Welcome back. Today we're going to begin a discussion of Article Three of the Constitution, the Judiciary article. The discussion that we're going to have in this session and the next one corresponds to chapter six of the book, America's Constitution: A Biography. The chapter is called Judges and Juries and it opens with a picture of the famous John Marshall, the great John Marshall, perhaps the greatest chief justice in the, the history of the United States. And at, in the next session, I'll tell you a little bit about this picture and how it sums up many of the themes of, of this segment, this chapter Judges and Juries and many of the themes of Article Three. But before we get to that you may be wondering why there's only one chapter on the judiciary. Remember that after our chapter on the Preamble, the first coupla lectures of, of this part of the course, we had actually two chapters on Article One, the Legislature; so, four lectures on that. We had two chapters, again four lectures on Article Two, the presidency. But we've only got one chapter on, on the judges. And in fact, actually they have to share that chapter with the juries. As indeed in Article Three, they, they share, judges share pride of place with juries. So, what's up with that? Why less attention to the judiciary in this walk through the written constitution, and the answer is, because there's less attention in the written Constitution itself to judges. It's Article Three out of three. And in fact there's less text in Article Three, it's the shortest article of the three big ones. The Legislature gets the most attention, is first and longest. Executive is second and second longest and as I said the judiciary is third out of three and the federal judges who feature prominently in Article Three actually have to share the stage with with the juries who can be seen as we're going to talk about it a little bit more, as the lower house in a sense, so a bicameral judiciary. So just as there is a, a bicameral Legislature with an upper house a Senate and a lower house The House of Representatives, are kind of a bicameral judiciary, with the upper house of of judges selected in a more refined ways. A small, group of rather elite of folk and and the lower house a more populist house corresponding perhaps to the House of Representatives, the lower house of the framers' judiciary at least, of the Const-, the original Constitution's judiciary involves juries. So, one question really to begin with is: why did the fr-, Constitution, Why did the framer's treat the judiciary least and, and last? Why did they make them third out of three? And I think the answer begins with the American Revolution. You cant understand our Constitution without understanding our history. Our history as a people is to a very considerable extend, the history of our wars and the Constitution is a reflection of our wars. The, the original Constitution is a reflection of the American Revolution as we're going to see after the Civil War, the Constitution is going to be transformed with three important amendments: the 13th 14th and 15th Amendments. And in the 20th Century actually, wars both World War I and World War II and the Cold War will be reflected in the written text. So, so here's the key fact you need to understand about Articles One and Two and how they were affected by the American Revolution, and then we'll come to Article Three. Article One big idea. This is going to be Congress is going to have the power to tax and regulate, and precisely because of that, this new Congress, under Article One, is going to have to be much more representative than the old Congress in the Articles of Confederation. The old Congress couldn't tax individuals, couldn't pass laws as such directly regulating individuals, and so it didn't need to be picked by individuals. But since the new Congress is going to be able to tax individuals, is going to be able to regulate individuals, it has to be representative of individuals. Why? because that's what the American Revolution was all about: no taxation without representation. Parliament had the pretension to purport to tax and regulate Americans, even though Americans didn't vote for parliament. That was illegitimate. That was one of the basic rallying cries of the American Revolution. These guys who we're not voting for, shouldn't get to directly regulate out internal affairs and shouldn't get to tax us. That's the American position as of 1776. So that's what the revolution is all about and you see a reflection of that in Article One. Now, the Declaration of Independence is also declaring independence from the king. George the Third was viewed by Americans as a tyrant a despot. And Article Two is a reflection of how we don't want our president to be like England's king. We don't want our George, George Washington, to look like England's George, George the Third. And so we try to structure a presidency that has some of the virtues of the English monarchy, stability, at its best. English Monarchy at it's best. Stability in foreign affairs, a strong military leadership and, and commitment to national security. But, with all sorts of democratic safeguards of election and impeachment and checks and balances and the like. So Article One reflects the American Revolution. The Congress has to be Representative. Article Two reflects the American Revolution. We want a president who's very strong like a king, but isn't going to be tyrannical like a king, isn't going to be possibly an idiot or stupid, like a King can be, because in England, you're just born to the position and, and maybe you're just really not frankly equipped to govern, but there you have it. You're a king nonetheless. And America's Constitution in Articles One and Two, are a reflection of the American revolution, so too with Article Three. Here's the payoff point. It's said that, that judges in the colonies generally were not patriot leaders. In ten they were picked by the king in most of the colonies. Whereas legislatures had, local legislatures were picked by the citizenry, and, and governors in many of the states, at least were picked by the, the citizenry. Not in all the states, but in some of them were picked by the citizenry. But judges generally, in, in most of the states were picked by the Crown. They were loyal to King George. The payoff fact is that at the time of the American Revolution, the chief judges in 10 of the 13 colonies sided with George the Third and not George Washington. So judges are not the heroes of the American Revolution. Local militias are, local juries are playing an important role in resisting Parliamentary taxation by sort of acquitting tax smugglers and tax cheats and custom smugglers and the like. So juries are the heroes of American Revolution, local assemblies that mobilize. The colonialist are heroes of the American Revolution, local militias are, are seen as very important in this process, Lexington and Concord and Bunker Hill. George Washington is a hero of Revol-, of the Revolution. Judges, not so much. Now, by the time of the Philadelphia Convention, in 1787, 11 years after the Declaration of Independence, we've had, a regime in which and now actually the colonies have become self-governing states and the king isn't picking the judges, in fact. So Americans are picking their own judges. And so you might think the, the time is right for a more robust expression of judicial power. And there is more judicial power in Article Three than you see in many of the state constitutions. In all the state constitutions that emerged after the Revolution, the Judiciary's kind of third out of three. It's the least powerful branch. It's typically picked by the Legislature or, and doesn't have the same kinds of in many states, the same kinds of, of independence that Article Three will give federal judges. In in only one state, Massachusetts, does the constitution have three separate sections of the constitution for the three branches of government. And even then, typically and even then, the judiciary is, is third and with the least amount of text in that constitution. So, in the state constitutions, the judiciary tends to be sort of the weak a very weak branch, vis a vi, the legislature. And many of the state constitutions' governors were quite weak. These were state constitutions dominated by the legislative branch. Now by the time of the Philadelphia Convention, a lot of, of the Federalists, the supports of the Constitution think that these state constitutions are actually bad because they have inbalanced power structures. The legislatures are too powerful, and there's not enough of a check on them. I think of the 39 people who were, at, Philadelphia, six 39 signers of the Constitution at, at Philadelphia, six, actually, had been prominent state or, or continental judges. And and many of the, the great lawyers of America were at the Philadelphia Convention. And some of them might have image themselves that they might be judges under the new system that was being created. And in fact, of the first six Supreme Court Justices, half of 'em are members of the Philadelphia Convention, three of the six. And actually of the five more that Washington gets to appoint over the course of, of his admin-, of his two terms, two more are, are from Philadelphia. So, so the, the, theframers of the Constitution are creating a robust judiciary in part because some of them imagined that they will occupy this, this position. But still and we're going to see that there are some special protections that, that are built into Article Three, but let's just again, emphasize it's third out of three. Let's think about a few ways in which it's still third out of three, not just textually, in, in order, and in the amount of text, but, kind of structurally. So first of all, there's a kind of democratic logic or just conceptual logic to the order. First, actually the Legislature has to pass laws, and then they have to be implemented, that's Article One, they have to be implemented by an Executive branch. And then, if people don't like that, cases come to court, the execute prosecutes some people, some people sue. The executive branch sue government, and things come to court. So, the Legislature first passes a law Article One, president executes it, Article Two, court cases arise Article Three. And that's just kind of a natural order. In 1788 once the Constitution has been ratified, the new government that springs to life is going to materialize in a certain order. First the Congress has to meet, Article One. They have to meet first to count the electoral votes. And so only after the electoral votes are counted does the president kind of come on the scene, Article Two, chronologically. And only after both Congress and the president are in place, actually can you have, will they be able to pass laws creating actually the judiciary structure. Because Article Three as we're going to see, does not specify how many judges are going to be on the Supreme Court, how many lower Federal Courts you can have. It gives those decisions to Congress. It specifies there will be one Supreme Court, and such inferior courts as Congress may from time to time ordain established. But Congress is going to basically shape the structure of the Judiciary to an important extent. So the Judiciary chronologically of the founding, materializes third. First the Congress comes on the scene, then they count the electoral votes, and then Washington is summoned. He appears, and then once he is there to sign or veto laws, you can have bills emerge structuring the judiciary. The most important early statute is called the Judiciary Act of 1789. It's passed in September of 1789, and it basically sets up the early Judiciary and puts it into operation. And this reminds us of a kind of a larger democratic pyramid that you see in the Constitution. The Preamble begins, it's the most democratic it's the base of this sort of great pyramid with exceptional pol- participation by ordinary citizens, we the people, property qualifications lowered or eliminated in eight of the 13 states. So the constitution begins with a very broad, popular mandate in the preamble. Article One, very, ru- ru- ru-, popular, branch of government. And Congress being, being created. Article Two, a little bit more removed from the people. The Executive Branch with a more indirect means of election through the electoral college. Article Three is that the, the, the apex of the pyramid it's but it's, it's the least democratic. It's furthest removed from the people. And the basic structure of the Constitution is more democratic branches should select less democratic, not vice versa. So for example judges don't pick other judges. Presidents pick judges. And judges don't pick their, their Chief Justice, actually, politicians do. In the House of Representatives, the politicians pick their own Speaker. The Senate picks their own Pre-, Presiding Officer, President Pro Tem, or Senate Majority leader. So, in the Legislature, each branch picks it's own leaders. But the judges don't pick the Chief Justice; they don't get to pick that. In the Legislature let's take the Executive branch. Presidents get to pick cabinet officers, their assistants, but Justices don't get to pick lower judges. Each House gets to decide kind of how it's going to operate with rules of its own procedure. But actually a Congress by law can specify many of the procedures of the Judiciary. What the rules of evidence are going to be, what the rules of civil and criminal procedure are going to be. Congress even has power to decide how many justices there are going to be, how many lower courts there are going to be. Presidents can fire cabinet officers at will, as we talked about before. Justices can't fire lower court judges at will. So the Judiciary has sort of less regulatory power. it, to some extent, is under the control of the other more politically accountable branches. So there's, like, this grand dem-, democratic pyramid. Preamble first, it's the broadest base, Article One, second, is the next broadest populous base, Article Two, a little bit less broad, and, and the Judiciary on top. And more politically accountable bodies are picking less politically accountable bodies, not vice versa. That's why many of us, that's a structure reason why many of us actually had some real questions about Bush versus Gore. The Supreme Court case because under the Constitution, Presidents are supposed to be picking judges, not judges picking Presidents. So you see the, the thirdness, the the how the Judiciary Is the least dangerous branch. That's a phrase from Alexander Hamilton's Federalist number 78, one of a series of newspaper op-eds that the Federalist write in support of the Constitution. You see how the judiciaries in some way is the least dangerous branch. Now, Federalist 78 says that judges are going to have the power to refuse to enforce laws that they deem unconstitutional. We call that judicial review, and I think that is absolutely bedrock in our system. Federalist 78 defends that idea. The Anti-Federalist understood this. Some of them were critical of it, but they understood that judicial review was going to be part of the system. Several state courts had already begun to hold unconstitutional state statutes as violations of state constitutions. so, the idea of judicial review was kind of in the air. There was some uncertainty about exactly when and how state judges should do this, how often they had done it. But I think the framers of the Constitution did expect that federal judges would decline to enforce laws that the federal judges thought were unconstitutional even if the House, and the Senate, and the President thought that these were perfectly valid laws. Now, remember that's not a unique power of the judiciary. People in the House of Representatives can vote against the law and should if they think it's unconstitutional, even if they know the Supreme Court would uphold it. And so too with the Senate. So even today, after the Supreme Court has upheld the Obamacare legislation, it's perfectly permissible for members of the House and Senate to say, we still think it's unconstitutional, and we're going to try to repeal it. We're not going to fund it. That's a constitutionally permissible thing for them to do. Now I happen to think, and we can get into this later perhaps so that the statute, the Obamacare statute is not unconstitutional. But our system of government creates multiple checks and balances against an arguably unconstitutional law. The house can vote against it, and if the house votes against, it doesn't become a law, even if the court would uphold it. And so too with a Senate, and a president can veto it and and he can pardon people who are convicted under statutes that he thinks is unconstitutional. Even after judges have upheld convictions, presidents can pardon people. Thomas Jefferson pardons people convicted under the Sedition Act even after, the Sedition Act of, of 1798 part of the Alien Sedition Acts because Thomas Jefferson thinks that's an unconstitutional statute, even though courts have upheld that statute. So just as the House can basically, sometimes be the last word and just say no and make the no stick if the no is we think it's unconstitutional. And the Senate and the President, so too would the Judiciary. The Judiciary has this power to refuse to enforce any law that it deems unconstitutional. To bolster that power, the Judiciary is given life tenure independence from the, the Legislature. Once selected, it's a political selection process. Presidents pick judges, and they can pick them by paying attention to the judge's philosophy, and from the beginning, presidents have tended to likely judicial philosophy of appointees. Washington, early on, picked only Federalists for the court. And for much of Amer-, most of American history, presidents have tended to pick on judges that they think support their general vision. And the Senate too can, can confirm judges that they believe have a proper judicial philosophy. So it's a political selection process with the Presidency and the Senate But once the judges are selected, they have, life tenure, tenure for good behavior in the language of the Constitution. They can't just be sacked as a cabinet officer can if the president decides he doesn't like their opinions. Their salary is undiminishable, it can't go down. It can go up and and that's because they sit for life there may be inflation, and there may be a need for salary adjustments. But they have once selected, some independence. And Federalist 78 tells us that one of the most important reasons that they have judicial independence is there is going to be this power of judicial review. They are on occasion going to need to invalidate laws or refuse to enforce laws that they in their own mind, think is, uncon-, think are unconstitutional. And Hamilton in 78 says, when law, when they believe the laws are contrary to the manifest tenor of the Constitution and are kind of clearly unconstitutional, the judges should simply just, just say, no. Now, there is judicial review, but the question is how robust a vision of judicial review did the framers really imagine? Did they imagine judges striking down all sorts of laws all the time or just occasionally? Did they imagine judges would strike down laws that were only arguably unconstitutional or instead strike down laws that were clearly and undeniably unconstitutional? Did they imagine the judges would strike down mainly laws regulating the judiciary itself or all sorts of other statutes? So, there is judicial review in the Constitution, but what kind of judicial review? How do juries fit into the whole equation? These are some of the questions we're going to talk about in our next lecture. And we'll come back to this picture of John Marshall. So stay tuned. [MUSIC] [SOUND]
