Bil Johnson

Yale University
Lecturer at Brown University

Bil has over 25 years of experience as a public school teacher. Before his current role as a teacher at the Urban Assembly School in NYC, Bil was a senior lecturer at Brown University.

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A More Perfect Union?

Bil Johnson
Bil Johnson

Yale University
Lecturer at Brown University

Bil has over 25 years of experience as a public school teacher. Before his current role as a teacher at the Urban Assembly School in NYC, Bil was a senior lecturer at Brown University.


The first half of the 19th Century is really exciting. We’ve got a new country, a brand new government. What we see here, is that John Marshall emerges as real force, as a real power with the Supreme Court. Even though we’ve got a couple of presidents who kind of think they have all the power, Marshall emerges. What we’re going to look at in this episode, is really how he defines the Supreme Court in the first half of the 19th Century.

There is a problem though, because all the while this is going on, there’s the low home of slavery with a sense of something wrong, something needs fixing. That’s pulsing underneath and in the background. So the beginning of the 19th Century is really the best of times and the worst of times for this new nation. So let’s go take a look.

To really understand the first half of the 19th Century, there are three items that you want to pay attention to. First and foremost, and the reason I’m dressed up like this, is because John Marshall, the second Chief Justice in the History of United States, second chief justice of the Supreme court, is someone that we really need to pay attention to. We really need to learn some things about, so that’s number one.

Number two, we need to look at presidential power in the early half of the 19th Century, in particular Jefferson and Jackson. And we’ll talk about those two in a moment. Then the third thing that’s very important, and still exists in United States, and that’s regionalism. Regionalism being the identity with a region of a country, a certain geographical part of the country.

John Marshall first and foremost. We really need to understand John Marshall, because John Marshall is the man who established the power in the Supreme Court. We’ve talked about Checks and Balances, but prior to 1803, the Supreme Court existed without any power.

John Marshall changes that. He changes that with a series of decisions in the early 19th Century. There’s some background you should know about John Marshall. He was a Virginian. The group of people from Virginia in the early 19th Century; Jefferson, Madison, Monroe were all democratic Republicans. They were strict interpreters of the Constitution. They were anti-federalists. John Marshall was an anomaly which is a great word. It’s an SAT word, you probably should pay attention to it. He was an anomaly. He didn’t fit the mold. He was a federalist. He was a Virginian federalist and he was appointed by John Adams just before Adams left office and Jefferson took over.

What’s significant about Marshall is that, he made a series of decisions. We’re going to look at them right here. He made a series of decisions in the early 19th Century that you really need to know. You really need to pay attention to.

First and foremost, probably the most important decision in the History as we record, is Marbury versus Madison in 1803. I won’t go into he details of it. It’s something you can look up and read about, because what’s more important than the details of the case, is the result of the case. The result of the case is something called Judicial Review. Judicial review means the Supreme Court has the power to look at any law, any action that occurs in the country, and review whether it’s Constitutional, whether it’s legal or not. Essentially, this puts the teeth into the checks and balances for the Supreme Court and that’s what makes it the most important decision really in the History of court. It gives the court power.

Later, McCulloch versus Maryland, what Marshall does is he extends the power of the court and the federal government by claiming implied powers. Basically, this is a case where the state of Maryland was challenging McCulloch, who was the local head of the national bank. Maryland was saying there can’t be a national bank. It doesn’t say in the Constitution that the federal government has the right to start a national bank. John Marshall says it’s implied. It’s part of the flexibility of the Constitution. So it’s a very strong federalist decision. It consolidates some power in the federal courts and in the federal government by creating a national bank. But most important it creates this doctrine of implied powers.

Another decision later on, is Gibbons versus Ogden. In this one, basically, it totally reinforces the idea that the federal government is the supreme law of the land. Because in Gibbons versus Ogden, what Marshall says is, the federal government can overturn a state law if that state law violates the US Constitution. So it means the federal government can actually go into states and turn laws over, because they’re unconstitutional.

If you think about it, that could have long term repercussions, because it means the government could interfere with states and this is really where regionalism comes in. Regionalism being, in this case in particular, the Northern States versus the Southern states. The Northern states very much are federalist states. They very much believe in a strong centralized government. They believe that that government can step into the affairs of a local state and say whether something is constitutional or not. The southern states by contrast, for the most part believe in states right. They don’t think that the federal government in fact can step in and tell states what to do.

What you can see here very clearly is the ultimate danger and really the precursor to the civil war, because you’ve got the North saying the federal government has the power, the south saying states have the power. You know sooner or later, those two are going to bang head. In fact, there’s a little preview of it in the case or Worcester versus Georgia.

Andrew Jackson is president at the time. The Supreme Court under John Marshall rules that in fact, the state of Georgia has no right to remove the Cherokee Indians, and tell them they have to go live in Oklahoma. Of course we know about five years later, in 1837, the famous trail of tears the Cherokees are driven across the states, are forced march and moved out of their own territory.

What happens here is that the John Marshall rules, in fact, the state doesn’t have a right to throw the Cherokees out of there. Andrew Jackson, the president, says basically well that’s fine, but I’m not going to enforce that law. The executive's role is to carry out the law. So what we’ve got here is the first time a president stands up to Marshall and a state's rights president stands up to Marshall.

That brings us to our second point which has to do with presidential power and opportunity. The two presidents I really want to look at at the beginning of the 19th Century, are Thomas Jefferson and Andrew Jackson. Jackson we’ll get back to the Indian removal case in moment, but Jefferson we’ll look at first. Because Jefferson had to deal with Marshall right away in 1803. In fact, almost immediately, Jefferson does some thing. It doesn’t interfere so much that the court has to come into play, but it does have to do with stretching the definition of the president’s powers.

In 1803 of course, Jefferson is given the opportunity to purchase Louisiana, the Louisiana territory. In purchasing Louisiana, Jefferson has a chance to more than triple the size of the United States.

In doing that, he obviously benefits the country greatly. However, the president is not allowed to do that. He needs the authorization of the Congress to spend that money. Jefferson very clearly sees an opportunity, takes it, and expands presidential power outside the realm of checks and balances.

Later, Jackson with the Indian removal case, does not enforce the law that the Supreme Court says should be enforced. So once again, we get a president extending the powers of the executive branch. Now this is really something that we see right up to the present day. There’s a tremendous amount of tension between that legislative, executive and judicial in the checks and balances. So what we see at the beginning of 19th Century, is an issue that will carry through American History as one to remember as you study US History. It’s certainly one that may come up in a document-based question or a free response essay.

Finally, we want to go back and look at the idea of regionalism. This is kind of an interesting thing, because again it carries through to the present day. Starting in colonial times, when people identify themselves and this is still true in this country. When someone asks you where you’re from, people say, "Oh I’m a New Yorker. I’m from California." We don’t say I’m a citizen of the United States of America.

So regionalism is very strong. And despite John Marshall trying to push the idea of federalism, and the strength of the federal government, there still is a strong impulse to identify with your state and identify with your region. We need to remember that when we look at the History of this country, because it influences the great amount of what goes on. It creates this tension, this underlying tension, that’s been there right from the beginning. That's why we need to pay attention to it. There’s tension between the federal power of the central government and the state's rights power, and the regionalism that individuals feel for their states versus the allegiance we need to have toward our strong central government.

Those are really the big ideas that we need to remember, when we look at the early part of the 19th Century and really the creation of not just this country, but a whole series of values and ideas that we still live with.

Looking at John Marshall and what he did with the Supreme Court, and those incredible decisions that strengthened federal power, what we see is a very activist judge. A judge who really was making things happens. That’s a debate that still rages today. Should the court take an active role in settling what might be considered social issues? Certainly in 1857, when Roger Taney who was appointed by Jackson, made the ruling in the Dred Scott case that in fact, all the African Americans in the United States were not citizens. Was he being an activist judge and taking on a political and social stand? And not just one that was ruling on the interpretation of the Constitution and just looking at a legal issue? It’s something that there are still debates about and arguments about. It’s one that you should think about all the time as a citizen. But particularly if you're a student of US History and particularly if you’re taking AP US History. You need to think about should the court, can the court, be a group of people who are activists, who kind of legislate from the bench?

The challenge I want to issue is for you to go back and review the Marshall court. Maybe take a look at Taney’s decision in the Dred Scott case of 1857. Start to look at what’s going on with the Supreme Court today. Try to see what comparisons you can make. Is the court taking an active role is setting new legislation essentially and making decisions that in fact radically change the way Americans have to live?

Some of the issues obviously that are hot button issues, that you might want to look at in the debate, are things like gay marriage and abortion. Back in the ‘70s it was equal rights amendment as far as legislating whether women should be designate significantly as a gender that requires an amendment to the Constitution. There’s always been this issue of whether the court should make this decision, the legislature should make decisions. States should make the decision, or the federal government.

So those are ideas and concepts that you really need to continually review, look back on, focus on. And as I say I’ll challenge you to go out and see what can you find that’s out there today that are the hot button issues that the court might be embroiled in. And maybe within the next four or five years too. So that’s your challenge. Go out hit the books. Hit the Internet find out what you can and have some fun with History.

In summarizing this episode, one of the most important things for us to remember, is how important the Supreme Court was in the early 19th Century in defining and shaping the role of in particular the federal government. But really the way the government happened in this country. It really defined US government and particularly through John Marshall’s leadership of the Supreme Court.

As we look at it in the early part of the Century, he really strengthened the federal government. After Marshall leaves the court and is succeeded by a Roger Taney under Jackson’s appointment, we see the power of the court really ebbs. We also see this movement away from federal power to the states pulling in ranks and starting to challenge the federal government. It’s really a pretty clear signal that the civil war is probably on the horizon.

What we’re going to look at next is the Supreme Court again and the Constitution. We’re going to look at it after the civil war. We have some episodes that will go into the civil war and slavery, and talk about those issues. But right now we want to really con concentrate on Supreme Court and the Constitution, and how that shaped what we’re known in America.

The next episode we’re going to really take a look at what the court did or didn’t do in the period after the civil war, to the beginning of the 20th Century. So there are some material in the bonus section that you can look at about this. But before you do, what I’m really going to challenge you to do once again, is for you to think about, after this civil war, what do I know? Reconstruction, Gilded Age maybe I’ve just heard some phrases. Let’s see what you can predict and come up with about that period from 1865 to 1900 as far as the court’s power and what went on in the United States. As far as states rights, federal power etcetera.

Then after you predict it, go and look in the bonus material and see what’s there. Also go check your textbook. Talk to your History teacher, or tune in to some future episodes and find out what really went on. Once again, the key here is to really do some good research, but in the process, not worry about the AP test and have some fun with History.

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