In this Teleforum, Prof. Ely of Vanderbilt Law, Prof. Presser of Northwestern, and our Professional Responsibilities Practice Group Chair Jack Park will join us to discuss Prof. Rotunda’s newest book, John Marshall and the Cases that United the States of America. Professor Ronald Rotunda is well known in the Federalist Society community. He passed away unexpectedly March 14, 2018. He was also an active member of the Federalist Society leadership, serving on the Executive Committee of the Professional Responsibilities Practice Group for over a decade and participating in the National Lawyers Convention, CLE Teleforum calls, and podcasts.
- Prof. James W. Ely Jr., Milton R. Underwood Professor of Law Emeritus; Professor of History Emeritus; Lecturer in Law, Vanderbilt Law School
- Prof. Stephen B. Presser, Raoul Berger Professor of Law Emeritus, Professor of Business Law Emeritus, Kellogg School of Management, Northwestern University Pritzker School of Law
- Moderator: John J. Park, Jr., Chair, Professional Responsibility & Legal Education Practice Group
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Speaker 1: Welcome to the Federalist Society's practice group podcast. The following podcast, hosted by the Federalist Society's Professional Responsibility & Legal Education Practice Group, was record on Friday, May 11th, 2018, during a live teleforum conference call held exclusively for Federalist Society Members.
Dean Reuter: Welcome to the practice group's teleforum conference call as today we discuss the book John Marshall and the Cases that United the States of America. I'm Dean Reuter, vice president, director of practice groups and general counsel here at the Federalist Society. Please note that all expressions of opinion are those of the experts on today's call. Also this call is being recorded for use as a podcast in the future and will likely be transcribed.
The book we're discussion today, John Marshall and the Cases that Uni- United the States of America, uh, was of course written by Professor Ronald Rotunda, a longtime Federalist Society member and leader. Uh, if you haven't heard, sadly he passed away unexpectedly very recently, and he's sorely missed by the organization and by his family and friends. He was involved with the Federalist Society when I arrived over 20 years ago, and he was a stalwart participant in everything Federalist Society for decades. He had an extraordinary career as a Professor, touching the lives of thousands of students, and in addition to that legacy, leaving behind a collection of important articles, books, and appearances across the country and even across the world.
So I'm very happy a- and privileged to welcome our guests today and to be discussion his latest book. Again, it's John Marshall and the Cases that United the States of America. We're gonna hear opening remarks from each of our guests, but at this point I'm gonna turn it over to our moderator, Jack Park, who's known to most of you in the audience, I would expect. He is the chairman of the Federalist Society's Professional Responsibility & Legal Education Practice Group Executive Committee on which Ron Rotunda served for so long. With that, uh, Jack Park, the floor is yours.
John J. Park: Thank you Dean. As Dean said uh, this afternoon we'll discuss the uh, late Ron Rotunda's last book uh, John Marshall and the Cases that United the States of America. Ron's book is an abridgment of Alfred Beveridge's four volume biography of Chief Justice Marshall. V- volumes one and two of which were published in 1916 and volumes three and four in 1919. Ron says of Beveridge's work "His history, even the factual trivia is fascinating. His portrait of Marshall is compelling, and his writing superb."
Ron's book links his own introductory commentary with the sterling prose of Beveridge and thereby trying to make Beveridge's work more accessible to readers today. And one of the significant things that Ron did in the appendix was to collect the works cited by Beveridge in his four volume biography, and that collection shows the breadth of Beveridge's research. We're delighted to have Professor Stephen Presser, soon to be visiting scholar in conservative thought and policy at the University of Colorado in Boulder, and Professor James Ely now emeritus from Vanderbilt Law School to speak with us today. Their biographies are in the announcement, and each is we- clearly well-qualified to discuss the constitution legacy of Chies- Chief Justice Marshall as reflected in the work of Beveridge and Ron Rotunda.
As Dean said Ron died expe- unexpectedly and untimely in March 2017, about a month ago. He was a scholar, the coauthor of treatises on constitutional law and legal ethics and much commentary. He frequently appeared on panels at the National Lawyer's Convention, including a panel last year on the proposed ABA rule 8.4(g) and participated in the legal ethics CLE teleforums that the Federalist Society hosted.
As anyone who has seen him speak, or saw him speak, Ron was lucid, he was erudite, and he was entertaining. And [inaudible 00:04:05] like to point to two instances at which his wit appears in his editorial contributions. At one point he writes, "One might think of the nine justices of the present court as a group of prima donnas, united by a common parking lot." And the second, he points out that Joseph Story left Congress after one term, in part because of a di- his disgust with political chicanery. Ron observes "Yes, some things never change. Two centuries ago, there already was political chicanery in politics."
I'd like to now turn the microphone over to Professor James Ely and welcome him for his remarks.
James W. Ely: Thank you Jack. It's a privilege to be on a program honoring Ron. I did not know Ron well but he and I served together on a program some years ago, maybe more than I care to remember, and I was indeed struck that he was a gentleman and a consummate scholar. It was certainly a privilege to have known him, however briefly, and I've always greatly admired his work which I have often had occasion to cite.
Let me turn now, if I may, to a few thoughts about his abridgment of Beveridge's famous Life of John Marshall. One of the signal achievements that Ron has um, achieved here uh, is to make this uh, four volume set accessible to a modern audience. Uh, it's not easily available and quite frankly, for modern audiences, four volumes might be seen as a bit excessive. He'd done an excellent job of carving out, I think, uh, some of the meat from these four volumes, and al- but also preserving some of Beveridge's uh, uh, very colorful and very powerful language.
Uh, that being said, I would like to offer four comments, or three comments, anyway, that pertain to the volume itself. Uh, first, I think that uh, Beveridge falls into a problem that has plagued other scholars as well in their desire to uh, recognize Marshall's signal achievements, and no one's denying that there were signal achievements, in strengthening the Supreme Court, they tend, I think, to downplay and overlook the pre-Marshall court. Uh, in fact, uh, Justices Chase, Wilson, Jay, Patterson, had all written significant opinions, either on the Supreme Court bench, or during their time on circuit duties. And our other panelist, Steve Presser, I know has written very perceptively about the pre-Marshall court, uh, but I do think that that is a- a- an area of study that warrants more attention than it often gets. The Supreme Court's history did not in fact just begin in 1801 with John Marshall.
My second thought pertains to the pervasive theme running throughout the Beveridge volume. That is to say, his association of John Marshall with nationalism. He uses that phrase over and over, uh, without much definition, and associates Marshall repeatedly with nationalism. Now that is true, I think, up to a point. But it also needs to be qualified, in- to my mind, in some respects. Marshall never, ever decided that every single case had to be resolved in favor of national power over residue of authority in the states. Uh, so I think that we have to be qualified. Uh, Marshall was concerned, to be sure, with promoting commerce and helping to identify a national market, and he was concerned, repeatedly, with state interference with the national market or state interference with the organs of the national government, to wit, the National Bank.
Uh, but I don't think it is accurate to conclude that he always decided everything in favor of national power. For example, the famous steamboat monopoly case. We had the state of New York clearly interfering with movement of passengers and goods across state lines, from New Jersey to New York. Uh, I- n- do not read Marshall as ever saying that the power of Congress was extensive to cover every and all human activity, that's more or less what it's come to be now. Uh, uh, rather I understand him to be saying that states cannot interfere with the creation of a national market, uh, and that seems to me is very important. But it does suggest some qualification.
Also note that uh, Marshall decided, correctly I think, that the original Bill of Rights was understood as applying only to the national government. It did not impose limitations on the states. Uh, so states were free, before the adoption of the 14th Amendment, to do a number of things that might- might've been prohibited to the national government. Here I think very clearly is the suggestion that Marshall, although a nationalist, was not a consolidationist who saw no role for state autonomy. Uh, let me turn then, for my third point, to the Beveridge treatment of the contract laws, a subject which is uh, of interest to me. And uh, particularly his long chapter on the Dartmouth College case.
Now, he does a wonderful job, Beveridge does a wonderful job of bringing out the colorful background of this case and the emotional arguments in Daniel Webster's famous oration on behalf of the college, et cetera. However, uh, the Dartmouth College case, I think, may not be quite as significant as Beveridge paints it. For one thing, as Beveridge notes, uh, states almost immediately began to adopt reservation clauses reserving the right to revoke or modify corporate charters. This of course had the effect of substantially diluting the reach of the Dartmouth College opinion. Uh, now yes, the Dartmouth College case did give some support to stability of corporate charters against hostile state action. But no, it did not prevent states from taking any action with respect to corporations.
Indeed, curiously enough, at the end of the chapter in which he exalts the Dartmouth College case, his own misgivings begin to come through. Bear in mind that Beveridge was actively involved in the progressive movement of the early years of the 20th century. And the progressives [inaudible 00:10:57] great deal of aim at the Dartmouth College case. It began to be v- very sharply criticized in some quarters. And so uh, these misgivings manifest themselves. And Beveridge at the end of the chapter says "Well, it probably wouldn't be decided the same way today." So ultimately what he's saying is, yes it was great in Marshall's day, but not so good by 1916. And it's a little bit of a, a little bit of a twist there I think on the exaltation of the Dartmouth College case.
Uh, on the other hand I do wanna say that uh, there was a tendency on the Marshall court, certainly, to wanna protect contractual stability. That was important to Marshall, and I think that comes through in a number of cases, not just Dartmouth College, but a number of cases. Well, with that, uh, I'm gonna turn it over to Steve.
Stephen Presser: Well thank you very much Jim. And uh, lemme say, as you did, uh, what a treat it is, uh, to be here. And it's a particular treat uh, for me uh, to talk about uh, Ron, uh, who I started with, I think 46 years ago as an associate at Wilmer Cutler and Pickering in Washington. And he became a real titan uh, in constitution law. And as if that weren't uh, an honor enough, to be here with Jim Ely who's been one of my heroes, uh, again for about four decades, uh, is extraordinary. Um, and I guess I should say I don't disagree with anything at all, uh, that Jim has said.
Uh, I will just make a few remarks on some other aspects uh, of this book and of uh, John Marshall generally. Um, I think uh, Beveridge as a progressive uh, and as somebody who I believe really thought the federal government could do some extraordinary things, uh, for the country, painted Marshall in a way that uh, we've come to accept uh, as a great champion of um, at least in Beveridge's book, uh, creative jurisprudence. And I think my own feeling has always been that uh, Beveridge is the start of using John Marshall uh, to justify a very creative role, for the federal judiciary in particular, uh, and as a sort of prototype of Earl Warren.
But the genius, uh, of Beveridge as a historian, and the genius of Ron Rotunda, uh, as an editor, uh, is to put Marshall I think a little bit more firmly in his own era and time and suggest maybe some problems with that uh, view of Marshall, uh, as a great uh, expounder of judicial power. One of the wonderful, wonderful things about the book that um, I think Jim kinda didn't mention that maybe I can say is uh, what shines through among other things all through this book, is Jefferson uh, and his role as an antagonist uh, of Marshall. Indeed, uh, I think Marshall loathed uh, his cousin Thomas quite a bit. And the book is full of instances in which the two of them clashed, although I think they had a fairly profound respect for each other uh, in some ways.
Um, another uh, aspect of the book that meant uh, a lot to me uh, as um, Jim alluded a little bit to is the long treatment of the Chase impeachment and the uh, situation uh, of Marshall in a period uh, when the court was very much a political football. Uh, the Chase impeachment uh, came after uh, I guess it was um, the Pickering uh, impeachment, and John Marshall I think thought that he was next. The Jeffersonians were out to gut the federal judiciary, since it was the last repository of federalists in the government. And uh, miraculously uh, they thought better of it, at least the senators did, and uh, didn't uh, convict Chase, and Marshall was safe.
But from that time on, I think Marshall was very, very careful, uh, to avoid plunging the court, uh, excessively in political controversy. Um, and uh, one thing that ought to be emphasized about this book which I think probably belongs uh, on the shelf of uh, anybody who cares about the early republic or constitutional law or legal history generally, uh, is it's got an incredible you are there feel. Uh, the, the extraordinary talent that Beveridge had uh, for melding politics and law and history uh, I think Ron uh, has preserved and enhanced. And uh, it reads like an adventure story uh, in many ways. Uh, it's also big with big print which is great, uh, especially at our age, uh, I think.
Um, I could go on, but I think that that covers uh, the basic points that I wanted to make. Uh, it's an extraordinary book about an extraordinary time, by two now extraordinary men, Beveridge and Rotunda. And I'll turn it back now to Jack Park.
John J. Park: Well thank you both. Um, before we open the floor to questions, I just wanna note that, and maybe ask one. Um, Beveridge says that Marbury v. Madison is a judicial coup d'etat. Um, my old boss, uh, now Judge Bill Pryor wrote an article pointing out that the notion of judicial review had a, had a substantial history that uh, is not really reflected in the Marbury decision. And Ron writes "When we understand Marbury and its limits, we also appreciate how Marshall's assertion of judicial review was much more modest than the power that the modern court exerts." Uh, do you think uh, is Beveridge right or do you think Ron's right, are both right?
Stephen Presser: Well I, I think they're both, and you know, this is Stephen Presser, I think they're both right uh, in a way. One of the extraordinary things about Marbury v. Madison is that uh, Marshall um, asserted the power of judicial review and then used it in order to prevent uh, acting uh, in a way that Jefferson uh, would've ignored uh, as president. I, I think it's undeniable that judicial review precedes Marshall, and as uh, uh, Jim mentioned a little bit earlier, uh, in his sort of suggestion that there were great men before Agamemnon, um, the, the power of judicial review was asserted several times uh, by early Supreme Court justices sitting on circuits. Uh, it could not have been clearer in Federalist 78, which of course was contemporary with the Constitution, and there were even instances running uh, all the way back uh, to the time of Sir Edward Coke uh, in which at least there were some suggestions uh, that courts had a, a, a power to uh, throw out uh, at least some uh, acts of legislatures.
And I think both, both Ron and Beveridge overstate uh, Marshall's achievement in that regard.
James W. Ely: Uh, Jim Ely. Let me just say I would concur with what Steve says. There is ample evidence that people were thinking in terms of judicial review before Marshall. While his opinion is very creative and he deals with the political connotations vis a vis Jefferson very skillfully, he didn't make it up.
John J. Park: Yeah, this is Jack. Uh, Beveridge in his writing points out a couple, a couple times how th- the result of the decision was not to give the commission to uh, Marbury. So he effectively avoided provoking Jefferson too much. Um, [crosstalk 00:19:30]. Oh, go ahead.
Stephen Presser: Oh I- I'm sorry, just wanted to, to make one quick comment. I'd be interested in what uh, Jim thinks about this. Um, a- as Jim knows very well there was a big controversy, uh, in the pre-Marshall court of the applicability uh, of the English common law, uh, to the federal courts, particularly in criminal areas. But uh, I've uh, basically thought uh, for a long time, when I thought about Marbury v. Madison, that Marshall didn't have to decide it the way he did. That one could've uh, on common law grounds, have just decided that the power of mandamus uh, was possessed by the federal court with or without a statute. And I think declaring uh, that portion of the statute unconstitutional was really quite a stretch, a stretch uh, indulged in in order to avoid, I think, uh the politics of the issue at that point.
James W. Ely: Certainly the whole notion of com ... Jim Ely again. The whole notion of common law crimes had been hugely controversial uh, i- in, in the early, very early years of the republic. Uh, and it might well be that Marshall could have in fact uh, resolved the case on some different ground.
John J. Park: Very well. Uh Dean, would you like to open the floor to audience questions?
Dean Reuter: Let's do that. In a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question for e- either, any of our guests, push the star button and then the pound button on your telephone. So once again, if you have a question, please push the star button and then the pound button on your telephone. We've got plenty of time left for lots of questions, our lines are wide open. Uh, Jack, we- we'll just have to wait and see if folks ring in. Uh, nobody yet. Uh, again, push the star button, then the pound button if you have a question for one of our experts.
Um, but with that Jack Park, I- I- I- I- I uh, pitch it back to you to carry on the conversation.
John J. Park: Yeah, I guess one, you know one thing we've talked about is um, how Beveridge makes some really sweeping claims and, and um, uh, Professor Ely talked about how the n- the na- the nationalizing effect, and you know, I think when Beveridge writes in 1916, so- a lot of this, uh, the changes that came with the New Deal were still in the future. So he still has a resonance of um, Marshall's jurisprudence, although as Professor Ely is well aware his co- the contract clause that uh, und- jurisprudence had gone sub- undergone some substantial changes. And one of the things I'd note, Beveridge was in a position, it looks like, to interview one of Marshall's granddaughters, which is really a remarkable thing.
Um, do you think that um, some of his, do you think that historical, the just where, um, Beveridge falls, does that reflect the resonance with um, with uh, Marshall in your judgment? That, that we, we no longer can have today just because of the, the, the effect of time.
Stephen Presser: Uh, Stephen Presser, I'd, I mean, th- there, Jim probably has more insight in this uh, than I do, but one of the extraordinary things about this book, I alluded to it a little bit earlier, is that Beveridge, as somebody who is a Senator, has a real feel for politics and a real uh, feel uh, for how the Senate operates and how political parties operate. And uh, much of what he says in this book when he talks about the motivations of the particular actors, uh, I think does have incredible resonance uh, today. I'm not sure his particular treatment of constitutional issues, uh, has as much, but the deep understanding of the interplay between uh, law and politics and culture, uh, I think makes the book uh, extraordinarily, extraordinarily timely, and the split uh, between the Jeffersonians and the federalists, which in a way mirrors our own split, uh, between today's Republicans and Democrats, I think offers some uh, at least intriguing uh, speculation, uh, if not some historical lessons.
James W. Ely: Well it's also interesting to reflect on the fact that the c- much of the work of the Marshall court and indeed had been very controversial. There was attempts, as Steve has already mentioned to impeach Chase and perhaps all the entire bench. Uh, the court caught up in political issues not all of its own making, uh, and I think you see some of that uh, today, certainly. Uh, the struggle to get anybody confirmed in, in the Senate uh, today, uh, i- is, it just suggests that there's this enormous interplay, however much we may care to try to deny it or close our eyes, enormous interplay between law and politics, and I think Beveridge is certainly right on as far as that's concerned.
John J. Park: How about his feel for, for the context of Marshall's time? I, I, I think, I tend to think that folks back then had a better feel for how the framers thought than perhaps we do today, perhaps because of the gulf of the uh, jurisprudence of the 1930s and its ef- continuing effects.
Stephen Presser: I, I think there's a lot of truth in that. This is uh, Presser. But uh, what, what astounded, astonishes me whenever I go back and read somebody like Beveridge is how little politics had changed, uh, and how little uh, human nature has changed, um, over the course of the country. Um, and a- another ... But one thing that has changed is the idea of Great Men in history, and particularly Great White Men these days is not something that dominates uh, the analysis uh, in the universities. Uh, but a book like this reminds us that uh, people like Marshall and uh, Beveridge and uh, Washington, uh, and Chase really were ... And, and Hamilton and, and Madison and Jefferson really were titans.
Um, and it- it's a delight to be able to go back and look at that again.
James W. Ely: Yeah certainly uh, when I first went to Princeton way back in the 1950s, uh, we would have an exercise on the so-called Great Man Theory of history. Well I suspect that is long gone. And uh, so this is definitely a, I don't mean to say a throwback, but it definitely reflects that, that school of thought, that there are significant figures who do make, in their own time, a tremendous impact.
Possible in the case of Beveridge he may have exaggerated Marshall a tiny bit here and there, but nonetheless he sees Marshall as a person who had a real impact. Uh, and so that's different than the kind of books today where everything is uh, forces and causes and you know, trends and this type of thing. And, and people as actors are not given a, a, are given a secondary role, let's say.
Stephen Presser: Absolutely. [crosstalk 00:27:20]
John J. Park: Go ahead Steve.
Stephen Presser: Go ahead. [crosstalk 00:27:23] I'm sorry.
John J. Park: For all of that historical, you know, change, if you go back and look at the f- the fr- founding, Washington is the indispensable man.
Stephen Presser: Absolutely.
John J. Park: That's the observation that I was gonna make. Go ahead Steve.
Stephen Presser: And I was just gonna say that, something along those lines. Towards the end of this book, uh, there's a controversy over the uh, Cherokees and uh, the, the famous remark about uh, that Andrew Jackson made that "John Marshall has now rendered his decision in favor of the Cherokees. Let him go ahead and enforce it." Meaning of course Jackson was gonna do nothing uh, to enforce it. And it reminds us, uh, again, of the political struggle and uh, I, I guess as you were pointing out Jack, not only is Washington the indispensable man, uh, but Marshall himself wrote a, I think a four volume biography of Washington, and uh, had an incredible uh, admiration for him.
Th- there's a new book out as you may be aware, of speeches by uh, Antonin Scalia. And oddly enough, what emerges from that book is that his favorite founder is in fact George Washington. Uh, not usually regarded as a titan of constitutional law, but apparently a, a figure of extraordinary gravity, uh, and extraordinary influence as you suggest.
Dean Reuter: Well Jack, this is Dean Reuter. We do have one question um, in our audience. Should we turn to the audience now?
John J. Park: Yeah, let's turn to the audience, Dean.
Dean Reuter: And a reminder, if you're in the audience, if you have a question push the star button and then the pound button on your telephone. For now let's take our first question.
Speaker 6: Hi gentlemen. Um, so my question uh, uh, kinda follows up the discussion you've just been having, but uh, I obviously haven't read the book yet, but I- my, my question is, are there um, lessons uh, in the book uh, that might uh, be specifically applied uh, to today's circumstances um, that would be kind of relevant to the, the sorts of principles and ideals that the Federalist Society promotes? As, as you allude, are, are in a, a tug of war today as, as we've been perhaps throughout the history of the republic on those kinds of issues. But are there, are there lessons in the book that uh, takeaways on that?
Dean Reuter: Who wants to take a shot at that?
Stephen Presser: Uh well I, I, I'll, this is Presser, I'll take a quick shot at it. Um, i- insofar as uh, the book is a sustained attack on uh, Thomas Jefferson, and his ideas, really towards the end of his life, came close to pure democracy. Um, there- there's a powerful lesson for Federalist Society members, uh, on maintaining the rule of law, uh, and remembering uh, that sometimes popular passions can get out of hand. Um, th- the Federalist Society also uh, very much I think, uh, stands for a notion that Jim alluded to a little bit earlier, and that's uh, that uh, ours is a dual sovereignty and that nationalism uh, isn't all there is. Th- the book isn't exactly uh, a brief for draining the swamp. Uh, but it, it reminds you of that a little bit.
So rule of law and federalism uh, are at least um, powerful themes uh, that are in the book.
James W. Ely: Certainly, Jim Ely, certainly agree. The rule of law I think is a very powerful theme in the book. And, and coupled with that I think is the important role of the judiciary. Not that the judiciary was to be always dominant, which at times it may have seemed more recently, but the judiciary was to play an important and independent role uh, and one that would be sorely challenged, uh, uh, by Andrew Jackson, uh, in a number of areas and fronts, uh, during Marshall's own time.
And you can understand how despairing Marshall and Story would've been over some of Andrew Jackson's actions. I mean, the displacement of the Cherokees is just one example among others. Uh, the bank war, uh, in which he uh, basically disregards the Supreme Court decisions upholding the national bank. Uh, that would've been very frustrating I think, to, to Marshall and Story, I think it was very frustrating.
Uh, so I guess I come away thinking that the rule of law and respect for an independent judiciary are important themes.
Stephen Presser: This is Stephen Presser again, I, I just wanted to make one comment, uh, based on what Jim said. Uh, I was su- surprised going back to this book, uh, how powerful a role and how big a part uh, of the, the Beveridge analysis Story plays. We forget how important uh, he really was. And that was one of the special treats, I think, to see uh, the fabulous friendship that developed uh, between uh, Marshall and Story and uh, uh, way in which uh, Story disappointed the Jeffersonians by going over to the Federalists. Um, but that's a part of the book that we ought to stress.
John J. Park: Is that it? In uh, I think it's in Marbury v. Madison um, where uh, Marshall writes about the role of the judiciary to say what the law is, not what it ought to be, or words to that effect. Um, and that's something that the Federalist Society has picked up, perhaps, again, in reaction to some of the events that postdate Beveridge, uh, in our legal history.
S ... Echoing what uh, Professor Presser just said, there's another chapter th- that's a remarkable view of Marshall just personally and of the times, uh, where everybody traveled on horseback, the streets were uh, not paved, and uh, they were dusty in the ... when it was dry, and swampy when it was wet. And it's just a, a remarkable uh, view of the time as well.
James W. Ely: Well and of course that directly played into the difficulties, almost the hazards, of the circuit duties that were required of the Court. Uh, it's easy to forget that members of the Supreme Court were required to conduct circuit courts within their appointed regions, and that must have been a very onerous assignment. Uh, and I know many of the justices complained about it, uh, had to travel by horseback in the rain or the snow to these remote courthouses and conduct trials, uh, would've been a very onerous dimension of their, of that, that, that job.
Stephen Presser: Quite true. And, and I think uh, Jim'll remember that, that it's alleged that circuit writing actually killed North Carolina's Supreme Court justice, James [inaudible 00:35:02]
James W. Ely: James [inaudible 00:35:02] yes, exactly. (laughs)
John J. Park: Well, and Beveridge, I think, points to a couple instances of overturned um, carts or falls from horses. So it, it was very hazardous. Dean, do we have any other questions?
Dean Reuter: Uh, not, not, not at the moment. But if you're in the audience, if you have a question, push the star button and then the pound button on your telephone, and maybe Jack, I can get a question in here while we're waiting to see who else might join. We do have one other caller with a question. But I was gonna ask, maybe more of, of Professor Ely than Professor Presser since he's already expressed surprise at, at one part that is the, how much Story uh, Story's role in the story, uh, he found this a surprise. I'm wondering if there were any other surprises, uh, i- in the book for, for either of our guests?
James W. Ely: Well, I think consistent with his themes, which was basically his national theme, I think he was pretty consistent throughout. Uh, I was surprised, at least in the material, I haven't seen the four volume set, but at least in the material here, I was surprised there wasn't more treatment of the Baltimore and Barron case, in which Marshall decided that the uh, Bill of Rights did not apply to the national government. That would of course would've been somewhat inconsistent with his main argument, uh, and maybe he treats that in the four volume set. But it certainly didn't stand out in this abridgment.
Uh, and that to me was, was a bit of a surprise.
Dean Reuter: Interesting. Professor Pressor, you mentioned the, the role of Story, his outsize role as being a bit of a surprise. Any- anything else sort of catch you off guard as you, as you read through?
Stephen Presser: Well I, I, I knew about it but uh, the constant reiteration uh, of the duplicity of the Jeffersonians, uh, I thought was uh, maybe not surprising but certainly delightful.
Dean Reuter: Right.
Stephen Presser: Um, th- there's, th- there is in fact, uh, in Beveridge, uh, an ability to, to make these uh, late uh, 18th and early 19th century figures seem almost Shakespearean. Um, the, the description that he gives of the uh, Chase impeachment trial and John Randolph, who uh, lead the argument for the prosecution, and many, many other characters uh, and Senators, is very much larger than life, and uh, just delightful in, in a law book.
Um, one quote of uh, Ron Rotunda's that uh, we should mention, that I quote in my latest book, uh, is Ron said "One extraordinary thing about most writing by law professors is that it's unreadable." And uh, that's certainly not the case with this book, which is very, very readable, and I, I attribute-
James W. Ely: Oh the book is ... No, you-
Stephen Presser: I'm sorry, go ahead.
James W. Ely: No I said that, the book is certainly very, I didn't mean to cut you off, I'm so sorry. Uh, the book is certainly very readable, and colorful anecdotes throughout. But you know another thing I think comes out of this book uh, is the amount of frankly just plain nasty politics that characterized the period. I heart today almost every day, "Oh, this is the most dysfunctional and uh, uh, upset uh, bitter time in American political history." I just don't think that's nonsense. I think people do not have enough historical grasp to realize that it was pretty bad at some other periods of time. And characters like Jefferson and Jackson aroused enormous antagonism, a great deal of bitterness, uh, and while they all had achievements, we shouldn't overlook the fact that there was a lot of controversy and a lot of bitterness over things that were done.
John J. Park: Even the [inaudible 00:38:51] duel.
Stephen Presser: Well exactly. Uh, and I mean, it's nice that this appears, uh, this apotheosis of Marshall in a readable uh, indeed exciting manner appears at the same time that the musical Hamilton does. Uh, I think there's, there's some of the same ground being covered.
Dean Reuter: Interesting. We do have one question pending. Uh, if you'd like to join the queue, if you're in the audience, push the star button then the pound button on your telephone. Let's take another question from another caller now.
David Forte: Hi guys, can you hear me?
Dean Reuter: We can hear you just fine, go right ahead.
David Forte: Hi, it's David Forte how are you good fellas? Um ...
Stephen Presser: Hello David.
David Forte: Hi. Um, I, I think everyone you've said about the book, which I'm uh, working on now myself is, is wonderful and insightful. And everything you've related a- about the larger contribution and perce- perspective of Beveridge is right on point. Um, as, as we know and you pointed out, Beveridge of course was writing at, at uh, the w- waxing and, and instantiation of the nationalist progressive image that was ac- infecting or, or influencing not only the Democratic Party but the Republican Party, uh, uh, at the time. And so he was looking at things through that image.
Um, but, in- in- in that sense we tend to think he might've distorted Marshall. But in one sense he gets Marshall right, I am suggesting, in his emphasis on nationalism, um, and gets Jefferson right, uh, uh, in his uh, criticism of Jefferson. And that is the constitutional debate as to what the nature of the constitution was. The big image of Marshall wasn't nationalism, I suggest, qua nationalism, but that the Constitution was created independently by the people from the jurisdiction of the states, or out of the jurisdiction of the states, taken away fom the jurisdiction of the states. And this debate, which uh, came to the floor as early as 1798 in the Virginia and 1799 in the Virginia and Kentucky resolutions, uh, which of course Marshall was involved in in his responses. Um, uh, uh, pitted the two images of the formation of the Constitution as a compact of states or as a compact among the people of the several states creating a different entity.
And that, I think, was Marshall's great image. His image was for the Constitution qua Constitution, not for the national government qua national government. To the extent the national government was a child of the Constitution, he would, he would celebrate that. But I think that theme, that "nationalist" theme, is central to Marshall. And that great, that great contribution of what the nature of our Constitution is uh, I think is, was correct. And I think his fears of uh, reverting to the idea of a compact of states was borne fruit after his death, uh, ultimately leading to the Civil War.
So in, in one sense I think Beveridge does get it right.
James W. Ely: Well I certainly think that Marshall's nat ... This is professor Ely. Marshall's nationalism uh, as you were describing it, is, is, is, is very apartment, very astute analysis. It was never that th- the federal government should run everything. That was a complete (laughs) a complete corruption that introduced much later. Uh, but it was that we were a, a national union, not a compact of states. Uh, and I think some extent, what he fears is uh, and many of these opinions b- basically are trimming state authority, state authority to interfere with what he regard as the national union.
Uh, so I think that you were exactly right, and this is carried forward into Daniel Webster's famous speeches in Congress about the nature of the union. Uh, I think a lot of that could flow right out of Marshall.
Stephen Presser: Uh, this is Presser again. Uh, I agree with all of that. Um, I ... Although as time goes on, uh, I wonder if uh, the compact theory uh, of the states has received, over the years, too short shrift. Um, it's true that Beveridge uh, paints Marshall as a sort of uh, precursor to Lincoln. Uh, and Story certainly uh, didn't have any uh, regard for the compact theory either.
Uh, but I think it- that there's more to be said, uh, for it, and indeed um, more to be said for the case of states having the right to secede, perhaps than we, than we talk about much today. Uh, there is a powerful theme in the book that does emerge about the uh, northern states possibly uh, seceding um, in, in reaction to Jefferson and, and Madison and uh, and the tariff. But uh, I'm sorry, and other issues. But uh, I wonder if it's as clear cut as we tend to think that uh, the Constitution represents uh, really a, a very much substitution for earlier ideas about uh, the states being paramount.
After all, as the book I think does point out, it's only after the Civil War that we talk about the United States uh, in the singular rather than the plural.
James W. Ely: Yes, and of course the war would have changed attitudes almost irrevocably in that subject I think.
Stephen Presser: Right.
Dean Reuter: Well Jack, this is Dean again. Uh, the book of course, just a reminder for our audience, is John Marshall and the Cases that United the States of America. Came out in January, 2018, is available at bookstores and at amazon.com and other online sellers. If you have a question for our experts, uh, our lines are wide open right now. You need to push the star button and then the pound button on your telephone. Uh, but with none pending Jack, I'll turn it back to you.
John J. Park: W- well I'd like to offer each of, each of you, let's start with Professor Ely a chance to wrap up then. If you have any concluding remarks.
James W. Ely: Well, this has been a very uh, very enjoyable exchange. And nice to have some ideas to kick some ideas around with my longtime friend Steve Presser. Um, and I would say that um, this is a volume that uh, I could highly recommend to anybody in the audience who would like to have a, almost read it like a novel, uh, you've got to discount, to some extent, [inaudible 00:45:56] the author's coming from on some issues, but it's a very good introduction, not only to the work of the work of the Marshall court, but also to John Marshall personally, there's a lot of personal history in here, and of course about his fraught relations with his second cousin Thomas Jefferson. So that I think would pretty much wrap it up for me.
Stephen Presser: Uh th- this is Presser. I uh, I just wanna concur completely with everything oh that Jim Ely just said. And uh, I guess one thing that uh, we've alluded to but uh, we might mention again is the book is very useful uh, for telling you about the shortcomings of partisan politics. Uh, and the dangers to our republic uh, when we split too far uh, from each other, uh, and forget that we're not really about uh, divergent ideologies, uh, we're about preserving, uh, the Constitution. It's lasted for more than uh, two centuries, and uh, it's important I think that we remember uh, that it's our duty to make it last for another few.
John J. Park: This is Jack, I've been honored to join you both. And I, I recommend the book, I just finished it and it's just mu- really muscular prose and uh, very colorful and a very rewarding read. And as both of our experts have pointed out, the weaving of the politics and the position of the court by Beveridge is, is remarkably well done.
So Dean I think unless there's anything else, I think we're concluded.
Dean Reuter: Very good. Um, thank you, uh, gentlemen, for, for this uh, I thought it was a, a nice tip of the hat to uh, our friend, uh, uh, Professor Ronald Rotunda. Um, lemme say a final time the name of the volume we've been discussing, John Marshall and the Cases that United the States of America. Uh, so thank you all for participating, I wanna thank the audience as well for dialing in and for their questions, and a reminder to the audience to check their emails and monitor our website for the next schedule teleforum conference call. But until that next call, we are adjourned. Thank you very much everyone.