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  • Writer's pictureBrian Powers

Episode 7 - What the Law is

This may be the nerdiest episode of all of them, because the inner workings of the Supreme Court and the application of the Constitution to the job at hand aren't exactly cocktail party topics. So this is the whole wheat episode where you really get your fiber, but I'm highly amused by the story - John Marshall wanted to give the Court purpose, and he did so, even at the cost of his own political party. That's another thing to note - we all learn in history class that George Washington decried the rise of "factions" in his Farewell Address (we know them now as "parties"), and this may be the first blatant partisan stunt pulled with real-world implications. It's amazing to see an outgoing administration try their darnedest to hamstring the next one, and remember that this was all Founding Fathers vs. Founding Fathers. Once Dad Washington retired, the kids fought like crazy over his job.


What strikes me as at least mildly interesting here is the presence of James Madison in all of this - it's fitting that he's a part of the inception of judicial review, but his role is fairly passive. But it's worth thinking about - here is the architect of the Constitution, thrust into the middle of a case that will determine the role of the Supreme Court, established by the document that HE led the creation of, and he may as well be just some random guy for all that it matters.


Finally, what I love and appreciate about this case is that judicial review as envisioned by John Marshall shows up nowhere in the Constitution - Marshall just says, "This is what we're doing. We're a check on you now," and Congress and the President are all, "'K." And that's what we've been going with for nearly 220 years. It's just checks and balances through tacit agreement. I'm not saying it doesn't make sense under the Court's mandate to handle all cases arising under the Constitution - but still...


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