NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features Professor Ilan Wurman, a visiting assistant professor at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017). As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker _ PUBLIUS: Today we’re talking with Professor Ilan Wurman, who discusses the similarities and differences between the judicial power, and the legislative and executive powers. Is the Legislative branch more powerful than the Judicial branch? What is the power of judicial review and where did it come from? ILAN WURMAN: The structure of the federal judicial power is very similar to the structure of the legislative power. Congress is only granted specific enumerated powers in Article I of the Constitution. Well, similarly in Article III of the Constitution, the federal judicial power extends to only certain kinds of cases in certain kinds of controversies. The federal judicial power only extends to cases, for example, arising under the laws of the United States or the Constitution or treaties. It extends to cases affecting ambassadors and public ministers. It extends to cases of admiralty. The federal judicial power also extends to any case involving certain kinds of parties, for example, if the United States is a party or if a state is a party, or diversity jurisdiction. In other words, the federal judicial power extends to a certain number of enumerated classes of cases. Some deal with subject matter, and some deal with who the parties are to the lawsuit. Much like state legislatures have broader legislative power than Congress does, state courts have a broader judicial power than the federal court system. That's because not only can state courts hear cases arising under state law, but any private dispute between citizens is cognizable in a state court. The federal courts are more limited. The federal courts can only hear questions arising under federal law or cases involving certain kinds of parties, namely citizens of different states in which a state is a party. When citizens are of different states, Congress often imposes an additional amount in controversy requirement. This limits the jurisdiction of the federal courts. They are not courts of unlimited and general jurisdiction. On the other hand, state courts are courts of general jurisdiction. Any case, any controversy arising between two state citizens can be cognizable or can be heard in a state court subject to the other rules of justiciability. The federal courts most often hear two kinds of cases. They tend to hear federal question cases. These are cases that arise under the Constitution, the laws of the United States, or treaties. These are federal question cases, because they deal with the substance of the law, federal law. The federal courts also hear other kinds of cases that may or may not involve federal questions. They could involve questions of state law. These kinds of cases depend on the parties to the case. If there is a diversity suit, a suit between citizens of two different states that meets a certain amount in controversy, a certain threshold of money damages that are at stake, the federal courts have the power to hear these disputes between citizens of different states even if the law governing that dispute is not federal law but rather something like state law. PUBLIUS: What is it that judges have the power to do in these cases? What is the judicial “power”? ILAN WURMAN: The federal judicial power is the power of the federal courts to decide certain cases and controversies. There are certain matters that only federal judges can decide. Only federal judges can decide that there has been a violation of a preexisting law that warrants the deprivation of someone's life, liberty, or property. However, there are certain kinds of judicial-like powers that other branches sometimes also exercises. For example, the executive branch sometimes has to adjudicate cases. It has to decide whether a certain set of legal requirements applies to a certain set of factual circumstances in order to determine whether somebody is entitled to social security benefits or whether someone's entitled to a patent. The judicial power belongs to the federal courts, but there is also this judicial-like power that sometimes other branches can exercise as well. The challenge is distinguishing between the kinds of judicial activities that federal courts must be the ones to do and those judicial activities that other branches can do as well. PUBLIUS: To help us distinguish between the types of activities that the different branches can do, can you tell us a little bit about what the legislative power is, and how that relates to the judicial power? ILAN WURMAN: The judicial power is distinguished from the legislative power. The legislative power is the power to make general and prospective rules for the future. The judicial power involves the adjudication of violations of those existing rules. The judicial power involves a judge determining whether certain facts have occurred or certain acts have been committed that constitute violations under existing law or that create some sort of legal status under existing law. Congress, for example, can't decide that someone should be deprived of life, liberty, or property. Congress can't decide that someone has committed a crime. Congress can't decide to take away preexisting legal rights from somebody. Congress has to pass a prospective general law that only a court can later adjudicate a violation of that law before depriving someone of life, liberty, or property. PUBLIUS: How is the judicial power distinguished from the executive power? The executive power is, at a minimum, the power to execute the laws. This often requires applying laws to particular facts, just like what courts do. Most of the time, the executive doesn’t have final say over the application of laws to facts--judges will usually have the final say. But there are some matters that the executive branch can adjudicate all on its own, like welfare benefits, maybe patent rights. The idea is that some issues involve “public rights” or “privileges,” and these can be adjudicated in the executive branch. But issues involving private rights--quintessentially deprivations of someone’s life, liberty, or property--typically those can be, or ought to be, decided only by the courts. PUBLIUS: The only federal court the Constitution actually seems to require is a Supreme Court. Can you explain why? ILAN WURMAN: The only federal court required by the Constitution is the Supreme Court. Article III says Congress may, but it need not, Congress may from time to time ordain and establish inferior federal courts. This was called the "Madisonian Compromise." The understanding was that it would be up to Congress to create the lower federal courts. If Congress did not create the lower federal courts, the state courts would be able to hear federal claims, but the Supreme Court would be able to review the decisions of the state courts involving questions of federal law. Early on, the first Congress did conclude that it was worth establishing a federal judiciary, and so the first Congress and the Judiciary Act of 1789 did in fact create and establish lower federal courts, including appellate courts in which the Supreme Court would, actually, the Supreme Court justices would ride circuit. When the first Congress created the lower federal courts, however, Congress did not grant them the full jurisdiction permitted them by Article III of the Constitution. The argument went that if Congress does not have to create the federal courts at all, if Congress can rely instead on the state courts, then surely Congress can create federal courts but limit their jurisdiction. Surely, Congress could create a federal patent court to only hear patent claims or a federal land court to only hear public land claims. Very early on, because Congress did not have to create the lower federal courts, it interpreted this ability to mean that it could also create federal courts but limit their jurisdiction. PUBLIUS: Can you tell us more about the Madisonian Compromise? What jurisdiction do state courts have? Does it overlap with federal court jurisdiction? ILAN WURMAN: The Madisonian Compromise was the compromise in the Constitution by which the framers agreed that there would be at least one federal court, a supreme court, but that the existence of the lower federal courts, of inferior federal courts, would be up for Congress to decide in its discretion in the future. Thus, according to the Madisonian Compromise, state courts themselves could actually hear federal claims. These cases would be subject to review in the Supreme Court of the United States, but nevertheless states and not lower federal courts could hear federal cases as well, and in some sense thereby exercise the federal judicial power. Since the Judiciary Act of 1789, we've always had federal courts. They've never had the full jurisdiction permitted to them by Article III, but they've nevertheless had a robust jurisdiction. In this sense, although state courts do hear federal questions and do hear federal cases, most federal cases today really do occur in the federal courts. Because of the Madisonian Compromise, state courts are allowed to hear federal cases, and they're allowed to hear federal cases even if there are federal courts. Congress sure can make federal court jurisdiction exclusive over certain subject matters, but unless it does that the state courts pursuant of the Madisonian Compromise were understood to have the power to hear federal cases as well. PUBLIUS: Is the Legislative branch more powerful than the Judicial branch because Congress can create (or eliminate) federal courts? How does this work in our system of co-equal separation of powers? ILAN WURMAN: In some sense, because of the Madisonian Compromise, Congress has the ability to write out the federal court system entirely from the constitutional separation of powers, with the exception of the Supreme Court's original jurisdiction. Congress can do this because Congress doesn't have to create lower federal courts at all, but Article III also allows Congress to make exceptions to the appellate jurisdiction of the Supreme Court. In other words, Congress can choose if it wants to get rid of the appellate jurisdiction of the Supreme Court and also not to create lower federal courts, leaving only the minimal original jurisdiction of the Supreme Court. This has raised questions, perplexing questions, over the last 200 years over whether that was really the intent of the framers, if whether Congress really has the ability to effectively write out a separate coequal and coordinate branch of the government from the Constitution. The federal courts and the judicial power are obviously an important component of the constitutional separation of powers, but it's also important to recognize that the framers understood that Congress itself would be an important guarantor of popular rights. Congress recognized early on that the federal courts were important and established them. Ultimately, it may not be inconsistent in a constitutional democracy and a democratic form of government to rely on Congress, on the people's representatives, to ensure a robust and properly working court system. PUBLIUS: Are the alternative ways to understand Article III, or is the Madisonian Compromise the only approach? ILAN WURMAN: Some scholars for many years have argued that this is not the best reading of Article III. Some scholars argue that where Article III says that the judicial power shall be vested in a supreme court or inferior courts, when Article III says that judicial power shall extend to certain cases and certain kinds of controversies, this means that there must be courts, there must be federal courts available to hear these cases because the judicial power shall be vested in those courts and their power shall extend to a certain kind of cases. Of course, the difficulty is the Madisonian Compromise, because Congress did not have to create lower federal courts at all and it could make exceptions to the appellate jurisdiction in the Supreme Court. An alternative reading of the Exceptions Clause is not that Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court leaving it only with its minimal original jurisdiction, an alternative reading to this is that Congress was only intended to have the power to make exceptions between the balance of original and appellate jurisdiction. In other words, Congress could accept certain cases from the appellate jurisdiction of the Supreme Court and make those cases original jurisdiction. Now, this view is contrary to what John Marshall said in Marbury v. Madison. However, if that view were correct, then that means Congress does not have the ability fully to write out the federal courts from our system, because there would always be at least a supreme court who can hear federal cases either in original or appellate form. PUBLIUS: You mentioned the famous case of Marbury v. Madison. Did it dramatically alter how the founders themselves thought about the judicial power? ILAN WURMAN: What Chief Justice Marshall did in Marbury v. Madison was actually quite uncontroversial to the founding generation. They expected the federal courts to give effect to the Constitution over inconsistent federal laws. The founding generation in the Constitutional Convention, in the state ratifying conventions, early jurists, all expected the federal courts to exercise this power of judicial review. It's important to recognize that Marbury v. Madison was not a significant case until after the Civil War. Why might that be? Because to the founding generation, this power of judicial review was noncontroversial, it was expected. The founders in the ratifying conventions, in the constitutional conventions, and in their early writings all expected that the courts would have this power to invalidate legislation inconsistent with the Constitution. Marbury v. Madison stands for the proposition that courts have the power of judicial review. That means when there is a conflict between a federal law or a state law in the Constitution, the Constitution controls the operation of those inconsistent laws. This is very different from what Marbury v. Madison is often taken to mean today. Marbury v. Madison is often taken for the proposition that judges are the supreme interpreters of the Constitution, that whatever they say about the Constitution is the final and ultimate meaning of the Constitution binding on all parties and all branches, but that power of judicial review is the power to decide the operation of a federal law and the Constitution's own law in a particular case or controversy binding particular parties to the case. It was not a power that applied broadly and binded all branches of the government. That is not the same thing as saying that the courts are the ultimate arbiters of what the Constitution means. Congress often has to decide the meaning of the Constitution for its own purposes. The president has to decide the meaning of the Constitution for the president's purposes. Thus, the federal courts upheld the alien and sedition laws in the late 1700s, but Thomas Jefferson believed as president that those laws had been unconstitutional. He didn't defer to the court's judgments as to the constitutionality of those laws but instead exercised his own presidential power, the pardon power, to pardon anyone who had been convicted under these unconstitutional laws. Another example is Dred Scott against Sandford. This infamous case saying that masters had the right to take their slave property anywhere in the United States, thereby repealing constitutionally the Missouri Compromise, Lincoln famously said that that decision was binding only on the party, only on Sanford, only on Dred Scott on his master, and not on the country writ large. He encouraged Congress to exercise its own constitutional duty to interpret the Constitution and to reenact the Missouri Compromise. PUBLIUS: You’ve explained how Marbury v. Madison has been misinterpreted. But what is judicial review? Is it a legitimate judicial power? ILAN WURMAN: The power of judicial review is the power to determine the meaning of the Constitution and thereby to determine the operation of the Constitution, the legal effect of the Constitution. This is not a power to change the meaning of the Constitution. It is not a power to change the actual legal content of the Constitution. The federal courts do not have the power to change the Constitution at will. One of the innovations, one of the advantages of having a written constitution was that that constitution was antecedent to and superior to all branches of the government including the judicial branch, including the federal courts. This means the courts can decide cases pursuant to the laws and pursuant to the Constitution, they could decide cases under the Constitution, but they cannot change the meaning of the Constitution. The Constitution was intended to control the operation of the federal judges just as much as it was intended to control the operation of other government actors. Courts do have the power of judicial review. Judicial review simply recognizes that there is a conflict of laws issue going on when a court has to decide a case under federal law, because the Constitution is also a law. When you have two different laws, the question sometimes arises which law applies. This is a conflict of laws problem. Courts have to decide what law applies and sometimes they have to decide what law is superior to another law. It was not an innovation to conclude that where there are two conflicting laws the courts had to decide the operation of each. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features Professor Ilan Wurman, a visiting assistant professor at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017). As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker _ Today we’re talking with Professor Ilan Wurman, who discusses the similarities and differences between the judicial power, and the legislative and executive powers. Is the Legislative branch more powerful than the Judicial branch? What is the power of judicial review and where did it come from? The structure of the federal judicial power is very similar to the structure of the legislative power. Congress is only granted specific enumerated powers in Article I of the Constitution. Well, similarly in Article III of the Constitution, the federal judicial power extends to only certain kinds of cases in certain kinds of controversies. The federal judicial power only extends to cases, for example, arising under the laws of the United States or the Constitution or treaties. It extends to cases affecting ambassadors and public ministers. It extends to cases of admiralty. The federal judicial power also extends to any case involving certain kinds of parties, for example, if the United States is a party or if a state is a party, or diversity jurisdiction. In other words, the federal judicial power extends to a certain number of enumerated classes of cases. Some deal with subject matter, and some deal with who the parties are to the lawsuit. Much like state legislatures have broader legislative power than Congress does, state courts have a broader judicial power than the federal court system. That's because not only can state courts hear cases arising under state law, but any private dispute between citizens is cognizable in a state court. The federal courts are more limited. The federal courts can only hear questions arising under federal law or cases involving certain kinds of parties, namely citizens of different states in which a state is a party. When citizens are of different states, Congress often imposes an additional amount in controversy requirement. This limits the jurisdiction of the federal courts. They are not courts of unlimited and general jurisdiction. On the other hand, state courts are courts of general jurisdiction. Any case, any controversy arising between two state citizens can be cognizable or can be heard in a state court subject to the other rules of justiciability. The federal courts most often hear two kinds of cases. They tend to hear federal question cases. These are cases that arise under the Constitution, the laws of the United States, or treaties. These are federal question cases, because they deal with the substance of the law, federal law. The federal courts also hear other kinds of cases that may or may not involve federal questions. They could involve questions of state law. These kinds of cases depend on the parties to the case. If there is a diversity suit, a suit between citizens of two different states that meets a certain amount in controversy, a certain threshold of money damages that are at stake, the federal courts have the power to hear these disputes between citizens of different states even if the law governing that dispute is not federal law but rather something like state law. What is it that judges have the power to do in these cases? What is the judicial “power”? The federal judicial power is the power of the federal courts to decide certain cases and controversies. There are certain matters that only federal judges can decide. Only federal judges can decide that there has been a violation of a preexisting law that warrants the deprivation of someone's life, liberty, or property. However, there are certain kinds of judicial-like powers that other branches sometimes also exercises. For example, the executive branch sometimes has to adjudicate cases. It has to decide whether a certain set of legal requirements applies to a certain set of factual circumstances in order to determine whether somebody is entitled to social security benefits or whether someone's entitled to a patent. The judicial power belongs to the federal courts, but there is also this judicial-like power that sometimes other branches can exercise as well. The challenge is distinguishing between the kinds of judicial activities that federal courts must be the ones to do and those judicial activities that other branches can do as well. To help us distinguish between the types of activities that the different branches can do, can you tell us a little bit about what the legislative power is, and how that relates to the judicial power? The judicial power is distinguished from the legislative power. The legislative power is the power to make general and prospective rules for the future. The judicial power involves the adjudication of violations of those existing rules. The judicial power involves a judge determining whether certain facts have occurred or certain acts have been committed that constitute violations under existing law or that create some sort of legal status under existing law. Congress, for example, can't decide that someone should be deprived of life, liberty, or property. Congress can't decide that someone has committed a crime. Congress can't decide to take away preexisting legal rights from somebody. Congress has to pass a prospective general law that only a court can later adjudicate a violation of that law before depriving someone of life, liberty, or property. How is the judicial power distinguished from the executive power? The executive power is, at a minimum, the power to execute the laws. This often requires applying laws to particular facts, just like what courts do. Most of the time, the executive doesn’t have final say over the application of laws to facts--judges will usually have the final say. But there are some matters that the executive branch can adjudicate all on its own, like welfare benefits, maybe patent rights. The idea is that some issues involve “public rights” or “privileges,” and these can be adjudicated in the executive branch. But issues involving private rights--quintessentially deprivations of someone’s life, liberty, or property--typically those can be, or ought to be, decided only by the courts. The only federal court the Constitution actually seems to require is a Supreme Court. Can you explain why? The only federal court required by the Constitution is the Supreme Court. Article III says Congress may, but it need not, Congress may from time to time ordain and establish inferior federal courts. This was called the "Madisonian Compromise." The understanding was that it would be up to Congress to create the lower federal courts. If Congress did not create the lower federal courts, the state courts would be able to hear federal claims, but the Supreme Court would be able to review the decisions of the state courts involving questions of federal law. Early on, the first Congress did conclude that it was worth establishing a federal judiciary, and so the first Congress and the Judiciary Act of 1789 did in fact create and establish lower federal courts, including appellate courts in which the Supreme Court would, actually, the Supreme Court justices would ride circuit. When the first Congress created the lower federal courts, however, Congress did not grant them the full jurisdiction permitted them by Article III of the Constitution. The argument went that if Congress does not have to create the federal courts at all, if Congress can rely instead on the state courts, then surely Congress can create federal courts but limit their jurisdiction. Surely, Congress could create a federal patent court to only hear patent claims or a federal land court to only hear public land claims. Very early on, because Congress did not have to create the lower federal courts, it interpreted this ability to mean that it could also create federal courts but limit their jurisdiction. Can you tell us more about the Madisonian Compromise? What jurisdiction do state courts have? Does it overlap with federal court jurisdiction? The Madisonian Compromise was the compromise in the Constitution by which the framers agreed that there would be at least one federal court, a supreme court, but that the existence of the lower federal courts, of inferior federal courts, would be up for Congress to decide in its discretion in the future. Thus, according to the Madisonian Compromise, state courts themselves could actually hear federal claims. These cases would be subject to review in the Supreme Court of the United States, but nevertheless states and not lower federal courts could hear federal cases as well, and in some sense thereby exercise the federal judicial power. Since the Judiciary Act of 1789, we've always had federal courts. They've never had the full jurisdiction permitted to them by Article III, but they've nevertheless had a robust jurisdiction. In this sense, although state courts do hear federal questions and do hear federal cases, most federal cases today really do occur in the federal courts. Because of the Madisonian Compromise, state courts are allowed to hear federal cases, and they're allowed to hear federal cases even if there are federal courts. Congress sure can make federal court jurisdiction exclusive over certain subject matters, but unless it does that the state courts pursuant of the Madisonian Compromise were understood to have the power to hear federal cases as well. Is the Legislative branch more powerful than the Judicial branch because Congress can create (or eliminate) federal courts? How does this work in our system of co-equal separation of powers? In some sense, because of the Madisonian Compromise, Congress has the ability to write out the federal court system entirely from the constitutional separation of powers, with the exception of the Supreme Court's original jurisdiction. Congress can do this because Congress doesn't have to create lower federal courts at all, but Article III also allows Congress to make exceptions to the appellate jurisdiction of the Supreme Court. In other words, Congress can choose if it wants to get rid of the appellate jurisdiction of the Supreme Court and also not to create lower federal courts, leaving only the minimal original jurisdiction of the Supreme Court. This has raised questions, perplexing questions, over the last 200 years over whether that was really the intent of the framers, if whether Congress really has the ability to effectively write out a separate coequal and coordinate branch of the government from the Constitution. The federal courts and the judicial power are obviously an important component of the constitutional separation of powers, but it's also important to recognize that the framers understood that Congress itself would be an important guarantor of popular rights. Congress recognized early on that the federal courts were important and established them. Ultimately, it may not be inconsistent in a constitutional democracy and a democratic form of government to rely on Congress, on the people's representatives, to ensure a robust and properly working court system. Are the alternative ways to understand Article III, or is the Madisonian Compromise the only approach? Some scholars for many years have argued that this is not the best reading of Article III. Some scholars argue that where Article III says that the judicial power shall be vested in a supreme court or inferior courts, when Article III says that judicial power shall extend to certain cases and certain kinds of controversies, this means that there must be courts, there must be federal courts available to hear these cases because the judicial power shall be vested in those courts and their power shall extend to a certain kind of cases. Of course, the difficulty is the Madisonian Compromise, because Congress did not have to create lower federal courts at all and it could make exceptions to the appellate jurisdiction in the Supreme Court. An alternative reading of the Exceptions Clause is not that Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court leaving it only with its minimal original jurisdiction, an alternative reading to this is that Congress was only intended to have the power to make exceptions between the balance of original and appellate jurisdiction. In other words, Congress could accept certain cases from the appellate jurisdiction of the Supreme Court and make those cases original jurisdiction. Now, this view is contrary to what John Marshall said in Marbury v. Madison. However, if that view were correct, then that means Congress does not have the ability fully to write out the federal courts from our system, because there would always be at least a supreme court who can hear federal cases either in original or appellate form. You mentioned the famous case of Marbury v. Madison. Did it dramatically alter how the founders themselves thought about the judicial power? What Chief Justice Marshall did in Marbury v. Madison was actually quite uncontroversial to the founding generation. They expected the federal courts to give effect to the Constitution over inconsistent federal laws. The founding generation in the Constitutional Convention, in the state ratifying conventions, early jurists, all expected the federal courts to exercise this power of judicial review. It's important to recognize that Marbury v. Madison was not a significant case until after the Civil War. Why might that be? Because to the founding generation, this power of judicial review was noncontroversial, it was expected. The founders in the ratifying conventions, in the constitutional conventions, and in their early writings all expected that the courts would have this power to invalidate legislation inconsistent with the Constitution. Marbury v. Madison stands for the proposition that courts have the power of judicial review. That means when there is a conflict between a federal law or a state law in the Constitution, the Constitution controls the operation of those inconsistent laws. This is very different from what Marbury v. Madison is often taken to mean today. Marbury v. Madison is often taken for the proposition that judges are the supreme interpreters of the Constitution, that whatever they say about the Constitution is the final and ultimate meaning of the Constitution binding on all parties and all branches, but that power of judicial review is the power to decide the operation of a federal law and the Constitution's own law in a particular case or controversy binding particular parties to the case. It was not a power that applied broadly and binded all branches of the government. That is not the same thing as saying that the courts are the ultimate arbiters of what the Constitution means. Congress often has to decide the meaning of the Constitution for its own purposes. The president has to decide the meaning of the Constitution for the president's purposes. Thus, the federal courts upheld the alien and sedition laws in the late 1700s, but Thomas Jefferson believed as president that those laws had been unconstitutional. He didn't defer to the court's judgments as to the constitutionality of those laws but instead exercised his own presidential power, the pardon power, to pardon anyone who had been convicted under these unconstitutional laws. Another example is Dred Scott against Sandford. This infamous case saying that masters had the right to take their slave property anywhere in the United States, thereby repealing constitutionally the Missouri Compromise, Lincoln famously said that that decision was binding only on the party, only on Sanford, only on Dred Scott on his master, and not on the country writ large. He encouraged Congress to exercise its own constitutional duty to interpret the Constitution and to reenact the Missouri Compromise. You’ve explained how Marbury v. Madison has been misinterpreted. But what is judicial review? Is it a legitimate judicial power? The power of judicial review is the power to determine the meaning of the Constitution and thereby to determine the operation of the Constitution, the legal effect of the Constitution. This is not a power to change the meaning of the Constitution. It is not a power to change the actual legal content of the Constitution. The federal courts do not have the power to change the Constitution at will. One of the innovations, one of the advantages of having a written constitution was that that constitution was antecedent to and superior to all branches of the government including the judicial branch, including the federal courts. This means the courts can decide cases pursuant to the laws and pursuant to the Constitution, they could decide cases under the Constitution, but they cannot change the meaning of the Constitution. The Constitution was intended to control the operation of the federal judges just as much as it was intended to control the operation of other government actors. Courts do have the power of judicial review. Judicial review simply recognizes that there is a conflict of laws issue going on when a court has to decide a case under federal law, because the Constitution is also a law. When you have two different laws, the question sometimes arises which law applies. This is a conflict of laws problem. Courts have to decide what law applies and sometimes they have to decide what law is superior to another law. It was not an innovation to conclude that where there are two conflicting laws the courts had to decide the operation of each. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!