Episode 18 | The Constitution of 1789

In this special episode, our host gives a lecture at Stanford Law School on his new book, The Constitution of 1789: A New Introduction. What caused the American Revolution? Why did we write down our constitutions? What the nature of the American Union? Of executive power? And -- a topic near and dear to the listeners of Rationally BASED -- what is judicial power? Does the Constitution contemplate judicial review? Does that mean the Supreme Court has final say over all constitutional questions? And what was the Constitution's relationship to slavery? Get a sneak peek of Ilan's new book, which if you can order on Amazon or here: https://cambridge.org/Constitution1789. If you order from Cambridge, you can use the discount code WURMAN26 and get 20 percent off. Enjoy the preview, and please remember to like and subscribe!

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Transcript

SPEAKER_01 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Warman, a law professor at the University of Minnesota Law School. Today we have a special treat for you. My book is coming out soon, maybe even this week, and I give a talk on the book. It's called The Constitution of 1789, a new introduction. I gave a talk on the book at Stanford Law School this week. Here is that talk. We will be back with regular programming next week. Thanks so much. I was here, not physically in this room, but in another room about 10 years ago when I spoke about my first book, A Debt Against the Living, An Introduction to Originalism. I wasn't even a law professor then. I was just a lawyer, masquerading as a law professor. The professoriate was my escape plan from the law firm. And over the last eight, nine years, I've been teaching and I've been thinking about this book, and I've actually been writing it for eight or nine years now. And it sort of reflects my latest thinking about constitutional structure. It's entitled The Constitution of 1789, not 1791, because it is not about the Bill of Rights, or at least mostly not, but rather about the constitution that was implemented and went into effect in 1789, the year George Washington was inaugurated as President of the United States, the year the first Congress assembled, and the year that the Congress established the National Judiciary. So that's what really this book is about. It's about constitutional structure. It's about the nature of written constitutions, the nature of America's constitution in particular. It's about legislative power, executive power, judicial power. What do they mean about all of these things? Now again, um, Professor McConnell said, I am known to have strong opinions, and sometimes my opinions are also correct. They're just true. I have yet to find a single scholar that agrees with everything I say in this book. Nevertheless, I have the virtue of being correct. And at least it's gonna be a starting point for conversation if you disagree uh with that proposition. So I only have 40 minutes, and actually I should uh make sure I can see the time. And so what I I can't go over the whole book, uh, nor would anybody want to suffer through that. So let me tell you what I want to do specifically, um, because it's it's timed to come out um uh with the semiquincentennial of American Independence. I'm told it might actually be ready this week. That's what they told me, and then yesterday they said, actually, we don't know. But it's certainly gonna be here by June 18th, is what I'm told. Possibly as early as this Friday, though, May 22nd. Uh so I uh I hope you can uh look for that. And I do have a discount code for those who stay till the end, as a little inducement not to go to the K-pop boy band uh down the street. Um, though there probably would be time for you to do all that after uh as well, I suppose. So, what I want to do in this talk is I want to do a few things, and they're gonna mostly be thematically connected, but um, with a few uh digressions. The first is simply why do we have a written constitution? And it has something to do with the American Revolution. And so I also want to make sure to talk about that. What was the cause of the American Revolution? Um, because this is also somewhat a more general audience, I suppose, I'm actually not sure exactly who's uh in the audience. I also want to say something about the nature of America's union and its national constitution in particular. And then I really want to talk about how that all relates to judicial power and judicial review and the role of courts. There will be obvious implications for today, but I'm probably not gonna tease those out for you. I'm gonna just sort of focus on the Constitution itself, its text, its structure, its history. I will digress a little bit to executive power for a few reasons, uh, primarily because Professor McConnell, my dear friend and mentor and professor here at Stanford, has a wonderful book on executive power, with which I disagree on a few things, and so I figured since he was here, I may as well poke the bear a little bit. A very cuddly bear, as for anyone who knows Professor McConnell. So that's that's where this is going. That's uh the plan. So let's start at uh the beginning. Well, not the beginning, the beginning, but like the English Constitution of the 1600s of the 17th century. So the image you see up here is Charles I's execution. Why was Charles I executed? Well, because he was violating certain principles of the English Constitution. Now, what were these constitutional principles? This is a bit beyond the scope of the book, but provides some interesting context. What were some things King Charles I was doing? Well, prerogative taxation was the big one. No taxation without representation came from somewhere, and they believed it in England in the 1600s, but Charles I didn't want to call Parliament into session for a variety of reasons. And so he came up with certain, shall we say, creative ways to obtain a revenue. He said, Well, I can't tax my subjects, so let me force them to loan me money. And like maybe I'll pay them back. I'm not exactly sure what the interest was that was promised. So this was the case of the forced loans. There's also the case of ship money, where this was a royal prerogative of the king. The king could raise money on his own initiative from the coastal towns if there was some sort of imminent threat of invasion. And so he said, well, it's a minor extension to just raise the money routinely, even if there isn't a threat of invasion. And so he put some people in the Tower of London who refused to pay the forced loans because they, and the ship money, because they thought it was unconstitutional, they petitioned for writs of habeas corpus, and the king's judges basically said, Oh, the king's command is enough. So there was also violation of these constitutional principles, like due process of law, that the king could only imprison someone according to the law of the land, not at the royal whim. But the question really is, where did these principles come from? They weren't written down anywhere. They were occasionally asserted in written documents, like in Magna Carta, but Magna Carta also didn't come out of nowhere. There's a reason King John was forced to sign it with the barons, because they believed that these constitutional principles emerged from what they called immemorial custom. This was an unwritten constitution where the principles of the constitution just sort of, if you're Hayekian, it's kind of like spontaneous order in a way. Where do customs of the people, you know, where do the rules of fashion come from? Or the rules of grammar? Well, it turns out constitutional law, deeply profound principles of the legal system could also emerge through this sort of kind of spontaneous order. And they were real enough. They were real enough to the people that they executed Charles I for it. But they weren't necessarily written down. They didn't originate in some written constitution. The Glorious Revolution of 1688 took this further. It was sort of a total victory of Parliament asserting these traditional, customary constitutional principles against royal prerogative. They even deposed the king, invited William and Mary, and they provided by statute for the line of succession. So that's the English constitution of the 1600s. I promise it all relates, even to the very last slide that I'll show you today. Well, what happens after the Glorious Revolution and this parliamentary victory over the royal prerogative power? Well, you get a different kind of constitutional system, also an unwritten system. You get the British constitution of the 1700s or of the 18th century. This was also unwritten, but it was a different kind of unwritten constitution. After Parliament was a little high on having successfully deposed a monarch and establishing a line of succession for future monarchs, Parliament started to decide that it was the Constitution, effectively, or that whatever Congress said was final. The Parliament was the final arbiter of constitutional principles. So the gentleman you see here in this image is William Blackstone, who sort of gave the American founders, by the way, love to cite William Blackstone. They conveniently didn't mention that he was a Tory against the American Revolution, so it was a bit awkward for them, but they were willing to look past that, right, after the revolution was fought. And Blackstone really articulated this vision of parliamentary supremacy. Here's just one snippet of from his commentaries on the laws of England, the legislature being in truth the sovereign power, is of absolute authority. It acknowledges no superior upon earth. So you went from an unwritten constitution of customary practices to an unwritten constitution where the British Parliament would just be the final arbiter of what those constitutional customs or constitutional rules were. There was no superintending constitution, in other words, whether in custom or otherwise, that bound the British legislature, the British Parliament. Well, what happens when the 18th century British constitution of parliamentary supremacy, of parliamentary sovereignty, clashes with the 17th century English constitution of prescriptive, customary constitutional rights rooted in immemorial custom? Well, you get the American Revolution. And this, of course, is a famous illustration of the Boston Massacre. So why did the Boston Massacre occur? What led to the American Revolution? Well, all of a sudden, Parliament starts enacting legislation for the colonies inconsistent, incompatible with those constitutional principles that the American colonists still believed were rooted in the customary English Constitution, such as no taxation without representation. To the colonists that applied to Parliament as much as it applied to the monarchy. And so all of a sudden, you have American colonists asserting the principles, customary, unwritten principles of the English Constitution, and you have a British Parliament that says, we are the final arbiters of the British Constitution. There is actually no limit to what we can do. And you can see the inevitable, irrepressible conflict that necessarily resulted in the American Revolution. Now the question for us is how did the American colonists solve this problem? I mean, they had to win first, but right, how do you, after you win, how do you solve this problem, this irreconcilable tension between a constitution of customary rights and an unwritten constitution of customary rights, I should say, and an unwritten constitution of legislative sovereignty, legislative supremacy? What is the answer to that conflict? Well, you probably know where it's going. The answer is to write down those constitutional principles. How do you prevent something like that from happening again, from the legislature asserting that it has unlimited ultimate power to legislate without any regard to principles, deeper, more foundational principles of constitutional right? Well, you take those customary constitutional principles of the English constitution, you pick out the good stuff, the best stuff, the stuff you really think is right, and then you write a constitution. And that limits the legislature's ability to violate, entrench, and infringe on those constitutional rights. This will become relevant for judicial power because when we get there, what is the implication of writing of this solution? What is the implication of the solution? Well, that this written constitution would become binding and enforceable against the legislature in a way that customary constitutional principles had never before in the English system been binding against Parliament. Now, to be clear, they were binding and enforceable in the sense that King Charles I lost his head, right? And that the Americans revolted and they fought against Parliament, right? So they were ultimately enforceable by the people in that sense. But by writing down these principles and making them binding against the legislature, that has enormous implications for judicial power and judicial review. So that's sort of where we're going. Okay. Now I'm gonna actually do this a little bit more quickly than perhaps I would have wanted. I just want to say something about uh the this written constitution, the solution of written constitutions, really applied in all the states after independence. You had 13 written constitutions that solved this problem of the English versus the British system, unwritten constitutional system. But what was the American constitution going to look like? What was the constitution for the Union going to look like? Well, it first started after independence with the old science of politics. They consulted with the old political authorities, not even that old for their time, who was the political authority of the time? It was Montesquieu, whose beautiful profile you see here in this illustration. According to Montesquieu, and I'm going to be relatively brief here, there were really three kinds of regimes. They were republican regimes, they were monarchical regimes, and there were despotic regimes, and each sort of depended on the scope of the territory. So a republic, Montesquieu said, could only subsist or exist in small territory. Why? Well, because republicanism, it was believed and may still be true, requires a certain degree of homogeneity of passions and interests. The larger the extent of the territory, the more heterogeneous people's interests and passions will be, the more wealth there will be, the more ambitious people will be able to divide the people and turn them against each other. So republics, it was believed, really could not exist other than in small territories. On the flip side, in a large territory at the time, how do you ensure that the central government commands are promptly executed? At the time, there was really only one way, and that was fear. It really required a sort of despotic sort of government. So you combine these ideas, and republics really existed, could only subsist in small territory. Well, what's the problem if you have all, suppose you have the ideal, uh best regime, the best republic, small territory, what's the problem? Foreign enemies. And so what was the old science of politics, the old political sciences, the solution to this was a confederation, a league of states that would band together in a treaty and uh for for purposes of common defense, for purposes of war and foreign policy. And so, from the spirit of the laws, here's like a central passage. Montesquieu said, It is very probable that mankind would have been obliged to live constantly under the government of a single person, right, with the strength of a monarchy, had they not contrived a kind of constitution that has all the internal advantages of a Republican, together with the external force of a monarchical government. I mean a confederate republic, a kind of assemblage of societies. And this is, of course, what was tried in the American system. The Americans created a confederation. That's where the Articles of Confederation came from, straight out of Montesquieu, who of course took it from Greek history and Roman history as well. But it turns out, at least in the modern world, the confederate form of government or confederated form of government didn't work out too well. Why? Because it required the good faith of the states. It operated on and through the states. Well, if you needed taxes and troops to finance and support the Revolutionary War, you had to ask the states. Did you know that Georgia didn't pay anything to the Confederated government? I think they paid a little at the beginning, but then for like seven or eight years they didn't pay anything at all. And so you could see this was a problem through what were called requisitions for taxes and troops. Anybody, you had to request them through the states. The other problem, of course, is suppose you have a recalcitrant state. How do you enforce the Confederated government's resolutions? Do you go to war against the states? And plus the state could just say, hey, I'm out. This was a treaty, I'm out. So it wasn't, again, adopted by the people either. It wasn't operative on them. It was only operative by and through the states, and the states uh it was dependent on their good faith, and they could just threaten to break it up or secede, if you will, from a confederated form of government. Also didn't solve the problem of commercial rivalries among the states. Turns out that was a big problem as well. And so what was the solution that James Madison, here, who's pictured here, who wrote a famous essay on the vices of the existing Constitution, where he talked about the vices of the Confederation. What was his solution? What was the solution of the framers more generally? It was really innovative. This was the new science of politics. It violated the principle that you couldn't have sovereignty within a sovereignty. And they said, you know what, we're actually going to try it. We are going to create two sovereignties. We're going to create a genuine general or central government, a genuine national government adopted by the people, that operates through the people. The people operate through the national government. The national government's resolutions are directly binding on the people, but only within its limited sphere. So they would do the same things, maybe a little bit more, like commercial regulations, that a confederated government would be, but it would be a real government. It would be binding and operate directly on the people, or as Lincoln would say, it would be of the people, by the people, and for the people, not of and by and for the states. So this was their new science of politics. We call, they call it, and I call it in the book, the compound republic. Not a confederated republic, a compound republic. Two genuine governments operating directly on the people, through the people, by the people, and it is for the people, on their behalf, not the states, but each within its sphere. The national government would be within its limited sphere. This is what we uh James Madison, also again pictured here in Federalist number 39. I left it off, but he described the compound republic as neither wholly federal nor wholly national, but in truth a composition of both. What did he mean by this? He meant it was partly national, what today we would call the federal government, is what they called the national government. It would be a genuine government that again operated on the people, but it would only be partly so, because it only had a limited jurisdiction. And then you would have, he said, a partly federal system, which he referred to as the states, or the federal component of the system. They would also have their own governments operating uh directly on the people, but they would have a residual sovereignty. This is today what we call federalism. There's been a little change in, of course, the connotation of federal from back then, which again was a reference really to the state components of the system. So today, this partially national, partly federal system is what we call federalism. Okay. Some other topics, if you do choose to get the book or read the book, actually, you don't have to read the book, you should buy the book. Whether you read the book, you know, that's a separate, I'll leave that to you. Uh but you should definitely buy it. Hardback, especially with Cambridge pricing 90 bucks. I might actually get $5 of that, you know, who knows? But there is a paperback coming out at the same time, which is significantly cheaper. Other things we talk about in the book, I talk about in the book, what was the debate over a Bill of Rights and why was it omitted? What is the meaning of the Ninth Amendment? The only amendment from 1791 I talk about, because it elucidates things about the structural constitution of 1789. I'll talk briefly about this today, but what was the relation of the enumeration of powers to the royal prerogative of the king? What are implied powers? What's the meaning of the necessary and proper clause? What about interposition, nullification, secession? It turns out, despite everything I told you just now, that the nature of the union, this compound republic, remained contested long into the 19th century and led, this contestation, in fact, led to the Civil War. Okay, but let me say something about the presidency. For two reasons. One, because as I said, Professor McConnell's here, and I have a small bone to pick, maybe a large bone to pick with him, or maybe a few bones to pick with him, but also because the presidency graces the cover sort of of my book. The image you see here, which is also the cover of the book, is President George Washington's inauguration in 1789. This uh photograph this illustration was also illustrated on the Centennial of American Independence in 1876. And so on the semi quincentennial, I think. Felt that there was sort of a dual reason to include that in the cover of my book. So let me just say briefly things about the presidency and what really the debate here is about. Really, the debate is over the scope of the president's power. What is the scope of the executive power vested in the president? Why is this even a debate? Well, because without really telling us why, the framers wrote the first uh clause, uh, first section of the uh the first article of the Constitution differently than the first clause of the second article of the Constitution. So the grant of legislative power to Congress says all legislative powers herein granted shall be vested in a Congress, which shall be composed of a Senate and a House of Representatives. But Article II, Section 1, the corresponding vesting clause for the presidency, says the executive power shall be vested in a president. It doesn't say all executive powers herein granted. So there isn't, you know, so there's this difference in language, but there's also an enumeration of presidential powers elsewhere in Article II. That's where the Commander-in-Chief clause comes from. So this has created this big debate. Is the grant of executive power a residuum of all power executive in nature, save for what has been distributed or assigned elsewhere in the Constitution or limited in some other way? I believe that is the view of my dear friend and mentor, Michael McConnell. My view of it is that the executive power that is vested in the president is merely the power to execute law. That is the only power that it conveys. It has somewhat interesting implications for this debate over foreign affairs and war. Are those powers missing? Who has those powers? So that is sort of a debate that several chapters of the book engage in. There are really sort of two potential implications. One is the debate over the control of administration. Can the president remove? Can the president control administrative officers? And then where, you know, who gets to who gets to take the reins, the lead on foreign affair, war, and the other outro prerogatives. So let me just give you, in a nutshell, what I think the framers were trying to do. I'm not gonna have an answer to these specific points today, but let me just give you sort of the bird's eye view of what I think they were trying to do in the Constitutional Convention. And at the Constitutional Convention, they were trying to weigh basically two things. So here, this image, this illustration, is President Washington surveying the troops prior, the militia, prior to, shall we say, uh squashing, quelching the whiskey rebellion. I don't know what the best uh word is. What they needed was a president who would be able to do this. A president that would be powerful enough to keep a large compound republic together over a large extent of territory. In the words of Governor Morris or Governor Morris, depends if you ask Abigail Adams or somebody else, but I'll say Governor Morris because otherwise people look at me funny. But well, anyway, I don't want to digress too much into Abigail Adams' letter writing habits. She's probably right about this. But as he said in the Constitutional Convention, we must either renounce the blessings of union or we must provide an executive with sufficient vigor to pervade every part of it. You need a robust, rigorous executive, something more robust than the committees that exercised executive power under the Articles of Confederation, something more robust than the situation that allowed the Shays Rebellion to effectively be uncontrolled in Massachusetts prior to the convening of the Constitutional Convention. So you needed a robust, vigorous executive. But what's the risk? And so the natural answer is: well, we need a single person. A single person will be able to, a unity in the executive is what's going to allow the executive to exercise energy, vigor, dispatch, secrecy. This is why they wanted a unitary, so-called executive. But what's the problem? Well, as Edmund Randolph also said, what does a powerful single unitary executive start to look like, or potentially look like? A king or a monarchy. And so, as Edmund Randolph said in the Constitutional Convention, a single executive was the fetus of monarchy. So the challenge was: how do you create an executive with sufficient power and energy to pervade the whole union, to ensure that the national resolutions would go executed, that would be able to defend the nation in times of peril, but that wouldn't turn into a monarch. The problem, in other words, in the words of Alexander Hamilton, and the solution, it's both a description of the problem and the solution, as he said both in the convention and in Federalist number 77, was we needed to give energy to the executive, but only as far as Republican principles will admit. And I love that passage. How can we give energy to the executive, but no further, no farther than what would be allowable by Republican principles and to maintain a Republican form of government? So, what are some ways that they did this? Well, I submit to you that they resolved that the executive power was merely the power to execute the national resolutions, to carry into execution the laws of the legislature, and to appoint officers to assist in that task for whatever that is worth. So the president would oversee execution of the laws. And then when it comes to the other stuff, commerce, foreign affairs, war, these historical royal prerogatives, those are given to Congress. And actually, if you look in Article I, Section 8, as Professor McConnell has also written in his book, half, at least half the powers in Article I, Section 8, Congress's enumeration of power, are historically royal prerogative powers. How do you make sure that the president would have merely the executive power and all this royal power he wouldn't be able to exercise? Well, you write them down and you give them to somebody else, namely Congress. So there's this whole debate about unitary executive versus non-unitative. It's a bit of a misnomer. I want to suggest that the that the theme from the Constitutional Convention was the president was to be unitary, but that was okay because they thought they were carefully circumscribing the president's powers. That was their objective. They first settled on the scope of executive power, the extent of executive authority, and then they said, okay, this power can be safely entrusted to one person. And that was their objective. Okay, so what are the implications and some other topics? Does the president have a removal power? Yes, but it's complicated. Actually, since, why not? I'm here, have a captive audience, this will be recorded for posterity. I have a whole talk I could do on this. I have a very quirky view, but it's correct. Like, as I said, most of the other views that I uh maintain. I think the president has a constitutional power to remove principal officers of the government, but not a constitutional right to control them in the exercise of their duties or the execution of their duties. The president has to assume the political cost of firing somebody, but there's no constitutional right to command them. This is, you might think I'm crazy, but if I'm crazy, then Daniel Webster is crazy, George Washington was crazy, Thomas Jefferson was crazy because they all seem to think this. Depended on the day. George Washington especially, dependent on the day. Emergency powers. I do not believe that the vesting of executive power is a grant of emergency powers to the president. This actually shouldn't be too controversial. It's what the Supreme Court said in the Youngstown steel seizure case when Truman tried to steal this the seize the steel mills. I will say, however, um, one of my uh say frenemies, maybe we've we've moved into Nemesis territory, a very famous professor at Yale Law School in his book on the Constitution says, surely the grant of executive power to the president included Lincoln's mandate to save the Union. I think that is conflating two very different ideas. I think Washington and Jefferson and others and Lincoln had no problems exercising emergency powers on high and important occasions, but they never pretended that they were doing it constitutionally or that that made it constitutional. They always had to submit themselves to the people. And Andrew Jackson imprisoned a federal judge and a federal prosecutor and a state judge during the War of 1812, and then after it was all over, he went in front of the federal judge, right? He was uh wrung him up on contempt. Charges, you imprisoned me for a year or however long it was. And he said it was an emergency measure. I don't pretend it had authority in law, I submit myself to the judgment of the court. And fortunately, he just got fined and he was willing to pay the fine. Um, this is not what that's supposed to talk about. This is other topics. Uh but again, something uh to tease things that I say in the book. Foreign affairs and war. Uh, I think Congress has most of the foreign affairs powers, uh, surprisingly, perhaps. And so there's a debate of who takes the lead on these issues. I actually think Congress uh has uh the lead. I say a little bit about non-delegation and administrative law and so on, but uh let's go on to the rest of the talk. Um we started 10 minutes late, so I'm just gonna keep going. That's uh uh okay. You can still catch the boy band after. Let's go back to judicial power and how it relates to a written constitution. What is uh judicial power? Well, historically, it was just part of the executive power.

unknown 31:41

Right?

SPEAKER_01 31:42

Judicial power is the king's judges enforcing the king's laws in disputes involving two private people, or in which the king is prosecuting somebody, right, where somebody's life, liberty, or property is at stake. It was part of the executive power. It really wasn't separated from the executive power until the Act of Settlement of 1701, which gave judges lifetime tenure, so they could exercise judgment independent of the king. And for those who read the Latin and know something about popular culture, what is the Latin phrase for good behavior? It's Quam du Se Benigeserent. So for those who know this photograph, this is from the modern remake of the movie Dune, or of the Frank Herbert book Dune. And here we have the Beni Jezerint. Why is this a good order? Here's the Reverend Mother. Why is this order in Dune called the Benedzerint? Maybe because they ruled for life. They had their posts for life, but I'd like to think it's because they were supposed to be on good behavior for the duration. I'm not sure that's exactly consistent with their behavior in the books or the movie. But see, I told you you would learn something today. And now you know when you watch Dune or read Dune, you will never see them the same way again, because you know what Kwam Du Se Benny Jezerant means. So again, this is when judicial power was separated from executive power. And again, what was the power? It was simply to adjudicate existing disputes under the law, under existing law. Not to make new law, but when the law was executed and you had to decide did person A violate persons B's, uh person B's rights under the law as defined, the king couldn't personally sit in judgment. That required an exercise of the judicial power. If the king wanted to imprison you in the Tower of London, that required an independent judgment on the part of judges or juries. So judicial power, again, uh lifetime tenure, insulated from executive power, especially with respect to rights of life, liberty, and property, before a deprivation of life, liberty, or property could occur. Okay, this is actually not super controversial. Does it follow that judicial power includes the power of judicial review? The power of judges under the written constitution to declare a law of Congress to be invalid. This is not a necessary understanding. The power to adjudicate disputes under existing law could simply be, it's it's a question of what existing law do judges look to. Maybe they just look to parliament's laws or to Congress's laws, maybe they look to corporate bylaws, maybe they look to the common law. It doesn't follow that if the federal legislation, a law of Congress, governed a situation, that the judges would have the power to say, no, we're not gonna apply that. That didn't follow. Nevertheless, John Marshall, the great chief justice, pictured, illustrated here, asserted the power of judicial review, the power to hold or declare a law of Congress unconstitutional. He asserted this, of course, in the famous case of Marbury v. Madison, but was he right to do it? My heart is starting to palpitate a little because of the time that I've already taken up. So let me just very cursorily tell you that Marshall got almost everything wrong in that opinion, including whether he had to actually deliver the commission, where did Madison have to deliver William Marbury's commission? You know, probably not. You know, delivery is kind of important. Um he created a conflict between the statute and the Constitution that probably didn't exist, because the statute probably didn't actually do the thing that William Marbury was asserting it did, so there probably wasn't this conflict. But nevertheless, we don't remember Marshall for all the bad stuff. 99% of the opinion that was wrong. We remember him for the bottom line about judicial review. And so the question is, was that uh correct? So again, I don't have very much time left, and there's still a little bit more I want to get to. Let me suggest to you the arguments that he went through were pretty weak. But he brought it home in the end. He brought it home in the end. So I'm just gonna talk about the supremacy clause. Everybody thinks that the supremacy clause uh creates this power of judicial review because it says the Constitution and the laws of the United States enacted or promulgated in pursuance thereof, and the treaties are the supreme law of the land. There, it says it right there. Only the laws of Congress enacted in pursuance of the Constitution, not in violation of the Constitution. What's the problem though? The Supremacy Clause is really a preemption clause. It tells state judges you now have to apply federal law of whatever source, the Constitution, Congress's laws, or treaties, anything in the state constitutions or laws to the contrary, notwithstanding. It was an injunction to state judges, and in fact, after it says the Constitution, the laws, the treaties shall be the supreme law of the land, and the judges in every state shall be bound thereby. If this was the clause that granted the power of judicial review, how awkward for the Supreme Court justices that sit in the District of Columbia? They don't sit in a state. Would they not have the power of judicial review? Okay, well, let me skip these next two clauses, also a little question-begging and problematic. Let me get to the bottom line. What is the case for judicial review? The answer, it's a two-part answer. Part one of the answer is the conflict of laws. What is the conflict of laws? Well, sometimes there's more than one source of law applicable to a situation. What happens when a resident of California sues a resident of Oregon? What law does the court apply? Does it apply California law? Does it apply Oregon law? Does it apply a general federal common law? This is a conflict of laws problem. You have to decide it in certain ways. In wartime, if the civilian courts are open, does the martial law apply or the civilian law apply? This is a conflict of laws problem. A law enacted later in time that's inconsistent with the previously enacted law. That is a conflict of laws problem. And the conflict of laws is a body of law that tells us how to resolve those conflicts. The place where the tort occurred is the law that governs the situation. In diversity cases, there's a whole line of doctrine from Erie that tells us how you choose which law applies. This is just a conflict of laws problem. I have two laws that apply to the situation: a law of Congress and the Constitution. The law of Congress says X, but the Constitution says uh-uh, you can't do X. Which law prevails? And the answer isn't given by any like supra constitution. It's just the reason we fought the American Revolution. It's the nature of written constitutions. We fought the revolution and wrote down our constitutions precisely so we would not have a reoccurrence of the British constitution of parliamentary sovereignty and supremacy. As Marshall said, it's essentially attached to the nature of written constitutions that they must bind and control the legislature. It's why we fought the American Revolution. This is why we have judicial review, because it's like any other conflict of laws problem, and the solution is eminent from the American Revolution. Okay, I'm I know running out of time, but does it follow? So we've established what judicial power is, we've established the power of judicial review of constitutionality of federal legislation. Does it follow that the Supreme Court is the final and ultimate arbiter of all constitutional questions? Or put the point another way, what happens when the Supreme Court gets things terribly wrong? Do we say, oh well, they're the Supreme Court? Well, things really came to a head in the Dred Scott decision. Dred Scott, of course, is the gentleman you see here. In the infamous Dred Scott decision, the Supreme Court said that free persons of African descent were not citizens of the United States within the meaning of the Constitution. They were not entitled to any of the privileges or immunities that the Constitution affords to citizens. So again, here, free persons of African descent could never be citizens of the United States. They, as you know, had no rights, which the white man was bound to respect. Not only that, but the founders themselves meant to exclude them, both from the Declaration of Independence's proposition that all men are created equal, and from the Constitution's privileges and immunities. Well, was this right? The whole question here is what happens when the court gets things wrong. I could skip this part, but let me at least do a little bit. There was a dissent in Dred Scott by Justice Benjamin Curtis, who eviscerated the point that the Constitution did not contemplate free persons of African descent as citizens. How did it evercerate this point? Well, he showed that free black persons of African descent were citizens of at least five states prior to the adoption of the Constitution. They were part of the political community that created the Constitution. And he said, nothing in the Constitution itself strips them of that citizenship. Go, look, look through your constitution. Where's the previously African citizens are hereby deprived of their citizenship clause? It's nowhere to be found. Congress has a naturalization power, but this is a power to make new citizens of foreigners, not to strip citizens, citizenship of natural born citizens, like the free persons of African descent. And what's more, the presidential requirement to be a natural-born citizen implies that their descendants and children will be citizens. This is all on the slide, which I'm just gonna skip now. It's everything I just said. The point is he eviscerated the textual argument about the constitution of slavery. But did he get the founders right? Now, if I had more time, I would go through what John Adams said and Thomas Jefferson said and everybody said about how slavery was evil, but they didn't have an immediate solution to it. Forget it. Who knows? Maybe they had incentive to be duplicitous for some reason. Take it from the Southerners themselves. The Southerners themselves admitted that they had moved on from the founders' view. The Southerners themselves were more enlightened than the founders. They believed slavery was good. The Southerners did now, in 1860. Here's what Senator Robert Hunter of Virginia said on the eve of the Civil War on the floor of the United States Senate. We in Virginia have changed our ground. We do not stand where we stood anciently, we do not stand where our fathers stood upon the slavery question. We do not believe what Washington believed, and Jefferson believed, and Madison believed, and Monroe believed, and all the leading men of Virginia for the first 50 years of our existence under the Constitution believed. We have changed our opinions in Virginia. And instead of now admitting that slavery is an evil to be restricted and discouraged, and which we may hope and pray may be someday entirely removed from the Republic, we now take the ground that it is a blessing to be fostered, encouraged, and extended as a benefit to the black man and a benefit to the white. Chief Justice Tani was not being a faithful originalist. He was adopting the intellectual prejudices of his own time, this positive good theory of slavery of George Fitzhu and others. What is the point? The point is the Supreme Court grievously erred in the Dred Scott decision. So do they resolve the problem for all time? This was the debate, and I promise this is the last slide, other than that discount code that I promised everybody who stuck to the end. This was the famous debate between Abraham Lincoln and Stephen Douglas, who you see illustrated here in the various Lincoln-Douglas debates. Lincoln said, we want to see the Dred Scott decision overturned, which led Stephen Douglas, who sounds like a modern American, to say, Lincoln wants to overturn the Supreme Court? To whom will he appeal? Will he appeal to Lynch's law? To the rule of mob? By which tribunal will Lincoln overturn the decision? The Supreme Court, Douglas said, was Established by the Constitution to resolve all disputed questions of constitutional law. He probably sounds like your neighbor, and maybe like you yesterday. This was Stephen Douglass' view. What did Abraham Lincoln respond? He said, nobody is seeking to disturb the judgment in the Dred Scott case. Nobody's whipping up a mob and springing Dred Scott free from the clutches of his master, John Sanford. The Supreme Court's ruling in that case is binding on the parties. It's binding on Dred Scott and his master, John Sanford, and nobody else. We don't have to follow that. It's reasoning, it's opinion, it's holding as a political rule. So how did Lincoln execute on this view when he became president? Well, through issuing coasting licenses and passports to African Americans. The laws at the time said the passports and coasting licenses could only be issued to citizens of the United States. If we followed the Supreme Court as the final arbiter of all constitutional meaning, well then there would be a problem. Lincoln had his attorney general write an opinion saying, Tony, Chief Justice Tony, the Supreme Court was wrong in Dred Scott, they are citizens. You can issue the coasting licenses and passports, and he did. Another example is Hiram Revels. Who was Hiram Revels? Hiram Revels was the first African-American United States senator appointed by the Reconstructed Mississippi legislature in 1870. What's the problem? The Constitution says to be a senator, you must have been a citizen of the United States for nine years. Well, if Dred Scott was the supreme law of the land, then Hiram Revels had not been a citizen for more than two years since the adoption of the 14th Amendment. The Senate ceded him anyway. They did not feel themselves bound by the Supreme Court's interpretation of the Constitution for their own constitutional functions, for their own constitutional purposes. So I hope you see how we've gone from the causes of the American Revolution to the advent of written constitutions to the implications for judicial power and judicial review, but it doesn't follow that judges are supreme. We did not go from a system of parliamentary supremacy and legislative supremacy and legislative sovereignty to a system of judicial supremacy and judicial sovereignty. The system is much more complex than that. And with that, well, okay, here's other topics, but we'll skip. There's the discount code that I promised you, which I would have given you anyway. If you go to Cambridge, I think you could simply, you can search it, of course, but if you put Cambridge.org slash constitution 1789, I think it'll take you to that page, but you can also search it. And if you put in the code Worman26, for my last name, I guess the year 2026. Your guess is as good as mine about that. Uh so wormin26, and you would you'll get a 20% discount. And maybe it'll show up at your doorstep this Friday. But if not, then no later than June 18th.