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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. You know why?
J. Aughenbaugh: Because we get to talk about the Marshall Court for a second episode.
N. Rodgers: We get to talk about my favoritest of all the cases before the Supreme Court, my mostest favoritest because I finally understand. I came to understand good people in the year 2020, Season 4 Episode 1, our first summer of SCOTUS.
J. Aughenbaugh: Yes.
N. Rodgers: When Aggie said, Marbury versus Madison. What I heard was [inaudible] because I have never understood Marbury versus Madison, and he explained it in a way that I was like, oh, and it all made sense to me. If you have not listened to that episode and you are interested in Marbury, in a deeper dive of Marbury, you should go and listen to that episode.
J. Aughenbaugh: Listeners, if you haven't picked up on it, today's episode is Part 2 of our discussion of the Marshall Court, led by Chief Justice John Marshall. In the first part of our discussion of the court, we focused on, shall we say, the broad parameters of the Marshall Court and how Marshall affected the court institutionally. For instance, his desire to go ahead and have the court speak as much as possible in unanimous opinions.
N. Rodgers: Written unanimous opinions.
J. Aughenbaugh: That's right.
N. Rodgers: Which was new.
J. Aughenbaugh: Yes, and how he was such a masterful chief that even though he worked mainly with justices appointed by Democratic presidents, Marshall, who was a federalist, was very persuasive in getting these justices to agree with him.
N. Rodgers: You said 85% of the time. Which J Rob if he could get that unanimous he would just stay forever for another 34 years. Chief Justice, which as a reminder, that's how long Marshall served was 34 years.
J. Aughenbaugh: Yes.
N. Rodgers: He's appointed in 1801, and he gets a gift in 1803.
J. Aughenbaugh: What we're going to do before we get to the gift and other important or landmark Marshall Court decisions. What we're going to do in this second episode, listeners, is we're going to go through some of the landmark decisions because one of the other reasons why the Marshall Court is lauded by scholars, is that the Marshall Court did a lot of work in teaching us the meaning of the Constitution.
N. Rodgers: And how to have a Supreme Court.
J. Aughenbaugh: Yes.
N. Rodgers: A lot of the modern court rises almost directly out of Marshall.
J. Aughenbaugh: The first one, as Nia has excitedly shared with us, is Marbury versus Madison. The court decided in a unanimous opinion that it did not have the constitutional authority to give William Marbury his Justice of the Peace Commission. This was seemingly a victory for the Jefferson administration, because the Jefferson administration did not want him in that job. They didn't want a whole bunch of other federalists to get judgeships. But in giving Jefferson the victory, Marshall did something much more important for the Supreme Court. Nia, what did he give to the Supreme Court?
N. Rodgers: He essentially created judicial review.
J. Aughenbaugh: Yes.
N. Rodgers: What he said by saying, Oh, no, we don't have the right to review the executive branches. Not giving people their commissions implies we do have the right to see if other things are constitutional or not. It was the smartest play he could have possibly made because he gave away the battle to win the war and he totally did it. Now everybody says, Well, let's wait and see what the Supreme say. It's just a natural thing that we all believe is true, but until 1803, it wasn't a given.
J. Aughenbaugh: Nia, one of the great things and I love sharing this with my students. One of the great things about that case is that the Marshall Court used judicial review to not only overturn a law passed by Congress or a section of a law passed by Congress, which would have given the court the ability to order Madison to give the commission. But the court also reviewed Madison's behavior as Secretary of State. It sent a very clear message. We can use judicial review to not only look at laws passed by Congress, but also actions taken by the executive branch. That's what really check of both other branches. We are co equal. We can take a look at what you guys do, and we can decide whether or not it satisfies the Constitution. That's what really upset Jefferson. 'Cause Jefferson knew immediately, Hey, wait a minute, here. I won but Rough Roe Shaggy. In the infamous words Scooby Doo.
N. Rodgers: Exactly. Jefferson got outfoxed. I'm sure, as soon as he saw that ruling, he went, Oh, man. But good on Marshall. Like I said, Season 4 Episode 1, go listen to it, if you want to a more in depth exploration of who Mr. Marbury was and how Madison comes to be in charge of giving out commissions anyway, and all stuff. But that's not the only big case. There were other big cases. The author of that case is John Marshall.
J. Aughenbaugh: Marshall, yes.
N. Rodgers: He tends to be the author of a lot of them, but not all of them.
J. Aughenbaugh: That's right. Our next case came one year later Capron versus Van Noorden. Again, we do like our names. Yes. This was a case about lawsuits and legal procedures. This case clarified that the courts get to decide if they have jurisdiction to hear a case.
N. Rodgers: No, we'll let you do it. We'll let you settle it.
J. Aughenbaugh: Just because the two parties in the case say, hey, we got a dispute, and we want you to handle it. No. According to the Marshall Court, the federal courts get to determine if they have jurisdiction to hear the case. Which again, establishes quite clearly that the Supreme Court and the federal courts generally have their own independent authority to decide can we do this? Again, this is Institution Building 101. Hey, that's nice.
N. Rodgers: If you're wondering how this plays out in the modern era, the justices just passed or just sorry, gave an opinion where they said that lower courts could not make nationwide injunctions because they did not have the jurisdiction to do that. If you wonder if this thing is still playing out, it is still playing out playing out from 1804-2025. We're still having discussions about who has jurisdiction to do what and the Supremes are still laying down the law, I mean that metaphorically, but also apparently in reality, about who has jurisdiction and who doesn't. Yeah,1804-2025, and we're still arguing about that.
J. Aughenbaugh: Yes, over 200 years. The next one. This is Fletcher versus Peck. The author was John Marshall. Again, the topic here is the role of the courts.
N. Rodgers: What year is this?
J. Aughenbaugh: 1810.
N. Rodgers: We go six years with more or less quiet chilling like, Yeah, we're doing Supreme Court stuff, but we're not making big.
J. Aughenbaugh: Again, remember, listeners, early on in the history of the Supreme Court, the Supreme Court didn't have a lot of work. They were still riding circuit for a good chunk of each year, much to the chagrin of most of the justices. Again, for listeners who haven't caught our previous discussion, riding circuit meant that Supreme Court justices for a period of time every year would have to ride horses or carriages to lower federal court circuits to hear the cases.
N. Rodgers: Where are those lower federal circuits? Way far away?
J. Aughenbaugh: Way from Washington, DC.
N. Rodgers: Way far away. All up in Maine, in Vermont, in South Carolina, they had to go way the heck out. They weren't thrilled with having to do all that.
J. Aughenbaugh: This was required in law by Congress. But the question for Fletcher versus Peck was, okay, if a law is being challenged because it violates the Constitution, Fletcher versus Peck, the Supreme Court said, the law has to clearly violate the Constitution. A judge can't go ahead and say, well, it did it.
N. Rodgers: It's in the neighborhood of offending the constitution.
J. Aughenbaugh: No. Judicial review means you have to clearly decide that a law or an executive branch action violates the Constitution. Otherwise, a federal judge should defer to whose representatives? Peoples, 'cause it's a constitution. Again, this is the Marshall Court sending a clear message to lower courts, guys, yes, we have power of judicial review, but we shouldn't abuse it. We do not abuse it.
N. Rodgers: We should not be rewriting laws because we are not the legislative branch.
J. Aughenbaugh: That's right.
N. Rodgers: That's not job. Our job is not to rewrite the laws to make them more in line with what we think the Constitution means or says. We have to look at the language. I know this isn't the proper example from Fletcher versus Peck, but it makes me think of this. If Montana said that they were going to put up a candidate for president who was under the age of 35. The Constitution clearly says you can't do that. If it got into a lawsuit, the candidate would sue for ability to, the courts could say, no, that is a clear violation. You can't do that. Whereas if a state said something a lot more gray like we're going to put term limits on House of Representative and our federal congressional members. We're going to put term limits on them from Montana. In Montana, you can only serve two times in the Senate. That's a lot grayer, because the constitution doesn't speak to that.
J. Aughenbaugh: Probably the best way to think about this, listeners is, and I'm going to use an expression for modern times. In Fletcher versus Peck, the Marshall Court was basically telling the lower courts, stay in your lane.
N. Rodgers: Don't interpret the Constitution.
J. Aughenbaugh: You can interpret the Constitution, but remember, the courts interpret the Constitution who makes law?
N. Rodgers: Legislator.
J. Aughenbaugh: The legislators.
N. Rodgers: The representatives of the people. I see.
J. Aughenbaugh: Just because we have the power of judicial review does not mean we get to go ahead and decide what is the best legislation. No, the people's elected representatives get to decide what laws to make. Our job is to decide whether or not the laws they have made clearly violate the Constitution. If they don't clearly violate the Constitution.
N. Rodgers: We're out of it.
J. Aughenbaugh: Because in a democracy, whose will should dominate?
N. Rodgers: The people.
J. Aughenbaugh: The people. Not the unelected judiciary.
N. Rodgers: I see. That's much more clear. They do have the power to interpret, but they don't have the power to remake.
J. Aughenbaugh: Yes. They don't get to write it. They don't get to implement it. Who does?
N. Rodgers: The executive. Implement.
J. Aughenbaugh: Yeah, the political branches. Again, this is the Marshall Court instructing not only the lower courts, but the rest of the country. We have separation of powers. Yes, we can check one another, but the legislature makes laws, the executive implements, and we interpret them to make sure that they are not in violation of the Constitution. The next one is another, shall we say, lesson from the Marshall Court. This one actually arose in the fine state of Virginia. Martin versus Hunter's Lessee. The author of this one was Joseph Story, who we briefly discussed in our last podcast episode. He was comparable to Marshall in terms of intellect. If there were two intellects.
N. Rodgers: Brilliant minds.
J. Aughenbaugh: Brilliant minds on the Marshall Court. One was John Marshall. The other one was Joseph Story.
N. Rodgers: This is what year?
J. Aughenbaugh: 1816.
J. Aughenbaugh: Real briefly, in this case, Virginia State Supreme Court basically said that Virginia did not have to honor the terms of a treaty the United States entered into with Great Britain to end the Revolutionary War, because one of the conditions of that treaty was that all governing bodies in the United States would have to honor contracts entered into before the Revolutionary War. Why this became an issue in Virginia, was that, Martin, had land, which is now in Fairfax County, Virginia, one of the largest, most prosperous counties in Virginia. Martin was deeded. He inherited land from an uncle, but that was land that was given to his uncle by the crown. Virginia said, post Revolutionary War, we get to decide who owns land in the Commonwealth of Virginia, and Martin said, no according to the treaty that the United States signed to end the Revolutionary War, all contracts that existed before the Revolutionary War with the British Crown have to be honored.
N. Rodgers: Because otherwise, pell-mell people's land, people's everything.
J. Aughenbaugh: Businesses.
N. Rodgers: Could just be taken by the state and given to other people.
J. Aughenbaugh: Virginia Supreme Court says, nope, we are agreeing with the Commonwealth of Virginia. You now no longer own this land, and if Virginia wants to go ahead and sell it to somebody else, they can.
N. Rodgers: He said, I'm going to Supremes.
J. Aughenbaugh: He goes to the Supreme Court, and the Supreme Court says, a treaty entered into by the United States, per the Supremacy Clause of the Constitution overrides Virginia law.
N. Rodgers: Must be honored by each of the states.
J. Aughenbaugh: They send the case back down to the Virginia Supreme Court, and the Virginia Supreme Court ignores the US Supreme Court and once again, finds in favor of Virginia. Martin takes the case back up to the US Supreme Court, and the Marshall Court becomes even clearer. Story, writing for the majority says the appellate power, the power of the US courts extends to state courts. Why? Because of the Supremacy Clause of the US Constitution, which Virginia had ratified.
N. Rodgers: You agreed.
J. Aughenbaugh: Yes.
N. Rodgers: To be part of this Constitutional Union?
J. Aughenbaugh: Yes.
N. Rodgers: If you hadn't agreed, then you might be able to say, No, no, Virginia is its own thing. We are not part of these United States, and we are going to take all the land and do what we want to do with it, but because you chose to join the Union and because you chose to sign off on the Constitution and by Supremacy Clause, what we mean is if the federals say a thing as a law.
J. Aughenbaugh: Then it conflicts with the states, the federal law is supreme.
N. Rodgers: Wins.
J. Aughenbaugh: Yes, it wins.
N. Rodgers: It wins. Because otherwise, you would have 50 sets of laws.
J. Aughenbaugh: Yes.
N. Rodgers: To govern things like companies that go across state borders, which would be horrible. Like when you think about the drag to commerce that that could be, that's part of the reason that the Supremacy Clause is so important, is because if you want to sell your goods outside of your state, you need to have a set of laws that everybody agrees to follow. North Carolina and Virginia and Maryland, because otherwise, you having a business in those three places would mean three separate sets of laws that you would have to obey.
J. Aughenbaugh: As I tell my students, Nia, the Supremacy Clause is not rooted in some grand political theory or philosophy. It was just the framers at the Constitutional Convention, who recognized that what would more than likely happen between the federal government and states? There would be conflict, and you can't have these conflicts just drag on and on.
N. Rodgers: Like this guy, back and forth.
J. Aughenbaugh: That was one of the issues of the Articles of Confederation. Nobody knew
N. Rodgers: When it would end.
J. Aughenbaugh: Yeah. Who was ultimately supreme. You got to pick one, but again, this is the martial court sending a very clear message to the state courts. Hey, we know you guys got power. We know that you existed before we did, but according to the US Constitution, which level government is supreme when there's a conflict between the two levels of government in this country?
N. Rodgers: The federal.
J. Aughenbaugh: Yeah, the federal. Suck it up, buttercup.
N. Rodgers: Exactly.
J. Aughenbaugh: The next one is also about a dispute between a state and the federal government. It is one of the landmark US Supreme Court decisions in the country's history. McCulloch v. Maryland from 1819, the author was Chief Justice John Marshall. The broad topic is the powers of Congress versus the powers of state. The basic conflict in this case was the United States federal government created a second National Bank after the War of 1812, and they did so to help pay off the debts accumulated in fighting that war. The US National Bank established basically, they used a franchise model. They put national banks in each of the states. Many of the states, including the state of Maryland, didn't like the fact that they now had competition from whom?
N. Rodgers: The national level.
J. Aughenbaugh: The national level.
N. Rodgers: Banks had been state banks. The State Bank of Maryland, the State banks Virginia.
J. Aughenbaugh: Or the state Bank of Pennsylvania, they were like, hey, wait a minute, here.
N. Rodgers: Hey, this is not good. You're honing in on our ability to make money off of people's interests.
J. Aughenbaugh: That's right.
N. Rodgers: That's what banks do. Just briefly, if you're not into economics, and this is going to be the briefest of all possible economics. Banks make money by lending your money to other people and charging those people interest, and you get a tiny bit of it, and the bank gets a tiny bit of it and that's how they make money. That's how everybody involved in banking makes money.
J. Aughenbaugh: Yes.
N. Rodgers: That's the interest rate on your savings account.
J. Aughenbaugh: Maryland in an attempt to drive out the National Bank franchise in Maryland, taxed the National Banks.
N. Rodgers: Whoa.
J. Aughenbaugh: Transactions in the state of Maryland.
N. Rodgers: But not their local banks.
J. Aughenbaugh: Yeah, not their local banks.
N. Rodgers: Ooh, that's not good.
J. Aughenbaugh: McCulloch, who was the cashier, at that time, the cashier was the head of a bank refused to pay the tax.
N. Rodgers: Good for him.
J. Aughenbaugh: The Maryland Courts, big Shock, said, Maryland does have the authority, and oh, yeah, by the way, the National Bank is unconstitutional because there's no reference to Congress having the authority to create a national bank in the US Constitution. McCulloch appeals. The Supreme Court takes the case, and in the case, John Marshall says, "the United States Congress can create a national bank per the necessary and proper clause." They need a national bank so that they can go ahead and collect revenue and then turn around and spend it. You should probably have an institution removed from members of Congress or the president who actually do these things.
N. Rodgers: That's a theory anyway.
J. Aughenbaugh: It was necessary and proper so that Congress could do its constitutional powers of taxing and spending, but then Marshall goes ahead and says, Maryland says it could still tax because states can tax institutions within their jurisdiction. This is where he utters the infamous phrase the power to tax is the power to destroy. Unfortunately, the Supremacy Clause makes the United States Congress creation of the National Bank supreme to Maryland's desire to tax institutions within its border. Once again, instructing us which level of government is ultimately the most powerful. The federal government. The Marshall Court gives a lot of good instruction here.
N. Rodgers: A lot of reiteration, and part of that is because the nation is so young.
J. Aughenbaugh: Yes.
N. Rodgers: People are used to local government being the guide, being the rule?
J. Aughenbaugh: Yes.
N. Rodgers: What Marshall's reiterating is the same point that Hamilton and Madison and John Jay were making in the federalist papers, which is, if we don't have an overarching federal government, why are we bothering?
J. Aughenbaugh: Yeah why are we here.
N. Rodgers: When we call ourselves a union, there has to be something that union means.
J. Aughenbaugh: Yes. That's a really good point, Nia. You ready to move on to the next?
N. Rodgers: Yeah, I like that he's reiterating that no, really. This is all about the idea that we are a union and this democracy thing won't work if we don't have one level that's slightly more powerful than the other. In some instances, it really is slight, and then some instances, it's not a slight, but anyway, what's our next case?
J. Aughenbaugh: The next case is Cohens v. Virginia. This is, again, a lot of these cases still resonate even today.
N. Rodgers: What year is this case?
J. Aughenbaugh: 1821.The case arose because Congress authorized the operation of a lottery in the District of Columbia. For our non US listeners, the District of Columbia is federal government property.
N. Rodgers: It belongs to no state. In fact, it is cobbled together from these surrounding states because they took.
J. Aughenbaugh: Parts of Maryland.
N. Rodgers: Parts of in Virginia, little Maryland. They just grabbed bits and put them together to make DC.
J. Aughenbaugh: Congress can pass laws that affect actually what goes on within the District of Columbia. Congress passed a law that allowed a lottery in the District of Columbia. The Cohen brothers, thus the name of the case, the Cohens went to DC, bought a whole bunch of DC lottery tickets, and then they returned to their home state of Virginia to sell the tickets. The problem is Virginia had a law that prohibited the selling of lottery tickets so state authorities arrested, convicted the Cohen brothers and went ahead and said that the Congress could not challenge or dictate what goes on within the Commonwealth of Virginia because the Commonwealth of Virginia is sovereign within its jurisdiction, and the Cohens appealed to the US Supreme Court and the Supreme Court said, Virginia, once again, may we remind you that according to the US Constitution in Marbury v. Madison, we have the authority under the US Constitution to review your laws and your court rulings, and if they violate the US Constitution, we can declare them null and void. Yes. Once again, the Marshall Courts clarifying the jurisdiction of the US Supreme Court. Yes, we can take a look at your laws.
N. Rodgers: See if they violate the Constitution.
J. Aughenbaugh: Yeah, and Virginia's argument is one that we hear even today, Nia. Virginia's argument was, per the tenth Amendment.
N. Rodgers: States rights.
J. Aughenbaugh: States rights. We have the police power to decide that gambling, is a public health problem.
J. Aughenbaugh: We don't want to allow gambling. Listeners, Nia and I did how many? One or two episodes, about state gambling laws. How some states allow a whole bunch of gambling, and other states, even to this day, allow next to none because they think gambling is a problem.
N. Rodgers: Is addictive and people lose their money. Today, people do the same thing. If their state doesn't have a lottery, they will cross state lines. But there's all complications with that. It used to be that if you went across state lines and got a lottery ticket, I know this was when I was a kid. North Carolina did not have a lottery. Virginia did. You couldn't win in North Carolina. You had to give that ticket to somebody in Virginia to get them to get the money for you. It was a whole thing. What happened to the Cohens? Did they stay in prison?
J. Aughenbaugh: No, they were released.
N. Rodgers: Okay.
J. Aughenbaugh: They were released.
N. Rodgers: Although it is a little bit sleight of hand. I mean, they were a little shady.
J. Aughenbaugh: Yeah, I mean, but we see this even today.
N. Rodgers: We see it with cigarettes. Places with a low cigarette tax, people will go there and buy boxes and boxes of cigarettes and sell them in places where the tax is high for undercut. But if you get caught, that's against the law, because it's commerce clause, 'cause everything comes back to the commerce clause. That which does not come back to judicial review comes back to the commerce clause.
J. Aughenbaugh: This next case bothers me. I understand the logic of it, but I mean, not every decision by a court is going to be to our liking Nia and the next one, Johnson and Grahams Lessie versus McIntosh from 1823, was a case about property rights and land use. The majority opinion was by John Marshall. Basically, what the case concerned about was could Native American inhabitants of property transfer the property to their offspring grandchildren when they die?
N. Rodgers: Whomever they wish to.
J. Aughenbaugh: In the language of property rights, can they transfer the title of the land to others? The Marshall Court said, no they could not because Congress had not passed any legislation to allow for that to happen. This is very reflective of the fact that well into the 20th century, Native Americans had next to no political and legal rights in the United States.
N. Rodgers: This is a civil rights issue that did not go well for the Native Americans.
J. Aughenbaugh: Americans.
N. Rodgers: Basically the lands that became reservations, you couldn't inherit a piece of that land from your parents. Everybody who lived on that land was just living there because the government said you could.
J. Aughenbaugh: Good. That's right.
N. Rodgers: You couldn't actually own it.
J. Aughenbaugh: That's right.
N. Rodgers: We know that is the key to wealth building in most families is to hand property from one generation to the next. It also limited greatly Native American ability to build wealth. Boom.
J. Aughenbaugh: Yes. Okay.
N. Rodgers: Not surprising.
J. Aughenbaugh: Cool. The next case, again, is one of the landmark Supreme Court decisions. We've previously discussed this case on the podcast, and it deals with one of Nia's sick favor constitutional clauses. The Commerce Clause.
N. Rodgers: Yeah.
J. Aughenbaugh: Gibbons versus Ogden from 1824, and in unanimous opinion, John Marshall writing for the Court said that the Commerce Clause could be interpreted broadly and therefore, restrict New York's ability to issue exclusive franchises for ferries that traveled from New York to New Jersey. This is the first time where the Supreme Court really explained potentially how broad Congress's interstate commerce authority could be. Because John Marshall, goes ahead and says, he even defines the words of the Commerce Clause. Commerce is commercial intercourse. It's designed to encourage parts and people around the country to do what with one another, interact. Interstate could mean only two states. It didn't have to mean 3, 5 or 10. It could merely be commerce across two states.
N. Rodgers: New York and New Jersey.
J. Aughenbaugh: He said, and the interstate commerce authority of Congress does cover, okay, instrumentalities of commerce, including, boats.
N. Rodgers: The question here is, a guy wants a franchise to run a ferry and he wants to be the only franchise to run a ferry. He doesn't want any competition.
J. Aughenbaugh: New York granted him that exclusive franchise.
N. Rodgers: Is that Gibbons or Ogden?
J. Aughenbaugh: Ogden. Ogden got it from Livingston Fuller. The steamboat. The inventors, basically of the technology. They get it, and then they turn around and sell to Ogden. Gibbons, who ran a competing ferry from New Jersey to New York was just like, wait a minute, here. That's unconstitutional because you're talking about commerce between two states.
N. Rodgers: You can't tuck me out of it.
J. Aughenbaugh: In New York courts, we're like no, our Congress has not spoken on this. John Marshall is this like? Well, actually, they did in a very broad sense a couple decades before. Congress's Commerce Clause authority is broad. If Congress wants to regulate what goes on between New York and New Jersey, it can. If it chooses not to, it doesn't have to. But it can. Yes.
N. Rodgers: The beginning of the doom of the Commerce Clause.
J. Aughenbaugh: We got three more cases we want to touch upon. Then we're just going to have some brief summary remarks. The next one is another property rights. Again, I know for many of our listeners today, you're like, what's up with all these property cases? The pursuit of property, the buying and selling of it was extremely important in early United States.
N. Rodgers: The original document said the pursuit of property, not the pursuit of happiness.
J. Aughenbaugh: Happiness. It's life, liberty and property. No life, liberty and happiness.
N. Rodgers: Yeah, happiness gets changed out later. The original draft was property.
J. Aughenbaugh: Wait a minute. Happiness is in the Declaration of Independence.
N. Rodgers: Right.
J. Aughenbaugh: Happiness is not in the US Constitution?
N. Rodgers: No. But I'm talking about the Declaration of Independence, where it says, in pursuit of life liberty. Life liberty and the pursuit of happiness. Originally, he had written Life Liberty and Property.
J. Aughenbaugh: Yes.
N. Rodgers: He didn't care about happiness. He heard about property because the founders property was an important and it was important to the crown. That was the power of the crown was to give you property.
J. Aughenbaugh: Yes.
N. Rodgers: If you show up for the king and you fight a big war and you're all like, and you win for the king, he almost always gave you land.
N. Rodgers: Yes.
N. Rodgers: Because property was the way that you built wealth, as we mentioned earlier with the Native American tribes, but it's true all everywhere in the world.
J. Aughenbaugh: According to John Locke. We should pay attention to Locke, because a lot of his theories that influenced the framers of the US Constitution. According to John Locke, property was the most important of the three. Life liberty, and property. Property. Why? Because according to Locke, you could not have a fulfilling life and you could not achieve maximum liberty unless you had property that allowed you to go ahead and build wealth, to develop skills, to make a living.
N. Rodgers: To be recognized in your community.
J. Aughenbaugh: Yes. US versus Perchman from 1832, was again, a property case. This may be more of a history lesson than many of our listeners might want to go into. Basically, this was a case that involved a Spanish land grant in Florida. The Spanish crown had given land to, various people who were willing to move to the new world.
N. Rodgers: To settle it.
J. Aughenbaugh: Now, what becomes a issue is that eventually Spain sells the land to the United States, cedes the land to the United States in 1819. Florida goes ahead and claims, all of that land, including land owned by private parties, is now the possession of whom?
N. Rodgers: Is Florida. The United States.
J. Aughenbaugh: That's right. Marshall says, Wait a minute here. Just because Spain ceded what we now called Florida to the United States, Spain did not terminate the property.
N. Rodgers: Contracts of the people. This is like the Virginia case.
J. Aughenbaugh: That's right. Exactly like the Virginia case. Once again, the Marshall Court makes it very clear. Yes, states have sovereignty, but that sovereignty cannot violate, property rights and contracts that existed before the state. Because he said otherwise. The idea of contracts. Would be completely undercut.
N. Rodgers: Right. If some larger force could just say, no that contract no longer exists.
J. Aughenbaugh: Yes.
N. Rodgers: We bought the Yukon territory from Canada, which they would never sell to us, especially now. We've offended them. But if we bought the Yukon from them, by our Supreme Court laws, the people who own land in the Yukon would still be land owners in the Yukon and would have to be if the state wanted that property, it would have to pay them.
J. Aughenbaugh: Just compensation.
N. Rodgers: If they want to sell. It cannot compel them to sell because they were there before the United States bought the Yukon to add on to Alaska.
J. Aughenbaugh: We got two more cases, and then we'll do some summary here, listeners. The next one is a big one Barron versus Baltimore. Now, on one hand, Barron versus Baltimore.
N. Rodgers: What year?
J. Aughenbaugh: 1833. On one hand, Barron versus Baltimore looks at the meaning of one of the clauses of the 5th Amendment, the Takings Clause. Baltimore did a Public Works project to improve the quality of the port of Baltimore. For our non US listeners, the port of Baltimore is one of the busiest ports even today in the United States.
N. Rodgers: Yeah. When the bridge collapsed, it was bad.
J. Aughenbaugh: Bad.
N. Rodgers: It made commerce on the East Coast.
J. Aughenbaugh: Really? It had a huge dent, in the commercial traffic on the East Coast.
N. Rodgers: Historically, Baltimore has always been a port. Because it's in the middle.
J. Aughenbaugh: Yes.
N. Rodgers: You can get things going South and things going North. Pretty easily, relatively speaking. It's middle ish.
J. Aughenbaugh: Unfortunately for Barron, this public works project hurt his dock at the port. He said, Baltimore and the state of Maryland, took his property for public use because they wanted to improve the safety conditions of the Baltimore port. He said, per the takings clause of the 5th Amendment, I am due just compensation.
J. Aughenbaugh: Well, Baltimore and the state of Maryland were like, sorry, the Fifth Amendment does not apply to the behavior of state and local governments, and the Maryland Court said, we agree. The case goes to the Supreme Court, and this is one of the rare times the Supreme Court agreed with a state. The Marshall Court said, The Bill of Rights, basically, the first 10 Amendments, only applied to the federal government, did not apply to the states. Why? Because who wanted the Bill of Rights, Nia, added to the proposed Constitution.
N. Rodgers: Madison? The Federals?
J. Aughenbaugh: No, the anti-federalists.
N. Rodgers: The anti-federalist. Brutus and all the complainers who are like, you forgot to mention this thing and this thing. I wonder if Madison had to go back and rewrite some stuff.
J. Aughenbaugh: One of their chief concerns was what the then-new Constitution do to state authority?
N. Rodgers: Completely undermine it.
J. Aughenbaugh: According to Marshall, if that was the purpose of the first 10 Amendments to, if you will, protect the people and states from the federal government.
N. Rodgers: To limit the federal government because anti-federalists didn't believe that the federal government was limited enough. They thought these guys are going to go wild and take everything.
J. Aughenbaugh: He goes, by that logic, the Fifth Amendment does not apply to the states, and this was the condition until the 1920s and 30s, when the US Supreme Court finally began to adopt what became known as Selective Incorporation. The Bill of Rights is selectively incorporated as applicable to the states via the 14th Amendment's Due Process Clause. But for almost 100 years, it created a dichotomous condition. The Bill of Rights applied to the federal government, but did not apply to the states.
N. Rodgers: Think about that in terms of the First Amendment, and you can see why that is dangerous.
J. Aughenbaugh: Yes, very dangerous.
N. Rodgers: Because if you say, your First Amendment rights are only when you're dealing with the federal government. [OVERLAPPING] The theoretically, states could neglect religion, they can restrict a religion.
J. Aughenbaugh: Restrict freedom of the press, freedom of speech, your ability to freedom to [OVERLAPPING] assemble. Yes
N. Rodgers: It all goes down the drain when you're doing it at the state level, which becomes terrifying. I don't agree with Marshall.
J. Aughenbaugh: It had a huge impact in regards to the criminal justice system in the United States. In one state, you might receive the protections of the Fourth, Fifth and Sixth Amendments. But in other states, not so much.
N. Rodgers: Oh, my God, search and seizure. The prohibition against incriminating yourself. I didn't even think about those.
J. Aughenbaugh: Yes.
N. Rodgers: If you think about the stationing of soldiers, that meant that local governments could station soldiers in your house or not local but state governments, whereas the federal government could not without just compensation. Wow, that's terrible.
J. Aughenbaugh: Yep.
N. Rodgers: Boom.
J. Aughenbaugh: Our last landmark decision is something that we've actually discussed with our good friend in regards to copyrights.
N. Rodgers: Catherine. Our good friend Catherine Miller.
J. Aughenbaugh: Yes. The case is Wheaton versus Peters from 1834. The author was actually Justice John McLean. It concerned.
N. Rodgers: Not the die-hard guy.
J. Aughenbaugh: No.
N. Rodgers: That's a little different, John.
J. Aughenbaugh: That's McLean. This is McLean. Yeah, John, whoa.
N. Rodgers: McWhean, not McLean.
J. Aughenbaugh: Yeah, Nia.
N. Rodgers: Although that would be awesome if Bruce Willis had ever served as a Supreme Court Justice, I'm just saying that's a great character. Die Hard is a great Christmas movie. Anyway.
J. Aughenbaugh: You weighed in on the debate on whether or not Die Hard is a Christmas movie?
N. Rodgers: It's not a debate. It's a Christmas movie. What's wrong with people who don't know it's a Christmas movie? I'm like, hello. Is movie.
J. Aughenbaugh: I tend to agree with you, particularly because the reason why he shows up to LA is to visit his estranged wife and his kids for Christmas.
N. Rodgers: Hi. Hello. It's decorated for Christmas. The whole thing, the set is anyway. We'll discuss that another time.
J. Aughenbaugh: For listeners-
N. Rodgers: Whea V Peters.
J. Aughenbaugh: Yes. Whea versus Peters. Listeners.
N. Rodgers: What year?
J. Aughenbaugh: 1834.
N. Rodgers: Is this the last year of Marshall's.
J. Aughenbaugh: Yes, tenure on the Supreme Court.
N. Rodgers: Did he die while he was chief justice?
J. Aughenbaugh: Yes.
N. Rodgers: Or did he retire and pass? No, okay. He passed in the office?
J. Aughenbaugh: We discussed this in the previous episode, that before this case, Supreme Court justices would orally give the Supreme Court's decision and their opinions, which meant that if we wanted to get the Supreme Court decision and opinions in writing, there had to be reporters.
N. Rodgers: Yeah. Some guy scribbling madly while they're talking.
J. Aughenbaugh: What happened in the finest American tradition is that these reporters figured out that other people would want to go ahead and buy.
N. Rodgers: Newspapers, lawyers, Judges, money for that.
J. Aughenbaugh: But this becomes a problem because Peters didn't want to pay for the Wheaton's reports of Supreme Court decisions. Wheaton went ahead and claimed that Peters was violating their copyright and owed them a whole bunch of money.
N. Rodgers: Did he just print them without?
J. Aughenbaugh: Yeah, he went ahead and printed and used them without paying.
N. Rodgers: Then didn't pay.
J. Aughenbaugh: Then didn't pay a fee.
N. Rodgers: Yeah, I'll get you next week on that knot.
J. Aughenbaugh: Knot, right? The case goes the whole way to the Supreme Court, and the Supreme Court issues what becomes one of the most landmark copyright decisions in our country's history. No reporter has or can have any copyright in the written opinions delivered by the Supreme Court, and the justices cannot confer on any reporter such a right because, according to the Marshall Court, government documents are not what, Nia?
N. Rodgers: Copyrightable.
J. Aughenbaugh: That's right.
N. Rodgers: You can't own the work that you do if you do it as part of your job for the federal government. Or actually, I think most states say the same thing.
J. Aughenbaugh: States have passed similar-
N. Rodgers: In the course of your job, you write a report for I don't know, for the state environmental whatever.
J. Aughenbaugh: The Department of Environmental Quality, which actually exists in Virginia.
N. Rodgers: Right. If you wrote a report for them on, I don't know, water quality in Richmond, she said bitterly. Then that report, because it's part of your work, you cannot copyright. It's public knowledge.
J. Aughenbaugh: Why? Because you did the work for the public.
N. Rodgers: While you're being paid by the public, you don't get to double-dip.
J. Aughenbaugh: But this becomes a landmark.
N. Rodgers: That's why professors get leave in order to write books.
J. Aughenbaugh: Books.
N. Rodgers: Because they're not supposed to be doing that on work time, because they're going to get paid for the book at some point.
J. Aughenbaugh: That's right. That's why we have this huge debate now in regards to whether or not the government can dictate what professors research and publish because they're technically being paid by whom.
N. Rodgers: The government.
J. Aughenbaugh: The government who represents the people. Should not the people and their elected representatives be able to go ahead and decide how you go ahead and spend your non-classroom instruction all time? This is all extremely important stuff, and it has relevance today. That's the thing about the Marshall Court.
N. Rodgers: We're still fighting about this.
J. Aughenbaugh: When the Marshall Court said this. Again, our colleague, Catherine Miller. We did an entire podcast episode about this. About the fact that these are public documents. We created this podcast episode in large part because we want to remind our listeners that when the government and their employees produce these documents. They're not copyrighted. You don't have to pay a fee. They are available to you.
N. Rodgers: Yeah. The 911 Commission report is on the web. If you pay for it, you're paying for somebody to bind it and print it.
J. Aughenbaugh: Yes.
N. Rodgers: But you're not paying for the material because the material is free. The material inside, the actual report is free. It's a big change. Marshall's like, no, you can't copyright the opinions of the court.
J. Aughenbaugh: No.
N. Rodgers: Can you imagine if somebody could do that, how much money they would make? Like, that would be.
J. Aughenbaugh: Yes.
N. Rodgers: What you can do is copyright how you present that material.
J. Aughenbaugh: Yeah, that's right.
N. Rodgers: Which is how Westlaw and Lexis Nexis manage to have copyright is because it's how they've presented the material, and things that they add to it, like head notes and other stuff, which the Supremes don't put on their own. That's done by the database companies.
J. Aughenbaugh: Yep.
N. Rodgers: It sounds to me like Marshall's big contribution. I guess that's the word I want is clarification. He spends a lot of time clarifying what the rules are.
J. Aughenbaugh: Nia, think about the way I labeled our prep notes. John Marshall is the nation's schoolmaster.
N. Rodgers: Right.
J. Aughenbaugh: He taught us, how to think about the Constitution. He taught us, the importance of having a coequal, independent judiciary. He taught us the importance of why one level of government, when there's conflicts, has to be supreme, because otherwise, there would be chaos.
N. Rodgers: Right. Ongoing chaos. Not just like, there's a little bit of chaos, but we're never going to have the answer to this question.
J. Aughenbaugh: He taught us so much about why, for instance, property is important to a young nation, a developing nation.
N. Rodgers: My contracts are important. The idea that you give your word and you keep your word, or the rest is meaningless.
J. Aughenbaugh: That's right.
N. Rodgers: Legal contracts and social contracts today still carry that power of weight. You need take mind. You agree.
J. Aughenbaugh: [OVERLAPPING] You need to agree to that, and if you don't, there should be a punishment.
N. Rodgers: I agree in good faith to give you X if you do the thing.
J. Aughenbaugh: Yes.
N. Rodgers: Otherwise, you could pay for a car, pay it completely off, and then the car company could come repossess it because they don't think you deserve to own it. Whoa, no. We had a contract. I fulfilled the contract. That thing is now mine.
J. Aughenbaugh: I see the Marshall Court having two broad impacts, Nia, you just mentioned one. He clarified a lot of constitutional law for us. The other impact is he set up so many institutional, if you will, norms for the court. Again, that's important if you are trying to establish an institution as legitimate as having meaningful power that the other branches of government need to listen to.
N. Rodgers: They need to respect.
J. Aughenbaugh: Yes.
N. Rodgers: He adds respectability to the court in a way that it hasn't had before.
N. Rodgers: That's right. Nia, you've said this a couple of times in the various podcast episodes we've done about the Supreme Court. The fact is, we now, will say stuff like, well, let's see what the Supreme Court has to say about it. The only reason why that occurs is because the Marshall Court, did what it did. Because before Marshall, nobody in DC or around the country was just like, well, let's see what the Supreme Court has to say about it.
N. Rodgers: Exactly. Let's let them weigh in.
J. Aughenbaugh: No, hey.
N. Rodgers: Those chuckle-heads?
J. Aughenbaugh: Yes.
N. Rodgers: But he turned them from those chuckle-heads into what I think he lays the modern groundwork for the respect level, and Congress is about as popular as, like, Nile virus-carrying mosquitoes. Until relatively recently, the Supreme Court enjoyed a great deal more confidence from the American people. I think some of that you can throw line trace all the way back to the Marshall.
J. Aughenbaugh: [OVERLAPPING] At the Marshall, yes.
N. Rodgers: There is the argument that's been made that it would have eventually happened because it had to happen. Like, it had to be clarified. But you get this in his tenure heavily, like, compressed. Instead of waiting 100 years for it to all work itself out, he's like, nope, we're going to fix it now.
J. Aughenbaugh: Listeners, we hope you enjoyed the two parter on the Marshall Court. A little bit of foreshadowing. In our next episode, we'll be looking at the court led by John Marshall's successor, one Roger Taney, from the fine state of Maryland. That's what's coming up next in our series about Supreme Court eras. Thanks, Nia.
N. Rodgers: Thanks, Aughe.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.