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R. Kent Newmyer
R. Kent Newmyer
John Marshall and the Heroic Age of the Supreme Court
ISBN: 0807127019
John Marshall and the Heroic Age of the Supreme Court
John Marshall (1755-1835) was arguably the most important judicial figure in American history. As the fourth chief justice of the United States Supreme Court, serving from 1801 to1835, he helped move the Court from the fringes of power to the epicenter of constitutional government. His great opinions in cases like Marbury v. Madison and McCulloch v. Maryland are still part of the working discourse of constitutional law in America. Drawing on a new and definitive edition of Marshall’s papers, R. Kent Newmyer combines engaging narrative with new historiographical insights in a fresh interpretation of John Marshall’s life in the law.

Newmyer vividly unfolds Marshall’s early Virginia years his Americanization in Fauquier County before the Revolution, his decision to fight for independence as a principled soldier, and his emergence as a constitutional nationalist in the 1780s. Marshall’s experience as a Federalist politician and a leading Virginia lawyer during the 1790s, Newmyer argues, defined his ideas about judicial review and the role of the Supreme Court as a curb on party-based, states’-rights radicalism.

Perhaps best known for consolidating the authority of the Supreme Court, Marshall is revealed here to have been equally skilled at crafting law that supported the emerging American market economy. He waged a lifelong struggle against champions of states’-rights constitutional theory, a struggle embodied in his personal and ideological rivalry with Thomas Jefferson.

More than the summation of Marshall’s legal and institutional accomplishments, Newmyer’s impressive study captures the nuanced texture of the justice’s reasoning, the complexity of his mature jurisprudence, and the affinities and tensions between his system of law and the transformative age in which he lived. It substantiates Oliver Wendell Holmes Jr.’s view of Marshall as the most representative figure in American law. —from the publisher's website

John Marshall and the Heroic Age of the Supreme Court
Program Air Date: February 24, 2002

BRIAN LAMB, HOST: R. Kent Newmyer, in your book you quote someone saying that Thomas Jefferson had an unrelenting mutual hatred, or there was an unrelenting mutual hatred between Thomas Jefferson and John Marshall.
LAMB: Unrelenting mutual hatred.
NEWMYER: I believe it was unrelenting, and it was, you might say, a very costly hatred. Certainly, a central theme of Marshall's life was this conflict between he and Jefferson. But of course, it wasn't just personal. It was ideological. And I think it encompasses some of the great themes of Marshall's jurisprudence. That is to say, Jefferson, as a representative of local culture, states' rights, Marshall a representative of nationalism. And that, I think, truly is the great theme of antebellum history.

But in addition to the ideological disagreements between these two great men, there was a personal animosity there which -- I mean, as a biographer, it was interesting to discover. But I would say it was unrelenting, and I think also was probably mutual. I mean, Marshall was not a great hater, but I really think he had if not hatred, then certainly contempt for his second cousin and Piedmont neighbor.

So yeah, it turns out to be one of the major themes of my book. If there is an interpretive theme, it's probably the states' rights, nationalism, as symbolized by these two men. And of course, it's one of the great ironic twists of history that one of them should have been Chief Justice of the United States and the other should have been president of the United States. And so what turned -- what might have been a personal hatred among Virginians turns out to be institutionally significant, I guess you might say.
LAMB: If John Marshall were alive and saw what happened in the election of 2000 and the Court, what would his reaction be?
NEWMYER: Brian, I knew you were going to ask me that question, which means I might -- should have something profoundly intelligent to say. You know, it's really difficult to imagine what the difference would have been. Of course, there was a disputed election, you might recall, in 1800 between Jefferson and Burr. Both of these guys got 73 votes in the Electoral College, and this was before the 12th Amendment, you recall. So it had to go to the House of Representatives.

Everybody knew that Jefferson, you know, was understood to be, you know, the next president of the United States. Burr did not withdraw the race, however, which prompted all sorts of machinations, especially among the Federalists, who thought they might make a deal with Burr and maybe get a little more out of Burr than they might out of Jefferson. And since they controlled the House, you know, it was possible for them really to shape the course of history.

Marshall was not in the House at this particular time, although, you know, he was in Congress in 1799, congressman from Virginia. But he did look on the election with I guess you might say very sad eyes. As a matter of fact, there's some marvelous letters between Marshall and Hamilton. Hamilton, of course, hated both of these guys, but he thought probably Jefferson would be the lesser of the two evils. And Hamilton, who Marshall greatly respected, was very subtly kind of suggesting to Marshall that maybe whatever support he had, he might throw to Jefferson.

Marshall wrote this letter back, which was very revealing, that -- he admitted that he didn't know much about Burr, which was probably not quite true because everybody knew something about Burr. But he knew enough about Jefferson to think that Jefferson's presidency would be an absolute disaster. I mean, it was his foreign policy. And it was Marshall's distinct feeling, I think, probably maybe a wrong feeling, as it turned out, that Jefferson was going to dissipate the authority of the presidency and the authority of the national government and, in a sense, weaken the Constitution.
LAMB: Well, what about the impact that John Marshall had on the Court itself? And would the Court have been able to do what it did in 2000 if he hadn't done what he did back in 1801 for 34 years?
NEWMYER: No. Clearly not. I mean, the Court in 2000, of course, is a magnificent institution. It's ensconced in this beautiful marble palace. It has accumulated great authority, although it's always had its critics, great, I guess you might say, capital with the American people. And I can't read the minds of those people who voted -- the judges -- Justices who decided Bush v. Gore, but if some scholars are right, and I think they probably are, the majority decided that it would be in the interests of the nation to settle this, not to let it go on, not to let it drag on.

They must have known that they would be using up a little bit of the capital that John Marshall himself helped build. Had the issue been presented, say, in the disputed election of 1800, it would have been an entirely different scene because there was no -- the Court had no capital. It had no reputation. As a matter of fact, it was -- when Marshall took over the Court in 1901, the institution was pretty much on the ropes.

One of the former Chief Justices, John Jay, actually -- John Adams asked John Jay to return to the Chief Justiceship before he gave the job to Marshall. And Jay turned him down for a number of reasons, but one of the reasons was Jay's conviction that the Court was destined to be the weakest of the branches of government and perhaps would even give way to the other political branches.

So Marshall -- one of the great things, I think, of his Chief Justiceship was to separate law and politics somehow or other. The idea that Marshall would have ventured forth in what would have been a clear political decision, settled the disputed election of 1800 in favor of somebody or other -- I can't imagine who it would be, probably Burr, since the hatred of Jefferson among the Federalists was strong. It would have been a disaster.

But Marshall, great strategist, I think, that he was, political realist that he was, would have never done that. What he would have done, if you could imagine Marshall being some or other placed on the Court in the year 2000, given his disposition and so on -- I mean, it's one of those questions that I think it would be impossible to answer. But I know -- I'm pretty sure I know what he would have done if the issue somehow or other would have presented itself in 1800.
LAMB: There have been 16 Chief Justices in the history of the United States. What number was John Marshall?
NEWMYER: Well, he was number four, although a lot of people say that he was really number one. I mean, the two main Chief Justices from the 1790s were John Jay and Ellsworth. But the Court, of course, in the 1790s was a much different institution. It's very difficult to -- I think, for us to get back into that institution-building age. I mean, there were simply -- almost everything was up for grabs. I mean, of course, the Court got a marvelous grant of jurisdiction, and it got what you might say equal billing in the Constitution. After all, it got an Article, right? Congress gets an Article. The executive gets an Article. The Court gets Article 3.

And if you read Article 3, I mean, it grants the Court jurisdiction over cases which are bound to be of great importance -- I mean, providing the Court can, you might say, get its act together institutionally. But it was not all that clear that the Court would ever manage to do that. I guess what I'm arguing is that the outline of judicial review, at least in my opinion, was to be found in the wording, and you might say the architecture of the Constitution.
LAMB: What does "judicial review" mean?
NEWMYER: Well, "judicial review" is the power of the Supreme Court to declare an act of Congress unconstitutional, acts of states unconstitutional, reverse decisions of state courts if they are in violation of a federal law or the Constitution.

You know, I try to tell my students when I teach this stuff that you really have to read Article 3 of the Constitution, which gives powers to the Court, with the famous Article 6. And what Article 6 of the Constitution does -- actually, it's very simple. I mean, it makes the Constitution, the federal laws and treaties made under the authority of the Constitution, the supreme law of the land. In other words, the Constitution is above every other law, including acts of Congress, including acts of state legislatures, including decisions of state courts?

And if you look at the -- if you look at the jurisdiction, the powers granted the federal courts and the Supreme Court, it's entirely possible that clients or parties to cases claiming under the Constitution will confront parties to a case claiming under, for example, state law. And what basically Marshall said in Marbury -- I mean, it's a marvelously simple statement.

You know, actually, he stole the line from Blackstone's 10th rule of construction. But what he said -- if you've got two conflicting acts and one is supreme over the other, one has to give way. And judicial review, of course, is this process by which the Court says which will give way. And if there's a conflict, the Constitution or federal statute law, in the case of states, or federal treaties, in the case of states, will win out.

But you know, it's -- I guess I need to make clear, at least, as I see it, that judicial review is not just saying yes or no to requests of power, but it's the reasoned justification for the Court, say, striking down an act of Congress as in violation of the Constitution. And you know, there are precedents for judicial review before Marshall, before Marbury.

But what Marshall did, it seems to me, was to give the reasoned justification in magnificent, statesmanlike language that was remarkably clear, persuasive, at times quite eloquent and quotable. And this was all the difference.

In other words, the various things in the Constitution, the earlier state court decisions which perhaps leant themselves towards some sort of judicial review, theory of the Federalist Party, which talked about judicial review -- after all, Hamilton's Federalist number 78 talked about it openly, the Brutus letters by Yates of New York talked about judicial review. This was long before Marshall.

What he did is pull all these various strands together in Marbury, and of course, make it stick.
LAMB: Where do you teach law?
NEWMYER: Well, I'm -- I should mention -- I taught history for many years at the University of Connecticut, and then retired from teaching history and began teaching at the law school, University of Connecticut Law School, which is in Hartford. So I teach -- actually, I have a lovely position up there. I teach only a seminar each semester. But I have marvelous students, good colleagues, and I think I've never had so much fun in my life, to tell the honest truth, so -- and it's -- you know, it's difficult to teach constitutional history to undergraduates. Sad to say, it really is.

I mean, you have to sort of start from square zero. At the law school, if you get, you know, some third-year students, which I frequently do there, you know, very good people -- they've already -- they have the language. So it -- I mean, I'm probably learning as much as they are, to tell you the honest truth, but...
LAMB: How long have you been at the university?
NEWMYER: Well, I came in 1960, the University of Connecticut in -- it was my first real job.
LAMB: Where'd you come from?
NEWMYER: Well, I got -- I came from -- I'm a Nebraskan, so I went to the University of Nebraska. And as an undergraduate -- I suppose my career, you might say, started in this little, tiny college called Doane College in Crete, Nebraska, where -- I had maybe -- I think maybe I mention it in the book, but this guy, Kenneth Rossman, was the best teacher I've ever seen. I've never seen a better teacher than he was. And so I started out to be basketball coach, and Rossman sort of inspired me to think of history. It was sort of a serendipitous thing. I could be coaching basketball in Wahoo. Who knows? I mean...
LAMB: Can you remember the first time you got really interested in John Marshall as a person or as a historical figure?
NEWMYER: Well, you know, actually, I guess -- when I made up my mind I wanted to teach constitutional history -- I mean, if you're going to teach constitutional history, you sooner or later have to confront John Marshall. I mean, he is -- he's the big man.

And I think I encountered Marshall first of all through Albert Beveridge's biography. And Beveridge was the great -- I think the first great biographer of Marshall. His four volumes came out in, I think, 1916, 1918. And it was a very worshipful biography, but it was also a very richly textured, extremely vivid, I think you might say even passionate biography.

I mean, Beveridge, you know, was the senator, you know, from Indiana, and he identified, for various reasons, with Marshall, as he did with Lincoln. As a matter of fact, the connection between Marshall and Lincoln is an absolutely fascinating one that Beveridge saw. But anyhow, I think I first really got acquainted with Marshall by reading Beveridge.
LAMB: And Albert Beveridge was a two-term senator from Indiana who wrote the four volumes on John Marshall and a couple of volumes on Abraham Lincoln.
LAMB: Was he -- by the way, I constantly see references to him. I've never read him. Is he a good writer?
NEWMYER: Oh, yes. Yes. I think so. I mean...
LAMB: Did he write when he was a senator or before?
NEWMYER: Oh, this was afterwards. He got -- if I remember correctly, he got defeated I believe it was in the 1912 election. And after having gotten defeated -- I mean, in some ways, Beveridge got defeated by the same Democratic -- political Democratic forces that Marshall hated.

See, Marshall was a -- to some extent, as a matter of fact, the whole tradition of judicial review was fashioned as a response to the rise of political parties and political democracy.

And so when Beveridge got wiped out, you might say, by the party manipulations and popular vote, and so on, he sort of turned -- well, he did turn full-time to the biography. And he put his whole heart and -- you know, his whole vision of America, which he felt, by the way, was sort of under siege in the early 20th century -- he found in Marshall the embodiment of all of those values that he felt were in jeopardy, I think, in the early 20th century.

And so therefore, his writing -- first of all, it's -- as I said, it's very worshipful. I mean, it's -- that's the real deficiency of it, I think. It is not what we call a critical or balanced biography. But the virtue of that kind of writing, of course, is that it resonates -- you know, it has a kind of fire that you don't see in most modern biographies that -- well, maybe that's wrong, but certainly, that's the key.

And you know, the other thing about Beveridge -- he was a voracious researcher. And he did all this research in days before there were, you know, the National Union Catalog of Manuscripts. Before you could, you know, do on-line research or before you had easy access to depositories, he did all this stuff. And he consulted the Marshall papers.

And the Marshall papers, by the way, it’s a very real reflection of Marshall himself. Unlike the Adamses, unlike Jefferson, unlike the other Founding Fathers, Marshall just didn't seem to care that much about preserving his papers.
LAMB: Is...
NEWMYER: Yeah, and what I was going to say -- if you have to research, it's very difficult because there's no -- there was no collection of papers in one place.
LAMB: He died at age 79, in 1935...
LAMB: ... as you point out in your book. But where was he born?
NEWMYER: OK. He was born in -- on the frontier of Virginia in Fauquier County, Virginia. And his...
LAMB: How far is that from Washington, D.C.?
NEWMYER: Well, it's a couple hours. It's a beautiful part of the country. I mean, that whole area is -- you know, west of Washington, D.C., for a couple hours will get you into what you might say Marshall country. But it's in and around Warrenton, and so on, I think is the place. And I think Marshall -- Marshall -- you know, I've never visited what's left of Marshall's birthplace at Oak Hill, but I think it's gone into private ownership, if I'm not mistaken, but...
LAMB: Was it Oak Hill, Virginia, or was that the name of the estate?
NEWMYER: No, that was the name of the place. That was the family place. I mean, it was not a town. There was no -- well, Germantown, I think, was perhaps at that time the -- you know, the designation for that place. But it was -- you know, when the Marshall family moved there in the 1750s, there was really nothing there. I mean, there was -- I mean, it was really, truly frontier.
LAMB: Where'd they come from? What...
NEWMYER: Well, they came...
LAMB: ... did his father do?
NEWMYER: They came from Westmoreland, and you know, his father, I think, in Marshall's words, was a planter of narrow beans, which meant that he had a few slaves, a large ambition. He was obviously not born to the purple, although Marshall was descended on his mother's side from the Randolphs. And of course, that made him a part of the -- you know, it seems at times that almost everybody in Virginia was descended from the Randolphs, but -- I mean, it was a mark of distinction.
LAMB: How did he relate to Thomas Jefferson? How's that second...
NEWMYER: That was a second cousin. Well, they were both descended from the Randolphs. I mean, that was the -- that was the connection. You know, it's funny -- revealing, I'm not sure funny, but -- Marshall never spoke of his family pedigree. I'm sure he -- you know, he must have thought of it, but it was not something that was on his mind. He was forward-looking. He really didn't look back. And I think it was that forward-looking quality, maybe nurtured on the frontier, which made him -- I see him as remarkably sort of American, much more so than -- than the -- some of the other Founding Fathers.

He is a recognizable person to me. I mean, he's the kind of guy you could go out and feel comfortable having a beer with, or his favorite drink was mint julep. And you could have had a good time. You couldn't have -- it wouldn't have been that easy with Washington, certainly not with Jefferson, maybe John Adams. I -- but Marshall picked up some of the frontier -- democracy from the frontier.

So here's a guy, he ends up being a Federalist, a conservative, but personally he has all these remarkable democratic egalitarian qualities. And it was really that combination, I think, which almost was the key to his ability as Chief Justice. He was very egalitarian, very sensitive to other people, didn't stand on prerogatives, didn't stand on family.
LAMB: You said he was tall, sinewy, thick head of hair, socializer, non-judgmental, devoid of malice. There are other...
NEWMYER: Except maybe with Thomas Jefferson. I think he had a little tinge of malice that he reserved for Jefferson. But yes, he -- yeah.
LAMB: "Easy conviviality, casual summer manner and frontier accent." How do you find all this out? Who do you rely on to tell you that?
NEWMYER: Well, you know, the quote about the accent comes from John Randolph of Roanoke, who, you know, was another one of the Randolphs, by the way, who was very interested in family, very interested in tidewater aristocracy and very interested in sort of Englishness. And when he heard Marshall speak for the first time, there was a detectable I think "twang" was the word that Randolph used.

And I mean, Randolph referred to it sort of lovingly, but it was sort of evidence, I think, that Marshall wasn't quite of the -- you know, the real first-line families, not quite the aristocratic thing that Randolph admired so much, although Randolph became close friends with Marshall, and Marshall with Randolph. Remarkable because these guys were miles apart ideologically. I mean, Randolph was a -- was really one of the most -- the sort of romantic, states' rights, anti-national -- and a very real critic of the Marshall Court. But he loved John Marshall.
LAMB: You quote Albert Beveridge as saying that the one conception that Marshall had was American nationalism.
NEWMYER: It was the design, I think, in the tapestry, the fabric of his life. I think every biographer has discovered this to be true.
LAMB: Well, explain, though -- I mean, so that we can delineate between him and somebody else like -- Thomas Jefferson believed in what, the states should have all the power? And then this guy believed that it should be a national...
NEWMYER: Well, let me go back because I think you'd have to say honestly that Jefferson truly was -- I mean, he loved the nation. And the states' rights people, you know, from Jefferson to Calhoun and so on, they were there when the nation was created during the Revolution.

And so the idea of being an American was -- did not belong exclusively to any party. Both the Federalists, the party of John Marshall, and the Jeffersonian Republicans, the party really which Jefferson founded, he and Madison -- they both were patriotic. They both cherished the Revolution as the moment of conception for this great nation. What they disagreed on, of course, is what the nation was going to look like.

And it was at this point, I think, that the term "nationalism" and "states' rights" becomes, at least constitutionally speaking, much more meaningful because Jefferson, John Randolph, you know, John C. Calhoun were committed to a nation which was made up of states and that the states -- you had -- one has to remember at this time the state government was the government that really touched people. State and local government was what counted. I mean, the reach of the national government was so flimsy at this time, it almost didn't exist.

And people like Jefferson felt that the modicum of power which the national government had was too much. And of course, this is the basis, I think, of the personal and ideological antagonism.
LAMB: When did that start? When did they know each other?
NEWMYER: Well, you know, of course, they knew each other from, you know, the 1780s and 1790s. Where the hatred started is -- I tried to figure this out. I sometimes think it was a chemical disaffinity between these two guys. I mean, is there such a thing as a common-law personality -- a -- by that I mean, you know, the lawyer who practiced the common law, who went to the court every day and represented people of all different -- developed a kind of down-home, down-to-earth, non-theoretical, gradualist approach. Jefferson, on the other hand, tended to think -- he was -- at least Marshall perceived him as a sort of visionary or a metaphysician or a speculator. The grand themes of the Declaration of Independence, for example.

And so where did they actually -- where did these things actually begin to collide, these two different visions of America, the localist thing, as Jefferson saw it, the states' rights thing, and Marshall's vision of nationalism?

By the way, and the national vision, of course, had an economic dimension to it. I mean, I think Marshall, in a sense, was a Hamiltonian to the extent that he saw the growth -- and I argue that in the book -- he not only saw the growth of an expanding market, but he saw the national economic unit as maybe being the real foundation of American nationalism. So if he could use the Court to enhance, you know, trade, commerce across state lines, he felt that maybe those economic sinews would bind the nation together, would overcome this sort of localism which Jefferson saw. And of course, I think we're talking, really, about the roots of the Civil War.
LAMB: But go back, before you do that, to John Marshall, the person.
LAMB: Born in Fauquier County...
NEWMYER: In 1755.
LAMB: ... in 1755. How long did he live there?
NEWMYER: Well, he lived there, really, until he moved to Richmond in the 1780s, when he became a lawyer in 1780, and I mean he practiced a little bit in Fauquier County, but his – Polly Ambler, whom he married -- Jaqueline Ambler, was the treasurer of the county, and then the state of Virginia. And so when the Amblers moved to Richmond, Marshall was deeply in love. He moved to Richmond. And of course, by that time, he was a lawyer. And Richmond was the center of the legal community. That's where the action was, in Richmond.
LAMB: How long did he serve in the military?
NEWMYER: Six years.
LAMB: Where?
NEWMYER: Well, he began as a -- he signed up in the summer of 1775 in the Culpepper militia. So he belonged to one of the numerous militia units which sprang up. And he was one of the first to sign up. And of course, his father organized a regiment, Thomas Marshall, and in a sense, I think it was the father's influence, of course, which helped spur Marshall's, you know, patriotism, his early decision to join the military. So he fought in a number of battles. I think the first battle he fought as a member of the Culpepper militia was a -- what we call the battle of Great Bridge, down around Norfolk.
LAMB: In which war?
NEWMYER: We're talking about the American Revolution.
LAMB: So he did fight in the Revolution.
NEWMYER: Yes. And then he fought at Germantown, Monmouth Court House...
LAMB: How old was he then?
NEWMYER: Well, he was 19 years old when he joined up.
LAMB: Had he studied the law yet?
NEWMYER: Well, actually, his father in 1772 was one of the first to subscribe to Blackstone's Commentaries.
LAMB: What's that?
NEWMYER: Blackstone -- Sir William Blackstone was a Tory lawyer who gave a series of law lectures at Oxford. And these were published in four volumes, four thick volumes on -- you know, commentaries on the laws of England. And Marshall and, actually, every other lawyer in America really -- if there was one book they read -- and many of them only read one book -- it was Blackstone's commentaries. And so Marshall's father put a copy of Blackstone commentaries in his son's hands in 1772. So this was long before the Revolution.

And so the great irony is that Marshall learned a lot of his law from a Tory lawyer. I mean...
LAMB: From his father, or from...
NEWMYER: Well, no, from Blackstone.
LAMB: Oh, I'm sorry.
NEWMYER: Yeah. No, his dad was a planter. He was not highly educated. But his father believed in education, and so, in a sense, he was very much interested in seeing that his son -- but he -- I think he marked his son for the career in law, yes.
LAMB: Was his father -- when you mentioned Tories is where I got there -- was his father born here or over in...
NEWMYER: No, he was born in this country.
LAMB: In this country.
LAMB: Was his father born...
NEWMYER: I believe so, yes. I think the -- I'm not sure, to tell you the truth, about the exact pedigree right at the moment here. But there have been all sorts of efforts to trace Marshall back to the 17th century, England, and so on, and establish a kind of aristocratic lineage. I'm not sure, to tell you the truth, how that holds up. But his father was born in this country, Westmoreland County...
LAMB: Virginia.
LAMB: When did he study -- when did John Marshall study under George Wythe?
NEWMYER: For three months in 1780. And Marshall actually was technically still in the army, but he was on leave. And as a matter of fact, he didn't really see much action after 1780, but -- so his father, I think, was stationed at Yorktown, and Marshall came home to visit and decided to attend Wythe's lectures in the summer of 1780, which he did. And of course, his girlfriend, Polly, was in Yorktown at that time, so there was a secondary reason, in a sense, for attending...
LAMB: He was at William and Mary, though, when he...
NEWMYER: He was at William and Mary, and that's where Wythe, of course -- and Wythe had just been appointed -- Wythe, of course, had the first law lectureship in this country at William and Mary. So Marshall was one of his very first students. And we do have the account book -- that is to say, Marshall's notes, which he took when he was attending Wythe's lectures.
LAMB: Who was George Wythe, by the way?
NEWMYER: Well, George Wythe was, I suppose -- is really one of the great legal scholars of late 18th century Virginia. He later became chancellor of Court of Equity -- that is to say, of Virginia. But -- and he was a lawyer. And you know, he was one of these polymaths. He was a statesman, a lawyer, perhaps a -- this kind of gentleman could only be produced in late 18th century Virginia. But Wythe was a very learned man and dedicated to teaching. And the number of people that he influenced, including Marshall, was quite -- quite amazing, including Jefferson, Madison, and so on. It was quite amazing, but...
LAMB: But also the Virginia -- one of the Virginia representatives at the Constitutional Convention.
LAMB: Of which Marshall was not, nor was Thomas Jefferson.
NEWMYER: Jefferson wasn't at the -- either the ratifying convention or the Philadelphia convention. Wythe -- I'm not sure whether Wythe was at the ratifying convention in June of 1788. I don't think he was.
LAMB: But he had gone to Philadelphia, but did not sign...
LAMB: He had to leave early.
NEWMYER: No, I'm -- I -- are you sure about that? I'm not -- I can't say that for sure, to tell you the truth.
LAMB: Well, it doesn't matter.
NEWMYER: I didn't think he was at the Philadelphia convention. But he certainly had a huge impact on Marshall and many other people, even in that, you know, three months period.
LAMB: You say that John Marshall was an Episcopal but did not take communion. What did that mean? Episcopalian...
NEWMYER: Well, I mean, he -- I think he didn't take communion on the basis of principle. He probably simply did not believe. But he was a deeply religious person. One of the things that struck me, one of the last things he said in his letters -- he wrote this letter to his grandson about the -- you know, the importance of a clean conscience and a composure which comes from knowing that you've done your best. And it was Marshall's feeling that religion was the source of this kind of virtue which he found so necessary.

So he supported the church and was one of the reliable supporters of the church in Richmond. But apparently, he -- I mean, Chuck Hobson, editor of the Marshall papers, told me that -- I'm blaming this on Chuck, but he -- that Marshall never really took communion. I don't know if that's established in any -- he never said any reason why he didn't, but it was a principled decision, I believe, yeah.
LAMB: How did he become a friend of John Adams? And what jobs did John Adams appoint him to?
NEWMYER: Well, the Adams-Marshall friendship, of course, is, I mean, the key, ultimately, as you know, to his appointment as Chief Justice. The initial contributions, I think, came -- I mean, first of all, let's go back for a second because Marshall was the chief defender of the Washington administration in Virginia. And of course, John Adams was vice president under Washington.

And so the crucial decisions in this -- we're talking about the 1790s, and increasingly in Virginia, even a great man like George Washington was under attack because Washington, by -- Jefferson, Madison and the -- and the Virginia Republicans looked -- came to look upon Washington, almost unbelievably, as a sort of traitor to the cause, of course, because he was talking too much nationalism. The Bank of the United States, a pro-English foreign policy, protective tariffs -- all of these things -- the states' rights, localists, as they begin to take shape in the 1790s, felt were anathema to their view of what the nation should look like.

And it was Marshall who stepped forth to defend Washington's policies, and especially his foreign policy and especially the Jay Treaty. This was a kind of watershed moment in early American politics because Washington decided to settle outstanding problems with Great Britain in this treaty. And of course, the Jeffersonians in Virginia went nuts because they felt that this was a sell-out to the former enemy at the expense of revolutionary France, of course, which Jefferson particularly felt is -- should be our friend, and so on.

So Marshall emerges as a defender of federalism, and so John Adams -- your question -- I mean, Adams -- when Adams becomes president, Marshall continues his affinity, I think, with the Federalist Party and his ability to defend Federalist principles. And of course, I don't have solid proof of this, but I'm sure Washington conveyed to John Adams his indebtedness to Marshall. I mean, he made it clear to Marshall.

As a matter of fact, Washington became a kind of patron of Marshall, encouraged him to run for Congress, and so on. So Marshall emerges as the leading Federalist politician, even though he didn't like political parties. He was the most effective Federalist in Virginia. And so it was during this period, by the way, that he begins to square off with Jefferson, who emerges in the 1790s as the leader of the Jefferson Republicans.
LAMB: For John Marshall, four days as the secretary of war -- four days -- and then secretary of state.
LAMB: How did that happen?
NEWMYER: Well, I mean, it's a meteoric rise, I guess you might say. What it -- I mean, he didn't do anything as secretary of war. And as a matter of fact, he didn't do an awfully lot that's memorable -- I think it was six months -- as secretary of state before he became Chief Justice.

I mean, he did, of course, I think, support Adams's moderate federalism. And this is an amazing thing. I mean, Adams -- the new biography by David McCullough and other biographies have pointed out that Adams had -- he was fighting on two fronts. One, of course, were the Jeffersonians, who held him in contempt. The other were the so-called "high Federalists" in his own party, led by Hamilton. And Hamilton's cronies occupied key positions in Adams's cabinet, which was a holdover from the old Washington -- I mean, it was a great mistake, Adams kept these guys on -- Pickering and McHenry and so on.

And so Hamilton in the last two years of the 1790s tried to subvert Adams's presidency. And Marshall was a constant support for Adams's moderate approach. And the crucial issue was Adams's decision not to declare war on France. After the failure of XYZ, there was a great rage in this country for a declaration of war. And of course, the Hamiltonians especially wanted war against France. I mean, this fit in their pro-English commercial thing -- and Hamilton wanted to be the head of the army. I mean, he was an ambitious guy.

Adams put the kibosh on this and ended up finally firing these Hamilton spies in his cabinet. And it was Marshall, really, who defended Adams all the way, both as congressman and both as secretary of state. And it was this, I guess you might say, stalwart service in the cause of moderate federalism, I think, that convinced Adams finally that this guy had the qualities that would make a great chief.
LAMB: But there's a period in history that seems to be very important. I mean, you walk over to the Supreme Court right now and you'll see this enormous statue of John Marshall. Obviously, they think he's important. And you point out in your book that he was nominated by Adams, by President Adams, on January the 20th, 1801, before they, you know, took the inauguration on January the 20th, as they do now, and that he was confirmed in seven days as the Chief Justice of the United States.

And then in the middle of all this, you have the William Marbury versus Madison case, and that's a -- you know, the...
NEWMYER: The beginnings of the great case, yes.
LAMB: The whole process there in that very few days. So in order to -- we've got him on the Court. He's Chief Justice. He's the fourth one, as you say. And then along comes Marbury versus Madison. Tell the story about William Marbury and how that ended up being one of the most important cases that you write about.
NEWMYER: Well, I think you have to say that Marbury versus Madison was a case that was not born great. I mean, if you look at the factual environment from which the case emerged, I mean, you would have not predicted that this would have been a great case. It originated in the Organic Act of the District of Columbia, which was an act passed in the last days of the John Adams administration. And we have to remember that this -- in the days before the 12th Amendment, the defeated Congress came back for a rump session in December. And so the Federalists are defeated at the polls. They come back for one more go-around, and they begin to pass all these controversial acts. One of the acts was the Organic Act for the District of Columbia, which was one -- actually, one of the more innocuous of the Federalist acts, but it created 42 justices of the peaceship for the District of Columbia.
LAMB: Let me just stop you a second and ask you a technical question. The Federalists -- John Adams -- who else? I mean, John Adams is about to go out of office, so that the world has changed. The whole election process changed the world in 1800, and who goes out besides John Adams?
NEWMYER: Well, the majority of the Federalists in both houses.
LAMB: Both houses.
NEWMYER: Yes. I mean, it was a Jeffersonian sweep in the election of 1800. So the Federalists had not only lost the presidency in the election, they lost both houses of Congress.
LAMB: But the -- but John Adams was nominated -- I mean, John Marshall was nominated and confirmed by the Federalists, the old government.
LAMB: And so he's the Chief Justice...
NEWMYER: Yes. Right.
LAMB: ... for the next 34 years.
NEWMYER: That's right. And of course, he was put there not just because -- as we suggested earlier, because of the services he had done Adams but because Adams felt that here was a guy who could turn the Court into a bastion of good sense against the radical persuasions of this new party, the Jeffersonian Republicans. So Marshall, in a sense, was put in this high office with a sort of mandate. And judicial review, which emerges from the case of Marbury, becomes the first instance where you might say he makes good on the promise.
LAMB: How many people are on the Court in 1801?
NEWMYER: There are six, counting the Chief Justice.
LAMB: Who else is on there that we might have heard of? Samuel Chase still on there?
NEWMYER: Samuel Chase and William Paterson and Bushrod Washington I think were the key figures on the Court. I think you would have to say it's significant that two of them were -- there was not really a strong mind on the Court.
LAMB: Where did they physically meet?
NEWMYER: Well, I mean...
LAMB: They didn't have the building over here.
NEWMYER: The first -- I mean, no, they didn't. I mean, I think it was in a basement room of the north wing of the Capitol. It was very modest chambers indeed, very cramped. As a matter of fact, the Justices had to robe and disrobe in public. There was no conference room. I mean, it was -- I think -- I've often thought that Jefferson would have been pleased with the architectural arrangement because that's exactly where he wanted the Court is someplace in the basement of American government. And of course, it frightened Jefferson that his old enemy, Marshall -- because they were enemies by this time, ideological enemies, and I think there was the personal animosity there, too. So the stage is set for a showdown, I guess you might say.
LAMB: Do you remember whether the presidency had been determined by the early part of January or not, or January 20th? Had Thomas Jefferson absolutely been determined by that time?
NEWMYER: You know, I'm not sure that -- there were -- as you know, the votes went on -- I think there were 36 votes in the House of Representatives before they finally -- because disputed elections went to the House of Representatives at that time. And it was clear. Yeah, it was clear that Jefferson was going to be president by then. Yes. It had to be settled by that time, yeah.
LAMB: So John Adams is going to go out on March the 4th, so he's got this little time period in here...
LAMB: ... to these 42 justices of the peace...
NEWMYER: Yes, and...
LAMB: ... justices of the peace.
LAMB: William Marbury again. Let's go back to him.
NEWMYER: William Marbury was one of these guys. So what happens? I mean, these folks, not surprisingly, are all Federalists. And so the commissions to the justices of the peace are, you might say, signed, sealed but not delivered.
LAMB: Physically.
NEWMYER: Not physically delivered. But the president had signed them. I mean, it was a completed deal except that they hadn't really been delivered. And so when James Madison, who was secretary of state, takes over March 5th, he finds on his desk 42 justices of the peace commissions to be delivered, of course, all to Federalists. And basically, what Jefferson said is, you know, "This is outrageous." By the way, this -- this flagrant patronage move was one of the things which separated Jefferson and Adams. I mean, Jefferson felt that this was a real betrayal.

So I mean, it was the refusal to deliver those commissions that was the factual background for Marbury versus Madison. And William Marbury was -- and four other guys, were -- brought a case. They took it under so-called original jurisdiction directly to the Supreme Court of the United States and asked Marshall and the Court to issue what we call a writ of mandamus to the secretary of state, showing cause why he shouldn't deliver these things.
LAMB: What's a writ of mandamus do?
NEWMYER: Well, a writ of mandamus is an ancient sort of common law, what we call a prerogative writ. It's basically an order which issues from a superior court to inferior courts and to officials of government, ordering them to do something.
LAMB: So ordering James Madison...
LAMB: ... to deliver the commissions.
NEWMYER: Yeah. And so Charles Lee, William Marbury's lawyer, asks the Court for this prerogative writ, "Send this order to Madison. Tell him to deliver these commissions" because, hey, they looked at it as a piece of property. It was a vested right. At least, that was William Marbury's take on it.
LAMB: By the way, where's James Marshall in all this?
NEWMYER: James Markham Marshall was Marshall's brother, and he plays a strange sort of somewhat mysterious role in all this. He had been appointed -- another one of the last-minute acts of the Adams administration was the Judiciary Act of 1801, which altered the whole structure of the federal courts. What it did was to relieve the Supreme Court of the United States of the obligation to ride circuit because these early Justices were trial judges. They were only in Washington really, you know, at the most, a month and a half during this period. The rest of the time, they rode circuit, where they sat with the federal district judges in the various states.

It was a tremendous burden, and there was a lot of opposition among the Justices to this onerous thing. So the Judiciary Act of 1801 did away with circuit riding, created a whole bunch of new circuit courts and 16 new circuit judges. John Marshall's brother was one of these Federalist appointees. He was now a circuit court justice.

Now, of course, remember that one of the first things that the Jeffersonians did was to repeal the Judicial Act of 1801, and so all of these new circuit judges were eliminated without really having taken office. So I mean, that's part of the political environment.

But James Markham Marshall figures in Marbury because he's called to sign an affidavit testifying to the existence of these mysterious commissions. And when the case finally makes its appearance in the Supreme Court -- you know, Charles Lee brings the case. The preliminary arguments are made in 1801. Jefferson doesn't allow any lawyers to appear. He -- as a matter of fact, it's his way of repudiating, turning his back, stonewalling, if you will, the Marshall Court.
LAMB: Could he -- by the way, could you get away with that today?
NEWMYER: No! No. No, you couldn't. Well, I mean, you -- I suppose a party -- I can't imagine a party going to the trouble of getting a case to the Supreme Court and then not arguing it. But the argument in the great case of Marbury was ex parte. It was from one side only. Only William Marbury, Charles Lee -- was his lawyer -- only Charles Lee argues the case. And all through this case, Jefferson refuses to cooperate. I mean, Jefferson -- of course, Madison, you know, is the defendant in Marbury versus Madison, but Jefferson is clearly pulling the strings in the background. He will not allow people in the Department of State to testify to the existence of these disputed commissions.

So Marshall is faced with the -- how do you get the existence of these commissions on the Court's records? So he calls on his brother, who testifies to the fact that he showed up and actually saw those commissions and, as a matter of fact, took a couple of them because he wanted to deputize some marshals. And so you have this written affidavit from Marshall's brother in the case, testifying to the existence of these commissions. The purpose of all this -- all these shenanigans is to circumvent the stonewalling tactics of Thomas Jefferson and get the existence of the disputed commissions on the record so the Court could decide it.

And this was all going on in 1801. The case would be decided, of course, in 1803.
LAMB: How could you wait that long to decide that case?
NEWMYER: Well, actually, Marshall had no choice because when the Jeffersonians repealed the Judiciary Act of 1801, they essentially -- it's a complicated thing and I won't bore you with it, but the impact of the repeal act of 1802 was to adjourn the Court for 14 months. So there was a period between the term of 1801 and 1803, when the Court, you know, didn't hold its sessions in Washington.
LAMB: When the Supreme Court made the decision in 1803 on Marbury versus Madison, what was the vote?
NEWMYER: Oh, it was a unanimous decision.
LAMB: Six-zero.
NEWMYER: And of course...
LAMB: They all Federalists, by the way, all the Justices? I mean, Federalist...
NEWMYER: Yes, they were. And of course, it's amazing because something happens in that decision which is probably more important than the decision itself in the great sweep of things. The Court abandoned what we call "seriatim" opinions. In the 1790s, the Justices all wrote separate opinions. This was the English practice. This was the practice in the colonial and state courts. One of the first things Marshall introduced was the concept of a majority opinion. In other words, a single opinion speaking for the whole Court, written by one Justice. And that Justice in the early period was usually Marshall. And that was the case in Marbury versus Madison.

So it's a significant case not only just because it declared an act of Congress unconstitutional and came up with a reasoned justification which is why this was constitutional but it was an opinion written by a single judge, Marshall, for the whole Court. And it was that combination of a majority opinion, a forceful majority opinion, and of course, declaring judicial review.
LAMB: Did William Marbury ever become justice of the peace?
LAMB: Why not?
NEWMYER: I don't know whether he gave up the quest or what.
LAMB: Could he have, after the decision was made?
NEWMYER: Well, no. No. I mean, the decision went against him, you recall. I mean, Marshall finally said that -- first of all, there were these famous three questions. Yes, Marbury was entitled to his decision. And according to the rule of law in this country -- this was a long lecture which Marshall managed to give in the opinion against Thomas Jefferson -- even the president of the United States is not above the law to withhold this commission, violated, as a matter of fact, a federal statute.

Marshall gives this huge, long lecture. And it looks like he's digging himself a huge hole, backing himself into the corner. But then, as the -- as you know, he finally says, "I'm sorry, but the Court can't help you." The Court can't issue a writ of mandamus ordering Madison to deliver these commissions because the authority to that was rested on Section 13 of the Judiciary Act of 1789, which is a federal statute, and that act, Marshall said, gave original -- pretended to give original jurisdiction to the Supreme Court of the United States. And when Congress attempted to bestow original jurisdiction to the Supreme Court, it violated Article 3 of the Constitution. Why? Because Article 3 of the Constitution talks about original jurisdiction, the notion being that original jurisdiction is not within the purview of Congress to change.

So Marshall declares section 13 of the Judiciary Act unconstitutional, so Marbury doesn't get his commissions, but the Court and Marshall get an occasion to explain why it is the Court had the power to declare section 13 unconstitutional.
LAMB: We're about out of time, so -- but that decision did what to the future of the relationship of the Court to this town, the other -- the legislative branch and the president...
NEWMYER: You know, it's funny because, of course, this is the great decision, maybe the most famous of all decisions. But there was not a great deal of hoopla about it in 1803. Perhaps, you know, Jefferson didn't realize that Marshall had stolen the family farm. It's only really -- I mean, it was a fairly narrow decision. I mean, Marshall justified judicial review, but he didn't say that Congress had to obey. He didn't say the Court had the final power to interpret the Constitution. What he did is lay out the theoretical foundations for the Court's power. And then in subsequent decisions, Marshall put teeth, you might say, in judicial review, where he really exercised power over acts of Congress. So it was a cumulative process building on Marbury.
LAMB: The longest-serving Chief Justice in history, 34 years. Are you surprised that somebody hasn't stayed longer than that?
NEWMYER: That is a huge long period of time. Just think, he was Chief Justice while I guess there were five different presidents. And you know, he belongs in the founding brothers. He's always left out. That always strikes me as an anomaly. I mean, here's the guy who was there and put the -- as John Quincy Adams said, he put the Constitution on the sound foundation on which it rests.
LAMB: You say that he wrote 49 percent of the opinions when he was on the side of the majority during this 34 years.
NEWMYER: In the constitutional cases, he was always, except in one case, on the side of the majority. He only dissented in one opinion there of a constitutional nature.
LAMB: What's your next book?
NEWMYER: I might do something on the Burr treason trial. That was the O.J. Simpson trial of the 19th century.
LAMB: In Richmond, and John Marshall was the...
NEWMYER: Presiding judge, yes.
LAMB: We're out of time. Here is our guest's cover book by R. Kent Newmyer, "John Marshall and the Heroic Age of the Supreme Court." Thank you very much for joining us.
NEWMYER: Thank you. Pleasure to be here.

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