Without Precedent: A Conversation with Joel Paul '77 and Jan Saragoni '77, P'03

Jan Saragoni: Hello everybody, my name is Jan Saragoni, class of 1977. I’m delighted to be here with Joel Paul today, a dear friend from Amherst. We’ve managed to keep in close contact for all these many years. It is with great delight that I am able to speak with Joel about his new book, Without Precedent: Chief Justice John Marshall and his Time, a book that has been receiving incredibly positive and well-deserved press. Good morning, Joel.

Joel Richard Paul: Good morning and thank you, Jan.

JS: It’s my great pleasure. I’m going to just jump right in into my first question if that’s okay with you. Persuade someone to read this book in 50 words or less.

JP: John Marshall was probably the most important of all the members of the founding generation. His contributions to our constitution, our system of law and government, have had the most lasting print. John Adams was certainly an instrumental figure in drafting the Constitution; he was not very successful as a president. James Madison wrote the first draft of the Constitution, but also was an unsuccessful president and got us involved in an unnecessary war in 1812. Thomas Jefferson was a great writer in drafting the Declaration of Independence, but he himself thought his greatest contribution was the establishment of the University of Virginia. John Marshall, by contrast, really was the one person who framed the meaning of the Constitution and established the balance of power between the branches of the government and the relationship between the federal and the state government, and he’s been unfortunately largely overlooked, and he’s had a phenomenally interesting life at the center of every political controversy, every major event in American history from 1776 until 1835. And he’s just a fascinating character.

JS: Joel, why has he escaped the limelight, if you will, of the other Founding Fathers?

JP: Well, I think his time as Chief Justice of the Supreme Court really eclipsed so many of his other contributions as a diplomat, as a statesman, as the leader of the Federalist Party in Virginia and political rival to Thomas Jefferson. We forget some of the other things he did. Most people are familiar with the one famous decision of the Supreme Court that we all learn in high school, Marbury v. Madison, that established the principle of judicial review, and they forget all the other things that Marshall did. But he was not just a giant as a jurist, but he was also an incredibly influential diplomat and statesman.

JS: The next question I have you may have answered already, but tell me, what first drew you to the subject of Chief Justice Marshall?

JP: Well, it’s the fact that he has been somewhat overlooked and the fact that he had such an interesting life. As a professor of constitutional law at the University of California, I’ve been teaching about John Marshall and his cases for many, many years, and I’ve always had an interest in the fact that he was able to somehow invent principles of law that decided a whole host of cases that came to him without any precedent. I wondered where this inventiveness, this capacity for creativity, came from.

JS: The most surprising thing you learned while writing it I think might have something to do with the documents you discovered related to Marbury v. Madison. Can you talk a bit about that?

JP: Sure. So Marbury v. Madison is, as I said, the case that established the principle that the Supreme Court can strike down that are unconstitutional. The conventional story about how that case came to be turns out to be wrong. I discovered some important correspondence among Marshall’s papers that shows that the case was, in fact, kind of a setup. Marshall basically got his brother to sign a false affidavit making certain claims about the nature of the case, and Marshall worked quietly with William Marbury’s attorney in the case in order to set up the case in a way that would establish the principle that the Supreme Court can oversee the actions of the federal executive branch as well as strike down congressional legislation. And he did all of this for the purposes of establishing the autonomy of the judicial branch and securing the authority of the judiciary when Jefferson and the Republicans in Congress were really threatening the independence of the judiciary.

JS: So how does your biography differ from other biographies of Marshall?

JP: Well, I think that most of the biographies of Marshall have focused, pretty much exclusively, on his time on the Supreme Court. And, frankly, they’re kind of dry. They’re not really written for a popular audience; they’re written more for lawyers and judges, and I wanted to write a popular biography that describes Marshall really as a man, as a guy who was very creative, who had a really interesting life, who knew all the major players, who was at Valley Forge with Washington, who was drawn into the French Revolution, who fought with his cousin, Thomas Jefferson, as a politician, as a statesman, as a diplomat. I thought all of those attributes and experiences he’d had had really been largely overlooked, and that’s what I wanted to write about.

JS: What struck me – well, many things struck me about your just incredible book, just a fascinating read on so many levels – was the detail you paid to his personal life: his marriage to Polly and the struggles they had, the deaths of their children early on, the kind of clothes Marshall wore, his relationship with is slaves. He really comes across as a very full-bodied person. We can get a sense of him as a man, as a father, as a husband. Did anything surprise you as you got deeper into your research with Marshall?

JP: Thanks, Jan. Well, he had ten children; four of them died at a very young age, and he was survived by only three of his children. His wife, Polly, was kind of a hysterical personality who had a lot of emotional difficulties, and she really could not cope at all, and she spent most of their married life confined to an upstairs bedroom. So he pretty much had to raise the family on his own while pursuing his law practice and his political career. He was terribly devoted to his wife, but I suspect, and have found evidence, that he had more than a flirtation with a woman who may have been the illegitimate daughter of Voltaire in France, and also, as we find out in the book, was probably a French spy.

JS: Which makes the book all that more intriguing. You mentioned Marshall taking care of his kids. He himself probably got a lot of experience doing that being part of fifteen children growing up in the Virginia countryside.

JP: Right, I mean, that is something about Marshall that I think people don’t appreciate. This is a guy who, although he was Thomas Jefferson’s second cousin, while Thomas Jefferson grew up in the lap of luxury in the family seat in Tuckahoe, Marshall and his fourteen brothers and sisters really scratched out a life, a hard scrabble on the western frontier of Virginia living in a log cabin, a two-room log cabin, about 700 square feet. He had no formal education. He basically had six weeks of lectures in law; that was his only legal education, something which I’m sure my students at the University of California Hastings wish they could say. But he was just a remarkable autodidact who taught himself and managed to accomplish so many things out of his sheer and innate intelligence and creativity and personality.

JS: You know, it’s interesting that you wrote that even though Marshall’s upbringing was a pretty hard scrabble compared to his cousin, Thomas Jefferson, it also gave him the advantage of understanding different levels of society. And you talked about Marshall being somebody who never forgot where he came from. So he grew up poor but was able to circulate among the upper classes in a way that allowed him to move, it seems, effortlessly between each sector.

JP: Right, and the irony of that was on one hand, Marshall as the leader of the Federalist Party in Virginia was representing the property of the elite. He was representing the people who were interested in finance and economic development and protecting their property rights, while Jefferson, as the leader of the Republican faction in Virginia, was supposedly representing the common man, and he envisioned a nation of yeomen farmers. But it was Jefferson who really lived the life of a European aristocrat, and it was Marshall who was much more comfortable with the give-and-take of politics, of ordinary politics. H really appreciated – loved – people. Jefferson may have loved humankind, but he didn’t particularly love people and did not have very many close friends, unlike Marshall. As I say in the book, Jefferson may have lived his life in poetry, but Marshall lived his life in prose.

JS: As you know, that was one of my favorite quotes, and one that I guess a lot of your readers have mentioned to you. Can you expand on that thought a little bit more?

JP: Yeah. You know, I think that Jefferson was a great philosopher, a great reader; he was a guy who liked abstract principles. But Marshall was a guy who really dealt with life as the personal experience of people, as a lawyer, as a judge. Both Marshall and Jefferson claimed to oppose slavery, though Jefferson in his politics actually did much to support slavery and to protect states’ rights, which really was the essence of the defense of slavery. Marshall, by contrast, was a guy who, as an attorney, stood up for protecting slaves. He took on many cases pro bono on behalf of slaves against their slaveholders. He was involved in the creation of the American Colonization Society, which was intended to provide a vehicle for slaves to return to Africa emancipated, and he was just in general a kinder and gentler person with regard to his own slaves. And of course he was not free from the taint of slavery because he was himself a slaveholder, he had as many as sixteen slaves at any one time in his household, but he had ten children and an invalid wife.

JS: So he needed the extra help.

JP: He needed help, and the labor pool in Richmond at the time was very limited. The population of Richmond grew from about 600 to 1000 by 1800, and about half the population were enslaved. So it would have been difficult – not impossible, I suppose, but difficult – to manage a household with that many children and an invalid wife in the absence of slaves. Marshall was, as I said, very humane towards his household slaves. That doesn’t excuse it, of course, that doesn’t deny the fact that he, like all the other white property men of his time, were in a sense tainted by the stain of slavery.

JS: Joel, much of the book is about the rivalry between Marshall and Thomas Jefferson. What was that all about?

JP: Well, Marshall and Thomas Jefferson, as I mentioned, were second cousins. The family fortune, which would have normally passed to Marshall’s mother through his maternal grandmother, had been basically taken over by Jefferson’s family in a very unusual way. So Jefferson grew up with a great deal of wealth and privilege while Marshall was growing up basically dirt poor in a log cabin on the western frontier of Virginia. And Marshall later married the daughter of Jefferson’s first love. In fact, Jefferson sold his law practice to Randolph, and Randolph then resold the law practice to John Marshall. So John Marshall, in a sense, took over Thomas Jefferson’s law practice, married the daughter of his first love, and became this rival for power in Virginia as the head of the Federalist Party. And Jefferson was very resentful that this sort of poor cousin from the frontiers with no education was somehow threatening his political fiefdom in Virginia. And, in fact, Marshall was a lot more popular than Jefferson was at one time. So that was the initial source of the rivalry. But when Jefferson was elected president, and there’s an opening in the Supreme Court for chief justice, John Adams, in the closing days of his administration, appoints Marshall. And that really inflames Jefferson, and Marshall then sort of becomes the last Federalist, the last man to resist Jefferson and the Republicans in their takeover of the government. And they really set out to literally impeach all of the Federalist judges in the federal judiciary. And Marshall essentially outwits them and prevents that from happening.

Later, when Jefferson accuses Aaron Burr, his vice president, of trying to provoke a war against Spain over Mexico and puts him on trial for treason, it’s Marshall who oversees the trial. And Marshall basically lets Aaron Burr off because the theory that Jefferson uses to try to convict Aaron Burr is a theory of constructive treason, which is a theory that came from ancient British law that would have allowed the king to try for treason anyone who criticized the king. And Marshall believed that that was prohibited by our First Amendment. So these two men were sort of locked in rivalry their entire lives, and that’s a rich source of material for the book.

JS: I think it’s clear from reading the book why you were so critical of Jefferson; he doesn’t come off as a very savory character. And in fact, in that 1807 treason trial of Burr, in which Marshall played such a significant role, let me just quote from the book where you say that Marshall “did more to secure free expression and prevent tyranny than any other court in our history”. And it’s striking that – correct me if I’m wrong – that Jefferson was willing to let Burr hang.

JB: That’s right, and in fact the irony of that is that if Marshall had, in fact, allowed Aaron Burr to be convicted for constructive treason and Aaron Burr had been hung, we would look back at Jefferson not as a great defender of civil liberties, but as a bloodthirsty tyrant. So in a sense, Marshall unwittingly salvaged Jefferson’s reputation.

JS: Before Marshall became chief justice, the Supreme Court had a relatively small docket and little authority. How did Marshall transform the court?

JB: That’s right. The Supreme Court was really insignificant in the original government. People did not want to be justices on the Supreme Court. It was a lousy job, it didn’t pay particularly well, you had to ride circuit around the country, literally on horseback, going around hearing cases in taverns and sleeping in inns with strangers. So nobody really wanted the job. The cases that came before the court were primarily cases concerning admiralty law; they were of no real significance. And they only had a handful of cases a year. What Marshall did was Marshall came on the court and said, you know, we’re basically threatened by those in Congress who wanted to impeach the court and basically politicize the court and deny the court’s authority. And he said, you know, in order to create more authority, a stronger voice for the court, it’s necessary that the court issues one opinion, preferably a unanimous opinion. So prior to that, the Supreme Court followed the British tradition, which was to issue decisions in seriatim, meaning that each justice would write their own decision, and there wasn’t opinion from the court. Marshall established the tradition unique to the United States of having the court issue one opinion, and during his time in office – thirty-four years in office, longer than any other chief justice – he participated in over 1100 decisions. About half of those decisions he wrote himself, and all but thirty-five of them were unanimous opinions, which was an unprecedented record; there’s nothing like that in Supreme Court history. But by speaking with one voice, by forging a close relationship with other justices, even justices of the Republican Party, he was able to really strengthen the position of the court and elevate it to a coequal branch of the federal government.

JS: Was he able to do that by power of intellect alone or his interpersonal skills among the other justices? What was the key for him to be able to achieve that?

JB: It was both. He was a very genial, a very likable fellow, unlike Jefferson. He was a guy that people wanted to go out and have a beer with. So he insisted that all the justices should live together in one rooming house, and they basically operated like a fraternity. They ate all their meals together, they lived together when the court was in session. And he was very playful, he encouraged a lot of drinking and storytelling, and he managed to seduce and cajole the other justices over to his side. The remarkable thing about that is by the time he left the court, he was the only Federalist left on the court. All the other justices had been appointed by Republican presidents who swore that they wanted to oppose Marshall and who wanted to appoint justices who would vote against Marshall, and all of those other justices ended up coming over to Marshall’s side. So it was a remarkable achievement and a measure of both his intellect and his personality.

JS: Achievements that of course reflected in domestic law, but can you talk a bit about the foundation of international law in U.S. courts – he had such a major role in structuring…

JB: Yes. My other hat is I teach international law at the University of California Hastings. And at that time, people in the United States didn’t really know what international law was. This book is really about Marshall operating in an environment without precedent, and so when cases – particularly about slaves and pirates and Indians – came before the court, and they didn’t know how to handle those cases, Marshall would invent some principle of law and he would attribute it to international law. Nobody knew anything about international laws; nobody was going to argue with him. And the irony of that is that those principles became embedded in our legal system, and so today, there are certain principles that Marshall laid down as international law that frankly have nothing to do with the international law in any other country in the world, but which explain why our system of international law is quite different from any other countries.

JS: You mentioned Indians and Native American decisions that Marshall had a role in. What were his views about…?

JB: So, Marshall has three very famous decisions with regard to Indian law, and these three decisions form the three pillars of Indian law today. He really established the idea of the tribal nations as sovereigns, as sovereigns under the sovereignty of the federal government. But it depended on the state governments to establish the rights of the Indians and to occupy and use their land free from interference by the states. He was really trying to protect the Indians, particularly from the Jacksonians, who obviously had very hostile views about the tribal nations. Unfortunately, he did not live long enough to prevent the infamous Trail of Tears when the Indians were exiled from Georgia by the federal government. But he tried to at least create the foundations for tribal nations in the future to protect themselves against the states.

JS: That would be, if I remember correctly, the Worcester v. Georgia case. Why did Jackson refuse to enforce that decision?

JB: Jackson did not have a great deal of respect for the Supreme Court, or the Constitution for that matter. He was quite hostile. There were also political forces that were spinning out of control at the time. I suppose, in Jackson’s defense, there was a genuine fear that Georgia would threaten secession from the Union unless they were able to take control over the lands which they had discovered contained gold. So the state of Georgia wanted to be able to exploit that land for themselves, and Jackson did not want to stand in their way. But Jackson, more generally, had a history of being an Indian fighter as someone who was responsible for the deaths of many, many tribal people.

JS: Joel, can we turn now to Marshall’s times as a diplomat? Your sections in the book about his arrival in Paris were so colorful and fascinating. And please, if you could, talk a little bit about his role in the XYZ Affair – which, by the way, I think should be a movie someday, for any producers or writers who are listening.

JB: I think that would be an excellent idea. That’s really one of my favorite parts of the book too, Jan, and in fact when I originally started out writing the book, it was really going to focus on the XYZ Affair, and my publisher liked it so much he insisted I had to write a full biography of Marshall. So what started out as a 300-page book turned into a 500-page book. But the XYZ affair occurred, for those people who don’t remember their eighth grade social studies class – France was not happy with the election of John Adams. They thought John Adams was anti-French. So the French began seizing US ships on the high seas as a kind of protest to the election of John Adams. And over a period of four months, they seized something like four hundred ships. So the US had to do something about this, and John Adams decided to send John Marshall and two other men to France to try to negotiate a settlement with the French revolutionary government and Foreign Minister Talleyrand. And Talleyrand, for people who aren’t familiar, is one of the most famously amoral, duplicitous figures in diplomacy, a fascinating, fascinating guy. And Marshall gets there, and the first thing Talleyrand says to him is, basically, “Before I’ll even begin to negotiate with you, you have to pay a loan of four hundred million dollars” – the equivalent of $400m dollars today – “to the French government, to finance our wars against Britain. And we also – in addition to that, I want a six million dollar bribe for my own pocket.” And Marshall refuses to countenance either of these payments. So for the next nine months, they remain deadlocked in France. And Talleyrand sends an army of spies and secret agents to threaten, cajole, and spy on Marshall and his compatriots. A lot of the story is a spy story, a story of treachery and betrayal, and it’s a lot of fun. It’s a lot of fun to write.

JS: And in keeping with your theme of international intrigue that we saw in your previous book, Unlikely Allies: How a Merchant, a Playwright, and a Spy Saved the American Revolution. And I understand that you’ve turned Unlikely Allies into a musical. Can you talk about that?

JP: Sure. Unlikely Allies was a great success, and I was approached by some people who wanted to turn it into a musical, and basically I said, “Well, who’s going to write the lyrics?” And they said, “You are.” So having no other musical education apart from one semester in Professor Mishkin’s class, which some of your listeners may remember – the music listening class that Professor Mishkin used to teach - I wrote all the music for the show, and we’re hoping to begin workshopping it in New York this summer.

JS: Any theatrical plans for Without Precedent? Let me just add how excited you must’ve been to receive a note from none other than Lin-Manuel Miranda. If anybody could turn Without Precedent into a musical, it would be he.

JP: Well, I hope he’s listening.

JS: I’m sure he’s listening. Joel, you know, both Unlikely Allies and your newest book, Without Precedent, describe the great statesmen of our past in pretty unflattering ways. They definitely weren’t saints, according to your writing. Do you think you’re being disrespectful of these American heroes in any way?

JP: Well, what I hope my show – part of my intention is to challenge the ideas we have about the past and about American exceptionalism. I think that the politics in John Marshall’s time were no less polarized, more difficult, than they are today. I think that the founders of our nation were no less human than the politicians we have today. And, to me, it’s a little bit hopeful knowing that despite all the challenges that the Founding Fathers faced at the beginning of our republic, despite their own human failings, that they were somehow able to muddle through. And it gives me the hope that maybe, despite very great difficulties we’re facing today, that some of our politicians could maybe rise to the moment and do the right thing.

JS: So Marshall was practicing a kind of bipartisanship before that term even came into common use.

JP: Right. Marshall, to me, is really the model of what a statesman should be. He’s a moderate, he’s a pragmatist, he’s a gradualist. He’s someone who really worked very hard to reach across the aisle. He was, in my words, a progressive conservative, since he was conservative in the sense that he wanted to preserve property rights, but he was progressive in the sense that he really believed in urbanization and industrialization and finance and economic progress for the country, something which was opposed by Republicans at the time. He believed in trade, he believed in international relations, he believed in the rights of the Indians and slaves and the aliens, and he had a much more tolerant and open-minded view of the world than many of his critics.

JS: How do you think your experience at Amherst contributed to your career as a writer and legal scholar?

JP: Well, I’m so grateful to Amherst for teaching me how to write and to do research. I was very privileged to work with Bill Taubman and Gordon Levin on my thesis at Amherst, and they gave me many, many hours of their time helping me to improve my writing and my research, and I think that was really an important experience. I was also privileged to study with Henry Steele Commager in his freshman seminar, who really inspired a love of the Founding Fathers and the beginning of our republic. Probably the most influential person for me was Bob Gross – Robert Gross, many of your listeners will remember, taught a class called The American Revolution. That class really gave me tremendous insight into the American Revolution, and Bob has continued to be a great friend, and someone who has helped me over the years. I’m very much indebted to him and to Amherst.

JS: Thinking about writing the book, in what ways is the book you ended up writing different from the one you set out to write?

JP: Well, as I said, the book that I set out to write was really going to focus more on international law and diplomacy and his time in Paris – the XYZ affair – I saw it as a natural sequel to the book I’d written earlier, Unlikely Allies, about Silas Deane’s secret mission to France to try to persuade the French king to arm the Americans against the British and win the American Revolution. And it just sort of grew over time, first because I became more and more entranced with this man reading all of his manuscripts and letters and opinions, and also because people who were reading my manuscript loved what I was saying and my approach and felt that it was time for a new biography of John Marshall that would sort of fill out more who he was as a man, a diplomat, and a statesman.

JS: If you were to write a book today about a Supreme Court justice, who would that be? Who would be the subject of your next book?

JP: Right. Well, I am working on a new book - and not about a Supreme Court justice – about Daniel Webster and his time as secretary of state. But the justice who I most admire after John Marshall would have to be Robert Jackson. Robert Jackson was a justice appointed by Franklin Roosevelt, and he was also the man who, among other things, was appointed the chief justice at Nuremburg. So he had a tremendous influence on the development of international law as well as on American civil liberties. For some reason, he hasn’t been the subject of a major biography yet, and he really deserves one.

JS: I think I’ve run out of my questions, Joel. Anything else I should ask you?

JP: No, I just want to say thank you, Jan, for your taking the time, and also thank you to Amherst for giving this opportunity to me and to other writers to reach our fellow alumni. It says a lot about the college and its continuing commitment to its alumni as well as to its students.

JS: Joel, I want to thank you for your time today. Your book is an incredible read; the Wall Street Journal last week gave it one of the most glowing reviews I’ve ever read about any book. Just to take a quote from the review concerning Marshall, “His lasting achievements are ably served by Mr. Paul’s ?? and penetrating biography. And I think anybody who read the book would agree with that. Thank you so much, Joel.

JP: Thank you.