Welcome back. We're in the middle of a discussion of Article III of the constitution, the Judiciary article, and we've been talking about something that modern people refer to as judicial review. The power and indeed the duty of judges to refuse to enforce laws that they in their independent judgement deem unconstitutional. Even though those laws have been passed by the House of Representatives and the Senate, signed by a President or passed over Presidents veto. Even though these laws have been duly enacted in a procedural sense, judges have the power and indeed the duty to, to refuse to enforce those laws if they deem them unconstitutional. We call that judicial review. It's not something that's explicitly in the Constitution in so many words, but I think it's a deep part of the Constitution's overall text, read holistically, and structure. The argument is not that because there's a thing called the Supreme Court in the Constitution, the supreme law that judges on the Supreme Court have some unique power. The ju-, the Justices on the Supreme Court are generally supreme over the other judges. There's a kind of a, a judicial pyramid. Supreme Court justices can overturn courts of appeals and below them trial courts but, the Supreme Court is not really supreme over the other branches, just over the other courts. And this power of, of holding something refu-, unconstitutional, of refusing to give effect for something that you think is unconstitutional, is not limited to sup-, the Supreme Court. It's true of all other federal judges, it's true of state judges. We're going to see, to some extent, that at the founding, people thought it was true of jurors. The power to refuse to give effect to some, something that you deem unconstitutional is, is a power, as we've seen, shared in some ways by other branches of government as well. The House can just say no and refuse to vote for a law it thinks is unconstitutional, even if it knows the courts would uphold it or have upheld a very similar law. So too would the Senate. Presidents can veto laws that say, that they believe are unconstitutional. Call that even if courts would uphold those laws or have upheld them. Think of Andrew Jackson refusing to sign a new bank bill even after John Marshall's Supreme Court had, had upheld the constitutionality of the Federal Bank in McCullough vs Maryland. Presidents can even refuse to enforce certain bills that they think are unconstitutional, at least until a court case materializes. There's a kind of executive review in the Constitution alongside judicial review. and, remember Presidents are made independent of the Legislature too. They're not picked just by the ordinarily, just by, by the, the Legislature. They're picked to the independent Electoral College system. They have undiminishable salary and indeed their salary can't be increased either. Judges can be increased, so they're vulnerable to possible congressional bribery, but presidential salaries within a four-year term can be neither increased or decreased. They've got a term of office independent of the Legislature, four years rather than for life. But there is a thing called executive review really along side judicial review. Remember that Thomas Jefferson is going to pardon everyone that he that has been convicted under a sedition act even after Supreme Court justices writing circuit have upheld this judicial act against constitutional challenge. So the basic argument for what we call judicial review is not necessarily something unique about the judiciary, it simply follows from, from two basic facts. One, the constitution is the supreme law of the land. It trumps an ordinary statute, whether congressional statute or state statute. Why is it the supreme law of the land? because it comes more authentically from the people, it's a more democratic law than a law passed by an ordinary Congress. So, the Constitution and its amendments come more directly from the people. Amendments are much more difficult to adopt than ordinary statutes. And so, because an amendment was hard to adopt, it should be hard to change, an ordinary statute should not suffice to, in affect, undo an amendment that required 2 3rds of the House, 2 3rds of the Senate, 3 4ths of the states. A much broader process generated the constitution itself and its amendments and so ordinary statutes actually rank lower in their democratic pedigree. The Constitution is the supreme law of the land. That's the first step and the second step is judges enforce law. Judges are supposed to follow law. And if the constitution is inconsistent with the statute, they're supposed to follow the Constitution. In the same way that if a valid federal law is inconsistent with a state statute they're supposed to follow the valid federal law, because the supremacy clause actually in, of the Constitution, which we'll talk about in later lectures. It's in Article VI. It says the Constitution is the supreme law, and then congressional statues, but only ones that are consistent with the Constitution in pursuance of the Constitution. And then below that, state constitutions and state statutes and so on. And that's the democratic hierarchy of law, and judicial review is basically just a recognition of the supremacy of the Constitution as the supreme law of the land, and the fact that judges are supposed to enforce law. Now that's the basic argument of the Federalist No. 78 in support of what we call judicial review. It's a basic argument that you see in an opinion by John Marshall in 1803 for the court called Marbury v. Madison. But exactly how robust a conception a of judicial review did the Framers envision? I suggest at the founding, it was rather modest. Here are a few reason for thinking so. First, remember that the Constitution doesn't specify the size of the Supreme Court. Now, if the supreme court was going to be invalidating acts of Congress, right and left it was going to be as important as say as the President and the veto process or something, you'd think that the Framers would have specified much more how many justices there would be. In the same way that they, there was a lot of wrangling about the apportionment of the House of Representatives, apportionment of the Senate, how the Electoral College was to be structured. If the Supreme Court was basically an organ of national power that was designed to make sure that the states complied with the Constitution then you could imagine the fr-, the Framers actually were going to leave to Congress a lot of power over the size and shape of, of the court. so, in the same way that Congress would decide how to structure a post office, how to structure the Treasury Department, Congress could structure the judiciary as an organ of national power to monitor the states. And by the way that idea of monitoring, of the judicial monitoring the states is an idea that went back to the colonial era. When colonists passed laws in their assemblies judges in privy counsel could judges and other officials o the central government could invalidate Congressional excuse me colonial laws. And, and the Framers of the Constitution thought that the state legislatures actually sort of needed a little bit of checking and monitoring. A little bit of oversight from the new central government that they were trying to create. They were trying to create, in effect, that little bit of a substitute for the review of colonial statutes embodied in, in the privy council. And, indeed, early on John Marshall's court strikes down lots and lots of state laws. He's, he's siding with the federal government, his, he and his Supreme Court. John Marshall, invalidating state laws as violative of federal statutes and the federal Constitution. So lots of invalidations of state laws. Basically on Marshall's watch only one invalidation of a congressional statute, that's in Marbury v. Madison. I think that's consistent with the idea that the Supreme Court's size isn't specified. Now by the way, precisely because its size isn't specified, it's a portion that rules, it's going to be vulnerable eventually to a pro-slavery tilt are because of the 3 5ths clause, the Congress tilts towards the South. Because of the 3 5ths clause, the Presidency tilts towards the South. Pro-slavery Presidents like Andrew Jackson eventually become sort of dominant and they can appoint pro-slavery judges and they can sign into law pro-slavery apportionment rules. By the time of the Dred Scott case in the 1850s, the Supreme Court is apportioned, but even though the slave holding south has less than a third of America's free population, it has more than the, it has a majority on the Supreme Court, so it's kind of malapportioned. And, and that's going to create some problems, that when that malapportioned court gives us the Dred Scott case. The original Supreme Court had six members, an even number. How odd. Because you see if it's supposed to be deciding all the important constitutional issues, you would imagine that you'd want an odd number so that four could be three or five could, could trump four, but originally it's six. That's another sign that they're not imagining, the Framers are, the Supreme Court as a kind of massive force it's become in American history. Here's another little clue. When Presidents veto bills, they are supposed to actually give a written statement of reasons for vetoing the bill, send a message back to Congress, and the Constitution prescribes all of that. And many of the early veto messages are, are in fact based on constitutional objections, as we talked about in earlier lectures. About half of the early vetoes, roughly two dozen out of 50 say in the antebellum, in the Pre-Civil War period, roughly half of them are constitutional vetoes and the Constitution is imagining, the Framers were imagining the veto as an important mechanism of constitutional oversight. A check and balance of the legislature, but judicial opinions not so much. There's nothing in the written Constitution that says that judicial opinions even have to be written in the way that the veto messages. There's nothing that says there has to be an opinion of the court and indeed, before John Marshall comes along, there isn't actually an opinion of the court as such. Individual justices kind of give their opinions from the bench randomly and sometimes there's someone to write it down, not always the, the, their opinions, so are not collective, they're not immediately published. John Marshall is going to change all of that. But that's yet another signal that early ju-, that, that the Framers did not quite imagine judicial review to be as robust as it becomes. In all of Marshall's time on the court, he strikes down one federal statute. It's in a case called, Marbury v. Madison. He strikes down lots of state statutes, but only one federal statute. And that federal statute is regulating the judiciary itself the flaw in the statute, as Marshall saw it, was that the statute improperly expanded the original jurisdiction of the Supreme Court, giving them cases to hear at trial that they should instead have been hearing on appeal. So a very technical issue involving the judiciary itself. That's, the only time before 1850 that the Supreme Court invalidates an act of Congress even though, it's invalidating lots and lots of state laws, as I said. And even though Presidents are vetoing all sorts of bills on constitutional grounds, and they're vetoing bills that courts have upheld or would uphold. See, for example Jackson's veto of the bank. Presidents are pardoning people that courts have actually said don't have a good defense. Thomas Jefferson's pardon of people who were accused of violating the sedition act. So if all of that is so, the judiciary originally is sort of more a branch of the central government monitoring states, making sure that states comply with the Constitution, and with valid federal laws, by the way that's McCulloch v. Maryland. Upholding a congressional scheme and invalidating federal bank, a state effort to tax that bank and undo it, so that's paradigmatic of the Martial Court. John Martial, a former congress person himself, siding with Congress against the states, and in so doing kind of carrying forward a theme from the Colonial experience of, of, of members of the central government monitoring local compliance with Empire-wide, continent-wide rules. So, if, if that's early style judicial review with only one important invalidation of an act of Congress by the Supreme Court, and that enact involves the judiciary itself, how is it... And by the way state courts in the early Revolutionary Period had exercised judicial review ag-, by invalidating state statutes, which are seen as violating, that were seen as violating state constitutions. But most of those early examples of state style judicial review involved judiciary specific laws, laws about juries for example. So how is it then you might ask that this founding judiciary, the least dangerous branch, third out of three, pretty modest doesn't get to pick it's own subordinates? Supreme Court Justices can't pick lower court judges. Doesn't get to pick his own leaders. Justices can't pick the, the chief justice doesn't get to some absolute right to regulate his own procedures or evidence. It's, it's shape can be manipulated by Congress. You, Congress can add to it, or subtract from the size of the justices if they don't like the, the rulings of the current justices. If all of that is so, how is it that the judiciary has become much more powerful over time? Supreme in some sense arguably. Even over other branches, or at least some supreme court justices think that, and ordinary people think that, that there's a unique power and duty of courts and among them, the Supreme Court, and court judges more than juries to say what the law is and enforce the Constitution. Well, I think a few factors are at play. And let's just talk about them and their post-founding factors. One, a lot more judges today. At the founding, there are only 15 lower court judges. And there, there soon become 105 or so members of the House of Representatives. Seven congresspeople for every, seven representatives for every judge. Today there are about two federal judges for every member of the House of Representatives. That’s a a 15-fold increase in the, the ratio of judges to members of Congress. Today lawyers, young lawyers are much more likely to start their careers clerking for a judge than interning for a member of Congress. So one thing, the judiciaries become powerful just because there are a lot more of them. You know, the old joke, friends come and go, but enemies accumulate. Well, judges accumulate. And the Supreme Court sits atop this even increasing pyramid where we have more laws, more complex laws, we meed mor-, need more judges to implement them. A huge, judicial pyramid, with all with radiating power in various districts. You may be more likely to know a Federal Judge than than your own member of the House of Representatives. Congress can't expand infinitely. Congress has about 500 people now, 435 in the house. If it were 4,000, it would be even more dysfunctional than at 400. And if it were 40,000, you know all the more. Judges you can keep expanding that pyramid. So that's one thing that happened. Second thing that happened is judges got control over their docket. A thing called certiorari, the justices could decide which cases that were going to here, and, and that gives them the power, the effect to define a kind of legislative agenda. In the early period, almost all the important issues, actually, are resolved outside the judiciary. Should there should there, can Presidents fire cabinet officers at will? Can the federal government assume state war debts? Is a bank of the United States Constitution. And that doesn't reach the Supreme Court until 30 years after the founding debates about all of this. Can Presidents negotiate treaties secretly? Can they issue neutrality proclamations? Is the Sedition Act unconstitutional? Issue after issue after issue the, the big ones don't come before the Supreme Court. On the Sedition Act for example, the Supreme Court doesn't have, as such, appellate jurisdiction over all federal criminal cases. And it only gets that late in the 19th Century. Justices are riding circuit and and deciding cases individually, but not quite as a Supreme Court. So, more judges, that's one answer. Second they have, they get to hear more cases, these restrictions on their jurisdiction are gradually, gradually fall away, they have more, the Supreme Court has more control over its docket. It now sits atop a huge pyramid of, of federal judges so all, all who can be seen as just so many lieutenants enforcing Supreme Court mandates. We have a series of amendments that are designed with judicial review in mind. To, to create judicially enforceable rights. Especially after the Civil War. Rights against states and the federal government. And the courts were very vigilant in enforcing rights against states, as we've seen. That's going to be the story of the reconstruction amendments. We have the emergence of divided government in the 20th century. So, when the Congress is controlled by different party than the President they are at loggerheads, and so courts can do lots more stuff, and no matter what they do they're not going to get invalidated because either the President will like it, or the Congress will like it. And either the president or the Congress can stop any law that would try to retaliate against the justices, or overturn their controversial decision. So in a world of unified government, where the House, the Senate, and the Presidency, are all dominated by the same party, judges have less ability to sort of smack down political actions. Because they can, in turn, be retaliated against by a unified House, Senate, Presidency, but in the modern era, we don't have that so much. We have post-Watergate and Vietnam, a sense that our political branches have lied to us. And the courts actually have been part of the, the solution, the, the Nixon tapes case, the Pentagon papers case. So Presidents are seen now as partisan officials and that wasn't true of George Washington. Whereas justices have positioned themselves as, as sort of more above party. Whether that's true or not that's actually the, the, the, the persona. so, so a whole bunch of reasons, I think, why judges today are much more powerful than before and many, many more acts of judicial review. In the modern era the Supreme Court, about twice a year, is invalidating, three times a year, is invalidating Act of Congress. The entire period, before 1850, there was one invalidation of an act of congress, that's called Marbury v. Madison, it was a judiciary specific law. So so today, as I said, in the modern era the court every year is, is as robust against Congress or more than in the entire period before 1850. So we've talked a bit about judges. Let me tell you a couple more things about Article III. It gives judges power to hear all federal cases, and it's not at all clear that Congress can take that power away from federal courts. It may be able to reallocate, give power to one federal court or another court, but Congress is limited in its ability to take away all federal cases of a certain sort from the federal judiciary. So said John Marshall's court in an important case called Martin v. Hunter's Lessee. And let me just say a word or two, about juries and then I'm going to come back to the picture of John Marshall. I've been talking about judges a lot, cause today, judges are the main event. When we say Article III, we think judges, but for the Framers juries were a lower house of a bicameral judiciary. They were an important part of the process. They are mentioned in Article III. Criminal cases have to be tried under a jury in Article III. The anti-federalists said that's not enough, we want more protections for juries. What about civil juries, you're not specifying that the jury for example has to come from a certain district or, or vicinage so we need more protections for juries than you are recognizing. Even Marbury v. Madison, by the way, can be thought of as involving jury rights. Why would not want the original jurisdiction of the Supreme Court to be expanded? Because the Supreme Court's going to be sitting in Washington, DC and and if it gets to hear a case, then a local jury isn't participating. But if instead the Supreme Court doesn't hear the case and some other lower federal court hears it in the hinterlands, there's going to be a local jury involved. So, the whole debate about the Bill of Rights in the ratification process, when that, when critics say hey, you forgot the rights, is precipitated in part by a criticism of Article III. Saying you know, it mentions juries but not robustly enough. Not civil juries, not enough protection for jurors. It mentions criminal procedure, it says an impeachment. Excuse me, in for treason it says that things have to happen in open court and there have to be two witnesses to a treason. But what about all the other rights of, of criminal defendants? What about rights of council, and against double jeopardy, and the right not to be compelled to incriminate yourself? And so on. It says treason can only will consist only of levying war against the United States. Its kind of a protection therefor of free speech. You can't be prosecuted for treason merely for criticizing the government, but you did say that explicitly. Why isn't there more protection of free speech and free expression? So, this treason clause which can be seen as a kind of proto Bill of Rights, the jury provisions of Article III, which can be seen of as a seed crystal of a Bill of Rights precipitated conversation saying, you know we need a lot more rights and, and that's going to lead to a Bill of Rights. So Article III is in some ways a gateway to the early amendments. Now before I conclude, I just wanted to come back, because I promised I would, to this picture that, that's begins chapter six of of America's Constitutional: A Biography. Every chapter begins with a picture, and if you understand the picture, you'll understand election. This is John Marshall, he is the great early Chief Justice, and before he comes along the Supreme Court actually is practically impotent. And he makes it, the Supreme Court. After Marshall the Justices are going to speak actually with an opinion of the Court, which the constitution doesn't require, and they're going to issue written opinions which the constitution doesn't require. So his kind of counterpart to the President's veto message. And he is going to invalidate all sorts of state laws that are inconsistent with the federal scheme. But he's not going to pick too many fights with congress, because he's going to lose that. His branch isn't as powerful. It is the least dangerous to begin with. He's himself a former congressperson, a former diplomat, very popular, and he helps establish judicial review in Marbury v. Madison, but he doesn't push it too far. In general he's, his court is going to be upholding federal exercises of power, like the federal bank, and invalidating state laws that interfere with that. He is going to give us the idea of a modern Supreme Court. He's going to stick around for a very long time, showing you that life tenure, this good behavior, means something. Before him Chief Justices left early. They didn't have to, but they chose to leave early. So just as Washington establishes a tradition, that the presidency, although he can be re-elected again and again, Presidency should end after two terms, so kind of a gloss on Article II. Marshall establishes a gloss on Article III. No life tenure means that judges shouldn't leave early. They should stick around to the end. So, in earlier lectures, I said well, if you understand George Washington, you see a lot about the early presidency. If you understand Andrew Jackson, you see what the presidency became. If you see Henry Clay, you see congress as a great speechifying body. So, three, three big themes about the constitution have emerged early on. And if you see John Marshall, he embodies the, the power of the early of the supreme court, that, that, that he helps actualize. It's not as clear in the text, but he makes it real. What are the three big themes of our story so far? The constitution is more democratic than we've been told, more pro-slavery than we've been told, and more about national security. Who's John Marshall? He's a very before he was on the Supreme Court, he's a very popular politician. A man of the people. Probably the most popular member of his party, the Federalist Party in America. Especially after Hamilton's death. So a former politician, becoming a judge. So you see its sort writing for ordinary people, writing opinions that ordinary people can understand, so a master practitioner of a kind of of, of, of democratic politics. He's from Virginia. A slave holding regime and but he's a critic of slavery. And we're going to come back to that in, in a minute. he, he doesn't think that slavery is this great thing, and in that way he's like Washington, like Thomas Jefferson, who's his cousin by the way. He's also one of America's leading diplomats. He understands national security. He comes to national prominence in part as a diplomat in France. And he is a hero of the American Revolution. He's there with George Washington, he's there at Valley Forge. He writes famous opinions upholding nation security powers of the federal government, a national bank. So democracy, slavery, national security all embodied in the person of John Marshall. Now, just as George Washington, who was a slaveholder but who frees his slaves and thinks slavery is basically going to to be the death of the republic. It ultimately succeeded by Andrew Jackson, who was much more pro-slavery and, in fact at least as a constitutional matter and will support the slave power. So John Marshall is going to be succeeded by Roger Taney, whose constitutional vision is much more pro-slavery. Who puts Taney on the court? Andrew Jackson. How does Andrew Jackson become President? The 3 5ths clause. So, Marshall is a Virginian who is a critic of slavery, doesn't want this to be a slave-holding republic forever. He is succeeded, though, by Taney, whose Constitutional vision is much more enthusiastically pro-slavery, a Jackson appointee. And because of that, the Dred Scott case a man named Lincoln will arise and say the Constitution is, is skewing far too much in a pro-slavery direction, we have to stop this. And the confrontation between Lincoln's vision and Taney's vision will eventually culminate in the Civil War. And the Constitution will be transformed in the process. But that's basically the story for, for later lectures. I promise I'll tell that story to you. So stay tuned. [MUSIC]
