Article III The Judicial Branch | Constitution 101

0:00[Music] today we're going to talk about article 3 of the constitution that covers the supreme court and the federal courts and we're going to talk about the power of judicial review which is the power of courts to strike down unconstitutional laws we're going to cover two texts and they're really exciting and important the first is federalist 78 which is alexander hamilton's defense of the federal judiciary and the second is the landmark supreme court case of marbury versus madison let's begin with the text of article 3 of the constitution section 1 says the judicial power of the united states shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish so the constitution says you have to have a supreme court but congress may if it

1:03chooses established inferior courts and then it says the judges both of the supreme and the inferior courts shall hold their offices during good behavior so that means they have life tender then section 2 of article 3 says the judicial power shall extend to all cases in law and equity arising under this constitution and the laws of the united states and then it goes on to set out a limited category of other cases where the supreme court has jurisdiction that means the court is allowed to or required to hear the cases and then it says that congress can make whatever exceptions and regulations that it likes so the founding generation uh established this text which doesn't say a lot except that there has to be a supreme court there can be inferior federal courts and there's a certain category of jurisdiction that the supreme court has

1:55but it was broadly accepted in the founding generation that this text included the power of judicial review in other words the power of judges to strike down unconstitutional laws even though the text doesn't mention those words so where did the founding generation get the idea that judges had this power federalist 78 gives us the answer it's so meaningful to read federal 78 because it's such a clear explanation in alexander hamilton's immortal words about why judges have the power to strike down on constitutional laws first hamilton famously defines the judiciary as the least dangerous of the three branches why the president holds the sword he can declare war the legislature holds the purse it can decide whether or not to fund stuff

2:43the judiciary on the contrary has no influence over either the sword or the purse says hamilton no direction either of the strength or of the wealth of society and can take no active resolution whatever hamilton goes on to say it may truly be said to have neither force nor will but merely judgment and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments so hamilton's saying the courts are so weak they can't even carry out their judgments unless the president is willing to back them up because they control neither person or sword and have neither force uh nor will um next comes the heart of hamilton's argument about why independent judges have the power to strike down unconstitutional laws first he says that that power is necessary to protect individual rights and it's a very powerful statement of

3:35the importance of judicial independence hamilton says the complete independence of the courts of justice is peculiarly essential in a limited constitution by a limited constitution i understand one which contains certain specified exceptions to the legislative authority limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void why without this all the reservations of particular rights or privileges would amount to nothing that's a powerful practical argument about the need of enforcement there's no uh point of having a bill of rights that specifies rights that can't be abridged or having specific limits on congressional power unless someone has the power to enforce

4:25them independently to prevent one person like the president from seizing all the power but hamilton still hasn't told us the basis for why judges have this power aside from the fact that it's practical and necessary to have an enforcement mechanism and that's why the next passage is so crucially important why should a judge have a power when faced with a clash between an ordinary law represented by a statute and the fundamental law represented by the constitution to strike down the ordinary law well hamilton says there's no position which depends on clearer principles than that every act of delegated authority contrary to the tenor of the commission under which it is exercised is void no legislative act therefore contrary to the constitution can be valid to deny

5:13this would be to affirm that the deputy is greater than his principle that the servant is above his master that the representatives of the people are superior to the people themselves this is a remarkable statement did you capture all that he says that all acts contrary to the spirit of the delegated authority or void the people themselves have the sovereign power we the people delegate parts of our authority to different branches of government to the president to the legislature um we reserve the powers we don't delegate but um and we also delegate to our representatives the power to make laws in our name but when our representatives act contrary to the spirit of the delegation which is we're assuming the legislature is not going to violate the constitution because that represents our supreme will then hamilton says judges have to prefer

6:03the master to the servant the principal to the agent we the people are the principles our representatives are our agents and then hamilton says again and even more clearly why judicial review is necessary to ensure that the constitution as the supreme law is superior to ordinary laws passed by ordinary legislators hamilton says a constitution is in fact and must be regarded by the judges as a fundamental law it therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body if there should happen to be an irreconcilable variance between the two that which has the superior obligation and validity ought of course to be preferred or in other words the constitution ought to be preferred to the statute the intention of the people

6:52to the intention of their agents isn't that parallelism interesting in the previous paragraph he talked about master servant principal agent here he's talking about the intention of legislatures and the attention of the uh people but he winds this up so beautifully by saying nor does this conclusion by any means suppose the superiority of the judicial to the legislative power it only supposes that the power of the people is superior to both and that where the will of the legislature declared in its statutes stands in opposition to that of the people declared in the constitution the judges ought to be governed by the latter rather than the former they ought to regulate their decisions by the fundamental laws rather than those which are not fundamental so that is the big idea that

7:39the constitution represents the considered deliberate fundamental will of the people whereas ordinary laws just represent the temporary and hasty passions of our representatives now let's pause on that very important claim why does the constitution represent the will of the people more precisely or accurately than a law passed by congress today after all the constitution was proposed and ratified 200 and some odd years ago uh whereas laws passed by congress today you would think more accurately represent the will of the people in the here and now what would what hamilton doesn't say but was broadly accepted by the entire founding generation it was too obvious to point out was that the constitution was passed by a special gratification procedure that's much harder to jump through than an ordinary law to pass an ordinary law you just need majorities in both houses of congress

8:44and uh the signature of the president to pass the constitution you have to have proposal by congress or by a special convention and ratification by three quarters of the state legislatures or by special conventions and three quarters of the states because it's so hard to ratify a constitution or amendments to the constitution people have to think hard about it they have to deliberate momentary passions have to be cooled by the by the by the by the light of reason and that's why we can assume that the constitution represents the profound fundamental considered voice of the people more profoundly than ordinary law now the whole our whole constitutional system turns on that on you and you're accepting that premise that the constitution does represent the profound deliberate will of the people more accurately than that of an ordinary law once you accept that premise then it's obvious the judge is faced with a conflict between

9:42the supreme will represented by the constitution and the temporary will represented by the ordinary laws has to prefer the principle to the agent uh so there it is it's clear in federalist 78. oh it wasn't necessary to put the words judicial review in the constitution because in hamilton's idea the entire idea of a limited constitution as he put it hinges on the expectation that it will be enforced by independent judges and that reminds us of the central importance of an independent judiciary in in in enforcing a limited constitution and all this brings us to the landmark case of marbury versus madison which essentially is an applied version of federal 78 the facts are dramatic so what were they all this arises from a controversy in

10:33the waning days of john adams presidency john adams has just lost the contested election of 1800 it was a close election and it was hotly contested and it was thrown into the house of representatives after jefferson and his running mate aaron burr finished in a tie there are rumors about a federalist plot to deprive jefferson of the presidency and to install john marshall who is then serving as adams secretary of state adams lost his bid for reelection he recognized the judiciary is going to be the last stronghold of the federalist party so he unexpectedly appoints marshall as chief justice of the united states on january 1801 and around the same time the lame duck federalist senate confirms marshall really quickly marshall takes his oath as chief justice uh in february and congress still hasn't

11:26chosen a president and the court is so weak and feeble that few newspapers even notice the event still this lame duck president and congress are working dramatically to consolidate the power of the federalists in the judiciary before it's too late so congress in the judiciary act of 1801 creates a series of new judicial offices to give adams the chance to make these last-minute appointments and also reduces the size of the supreme court to deny jefferson the chance to make appointments of his own a very dramatic example of partisan court packing early in our history on february 17th the house elects jefferson as president on the 36th ballot incredibly dramatic cliffhanger and on march 1st three days before jefferson's inauguration adam stays up late stays up until midnight signing new judicial commissions for these new judgeships that congress has created

12:20the commissions are notarized by john marshall himself who's still performing double duty as the lame duck secretary of state and the chief justice this obviously couldn't happen today but it was much smaller government then and in the confusion of the moment not all the commissions were delivered to their intended recipients including one appointing william marbury to be a justice of the peace for the district of columbia so then jefferson's inaugurated on march 4th the newly elected republican congress repeals the judiciary act that created the new judgeships and changes the size of the supreme court to allow jefferson to make the appointments that the federalists have tried to deny them jefferson also orders his new secretary of state james madison not to deliver the commissions that adam's appointees never received so one of the guys who didn't get his commission william marbury sues and he

13:10wants the supreme court to order madison to deliver his commission in december 1801 um marshall asks madison to appear in court to defend his refusal to deliver the commissions and jefferson reacts with partisan uh anger uh he says the federalists have retired into the judiciary as a stronghold from that battery all the works of republicanism are to be beaten down as a race so there's a lot of partisan drama around the case and madison ignores marshall's request to appear um and it seems like there's a huge showdown for the court the legal question is technical and narrow did marbury have a right to his commission and if so did the supreme court have the power to order madison to deliver it to him but the partisan stakes are incredibly high and marshall seems to be in a

14:01no-win situation even setting aside his own role in creating the confusion that made the case possible if he ruled for the federalist party and ordered the white house to deliver marbury's commission jefferson and madison would simply ignore him and they would reveal the court to be weak and ineffective if marshall ruled that marbury had no right to the commission he'd seemed to be bowing to political pressure and his federalist supporters would be furious so marshall extricated himself in this dilemma with an act of judicial jujitsu that two centuries later still inspires awe for its subtlety in february 1803 marshall hands down an opinion for a unanimous court he rules that marbury does indeed have a right to his commission but the supreme court can't order madison to deliver it because the federal law that authorized the court to

14:53issue orders of this kind is itself unconstitutional so imagine the confusion among the republicans they can hardly object to the outcome since martial has given them what they wanted in the short term no commission for marbury or any of the other midnight judges but they've lost a battle in the long term because by boldly and unequivocally asserting the power of judicial review namely the power of federal courts to strike down on constitutional laws marshall has strengthened judicial authority uh during the decades that he's going to continue to serve on the court in ways that his opponents at the time could hardly have imagined as with hamilton in february 78 marshall roots his decision in the principle of popular sovereignty in the idea that the constitution represents the supreme will

15:37of the people for martial it's essential to all written constitutions that as he puts it a law repugnant to the constitution is void he's echoing hamilton here and he also says that courts as well as other departments are bound by that instrument by the constitution famously marshall notes it is emphatically the province and the duty of the judicial department to say what the law is and if two laws conflict with each other the courts have to decide on the operation of each enforcing the constitution as the supreme will of the people and the supreme law of the land so marshall uh avoided a confrontation with jefferson in that case and he and jefferson continued their rivalry with wonderfully vivid um insults they were distant relatives and they really suspected each other marshall called jefferson the great llama of the

16:28mountain it's not clear what that meant but something about being a llama up at monticello and looking down at people below him and jefferson accused marshall of twistification saying that he was so subtle in turning people's arguments against them that if marshall asked him the time of day he would reply i don't know sir i can't tell still and this is important the two rivals and distant cousins did respect each other's institutional authority jefferson invited marshall to swear him into the presidency and a week after the marbury case came down marshall avoided an even more serious conflict with jefferson in the case of stuart v laird the marshall court upheld the judiciary act of 1802 which had been passed by the republican congress and which repealed the midnight judges act and delayed the next meeting of the supreme court for a year in an effort to prevent the court

17:14from ruling on its constitutionality until after it went into effect it was an example of marshall's principle i'm not fond of butting up my head against a wall as in sport he didn't like to fight battles he couldn't win and stuart villaire the more important battle was one where he deferred to jefferson uh keeping his powder dry and using the power of judicial review wisely and sparingly in uh years ahead with his wise stewardship of the court martial converted it from the weakest and most enfeebled branch of government into a strong and fully co-equal one he did it not only by the force of his judicial vision but also by the force of his personality he persuaded his colleagues to live together in the same boarding house where they would discuss cases over a hogshead of marshall's favorite drink which was madeira

18:04once an unfortunate moment the justices voted to drink madeira only when it rained and marshall looked out the window and said our jurisdiction is so broad it must be raining somewhere more madeira and more unanimity and marshall's vision of a bipartisan court uniting around unanimous narrow opinions written by the chief justice has been embraced by his successors as chief justice of the united states from william howard taft to charles evans hughes to our current chief justice john roberts who views marshall as his hero [Music]