[SOUND] In part two of the lecture I want to focus on the federal judicial power. The authority of the federal courts to review the constitutionality of executive and legislative actions. It's interesting that if you look at the text of the Constitution, it nowhere mentions the power of federal courts to declare unconstitutional, legislative or executive actions. No court in England ever has had the power to declare laws unconstitutional. The English courts back in 1787 didn't have that power. The English courts today don't have that power, parliament is sovereign. One would think that if the framers wanted to give the federal courts this authority they would have said so in the text of the constitution. But the constitution is silent. Perhaps it's silent because the framers assumed it's a power that exists. Perhaps silent because the framers assumed it was a power that didn't exist. Silence is inherently ambiguous. But in 1803, in Marbury v Madison, the Supreme Court created the authority for judicial review. The power of the courts declare unconstitutional, executive and legislative actions. Of course it was quickly carried over to say, that the federal courts can declare unconstitutional, state and local action as well. Before I talk about Marbury v Madison and its crucial role in American history. I want to pause to speak about why the power of judicial review matters so much. I often in teaching constitutional law, both to undergraduates and to law students, would have them read for the first class a description of the Life in the Gulags written by. And I have them read a copy of the Soviet Constitution and a copy of the United States Constitution. They were always shocked to see that the Soviet Constitution had a far more elaborate statement of individual liberties then the United States Constitution. And then I would ask them the questions, well how could it be, for what describe, under a Constitution? This is elaborate statement of individual rights, in a key part of the answer is, that in the former Soviet Union, no court ever had the power to declare unconstitutional, a government action. Whereas in the United States, the federal courts do have the power to declare unconstitutional, actions of an executive or actions of a legislature. I had the wonderful experience in 1992 of being part of a small American delegation to go help the country of Belarus, write it's new constitution. I went with a federal judge, a justice with state supreme court, and another law professor, and we went to Minsk. This was after the fall of the Soviet Union. It was when Belarus and other former Soviet countries were newly independent states. And we spent over a week in Minsk with them. And over the time we were there, increasingly came to emphasize, was the importance of putting into the constitution a power of judicial review. A power of their courts to strike down legislative and executive actions, because what's the meaning of the words on paper if they can't be enforced? Interestingly Belarus chose not to go in that direction. They in fact created provisions that would allow for the government to suspend the Constitution, that may always seem inconsistent with the constitution. And it shouldn't be a surprise that Belarus, became the first of the former Soviet countries, to go back to communism, and back to repression. So the power of judicial review is integral to the Constitution itself. It's what keeps it from being mere words. And yet as I said, the authority of judicial review comes not from the text of the Constitution, not from the discussion of the framers in Philadelphia in 1787, but from a single Supreme Court case, Marbury v Madison. Without question, Marbury versus Madison is the most important Supreme Court case in American history. I also think it's the most brilliant Supreme Court decision ever written. The story of Marbury v Madison begins in the very contested election of 1800. There were four candidates for President. One of them was the incumbent president, the federalist John Adams. It was clear that no candidate was going to be able to get a majority of the popular vote, and none was going to be able to get a majority in the Electoral College. This is the only election that had to be resolved in the House of Representatives, which breaks ties when there was one in the Electorial College. It was apparent though, that the loser was going to be John Adams, the incumbent president. This obviously was the first time in American history that an incumbent was voted out of office. George Washington had been elected to a second term and then chose not to run for a third. Adams, his successor, when Adams ran for a second term, he was defeated. And so ultimately it came down in the House of Representatives to a choice between Thomas Jefferson and Aaron Burr. And Thomas Jefferson became president. Now we today assume that when someone is voted out of office, they will leave and voluntarily turn over power. So often in world history that hasn't been the case. So often when somebody loses an election, they decide they're not going to leave office. But John Adams set the tradition, that when somebody loses election, they leave, and get ready for the next president. But Adams and his party, the federalists that controlled the congress were not going to go gently into the future. Instead they decided they were going to try to keep some control over government, especially the judiciary. At this time the new president was inaugurated on March fourth. So Jefferson was inaugurated as President on March fourth of 1801. In the middle of February, Congress passed a law to create permanent Federal Court of Appeals judgeships. Under the Judiciary Act of 1789, there was Supreme Court Justices, and then there were Federal District Court judges. When a case was appealed to the Federal Court of Appeals, the appellate judges would be drawn from the District Court judges, and from the Supreme court justices, who would hear the appeal. In fact, at this time it was said that the Supreme Court justices would ride circuit all over the country to hear the appeals as the Intermediate Court of Appeals. At the time the Constitution was written, the country was divided into five areas, five Circuits. And they were called the United States Court of Appeals for the first Circuit, the Second Circuit, the Third Circuit, the Fourth Circuit, the Fifth Circuit. And there[s one justice for each, and there were five Supreme Court justices. As the country expanded, then there was another circuit added and another justice. And as the country expanded more, a sixth and another justice. And by the time you get to the late 1860s, there were ten areas of the country, ten circuits, with a Supreme Court justice responsible for each. Andrew Johnson was the president after Abraham Lincoln's assassination. He was a terribly unpopular president. He was a southerner from Tennessee, who was asked to preside over the north's victory in the Civil War and over reconstruction. And in fact, the House of Representatives impeached him, he came one vote short of removing him in the Senate. Congress did not want Andrew Johnson To be appointing Justices to the Supreme Court. So Congress passed a law that said as soon as there is a next vacancy the number of Supreme Court Justices would go from ten to nine. Ans it's been nine Justices ever since. And it is of course nine justices today. But there's nothing in the Constitution about the number of justices. The phrase riding circuit took hold, and to this day we call the Federal Courts of Appeals, the United States Court of appeals for the First Circuit, the Second Circuit, the Third Circuit, the Fourth Circuit and so on. Altogether there are 11 geographic circuits, 1 through 11. There's the United States Court of Appeals for the District of Columbia Circuit for DC, and the United States Court of Appeals for the Federal Circuit that hears specialized cases, especially patent cases and claims against the United States. We'll go back to the story of mid February of 1801. Congress for the first time created positions for permanent judgeships on the Federal Courts of Appeals, no longer just be Supreme Court justices and district judges. But Congress was not done. At the very end of February, Congress passed a law that created a number of lower court judgeships, like justice of the peace possessions. And very quickly the outgoing president, John Adams, sent names to Congress, and to the Senate because any Federal Judge has to approve by the Senate. And the senate approved these names. And at this point John Adams had his Secretary of State, a man by the name of John Marshall, affixed the seal of the United States to the commissions for these judges. And Marshall, and his brother James, went out to deliver the commissions to these individuals, on March 3rd of 1801, the day before the new President was to be inaugurated. Well lo and behold, they couldn't find four of the individuals who had been approved by the Senate to be judges, who's commissions had been signed, and stamped. But they had not been delivered. And one of these was a man by the name of William Marbury. And being a judge is a good job. It was a good job then and a good job now. And Marbury really wanted to be a judge. Well Jefferson takes office on March 4th of 1801. And he has a new secretary of state, James Madison, later president of the United States. And Madison sees these four pieces of paper for judgeships that hadn't been delivered. And he asks the president, what should I do with them? And the president points at the trash can, and Madison refused to deliver the commissions to these four individuals. And one of them I've already mentioned, William Marbury files a lawsuit. And he files a lawsuit against James Madison to ask Madison, indeed to order Madison, to deliver the commission. What Marbury files was technically called a request For a Writ of Mandamus. Writ of Mandamus is a phrase that comes to the United States English law. It's, simply, an order to a government official to perform a duty. And Marbury says that he wants a court order to force Madison to deliver the commission, so Marbury can take his position as a judge. Marbury does something very unusual. He files his lawsuit right in the United States Supreme Court. Now we generally today, wouldn't think of filing a lawsuit right in the United States Supreme Court. We start in a state court. We file in the state trial court. We start in federal court. We file in the federal trial court. But Marbury files his lawsuit right in the United States Supreme Court. Why does he do so? Well, in part it's because at this point, the Chief Justice of the United States is a man named John Marshall. Now remember, John Marshall was the Secretary of State for Adams who signed the commission to Marbury and affixed the seal of the United States. John Marshall, in February of 1801, was simultaneously serving as Secretary of State and as Chief Justice of the United States, hard to imagine that today. Hard to imagine today that somebody would simultaneously occupy both roles. How did this come to be? Well, John Jay was the first President of the United States. When he resigned, Oliver Ellsworth became the second Chief Justice of the United States. When he resigned Adams went back to Jay and said, how would you like to be Chief Justice again? And Jay said, no way the Supreme Court is a powerless institution, will always be a powerless institution. I want nothing to do with United States Supreme Court. According to David McCulloch, and his magnificent biography of John Adams, Adams in a matter of fact, off hand way, said to John Marshall, how'd you like to be Chief Justice of the United States? And Marshall agreed, Marshall was nominated and confirmed by the Senate. But this was nearing the end of the Adams presidency. Marshall didn't see a need to stop being Secretary of State. So in February of 1801, when Marshall affixed the Seal of the United States to Marbury's commission, Marshall was also the Chief Justice of the United States. And it was Marshall and his brother responsible for delivering the commissions. So therefore Marbury thought he had a very receptive audience, going before John Marshall. Also, all of the Supreme Court justices at the time were Federalists, were approved, appointed to the court by Washington and Adams. And so Marbury thought, that court would be much more sympathetic to him a Federalist, and less sympathetic to Jefferson and to Madison. And so he wanted to go before the Supreme Court. And Marbury thought that there's a provision of the Judiciary Act of 1789, that authorized the Supreme Court to hear his case filed right, initially in the United States Supreme Court. So Marbury files his lawsuit in the United States Supreme Court. He's seeking a written mandamus in order to force James Madison to give him his commission, his judgeship. Congress then abolishes the 1802 term of the Supreme Court. That's right, Congress passed a law that says that the Supreme Court cannot meet in the year of 1802. If you look on the shelves of the library, there are no volumes that have the decisions from 1802. Could you imagine today, Congress passing a law that says that the Supreme Court can't meet and decide cases for a year? It would be unthinkable, we all know the court would declare it unconstitutional. But Congress did just that. So never in the year 1802 did the Supreme Court meet or hear and decide cases. It's not until 1803, two years into the Jefferson presidency, that the Supreme Court hears the case of Marbury v Madison.