Latest / Plausibly Live - The Dave Bowman Show Podcast / John Marshall's Gordian Knot

Transcript

John Marshall's Gordian Knot · Plausibly Live - The Dave Bowman Show Podcast

0:00
History is strange, it's alien, and it won't give us what we
0:04
would like to have. Thanks for being with us here on
0:09
Bill Mick Live. And fortunately, the 1920s
0:13
electrical grid in Washington state has been repaired and Dave
0:17
Bowman is able to join us for this hour.
0:20
They missed you in the last hour, Dave, talking First
0:22
Amendment issues and the Trump administration.
0:24
And it was a fun conversation. And you wouldn't you would have
0:28
been a good part of that. We missed you, pal.
0:29
I look forward to the podcast, which is available on
0:32
iHeartRadio. Yes, it is most certainly as are
0:35
all of yours which are linked up by the way today on the show
0:38
page at billmc.com, the Dave Bowman Show.
0:41
Dave does history and what the frock all there for you.
0:44
So you can link up to all of that.
0:45
And well, we get our live edition there of today and I'm
0:49
excited about that, something that we have heard about many,
0:52
many times with a look that only Dave Bowman can provide, Marbury
0:57
versus Madison. Dave, tell me where we're going
1:00
here. So a few weeks ago we talked
1:02
about presidential transitional skullduggery and we talked
1:08
about, we took a deep dive into a lot of those kind of things,
1:11
but we talked particularly about the election of 1800 and the
1:15
infamous midnight judges of John Adams.
1:20
It was a story of political maneuvering, backroom deals, and
1:25
a very bitter transfer of power before between two literally and
1:30
fear. Fiercely.
1:31
Sorry, Not literally, but fiercely opposed factions.
1:34
I'm on my first cup of coffee, folks.
1:36
Sorry. See he took off the 1st 2 hours
1:40
to sleep, that's what he did. Well, no, we didn't have any
1:42
power to make coffee anyway. The.
1:47
Navy taught you nothing about making coffee without power,
1:50
Dave. And as you know, we have some
1:53
situations here that like that. Anyway, that whole story,
1:58
though, was just the opening act.
2:00
And today we're going to cover the conclusion of that act, if
2:04
you will, the moment when the Supreme Court would seize its
2:09
greatest power and would forever change the balance of the
2:11
American government. This is the case of Marbury
2:14
versus Madison, which decided this day at 18 O3.
2:17
And if you think it's just a a dusty legal ruling from 18 O3,
2:21
well, it still affects us today. The Supreme This Supreme Court
2:26
case is the reason we live under a system where 9 unelected
2:30
judges can strike down laws passed by Congress and signed by
2:34
the President. It established the principle of
2:37
judicial review, giving the Supreme Court the final say on
2:40
what is and is not constitutional.
2:44
It's a power so enormous that it shapes nearly every legal and
2:48
political issue that we face today.
2:51
Abortion, gun rights, civil rights, executive power, you
2:54
name it. Marbury versus Madison is cited
2:58
in that decision, and it's what made it possible for the court
3:01
to rule on it. And it all started with a man
3:04
named William Marbury, a piece of undelivered paperwork and a
3:08
very shrewd justice by the name of John Marshall.
3:12
And we pick it up in 60 seconds on WMMB.
3:16
Your commentary welcome on the WMMB and Bill Mick Live Facebook
3:19
pages. They'll post there for you about
3:21
today's show. You can weigh in there.
3:23
We'll let you get in on the phones in our final segment here
3:25
of Dave does history right now back to Marbury versus Madison.
3:29
Where we at, Dave? So here's the set up now just to
3:32
just to kind of replay what we talked about before in the final
3:35
literally hours of the Adams administration.
3:38
He was still very angry over his loss to Thomas Jefferson.
3:44
And remember that he had passed, he had gotten Congress and the
3:48
Federalists to pass an act called the Alien and Sedition
3:51
Act, which was well, Bill, it made it a crime to criticize the
3:56
government. So that government, yeah, back
4:00
to the First Amendment again. It it, it kind of did that.
4:03
So in his last hours as president, he commissioned a
4:08
slew of federal judges and law enforcement officials and the
4:12
and the likes of that. These were known as the
4:14
Midnight, Midnight judges, one of whom was a guy by the name of
4:18
William Marbury. He was promoted to a position or
4:22
promised a position, I guess technically of as justice of the
4:26
peace in Washington, DC Now that's not a judge position, but
4:31
what does the justice of the peace do?
4:34
Issues. Warrants.
4:36
Warrants does marriages overseas, local politics, that
4:42
sort of thing. It's a it's a position that's
4:45
seen as very potentially powerful.
4:48
Remember, Washington, DC at this point is a brand new city.
4:51
He's a federalist, an ardent federalist, and it's seen as a
4:55
stepping stone to higher positions.
4:59
But in the meantime, he's the person that's going to be
5:01
issuing the warrants for people who are charged under the Alien
5:04
and Sedition Act and going out and getting them.
5:09
So you can see where the Jeffersonian administration
5:14
would have a little bit of a problem with this.
5:16
Before he can take office, though, the presidential
5:20
transition occurs March 4th, 18 O3 and Jefferson becomes
5:25
president and his new Secretary of State fellow by the name of
5:29
James Madison looks at this and says, oh, bleep, no, we're not
5:36
sending this out to this guy. We're not, no.
5:41
And so he basically throws the thing in the trash.
5:45
Marbury gets upset about this. He files a lawsuit in the
5:49
Supreme Court of the United States to force Madison to hand
5:52
over his appointment. Now, consider the politics of
5:57
this. It's eighteen O 3, not 2025.
6:02
The Supreme Court is one of those things that's kind of
6:04
like, well, what does it actually do right now?
6:12
OK, Chisholm V Georgia, we got that.
6:15
But, you know, beyond that, what does it really do?
6:20
Now? The Chief Justice, this guy by
6:22
the name of John Marshall, looks at this, and he sees a potential
6:26
trap. Jefferson is playing politics.
6:30
Jefferson and Madison are playing politics.
6:34
If this lawsuit goes through and Marshall and the Supreme Court
6:39
rule in favor of Marbury, what's Jefferson going to do?
6:44
He's just going to ignore it. He's going to tell the Supreme
6:49
Court no, and then what happens to the United States Supreme
6:54
Court? It becomes less relevant, if
6:57
relevant at all. But if he rules against
7:00
Jefferson or, I'm sorry, against Marbury, then it looks like he's
7:05
just giving in to pressure. He's just being told what he
7:08
should make the decision to be by Jeffersonian.
7:10
And how is that any different from any president telling the
7:14
courts what to do? This is actually going to come
7:18
into play in the 1830s when the Supreme Court will make a
7:20
decision and Andrew Jackson will make his famous quote about
7:23
while the Supreme Court's made their decision, now let them go
7:25
and force it. But it's at this moment that
7:28
Marshall, looking at this, starts to realize that these
7:32
people are playing politics, not law.
7:37
There's a something about the law that requires people to pay
7:40
attention to. Shall we call them small
7:43
details? Because if you don't pay
7:46
attention to the wording of a law, sometimes that thing can
7:50
backfire on you and you end. Up see it all the time now.
7:54
Right. You end up with a former state
7:56
senator able to run again. Yeah, because the language
8:01
wasn't right. Marbury starts looking at the
8:04
law, the Judiciary Act of 1789, and he notices something in that
8:10
law. He notices that the courts are
8:15
authorized to do something that is not included in the United
8:19
States Constitution. And so he's going to begin to
8:23
look at this and he's going to begin to pull this apart and
8:25
say, well, what if the entire Judiciary Act of 1789 that
8:31
establishes lower courts and how many Supreme Court justices
8:36
there are and all that kind of stuff?
8:37
What if that law is unconstitutional because it does
8:42
things that are not in the Constitution, not authorized in
8:46
the Constitution? Now remember the president of
8:49
Jefferson, there are two schools of thought when it comes to to
8:53
constitutional interpretation. There's the Madisonian or not
8:57
not mad Hamiltonian thought process, which is that if it
9:01
doesn't say you can't, you can't.
9:06
And there's the Jeffersonian, the guy that's president now
9:09
mindset, which says that if it doesn't say you can, you cannot.
9:16
And Marshall knows this. He knows that the president's
9:19
interpretation of the Constitution, at least so far,
9:23
it'll change with Louisiana. But for the moment, his
9:27
interpretation is, well, if it's not in the Constitution, you
9:31
can't do it. And one of the things that's in
9:36
the Judiciary Act of 1789, the very thing that Marbury wants to
9:41
have happen, is not in the Constitution.
9:46
This is what is known as a writ of mandus.
9:51
It is a the the Congress, when it passed the 1789 Judiciary
9:55
Act, authorizes the courts to issue what is known as a writ of
10:02
mandus. Mandus, Mandus, mandemus.
10:07
Sorry, it's early folks. Mandamus.
10:09
This is a legal order that requires the government to do
10:15
what the court has told them to do.
10:18
That is in the Judiciary Act of 1789, the Congress of the United
10:23
States authorizes the court system, the Supreme Court and
10:26
lower courts to issue writs of mandamus.
10:30
The problem is if you go and you look at the Constitution, United
10:33
States, that's not in there. And John Marshall seems to be
10:39
the only person on the entire face of the planet that has
10:43
figured that out. And he maybe has a way out of
10:47
his political dilemma. Little things making a big
10:53
difference. I used to tell that to my kids
10:55
all the time. Details matter, it makes a
10:58
difference. Pay attention to them.
11:00
We'll see how this played out when we continue with Dave Does
11:03
History on WMNB. All.
11:06
The way from Silverdale, WA, here's Dave Bowman on Bill Make
11:11
live. Dave, we are.
11:13
We've got a Supreme Court Justice who seems to have a
11:17
political sense and a judicial sense that he's using here.
11:20
Yeah, he's actually the Chief Justice John Marshall.
11:24
And as he's looking at this case, just a quick reset, 1800
11:28
election has passed. The the transition passed March
11:33
4th, 18 O one part of these midnight judges, one of these
11:37
guys, guy by the name of William Marbury has sued.
11:39
He wants his Commission. James Madison, the Secretary of
11:41
State said no and Marbury sued. And again in 18 O 118 O2, nobody
11:50
really knew what was going to happen.
11:52
Nobody really knew what the what the Supreme Court or the court
11:56
system in general actually did. The only thing they knew for
11:58
sure, Bill, is that under the original Constitution, before
12:02
the 11th Amendment, it had overstepped its bounds.
12:06
And so the 11th Amendment had been ratified to remind the
12:11
court of its quote UN quote, proper place, its proper
12:13
jurisdiction. It didn't.
12:15
You don't belong here. So that's all anybody really
12:18
know. So here's the questions now
12:20
before the court, who has the final say about what the
12:26
Constitution says and means. If you're just looking at this
12:29
on the surface of this, should Marbury have gotten his
12:32
Commission? I mean, it was signed by the
12:36
then president. It was.
12:39
I would question why it took so long for the delivery since I
12:43
mean come on. If he signed it at 11:55 on
12:47
March the 4th AM and then at 12 O1, he's not the president
12:51
anymore. Well, yeah, I can see that, I
12:54
guess. In a brand new city, does it
12:55
still matter? Should it still go to him?
12:58
I mean, he was promised it with whatever that implies.
13:03
I mean, did he do any favors for Adams or any?
13:07
He's an ardent federalist. So the question is, who gets to
13:13
really decide this? Is it the Constitution?
13:16
And and if it is the Constitution, who decides what
13:19
the Constitution actually says? Is it Congress?
13:23
Because Congress passes laws that under the Constitution are
13:28
the supreme law of the land. So does Congress get to decide
13:32
what the Constitution means? Is that a good idea?
13:38
Probably not. What if it's the president?
13:40
What if the president? Let me throw it a quirk in this
13:44
for a minute. Doesn't the Congress have the
13:46
power to withhold certain things out of the Supreme Court's
13:48
jurisdiction? Yes, that's what the 11th
13:50
Amendment does. Yeah.
13:51
So the Congress can in fact change the Supreme Court however
13:56
it wants to. But remember, in the Judiciary
13:59
Act of 1789, they hadn't done that.
14:02
Congress can decide how many Supreme Court justices there
14:05
are, but is that really interpreting what the
14:07
Constitution means and says? Should it be the president of
14:11
the United States? I think we're all probably in
14:14
agreement that the president should not be the person
14:16
deciding what is and is not constitutional.
14:18
Didn't we hear those threats for most of the last four years?
14:21
Yeah. Most of the last 20 years, yeah.
14:24
That's how you end up with executive orders.
14:28
Should it be the people of the United States?
14:29
Should we just have a big mass vote on every question every
14:32
time? Should Marbury get his
14:35
Commission, yes or no? And we just have another vote?
14:39
So that only leaves then the courts, right?
14:44
Yeah. But the courts don't have that
14:46
power. In 18 O 118 O2 the courts,
14:50
nobody has said that the court is the person that does this.
14:54
And here comes this case with Marbury saying, hey, I want my
14:57
Commission. And again, if Marshall decides
15:01
for the president, Jefferson, it looks like he's just Jefferson's
15:05
toady. It looks like he's just doing
15:06
exactly what Jefferson told him to do.
15:09
If he decides for Marbury, then he's got another political
15:12
problem on the other side of this whole thing, because
15:14
Jefferson's just going to ignore him like he already did.
15:18
So what then, should Marshall do?
15:22
How long does it take Marshall to weigh this decision and get
15:26
this thing going? Dave, do you know?
15:29
The case, of course, starts in 18 O1 when when Marbury files
15:33
his his complaint. It takes a while to work its way
15:36
through because the courts are kind of busy and people have
15:40
things to do. The the decision is actually
15:44
issued today, February 24th, 25th, Sorry, eighteen O 3.
15:49
So from start to finish, a couple of years, which is pretty
15:52
quick for a Supreme Court case if you think about it.
15:54
Of course, these days you've got to work a case through the lower
15:58
courts and into the district courts and then then to the to
16:01
the appellate courts before it would ever even be heard by the
16:04
Supreme Court of the United States if it gets hurt.
16:07
Things were a little bit different back in those days.
16:10
Now just to also just to clarify, Marbury's Commission
16:14
was signed two days before the turnover.
16:16
So it was fine actually signed on March 2nd, but it had still
16:19
hadn't been delivered. Now we're not going to go
16:22
through the whole case. I'm not going to make all the
16:24
arguments to you because frankly it's lawyer ease and it's dull.
16:28
The fact is the fact is John Marshall had already made, he
16:32
had already seen the chink. He had already seen the opening.
16:37
That would not only in a single stroke cut this Gordian knot,
16:42
but it would make him look like Solomon because it would
16:45
basically say neither of you people are in charge.
16:49
We are. And it would establish the
16:52
Supreme Court as the ultimate arbiter of judicial reveal.
16:56
The Supreme Court makes its ruling number one.
16:59
They agree that Marbury has a right to his Commission.
17:04
They say, Yep, he's right, he should have gotten his
17:06
Commission. But dot, dot, dot, the law under
17:15
which he sued to get his Commission, the 1789 Judiciary
17:19
Act, is hereby declared unconstitutional.
17:27
So if the law you're suing under is unconstitutional, do you
17:31
really have a right to your Commission?
17:35
Well, the obvious answer here is no, because there is no law to
17:40
force you. And of course, the, the, the
17:42
lynchpin of all of this is that act that, that writ of mandamus
17:48
that is not in the Constitution of the United States.
17:51
At no point in the Constitution does it ever grant the authority
17:55
to the court system, Congress or anybody else to issue writs of
17:59
mandamus. And so the court said, well,
18:03
it's not in the Constitution. Jefferson's the president.
18:05
And under the Jeffersonian model where it says if you can't do
18:09
it, you, you doesn't say you can do it.
18:10
You can't. We find this law
18:12
unconstitutional. And therefore we strike it down
18:17
under the concept of judicial review, which had been around
18:20
for a while. We've reviewed this law.
18:23
It's unconstitutional. And so while Marbury should have
18:26
gotten his Commission, there's no basis for us to say you have
18:31
to give it to him. But the important thing is we
18:37
get not only do we avoid a direct confrontation with
18:40
Jefferson, we get an independent and I hate this phrase, coequal
18:46
branch of government in the judiciary established this day,
18:52
February 25th, 18 O3 with the decision Marbury versus Madison.
18:57
Now you might say to yourself, well, it was a long time ago.
18:59
It doesn't mean anything. Therein lies the problem, huh?
19:03
Because judicial review established by John Marshall is
19:08
still in play. And we continue and we'll get to
19:14
your calls in our final segment of Dave Does History right here
19:18
on WMMB. Stay with us.
19:21
Call Bill Now 32176812. 40. Give me a chance to talk to Dave
19:27
Bowman with Dave Does History in our final segment of the day.
19:30
You can also use the Talkback feature on the iHeartRadio app
19:34
if you'd like to leave your thoughts that way.
19:37
And Renewal by Anderson, this our sponsor, of course.
19:40
Do me a favor, set your presets at the top of the page so you
19:43
don't miss anything I'm doing or anything Dave's doing.
19:46
You can use WMMB and Bill Mcgly for those first position or two
19:50
and take the next three and fill them up with Dave Bowman and
19:52
What the frock. And Dave does history because
19:55
good stuff there. As you're well aware, already
19:57
joining us here for Dave does History.
19:59
So, Dave, we get this decision, which seems like it was a very
20:05
wise move by the Chief Justice. It's not just a wise move.
20:09
It's not just a Solomonic idea that solves this particular
20:13
problem and gets everybody off the hook.
20:16
It establishes the idea that judicial review as they think,
20:20
which is an interesting thing because again, judicial review
20:24
is not even implied in the Constitution as written.
20:27
So on the one hand, he's striking down a law that's
20:30
unconstitutional because it's not in the Constitution, but
20:33
he's establishing a process that isn't in the Constitution.
20:38
Well, was there an alternative or is there an alternative that
20:40
needs to be in consideration? Well, we go back to who decides
20:44
what it means? Is it the Congress?
20:46
The president? The people?
20:50
What do you? What do we?
20:51
Push based on congressional intent.
20:54
I mean, they are the representatives of the people,
20:56
so it should go to congressional intent and what they meant when
20:58
they wrote the law. That should have a major factor
21:01
in it if they can do it clearly. Keep in mind that the law we're
21:04
talking about here, two of them, the 1798 Judicial Act, but we're
21:09
also talking about the 1798 Alien Sedition Act, Should the
21:14
should the opinion of Congress as to what that law meant really
21:19
be the driving force, since that law clearly violates the 1st
21:23
Amendment? Well, OK, so again, weighing the
21:27
constitutionality of it, does it belong in the hands of the
21:30
court? Does it belong in the hands of
21:32
Congress? Who should decide these?
21:35
These, these are the questions that John Marshall put a stop to
21:38
by declaring, no, it's us and we're going to do this.
21:42
And since then, that's been the precedent.
21:44
That's what been what we followed.
21:46
Now it does tell. It does remind us of the
21:50
importance of checks and balances, the idea that the law
21:53
itself, not the politicians, should decide the final
21:57
arbitration of any dispute. We don't always like that.
22:02
We don't always like that it's the letter of the law that
22:04
should decide these things. That's how you end up with, you
22:07
know, a state senator rerunning again.
22:09
But it also provide, it also provides us with a view of the
22:13
risks that are involved. You have unelectable, unelected
22:17
judges who can override laws passed by the elected
22:21
representatives. Is that really what we wanted to
22:23
be? Again, it's not a perfect
22:26
system, but is it the best system?
22:32
We've seen this, we've seen Marbury versus Madison in action
22:37
hundreds of times. But if you were going to look at
22:39
just, you know, a group of them, in 1857, the Supreme Court
22:45
issued its worst I, I don't think it is, but many people do.
22:48
The Dred Scott case I I think. You're starting to wig out a
22:53
good bit here. He's referencing Dred Scott
22:56
versus Sanford 1857. All right, go ahead with the.
22:59
Explanation. In that one, they cite Marbury
23:02
versus Madison and they they overrule the, the Compromise of
23:05
1820 is unconstitutional. You've got Brown versus the
23:08
Board of Education in 1954. And of course, the ones that
23:12
were, you know, super familiar with Roe V Wade in 1973 and
23:16
Dobbs versus Jackson in 2022. When the Supreme Court takes on
23:20
a role in social issues by declaring other things
23:24
unconstitutional and, and, you know, poorly decided, it raises
23:29
the question, is the Supreme Court too powerful today?
23:32
Should the judiciary be more restrained and or continue to be
23:37
a guardian of constitutional rights?
23:39
Has the court been politicized? Yes.
23:45
How is it different? Is there any question?
23:46
Yeah. How is it any different or is it
23:48
not different from 18 O3? These are all things that we've
23:50
got to consider when we look at both the genius and the
23:54
controversy of Marshall's ruling in in Marvery V Madison.
23:59
It's still shaping our laws today.
24:01
It still changes, challenges and enforces how we do things today,
24:07
which is why we should all understand it, because really,
24:12
that's the point which decided how the law was made.
24:16
Nothing happens in a vacuum though.
24:18
Bill Thomas Jefferson, who was absolutely adamant up to this
24:24
point about if the Constitution doesn't say you can, you can't.
24:30
So Marshall kind of hangs him out on his own petard there.
24:33
He kind of runs above his own mass saying, look, you're the
24:36
one who preaches this, so you're going to live with it.
24:41
But even as he's putting pen to paper in this decision, Thomas
24:46
Jefferson, who believes very clearly, if it doesn't say you
24:52
can, you can't. Is there anything in the
24:55
original Constitution as written about obtaining, how to go about
25:00
obtaining new territories for the United States?
25:03
Oh, they understand there's going to be new states because
25:05
they have the Northwest Territories.
25:07
But beyond that, is there anything in there about that?
25:12
And yet Thomas Jefferson, at his own insistence, is negotiating
25:18
with Napoleon Bonaparte and his government to buy Louisiana for
25:25
$15 million of taxpayers money, which again, is there any
25:31
anything in the Constitution that says he can do that?
25:35
So even Madison is coming or even Jefferson is coming around
25:39
to the Hamiltonian viewpoint, which is if it doesn't say we
25:43
can't, I guess we can. And to some degree, Marbury
25:50
versus Madison strengthens his idea.
25:55
Does leave us with the question, though, If the Supreme Court is
25:59
the final interpreter, the final arbiter of the Constitution,
26:03
well, who's watching the watchers?
26:08
And we'll pick that question up in one minute on WMMB
26:13
321-768-1240 if you want in with Dave Bowman here.
26:18
So would you suggest any change Dave to how this is done?
26:24
Well, what has changed from eighteen O 3 and even from 1857
26:29
from Dred Scott is the 14th Amendment.
26:34
Now again, the 14th Amendment, whether you like it or not, in
26:38
in many ways changed our Constitution.
26:43
And it's because of that 14th Amendment where everything
26:45
becomes about due process, equal protection and substantive due
26:50
process versus procedural due process, those things entered
26:54
our lexicon. And because of that, the Supreme
26:57
Court's ability would combine with Marbury versus Madison as
27:01
the ultimate arbiter of what is constitutional expands.
27:04
Remember, what the 14th Amendment at its core does bill
27:08
is it is incorporating the Constitution, specifically the
27:12
Bill of Rights against the states.
27:15
Prior to the 14th Amendment, a state could have a religion, it
27:22
could take your property, it could take your weapons, it
27:25
could suppress your free speech. The federal government could not
27:30
after the 14th Amendment and after the process of
27:33
incorporation. That's why your state has to
27:35
follow those same rules now. And because of that, because the
27:39
14th Amendment essentially federalizes, if you will, it's a
27:44
bad way to look at it. But since it essentially
27:47
federalizes the state constitutions, it puts the
27:51
Supreme Court smack dab in the middle of state laws now too.
27:58
That's why federal courts regularly strike down state laws
28:03
because they quote UN quote violate the 14th Amendment.
28:08
So since that has changed, things are a little different
28:13
than they were in 18 O 3. But at the same time, you have
28:17
this, you has still have this dichotomy of who actually is
28:22
going to, who's the in the best place to make this decision.
28:25
And this is the same, the same argument the framers found found
28:29
themselves at we got to have a president, we got to have a
28:34
Congress, We got to have this, we got to have courts.
28:37
But how do they interact, interact together?
28:40
Who, who really is the most powerful?
28:43
Now, I personally believe that they wanted Congress to be the
28:46
most powerful. That's why the 1st section of
28:48
the Constitution is the longest. It's why it has very specific
28:51
instructions as to who didn't do what and when, why and how they
28:56
weren't clear on the judicial system.
28:58
That's why Article 3 is the shortest and very succinct and
29:02
not very not very detailed. Which is what makes Marshall's
29:07
decision here even more remarkable.
29:10
Is that the people who were there, Madison, Jefferson,
29:15
Hamilton, all these people were still there, went along with it
29:19
and said, yeah, that's probably the best solution and I guess
29:23
we'll go with it. Let's get to the phones quickly.
29:27
Line one. You're up on Bill.
29:28
Mick live. Good morning.
29:30
Good morning, Mario. Yeah, Mario, I'm kind of
29:33
wondering how the 10th Amendment and the 14th Amendment, how they
29:39
react to one another. There must be some kind of
29:42
interrelationship between the two.
29:46
Thanks, Mario. Dave, did you pick that up?
29:48
Yeah, for all practical purposes now, the 10th Amendment has not
29:52
been repealed. It's not been eviscerated.
29:55
Well, it has been eviscerated for all practical purposes.
29:58
The 14th Amendment essentially eviscerates the 10th Amendment.
30:01
It doesn't do that in verbiage, but in function.
30:06
If you think about what the 14th Amendment does, it essentially
30:10
requires that state laws meet those processes, those due
30:14
processes equal protection, and those due processes being both
30:18
substantive and procedural. So how do you pass a state law
30:26
under the 10th Amendment that meets those criteria?
30:29
It forces the states to reconsider their own laws to
30:33
make sure that those things are in in alignment with the 14th
30:36
Amendment. It doesn't completely eliminate
30:39
it, but it makes it much more difficult to keep in.
30:45
It makes it much more difficult to pass laws that are clearly in
30:48
violation of the 14th Amendment. For example, this is what the
30:53
Brown versus Board of Education decision is all about.
30:56
Separate but equal. It's all about the Jim Crow type
30:59
laws which under prior to incorporation were perfectly
31:03
legal in 19 O2 the state of Virginia rewrote its
31:07
constitution. One of the men who did that,
31:10
Carter Glass actually said, quote, we urinate my word, not
31:16
his on the 15th amendment, UN quote.
31:21
And so when the 14th Amendment eventually gets incorporated
31:24
into that, you could say that that Virginia Constitution is
31:28
written under the 10th Amendment.
31:29
But the 14th Amendment kind of says, no, you can't just say
31:34
we're going to ignore the 15th Amendment.
31:36
You can't do that. And so that's how they get away
31:39
with that. That's what those things kind of
31:41
do. And so, yeah, they're still
31:43
there. But the 14th Amendment is going
31:45
to to really override, not override, but it's going to push
31:51
the 10th Amendment in that direction.
31:54
You mentioned watching The Watchers, and we've had
31:56
discussions in recent years about term limits for these
31:59
justices, that type of thing. Sadly, we're under 30 seconds
32:04
here and we don't have time to try to hash it out.
32:06
Maybe another day, Dave. Well, in the Constitution it
32:09
says of their lifetime appointments so.
32:12
Yeah, but apparently we can change anything that's in there
32:14
just by mending it appropriately.
32:20
Check out more stories from History.