The power to decide the case in a, in a
judgement, Res judicata, to lay down precedent of a certain weight.
Finally, the power to remedy a violation of rights.
Sometimes the Constitution, often the Constitution will
say you may not do this, but
it doesn't say what happens if government does do what its not supposed to do.
John Marshall, building on Blackstone, basically said
it's a, you know, ours is a system
of, a rule of law, and the rule of law
means that of every right there should be a remedy.
And Blackstone had said this as well, and for
him, it was like obvious, in the first principle in
the same way, that it was obvious to him that
a person couldn't be a judge in his own case.
These are basic albeit, unwritten principles
that that framed the entire Constitutional project.
We, we encountered earlier, Blackstone saying judges, peo,
persons can't be judges in their own case.
Now, we're talking about another Blackstonian precept that
John Marshall in a case called Marbury versus Madison,
featured front and center, that for every right,
there should be a legal remedy in a court.
That the power of, the judicial power, encompasses not merely the power
to say what the law is, but to remedy violations of law.
So now, let's take those five components and apply them to a couple
of a few of the case studies that we, we just canvassed involving the
Warren court.
The power, remember, these components of interpretation and
implementation and Res judicata and Stare decisis and remediation.
So let's take Brown versus Board of Education.
As a case about the meaning of the
Constitution, you might think Brown is just crystal clear.
The Constitution says equal, segregation wasn't really.
in fact.
equal.
Equal means equal, there's no textual exceptions
saying equal means equal except when it
comes to segregation, or except when it comes to schools or whatever, or buses.
Equal means equal, this ain't equal, next case, pure interpretation.
Okay, so far that's um; uh; um; good, but here's where
Brown, Brown said two other things. It said that um;
it implied in the field of education.
And so it said, equality, equality, equality,
but it also said education, education, education,
and apparently didn't, it, we did that
Brown over-ruled Plessy, it actually didn't say so.
It said, Plessy was a transportation case; this is a case involving education.
We hold that in the field of education.
Separate but equal has no place, so what's up with that?
If equal means equal, why did they somehow say in the field of education?
And why did they say separate is inherently unequal?