Stories Behind the Names: William Marbury

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N. Rodgers: Hey, Aughie.

J. Aughenbaugh: Morning, Nia. How are you?

N. Rodgers: I'm good. How are you?

J. Aughenbaugh: I'm good.

N. Rodgers: I have a question for you.

J. Aughenbaugh: Yeah, sure.

N. Rodgers: Yes, when you tell me you're good, I usually want to ruin your day. I'm kidding. I know this is going to sound like a crazy question, but was Marbury a real person in Marbury versus Madison? Or is that just like boogie man that is used to scare children?

J. Aughenbaugh: No, he's actually a real person. You're not the first person. I've had a number of students who are just like, was Marbury really real, or did John Marshall on the Supreme Court just make him up?

N. Rodgers: As a figure in order to scare the law.

J. Aughenbaugh: No, William Marbury, listeners, was a real person, and he was a prominent figure in American political and legal history because he was one of the named parties in Marbury versus Madison, which was the case where the Supreme Court boldly proclaimed for itself the power of judicial review.

J. Aughenbaugh: Yes. It was a case of losing the battle to win the war, as it were. So it's one of my favorite cases, and by the way, we've talked about it before, but we never got into Marbury. So we're doing those stories behind the names. We're doing an episode here on Mr. Marbury because I was curious about who this guy is.

J. Aughenbaugh: Because all the other parties in the case are well-known.

N. Rodgers: John Marshall is well known. Madison, of course, is well known.

J. Aughenbaugh: Thomas Jefferson is well known. He even John Adams, who appointed William Marbury, is a well-known colonial, revolutionary, early US government politician. But who's this dude who so desperately wanted a justice of the peace position? That's what we're going to explore in this episode of Stories Behind the Name. To get us going, Nia, William Marbury was born, and I actually had to look this up, in Piscataway, Maryland.

N. Rodgers: You made that up. That's a made-up name.

J. Aughenbaugh: No, no. Actually found it on a map and everything, because it was just like, hey.

N. Rodgers: Because you're that guy. Where is that in Maryland?

J. Aughenbaugh: I've been to Maryland a number of times. It is adjacent to my home state of Pennsylvania, drive through Maryland every time I go home to see my mom. But I was not familiar with Piscataway, Maryland. But that's where he was born.

N. Rodgers: When did this happen? What year?

J. Aughenbaugh: He was born in 1762 to William and Martha.

N. Rodgers: So traditional colonial names, William and Martha. We're not getting any of our cool funky names that we got later on.

J. Aughenbaugh: There's no fenomors or Harlan Fisk, John Foster, Dallas.

N. Rodgers: What did his dad do?

J. Aughenbaugh: His dad was a tobacco farmer.

N. Rodgers: So farmer?

J. Aughenbaugh: Yeah, farmer. And by all accounts, not a successful one.

N. Rodgers: Oh, really? So a bad farmer. Well, farming is hard.

J. Aughenbaugh: Oh, it is.

N. Rodgers: In fairness, farming is hard, and if you don't have the talent for it, not so good. And tobacco is not an easy crop.

J. Aughenbaugh: No, it's not.

N. Rodgers: I'm just a quick side note here, if you know anything about raising tobacco, it's not so hard to get tobacco to grow. That's not the tough part. The tough part is what they call priming, which is when you pull off the leaves and you tie them to sticks, and you hang them in a barn to cure, and if you have never done this work, don't. It is very hard. It's very hard on your hands.

J. Aughenbaugh: And it's very weather-dependent.

N. Rodgers: You've got to get in before it gets the fall rain season; otherwise, it'll get all messed up, because the point of it is to dry it out, not have it be wet.

J. Aughenbaugh: Because if there's any kind of moisture, it will ruin the flavor and texture of the tobacco leaves.

N. Rodgers: Which is what they pay you by.

J. Aughenbaugh: That's right.

N. Rodgers: The quality of leaves.

J. Aughenbaugh: That's right. Because his family struggled financially, when he was 19, he moved to Annapolis, Maryland and took a clerk's job in the State Auditor General's office. For the remainder of that decade, so this is the decade of the 1780s, he was basically a deputy tax collector.

N. Rodgers: He was everybody's favorite person. Tax collector. He's early IRS, is what you can think of him.

J. Aughenbaugh: Early IRS. I remember, folks, this is the time period in American history to where we just fought a revolutionary war in part because of the aggressive tax collection efforts by the British Crown.

N. Rodgers: He would have been unpopular.

J. Aughenbaugh: Very unpopular. But he found some success in this position.

N. Rodgers: Did he try farming like his dad? Did he try other stuff?

J. Aughenbaugh: He tried some farming. There was a half-year period where he was trying to do some merchant trading business, but where he was really successful was in finance.

N. Rodgers: He's a money dude.

J. Aughenbaugh: He's a money dude.

N. Rodgers: He's a Wall Street Bro before there's Wall Street.

J. Aughenbaugh: Wall Street Bros, yes, which almost immediately made him a despised figure because, for farmers, financiers, bankers, are the worst human beings, even worse than tax collecting, because so much of farming is predicated on credit. Because you got to take out money in the hopes that your crops will sell at a high enough price to where you can satisfy the debt that you incurred, to buy the seeds, buy the equipment, pay for the laborers.

N. Rodgers: All of that stuff costs money up front that you have to borrow from the bank. That's why there are farmers' banks all across the country. Local farmers bank because you always had to go to the bank and borrow money in the spring to plant. Then when you sold in the fall, you paid off your loan, and then whatever else you had, you lived on until. I can see where he would be, especially if he was into that, where they look ahead and try to figure out how much things are going to be worth.

J. Aughenbaugh: You're talking about speculation.

N. Rodgers: Thank you. Speculation. That's the word I was looking for. I'm sure there was some of that.

J. Aughenbaugh: Within a decade, Marbury becomes well known in Annapolis but also across Potomac. Apparently, I'm having difficulty saying Potomac this morning. The Georgetown folks, in terms of government securities.

N. Rodgers: If anybody was wondering Georgetown was Wall Street before it was Georgetown was big merchants who bought and sold and had big houses. As I like to think of it, the woo-woo people. That's a technical term; obviously, don't throw it around. He was flying in that crowd. He was hanging out with some of the big people, as it were.

J. Aughenbaugh: He was one of the earliest proponents in the state of Maryland to advocate for the state offering and buying government securities, like treasury bills.

N. Rodgers: This is building up the state's treasury.

J. Aughenbaugh: Yes.

N. Rodgers: Hold on.

J. Aughenbaugh: But it was controversial because, again, he was a federalist. There were two main political parties after the Constitution gets ratified: the Federalist Party and the Democratic Republican Party. The Democratic Republican Party were the party of farmers, small government and very conservative in regard to government finances. This idea that the government would attempt to raise money by issuing government bonds to pay for big projects was an anathema to many Democratic Republicans.

N. Rodgers: Taller government, more conservative.

J. Aughenbaugh: Again, it's not all that surprising because if you're a party that represents a lot of agrarian interests, you are naturally distrustful of borrowing money because many of a farm went under because the farmer could not repay the loans that they took out.

N. Rodgers: Because Wall Street Bros don't work as hard as you do.

J. Aughenbaugh: Well, of course, because they're not out in the field.

N. Rodgers: There's some of that as well.

J. Aughenbaugh: By 1796, Marbury became an agent of the state of Maryland, meaning that he put together financial, if you will, dealings for the state of Maryland. He also organized Maryland's effort to collect back taxes. Again, not very popular. Let's say Maryland Durs died and they did not have a detailed will, or they didn't have any will whatsoever. It was his office that sold estates. Of course, if the estate owed back taxes, Maryland would be the first one paid. Again, a whole bunch of family farmers are just like, hey, wait a minute here, Uncle Joe died, why aren't we getting all of the money from the selling of the estate of Uncle Joe?

N. Rodgers: If you're wondering if that still happens, it does. If you die intestate now, then what's called intestate, which is without a will, then your stuff is administered by the estate, and they will take their chunk. Now they call it fees and taxes and whatever else but they will take money. Anyway, he's good at this and he builds this reputation of being really good at this.

J. Aughenbaugh: Not only does he develop a reputation in the state of Maryland and across the river in the Georgetown, as you described it a few moments ago, woo woo set, his reputation also begins to cross over to other states, like Philadelphia. Because he was viewed as the most successful at, if you will, setting up this kind of financial operation for government, federalist party leaders began to take notice, including John Adams, who was our second president.

N. Rodgers: That would have been in the era of Alexander Hamilton as well. That's the National Bank and the National Treasury.

J. Aughenbaugh: Yeah, that's right. Marbury's views about government financing were definitely aligned with Alexander Hamilton's. This is how you grow the economic base of a young country. You don't do it by being conservative. You do it by generating money for the government, so it can pay for an increased, if you will, array of public goods and services.

N. Rodgers: Listeners may recall that they have heard us discuss that this is how banks work. They take in your money, they loan money so they can make interest on the money, so that they can then spend that money to do other things. That's how you make an economy capitalist economy bigger.

J. Aughenbaugh: Grow and develop. Let's now move to the presidential election of 1800. This is Adams.

N. Rodgers: I was not in.

J. Aughenbaugh: And by the way, our younger listeners, before you even go ahead and make a caddy remark.

N. Rodgers: Neither I did not vote.

J. Aughenbaugh: You or I were alive to vote in that election. But nevertheless, Adams, the incumbent, runs against Thomas Jefferson. Adams loses. And not only does Adams lose the presidency, the Federalist Party, which had been the majority party in Congress, loses control of both Houses of Congress. The election occurs in November of 1800. But back then, the next president did not take office until March. The federalists decide, hey, we have roughly 3.5 months to make sure at least one branch of the federal government remains in control of loyal federalists. They passed the Judiciary Act of 1801, which would create a whole bunch of new federal judge positions, all of whom would be picked by John Adams, and the assumption would be that they would be confirmed by the then still-controlled Senate by the Federalist Party. One of the people who got picked, go ahead.

N. Rodgers: A side note. In your notes, and I think this is important to mention. Adams issued 42 judicial appointments. It's not like he did the opposite,42, that's a huge number at this period in American history. We just don't have that many people in the United States at that time. So 42 is a large number. Basically, what he's doing is stacking the courts.

J. Aughenbaugh: He's packing and stacking, and he was using patronage, folks.

N. Rodgers: If you knew a guy.

J. Aughenbaugh: Well, in the case of Marbury, Marbury actively campaigned for Adams against Jefferson. I want you to remember this because as part of the story, one of the reasons why Thomas Jefferson, when asked by James Madison, should I deliver this commission to Marbury Jefferson was like, no, the dude campaigned against me. Why in the hell would we give him a federal judgeship. But part of the problem was the Senate confirmed Marbury. Adams signed his commission.

J. Aughenbaugh: But the outgoing Secretary of State who had the responsibility of delivering the commission was who Nia? John Marshall. No, John Marshall.

N. Rodgers: John Marshall. Thank you. Madison was the new. Well, yes. Secretary of State.

J. Aughenbaugh: Yeah, he was going to be the next one.

N. Rodgers: Right. Sorry.

J. Aughenbaugh: But John Marshall had other things on his plate, his mind because Adams had nominated him to be the next Chief Justice. So Marshall doesn't deliver Marbury's commission. Jefferson gets inaugurated, Madison turns to him and says, hey, there's about 17 of these commissions that never get delivered. What should I do with them? And Jefferson was just like.

N. Rodgers: Throw them in the river. By them in a shallow grave. I don't care what you do with them. But you're sure as heck not giving them out.

J. Aughenbaugh: Not giving them out because.

N. Rodgers: That'll give over that branch to a group of people who hate me and campaigned against me.

J. Aughenbaugh: That's right.

N. Rodgers: Because if you think Jefferson wasn't petty. He was. He was a sore winner in that sense.

J. Aughenbaugh: You're right.

N. Rodgers: Or one could argue that packing the court was wrong too. There's enough wrong to go around here.

J. Aughenbaugh: Yes, right.

N. Rodgers: Because the founders everybody talks about how great the founders, oh, romanticized founders. I'm like, the founders were a bunch of petty little men sometimes.

J. Aughenbaugh: Yes.

N. Rodgers: Adams was trying to screw Jefferson, because Jefferson beat him in the election.

J. Aughenbaugh: Election. And by the way, guys.

N. Rodgers: And then Jefferson was like, I beat you. I can screw you and not do what you thought you were going to get to do.

J. Aughenbaugh: And to your point, Nia, about we glorify the framers. But in hindsight, looking back, this idea that you would hold an election in one month, but then not inaugurate a president until four months later. Why they thought that there would not be some shenanigans occurring in that four month period, right?

N. Rodgers: Right. I mean, all you did was line that up for failure. Is human nature. Oh, well, if I'm not going to be here, I'm going to set fire to the place on my way out. Like that's bye bye. If you think that that has changed modernly, it has not. Regularly, things are left in the White House in weird places. I think in Clinton's White House, they glued down all the keyboard, all the keys on people's keyboards.

J. Aughenbaugh: Yes.

N. Rodgers: Shit, excuse me, stuff like that. Pardon me for cursing. They shouldn't do, but you know what? We lost and who cares? We're going out and we're doing what we want to do. Well, in this case, Clinton had already served both terms. But still, that kind of thing.

J. Aughenbaugh: Yes.

N. Rodgers: Started at the very beginning. And this is another version of that.

J. Aughenbaugh: There was a practical reason why the framers probably had a roughly four, 4.5 month lag time. Well, I mean, it was because travel was difficult, right?

N. Rodgers: Yeah.

J. Aughenbaugh: You couldn't do.

N. Rodgers: You weren't going to get there in a week.

J. Aughenbaugh: Yeah, you couldn't do an immediate transition like we could today. Fine, fair enough. But the more time you allow the outgoing leaders of the political branches trying time to think about.

N. Rodgers: The more Shenanigans will appear.

J. Aughenbaugh: Yeah. So as many of you all who are listening are well aware, once Madison did not deliver the commission, at that point, William Marbury files a claim in federal court order or asking the Supreme Court to order Madison to deliver his commission.

N. Rodgers: Right, to honor what the Senate had done.

J. Aughenbaugh: Yes. And that the President.

N. Rodgers: It's not like he was asking him for an ambassadorship that gets chosen by the president. He had already been through the process.

J. Aughenbaugh: Yes.

N. Rodgers: And he wanted his commission?

J. Aughenbaugh: Yeah, the Senate had confirmed it. John Adams had signed the commission. So per the language of the 1801 Judiciary Act, Marbury's commission had been signed and sealed. The only thing that it had not been was delivered.

N. Rodgers: You wonder reference.

J. Aughenbaugh: Yes. You knew I was going to bring that up. One, I love the song, but I always looking at the origins of common phrases.

N. Rodgers: Signed, sealed, and delivered.

J. Aughenbaugh: Delivered. But this is where the case gets all complicated because Marbury used a tool that Congress created in another judiciary act, an earlier one, the Judiciary Act of 1789, which had a provision that an individual could go to the United States Supreme Court and submit a writ of mandamus. All a writ of mandamus is, is a request that the court forces the government to do its job. Marbury files the writ and asking the Supreme Court to force Madison to do his job.

N. Rodgers: So I need a writ of mandamus for Richmond to fill in the potholes. I should start filing these things.

J. Aughenbaugh: Yeah, right.

N. Rodgers: Anyway. He's basically saying, you have to do this thing. You do this.

J. Aughenbaugh: Yes, right.

N. Rodgers: It's part of your job. You have to deliver it. Give me my commission.

J. Aughenbaugh: Now the shocker was the fact that the Supreme Court, led by Brand Spank and new Chief Justice John Marshall says, yeah, we're going to take your case. At that point, Jefferson is just like, what's going on here? Because Jefferson had interacted with his, I think, second or third cousin, John Marshall in Virginia politics, and basically knew that John Marshall was smart. And if John Marshall is doing something, politically, he and Jefferson were not on the same page.

N. Rodgers: So Jefferson antenna immediately go off shifting is happening.

J. Aughenbaugh: Yes, right. So Marbury wins. Yes. Yeah, go ahead.

N. Rodgers: Sorry. What I love about this decision is the court says, we cannot force the writ or the commission to be given to you. We cannot force that to happen.

J. Aughenbaugh: Yes.

N. Rodgers: But what they do say is, but what we can do is expound on the constitutionality of the actions involved.

J. Aughenbaugh: Yes.

N. Rodgers: And that is losing the battle to win the war. I can't make Jefferson give you a commission, but I can subject all of Jefferson's future actions to a constitutional review.

J. Aughenbaugh: Yes.

N. Rodgers: And not just Jefferson, but everybody else going forward forever.

J. Aughenbaugh: Yes.

N. Rodgers: Marshall went, is that a little bit of power? I don't want that power. I want this great big power over here.

J. Aughenbaugh: Yes. The way you just described that is spot on Nia, because when you read Marshall's majority opinion for a unanimous Supreme Court, he went ahead and said, Madison, according to the Judiciary Act of 1801, you had to deliver the commission. Why? Because in Article 2 of the Constitution, it says the president is to take care to faithfully execute the law. You did not faithfully execute the law. Bad boy,. But then the court pivots and says, but the law that gave Marbury the right to come to us to force you to deliver the commission was also unconstitutional. So for good measure, we also tell Congress bad boys and girls.

N. Rodgers: Well, at that point, boys.

J. Aughenbaugh: All boys. But nevertheless, the end result is, as you described it Nia, William Marbury never gets his commission. On the other hand, the Supreme Court gets to go ahead and wax on about why the court should be able to interpret the Constitution in laws passed by Congress.

N. Rodgers: We've all accepted.

J. Aughenbaugh: Yes. We've all accepted it.

N. Rodgers: We've all accepted, like even now, with the Supreme Court having the popularity of malaria. I mean, their popularity level it's all time low. We still all assume they have the right to judicial review.

J. Aughenbaugh: Yes.

N. Rodgers: It's brilliant. But poor Marbury, he doesn't end up with his commission. And at the time, when we talked about Marbury before, I think I asked you why he wanted it so badly, and you said, because there was a lot of power in being.

J. Aughenbaugh: Justice of the peace.

N. Rodgers: Justice of the peace. It's not just marrying people in your backyard the way it is now.

J. Aughenbaugh: A justice of the peace at that time was basically the chief administrator for a court, which basically meant Marbury would have been able to hire and fire people at will, so people would have to kiss his ring, suck up to him if they wanted a job working in the courthouse for which he would be justice of the peace. It was an extremely prominent position in the late 1700.

N. Rodgers: I think in your town you would have been the guy.

J. Aughenbaugh: Oh, yes. Yeah.

N. Rodgers: Everybody would have had to deal with you.

J. Aughenbaugh: Yes. So if they wanted anything, and they wanted to work at the court, they would have to get in William Marbury's good graces.

N. Rodgers: Did he give up and go home?

J. Aughenbaugh: Well, the interesting thing is even though he didn't get this judicial position, he continued to be a rather successful Georgetown businessman, banker, and he remained an active member of the Federalist Party until he died in 1835. He actually outlived the Federalist Party. He was married to a woman in Brewer. They married in 1791. They never had any children. He was buried in a well known cemetery in Washington, DC, the Oak Hill Cemetery.

N. Rodgers: The Oak Hill Cemetery is a woo woo cemetery.

J. Aughenbaugh: Oh, it is.

N. Rodgers: There's a lot of fairly famous.

J. Aughenbaugh: Yes.

N. Rodgers: Families and stuff.

J. Aughenbaugh: And his former home in Georgetown, Nia, Again, every time we do one of these episodes, I end up finding out something I never even knew. His former house in Georgetown is in the historical record. It's the Forest Marbury House and is the current home of what country's embassy?

N. Rodgers: I just saw this in your notes. The Ukrainian embassy of the United States is in Marbury's old house.

J. Aughenbaugh: Yes.

N. Rodgers: There's a part of me that shouldn't be surprised because a lot of those Georgetown mansions became embassies. But it's interesting that it's the Ukrainian embassy considering what they're going through right now. Marbury is like, I feel your pain.

J. Aughenbaugh: Yes.

N. Rodgers: Right Aughie?

J. Aughenbaugh: Yes.

N. Rodgers: His ghost hanging around the house going, dude, I so get it.

J. Aughenbaugh: Now, as far as the Supreme Court of the United States is concerned even though he's a well known party and one of the most important Supreme Court cases, one could argue, as you pointed out earlier, probably the most famous. His portrait was never hung at the Supreme Court until Chief Justice Warren Burger placed his portrait in a portrait of James Madison in the small dining room of the Supreme Court.

N. Rodgers: They put them across from each other?

J. Aughenbaugh: I don't know the exact placement, but the dining room of the Supreme Court is designated the John Marshall room.

N. Rodgers: Awesome.

J. Aughenbaugh: I'm like, of all the criticisms ever made of Chief Justice Warren Burger, and by the way, listeners, we will be very soon releasing an episode about Warren Burger.

N. Rodgers: Actually, as we are recording this, it has been released.

J. Aughenbaugh: It has been released.

N. Rodgers: So you will have heard it last week.

J. Aughenbaugh: And there are plenty of criticisms of Warren Burger. I got to admit.

N. Rodgers: This humor isn't one of them.

J. Aughenbaugh: Yeah, a wicked sense of humor.

N. Rodgers: That is harsh, man. That is harsh. I love it. I like the idea of walking in there and having them be across from each other and be like, really? Madison versus Marbury.

J. Aughenbaugh: In the John Marshall room.

N. Rodgers: That's pretty cool, actually.

J. Aughenbaugh: The only thing that would be better is if Burger went in and said, hey, for good measure, let's go ahead and put a portrait of Jefferson up in here too.

N. Rodgers: That's right. On the far wall.

J. Aughenbaugh: Oh, the far wall. Yeah, right?

N. Rodgers: Oh, Marshall and Jefferson. Marshall and Jefferson on two opposite walls and Marbury and Madison on two opposite walls. That's what I would do if I was at Supreme Court.

N. Rodgers: If J. Rob is listening, feel free to take that idea.

J. Aughenbaugh: Yeah, because Nia and I are well noted for our interior design recommendations. But nevertheless.

N. Rodgers: Yeah, I know. You don't want us to decorate your house, trust. Because we make the word eclectic seem tame in comparison.

J. Aughenbaugh: Yeah. I mean, my interior design suggestions basically start and end with how many bookcases can you fit in this room? And then because we have all those bookcases, we now need to fill them up. With books. That's how I read.

N. Rodgers: Big reader. I don't do that because I work in a library and books live in the library, and I just check them out. But I have an unfortunate obsession with owls. So I don't know why I like Ow. I think because they look smart. I don't know that owls are any smarter than any other bird, but they don't look like they are. It's got the whole Archimedes wisdom thing going on.

J. Aughenbaugh: We would have to consult, an ornithologist.

N. Rodgers: Oh, I'm sure that it says something about my childhood all sorts of issues and I don't even want to know. If you're one of those people who knows those things, please don't email me and tell me. Because I don't need to know that I'm even crazier than I think I am. Let's just keep that at a.

J. Aughenbaugh: If you dabble in psychiatry and you want to weigh in on my fascination with collecting books, you can join, one, don't two, you can join the long list of people who have entered into my life who have gone ahead and said, you know what? Your book collection means? I don't care. I mean.

N. Rodgers: Or it needs weeding. Like, no, it doesn't, no. These are my friends. Leave me alone. Yes.

J. Aughenbaugh: But anyways, back to our friend in this episode, William Marbury, who would have been, even without this case, one of the most successful bankers government financiers in the early part of the US history. But again, the people that we explore in this series just fascinate me.

N. Rodgers: Me too. It would have been interesting to see what he would have done with that commission.

J. Aughenbaugh: Yes. Because back then, as well as today, if your goal is to make a whole bunch of money, you don't go to work for the government. So- and by all accounts, he died a very wealthy man. He definitely outpaced his humble origins, yes Thank you, Nia.

N. Rodgers: Thank you, Aughie.