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Bonus Interview Footage

On John Marshall and the establishment of judicial review

Well there's been a lot of academic scholarship about whether Marshall's reasoning in Marbury v. Madison that the Constitution is law, courts tell you what the law is, and therefore the new courts, under the Constitution, are going to tell you what the Constitution means. Whether that was truly a radically new concept or was part of the background understanding that the framers had. There certainly were prior cases from lower courts, lower state courts, recognizing the role of the judiciary in interpreting the Constitution. And Marshall, I think, built on those that, that learning in those prior cases. But it was a significant step. Nothing in the Constitution says that it's the role of the Supreme Court to construe the Constitution in a way that would bind the other branches. But Marshall walks you through his reasoning quite clearly in Marbury versus Madison. He says what is the Constitution? It's law. It's law that the people have established to control this new government. What do courts do? It's the job of the courts to say what the law is. If the Constitution is implicated in a particular case then it's the job of the courts to say what the Constitution means. And that was his mode of reasoning. Very straightforward. It led to a result in Marbury versus Madison that was sort of contrary to perhaps Marshall's political interest as a member of the Federalist Party as opposed to the Republican Party. He said that the Court didn't have the power that was asserted there to require mandamus to issue, to compel, the administration to seat these judges or justices of the peace. So in that sense it was an act of humility on his part, an assertion that the Supreme Court lacked a particular power. But at the same time he established a much more significant power, the authority of the Supreme Court to determine what the Constitution means and to strike down acts of Congress that were contrary to the Constitution.

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