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.