
06:00New President John Adams and federalists such as Alexander Hamilton and John Marshall on one side,
06:06Vice President Thomas Jefferson and his new party on the other.
06:10Their differences seemed fundamental and had widened as each side watched the democratically-fueled French Revolution
06:17devolve into mass murder of the aristocracy.
06:26For Marshall, the French Revolution was anarchy, attacking order, attacking property.
06:34Jefferson's response was, it's a good thing to spill a little blood every once in a while.
06:38You need to do that. A little revolution is a good thing. It shakes people up.
06:43Federalists didn't intend to let unchecked democracy, the mad passions of the people,
06:49threaten their fragile new republic.
06:51To hold the mob in check, they championed a stout national government,
06:55led by the educated and landed elite.
07:00Jefferson believed that the Federalists represented a new monarchy,
07:04not much different from that which we declared our independence from in Great Britain.
07:09When Hamilton said, I think we need a standing army,
07:12you know, the Jefferson-sonians immediately assumed the worst.
07:16You know, what are you going to use this army for?
07:18You know, to oppress us, to draw all power to yourself.
07:23The Federalists had, in fact, consolidated their power in government.
07:27They controlled the executive branch and the Congress,
07:30and had appointed each and every federal judge.
07:35From his Virginia plantation, Vice President Jefferson began running an all-out insurgency
07:40against the ruling party.
07:42A second revolution, he called it.
07:44He meant to ride people power to the presidency.
07:50As Jefferson stirred dissent, visions of the French Revolution danced in Federalist heads.
07:57Jefferson was known for his Francophile leanings,
08:01and there was real concern that there would be bloodshed in Washington.
08:06If Jefferson came in, you know, heads would roll, almost literally.
08:10You could look back at that and say,
08:12it was ridiculous to think that Jefferson was going to lead a revolution that led to bloodshed,
08:17but at the moment, things were pretty much up for grabs.
08:22The politics of the day were partisan and ugly,
08:25and there was no precedent or tradition that demanded the judicial branch steer clear.
08:31Federalist-appointed lower court judges enforced the plainly unconstitutional sedition act,
08:36tossing Jeffersonian pamphleteers and politicians in jail for merely criticizing President Adams.
08:45And as the election of 1800 neared,
08:48many of those judges campaigned openly against Thomas Jefferson.
08:52Then the Jeffersonians won, big.
08:56Jefferson took the White House from Adams,
08:58and his party men swept into majorities in the House and the Senate.
09:02But there was no way to sweep the nation's courts of Federalist partisans Jefferson despised.
09:08Judges were appointed for life.
09:10The Federalists, wrote Jefferson,
09:12have retired into the judiciary as a stronghold.
09:18And John Adams meant to shore up the Federalist breastworks.
09:22In the aftermath of the election,
09:24the angry lame duck President installed his close friend and then Secretary of State,
09:29John Marshall, as the new Chief Justice of the United States.
09:34Marshall's appointment blocked Jefferson from naming his own chief,
09:38and it sent a clear signal to the incoming president.
09:41John Marshall would be watching him.
10:03Jefferson was building a country, and he had a very extended vision of where things were going to go.
10:11Jefferson was building a country, and he had a very extended vision of where things were going to go.
10:13He became pretty hardcore about people who got in the way.
10:17And he saw Marshall as someone who was getting in the way.
10:35The swearing in of Thomas Jefferson has got to be one of the great ironic moments in American history,
10:41because you have Chief Justice Marshall swearing in his second cousin, Thomas Jefferson.
10:50And both men, pretty much by that time, hated one another.
10:58They feel that the policies represented by the other person was detrimental to American civilization.
11:06It was as fundamental as that.
11:09So you have Marshall holding the Bible, Jefferson swearing to uphold the Constitution,
11:16which Marshall was absolutely sure he was going to destroy.
11:23The first fight between Jefferson and Marshall was a fight picked by John Adams on his way out of town.
11:30That quarrel would spill into the United States Supreme Court.
11:36On paper, Marbury v. Madison involved a small technical question of administrative housekeeping.
11:42But in the political swirl of 1801, this seemingly straightforward legal case would determine the future of the court,
11:49and test the cunning and ability of the new 45-year-old Chief Justice.
11:57Marbury v. Madison began with another breathtaking act of partisanship by the outgoing president, John Adams.
12:07Just weeks before Jefferson's inauguration, the lame duck Federal Congress had passed legislation swelling the federal courts,
12:14and Adams stuffed them full of anti-Jeffersonians.
12:19At the very end, literally the last day of Adams' presidency, he was busy signing commissions for these federal judgeships,
12:29including these justices of the peace.
12:32And the hour got very late, and he had to get the commissions signed,
12:36and then they were sent over to the Secretary of State, who happened to be John Marshall.
12:41And Marshall had to put the seal of the United States on it,
12:45and then they were to be delivered to these designated justices of the peace.
12:50John Marshall knows he can't deliver them all.
12:52He gives about half of them to his brother James to deliver.
12:56James doesn't get around to delivering them before time runs out.
13:01The key lesson of Marbury v. Madison is don't give important documents to your brother.
13:11When Thomas Jefferson arrived at the executive offices, 17 commissions sat signed, sealed, and undelivered.
13:18He directed his new Secretary of State, James Madison, to leave them lay.
13:24Ten months later, a would-be justice of the peace, named William Marbury, showed up at the Supreme Court,
13:30asking Marshall and his brethren to compel Madison to deliver his commission.
13:35John Marshall ordered Madison to show just cause for withholding Marbury's commission.
13:41Madison didn't feel obliged to bow to the court. He simply didn't answer.
13:47But when word of Marshall's demand spread through the Capitol, the Jeffersonians in Congress were not so passive.
13:55Congress passes a law that basically closes down the Supreme Court for a full term.
14:01They just cancel the term by statute.
14:03And there's nothing in the Constitution that says they can't do that specifically.
14:07On the other hand, it's a pretty aggressive attack on the court.
14:12There was the real feeling on the part of the justices that their days were numbered.
14:17And Marshall himself, I think, felt under considerable threat of impeachment.
14:24The court was in its congressionally enforced recess for 14 months,
14:28while the Jeffersonians threatened to dismantle the entire Adams-built judiciary.
14:36Marshall stayed home in Richmond, Virginia, with his wife, Polly, and their six children,
14:40puzzling out his next move in Marbury versus Madison.
14:46He didn't have a lot of good options.
14:50If he backed down, if he was seen to back down, the court would lose all prestige.
14:56It would take generations for the court to recover from that act of cowardice.
15:02If, on the other hand, Marshall bravely gave an order to President Jefferson,
15:09command the Secretary of State to convey the commission,
15:14the administration would disobey the, pay no attention to the court order.
15:20And in that case, the Supreme Court of the United States would be a laughingstock.
15:25Marshall doesn't want to have that situation because then the court looks powerless,
15:29and it sets a precedent that the court doesn't have to be obeyed.
15:35Everything people do in this time is setting a precedent.
15:40They're very aware that it's the first time for everything.
15:49When Congress permitted the Supreme Court to reconvene in February of 1803,
15:54the first case on the docket was Marbury versus Madison.
15:59The court was meeting in the lobby of a Washington hotel,
16:02and partisans on both sides milled the halls, anxiously awaiting the court's judgment.
16:07When Marshall announced the decision, it confounded almost everyone.
16:13He says, well, Mr. Marbury, you have been wronged.
16:17The Jefferson administration has completely illegally withheld your commission,
16:23and that's a horrible, terrible thing, and we deeply feel your pain.
16:27However, just when Marbury thought he had won,
16:33see, you're in the wrong place to get any help,
16:36and this is not the proper tribunal for us to help you.
16:41So, good luck with that. Bye.
16:45Most Jeffersonians thought of it as a victory for the Jeffersonian administration,
16:50because, in fact, they had won.
16:52This guy wanted to have a court order Madison to do something, and Marshall said no.
16:57It was trumpeted as something of a victory for Jefferson.
17:00It made it hard for Jefferson, who I think realized very quickly that it wasn't such a big victory.
17:07It took some doing to untangle Marshall's opinion.
17:10The Chief Justice had taken Jefferson to task for trampling Marbury's rights.
17:15He'd also asserted the power to force the president to comply with the court order.
17:20But he'd run away from the real fight, explaining that he was powerless to issue such an order in Marbury.
17:26Because in this particular case, the Supreme Court did not have jurisdiction.
17:32In order to hold that there's no jurisdiction, he has to strike down an act of Congress.
17:40And so, as part of his holding that there is no jurisdiction, his way of backing out and takes the
17:45power of judicial review to boot.
17:53The court's power of judicial review, the ability to strike down any law repugnant to the Constitution,
17:59was not written into the Constitution itself.
18:04Jefferson believed the court had little standing to be the final word on the constitutionality of laws.
18:10In fact, he thought it dangerous to give so much power to men who were appointed for life and did
18:16not answer to voters.
18:18But in his Marbury opinion, in his own hand, John Marshall scrawled into the record the court's central power.
18:30Judicial review is the capacity to say this law does not comport with the Constitution.
18:35It's not really law. It's void.
18:38The trick is that nothing in the Constitution says that the Supreme Court has this power.
18:46No language in Article 3, which creates the courts.
18:50No language in any part of the Constitution says the court has the power to strike legislation.
18:55We know the president can beat a legislation because Article 1, Section 7 says he can't.
19:00We know the Supreme Court can strike down legislation as unconstitutional because John Marshall said it could.
19:06It was emphatically, as he said in Marbury v. Madison, emphatically the province and duty of the courts to say
19:14what the law is.
19:15And the Constitution is law.
19:18In most governments, if not all at that time, the Constitution was regarded as a political document.
19:27Marshall's real significant and unique contribution was to view the Constitution as law.
19:34And once you accept that, that the Constitution is law, then the courts have a significant role because courts tell
19:40you what the law means.
19:43He's asserting the constitutional equality of the court in the constitutional scheme, that they were going to push back, that
19:50they had a role to play, a major role to play, the major role to play, perhaps, in interpreting the
19:57meaning of the constitutional text.
19:59Marshall holds down a decision that Jefferson despises. The court has the power of judicial review, but does so in
20:05a way that Jefferson can't evade it.
20:07I mean, the only way Jefferson can get around the decision in Marbury v. Madison is to give Marbury his
20:14commission.
20:15I don't care what Marshall says. Here, here is your commission.
20:18Well, Jefferson's not going to do that. That is classic Marshall.
20:24So, a pretty good day for John Marshall, right? He's avoided a political crisis, he's publicly scolded the president for
20:31behaving badly, and he's established the most important power that the court owns.
20:38There is no Brown v. Board of Education, there is no Roe v. Wade, there is no Bush v. Gore
20:45without a power of judicial review.
20:57In 1803, the notion of the Supreme Court having the stature to decide a presidential election was laughable.
21:04John Marshall had barely extricated the court from the political noose in Marbury, and its future hardly appeared secure.
21:12Court sessions took place in a cramped, meanly furnished Senate committee room, an old potato hole of a place, one
21:18writer called it.
21:20Justices had no private chambers, no conference room, no library, nothing to suggest permanence.
21:28Marshall was careful not to further antagonize the president.
21:31The chief justice shed the scarlet and ermine robe reminiscent of the British judges Jefferson despised, choosing to wear a
21:39plain black robe.
21:40The other justices followed his lead.
21:43More important, Marshall was careful not to challenge the elected branches of the federal government.
21:50Marshall never again uses the power of judicial review against the national government.
21:56In effect, what you had was a negotiated settlement between Marshall and the Jeffersonians.
22:01The Jeffersonians were willing to agree to the idea of judicial review as long as they knew that federal judges
22:08could be trusted with the power.
22:10Marshall made the exercise of judicial power appear safe.
22:14Marshall established a much lower tone. He was very sensitive to the vulnerability of the court and was quite anxious
22:22to establish it as a non-partisan, non-political branch of government.
22:32Marshall's fellow justices quickly came to appreciate their chief's ability to steer the court through the roughest of political storms.
22:40They also came to appreciate his ability to add flair to their otherwise dull days and nights.
22:47No justice was willing to subject his family to the swampy, mosquito-infested and primitive capital under construction, Washington City.
22:56So, for the six to eight weeks the court was in session each year, the justices lived as bachelors.
23:04John Marshall convinced the early justices that they ought to board together in the same boarding house so they could
23:10take their meals together.
23:12And he made sure they had plenty of Madeira to have at those meals.
23:17He was a very sociable, convivial host.
23:21Part of the atmosphere of being on the court was we were all in it together in this almost a
23:26Marshall way, I guess.
23:28This is like their barracks and you live together and you think of yourselves as the band of brothers.
23:33Marshall just loved the give and take of the company, the congeniality.
23:38You like to have a drink now and then, which helped to get over the difficult points I imagine in
23:43mooting cases.
23:46He did buy wine by the pipe, which is, if I'm not mistaken, 126 gallons.
23:53Certainly it must have eased discussions occasionally.
23:57Through a combination of charm and sort of institutional authority, Marshall put his stamp on the way the justices acted
24:06as a collective.
24:07Marshall really changed the way judges do business.
24:11Prior to that time, the model that had prevailed in the United States was the British model, where however many
24:18judges you have on a particular bench, they would each give you their views at the end of the case.
24:22They would tell you what they think.
24:24And if you had seven justices sitting, then you'd get seven different opinions and you'd try to figure out what
24:29they mean.
24:30There was no court. There were a bunch of different justices, each of them opining on any issue that came
24:36before them.
24:37Marshall starts his practice of having an opinion for the court.
24:41He felt that very strongly in those early days of the court.
24:45He thought that a unanimous court spoke with a stronger voice and could thereby earn the respect of the American
24:55people.
24:56He was convivial, he liked the Madeira, but he was perfectly capable to issue gentle threats to get his way.
25:03Justice William Johnson made clear that when Johnson wanted to dissent, Marshall made it clear to him that there would
25:10be consequences to this.
25:12The beauty of the unanimous opinion of the court was that it suggested certainty, even infallibility.
25:18A Supreme Court decision was beyond argument because the justices had found truth in the text.
25:24Political considerations were beside the point.
25:28And once John Marshall had solidified the authority of the court and scrubbed it of the taint of politics, he
25:35began to use it to advance a remarkably sweeping political agenda.
25:39To weigh in on the great argument that had bedeviled the young republic since its founding.
26:01America's founders were children of the Enlightenment.
26:04America's founders were children of the Enlightenment.
26:05They are living in an age of reason.
26:07They are seeing remarkable discoveries in the natural sciences.
26:12And the framers of the Constitution believe that they can discover enduring principles of political science
26:20that are every bit as important and powerful as laws of the natural sciences.
26:30It's a man-made reflection in a sense of the universe, of how they thought the universe was working.
26:36It was how they were thinking about the natural world in this sort of balanced and opposing forces.
26:45I think it was very natural for them to think about the social world in the same way.
26:54It was a singular experiment, assigning distinct but overlapping powers to two separate sovereignties,
27:01the federal government and the individual states.
27:05In the twenty years since that uncertain balance had been negotiated at the Constitutional Convention,
27:10Americans had discovered only one thing for sure.
27:14Nature might be governed by hard, fast and immutable laws.
27:18Government is not.
27:21A deep divide still separated the champions of a strong central government from those who cherished state sovereignty.
27:30You really had two major views about what the Constitution really stood for
27:35that are really well embodied in Jefferson and in John Marshall.
27:39From Jefferson's point of view, the Constitution creates a relatively small national government.
27:45Marshall, on the other hand, thought that the Constitution had created a great American Republic,
27:51that its greatness was in its unity and in the power of its national government.
27:59Marshall's belief in a strong union wasn't some glorious abstraction.
28:03It came straight from his life, most especially from his service as a young infantry officer in the Revolutionary War.
28:13For Marshall, the unforgettable lesson of that war began in the days before Christmas, 1777,
28:20when General George Washington's army retreated into the frozen hills of eastern Pennsylvania.
28:30At Valley Forge, 22-year-old Lieutenant John Marshall counted nearly 4,000 men unfit for duty for want of
28:37clothes.
28:39Scarcely one man of these, he later wrote, had a pair of shoes.
28:46George Washington begged the states for provisions to no avail.
28:50The Continental Army was nearly destroyed by the indifference of the states.
28:54The Continental Congress was powerless to help.
28:58The powers of Congress were essentially limited by the fact that the states were sovereign.
29:05So they could request that the states supply troops and supplies, but they had no way of enforcing it.
29:13It was pretty much impossible to conduct a war, you know, if you have 13 states doing what they think
29:21is in their best interest of the states.
29:23And this is the thing which Washington complained about, which Marshall undertook to remedy, I guess you might say, in
29:32his political career and, of course, in his career as Chief Justice.
29:39John Marshall kept the lessons of war close to heart.
29:43The greatest danger to a strong union, as he saw it, would always be the state legislatures,
29:48which were too likely to be swayed by the people's fleeting and irrational passions.
29:55Marshall regarded his first government as Congress, not Virginia.
30:01And it's because he fought at peril of his life, and bravely, to establish that government.
30:08At a time when I think most people would reflexively regard themselves as a citizen of Massachusetts,
30:14citizen of Pennsylvania, citizen of Virginia.
30:16He was first a citizen of the United States, and you see that reflected in the decisions of his court.
30:22John Marshall inherits a constitution that doesn't have very many no-state-shall clauses, but the ones that it does
30:30have, he makes the most of.
30:32When individual states misbehave, John Marshall's court slaps them down.
30:40Marshall's first great chance came just as Thomas Jefferson was leaving the presidency in 1809, in a case involving America's
30:48most valued commodity, land.
30:53By the time the case reached the Supreme Court, the issues in Fletcher versus Peck had been bouncing around state
30:59and federal courts for almost 15 years.
31:03The story began back in the 1790s, when the state of Georgia was in desperate need of cash.
31:10In 1795, the Georgia legislature sold 35 million acres for one and a half cents an acre.
31:19Which seems very low, and may be explicable by the fact that every legislator voting for it had been bribed.
31:27Land that is the equivalent of the states of Alabama and Mississippi.
31:32I mean, huge chunks of land.
31:34It goes to these four big landholders, who then in turn sell this land at a big profit to lots
31:40of other people.
31:42The election comes up, the voters find this out, they get very angry.
31:46Of course, they throw the bums out on their ears.
31:49The Georgia voters in 1796 wanted to put in a legislature that would repeal the grant.
31:55And indeed, they did.
31:57But by the time the new legislature does this, the land is in the hand of second or third or
32:03fourth parties.
32:05So then the question becomes, can the legislature essentially take back property that it had sold to investors?
32:20The voters in Georgia sure thought so.
32:24This land had been a public trust, and the first legislature had given it away.
32:35Few of the beneficiaries were fellow Georgians.
32:39Most were northern speculators, in it for the profits.
32:44But John Marshall had little sympathy for the brutish will of the majority.
32:49The Georgians had attacked two things the Chief Justice prized, order and private property.
32:55Marshall himself was an enthusiastic and unapologetic land speculator.
33:03For Marshall, the right to acquire and possess private property, free from a rational government intrusion, was a God-given
33:10right, at the heart of the revolution in which he'd fought.
33:15Marshall believed that if a state legislature could arbitrarily void private contracts, the whole structure of commerce would be undermined.
33:26Marshall thought that what was great about the national government was its ability to promote a commercial republic.
33:34So for Marshall, in a case like Fletcher versus Peck, the important question from his point of view was really
33:40the protection of the kind of entrepreneurial spirit and the basic rights of property and contract that were really central
33:49to his vision of the Constitution.
33:50It's a protection of private property.
33:52Private property is a theme that runs through American politics to this very day.
33:58This was about protecting individual rights.
34:02This was about protecting minorities from majorities.
34:08In its Fletcher opinion in 1810, the Court essayed a full-throated defense of private property rights, and Marshall himself
34:16stretched the issue into a constitutional one,
34:18applying the contract clause for the first time in the court's history.
34:23No state could retroactively invalidate a private contract.
34:29Georgia is a part of a large empire.
34:31She is a member of the American Union, Marshall wrote,
34:35and that union has a constitution which imposes limits to the legislatures of the several states.
34:52She is a member of the United States.
34:57With Marshall in the lead, the Supreme Court, for the first time in its history, was re-channeling the rippling
35:03currents of the times.
35:08The Marshall Court extended contract clause protection to public as well as private contracts.
35:16It also invalidated New York State's grant of a steamboat monopoly, opening the nation's navigable waterways as great flowing arteries
35:24of traffic and trade.
35:30Marshall's crowning decision came in 1819 in a case involving the Second Bank of the United States.
35:38The bank had been chartered by Congress to work toward a more uniform system of currency and credit.
35:45Despite its name, the Bank of the United States was not a public entity, but a profitable monopoly controlled by
35:51private stockholders.
35:52It also competed with state and local banks.
35:56And in 1818, when the nation slid into economic depression, the Bank of the United States was the obvious scapegoat.
36:05The economy is in turmoil. People are losing money.
36:08Land prices are falling. The prices of slaves are falling for people in the South.
36:13So it's a time of panic.
36:15And in the areas that were hit hardest, the South and the West, the Bank was just hated.
36:21And you had states like Maryland and then Ohio that did everything within their power to put the Bank out
36:28of existence.
36:30Maryland decided to fight back. So they passed a bill which taxed the Bank of the United States and its
36:39Baltimore headquarters.
36:41The cashier of the Baltimore branch, a man named James McCulloch, refused to pay the tax.
36:47And he said, we're an entity of the United States. You can't do that.
36:50What was really at issue in McCulloch against Maryland is which government was going to be dominant, the governments of
36:56the states or the government of the United States.
37:04The state of Maryland sued McCulloch in a Maryland court and won.
37:09McCulloch appealed to the United States Supreme Court.
37:13Marshall and his fellow brethren heard McCulloch's appeal in their dramatic and dearly refurbished new courtroom in the capital.
37:22Under the vaulted ceiling, among pillars modeled on the Temple of Poseidon, Marshall kicked Maryland in the teeth.
37:30The Chief Justice dismissed out of hand a state's right to tax any national entity.
37:35The power to tax, he said, is the power to destroy.
37:40And Marshall took on a larger question.
37:43Did Congress have the right to create a bank at all?
37:47The Constitution certainly didn't speak to the point.
37:50But Marshall did, finding implied powers in the constitutional phrase necessary and proper,
37:57ceding to Congress the authority to regulate and encourage interstate commerce.
38:02States would have to fall in line.
38:06This was a new nation, and he was going to ensure that it had the authority that the founders intended
38:11it to have.
38:13You know, Lincoln's famous statement, government of the people, by the people, and for the people,
38:19is just a paraphrase of what he said in McCulloch against Maryland,
38:22that this national government was founded not by the states, but by the people, and for their benefit.
38:29People can debate whether Lincoln's expression is more eloquent than Marshall's,
38:34but it's the same sentiment and the same thought,
38:37and I think born in each case from the fact that they were fighting to preserve the Union.
38:56A few weeks after he handed down the McCulloch decision, Marshall returned home to Richmond,
39:01where his fellow Virginians treated him as something of a traitor to his home state.
39:09The landed aristocracy was sure Marshall's McCulloch decision threatened its dear way of life,
39:14a way of life built largely on slave labor.
39:21Virginians, by the 18-teens, 18-20s, their economy is falling apart, their soil is exhausted,
39:28they're starting to export their slaves south, and they're worried about the future of slavery
39:32and what are they going to do with this huge population of African Americans if they're ever freed.
39:37So they're now more pessimistic, they're more defensive, and they see John Marshall celebrating the power of the national government
39:44at the very moment when the national government is perhaps starting to pose a threat to slavery.
39:49If the powers of Congress were not simply specified and delimited,
39:55who is there to say that Congress could not abolish slavery and take your slaves from you?
40:05Slavery had been a rare point of agreement between John Marshall and Thomas Jefferson.
40:11Both men had been uneasy slavers.
40:13They shared the public stance that blacks should be emancipated, and then shipped out of the country.
40:20By 1820, the men had split on this issue, too.
40:24Jefferson could not abide northern politicians in Congress dictating the terms of ending slavery.
40:30And he could not abide that John Marshall's McCulloch decision had given them an opening to do just that.
40:38Long retired from the presidency, the sage of Monticello stirred.
40:43Jefferson was furious about McCulloch versus Maryland.
40:47He saw this as an assault on his vision of state sovereignty.
40:51And he encouraged his acolytes to write pamphlets defending a vision of state sovereignty so radical
40:57that it eventually blossomed into the theory that would lead to the Civil War.
41:03Marshall, and in the Supreme Court, he meant to protect both.
41:08So he was careful not to arouse the pro-slavery states' rights crowd.
41:14But the Chief Justice saw real trouble on the horizon in the person of Andrew Jackson,
41:19who was swept into the presidency in 1828 by the rabble Marshall had always feared.
41:27Andrew Jackson earned his reputation not as a gentleman philosopher writing declarations of independence and constitutions.
41:34Jackson earned his reputation on the battlefield as really a quite ruthless leader of men in battle.
41:42He's really the first public figure vying for national office that temperamentally was not a gentleman,
41:51but represented instead the lower classes.
42:02Andrew Jackson was a man you crossed at your peril.
42:07He was an avid and accomplished duelist, having killed three men.
42:11And he had one ball of shot lodged in his chest and one in his shoulder, both from duels.
42:18Recurring infections required vigilance, making Jackson the only president to ever bleed himself in the White House.
42:27Unlike Jefferson, Andrew Jackson wasn't keen to diminish the court's power.
42:31He meant to own it.
42:33In two terms, Jackson would appoint five justices to the Supreme Court.
42:38Four were solid states' riders and strong supporters of slavery.
42:50The new justices resisted the charming orbit of the Chief, choosing to take their own separate Washington City lodgings.
42:59The convivial boarding house broke up.
43:02Dissents were more frequent.
43:06Marshall even found himself looking for room to compromise with the state's rights block.
43:12There was one notable exception.
43:19The Cherokee Indians had lived for nearly 40 years on land they held by treaty with the federal government.
43:26Unfortunately, it was in one of the most recalcitrant states in the country, Georgia.
43:32When gold was discovered on the Cherokee lands, the Georgia legislature grabbed for it, openly defying the federal treaty.
43:40The state of Georgia is just trying to kick them out and send them to territory which was not their
43:50ancestral home and basically saying, go out there and start over.
43:55President Jackson, an old Indian fighter, was with Georgia.
43:59The president, like the U.S. Congress, plainly wanted the Cherokees removed to make way for the white man.
44:06And Marshall no longer appeared equal to Jackson's monumental will.
44:13As two separate Cherokee cases moved through the Supreme Court, woe seemed to pile on the head of the aging
44:20Chief Justice.
44:23In October of 1831, Marshall underwent bladder surgery without the aid of anesthesia.
44:31While he was convalescing at home in Richmond, his wife died.
44:43When Marshall returned to the business of the court, he was clearly diminished.
44:47A colleague went to Marshall's room one morning and found him weeping.
44:52A lawyer flinched when the Chief Justice arrived at the court unshaven, with egg on his face.
44:59But when the time came to issue a decision on the final Cherokee case, John Marshall refused to stand down.
45:06For the first time in his career, he took on the entire political system.
45:10President, Congress, and the state government.
45:14Georgia's seizure of Cherokee lands, Marshall found, was illegal.
45:19This may be an apocryphal story.
45:21But Jackson said, well, Chief Justice Marshall has made his decision, now let him enforce it.
45:30Knowing full well that Marshall and the brethren aren't going to go out and stop the movement of Native Americans
45:38into the interior part of the country.
45:41What Jackson knew, and what Marshall knew as well, is that the reach of judicial power extends as far as
45:49the executive is willing to enforce it.
45:50There are only a couple of examples in all of the history of our country where presidents did not enforce
46:00some relevant, applicable decision of the Supreme Court.
46:05One was President Andrew Jackson, and the result was disaster for the Cherokee Indians.
46:14Andrew Jackson negotiated action with the Cherokees to send them, in a sense, on this incredible trek west of the
46:23Mississippi River, in which thousands of them, men, women, and children, died on the way.
46:29And once they got there, of course, they had no land, as it turns out.
46:33It was one of the great tragedies, certainly, in American history.
46:38The lingering lesson of the Cherokee cases is that the power of the court is merely the power to persuade.
46:48Unless the court's decisions are brought to life by the rest of the political system, they're just words.
46:57Marshall wasn't failing help.
46:59The national political tide was turning against him.
47:03His wife had died.
47:06He transferred, to an extent, the pain and suffering that he felt personally to the experiment that he had been
47:16an intimate part of.
47:19He feared the worst.
47:21He feared that the nation, the centrifugal forces, would blow the nation apart, that the center wouldn't hold.
47:32This would work against everything he had worked for on the Supreme Court.
47:37It would undermine his understanding of the Constitution, and in so doing, culminate in the demise of the nation that
47:45he had served.
47:57John Marshall died in July 1835.
48:01The union he'd fought for held.
48:04Even Andrew Jackson had defended it against Southern secessionists.
48:08The Supreme Court enjoyed a place of pride and prestige among the nation's youthful institutions.
48:16But it would have come as no surprise to Marshall to learn that Andrew Jackson appointed as Chief Justice a
48:22state's writer named Roger Taney.
48:28At the end of his life, John Marshall knew the threats to the Supreme Court and to the Union outlived
48:34him.
48:43I yield to the conviction that our Constitution cannot last, Marshall had written shortly before his death.
48:51The Union has been prolonged thus far by miracles.
48:55They cannot continue.
49:20It is one of history's sad ironies that the Supreme Court became an animating force for John Marshall's dark prophecy
49:26of disunion.
49:29The issue of slavery, which Marshall had taken pains to avoid, was the undoing of the Court and the Union
49:36both.
49:41For 30 years, back to the time of Marshall's McCulloch decision, the Union was largely held together by a bit
49:47of legislative bailing wire called the Missouri Compromise.
49:53Territories below 3630 would enter the nation as slave states, territories above as free.
49:59It was federal law negotiated in the U.S. Congress.
50:04But in 1854, when it looked like the balance of power was shifting to free states, Southern legislators demanded a
50:11new deal.
50:13The country had come to the end of the line.
50:17It had tried so hard in so many ways to deal with the issue of slavery.
50:21And by the mid-1850s, desperate times had called for desperate measures.
50:27And there was no other institution that they could turn to, to try finally to resolve this issue, than the
50:33court that Marshall helped create.
50:36The politicians actually invite the court to get involved in this, to take this hot potato out of their laps.
50:45Led by Marshall's successor, Roger Taney, a usually steady and moderating Chief Justice, the Supreme Court took on Dred Scott
50:54v. Sanford.
50:56The case was a plea for freedom by one man, but begged the questions of slavery, states' rights, and federal
51:03power.
51:06Dred Scott was a Missouri slave whose owner had taken him, his wife and two daughters, to live in the
51:12free state of Illinois, then the free territory of Wisconsin, before returning to Missouri.
51:19Scott and his attorneys argued that once he had lived on free soil, he was a free man.
51:25Congress, in the Missouri Compromise, had made it plain.
51:30I think Justice Taney wanted to make a pronouncement, make it known what his thoughts were about where blacks belonged
51:36in American life.
51:41And in order to do that, he goes back to the very beginning and makes the argument that blacks were
51:46never intended to be a part of the American experiment.
51:50And he wanted to be on record with that.
51:54The opinion in Dred Scott says, the Congress of the United States has to enforce slavery.
52:00Slavery must exist in all federal territory.
52:05Free soil laws are unconstitutional.
52:08The Missouri Compromise, in effect, was unconstitutional.
52:17For the first time since Marbury versus Madison, the United States Supreme Court struck down an act of Congress.
52:25For the first time in 54 years, the court exercised the power of judicial review against the national government.
52:32To protect slavery.
52:36It was a disaster.
52:38It was the worst opinion ever written in the history of the Supreme Court of the United States.
52:45And solved nothing.
52:46The area was unconstitutional.
52:52A landfall was unconstitutional.
52:59The Census is unconstitutional.
53:08The Frontier Marion.
53:09For more on landmark cases, the personalities behind robs and significant moments here in the exhibition.
53:16in Supreme Court history, visit pbs.org.
53:24The Supreme Court series is available on DVD for $79.99.
53:29A companion book is available for $25 plus shipping.
53:33To order, call 1-800-336-1917
53:37or write to the address on your screen.
54:07For more information, visit pbs.org.
54:16For more information, visit pbs.org.
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