William & Mary’s Dr. Charles Hobson on Chief Justice John Marshall, SCOTUS, & Judicial Review

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This week on “The Learning Curve,” co-hosts Cara Candal and Gerard Robinson talk with Dr. Charles Hobson, a retired resident scholar at the William & Mary Law School, 26-year editor of The Papers of John Marshall, and author of The Great Chief Justice: John Marshall and the Rule of Law. Dr. Hobson shares what students should know about the longest-serving, most important chief justice in the history of the Supreme Court, and his influence on our understanding of the U.S. Constitution. He reviews some of the most important Court decisions in American history. He also describes Marshall’s relationship with President Thomas Jefferson and their divergent views on the authority of the Court; as well as Marshall’s paradoxical position on African-American slavery. They explore the “Marshall Trilogy” of foundational Court decisions about Native Americans; and Chief Justice Marshall’s role and legacy of using the Court to safeguard the rule of law under the Constitution.

Stories of the Week: In Arizona, 40 students enrolled in the Applied Career Exploration in STEM (ACES) Camp engaged in immersive, hands-on activities and explored a wide variety of STEM careers. All 50 U.S. governors have agreed to expand K-12 computer science education in their states, prompted by a letter from 500+ business, education and nonprofit leaders urging an update.

Guest:

Dr. Charles Hobson is a retired historian, affiliated with the Omohundro Institute of Early American History and Culture at the College of William and Mary. From 1979 to 2006 he was principal editor of The Papers of John Marshall, a twelve-volume annotated edition of Marshall’s correspondence, papers, and selected judicial opinions. His one-volume edition, John Marshall: Writings, was published by the Library of America in 2010. In addition to articles on Marshall and the Marshall Court, Hobson is the author of The Great Chief Justice: John Marshall and the Rule of Law (1996) and The Great Yazoo Lands Sale: The Case of Fletcher v. Peck (2016). He earned a B.A. at Brown University, then a M.A. and Ph.D. from Emory University.

The next episode will air on Weds., August 17th, with Doug Lemov, managing director of Uncommon Schools, and author of the international bestseller, Teach Like a Champion.

Tweet of the Week

News Links

Tucson.com: Sunnyside girls explore STEM education, careers through free camp

https://tucson.com/news/local/education/sunnyside-girls-explore-stem-education-careers-through-free-camp/article_544a6e28-144f-11ed-baba-47803407ae68.html

Governors commit to computer science, but accountability questions persist

https://www.k12dive.com/news/governors-commit-to-computer-science-but-accountability-questions-persist/628802/

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[00:00:00] Cara: Welcome listeners to a hot edition of the learning curve. This is Cara Candal here with my intrepid co-host, the one, the only Gerard Robinson. Gerard, I have only been back in Boston for two days and I am melting. I gotta tell you, my friend. I know that there are lot of people, not only in this city, but across this country who live in very hot climates and do not have access to air conditioning or live in situations where they absolutely have no way to escape the heat.

[00:01:25] And I was going to sleep last night and I gotta tell you in my air conditioned house, where it was still too warm and thinking to myself. Wow. Wow. Wow. Wow. Talk about an infrastructure problem. things get warmer and we need ways to stay cool and healthy. So I hope you are cool and healthy.

[00:01:42] Maybe it might even be hotter in Boston today than it is in Charlottesville,

[00:01:45] Virginia.

[00:01:46] GR: You know what you’re absolutely right. Cause I have a couple of friends who live in the Boston area who texted me a couple of days ago and just said, Boston, usually isn’t this hot, it’s just hot and kind of muggy, which sounds more like the [00:02:00] south than the north or new England in particular.

[00:02:02] So, maybe there is something too global warming, maybe there’s something

[00:02:06] else. I don’t it’s

[00:02:07] Cara: whatever it is, it is unpleasant.

[00:04:34] You’ve got a, a pretty cool story. The week, this week, Gerard, you wanna

[00:04:36] GR: kick us off here? I want to give love today to a smaller program in Tucson, Arizona that is worth noting. So there is a school called Sunnyside unified school district, really a district. I shouldn’t say just a school and some of the middle school girls in that district spent a portion of their summer vacation delving in science, technology, engineering, and math, better [00:05:00] known as stem.

[00:05:01] And this was made possible by a grant from the Southern Arizona research science and engineering foundation. And this is just another example of the importance of public private partnerships, because this foundation, for example, during the 2020 21 school year, there were at least 160 schools that participated in quality stem education programs for students.

[00:05:25] How many students, nearly 54,000 participated

[00:05:28] during the 20. Wow.

[00:05:30] GR: 21 season and the awards and scholarships given to students to attract and retain them was roughly $128,000. So this program, not only say we’re gonna talk about stem, but they took a total of 40 campers and they actually visited stem centers throughout Tucson and engaged in hands on activities.

[00:05:49] Some of the tours included Pima C. College downtown campus, the university of Arizona, as well as Sonora quest laboratories. So the goal wasn’t simply [00:06:00] to expose them to stem in terms of a classroom experience, but to see stem in action at a company how it’s taught at a major R one university, but also at a community college.

[00:06:12] And so, based upon what I’ve read about the students, they’re pretty excited about it, but not only did they study stem, they actually had a chance to participate in a shark tank activity to explore the process of designing, creating, and even financing new products that go into the field as relates to stem based products.

[00:06:31] And the cool thing is if I, I trust me, I didn’t even see this in high school. They actually had an opportunity to see a cadaver and to talk about it through the lens of stem. But why is it important? So I decided to take a look at a report published. By the American association of university of women, and it’s called the stem gap, women and girls in science, technology, engineering, and mathematics, and they identify some numbers.

[00:06:57] We know, but some were actually still somewhat shocking. So [00:07:00] at least right now women make up only 28% of the workforce in stem fields naturally vast out numbered by men. When you began to look at women in stem occupations, 46% are biological sciences, 40% chemists and material scientists, computer and mathematical occupations, 25%.

[00:07:20] And if you’re looking at engineering and architects, 16.5%, a lot of reasons why people say that the. Actually we had this major gap but one gap definitely worth noting is the confidence gap. And there is a belief that many girls in fact, lose confidence in math by the third grade, while boys, on the other hand, who are more likely to say they’re strong in math by second grade, they make this claim even before performance differences are evident.

[00:07:47] So as a father of three daughters, we invested a lot in our girls. Now I would say two young ladies in stem. So this is a good story. Glad to see a school system taking this on with support from the philanthropic community [00:08:00] and just saying, we’re gonna dive deep on this and make it happen. So good to have that story from a school district in.

[00:08:08] Cara: Yeah, I love it. And your, point about, this persistent sort of belief gap based on gender and, girls, thinking they’re somehow not good at stem or not good at math, or it becomes, it’s a real, it’s a real issue we’ve been trying to tackle for some time now. And I think that , we’ll see improvements, but until young girls see women in stem careers, right.

[00:08:29] It’s really sort of a vicious cycle here. And so I think that it’s a, drum that we need to keep beating. Gerard, thank you very much for that story. Mine is, mine is related. Mine is about computer science and which also you know, there are gaps in access when it comes to who takes computer science courses.

[00:08:49] This one it’s actually is from K to 12, dive by Anna Marro. And it’s the title is governor’s commit. To computer science, but accountability questions persist. I would retitle that, but [00:09:00] access questions, persist, quality questions, persist. There’s a lot going on. I mean, Gerard, I don’t know about you, but like when I was in high school, it was well

[00:09:09] We were, the only thing you could do on a computer was type, and then play that one little game where you kept clicking the mouse and you could kind of advance an arrow to treasure map or something like that. Like this was right the time of like Atari 64 or something. but anyway, or was it 64? Who knows?

[00:09:23] But um, computer science now, I mean, here we are, 20, 22, correct me if I’m wrong, but I think it is. And still we have high schools where, kids, aren’t learning computer science, which seems not, it’s not like it’s something, some newfangled thing anymore, right? This is something that is so deeply integrated into our lives.

[00:09:41] And it’s frightening to me to think that we are raising a generation , of people who are. So wired. I was thinking about this with my own kids. When we were out in the Northern Michigan wilderness, like if they had to survive in the woods, could they , if they didn’t have a phone, could they get out? could they keep themselves warm?

[00:09:58] Like all of these things, [00:10:00] but here you have a lot of kids that are so wired and, but they don’t understand, for example, how these little devices in their hands, that rule their lives actually work. So it’s an interesting conundrum now, but this report really dives into the fact. It works. Computer science becomes a thing that schools teach when it is required.

[00:10:21] Okay. So I wanna lead with that. one of the bullet points here from the article points out that it was governor AA Hutchinson from Arkansas, he recently led all 50 us governors to sign an agreement, to expand K to 12 computer science education in their states, which is, great.

[00:10:37] Right? But just because you make a commitment, doesn’t mean that it’s going to happen. Now get this just 51% of high schools in this country offered computer science courses in 2021. And that’s according to a report from code.org. So the national governs association, Hutchinson led this effort with them is held accountable for its commitment.

[00:10:58] So there’s this feeling that [00:11:00] if we’ve got some accountability mechanism, people pledging that they’re gonna teach computer science. Well, then that’ll fix it. I would say one of the things we need to really be thinking about. Is high school graduation requirements, because even if you make a commitment to teaching computer science, that doesn’t guarantee that everybody’s going to take it, it could be an elective.

[00:11:19] And maybe to the point that you’re making if girls feel for whatever silly reason or reason of self-efficacy that they shouldn’t be inclined to math and sciences, maybe that’s something that some students, especially women would opt out of, sort of, because of the way our society works. And so I think that this is a really important point, the other important point, and this is pointed out in the article.

[00:11:43] Is that, we talk about this a lot. We’ve, we’ve talked about this on the show before about character education, right? Character education works not because we say to kids like, okay, now we’re gonna carve out 45 minutes of the day and build character. No, it’s about a culture. it’s about how you do things.

[00:11:57] It’s about, setting a mission and vision. Well, there’s a lot of course, [00:12:00] content that can easily be integrated into the rest of the school day. And my goodness one would think that computer science is one of those things that could be really integrated into the school day.

[00:12:12] And so I think that this article, it’s a good thing for us to remember, not only because computer science is important and I keep like pounding my head thinking if we’re this behind in teaching kids, the basics of computer science, like, wow, what else are we really behind of? are we teaching kids about data science, how to understand data, how to interpret this data rich world that we live in.

[00:12:34] Now, I know we’ve got. A lot of folks that are thinking about that. Thinking about to the point of your article, what other course requirements should we say that at a minimum kids really need to have under their belt to graduate in, stem fields. And that includes all kids. And I think that graduation requirements, nobody likes we live in a society where people don’t like to be told what to do, but the fact of the matter is when something is tested, it gets taught.

[00:12:58] it places a certain [00:13:00] value on it. And I think that this is one of those things. So a lot of connections between your story of the week, this week and my story of the week uh, things that I think we need to continue thinking about, and I hope that in this country, we can resurrect a bit of a conversation about what is it really that kids need to know and be able to do before they graduate high school, which by the way, Can really include putting them on the path, not just to college for some kids, it’ll be college, but to meaningful careers.

[00:13:29] And for some kids, it might be career before college and computer science can be a great pathway to that. I mean, I think about students who might earn micro credentials and coding that will allow them to get jobs that can then allow them to go on and pay for a college education that they might otherwise not be able to afford or would take out loans to pursue.

[00:13:49] So, conversation, I hope we keep having a very stem and computer science heavy day here on the learning curve. What do you think?

[00:13:57] GR: Well, I’m glad that the governors are taking a [00:14:00] lead in this area. Governor Hutchins from Arkansas has been a proponent. School reform in a lot of ways. So good to see his leadership in this area.

[00:14:08] Well, it matters to me for a couple of reasons. Number one, if we’re gonna talk about governors, they had a chance to work for two this election cycle. There are, we are gonna have a gubernatorial election in 36 states and three territories with 31 ICU governor’s eligible to run. Reelection in eight saying either not eligible or not seeking reelection.

[00:14:28] So I’d like to see the governors talk about computer science. Number two, when I had an opportunity several years ago to travel to China with a colleague, when I was on a board of trustees for a college in the bay area, it was just amazing to go. To high schools to elementary schools and just to see how not only stem, but particularly computer science was just really drilled in as being a part of the national culture, not just the curriculum.

[00:14:56] And so through one of our colleagues at Pepsi G program for [00:15:00] education, policy and governance headed by Paul Peterson he made a phone call to a principal who at the time was the leader of the highest performing math and science school in mainland China. And I had a chance to visit, and that school was a pipeline to all top 25 public and private universities in the us.

[00:15:19] But computer science was something. Particularly important to them. On this side of the ocean, I have friends who are professors of computer science. They’re both public and private universities, and we don’t have a lot of American students or should better say American board students who are just doing a pathway to earn a graduate degree in the subject.

[00:15:38] Many international students come over here and study. And that’s a great theme because they’ve made a tremendous contribution, not to our economy, but a number of them will actually return home and do some work there, but that kind of work starts local. So I’m glad you’re talking about governors. One program I’d like to at least have our listeners take a look at is called Rex academy.

[00:15:58] And it’s R ex I had an [00:16:00] opportunity to meet its founder. Maybe six or seven weeks ago when I was at Minneapolis and she made a pitch about the importance of teaching computer science and having a platform for it in K12. And so I took a look at some of the work they’re doing, and I think this could be one pathway toward getting there.

[00:16:18] As you said, if you test it, you have to teach it. And we still live in a culture that’s heavily anti test. I’m the first to say that we should take a look at the test we give to make sure they don’t only measure what we think students should know, but they’re actually aligned with the standards put forth by states, but this is one of those fostering and bargains.

[00:16:39] If you pick computer science and say, we’re gonna go ahead and mandate this as a test likely means we’re gonna have to ask a state chief or governor or superintendents or others to give up on one. So glad we brought this story up. I’m sure we’ll be hearing about it again in the future.

[00:16:55] We will.

[00:16:56] And in the

[00:16:56] Cara: future, we can do a whole nother show on what it means to create like mastery [00:17:00] based ways for students to demonstrate competency, right? And computer science might be a great, area where they could do that. But I digress Gerard because we’ve got a great guest who’s waiting for us to bring him on.

[00:17:10] And in just a moment, we are gonna be speaking with Dr. Charles Hobson. He is a retired resident scholar at the William and Mary law school, 26 year editor of the papers of John Marshall and author of the great chief justice, John Marshall, and the rule of law. So we’re gonna bring him on listeners in just a minute

[00:17:29] . [00:18:00] [00:19:00] Learning curve listeners. Welcome back. We are here with Dr. Charles Hobson. He is a retired historian affiliated with the Alejandro Institute of early American history and culture at the college of William and Mary from 1979 to 2006. He was principal editor of the papers of John Marshall, a 12 volume annotated edition of Marshall’s correspondence, papers, and selected judicial opinions.

[00:19:38] His one volume edition John Marshall writings was published by the library of America in 2010. In addition to articles on Marshall and the Marshall court hops in as the author of the great chief justice, John Marshall, and the rule of law and the great Yasu land sale. The case of Fletcher pec here in the BA at brown university, then an ma and a PhD from [00:20:00] Emory university, Dr.

[00:20:01] Charles Hobson. Thanks for being with us today on the learning curve. Very glad to be here. I’m glad to have you. So, you know, we have a lot of listeners who are just. Interested in, in this work and the kinds of things that you write about. So let’s let’s talk first. About just John Marshall himself. He was the longest serving, but also some would say the most important chief justice in the history of the court.

[00:20:25] And he was a founding father who did as much as anyone really to define what the us constitution actually means. So can you tell our audience about sort of like, what should we know about this figure, this legal, this great figure in our nation’s history?

[00:20:40] Charles Hobson: Well, let’s just start with some kind of basic facts.

[00:20:44] Marshall, he was a Virginian born in 1755 and he lived till 1835. He was almost 80 when he died. And he served in the revolution. He was in the continental army and he had a career in law and he served in the state [00:21:00] legislature of Virginia and then briefly in the Adams administration as a diplomat and then secretary of state.

[00:21:06] And he was in Congress very briefly before he became chief justice in, 1801. And you say that he’s the longest serving chief justice so far. He was, , From, February, 18. Oh one term through January, 1835. So it’s really, usually that people say 34 years, but it was really 35 years, that he was the chief justice.

[00:21:30] And, so, I would say That I think he deserves to be called the great chief justice cuz because he, he deserves credit for making the Supreme court and more generally the judiciary department, a significant player in the American scheme of government is under, under his leadership over the course of three decades that that Supreme court acquired a, a kind of parody with Congress and the execut.

[00:21:59] That it [00:22:00] most certainly did not possess in 1801. Now this might well have happened without Marshall. It is also possible that the judiciary without Marshall at the helm could have receded into relative insignificance. I think we need to recognize that Marshall’s success resulted from the interplay between.

[00:22:23] Undeniable leadership abilities and the peculiar circumstances of time and place that allowed those abilities to flourish and have effect. A great man is Oliver Wendell Holmes famously said represents a strategic point in the campaign of history. And part of his greatness consists in his being there.

[00:22:47] He emphasized there. Marshall was the right man in the right place at the right time.

[00:22:54] Cara: and I think your point about, you know, the court could have sort of, certainly not [00:23:00] been the been what it is today, had it not been for the men’s it’s a point that a lot of people are thinking about.

[00:23:05] I think most Americans don’t realize sort of the court’s more more humble beginnings. I hope that you can talk to us a little bit about. The Marbury versus Madison. So, you know, as we all should have learned in school at some point, this was a landmark case at really defining the boundaries of checks and balances between the judicial executive branches of the federal government.

[00:23:28] Yeah. Something that people should be thinking about all the time and certainly today. So summarize for us what this decision meant and really Marshall’s intent as well as like its, its impact down the line.

[00:23:43] Charles Hobson: Well, Marbury was no doubt, a landmark opinion and remarkable for coming so early in Marshall’s tenure.

[00:23:52] Let me just kind of brief, briefly state the facts of the case. William Marbury was appointed a, a [00:24:00] justice of the peace for the district of Columbia under an act establishing. The government for the district of Columbia 1801. And he was appointed by Adams and he was approved and his commission was drawn up and everything, but it was never sent out while Adams was still in office.

[00:24:22] And when the Jefferson administration came in, marries was among a handful of commissions that had. He had been appointed and approved and so on confirmed, but the commission had not been delivered. So Marbury and others applied for a, something called a writ of mandamus that would command the secretary of state.

[00:24:45] In, in this case, it was James Madison to deliver the commission. Well, the administration Madison just simply ignored Marbury. And so, Marbury brought suit.[00:25:00] Directly to the Supreme court and this would’ve been under the Supreme court’s original jurisdiction, but what happened was that Marshall ultimately turned down Mar petition for mandamus because he said that the act under which the.

[00:25:25] Mandamus was issued. It was under a, the federal judiciary act of 1789 section 13 of that act. And Marshall ruled that that act UN nationally expanded the Supreme court’s original jurisdiction. In other words, the original jurisdiction of the Supreme court had was exactly what it was in the constitution.

[00:25:49] There was nothing. To fill in the gaps or anything. It was just what the, the few cases that they could have under original jurisdiction and a case between[00:26:00] a, a citizen and a a, a government officer, like Madison was not within the original jurisdiction. And so in this case, Marshall, this was for the first time.

[00:26:16] Supreme court exercised its authority to asserted authority to strike down a legislative act as being contrary to the constitution. Now, there was nothing particularly controversial in what Marshall said. It was just a few general principles, namely that a constitution is Supreme fundamental law.

[00:26:42] And the regular a, an act or act of legislation that was deemed to be contrary or repugnant to the constitution was not law. And Marshall didn’t. In fact, the judicial re what we [00:27:00] called judicial. That’s a, that’s a later term admitted in the early 20th century. But what we called judicial review was not all that controversial or, or was even the main part of the case in 1803, but it became famous later.

[00:27:18] We don’t need to go into that, but but it’s still, the fact is that this was the first time the court exercised this authority. What we call kind of narrowly review.

[00:27:32] In a broad sense, the entire opinion, not just the relative brief section about judicial review was an attempt to define the judiciary in relation to both the executive and legislative. The judiciary was to be a province confined slowly, solely to Def deciding matters of law. I put that in quotation marks and exclude.

[00:27:55] Political questions also in, in quotation marks. [00:28:00] But the so the actual ruling was in favor of the Jefferson administration that in other words, Marbury lost his petition for mandamus, but Jefferson and the, his Republican party were incensed by this opinion. Not because he foisted judicial review on an unsuspecting public, but because he took the entire, the longer first part of his opinion, which was not crucial to the, to deciding the case, to give what amounted to a lecture on the rule of law, in which he set out the fact set out the facts and circumstances of Marbury’s case.

[00:28:45] And. And and saying that Marbury definitely had a, a legal right. And he had a right to legal, to redress in the courts of law. And he [00:29:00] spelled this out at some length and chided the Jefferson administration. And then he winds up saying, well, in any case, we don’t have jurisdiction. So, you can see how Jefferson and his party were, were quite, quite up by, by the opinion, but perhaps not for the reasons.

[00:29:20] We think about today.

[00:29:22] Cara: If you could comment on, on two more cases. I I’m, I have to say I am more interested in the latter. I’ve been reading a lot about. Personally lately. So two other really landmark cases under the Marshall court McCulloch versus Maryland, and interestingly Gibbons V Ogden, which concerns the federal power to regulate interstate commerce, which I think many people don’t understand really like it, it sounds like, okay, regulating interstate commerce, but it is far reaching implications to that.

[00:29:51] Can you talk about how these two rulings further defined the power of the federal

[00:29:57] Charles Hobson: go. Okay, let [00:30:00] me, let me get into that by saying, let me lead into it by the fact that both of these cases in both of these cases, the court struck down state laws, and this was the far more important category of what we of Marshall.

[00:30:18] Review judicial review cases. The, the fact that in Marbury declared a portion of a federal act UN constitution. That was the only time during the his tenure that that happened the rest of the Marshall courts striking down of laws that were all state laws a federal law didn’t get declared unconstitutional again until.

[00:30:41] Dred Scott in 1857, but that that’s just the preface. What I wanna say about McCulloch and Gibbons, which are, are the two most important expositions of Marshall Marshall’s nationalist jurisprudence. This was the George prudence that gave an ample reading to Congress’ [00:31:00] power. . Now, given struck down a new New York Steamboat monopoly, freeing up navigation of the of the United States and decided Marshall gave a, a spacious reading to Congress’ power to regulate entered state and foreign commerce. No part of the constitution as proven more fertile scores, the additional power than the commerce clause.

[00:31:25] It was upon this constitutional foundation. Congress erected the federal regulatory state that emerged in the 20th century, far after Marshall’s time. But my point that I wanna make is that in championing national power in McCulloch and Gibbons, the court was, was not a precursor of modern, liberal nationalism and the regulatory state of the 20th century.

[00:31:55] , the court viewed its mission as promoting an energetic and efficient government to [00:32:00] carry out the great national purposes outlined in the cons. So Marshall and his brethren looked upon the federal government as chronically vulnerable to the aggressive encroachments of the state governments.

[00:32:14] So I would say that the nationalist perspective of the Marshall court inclined not forward to the nation state that emerged after the civil war, but backward to the 1787 idea of the union. those objects were primarily conservative and defensive. The constitution was designed to establish an equilibrium between the federal and state governments, but this equilibrium, as, as Marshall saw, it was in constant danger of breaking down in the direction of the states.

[00:32:47] So I would describe Marshalls and the court’s nationalism as, as. Or negative resistant superior force of state sovereignty rather than [00:33:00] augmenting federal power. Well, professor in preparing for today I learned one thing that I did not know, and I was unaware that chief justice Marshall and president Thomas Jefferson were second cousins.

[00:33:14] So that was something new to me. Well, that’s true. A lot of people don’t know it, but a lot of people do know it and. I think that’s the, perhaps the least important of their, their common qualities, the fact that they were two Virginians and they had Welsh fathers and so on and other commonalities, but they they, they disliked each other intensely, Jefferson appointed justice, William Johnson, who pioneered the use of dissenting opinions for the Supreme court. He did this to disrupt. Marshall’s more nationalizing vision of the court.

[00:33:46] Talk to us about that. Well, it didn’t work to put it briefly. But let me just start off by saying that in addition to the dis the difference. Marshall and Jefferson about politics, federal power. [00:34:00] I would include their conflicting views about the institution, the judiciary and the Supreme court particular.

[00:34:09] The two got off to a really rocky start in 1801. When Jefferson’s this party was eager repeal a judiciary act that had been passed by the lame duck Fe Adams administration and the And which created 16 new federal judge ships which president Adams promptly filled well, the Jefferson and his party came into power and they promptly repealed that judiciary act . Well, all of these events, thee of the judiciary act the case of.

[00:34:45] Been called, I’ll put this in quotation, mark, the judiciary crisis of Jefferson’s first administration, ultimately tensions eased after to appoint his own Supreme court of justice as [00:35:00] being William Johnson, who, who was his first and then he appointed two others after. And then the federal judiciary consistently upheld the Jefferson’s rather stringent embargo laws.

[00:35:14] So, and then tensions flared up again in 1807 with the treason trial of Aaron Burr, but by 10, when Madison had succeeded Jefferson an accommodation between the federal judiciary and, and the executive had been reached Madison also made. His own appointments to the high court. So, but here’s, here’s the thing in the dozen years or so after Madison became president, the Supreme court delivered its most nationalizing opinions, including MCC and Gibbons.

[00:35:47] And by then the majority of the justices had been appointed by Republican presidents. I think it was Marshall and his good friend and fellow Virginia Bushwood Washington, the nephew of general Washington [00:36:00] were the only two Federalist hold orders. And this must have really frustrated Jefferson who, who never reconciled himself to Marshall and his exercise of judicial power.

[00:36:14] And he must have been disappointed in Johnson who did not stand up for state rights and strict construction and all that. Indeed Johnson was generally supportive of the judiciary’s efforts to shore up federal power. Now, Johnson is true. Did have his differences with Marshall, but some of these were kind of technical legal differences.

[00:36:37] And he had a very independent streak and he definitely shaved under the Supreme court’s unwritten rules that fr frowned on dissenting opinions or even separate concurring opinion. To promote unity. Marshall had instituted the practice of the court, issuing a single opinion, usually delivered by the Supreme court [00:37:00] himself.

[00:37:01] Johnson eventually announced that he would give his own opinion in his own way sometimes to descending enough. So I guess that his biographer could call him the great center, but as I said Johnson, more often than. Concurred in the Marshall court’s nationalizing decisions. Now, late in life Jefferson initiated a correspondence with John Johnson expressing his disapproval of the court’s recent decisions, meaning particularly McCullough versus Maryland.

[00:37:32] . Well, Johnson, I guess, gratified Jefferson to some extent by revealing some of the internal dynamics of the court that enabled the chief to present to the public in an institution that was perhaps more, that seemed more unified than it actually actually was the case.

[00:37:50] So. In any, any event, Jefferson carried his dislike of Marshall and his distrust of the Supreme court to the grave.[00:38:00] Marshall reciprocated that dislike and distrust never forgiving Jefferson’s attack on the federal judiciary. He suspected Jefferson, in fact, of being behind the newspaper attacks on the MCC decision that appeared in papers, particularly in the Virginia papers and particularly under written by Spencer, Ron of a state’s rights, Virginia judge, these attacks.

[00:38:29] So ranked Marshall that he at undertook the extraordinary step of defending. The decision in a series of anonymous essays. So Thanks. So you still there? Slavery? No, I’m still here. Yep. So slavery has had a long. Relationship in the early part of our Republic to federal and state government, as well as decisions.

[00:38:53] This impacted only enslaved Africans, but native Americans. Now paradoxically judge Marshall was a slave [00:39:00] owner and a Federalist party leader who with his allies Adams and, and Hamilton intended to oppos slavery. Would you talk about Marshall and slavery? Historically, but also in the context of the time we live in now where even, you know, organizations like the American constitution society says no law school should be named for John Marshall.

[00:39:22] He can’t really be said that Marshall was anti-slavery certainly not in the way perhaps Adams or, or Hamilton was he was after all EF Virgin.

[00:39:34] But it’s true that like many of his generation, even slave owners he recognized the evil of slavery. It was contrary to natural law, as he said in somewhere. I think one of his opinions, every man has a natural right to the fruits of his own labor. And no man can rightfully deprive him of those fruits and appropriate them, appropriate [00:40:00] them against his.

[00:40:02] So however troubled, he might have been by the immorality and evil of slavery Marshall regarded the institution as just this kind of inflexible fixed part of, of the system, the legal, political, and legal order. And it had the sanction of positive law. I would have to say that Marshall is among that, you know, can be classed with, you know, the founding generation who essentially, I think punted on the matter of slavery. And I don’t mean to like, Be too hard on ’em, but they, they didn’t think hard enough and seriously enough about it.

[00:40:43] They probably recognized the problem, but I think they optimistically and I think unrealistically hoped that slavery would eventually die out of its own accord. But in retrospect, we can see that was woefully unrealistic. And [00:41:00] Marshall it’s true was a member of the American colonization society, which encouraged emancipation.

[00:41:07] But along with that removal of the freed enslaved to the new colony of Liberia in. Marshall like many saw no possibility that the two races could live peacefully together now. So as a ju he, he saw himself as having little discretion, virtually powerless to affect the institution directly.

[00:41:40] Not even if he wanted. There was a little discretion, maybe a little wiggle room in cases in could presented a case, but that they were held unlawfully in bondage. Marshall had some of these cases and also some [00:42:00] international law cases in which dealing with the, the slave trade. And so on that could have resulted and did result in freeing of Africans held in bondage.

[00:42:12] But generally Marshall took a, a rather narrow and legalistic approach to these cases. . And so I wouldn’t say that that Marshall shined in these sorts of cases, he I think it’s fair to say. And it has been said that he’s been criticized that, that judges kind of hid behind the mask of the law that they had to obey, you know, the rules of evidence the rules of statutory construction, things like that.

[00:42:42] And so Marshall kind of. Kind of hid behind those? Not that he had much discretion in cases like that. And of course all his fellow judges agreed wholeheartedly with him. I mean, there was no the, these cases didn’t present [00:43:00] really any difficult problems for the court.

[00:43:03] Indian cases. That’s another ballgame still he could exercise more discretion in these cases, but in the end, the court was powerless to prevent the, the dispossession and removal of the native Americans. But mm-hmm, . He was very sympathetic to the plight of the Indians and he decidedly opposed the Indian removal act of 1830.

[00:43:32] He was very upset by the Jackson administration’s policy towards the native Americans. Cuz he definitely recognized that the natives had legal rights, that the tribes exercised a degree of sovereignty had their own independent government.

[00:43:54] Cara: suffice it to say we live in a country founded on some pretty great contradictions ,

[00:43:59] Charles Hobson: I think [00:44:00] Marshall’s whole whole career as a, as a ju was dedicated to promoting and preserving the quote rule of law.

[00:44:06] He spoke of it explicitly in Marbury. When he said that the us government has been emphatically, termed a government of laws and not of men in that context, he was thinking in terms of legal rights and remedies that is when our of individual rights are violate. We can seek redress in courts, but I think he had a broader understanding of the rule of law as an attitude or habit of mine ingrained in the American people that democracy and majority rule must be bounded and limited by law of which the most fundamentally is the constitution.

[00:44:43] The phrase rule of law is often used in contrast to the will of the people. Marshall’s idea was two could work in tandem to produce what he called a well regulated. In other words, the American people by their constitution [00:45:00] agree that that it is their will to be limited and bounded by. Marshall did more than anyone else to carve out a large role for the Supreme court to enforce the rule of law, but he never asserted that this could be achieved by exclusively or even primarily by the court to be a reality.

[00:45:19] The rule of law had to be the duty and responsibility of all departments of government and ultimately of the people at large.

[00:45:29] Cara: That was excellent. That was excellent. And I’m sure that what we can do is our really crack editors can go back and,

[00:45:35] Charles Hobson: and edit that and have some of the earlier stuff.

[00:45:38] I mean, I got, yeah, no, I got long winded in the slavery. No, that’s

[00:45:41] Cara: okay. It’s all really interesting stuff. And so I’ll just close it out and say Dr. Charles Hopson. Thank you so very much for joining us today. ,

[00:45:49]

[00:45:49] thank.[00:46:00]

[00:46:59] Cara: All right this [00:47:00] week, Gerard, we’re closing out with a tweet from Mike Anthi. I, just love this guy. He’s always sort of like always sort of like, Hey guys, but remember this, I love people with a long memory. So this tweet he says, I just thought I would tweet out this associated press story from November, 2009, give everyone a head, start on how to pivot from teacher shortage, alarmism to job shortage alarmism.

[00:47:24] And so this is an old story, a 2009 story, of course, from the San Diego Tribune entitle. Teacher shortage gives way to teacher glut. So you might have seen Gerard that I think sometime earlier this week, or I only saw it earlier this week, a report came out questioning whether or not we really have a teacher shortage.

[00:47:43] We have said on this show, before that we go through periods in this country where it’s like all the teachers are gone. And I think that I don’t know. My take is that all the teachers are gone. If it’s hard to find teachers in your district or in your school, so different communities, experience teacher shortages in different [00:48:00] ways, nationally, the picture might look different.

[00:48:02] Nonetheless, Dr. Atonucci tweet well taken. Thank you very much for that, Gerard. Next week, we are gonna be back with somebody who many listers will know. We are gonna be speaking with Doug Lamov. He is the managing director of uncommon schools and author of the international bestseller teach like a champion.

[00:48:20] If you have been in schools K-12, especially a teacher, anytime in the past 20 years, If you haven’t read it, you have certainly had professional development based on it. So looking forward to that conversation until then Gerard, myself and my puppy, who is right at my feet here, making a little bit of noise.

[00:48:39] we bid you a great week and can’t wait to talk to you again in one week.

[00:48:46] GR: Look forward to it. Take care. Take care.

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