McCulloch v. Maryland

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- Hey, this is Kim from Khan Academy

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and today we're learning about
McCulloch versus Maryland,

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a Supreme Court cases decided in 1819

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that helped to define the relationship

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between the federal
government and the states.

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The question at issue in this case

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was whether the state of Maryland

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could tax the Baltimore branch

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of the Bank of the United States.

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And whether Congress even had the power

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to create a Bank of the United
States in the first place.

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To learn more, I sought out
the help of two experts.

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Randy Barnett is the
Carmack Waterhouse Professor

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of Legal Theory at the
Georgetown University Law Center

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and Director of the Georgetown
Center for the Constitution.

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Neil Siegel is the David
W. Ichel Professor of Law

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and Professor of Political
Science at Duke Law School.

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So, Professor Barnett, could
you kind of set the stage

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for us, what was happening in this case?

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What was the overall context?

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- Well, McCulloch versus
Maryland was a culmination

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of a 30-year old
constitutional controversy.

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In fact, it was the culmination

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of one of the earliest controversies

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that we had in the
country, and that is over

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whether Congress had
the power to establish

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a national bank, a bank
that would be a corporation

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formed by Congress and which
would have certain privileges

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that Congress granted it.

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This was a proposal that had been made

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by Alexander Hamilton when he
was Secretary of the Treasury

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in the Washington administration
in the very first year

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of the Washington administration,

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and it went to Congress, and
there was a very, very robust

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debate in Congress as
to whether this measure

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was within the powers
of Congress to enact.

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Eventually, Congress voted that it was,

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and then before he signed the bill,

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President Washington asked
some of his cabinet members

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to give him their opinion on
whether it was constitutional,

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and he heard from several
of his cabinet members.

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He heard from his Attorney
General, Edmund Randolph,

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he said it was unconstitutional.

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He heard from his Secretary
of State, Thomas Jefferson,

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Jefferson said it was unconstitutional.

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And finally, he heard from
his Secretary of Treasury,

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who had proposed it, Alexander Hamilton,

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who said it was constitutional.

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And Washington signed the
bill and it became law.

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And it established the First National Bank

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of the United States.

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- [Siegel] This case arose in May of 1818

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when Maryland sued McCulloch,
and he was the cashier

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at the Baltimore branch of the bank.

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And Maryland sued him in state court

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to recover a tax assessed
by Maryland on the bank.

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And this was a time of intense hostility

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towards the national bank
in a number of states.

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The state banks competed
with the national bank,

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and there had been an
economic panic in 1818,

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when the U.S. bank halted its loans

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and state banks that had loans

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from the federal bank were crippled.

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And in response, a number of states

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passed nearly annhilative
taxes on the federal bank,

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and that's the environment
in which, in 1819,

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McCulloch against Maryland
came before the Supreme Court.

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- [Kim] I find this very interesting,

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because this is something
that we talk a lot about

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in the early 19th century,
the Bank of the United States.

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And what was good about it
and what was bad about it.

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And there are certain people
who were certainly enemies

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of the bank, like Thomas Jefferson,

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and then later, Andrew Jackson.

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Why did people object

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to the Bank of the United States so much?

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- [Siegel] Yeah, there were
a variety of objections.

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There was a real political
policy disagreement

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about whether it was a good idea.

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Hamilton had a nation-building,
economy-building objective

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as the first Secretary of the Treasury.

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He wanted to pay off
both the national debt

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and the state debts from
the Revolutionary War,

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which remained unpaid.

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He was emphasizing
manufacturing and commerce

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and a national bank was
a key part of his plan.

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The bank would make it easier
for the national government

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to raise taxes, to pay off debts,

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to make payments, to
obtain short-term loans.

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The notes issued by
the bank could function

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as a national currency,
it could also provide

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a source of capital for
financing businesses.

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But the opponents had different ideas.

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- [Barnett] One of the leading opponents

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in Congress was James
Madison, who at the time

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was a representative from
Orange County, Virginia.

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And what concerned him, and
I think it's what concerned

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many people, was no
expressed enumerated power

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in the Constitution for
Congress to make a bank.

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There was an enumerated power
to create a post office,

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but there was no enumerated
power to create a bank.

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So the question is whether the failure

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or the silence of the Constitution

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on whether there was this power

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should be construed in favor
of having such a power,

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or not having such a power.

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And Madison's concern was
that to imply such a power,

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especially when the way in
which it was being implied

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was very remotely connected to
one of the enumerated powers

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that were in the Constitution,

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was very dangerous because
by that form of reasoning,

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Congress can essentially
do whatever it wished,

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and that would violate the basic pledge

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that this was going to
be a national government

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of limited and enumerated powers.

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- [Kim] So in Congress, what was the power

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that proponents of the bank used

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to justify passing it?

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- [Barnett] The principle
power that they used

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is called the Necessary and Proper Clause.

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The Necessary and Proper
Clause says Congress

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shall have power to make all laws

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which shall be necessary and proper

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for carrying into execution
its foregoing powers,

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those powers on the list,
and all other powers

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vested by the Constitution
in the government

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of the United States or any
department or officer thereof.

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This is called the
Necessary and Proper Clause.

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It allows for Congress to make laws

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incidental to the enumerated powers

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to effectuate, or carry into
execution, those powers.

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And supporters of the bill said

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that the bank carried into
execution a number of powers,

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it carried into execution
the taxing power,

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it carried into execution
the commerce power.

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The opponents of the bank said, well,

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it may do that, but it only does that

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in a very attenuated way.

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And therefore, if it can do this

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in order to effectuate that power,

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then it pretty much can do anything

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to effectuate power, and therefore

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it can pretty much do anything.

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And that's a big problem.

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- [Kim] So Maryland sues
McCulloch, and then what happens?

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- [Siegel] Maryland sues McCulloch,

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because Maryland didn't
pass the annihilative tax,

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it was a tax of around two
percent of the banknotes

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issued by the National Bank.

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And Maryland won in the state trial court,

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and Maryland won in the
state supreme court,

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and this was really not a surprise

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at the time,
- (laughter)

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state courts were, let's just say,

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solicitous of the views of the state

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and after the state supreme court decided,

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the case went to the U.S.
Supreme Court on appeal.

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So even though Maryland sues McCulloch,

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by the time it gets to the Supreme Court,

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it's called McCulloch against Maryland

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because McCulloch, the cashier
at the Baltimore branch,

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is now the petitioner, he's requesting

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the U.S. Supreme Court
review of the decision

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of the Maryland high court.

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And McCulloch is asking the
Supreme Court to intervene

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and, in essence, side with
the federal government

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over the state.

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- [Kim] Interesting.

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So what are the
constitutional issues at stake

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once the McCulloch case
gets to the Supreme Court?

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- [Barnett] Well, the Supreme Court

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in a very lengthy opinion has to consider

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a couple of different matters.

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First it has to consider
whether the states

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have the power to tax a
federal entity like a bank.

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And that's where you
have the famous statement

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by John Marshall that
says, "the power to tax

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can be the power to destroy."

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What he's talking about
is the power of states

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to tax a federal entity like a bank,

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might be the power of states to destroy

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a federal entity, and he
ruled against that claim.

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And he basically argued that states

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couldn't have that kind of power.

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- [Siegel] And a threshold question

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before the Supreme Court
decides that question

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of state authority to tax
the national government,

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is whether the national bank
can exist to begin with.

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Is there federal power to
create a national bank?

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Part of what Maryland is arguing

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is that there's no federal
power to create the bank,

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and so in fact, this taxation
that it's engaging in

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is unproblematic.

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The first question is whether
the federal government

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can create the bank,
and if the answer is no,

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then the case is over.

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If the answer is yes, then
you get to the second question

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of whether the states can tax this part

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of the federal government,
the national bank.

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- [Kim] So at this time, the Chief Justice

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of the Supreme Court is John Marshall,

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very well-known as being
kind of the Chief Justice

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that brought the Supreme Court

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to be a major player in the
U.S. governmental system.

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How did he interpret what was going on,

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what did he and the other justices decide?

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- [Siegel] He borrowed extensively

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from Hamilton's arguments.

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And so Marshall adopted
Hamilton's arguments

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in defense of the
constitutionality of the bank,

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that Hamilton originally
articulated back in 1790, 1791.

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So the court held an opinion
by the great Chief Justice,

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first, that Congress does
possess the authority

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to create the bank and
secondly, that states

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have no authority to tax the bank.

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- [Barnett] And that is what Marshall

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concluded was within Congress' power

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under the Necessary and
Proper Clause to enact.

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And in fact, when it got to the court

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in McCulloch versus Maryland,
it was the state of Maryland

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who basically adopted
the Jeffersonian approach

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and said that a measure
must be, in its words,

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indispensably requisite,
or what you might call

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absolutely necessary in order
for it to be constitutional.

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And whereas the defenders of the bank bill

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said that it could be
a lot less than that.

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So, I think there's
basically three positions

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that you can have.

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It has to be indispensably requisite,

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or logically necessary,
that's the Jefferson

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and Maryland view.

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It could be merely a matter
of convenience or expediency,

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meaning basically Congress
can do whatever it wants.

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That's the liberal view
that's sometimes attributed

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to John Marshall in
McCulloch versus Maryland,

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but he denied it.

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And there's the in-between position

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that I think both Madison
and Hamilton were favoring,

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and that is the requirement of some degree

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of means-ends fit, so that a measure

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really is aimed at a particular end,

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and it's not really trying
to accomplish something

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that Congress isn't given the power over.

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- [Siegel] What I think is less well-known

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about this case is that this
part of the case was over

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and the court had already decided,

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that this federal power
to create the bank,

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before it even got to the
Necessary and Proper Clause.

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This case is a great
example of what's called

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Structural Constitutional Interpretation.

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Hamilton articulated two
structural principles.

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First, that the federal government

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is supreme within it's sphere of action.

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And second, if some kind of end

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is within federal power, is
listed in the Constitution,

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then any convenient or useful means

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to accomplishing that end
is also within the scope.

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And so Marshall decides
that drawing inferences

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from his understanding of
the theory and structure

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of government created by the Constitution,

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and only after he does that, does he then

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turn to the Necessary and Proper Clause

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to confirm what he has already deduced

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through what he calls general reasoning.

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- [Kim] So, McCulloch versus Maryland

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is frequently paired with
Marbury versus Madison

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as being two cases that really decide

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the extent of federal
power in this early era.

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Do you think these two cases are related?

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What do they tell us about the ideas

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at this time period about federal power?

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- [Barnett] Well, they're very important.

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I don't think they are quite as extreme

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as they've come to be
read after the New Deal.

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When the New Deal Court
and the rest of advocates

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for a New Deal were
going back into the past

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and seeking justifications
for what they wanted to do,

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they read McCulloch versus
Maryland very broadly.

00:12:57.040 --> 00:12:59.810
They also read Marbury versus Madison,

00:12:59.810 --> 00:13:01.730
actually they read Marbury versus Madison,

00:13:01.730 --> 00:13:03.120
in some respects, very narrowly

00:13:03.120 --> 00:13:05.120
because they didn't
want courts invalidating

00:13:05.120 --> 00:13:06.750
their New Deal legislations.

00:13:06.750 --> 00:13:09.310
Marbury versus Madison was not a huge deal

00:13:09.310 --> 00:13:10.590
at the time it was decided.

00:13:10.590 --> 00:13:12.880
The idea that judges had a duty

00:13:12.880 --> 00:13:15.210
to follow the higher law
when it was in conflict

00:13:15.210 --> 00:13:17.900
with the mere statute was widely accepted

00:13:17.900 --> 00:13:18.840
at the time of the founding.

00:13:18.840 --> 00:13:22.380
And so Marbury was not
announcing a new policy.

00:13:22.380 --> 00:13:24.230
McCulloch versus Maryland,
on the other hand,

00:13:24.230 --> 00:13:26.960
was extremely controversial
when it was decided,

00:13:26.960 --> 00:13:30.530
and in fact quite oddly,

00:13:30.530 --> 00:13:34.240
James Madison, who had signed the bill

00:13:34.240 --> 00:13:37.460
authorizing the second bank into law,

00:13:37.460 --> 00:13:41.230
greatly, strenuously objected
to John Marshall's opinion

00:13:41.230 --> 00:13:43.740
in McCulloch versus
Maryland upholding the bill

00:13:43.740 --> 00:13:45.820
that Madison had signed into law.

00:13:45.820 --> 00:13:49.245
So, Madison still maintained that Marshall

00:13:49.245 --> 00:13:53.890
had a latitudinarian or
overly-broad interpretation

00:13:53.890 --> 00:13:56.310
of federal power even
in upholding the bill

00:13:56.310 --> 00:13:58.520
that Madison, by this
time, had come to believe

00:13:58.520 --> 00:14:00.305
was constitutional.

00:14:00.305 --> 00:14:01.620
- [Kim] So what ultimately happened

00:14:01.620 --> 00:14:04.080
with the Bank of the United States?

00:14:04.080 --> 00:14:05.510
- [Siegel] What ultimately happened

00:14:05.510 --> 00:14:08.530
is both the bill creating the First Bank

00:14:08.530 --> 00:14:11.670
and the Second Bank had what's
called a sunset provision,

00:14:11.670 --> 00:14:13.727
which means after a
certain amount of time,

00:14:13.727 --> 00:14:16.480
and it was 20 years, it expires.

00:14:16.480 --> 00:14:18.693
And so to reauthorize
it, it puts the burden

00:14:18.693 --> 00:14:22.170
on inertia on those who
want the thing to continue.

00:14:22.170 --> 00:14:24.520
And so Congress had to pass another bill

00:14:24.520 --> 00:14:28.850
reauthorizing the bank, and
President Andrew Jackson

00:14:28.850 --> 00:14:30.950
opposed reauthorization.

00:14:30.950 --> 00:14:33.240
- [Barnett] President
Andrew Jackson vetoed

00:14:33.240 --> 00:14:35.260
the reauthorization of the bank,

00:14:35.260 --> 00:14:38.260
and it was very interesting
because he vetoed it

00:14:38.260 --> 00:14:41.640
on constitutional grounds, he
said it was unconstitutional.

00:14:41.640 --> 00:14:44.810
And yet, what happened in
McCulloch versus Maryland,

00:14:44.810 --> 00:14:46.490
if McCulloch versus Maryland said the bank

00:14:46.490 --> 00:14:49.350
was constitutional, how
could President Jackson

00:14:49.350 --> 00:14:51.050
say that it was unconstitutional?

00:14:51.050 --> 00:14:52.050
Well, it was interesting.

00:14:52.050 --> 00:14:55.250
Because what McCulloch
said was that the bank

00:14:55.250 --> 00:14:59.000
was constitutional as an
exercise of Congress' power

00:14:59.000 --> 00:15:01.560
to make laws that are
necessary and proper,

00:15:01.560 --> 00:15:04.070
that Congress believed
was necessary and proper,

00:15:04.070 --> 00:15:06.490
and because Congress
believed it was necessary,

00:15:06.490 --> 00:15:08.610
and because the measure
was plainly adapted

00:15:08.610 --> 00:15:12.040
to a legitimate end in the Constitution,

00:15:12.040 --> 00:15:13.680
then it was constitutional.

00:15:13.680 --> 00:15:16.310
What Jackson said was, hey look,

00:15:16.310 --> 00:15:18.060
the court said that it's up to Congress

00:15:18.060 --> 00:15:20.010
to decide whether something is necessary

00:15:20.010 --> 00:15:23.183
and therefore constitutional,
and I as president

00:15:23.183 --> 00:15:26.830
exercise a veto power as part
of the legislative process,

00:15:26.830 --> 00:15:29.260
therefore, it is up to me to decide

00:15:29.260 --> 00:15:30.820
whether the measure is necessary

00:15:30.820 --> 00:15:32.470
and therefore is constitutional,

00:15:32.470 --> 00:15:35.210
so I as president have decided

00:15:35.210 --> 00:15:38.690
that a bank is not
necessary and therefore,

00:15:38.690 --> 00:15:42.140
because the bank is not
necessary, it is unconstitutional,

00:15:42.140 --> 00:15:45.760
and McCulloch versus Maryland
allows me as a participant

00:15:45.760 --> 00:15:48.450
in the legislative
process to make that call.

00:15:48.450 --> 00:15:51.470
- [Siegel] Congress did
not override Jackson's veto

00:15:51.470 --> 00:15:55.920
and the bank expired and
the story ended in 1836.

00:15:55.920 --> 00:15:59.040
And I think this speaks
to one of many morals

00:15:59.040 --> 00:16:01.390
of the story of the Bank
of the United States.

00:16:01.390 --> 00:16:04.170
The Supreme Court doesn't
have the last word

00:16:04.170 --> 00:16:07.310
on Constitutional
questions when it upholds

00:16:07.310 --> 00:16:09.280
exercises of federal power.

00:16:09.280 --> 00:16:11.600
It's then left to the political process

00:16:11.600 --> 00:16:14.490
to decide whether or
not it wants to continue

00:16:14.490 --> 00:16:19.270
whatever controversial action
or legislation was at issue.

00:16:19.270 --> 00:16:21.290
- [Kim] So is there any aspect

00:16:21.290 --> 00:16:24.290
of McCulloch versus Maryland
that still affects us today?

00:16:24.290 --> 00:16:25.680
- [Barnett] One reading of McCulloch

00:16:25.680 --> 00:16:29.610
is that it gives Congress
a power so broad,

00:16:29.610 --> 00:16:33.150
that allows Congress to exercise any power

00:16:34.090 --> 00:16:36.750
that it deems convenient to the exercise

00:16:36.750 --> 00:16:38.680
of one of its enumerated powers,

00:16:38.680 --> 00:16:41.710
that is how McCulloch has
come to be interpreted.

00:16:41.710 --> 00:16:44.960
I think that is an
over-reading of McCulloch.

00:16:44.960 --> 00:16:49.540
And it also overlooks
one of the key passages

00:16:49.540 --> 00:16:51.930
of McCulloch versus Maryland that nowadays

00:16:51.930 --> 00:16:54.943
is given no legal effect
by the Supreme Court.

00:16:54.943 --> 00:16:56.860
This is what John Marshall said:

00:16:56.860 --> 00:16:59.410
should Congress, under the pretext

00:16:59.410 --> 00:17:02.260
of executing its powers, pass laws

00:17:02.260 --> 00:17:04.270
for the accomplishments of objects

00:17:04.270 --> 00:17:06.130
not entrusted to the government,

00:17:06.130 --> 00:17:09.020
it would become the painful
duty of this tribunal,

00:17:09.020 --> 00:17:11.830
should a case requiring such
a decision come before it,

00:17:11.830 --> 00:17:16.310
to say that such an act was
not the law of the land.

00:17:16.310 --> 00:17:17.950
So what Marshall is saying there

00:17:17.950 --> 00:17:22.950
is that just because Congress
says a law is necessary

00:17:24.340 --> 00:17:27.220
to one of its enumerated
powers, doesn't make it so.

00:17:27.220 --> 00:17:30.650
And if there is a lack of
fit between means and ends

00:17:30.650 --> 00:17:33.850
suggesting that in fact
Congress is trying to pursue

00:17:33.850 --> 00:17:36.160
one of the powers that was not given to it

00:17:36.160 --> 00:17:38.660
under the Constitution, it really would be

00:17:38.660 --> 00:17:40.700
the painful duty of the tribunal

00:17:40.700 --> 00:17:42.310
to say it was not the law of the land,

00:17:42.310 --> 00:17:43.760
and that's what connects this case

00:17:43.760 --> 00:17:46.050
back up with Marbury versus Madison,

00:17:46.050 --> 00:17:49.180
in which it is the painful
duty of the Supreme Court

00:17:49.180 --> 00:17:51.420
to say that a statute is
not the law of the land

00:17:51.420 --> 00:17:52.960
if it's unconstitutional.

00:17:52.960 --> 00:17:56.030
That aspect of McCulloch versus Maryland

00:17:56.030 --> 00:17:59.320
is no longer followed in part
because during the New Deal,

00:17:59.320 --> 00:18:03.370
the Supreme Court said it would
not inquire into the motives

00:18:03.370 --> 00:18:05.630
of Congress in enacting laws.

00:18:05.630 --> 00:18:07.720
And in fact, what McCulloch is saying here

00:18:07.720 --> 00:18:09.700
is to inquire into the motives,

00:18:09.700 --> 00:18:12.910
it's to say, hey look, it
purports to be doing one thing

00:18:12.910 --> 00:18:15.800
but it's really doing something else

00:18:15.800 --> 00:18:18.044
and that is pre-textual.

00:18:18.044 --> 00:18:20.980
- [Siegel] There has been
irreconcilable disagreement

00:18:20.980 --> 00:18:22.730
on basic Constitutional questions

00:18:22.730 --> 00:18:24.703
from the very beginning
of the Constitution.

00:18:25.610 --> 00:18:28.040
Madison and Hamilton, who come together

00:18:28.040 --> 00:18:29.750
and write the Federalist Papers,

00:18:29.750 --> 00:18:32.060
they disagree about this
fundamental question

00:18:32.060 --> 00:18:34.000
of strict versus loose construction

00:18:34.000 --> 00:18:35.940
of Congress' enumerated powers.

00:18:35.940 --> 00:18:39.050
They also disagree about
Congress' spending powers,

00:18:39.050 --> 00:18:41.860
they disagree about
inherent executive power.

00:18:41.860 --> 00:18:45.690
So sometimes, originalist
constitutional arguments

00:18:45.690 --> 00:18:49.486
presuppose a greater degree of consensus

00:18:49.486 --> 00:18:52.530
about what the Constitution means

00:18:52.530 --> 00:18:54.800
at the start of the
country that I don't see

00:18:54.800 --> 00:18:56.460
when I study the history.

00:18:56.460 --> 00:18:58.250
We have always disagreed.

00:18:58.250 --> 00:19:01.120
We've always managed to find some kind

00:19:01.120 --> 00:19:02.950
of community in disagreement.

00:19:02.950 --> 00:19:06.890
It's the conflicts and
disagreements that have binded us

00:19:06.890 --> 00:19:11.020
together as much, if not more,
than the agreements we've had

00:19:11.020 --> 00:19:13.570
about what the Constitution means.

00:19:13.570 --> 00:19:16.020
- [Kim] So we've learned that
McCulloch versus Maryland

00:19:16.020 --> 00:19:18.960
was about far more than
just a tax on a bank.

00:19:18.960 --> 00:19:21.580
It bolstered the power
of the federal government

00:19:21.580 --> 00:19:25.170
by broadly defining the
Necessary and Proper Clause

00:19:25.170 --> 00:19:27.770
and by confirming that federal law

00:19:27.770 --> 00:19:29.900
is supreme to state law.

00:19:29.900 --> 00:19:32.350
To learn more about
McCulloch versus Maryland,

00:19:32.350 --> 00:19:34.520
visit the National Constitution Center's

00:19:34.520 --> 00:19:37.700
interactive Constitution,
and Khan Academy's resources

00:19:37.700 --> 00:19:39.683
on U.S. government and politics.


Marbury v. Madison

WEBVTT
Kind: captions
Language: en

00:00:00.260 --> 00:00:02.170
- [Kim] Hi, this is Kim from Kahn Academy,

00:00:02.170 --> 00:00:05.217
and today we're learning more
about what I like to call

00:00:05.217 --> 00:00:08.040
"The Case of the Midnight Judges,"

00:00:08.040 --> 00:00:09.820
Marbury versus Madison.

00:00:09.820 --> 00:00:12.840
This case was decided in 1803

00:00:12.840 --> 00:00:17.040
and it established the
principle of judicial review,

00:00:17.040 --> 00:00:20.220
that the Supreme Court
has the power to review

00:00:20.220 --> 00:00:22.340
the constitutionality of Acts

00:00:22.340 --> 00:00:24.250
made by Congress or the President,

00:00:24.250 --> 00:00:26.830
and overturn those actions that it

00:00:26.830 --> 00:00:29.900
judges to be inconsistent
with the constitution.

00:00:29.900 --> 00:00:32.330
To learn more about Marbury versus Madison

00:00:32.330 --> 00:00:34.430
I sought out the help of two experts.

00:00:34.430 --> 00:00:36.780
Michael Klarman is a legal historian

00:00:36.780 --> 00:00:39.570
and the Kirkland and
Ellis Professor of Law

00:00:39.570 --> 00:00:40.760
at Harvard Law School.

00:00:40.760 --> 00:00:42.980
Kevin Walsh is a professor of law

00:00:42.980 --> 00:00:45.775
at the University if Richmond Law School.

00:00:45.775 --> 00:00:48.930
So, Professor Walsh, can you
tell us a little bit about

00:00:48.930 --> 00:00:50.830
what was happening in this case?

00:00:50.830 --> 00:00:52.360
Can you set the stage?

00:00:52.360 --> 00:00:53.193
- [Kevin] Sure, you're right,

00:00:53.193 --> 00:00:56.380
the case wasn't decided until 1803,

00:00:56.380 --> 00:00:57.990
but to understand where it came from,

00:00:57.990 --> 00:01:02.400
you really have to go back
to the election of 1800,

00:01:02.400 --> 00:01:05.890
and this election pitted
John Adams, the incumbent,

00:01:05.890 --> 00:01:10.570
Federalist president, against
his former vice president,

00:01:10.570 --> 00:01:13.520
Thomas Jefferson, the
Democratic Republican.

00:01:13.520 --> 00:01:16.390
And long story short,

00:01:16.390 --> 00:01:18.560
Jefferson ended up being President,

00:01:18.560 --> 00:01:19.730
and we have skipped a lot of

00:01:19.730 --> 00:01:21.010
really interesting things there,

00:01:21.010 --> 00:01:24.740
but Jefferson ultimately won.

00:01:24.740 --> 00:01:27.840
The Federalist who controlled Congress,

00:01:27.840 --> 00:01:29.640
seeing what was happening,

00:01:29.640 --> 00:01:32.490
made a present for the
incoming administration

00:01:32.490 --> 00:01:37.490
in the form of some laws that
created some new judgeships.

00:01:37.660 --> 00:01:39.770
So some new federal judges,

00:01:39.770 --> 00:01:43.090
as well as some justices of the peace

00:01:43.090 --> 00:01:45.810
in the District of Columbia.

00:01:45.810 --> 00:01:48.960
And then they proceeded
to stuff those offices

00:01:48.960 --> 00:01:50.820
with loyal Federalists,

00:01:50.820 --> 00:01:54.610
and these were people
like William Marbury,

00:01:54.610 --> 00:01:58.390
who was granted a commission
as justice of the peace

00:01:58.390 --> 00:02:00.342
in DC.

00:02:00.342 --> 00:02:02.167
- [Michael] Marbury was appointed

00:02:02.167 --> 00:02:04.600
by the Federalist President,

00:02:04.600 --> 00:02:07.400
the outgoing Federalist
President, John Adams,

00:02:07.400 --> 00:02:10.770
to be a justice of the
peace in Washington DC,

00:02:10.770 --> 00:02:13.980
but John Marshall, who was
both Secretary of State

00:02:13.980 --> 00:02:17.330
and Chief Justice of the
United States under John Adams,

00:02:17.330 --> 00:02:20.340
he didn't have a chance
to deliver the commission,

00:02:20.340 --> 00:02:22.390
because these were midnight judges

00:02:22.390 --> 00:02:24.750
who were appointed almost
at the last minute,

00:02:24.750 --> 00:02:27.530
as the Adams Administration
was going out the door.

00:02:27.530 --> 00:02:32.250
So the commission for Marbury
was still sitting on the desk

00:02:32.250 --> 00:02:35.540
of the new Secretary of
State, James Madison,

00:02:35.540 --> 00:02:38.190
when the Jefferson
Administration took over.

00:02:38.190 --> 00:02:41.240
And the Jeffersonians were outraged

00:02:41.240 --> 00:02:44.190
by what they saw as an
effort to pack the judiciary

00:02:44.190 --> 00:02:46.120
by the outgoing administration,

00:02:46.120 --> 00:02:48.930
so they were refusing to
deliver the commission.

00:02:48.930 --> 00:02:50.650
Marbury wants his commission,

00:02:50.650 --> 00:02:53.730
so he brings a lawsuit in the
United States Supreme Court

00:02:53.730 --> 00:02:56.380
demanding that Secretary
of State, James Madison,

00:02:56.380 --> 00:02:58.330
deliver the commission to him,

00:02:58.330 --> 00:03:02.090
and that's what leads to the
case Marbury versus Madison.

00:03:02.090 --> 00:03:04.253
- [Kevin] So really, this is a case about

00:03:04.253 --> 00:03:08.208
some men trying to get the
jobs that President Adams

00:03:08.208 --> 00:03:12.600
had appointed them to, but
that they weren't able to get

00:03:12.600 --> 00:03:15.930
because President Jefferson
and his administration

00:03:15.930 --> 00:03:19.260
refused to deliver the piece of paper

00:03:19.260 --> 00:03:21.700
entitling them to actually take the job.

00:03:21.700 --> 00:03:22.533
- [Kim] Very interesting,

00:03:22.533 --> 00:03:26.590
so this election of 1800, I
think, is very significant

00:03:26.590 --> 00:03:30.990
in American history
because it was the first

00:03:30.990 --> 00:03:34.770
peaceful transfer of power
between two political parties.

00:03:34.770 --> 00:03:37.820
The Federalists, kind
of led by John Adams,

00:03:37.820 --> 00:03:40.540
who added this stronger central government

00:03:40.540 --> 00:03:42.320
as one of their core ideals,

00:03:42.320 --> 00:03:45.530
and then the anti-Federalists,

00:03:45.530 --> 00:03:49.520
or Democratic Republicans, led by Madison

00:03:49.520 --> 00:03:53.810
and Jefferson who wanted a
weaker central government,

00:03:53.810 --> 00:03:55.650
more power to the states.

00:03:55.650 --> 00:03:58.990
So I think it's one of the coolest things

00:03:58.990 --> 00:04:01.580
in American history that a political party

00:04:01.580 --> 00:04:04.340
voluntarily gave up power,

00:04:04.340 --> 00:04:06.640
like when else in the history of the world

00:04:06.640 --> 00:04:09.140
did a ruling party just
say, ah, you know what,

00:04:09.140 --> 00:04:10.894
now our enemies can rule.

00:04:10.894 --> 00:04:15.360
But, there's also this political fallout

00:04:15.360 --> 00:04:18.810
from this transfer of
power between parties.

00:04:18.810 --> 00:04:20.130
- [Michael] And this is the first time

00:04:20.130 --> 00:04:23.467
that Jeffersonian
Republicans are gonna be able

00:04:23.467 --> 00:04:25.060
to take control of the
national government,

00:04:25.060 --> 00:04:28.080
and the Federalists, the
outgoing Adams Administration,

00:04:28.080 --> 00:04:29.770
are horrified by this.

00:04:29.770 --> 00:04:32.310
They think of Jefferson as an anarchist,

00:04:32.310 --> 00:04:35.560
an atheist, they accused
him during the campaign

00:04:35.560 --> 00:04:36.930
of being a miscegenator.

00:04:36.930 --> 00:04:38.630
They allege, it turns out correctly,

00:04:38.630 --> 00:04:40.495
that he sleeps with his slaves.

00:04:40.495 --> 00:04:43.290
They allege that in New England he'll be

00:04:43.290 --> 00:04:45.630
stealing their Bibles if elected,

00:04:45.630 --> 00:04:48.710
and the Jeffersonians don't
think much better of John Adams.

00:04:48.710 --> 00:04:50.360
They think he wants to be a king.

00:04:50.360 --> 00:04:52.852
He nearly got the country into

00:04:52.852 --> 00:04:54.190
an unnecessary war with France.

00:04:54.190 --> 00:04:57.630
So there's tremendous political animosity.

00:04:57.630 --> 00:05:00.020
Neither side really sees the opposite side

00:05:00.020 --> 00:05:02.500
as the loyal political opposition,

00:05:02.500 --> 00:05:04.042
and then there's personal
acrimony as well.

00:05:04.042 --> 00:05:06.610
Thomas Jefferson and John Marshall,

00:05:06.610 --> 00:05:09.140
both from Virginia, are distant cousins.

00:05:09.140 --> 00:05:10.540
They hate each other.

00:05:10.540 --> 00:05:12.710
John Marshall certainly
didn't think Jefferson

00:05:12.710 --> 00:05:15.530
ought to be elected President in 1800,

00:05:15.530 --> 00:05:18.730
and Jefferson thinks that
John Marshall as chief justice

00:05:18.730 --> 00:05:22.040
is trying to undermine
the federal republic

00:05:22.040 --> 00:05:24.860
through his nationalist
rulings on the Supreme Court.

00:05:24.860 --> 00:05:27.330
- [Kevin] Well, it
wasn't a pretty transfer.

00:05:27.330 --> 00:05:31.511
John Adams left in a huff the morning that

00:05:31.511 --> 00:05:34.486
Jefferson was going to be inaugurated,

00:05:34.486 --> 00:05:38.350
but it was, as you say, it
was a peaceful transition.

00:05:38.350 --> 00:05:41.500
But the thing is, is a lot
of the issues that come with

00:05:41.500 --> 00:05:46.492
transferring power from one
political party to another,

00:05:46.492 --> 00:05:51.120
these were new issues for the country.

00:05:51.120 --> 00:05:55.380
And understandably, the
Jefferson Administration

00:05:55.380 --> 00:06:00.170
resented the Federalist's
attempt to put their loyalists

00:06:00.170 --> 00:06:01.870
into the judiciary.

00:06:01.870 --> 00:06:03.630
- [Michael] The Jeffersonians have won

00:06:03.630 --> 00:06:05.420
the presidential election,

00:06:05.420 --> 00:06:08.800
they've won the congressional
elections by even more.

00:06:08.800 --> 00:06:11.620
The only branch of the federal
government still controlled

00:06:11.620 --> 00:06:14.430
by the Federalists is the judiciary,

00:06:14.430 --> 00:06:16.680
and now they're packing the judiciary.

00:06:16.680 --> 00:06:20.600
They're creating 16 new federal
court of appeals judges,

00:06:20.600 --> 00:06:23.240
42 new justices of the peace,

00:06:23.240 --> 00:06:25.870
they're actually diminishing
the size of the Supreme Court

00:06:25.870 --> 00:06:28.521
from six to five so as
to deprive Jefferson

00:06:28.521 --> 00:06:33.200
of an opportunity to appoint a new justice

00:06:33.200 --> 00:06:35.170
for one of those who is retiring.

00:06:35.170 --> 00:06:37.130
This is outrageous.

00:06:37.130 --> 00:06:39.360
And Jefferson also thinks it's outrageous

00:06:39.360 --> 00:06:42.290
that Marbury has filed a
suit in the Supreme Court

00:06:42.290 --> 00:06:44.230
and has asked the Supreme Court to order

00:06:44.230 --> 00:06:47.090
the President of the United
States to do something,

00:06:47.090 --> 00:06:48.980
which Jefferson thinks is a violation

00:06:48.980 --> 00:06:50.770
of the separation of powers.

00:06:50.770 --> 00:06:53.727
- [Kim] So, William Marbury
is one of these judges

00:06:53.727 --> 00:06:57.108
that John Adams had appointed
in the midnight hour.

00:06:57.108 --> 00:06:59.580
He decides to sue,

00:06:59.580 --> 00:07:02.680
and this is directly to
the Supreme Court, right?

00:07:02.680 --> 00:07:05.850
'Cause it's in the Supreme
Court's original jurisdiction?

00:07:05.850 --> 00:07:09.330
- [Kevin] Okay, so he sues
directly in the Supreme Court.

00:07:09.330 --> 00:07:11.360
Right now we think of the Supreme Court

00:07:11.360 --> 00:07:14.550
generally as a court that
hears appeals, right?

00:07:14.550 --> 00:07:16.660
Usually you don't go there
in the first instance.

00:07:16.660 --> 00:07:19.580
But as we said, this was a new thing.

00:07:19.580 --> 00:07:24.280
And it was also new to be
suing the executive branch.

00:07:24.280 --> 00:07:26.830
So it makes sense, if you think about it,

00:07:26.830 --> 00:07:28.567
if you're going after the President

00:07:28.567 --> 00:07:30.960
and the President's Secretary of State

00:07:30.960 --> 00:07:34.480
to go directly to the Supreme Court.

00:07:34.480 --> 00:07:36.700
- [Michael] Marbury brought
the suit in the Supreme Court,

00:07:36.700 --> 00:07:40.330
but the question and the case
is whether the Supreme Court

00:07:40.330 --> 00:07:43.351
can here this within its constitutional

00:07:43.351 --> 00:07:45.120
original jurisdiction.

00:07:45.120 --> 00:07:48.450
So under the Article
III of the constitution,

00:07:48.450 --> 00:07:51.160
at least as John Marshall
chooses to interpret it,

00:07:51.160 --> 00:07:53.785
in Marbury versus Madison,
this particular case

00:07:53.785 --> 00:07:57.850
can't be in the Supreme
Court's original jurisdiction.

00:07:57.850 --> 00:07:59.990
It could only be filed somewhere else

00:07:59.990 --> 00:08:02.320
and then appealed to the Supreme Court.

00:08:02.320 --> 00:08:04.690
- [Kim] So John Marshall's
a pretty big figure

00:08:04.690 --> 00:08:06.740
in the history of the Supreme Court.

00:08:06.740 --> 00:08:09.130
Can you tell us just a little
bit more about who he is

00:08:09.130 --> 00:08:11.190
and why he's so important?

00:08:11.190 --> 00:08:12.950
- [Kevin] Sure, he is still the

00:08:12.950 --> 00:08:14.630
longest serving chief justice.

00:08:14.630 --> 00:08:19.490
John Marshall was chief
justice from 1801 to 1835.

00:08:19.490 --> 00:08:24.490
He was appointed by President
Adams in early 1801.

00:08:24.800 --> 00:08:29.760
This was one of the final
acts of Adams' administration,

00:08:29.760 --> 00:08:32.710
and he went on to say that
it was the proudest thing

00:08:32.710 --> 00:08:35.648
he had done for the American people.

00:08:35.648 --> 00:08:39.380
Marshall was a Federalist from Virginia.

00:08:39.380 --> 00:08:42.320
So this made him a little bit odd,

00:08:42.320 --> 00:08:46.220
because the leading
political figures in Virginia

00:08:46.220 --> 00:08:48.150
were Democratic Republicans.

00:08:48.150 --> 00:08:52.950
But Marshall had been a soldier
in the Continental Army.

00:08:52.950 --> 00:08:57.260
He was at Valley Forge with
Washington and with Hamilton,

00:08:57.260 --> 00:09:01.320
and his experience is under
the Continental Congress

00:09:01.320 --> 00:09:03.420
and under the Articles of Confederation,

00:09:03.420 --> 00:09:06.840
and then later serving in
state government in Virginia,

00:09:06.840 --> 00:09:08.900
made him realize that we needed

00:09:08.900 --> 00:09:12.890
a much stronger national government.

00:09:12.890 --> 00:09:15.060
And that's what turned
him into a Federalist.

00:09:15.060 --> 00:09:20.060
So he was really in the mold
of Washington and Hamilton.

00:09:21.370 --> 00:09:24.765
And so this put him at odds

00:09:24.765 --> 00:09:27.990
with the new President Jefferson

00:09:27.990 --> 00:09:31.160
when Jefferson took office.

00:09:31.160 --> 00:09:33.480
Nevertheless, over the course of the

00:09:33.480 --> 00:09:37.080
three and a half decades that
he was on the Supreme Court,

00:09:37.080 --> 00:09:42.020
Marshall gained a reputation
for being above politics,

00:09:42.020 --> 00:09:45.280
above party, and he was really successful

00:09:45.280 --> 00:09:46.801
in bringing the court together

00:09:46.801 --> 00:09:51.801
as an institution, to speak
usually with one voice,

00:09:52.470 --> 00:09:53.870
for the constitution.

00:09:53.870 --> 00:09:58.600
So his great success was to
identify himself with the Court,

00:09:58.600 --> 00:10:01.850
to identify the Court with the
Constitution, and to identify

00:10:01.850 --> 00:10:04.940
the Constitution with the people.

00:10:04.940 --> 00:10:05.773
- [Kim] All right,

00:10:05.773 --> 00:10:10.240
so Marbury sues for his
commission as a federal judge,

00:10:11.293 --> 00:10:14.800
and then Marshall and the
Supreme Court are tasked

00:10:14.800 --> 00:10:17.277
with this issue of figuring out whether

00:10:17.277 --> 00:10:19.510
Marbury should get his commission or not.

00:10:19.510 --> 00:10:22.470
So can you take us through
Marshall's thinking?

00:10:22.470 --> 00:10:26.770
How did he reason his way
to the answer in this case?

00:10:26.770 --> 00:10:28.270
- [Michael] So there are
two different dimensions

00:10:28.270 --> 00:10:29.430
to Marshall's thinking.

00:10:29.430 --> 00:10:31.320
One is the dimension of a lawyer,

00:10:31.320 --> 00:10:34.700
and the other is the dimension
of a political strategist.

00:10:34.700 --> 00:10:37.570
Marshall understands that
if he issues an order

00:10:37.570 --> 00:10:40.700
to the Jefferson Administration
to deliver the commission

00:10:40.700 --> 00:10:42.360
he will be defied.

00:10:42.360 --> 00:10:44.750
He knows that almost to a certainty.

00:10:44.750 --> 00:10:47.965
James Madison has refused
even to show up in court

00:10:47.965 --> 00:10:51.573
in response to an order to show cause why

00:10:51.573 --> 00:10:54.780
a writ of mandamus should not be issued.

00:10:54.780 --> 00:10:58.760
- [Kevin] So mandamus is from
the same root as mandatory

00:10:58.760 --> 00:11:00.080
or mandate, right?

00:11:00.080 --> 00:11:01.210
It's an order.

00:11:01.210 --> 00:11:05.130
And here the issue was did
the judiciary have the power

00:11:05.130 --> 00:11:06.890
using this writ of mandamus,

00:11:06.890 --> 00:11:10.710
to order the Secretary
of State to do something.

00:11:10.710 --> 00:11:12.380
- [Michael] So Marshall has to figure out,

00:11:12.380 --> 00:11:14.360
what can he do that isn't gonna make

00:11:14.360 --> 00:11:16.670
the court look hopelessly weak,

00:11:16.670 --> 00:11:19.310
if he just says there's no jurisdiction

00:11:19.310 --> 00:11:21.570
then people are gonna think he's supine

00:11:21.570 --> 00:11:24.390
and he's afraid to
challenge the President.

00:11:24.390 --> 00:11:27.130
But if he orders the President
to deliver the commission,

00:11:27.130 --> 00:11:28.510
which is what he'd like to do,

00:11:28.510 --> 00:11:30.650
he knows Jefferson will defy him,

00:11:30.650 --> 00:11:32.150
and he has no authority,

00:11:32.150 --> 00:11:34.770
he has no enforcement capacity.

00:11:34.770 --> 00:11:37.100
So then the court will just look impotent.

00:11:37.100 --> 00:11:38.870
So what he wants to do instead is,

00:11:38.870 --> 00:11:41.050
he wants to act by indirection.

00:11:41.050 --> 00:11:42.380
The first thing he says is,

00:11:42.380 --> 00:11:44.410
the President's not above the law.

00:11:44.410 --> 00:11:46.590
The President can be mandamused.

00:11:46.590 --> 00:11:49.670
The second thing he says,
in this particular case

00:11:49.670 --> 00:11:52.800
a writ of mandamus would
be the appropriate remedy.

00:11:52.800 --> 00:11:55.280
But the third thing he
says is, I have to ask

00:11:55.280 --> 00:11:57.840
whether I have jurisdiction in this case.

00:11:57.840 --> 00:11:58.673
- [Kevin] The problem is,

00:11:58.673 --> 00:12:01.610
the list of cases in the Constitution

00:12:01.610 --> 00:12:03.700
that can be heard by the Supreme Court

00:12:04.566 --> 00:12:05.399
in its original jurisdiction

00:12:05.399 --> 00:12:07.990
did not include cases like Marbury's.

00:12:07.990 --> 00:12:11.760
So this was a problem because
Congress had passed a law

00:12:11.760 --> 00:12:14.680
purportedly telling the Supreme Court

00:12:15.781 --> 00:12:17.050
that it could hear cases like this.

00:12:17.050 --> 00:12:18.220
- [Kim] Ah, okay.

00:12:18.220 --> 00:12:20.437
- [Kevin] That's what
Marbury was relying on.

00:12:20.437 --> 00:12:21.270
Right?

00:12:21.270 --> 00:12:23.010
He wasn't just thinking,

00:12:23.010 --> 00:12:25.257
oh I'm gonna go to the
biggest court in the country.

00:12:25.257 --> 00:12:28.180
He was relying on a federal statute

00:12:28.180 --> 00:12:31.277
that seemed to give
the court jurisdiction.

00:12:31.277 --> 00:12:34.727
But Marshall said that statute conflicts

00:12:34.727 --> 00:12:37.370
with what the Constitution says.

00:12:37.370 --> 00:12:39.320
It goes beyond the limits set

00:12:39.320 --> 00:12:41.423
for this court in the Constitution.

00:12:42.320 --> 00:12:46.109
And when you have a conflict
between the Constitution

00:12:46.109 --> 00:12:49.690
and a federal law or any law,

00:12:49.690 --> 00:12:51.450
the Constitution wins.

00:12:51.450 --> 00:12:52.283
Right?

00:12:52.283 --> 00:12:54.970
So this is the principle
that has been called

00:12:54.970 --> 00:12:56.290
Judicial Review.

00:12:56.290 --> 00:12:59.218
The idea is you have to review the laws

00:12:59.218 --> 00:13:02.580
to make sure they comply
with the Constitution.

00:13:02.580 --> 00:13:04.659
And if a law is unconstitutional

00:13:04.659 --> 00:13:08.030
it can't be enforced by the Supreme Court.

00:13:08.030 --> 00:13:11.508
So it's a long way of
saying that Marbury lost

00:13:11.508 --> 00:13:15.430
because the court didn't
have jurisdiction.

00:13:15.430 --> 00:13:17.190
The court didn't have jurisdiction

00:13:17.190 --> 00:13:21.010
because the law that
said it had jurisdiction

00:13:21.010 --> 00:13:23.180
was unconstitutional.

00:13:23.180 --> 00:13:24.170
- [Kim] Wow, okay.

00:13:24.170 --> 00:13:25.950
So there's a lot going on here,

00:13:25.950 --> 00:13:28.250
but one of the big takeaways

00:13:28.250 --> 00:13:32.020
is this notion of Judicial Review,

00:13:32.020 --> 00:13:35.880
or the idea that the Constitution wins

00:13:35.880 --> 00:13:38.920
and it's up to the Supreme Court to decide

00:13:38.920 --> 00:13:40.930
whether that's the case.

00:13:40.930 --> 00:13:44.910
Can you talk more about the

00:13:44.910 --> 00:13:46.780
affects of Judicial Review?

00:13:46.780 --> 00:13:49.250
How does it check the power

00:13:49.250 --> 00:13:51.360
of the other branches of government?

00:13:51.360 --> 00:13:54.918
- [Kevin] In order for a law
to be enforced against anybody,

00:13:54.918 --> 00:13:57.630
all three branches of the government

00:13:57.630 --> 00:13:59.700
have to have taken some kind of action.

00:13:59.700 --> 00:14:01.377
So Congress had to have passed a law

00:14:01.377 --> 00:14:03.910
and the President has to sign it.

00:14:03.910 --> 00:14:06.380
Then the law has to be
enforced against somebody

00:14:06.380 --> 00:14:09.210
in a way that gives rise to a legal case.

00:14:09.210 --> 00:14:12.400
And then the judiciary gets the final word

00:14:12.400 --> 00:14:16.110
in that legal case as to whether
the law is constitutional.

00:14:16.110 --> 00:14:20.730
So the one way that Judicial
Review operates as a check

00:14:20.730 --> 00:14:22.880
on the President and the executive,

00:14:22.880 --> 00:14:24.700
is providing a backstop

00:14:24.700 --> 00:14:28.130
against the enforcement
of unconstitutional laws.

00:14:28.130 --> 00:14:32.373
- [Michael] So when the courts
strike down President Trump's

00:14:32.373 --> 00:14:34.130
travel ban, that's Judicial Review.

00:14:34.130 --> 00:14:38.239
Or when the Supreme Court
said President Truman

00:14:38.239 --> 00:14:40.710
exceeded his authority in ordering

00:14:40.710 --> 00:14:43.770
the seizure of the steal
mills during the Korean War,

00:14:43.770 --> 00:14:45.490
that's Judicial Review.

00:14:45.490 --> 00:14:48.970
Or when the Supreme Court
recently almost struck down

00:14:48.970 --> 00:14:50.520
the Affordable Care Act,

00:14:50.520 --> 00:14:53.380
that would be an exercise
of Judicial Review.

00:14:53.380 --> 00:14:54.954
- [ Kim] Interesting, so

00:14:54.954 --> 00:14:59.954
this case and perhaps just
Marshall as chief justice,

00:15:00.380 --> 00:15:04.300
in general made the court,
I think much more powerful

00:15:04.300 --> 00:15:05.180
than it had been.

00:15:05.180 --> 00:15:08.300
Do you think this new power for the court

00:15:08.300 --> 00:15:10.400
or expansion of power for the court

00:15:10.400 --> 00:15:12.963
would have surprised the framers?

00:15:13.810 --> 00:15:15.346
- [Michael] At the
Philadelphia Convention,

00:15:15.346 --> 00:15:18.960
more of the framers spoke
in favor of Judicial Review

00:15:18.960 --> 00:15:20.050
than against,

00:15:20.050 --> 00:15:21.950
but the issue didn't come up very much.

00:15:21.950 --> 00:15:24.650
There wasn't that concerted
a discussion of it,

00:15:24.650 --> 00:15:27.370
and they neglected to explicitly authorize

00:15:27.370 --> 00:15:29.220
the practice and the Constitution,

00:15:29.220 --> 00:15:31.400
which was kind of an oversight.

00:15:31.400 --> 00:15:32.910
It's just not a subject they spent

00:15:32.910 --> 00:15:35.090
a great deal of time talking about.

00:15:35.090 --> 00:15:38.010
And even to the extent they
believed in Judicial Review,

00:15:38.010 --> 00:15:40.450
they probably didn't think
the practice would be

00:15:40.450 --> 00:15:43.220
anywhere near as extensive as it's become

00:15:43.220 --> 00:15:45.350
over the course of American history.

00:15:45.350 --> 00:15:48.520
The Supreme Court just wasn't
that powerful an institution

00:15:48.520 --> 00:15:51.440
in 1803, and the fact
that it was declaring

00:15:51.440 --> 00:15:53.930
the power of Judicial Review,

00:15:53.930 --> 00:15:57.240
but then was declining
to exercise it in Marbury

00:15:57.240 --> 00:16:01.230
is very revealing of how
lacking in power the court was.

00:16:01.230 --> 00:16:04.940
- [Kevin] This was the first
time that the Supreme Court

00:16:04.940 --> 00:16:07.383
exercised this power of Judicial Review,

00:16:07.383 --> 00:16:11.430
and it is something that everyone agrees,

00:16:11.430 --> 00:16:15.280
a power that everyone agrees
that the Supreme Court has.

00:16:15.280 --> 00:16:17.660
And it's a big awesome power,

00:16:17.660 --> 00:16:21.188
and so it affects us because
we're still arguing over

00:16:21.188 --> 00:16:24.350
how that power should be exercised,

00:16:24.350 --> 00:16:26.803
and that is an argument worth having.

00:16:28.240 --> 00:16:30.980
- [Kim] So we learned that
far from simply being a case

00:16:30.980 --> 00:16:33.940
about one man's commission
getting lost in the mail,

00:16:33.940 --> 00:16:37.170
Marbury versus Madison
tested whether the President

00:16:37.170 --> 00:16:40.760
or Congress was above the
law in the United States.

00:16:40.760 --> 00:16:44.520
Chief justice John Marshall's
answer was emphatically no.

00:16:44.520 --> 00:16:46.880
And the decision in this case established

00:16:46.880 --> 00:16:49.470
an essential precedent
for the Supreme Court,

00:16:49.470 --> 00:16:51.490
the power of Judicial Review.

00:16:51.490 --> 00:16:54.020
To learn more about
Marbury versus Madison,

00:16:54.020 --> 00:16:56.190
check out the National
Constitutional Center's

00:16:56.190 --> 00:16:59.158
interactive Constitution
and Kahn Academy's resources

00:16:59.158 --> 00:17:01.563
on US Government and Politics.


The Tenth Amendment

WEBVTT
Kind: captions
Language: en

00:00:00.300 --> 00:00:02.140
- [Kim] Hi, this is Kim from Kahn Academy

00:00:02.140 --> 00:00:04.830
and today I'm learning
about the 10th Amendment

00:00:04.830 --> 00:00:06.954
to the Constitution, the last amendment

00:00:06.954 --> 00:00:08.620
in the Bill of Rights.

00:00:08.620 --> 00:00:10.555
The Bill of Rights was
added in order to calm

00:00:10.555 --> 00:00:12.991
some of the fears held
by those who felt that

00:00:12.991 --> 00:00:16.748
the new, stronger central
government under the Constitution

00:00:16.748 --> 00:00:19.524
might infringe upon the
powers of the states

00:00:19.524 --> 00:00:22.100
or on individual liberties.

00:00:22.100 --> 00:00:24.453
The 10th amendment was
specifically designed

00:00:24.453 --> 00:00:26.620
to allay those fears.

00:00:26.620 --> 00:00:30.160
It reads, the powers not
delegated to the United States

00:00:30.160 --> 00:00:33.780
by the Constitution, nor
prohibited by it to the States,

00:00:33.780 --> 00:00:37.500
are reserved to the States
respectively, or to the people.

00:00:37.500 --> 00:00:39.360
So what does this actually mean?

00:00:39.360 --> 00:00:42.100
To learn more, I sought out
the help of some experts.

00:00:42.100 --> 00:00:45.140
Randy Barnett is the
Carmack Waterhouse professor

00:00:45.140 --> 00:00:48.240
of legal theory at the
Georgetown University Law Center

00:00:48.240 --> 00:00:51.557
and director of the Georgetown
Center for the Constitution.

00:00:51.557 --> 00:00:55.441
Robert Schapiro is the Asa
Griggs Candler professor of law

00:00:55.441 --> 00:00:58.490
and dean of Emory Law School.

00:00:58.490 --> 00:01:00.900
So, Professor Barnett, can
you tell us a little bit

00:01:00.900 --> 00:01:02.720
just about what that means?

00:01:02.720 --> 00:01:03.810
It's a little dense.

00:01:03.810 --> 00:01:05.880
- [Prof. Barnett] During
the ratification debates

00:01:05.880 --> 00:01:10.210
there was lots of opposition
to the Constitution.

00:01:10.210 --> 00:01:13.647
In fact, the Constitution
only was ratified after

00:01:13.647 --> 00:01:15.401
the proponents of the Constitution,

00:01:15.401 --> 00:01:17.229
who called themselves Federalists,

00:01:17.229 --> 00:01:20.714
promised that amendments would
be made to the Constitution.

00:01:20.714 --> 00:01:23.127
Because it was the lack
of a Bill of Rights

00:01:23.127 --> 00:01:27.260
and other changes that
caused people to oppose it.

00:01:27.260 --> 00:01:30.300
And so they said they would
put a bill of rights on

00:01:30.300 --> 00:01:33.771
afterwards and at that
point in these ratification

00:01:33.771 --> 00:01:37.356
conventions, conventions
started proposing amendments

00:01:37.356 --> 00:01:40.830
to Congress that accompanied
their ratification.

00:01:40.830 --> 00:01:42.730
So they ratified it and
they said, but here are some

00:01:42.730 --> 00:01:44.090
changes we want to see made.

00:01:44.090 --> 00:01:46.949
And one of the changes that
several states asked for

00:01:46.949 --> 00:01:50.900
was wording that was very
much like what became

00:01:50.900 --> 00:01:52.220
the 10th amendment.

00:01:52.220 --> 00:01:55.260
A reaffirmation of the fact
that the federal government

00:01:55.260 --> 00:01:58.650
was going to be one of
limited and enumerated powers.

00:01:58.650 --> 00:02:00.440
- [Prof. Schapiro] And the 10th amendment

00:02:00.440 --> 00:02:03.327
is an expression of the idea
that while there are more

00:02:03.327 --> 00:02:06.755
powers given to the central
government of the United States

00:02:06.755 --> 00:02:10.720
it's still the case that the
only power that the central

00:02:10.720 --> 00:02:13.090
government, the national
government, can exercise

00:02:13.090 --> 00:02:16.625
are powers specifically given
to it by the Constitution.

00:02:16.625 --> 00:02:20.847
So the 10th amendment is an
embodiment of the structural

00:02:20.847 --> 00:02:24.800
principle that the only
powers that the national

00:02:24.800 --> 00:02:28.140
government has are those
that are delegated to it

00:02:28.140 --> 00:02:30.008
in the Constitution.

00:02:30.008 --> 00:02:34.106
As opposed to the states
who have general powers

00:02:34.106 --> 00:02:35.910
within their boundaries.

00:02:35.910 --> 00:02:37.630
- [Kim] One of the things
that I think we see

00:02:37.630 --> 00:02:42.630
in the Bill of Rights is
many examples of the framers

00:02:42.917 --> 00:02:47.917
responding to particular historical evils

00:02:48.070 --> 00:02:50.140
that they had witnessed in England

00:02:50.140 --> 00:02:51.950
or in Europe, more generally.

00:02:51.950 --> 00:02:54.594
So was there something in
particular they had in mind

00:02:54.594 --> 00:02:57.410
they were trying to prevent
with the 10th amendment?

00:02:57.410 --> 00:02:58.710
- [Prof. Schapiro] I
think the particular evil

00:02:58.710 --> 00:03:03.365
they were concerned with was
the concern of a distant,

00:03:03.365 --> 00:03:06.770
powerful, centralized government.

00:03:06.770 --> 00:03:10.210
That had been the
government of King George.

00:03:10.210 --> 00:03:11.930
They wanted to make sure
that wasn't the government

00:03:11.930 --> 00:03:15.860
of President George Washington
and the 10th amendment

00:03:15.860 --> 00:03:20.124
states that the national
government is not an all powerful

00:03:20.124 --> 00:03:24.447
body with general authority
to do whatever it wants.

00:03:24.447 --> 00:03:27.180
It's in line with the
structure of the Constitution

00:03:27.180 --> 00:03:30.045
which says there are certain
powers given to the national

00:03:30.045 --> 00:03:33.095
government, there certainly
are definite powers

00:03:33.095 --> 00:03:36.730
given to them but only some powers.

00:03:36.730 --> 00:03:41.730
And that idea of being
concerned of a distant, strong

00:03:42.090 --> 00:03:45.810
government far away from the
people is really what underlies

00:03:45.810 --> 00:03:47.570
the principle of the Constitution.

00:03:47.570 --> 00:03:49.980
And that's what we see
in the 10th amendment,

00:03:49.980 --> 00:03:53.300
specifying that the powers not delegated

00:03:53.300 --> 00:03:55.160
to the United States by the Constitution

00:03:55.160 --> 00:03:57.342
are reserved to the states.

00:03:57.342 --> 00:04:00.220
- [Kim] So what would you say is important

00:04:00.220 --> 00:04:01.780
about the 10th amendment?

00:04:01.780 --> 00:04:04.430
- [Prof. Barnett] It reaffirms
that the basic structure

00:04:04.430 --> 00:04:08.052
of the Constitution is one of
limited and enumerated powers.

00:04:08.052 --> 00:04:11.450
How limited, of course,
is a matter of debate.

00:04:11.450 --> 00:04:13.956
But the fact that they are
limited and that all other powers

00:04:13.956 --> 00:04:17.480
are reserved to the states
respectively or to the people

00:04:17.480 --> 00:04:19.850
is now a matter of Constitutional law,

00:04:19.850 --> 00:04:21.590
it's a matter of the text.

00:04:21.590 --> 00:04:23.220
The other thing that's
interesting about the 10th

00:04:23.220 --> 00:04:26.790
amendment is that in Congress
they added the phrase,

00:04:26.790 --> 00:04:28.535
or to the people at the end.

00:04:28.535 --> 00:04:30.640
The states did not propose that language.

00:04:30.640 --> 00:04:32.700
The states proposed the
wording of the 10th amendment

00:04:32.700 --> 00:04:34.652
and it just would have
stopped where it said

00:04:34.652 --> 00:04:36.370
are reserved to the states.

00:04:36.370 --> 00:04:39.240
And so that made the ninth
amendment less a states' rights

00:04:39.240 --> 00:04:41.320
provision than the states
had wanted and less

00:04:41.320 --> 00:04:44.470
a states' rights provision
than people read it today.

00:04:44.470 --> 00:04:45.520
So the people have rights.

00:04:45.520 --> 00:04:47.670
In fact, nowhere in the
Constitution does it say

00:04:47.670 --> 00:04:50.340
anyone except individuals
or persons have rights.

00:04:50.340 --> 00:04:52.130
It doesn't say states have rights.

00:04:52.130 --> 00:04:54.030
The 10th amendment is
about reserved powers

00:04:54.030 --> 00:04:57.040
and those are the powers
that the people have

00:04:57.040 --> 00:04:59.180
to govern themselves
as well as other powers

00:04:59.180 --> 00:05:01.870
and what this shows is that
the people not only have rights

00:05:01.870 --> 00:05:03.390
they also have powers.

00:05:03.390 --> 00:05:06.045
Perhaps the most important
thing, however, is to note

00:05:06.045 --> 00:05:08.346
that these two are separate provisions.

00:05:08.346 --> 00:05:11.402
That the Supreme Court has
sometimes read the 10th

00:05:11.402 --> 00:05:14.360
amendment, or the ninth
amendment, as meaning basically

00:05:14.360 --> 00:05:16.520
the 10th amendment that the
people have reserved powers.

00:05:16.520 --> 00:05:18.620
But we know they're different
because they are put

00:05:18.620 --> 00:05:20.778
in there separately and
in fact Madison placed

00:05:20.778 --> 00:05:23.720
a much higher premium on
the importance of the ninth

00:05:23.720 --> 00:05:25.310
amendment as opposed to the 10th.

00:05:25.310 --> 00:05:26.680
- [Prof. Schapiro] The 10th
amendment and the ninth

00:05:26.680 --> 00:05:28.950
amendment really speak to the structure

00:05:28.950 --> 00:05:31.889
of the Constitutional
system, what it means to have

00:05:31.889 --> 00:05:35.454
a Constitution setting
up a national government,

00:05:35.454 --> 00:05:39.100
The 10th amendment is really
a statement of the overall

00:05:39.100 --> 00:05:41.470
structure of what we call Federalism.

00:05:41.470 --> 00:05:43.349
Certain powers given to
the national government

00:05:43.349 --> 00:05:45.616
and then powers reserved to the states.

00:05:45.616 --> 00:05:48.201
The ninth amendment
speaks more to the rights

00:05:48.201 --> 00:05:51.890
side of things, that is,
we have certain rights

00:05:51.890 --> 00:05:54.150
which are set forth in the Bill of Rights.

00:05:54.150 --> 00:05:57.350
The first amendment about
freedom of speech and religion,

00:05:57.350 --> 00:06:00.840
the fourth amendment about
protection against unreasonable

00:06:00.840 --> 00:06:03.830
searches and seizures,
and there was some concern

00:06:03.830 --> 00:06:08.260
expressed in the late
1700s that if you specified

00:06:08.260 --> 00:06:11.910
those rights, did that
somehow mean that the national

00:06:11.910 --> 00:06:14.750
government could do
whatever else it wanted?

00:06:14.750 --> 00:06:17.502
And so the ninth amendment
says, the enumeration

00:06:17.502 --> 00:06:21.150
of certain rights shall
not be construed to deny

00:06:21.150 --> 00:06:23.910
or disparage others
retained by the people.

00:06:23.910 --> 00:06:26.749
So it's in line with the
idea that national government

00:06:26.749 --> 00:06:30.197
has certain powers but they are limited

00:06:30.197 --> 00:06:32.954
because other powers are
reserved to the states.

00:06:32.954 --> 00:06:35.710
And the power of the
national government may also

00:06:35.710 --> 00:06:37.229
be limited because there are rights

00:06:37.229 --> 00:06:39.220
that are reserved to the people.

00:06:39.220 --> 00:06:41.729
- [Kim] How do you think
the 10th amendment tells us

00:06:41.729 --> 00:06:44.757
that the framers intended
the federal government

00:06:44.757 --> 00:06:47.431
and the state governments
to relate to each other?

00:06:47.431 --> 00:06:49.172
- [Prof. Schapiro] The
10th amendment really is

00:06:49.172 --> 00:06:53.210
a little more about structure
than about specific content.

00:06:53.210 --> 00:06:55.510
So I think the 10th
amendment embodies the idea

00:06:55.510 --> 00:06:58.623
that we should think carefully
about what are the powers

00:06:58.623 --> 00:07:02.300
given to the national
government, understanding that

00:07:02.300 --> 00:07:05.965
whatever's given to the national
government may take powers

00:07:05.965 --> 00:07:07.760
away from the states.

00:07:07.760 --> 00:07:10.853
And so the 10th amendment is really a text

00:07:10.853 --> 00:07:14.970
that embodies the overall
principle of Federalism

00:07:14.970 --> 00:07:18.385
that is implicit throughout
the United States Constitution.

00:07:18.385 --> 00:07:19.880
- [Prof. Barnett] In
fact, the 10th amendment

00:07:19.880 --> 00:07:23.183
is in some respects kind of a
replay of the first sentence

00:07:23.183 --> 00:07:27.540
of Article One that says
that Congress only has

00:07:27.540 --> 00:07:28.620
the powers herein granted.

00:07:28.620 --> 00:07:31.670
States have the powers,
by contrast, and the 10th

00:07:31.670 --> 00:07:33.720
amendment affirms, the
states have the powers

00:07:33.720 --> 00:07:36.428
that are not granted to
the federal government

00:07:36.428 --> 00:07:40.530
but are granted to them
under state constitutions.

00:07:40.530 --> 00:07:43.680
So just as the federal
government has the powers it has

00:07:43.680 --> 00:07:46.155
under the US Constitution, state
governments have the powers

00:07:46.155 --> 00:07:49.129
they have under state
constitutions and the people

00:07:49.129 --> 00:07:52.760
reserve all other powers to themselves.

00:07:52.760 --> 00:07:54.610
- [Kim] So how has the 10th amendment been

00:07:54.610 --> 00:07:57.150
interpreted by the
Supreme Court over time?

00:07:57.150 --> 00:07:59.810
I imagine there have been
some cases about this

00:07:59.810 --> 00:08:02.580
as the federal government
has gotten more powerful.

00:08:02.580 --> 00:08:05.250
- [Prof. Schapiro] Exactly,
so the 10th amendment,

00:08:05.250 --> 00:08:07.950
which really is just about
the structure of government,

00:08:07.950 --> 00:08:10.740
saying some power is given
to the national government

00:08:10.740 --> 00:08:12.520
and there's a concern about the power

00:08:12.520 --> 00:08:15.130
reserved to the states,
the understanding of that

00:08:15.130 --> 00:08:17.900
has really evolved with the understanding

00:08:17.900 --> 00:08:21.250
of the breadth, of the power
of the national government.

00:08:21.250 --> 00:08:23.900
And what we've seen over
the course of history

00:08:23.900 --> 00:08:27.120
in the United States is
that there's been a broader

00:08:27.120 --> 00:08:29.800
understanding of the
power of the government

00:08:29.800 --> 00:08:31.260
of the United States.

00:08:31.260 --> 00:08:33.795
That expansion has really
come mainly in two forms.

00:08:33.795 --> 00:08:38.059
One is with regard to the
government's power to regulate

00:08:38.059 --> 00:08:42.419
interstate commerce and
the broad interpretation

00:08:42.419 --> 00:08:46.640
of the national government's
power to regulate commerce.

00:08:46.640 --> 00:08:50.080
We saw that particularly
in the context of the

00:08:50.080 --> 00:08:53.120
great depression when there
was viewed to be tremendous

00:08:53.120 --> 00:08:56.500
social dislocation,
tremendous economic problems

00:08:56.500 --> 00:08:59.652
in the United States to the
point at which some feared

00:08:59.652 --> 00:09:03.370
that the American
democracy might collapse.

00:09:03.370 --> 00:09:05.881
And the national
government then was allowed

00:09:05.881 --> 00:09:09.350
to exercise more authority
over the economy.

00:09:09.350 --> 00:09:11.310
- [Prof. Barnett] The Supreme
Court, in the New Deal,

00:09:11.310 --> 00:09:13.550
declared the 10th amendment as a truism,

00:09:13.550 --> 00:09:16.820
meaning as long as you
find a power then you can't

00:09:16.820 --> 00:09:19.470
have a 10th amendment
objection to that power.

00:09:19.470 --> 00:09:21.935
That's right, as a logical
matter, except that

00:09:21.935 --> 00:09:25.530
if you continue to expand
your interpretation

00:09:25.530 --> 00:09:28.420
of those powers then you
are basically violating

00:09:28.420 --> 00:09:31.420
the spirit, if not the
letter, of the 10th amendment.

00:09:31.420 --> 00:09:33.456
And finally then, during
the Rehnquist Court,

00:09:33.456 --> 00:09:36.870
until today the Supreme
Courts started using

00:09:36.870 --> 00:09:39.051
the 10th amendment to enforce the spirit

00:09:39.051 --> 00:09:42.398
of the Constitution which
preserved the existence

00:09:42.398 --> 00:09:46.510
of states even when
Congress was claiming powers

00:09:46.510 --> 00:09:48.564
that went far beyond
those that were originally

00:09:48.564 --> 00:09:52.070
mentioned in the Constitution's text.

00:09:52.070 --> 00:09:54.010
- [Prof. Schapiro] So, in
some cases in the early

00:09:54.010 --> 00:09:57.607
20th century you did see the
United States Supreme Court

00:09:57.607 --> 00:10:01.692
interpreting the 10th amendment
to limit, to some extent,

00:10:01.692 --> 00:10:04.492
what the national government
could do if, say, the issue

00:10:04.492 --> 00:10:09.150
were child labor or minimum
wage laws, things like that.

00:10:09.150 --> 00:10:11.300
A question is, is that really
something that the national

00:10:11.300 --> 00:10:12.554
government can do?

00:10:12.554 --> 00:10:17.554
But in the wake of, we say,
the New Deal legislation

00:10:18.270 --> 00:10:21.160
that was put forward by
Congress in the great depression

00:10:21.160 --> 00:10:25.090
of the 1930s and approved
by the Supreme Court,

00:10:25.090 --> 00:10:28.918
we've seen the Supreme
Court take a much narrower

00:10:28.918 --> 00:10:32.010
understanding of the 10th amendment.

00:10:32.010 --> 00:10:34.070
Or, again, we can really
see the 10th amendment

00:10:34.070 --> 00:10:36.600
in balance with the power
of the national government.

00:10:36.600 --> 00:10:39.340
And as we've understood a
broader role for the national

00:10:39.340 --> 00:10:44.340
government the role reserved
to the states has shrunk.

00:10:44.435 --> 00:10:45.268
- [Kim] This is fascinating.

00:10:45.268 --> 00:10:48.167
So one thing that interests me about this

00:10:48.167 --> 00:10:52.544
in terms of US history
is the way that later on

00:10:52.544 --> 00:10:56.113
the 14th amendment is
interpreted to incorporate

00:10:56.113 --> 00:10:58.630
the Bill of Rights in to the states.

00:10:58.630 --> 00:11:02.750
So how does the 14th
amendment's protection

00:11:02.750 --> 00:11:06.174
of equal citizenship rights
then intersect with the idea

00:11:06.174 --> 00:11:10.000
that states have certain
individual powers?

00:11:10.000 --> 00:11:11.910
- [Prof. Schapiro] So certainly
in the wake of the Civil War

00:11:11.910 --> 00:11:15.220
we saw the 13th, 14th,
and 15th amendments.

00:11:15.220 --> 00:11:17.058
The 13th amendment banning slavery,

00:11:17.058 --> 00:11:19.510
the 14th amendment guaranteeing rights

00:11:19.510 --> 00:11:23.460
of national citizenship and
equal protection and due process

00:11:23.460 --> 00:11:26.140
and the 15th amendment
guaranteeing the right to vote,

00:11:26.140 --> 00:11:29.220
all of which expanded the power
of the national government

00:11:29.220 --> 00:11:33.330
and particularly the 14th
amendment and its guarantee

00:11:33.330 --> 00:11:36.647
of equal protection of laws
and due process of laws

00:11:36.647 --> 00:11:41.544
were really new national
restrictions on state authority,

00:11:41.544 --> 00:11:46.240
a new empowerment of the
national government to protect

00:11:46.240 --> 00:11:49.010
individuals no matter
what state they were.

00:11:49.010 --> 00:11:51.135
So since the structure
of the 10th amendment

00:11:51.135 --> 00:11:55.620
is not about protecting a
particular body of power,

00:11:55.620 --> 00:11:59.540
it would be natural that as
the 14th amendment expands

00:11:59.540 --> 00:12:01.927
the role of the national
government that there'd be

00:12:01.927 --> 00:12:04.930
less for the states to
do completely immune

00:12:04.930 --> 00:12:06.440
from federal intrusion.

00:12:06.440 --> 00:12:08.110
- [Prof. Barnett] The
14th amendment represents

00:12:08.110 --> 00:12:12.250
a fundamental change to
our system of Federalism.

00:12:12.250 --> 00:12:16.260
Precisely because it has
a section five in the 14th

00:12:16.260 --> 00:12:19.590
amendment which empowers Congress
to enforce the provisions

00:12:19.590 --> 00:12:22.490
of the previous four sections
including section one

00:12:22.490 --> 00:12:24.660
which has the citizenship
clause and the privileges

00:12:24.660 --> 00:12:26.430
or immunities clause and
the due process clause

00:12:26.430 --> 00:12:27.810
and the equal protection clause.

00:12:27.810 --> 00:12:31.820
So Congress is given an
enumerated power to protect

00:12:31.820 --> 00:12:35.042
individuals from their own
state governments violating

00:12:35.042 --> 00:12:39.570
their fundamental rights under
those section one provisions.

00:12:39.570 --> 00:12:43.080
That's a change in our
Federalism that is consistent

00:12:43.080 --> 00:12:45.990
with the 10th amendment
because it's a power

00:12:45.990 --> 00:12:48.790
that is delegated to
Congress by the Constitution,

00:12:48.790 --> 00:12:51.100
by section five of the 14th amendment.

00:12:51.100 --> 00:12:53.107
What happened to that,
however, immediately after

00:12:53.107 --> 00:12:55.768
it was enacted is the
Supreme Court decided,

00:12:55.768 --> 00:12:58.781
and I think quite consciously
in their minds decided,

00:12:58.781 --> 00:13:01.500
that this change in our
system of Federalism

00:13:01.500 --> 00:13:02.510
was objectionable.

00:13:02.510 --> 00:13:05.510
In fact it was the product
of radical republicans

00:13:05.510 --> 00:13:07.690
in Congress and it really
needed to be undone.

00:13:07.690 --> 00:13:10.840
And so in one of the earliest
examples of what I would call

00:13:10.840 --> 00:13:13.488
living Constitutionalism,
in a series of cases

00:13:13.488 --> 00:13:17.987
the Supreme Court cut back
on the powers of Congress

00:13:17.987 --> 00:13:21.850
to protect individuals from
the rights of their citizens

00:13:21.850 --> 00:13:24.770
in cases like the
Slaughterhouse cases or United

00:13:24.770 --> 00:13:28.680
States versus Crookshank,
or Plessy versus Ferguson.

00:13:28.680 --> 00:13:31.350
These are cases, the civil
rights cases are more

00:13:31.350 --> 00:13:33.648
in which the Supreme
Court actually cut back

00:13:33.648 --> 00:13:37.240
on the scope in order to
restore the Federalism

00:13:37.240 --> 00:13:39.260
that existed prior to the Civil War

00:13:39.260 --> 00:13:40.930
that the justices preferred.

00:13:40.930 --> 00:13:42.850
- [Prof. Schapiro] I
think based on its text

00:13:42.850 --> 00:13:45.640
and its interpretation
over time we see the 10th

00:13:45.640 --> 00:13:49.250
amendment really being a
recognition of the Federalist

00:13:49.250 --> 00:13:51.410
structure of the United
States Constitution,

00:13:51.410 --> 00:13:53.457
meaning there will be
a national government

00:13:53.457 --> 00:13:54.908
and there will be states.

00:13:54.908 --> 00:13:57.850
And that has not changed over time.

00:13:57.850 --> 00:14:00.578
What has changed over time
is an understanding about

00:14:00.578 --> 00:14:03.744
the scope of the role of
the national government.

00:14:03.744 --> 00:14:06.127
How much power the
national government needs

00:14:06.127 --> 00:14:08.528
either to regulate the national economy

00:14:08.528 --> 00:14:11.010
or to protect individual rights.

00:14:11.010 --> 00:14:13.297
Certainly the interpretation
of the interstate

00:14:13.297 --> 00:14:17.088
commerce clause and the
enactment of the 14th amendment

00:14:17.088 --> 00:14:19.906
have been key elements
in expanding the role

00:14:19.906 --> 00:14:21.590
of national power.

00:14:21.590 --> 00:14:23.160
- [Prof. Barnett] But
all of this expansion

00:14:23.160 --> 00:14:25.870
of national power is completely
consistent with the language

00:14:25.870 --> 00:14:29.330
of the 10th amendment which
again does not specify

00:14:29.330 --> 00:14:32.983
any particular kind of power
reserved to the states.

00:14:32.983 --> 00:14:35.479
It just recognizes that
there will be a national

00:14:35.479 --> 00:14:37.930
government and there will be states.

00:14:37.930 --> 00:14:39.920
- [Kim] So how have the
courts been utilizing

00:14:39.920 --> 00:14:42.040
the 10th amendment in recent years?

00:14:42.040 --> 00:14:43.310
- [Prof. Barnett] In
recent years the courts

00:14:43.310 --> 00:14:45.710
have been using the 10th
amendment not so much

00:14:45.710 --> 00:14:48.310
for what it says but for its spirit.

00:14:48.310 --> 00:14:51.150
The idea that it reaffirms
the importance of states

00:14:51.150 --> 00:14:53.010
in our Constitutional structure.

00:14:53.010 --> 00:14:55.340
What's happened since the
New Deal is the powers

00:14:55.340 --> 00:14:57.950
of Congress under its
enumerated powers have been

00:14:57.950 --> 00:15:01.170
so broadly or expansively interpreted

00:15:01.170 --> 00:15:03.543
that if they were all
to be applied to states

00:15:03.543 --> 00:15:06.130
they way they are applied
to private individuals

00:15:06.130 --> 00:15:09.410
and private companies essentially
Congress could basically

00:15:09.410 --> 00:15:12.592
run all the states using
it's commerce power

00:15:12.592 --> 00:15:15.210
combined with its
necessary and proper clause

00:15:15.210 --> 00:15:16.523
power, et cetera.

00:15:16.523 --> 00:15:19.460
What the Supreme Court
has done in recent years

00:15:19.460 --> 00:15:21.475
is said this violates the first principles

00:15:21.475 --> 00:15:24.740
of our Constitutional
order which says states

00:15:24.740 --> 00:15:27.320
are important, the 10th
amendment affirms that.

00:15:27.320 --> 00:15:29.880
And therefore they've
created certain carve out

00:15:29.880 --> 00:15:33.693
or special protections for
states from these broadly

00:15:33.693 --> 00:15:37.410
or expansively read Congressional powers.

00:15:37.410 --> 00:15:40.420
None of this is really
stemming from the original

00:15:40.420 --> 00:15:43.410
meaning of the 10th amendment
because what's already

00:15:43.410 --> 00:15:45.446
happened is the original
meaning of the enumerated powers

00:15:45.446 --> 00:15:47.100
has already been exceeded.

00:15:47.100 --> 00:15:50.170
But what it's attempting
to do is to keep in place

00:15:50.170 --> 00:15:52.560
the balance between
federal and state powers

00:15:52.560 --> 00:15:54.500
that the 10th amendment represented.

00:15:54.500 --> 00:15:57.840
But doing so in a way
that's basically modern.

00:15:57.840 --> 00:16:00.562
It's adding the states to a
list of protected entities,

00:16:00.562 --> 00:16:04.188
protected from expansive federal power.

00:16:04.188 --> 00:16:06.720
- [Kim] So we've learned
that the 10th amendment

00:16:06.720 --> 00:16:09.670
reaffirms that the federal
government of the United States

00:16:09.670 --> 00:16:13.880
will be a limited government
with enumerated powers.

00:16:13.880 --> 00:16:16.504
But as the scope of the
federal government has grown

00:16:16.504 --> 00:16:19.600
so has debate over the interpretation

00:16:19.600 --> 00:16:20.830
of the 10th amendment.

00:16:20.830 --> 00:16:22.933
Which actions of the states
can the federal government

00:16:22.933 --> 00:16:26.890
regulate and which exceed federal power?

00:16:26.890 --> 00:16:28.816
To learn more about the
10th amendment visit

00:16:28.816 --> 00:16:31.500
the National Constitution
Center's interactive

00:16:31.500 --> 00:16:33.712
Constitution and Khan Academy's resources

00:16:33.712 --> 00:16:35.953
on US government and politics.