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I'm Walter Isaacson of the Aspen incident and with Jeffrey Rosen of the National Constitution Center talking about the Constitution let's look at article three that's the one that touch up the judiciary it says the judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress made from time to time ordain and establish so what are they doing here making a third branch of government they are making a third branch and they're putting the Supreme Court at the head of that branch and it's fully equal to the other two on the other hand Alexander Hamilton said that the judicial branch would be the least dangerous branch because it had neither person or sword I think it's fair to say that the framers spent less time worrying about the nature of the judiciary and they did about Congress in the president in section 2 they enumerate what cases the courts are supposed to look at it seems pretty narrow why is that it is look at this the original jurisdiction of the Supreme Court that is the cases they have to hear whether they want to or not is a relatively small category of pretty technical cases affecting ambassadors maritime jurisdiction controversies between two states all this means that the Supreme Court has incredibly broad jurisdiction or and discretion to hear or not to hear whatever cases they like and the number of cases they have to hear is pretty small well the main thing we figure that the Supreme Court does is it reviews laws passed by Congress and actions of the President to see whether or not their constitutional but I'm not trying to see that in article three well that's a very good point where does this power of judicial review as its called come from judicial review the power to strike down laws that violate the Constitution so when we say the Affordable Care Act it seems unconstitutional let's go to the Supreme Court see if they'll strike it down that's what you mean by judicial review right exactly right judge is taking a law passed by Congress comparing it to the Constitution and saying whether or not it passes muster so you're right that the words judicial review don't appear in the Constitution but in fact the power was deeply rooted in English common law there were cases from the 1760s where courts had struck down laws that violated common law but really the theory comes from Alexander Hamilton in Federalist 78 here's what Alexander Hamilton said he said that when there's a conflict between the will of the people represented by the Constitution and the will of the people's servants represented by laws passed by ordinary legislators then judges should prefer that of the master to that of the servant that of the principal to that of the agent so the entire theory of judicial review expressed in this idea of popular sovereignty is based on the notion that the Constitution stands for the will of the people and an ordinary law passed by Congress just represents the will of our representatives you just invoke the federalist papers and that was sort of the documents at Madison and Jay and Hamilton and others work together on to explain what the Constitution met so when we're interpreting this constitution does it make sense to go back to those papers is that's why you did so it's it's a great question and I think the answer is yes it's certainly relevant to ask what Madison and Hamilton and Jay wrote in the Federalist Papers not only because they were such important members of the Constitutional Convention and because Madison is considered the principal framer of the Constitution but because the Federalist Papers were the public documents that we the people who ratified the Constitution read and when we care when we try to figure out the original understanding of the Constitution we're less interested in what James Madison thought then what the people who ratified the Constitution thought because it was the ratification that breathed life into the Constitution and made it fair for us to consider it as representing the people's sovereign will so that's why the federalist papers are important so what was the case so when did we finally get it settled that when there was a dispute between two branches of government it would be the supreme court who had the final word well the case was Maori versus Madison and it was decided by John Marshall and it was such a fascinating case because it was a political conflict between thomas jefferson and john marshall that could have meant the end of the judiciary first of all marshall and jefferson who were distant cousins hated each other they were they generally happens the two gentleman from Virginia right it's just it's very tough and I think there was some family bad blood they had this family feud and essentially here's the situation in the waning days of the Adams administration John Adams and his secretary of state who happened to be John Marshall hits all night signing these commissions for various federal officials Marshall as Secretary of State was supposed to deliver the Commission's but he forgot to do it he was busy with other stuff so men Thomas Jefferson gets into office and one guy who was supposed to have gotten his commission Marbury says I'm entitled to my commission Supreme Court force president Jefferson to deliver the Commission so here's the dilemma if John Marshall who is now sitting on the Supreme Court and by the way should have refused to hear the case since he had been responsible for the mess that led to it in the first place if Marshall says to Thomas Jefferson deliver the Commission's Jefferson's going to ignore him and reveal the court to be a paper tiger if Marshall backs down and refused to say he has the power to do anything he'll look weak so he exercises an act of judicial jujitsu which in retrospect is sort of dazzling in its hutzpah to mix my metaphors definitely boy Marshall says yes Marshalls entire Matt Marberry is entitled to his commission it should have been delivered and therefore usually for every right there's a remedy however and here's the kicker the federal act that authorizes Marshall Marbury to receive his commission itself is unconstitutional because it exceeds the original jurisdiction of the Supreme Court that we just read together so it's a temporary victory for President Jefferson who doesn't have to deliver the Commission but a long term victory for federal power because Marshall has established this power of judicial review it's an incredible example of long-term thinking and so this is 1803 about 20 years after the Constitution is done and that really sets in stone that we have three branches that are pretty much co-equal because even though the judiciary doesn't do quite as much it has the final word when there's a dispute it does of the final word John Marshall said it's a constitution we're expanding and at the very least all three branches of government have to agree that a law is constitutional before it can go into effect Jeffrey Rosen thank you thank you