Yes in a way, but also, it's very hard to envision any other way the American Government could function, under the constitution, if the Judiciary did not have this power. The Constitution, by its very nature, is the supreme law of the land, and in cases where there arise a conflict between any other law and the Constitution itself, something has to give. The Constitution itself doesn't explicitly say how to resolve these conflicts, and yet they MUST be resolved, and where else could they be resolved, and how, other than by judicial review?
Marbury did not strike down the Judiciary Act of 1789 in its entirety. The decision affected only that provision giving it the power to issue a writ of mandamus.
@@jeffreykaplan1 This is important because early legislation by Congress is considered as "The Second Federalist" (books.google.com/books?id=_1wKTKv7JCEC&lpg=PR4&ots=8FPCgncyz6&dq=%22second%20federalist%22&lr&pg=PR4#v=onepage&q=%22second%20federalist%22&f=false). Marbury is a bit of an embarrassment on this point.
Gary Hoffman: Thanks for the correction. Now the whole case makes sense because the clauses of the Writ of Mandamus were ADDED illegally by an unconstitutional manner in essence. Thanks!
Our judiciary uses very forceful language to characterize what it does to statutes when it engaged in judicial review: it strikes down, nullifies, invalidates etc. those statutory provisions it finds to be in conflict with the Constitution. It fact, it does no such thing and cannot because it has no power to invalidate statutory provisions (i.e., cause it to be no longer on the books as a law; only the legislature can do that by repealing them). This is illustrated by the fact that many specialized constitutional courts, e.g., in European countries, are explicitly authorized to do just that, i.e., invalidate a statutory provision, thereby erasing it from the law books. In the US claim and exercise the authority to refuse to apply a validly enacted statute, because they find that it conflicts with the Constitution. That statute remains in effect. This is illustrated by the example of the Dobbs decision: state statutes which, according to Roe v. Wade, were in conflict with the Constitution, remained legally valid but inapplicable. Once Dobbs overruled Roe, the states were once again free to apply such statutes. I believe in one state, the applicable statute on abortion was enacted in 1850's.
How do you not have more subscribers! You're teaching Set Theory, Philosphy and Ethics, Historical events.... I would have like to have had more professors like you when I went to school.
Odd you mention they died the same day, but not what day it was. They both died on July 4th 1826, exactly 50 years after the signing of the Declaration of Independence.
This is your best video yet, Jeffrey... an explanation of the most complicated, strange, yet important Supreme Court decision of all time. Good job, because I first read about this decision when I was a teenager, but I never realized that Marshall actually should have recused himself but didn't. (That's a fascinating detail I appreciate knowing.) Where you rise almost to genius, I think, is near the end, where you point out that a rule becomes a rule, quite often, because someone cleverly promulgates it when the opposition isn't going to be that strong and very carefully re-asserts the rule, judiciously :)), until it finally gets accepted. And you're right. Marshal was very clever in introducing judicial review in such a way Jefferson wouldn't react against it... because the end result of the case is that Jefferson won! And you are right, the real power of judicial review was asserted only very gradually. But one thing is missing from this lecture. The best part of the opinion was Marshal's brilliant analysis of why, logically, the Constitution must be regarded as higher than statutory law, or the distinction between the two would evaporate. Specifically, if Congress could just change the meaning of the Constitution by a simple majority vote, then they'd be passing Constitutional amendments, in effect, and the process in Article V, for passing and ratifying amendments, would be superfluous. Logically, the Constitution must be more fundamental than statutory law, but that ultimately -- as Marshal brilliantly argued -- implied judicial review. And Marshal is not without any Constitutional grounds at all. The phrase "the judges and justices shall interpret the law" DOES appear in the Constitution, but admittedly that is a small plank on which to build the awesome power of judicial review. And thank you for the SELF FACT CHECKS! I had read that judicial review happened in the UK but that it had been very, very rare. In any case, the Founders in the USA debated it. Hamilton was in favor, Jefferson strongly opposed, because it was anti-democratic. The ultimate irony was that Jefferson was handed the win in Marbury v. Madison so he couldn't dispute the opinion! And I also noticed that at 10:23 or so, you said "justice of the Supreme Court" rather than "justice of the peace."
The most ironic fact of Marbury v. Madison was that it was Madison himself who argued for the power of judicial review during the Constitutional Convention, stating: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." Again, it's really not accurate to say that the SCOTUS "gave itself" the power of judicial review. Judicial review was already an accepted part of the common law tradition, it had been exercised multiple times by American courts in the decades immediately prior to ratification of the Constitution, and the originalist, texturalist reading of the Constitution as ratified clearly assumes this authority in Article III, Section 2 and Article VI, paragraph 2. The power of judicial review was specifically recognized by the Framers, Madison himself being the primary author of the Constitution.
It has always fascinated me how even at the very beginning of America, politics were every bit as, if not more, cutthroat and shady as today lol Not only did Adams and Jefferson die on the same day, it was also July 4th, 1826. Exactly 50 years after 1776. One of my absolute favorite historical facts.
Well.. There were indeed notions of JR in the UK, yes, but here it worked/works very differently. There is no constitutional court in the UK, strictly speaking. It might be suggested that the term had different meanings in each country. Primary legislation in the UK is not subject to JR (as parliament is supreme and can legislate as it pleases), however secondary/delegated legislation - as well as the decisions of ministers/public bodies as well as so called prerogative powers - are. Any such review is primarily said to preclude acts/orders/decisions/etc that exceed powers granted by parliament, as well as the decisions of ministers that are 'Wednesbury' unreasonable or irrational. If I remember UK constitutional law well enough, that is! OT: fascinating lecture, this man is absolute legend, by the way! Such a great teacher and admittedly I have had a bit of a man crush having binged on this whole playlist 🤦♂️ These videos are also about to save my ass on a Jurisprudence exam, as with many other commentators on this channel. Both facts very embarrassing... Anyway, thank you, Prof. Kaplan, you have my most fervent gratitude! Here's hoping I'll be able to take a proper class of yours in the future or perhaps buy a publication.
First they stick their big toe into the door jam to curtail unconstitutionality and then turn around and routinely show a refusal to declare many of the most arbitrary laws in the history of man, unconditional. It’s absurd to show the people you will preserve the blessings of liberty and then refuse to do so out of fear of jurisdiction stripping.
Karl Rove is at it since the 1800s!!! Imagine if there was Twitter and WhatsApp then ... A serious question: was this shady stuff common practice then? Did it ever stop happening? Thanks!
The constitution said exactly that the role of the surpreme court is to judge if the congress pass legal law under the interpretation of the u.s constitution that why they had power to say if government law is legal or not legal...you need to edited this presentation otherwise the u.s. law goes down the sewage..sir
I generally applaud Kaplan's work, he is very helpful in understanding philosophical thought. However I have to take issue with some major points in his M v M analysis. SCOTUS did not invent judicial review out of whole cloth. It was clearly intended for this to be the case and can be seen in the structure of the government and respective powers. And it that isn't enough for you, it was clearly presented in the Federalist Papers some 20 years before M v M. It's plainly incorrect and irresponsible to say SCOTUS just invented it out of thin air. Kaplan implies pretty heavily at the end that it is ok for us to just decide what we want the Constitution and all laws to be just interpret it that way going forward is a post-modernist anti-Rule of Law narrative that I hope all right thinking people oppose.
this system is vastly inferior to most european tradition where there are constitutional court and superme court and those are different, constitutional court supervises the parliament's lawmaking process compared to the constitution and the supreme court supervises the lower court system decision making compared to the law itself the us system mixes up two completely different processes and gives too much power to a single court
Love the fact you teach law and Philosophy, please keep up the good work
What an amazing historical tale brought to life here. This is brought up in US History classes but not at all in this lively and impactful way.
I am an Indian Law school student
And i have been binge watching your channel from last 3 months
Great job Jeffrey!!
Hey! Which university/college?
Are you interested in comparative law.
Marbury v. Madison is the most epic example of "Because I said so." Playing out.
Yes in a way, but also, it's very hard to envision any other way the American Government could function, under the constitution, if the Judiciary did not have this power. The Constitution, by its very nature, is the supreme law of the land, and in cases where there arise a conflict between any other law and the Constitution itself, something has to give. The Constitution itself doesn't explicitly say how to resolve these conflicts, and yet they MUST be resolved, and where else could they be resolved, and how, other than by judicial review?
Unique teaching style which sticks for life. Chapeau
i have never heard this case explained so clearly and with such attention to the historical context
amazingly done
Marbury did not strike down the Judiciary Act of 1789 in its entirety. The decision affected only that provision giving it the power to issue a writ of mandamus.
Fair point. Thank you!
@@jeffreykaplan1 This is important because early legislation by Congress is considered as "The Second Federalist" (books.google.com/books?id=_1wKTKv7JCEC&lpg=PR4&ots=8FPCgncyz6&dq=%22second%20federalist%22&lr&pg=PR4#v=onepage&q=%22second%20federalist%22&f=false). Marbury is a bit of an embarrassment on this point.
My favorite description so far!!! Well done
Gary Hoffman: Thanks for the correction. Now the whole case makes sense because the clauses of the Writ of Mandamus were ADDED illegally by an unconstitutional manner in essence. Thanks!
Our judiciary uses very forceful language to characterize what it does to statutes when it engaged in judicial review: it strikes down, nullifies, invalidates etc. those statutory provisions it finds to be in conflict with the Constitution. It fact, it does no such thing and cannot because it has no power to invalidate statutory provisions (i.e., cause it to be no longer on the books as a law; only the legislature can do that by repealing them). This is illustrated by the fact that many specialized constitutional courts, e.g., in European countries, are explicitly authorized to do just that, i.e., invalidate a statutory provision, thereby erasing it from the law books. In the US claim and exercise the authority to refuse to apply a validly enacted statute, because they find that it conflicts with the Constitution. That statute remains in effect. This is illustrated by the example of the Dobbs decision: state statutes which, according to Roe v. Wade, were in conflict with the Constitution, remained legally valid but inapplicable. Once Dobbs overruled Roe, the states were once again free to apply such statutes. I believe in one state, the applicable statute on abortion was enacted in 1850's.
How do you not have more subscribers! You're teaching Set Theory, Philosphy and Ethics, Historical events.... I would have like to have had more professors like you when I went to school.
Enjoyable, witty and interesting. Thank you.
Beautiful explanation. Interesting and intriguing style of presenting this piece of American political/judicial history.
This is my new favorite law channel now. 👍🏻
Great video. Well, that's explains the mess we have been seeing. It's always been this way, since the beginning of the USA.
Amazing and excellent context..
Odd you mention they died the same day, but not what day it was. They both died on July 4th 1826, exactly 50 years after the signing of the Declaration of Independence.
Thank you Sir. I now understand this case
This is your best video yet, Jeffrey... an explanation of the most complicated, strange, yet important Supreme Court decision of all time. Good job, because I first read about this decision when I was a teenager, but I never realized that Marshall actually should have recused himself but didn't. (That's a fascinating detail I appreciate knowing.)
Where you rise almost to genius, I think, is near the end, where you point out that a rule becomes a rule, quite often, because someone cleverly promulgates it when the opposition isn't going to be that strong and very carefully re-asserts the rule, judiciously :)), until it finally gets accepted. And you're right. Marshal was very clever in introducing judicial review in such a way Jefferson wouldn't react against it... because the end result of the case is that Jefferson won! And you are right, the real power of judicial review was asserted only very gradually.
But one thing is missing from this lecture. The best part of the opinion was Marshal's brilliant analysis of why, logically, the Constitution must be regarded as higher than statutory law, or the distinction between the two would evaporate. Specifically, if Congress could just change the meaning of the Constitution by a simple majority vote, then they'd be passing Constitutional amendments, in effect, and the process in Article V, for passing and ratifying amendments, would be superfluous. Logically, the Constitution must be more fundamental than statutory law, but that ultimately -- as Marshal brilliantly argued -- implied judicial review.
And Marshal is not without any Constitutional grounds at all. The phrase "the judges and justices shall interpret the law" DOES appear in the Constitution, but admittedly that is a small plank on which to build the awesome power of judicial review.
And thank you for the SELF FACT CHECKS! I had read that judicial review happened in the UK but that it had been very, very rare. In any case, the Founders in the USA debated it. Hamilton was in favor, Jefferson strongly opposed, because it was anti-democratic. The ultimate irony was that Jefferson was handed the win in Marbury v. Madison so he couldn't dispute the opinion!
And I also noticed that at 10:23 or so, you said "justice of the Supreme Court" rather than "justice of the peace."
How can I sue the department of the veteran affair in the surpreme court
In Brazil, Justices of the Peace are people that can to civil unions - marriages under the law.
🔥🔥🔥
The most ironic fact of Marbury v. Madison was that it was Madison himself who argued for the power of judicial review during the Constitutional Convention, stating: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void."
Again, it's really not accurate to say that the SCOTUS "gave itself" the power of judicial review. Judicial review was already an accepted part of the common law tradition, it had been exercised multiple times by American courts in the decades immediately prior to ratification of the Constitution, and the originalist, texturalist reading of the Constitution as ratified clearly assumes this authority in Article III, Section 2 and Article VI, paragraph 2. The power of judicial review was specifically recognized by the Framers, Madison himself being the primary author of the Constitution.
20:05 This is the same way that the IRS gained it's powers.
It has always fascinated me how even at the very beginning of America, politics were every bit as, if not more, cutthroat and shady as today lol
Not only did Adams and Jefferson die on the same day, it was also July 4th, 1826. Exactly 50 years after 1776. One of my absolute favorite historical facts.
Well.. There were indeed notions of JR in the UK, yes, but here it worked/works very differently. There is no constitutional court in the UK, strictly speaking. It might be suggested that the term had different meanings in each country. Primary legislation in the UK is not subject to JR (as parliament is supreme and can legislate as it pleases), however secondary/delegated legislation - as well as the decisions of ministers/public bodies as well as so called prerogative powers - are. Any such review is primarily said to preclude acts/orders/decisions/etc that exceed powers granted by parliament, as well as the decisions of ministers that are 'Wednesbury' unreasonable or irrational. If I remember UK constitutional law well enough, that is!
OT: fascinating lecture, this man is absolute legend, by the way! Such a great teacher and admittedly I have had a bit of a man crush having binged on this whole playlist 🤦♂️ These videos are also about to save my ass on a Jurisprudence exam, as with many other commentators on this channel. Both facts very embarrassing... Anyway, thank you, Prof. Kaplan, you have my most fervent gratitude! Here's hoping I'll be able to take a proper class of yours in the future or perhaps buy a publication.
First they stick their big toe into the door jam to curtail unconstitutionality and then turn around and routinely show a refusal to declare many of the most arbitrary laws in the history of man, unconditional. It’s absurd to show the people you will preserve the blessings of liberty and then refuse to do so out of fear of jurisdiction stripping.
Karl Rove is at it since the 1800s!!! Imagine if there was Twitter and WhatsApp then ... A serious question: was this shady stuff common practice then? Did it ever stop happening? Thanks!
And here I was thinking US politics today was bad.
HOW DO YOU RIGHT IN REVERSE SO EASILY!!!! LOL
The constitution said exactly that the role of the surpreme court is to judge if the congress pass legal law under the interpretation of the u.s constitution that why they had power to say if government law is legal or not legal...you need to edited this presentation otherwise the u.s. law goes down the sewage..sir
I generally applaud Kaplan's work, he is very helpful in understanding philosophical thought. However I have to take issue with some major points in his M v M analysis.
SCOTUS did not invent judicial review out of whole cloth. It was clearly intended for this to be the case and can be seen in the structure of the government and respective powers. And it that isn't enough for you, it was clearly presented in the Federalist Papers some 20 years before M v M.
It's plainly incorrect and irresponsible to say SCOTUS just invented it out of thin air.
Kaplan implies pretty heavily at the end that it is ok for us to just decide what we want the Constitution and all laws to be just interpret it that way going forward is a post-modernist anti-Rule of Law narrative that I hope all right thinking people oppose.
Appears campaigning for the presidency hasn’t changed very much in all these years.
This video focuses too much on the 1800 election. Yes, Jefferson and Madison did die on the same day, which happened to be the 4th of July.
this system is vastly inferior to most european tradition where there are constitutional court and superme court and those are different, constitutional court supervises the parliament's lawmaking process compared to the constitution and the supreme court supervises the lower court system decision making compared to the law itself
the us system mixes up two completely different processes and gives too much power to a single court