[captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] senator tom carper: -->> mixed the discussion on the constitutional convention of 1787. discusses the argument by james madison and how delicate tried to reach the delegates tried to reach compromises.

professor rakove: the subtitle is myths about the elections and we will go into those. let's talk about the myths. madison's role as the agenda maker for the convention, and the particular point i want to make, as madison prepares himself for the convention and the weeks before they are supposed to meet, i think the key item he worked on in his agenda is the idea that a system of federalism based on the voluntary compliance of the state with the recommendations the resolutions, the requisitions came from the continental congress, was never going to work. when he reasons this, he does this in an empirical way. he looked at the lessons that americans like him had learned since 1776.

then he takes a step back and then he thinks abstractly, and what we can see, i theoretic framework where he comes up with the idea -- there's always some incentive to run against washington. to run against national directives and policies. even where states have a common interest if you are mistrustful about what other states will do, you will have this repetitive net draft from the federal system. so, the federal system is not going to function efficiently. madison says this will never fail to render federal measures abortive. from this position he comes to a conclusion what needs to be done, you need a system that can mmendations. if it operates by law, you therefore have to create a greater national government that functions more like a functioning government. it needs to have an independent legislature, an independent judiciary. once you reach this point position is to start drawing

from these various lessons americans have been accumulating over the past decade. he has been highly active in both national and state politics. indeed, many of the things i think he brought to the constitution project came out of being a member of two member bodies, the continental congress of philadelphia, and then later also the virginia general assembly, which starts in richmond in the middle of the 1780's. there is one other point -- at the very end of that essay madison launches into a whole new topic. he has three items which he listed as the multiplicity, the mutability, and the injustice of the state legislature. when he gets to the injustice question, he has a wonderful passage.

in which he says that publicity and mutability are secondary to a deeper question. you have legislatures in the states ruling unjustly. he says this calls into question the fundamental principles of the republican government, that these are the guardians of public good and private rights. but the majority is are the greatest guardians of public rights. -- that the majority'sies are the greatest guardians of public rights. in other words madison has reached the position where he is really starting to question majority rule. or he is looking at the vices of the fascist majority, or the majority -- what is the true public interest on one hand, or private rights? this is the point where you first works out that he first works out -- he you first works

out the analysis many of us know better from federal intent. he said, there are many sources. he talks a bit, in a fairly compressed way, about what is wrong with state legislatures. the more frequent, if not fatal source comes from the people themselves. that is the point in which you to that which he starts talking about -- which he starts talking about if we are going to build a republic, we cannot have a collection of citizens who always support the vibrant interest of public good. if that is the case, we need to think of a way to improve the quality of our deliberations. so i raise this point because it seems to me -- i think it is critical to figure out what is the significance about madison putting together this agenda? i could not resist this. i -- i put this slide up. i like the way my mother jacket matches the -- leather jacket

matches the statue. this is at the madison constitution center. it appears on my own personal site for my 50th high school reunion from last fall. you will see, this is of course independence hall. the pennsylvania state house. what difference does an agenda make? i think it's important for us to understand at the outset it was not said ab initio, from the beginning, exactly what the constitution was going to do. there was a circulation of ideas as to what the agenda that philadelphia would be. madison and the secretary of war -- he had sent ideas of his own to washington, there is a circle of army officers who have their own notion of what might be done, but there is not extensive public discussion about exactly what the convention was going to do. and we can imagine speaking

retrospectively, situating ourselves of the time, that there were any number of possibilities that might have been available. it could have sounded much like the new jersey plan, which was introduced in mid june 1787. by william paterson. i will put up a slide of him in a few minutes. let's just add some additional powers to those already possessed by the continental congress under the articles of confederation. maybe we do not need to change the structure of government at all. if we add a few powers. maybe that will take care of everything that needs to be done. that's not a bad position. we should not expect the american people to be willing to go too far. we should cut them some slack. it's been a long and expensive war. they were trying to recover from the war. there has been a significant depression in the 1780's. maybe we should cut the american people some slack and not expect too much from them. on the other hand, if you are a rabid nationalist, gee, why

don't we just start over, why don't we get rid of these states? why do we need rhode island or delaware? those were mistakes to begin with, accidental communities that became states for no good reason as far as i can tell. the states of different sizes -- maybe we should think about the optimal size of the state? maybe we should equalize the states. that would be radical. maybe get rid of states altogether. hamilton might not have minded doing that. we will get to hamilton momentarily, too. in between, there is a strategy. that madison worked out. it does say we do need a government in the full sense of the term. so, we should think, we should rethink all of the central -- essential characteristics of a republican government. maybe based a little bit on the sources.

we should know our montesquieu our locke, hobbs, machiavelli in some respects. that is the experience they can draw on in terms of coming up with a strategy. so, with the analysis of the sources, i will not say it is skepticism, but he is airing doubts about the wisdom of majority rule per se. madison's idea is maybe the national government should have the authority to intervene in the states individually. not just to strengthen the national government against the states or make the national government independent of the states or -- but actually give the national government and congress what he calls the negative -- we would call it a veto -- on all state laws. the negative can be used to protect against interference from the states. we will look at this in a couple of weeks when we look at the great case of 1819.

but maybe we could use that power to intervene in the states to protect minorities in the state against unjust legislation? this opens as many topics as anyone could have done at the time except for abolishing the states which was a nonstarter at the time. i think it makes a lot of sense for us to think of madison as a key figure, regardless of what his batting average was. for particular items. you're not going to will the old time. put it back down -- hold it the whole time. put it back down. anyhow. under the agenda, the other thing i must say and it comes out in a letter to george washington for april 16, which

you all read for today -- madison's is the first thing we have to do is solve the problem of representation. that means that madison was firmly committed to majoritarian principles in the legislature. if you are going to have a national legislature capable of acting for the american people it has to be bicameral. there have to be two houses. medicine insists in some rule of proportionality has to apply to both houses, in terms of allowing each state to have an equal vote. we have to have his first before we decide which powers the national government will exercise. we have to figure that out before what the national government can exercise. another delegate said, why do we do it the other way? they are not that expensive. -- expansive.

maybe we do not have to alter the structures? madison took a different position. if we cannot agree on what powers we determine the allocation of representation whether it will be respective or not. in that is what drives the convention. when we get to the debates in philadelphia, what we know best, of course, we see one issue. how we will see courtroom be apportioned -- congress be apportioned among the states in both houses is really the one dominant issue. and then we come to the so-called great compromise. talking about the so-called great compromise, there are three myths about the constitution that are the real subject of today's lecture. there are three questions. to consider. i think this is fairly familiar stuff. we are doing in effect with -- we are dealing in effect with article one, article two article 3 -- we deal with the articles relating to congress, the articles relating to the executive, articles relating to the judiciary. the federalism had a great article 4, 5, and so on.

these are the three suppositions which are common to how we think of what happened in philadelphia. let's just start counting them off. i will go back and try to talk about each individually. by the way if you have questions, that is fine. i am ready to go but if i am moving too fast, you can challenge. senator barroso, i had dinner with him a few months ago. i said, why does wyoming have two senators? is very serious guy, he did not pick up on the question. -- senators? a very serious guy, he did not pick up on the question. anyway. i think here is the common

supposition. giving each state and equal vote was a true compromise. compromise in the best sense of the term. while the 3/5 clause over slavery was a moral failure. politically unnecessary. so, the position i am going to argue as i am very much against giving each state and he will -- and equal vote in the senate -- that was kind of madison's solution. if you guys go back to the prior slide. as far as the 3/5 clause, i want to make clear from the beginning -- i am not defending slavery. i am not arguing that african-americans are .6 of caucasians or others, which is not actually what the 3/5 clause does. what i am saying, there is a very significant basis for understanding there is a much deeper compromise in the sense of a longer lasting compromise meant to be incorporated into

the 3/5 laws. i will explain my as i go on. again, i am not defending slavery. i think in political terms, the 3/5 clause case is much better than the equal votes. i want to try to explain why i think that. the common supposition is why have the electoral college? because the framers feared democracy. they were skeptical and nervous about voting for the president. i think that that is wrong and i will try to explain. and what we got stuck with this strange device, the electoral college. which, as soon as it goes into operation in 1796, was already obsolete. by the first time it makes a difference you know it will not act in any way that people thought it would. having a select group of electors choose the president. the third thing is a point that should be familiar to anybody who is thinking about going to law school. judicial review of legislation the idea that courts should

apply constitutional standards to legislation in order to determine whether or not ask of legislation are permissible or not. there is a common supposition, but that was really not part of the framers' design. or was only a vague part. it really came into being out of marshall's great opinion in marbury versus madison in 1803. i think that is bunk. i think marbury is a real interesting case, for reasons other than the lens of historians or political scientists. marbury is a case worth studying, but was it consequential? i don't think so. i think judicial review lies elsewhere and i will try to give a short extra nation. -- explanation. those are the three myths we will talk about. let's bring a few characters online so we know who they are. this is alexander hamilton.

along with madison and jefferson and franklin, maybe john adams. kind of the five most powerful minds of this american generation. hamilton, of course, is famous at the convention for giving the speech on june 18, which is a famous speech. because it is so in favor of the british constitution that it astonishes everyone. hamilton, in fact, was not all that active a delegate in philadelphia. much more important in one sense as the original author, madison's co-author of "the federalist." two of the new york delegates leave early and go back to new york. over the weekend. hamilton goes back and forth mostly back to new york, though he comes back at the end. he goes back to his law

practice, back to his family. major figure. maybe less the constitution but as america's great state builder in the late 18th century. madison of course -- here are two other princeton guys. on the left is luther martin. not martin luther. give the names in the right order. -- get the names in the right order. and william paterson. martin will be the attorney for maryland in the great case of mcculloch. he gives a famous two day speech protecting states rights. madison's basic impression was that it was delivered under the influence of spiritus fermenti. if you can translate? >> alcohol? professor rakove: alcohol.

you may have gone on a bender to get ready to talk. -- he may have gone on a bender to get ready to talk. harrison, the son of scottish immigrants. the revolution gives him an opportunity. he serves on the first supreme court. then a couple of new englanders up here. gerry, one of the very wealthy merchants who would not sign at the end of the convention. from marblehead, massachusetts on the north shore. and sherman who figures prominently in the case with the equal state vote. sherman was a merchant who married well. you can't quite make it out here, but sherman had an awkwardness to him. do you see how he is sitting in this chair? he can't go back further. he can't quite unwind. but yeah, sherman played a very active role. in terms of supporting the equal states vote.

there are other delegates i could show. but that is enough. let me get a point up here i could talk about later, but not first. let's go back, i want to talk about the two compromises. so, representation. the great compromise essentially the decision to give states and equal state vote -- states an equal state vote in the senate. was that a great compromise to be admired or not? the next side of the compromise, of course, is the 3/5 clause and the allocation of direct taxes among the states on the basis of the population, where slaves counted as 1/6 of a free person. slaves are not identified as slaves but as other persons but everybody knows what is meant by that phrase. ok?

if you go back to that letter from madison to washington madison discusses his strategy for dealing with the representation question. it does identify a theoretic aspect of his thinking. madison says -- here is how we do how he thinks or hopes -- how he thinks or hopes the politics of this issue will play out. he thinks the northern states will favor the idea of proportional representation because they have the population. it is in their current interest. he also imagines as other people did in the 1780's madison is not , unique in imagining this -- he also imagines the population in the decades after the revolution will work to the advantage of the south. the south will come more into parity with the north in terms of population. therefore the south, if it is calculating correctly, delegates

from the south will vote to recognize in the long run this kind of formula will protect their interests. that's not a bad argument. if you try to explain why we have the census every 10 years. it is the southern delegates. led by edmund randolph who say that we really have to have a census rather than allowing congress to determine on its own discretion. but the southern delegates led by randolph, who is close to madison. of course madison addresses randolph as "my dear friend," whereas jefferson is "my dear sir." it is interesting, although his closer to jefferson over the long run, interesting new ones. -- nuance. if you think it will work for you in the long run, you want to make sure a rule of representation and specific provisions to have that rule honored as population shifts over time will be provided in

the constitution. you may want to have those rules locked into the constitution to protect your interests over the long run. so madison says, proportionality should appeal on a regional basis. but what do you do about the small states? madison assumes -- where are they going to go? what is delaware going to do? what is rhode island going to do? the other small states are going to have to fold. they are just not going to have the staying power through this. this is madison's calculation. he thinks he can argue into them giving up on the point. it is not a bad argument. what is the basis of the argument? the last item -- you guys remember the basic argument?

federalist 10. what is the basis of political affiliation, political orientation in our society? we want to identify, what are the real interest that swirl through the body politic? what is it that makes us act politically whether we are voters or whether we are officials? the basic argument -- do we identify ourselves on the basis of, we would say ethnocultural identity? it could be community. i stress community, not the states, but the kind of community in which you live. it could be ethnocultural, religious lines. jews and african-americans vote highly democratic. old white wasps tend to be republican and so on and so forth.

madison does want to argue and i think he is correct on this, a big basis of his argument -- the size of the state in which you live is politically irrelevant except under one condition. ordinarily and on every occasion the size of the state in which you live will have no effect at all. it will have no effect at all on your political behavior. you will never ask the question, how should the small state vote, how should the large state vote? except there is one exception. was the obvious exception? -- what is the obvious exception? >> [indiscernible] professor rakove: well, that will get factored in. you are getting to the conclusion before you have formulated. but you are close. >> [indiscernible] professor rakove: no, that's going to be the opposition. the size of the state.

let me take a step back. if you are having an argument about whether small states deserve to be overrepresented just because they are small, madison's argument would be small states do not deserve representation per se because size is not correlated with their interests. you are just going to give them an extra benefit. because they are uneasy, they think they are going to lose something. the exception is when you are operating on voting and not behind the veil of ignorance where you do not know what your social position will be later. if you are voting on rules for voting and you know what your interests are, of course, you have the incentive. the fact that madison comes from virginia cannot be dismissed from this either except he was right and luther martin was moot. size does not affect our opinions. here is an example.

suppose you are a big second amendment guy. this poor, idiotic woman in idaho. taking a gun into walmart so she could be killed by a two-year-old. of the tragic stories in the news this is the most absurd. let's look at the strong second amendment person. you really believe in hunter's rights. does it matter if you live in what is sometimes called the venison belt, working-class guys who like to go out with their rifles on the weekend or plug away at beer -- deer or whether you live in idaho or wyoming? do you really believe that gun rights -- if you are like charlton heston -- does it matter? no, that is your issue. if you are african-american, does it matter if you live in alabama or illinois? probably not. because of racial justice. it may present itself somewhat differently. those are the real issues of

passion. ok, size may sometimes be a variable for something else, but size does not -- rhode island is heavily industrialized. highly urbanized. and so on and so on. so, this is very good. let's bring the slavery question into mind here. madison's position would be that of his allies. mike rufus king -- like rufus king and hamilton and others. let me close the door here. sorry. so madison's concern is what you really want to do, you really want to identify, what are the real interests the country has to work on? large states and small states is

ephemeral. it is an interest at the convention because they have the delegates coming through. william patterson, sherman you have to listen to the arguments -- you have to listen to the arguments. william patterson, sherman johnson, dickinson, martin -- at the end you do not find it very convincing or persuasive because you know correctly that size is not a predictor of political behavior. size will not be an issue henceforth. what will be an issue is -- this is a quotation. i missed a little at the bottom of the screen here. let me pull this down a bit if i can. it's exciting as madison gives a speech on june 30. the convention is deadlocked and madison is trying to break the deadlock and the summarizes his position. madison concedes that it is

important to identify those senses. we want to know what they are. they are entitled to security. basically we have to identify what are the real interest deserving recognition? but he contended, this is madison speaking for himself. by the way, my colleague at boston college, a jd historian type has a book coming out next year called "madison and payne." it has madison's notes on debate, which forces us to think exactly how and when did madison write his notes and how and when did he revise them? it's interesting about the way madison's views may have shifted a bit over time and the way that the notes may have altered.

it should be out sometime this year. like other texts, we cannot simply assume that this is sacred scripture. let's take it like it is. because i think it still expresses the genius. it is not the difference of size, that is my emphasis, but other circumstances. this is a very montesquieuian notion. the idea, californians without the polar vortex, we can appreciate the significance of this statement. the idea that climate is a major determinant. a classic argument in many cultures. apart from climate, principally the effect of having or not having slaves. these two clauses concurred. it did not lie between the large and small states.

it was between the northern and southern. madison was making a point with a delicate operation. trying to answer the slavery question. which is an awkward question to introduce for precisely this reason. he wants to introduce it in order to come up with a convincing argument as to why the small states have no valid claim for an equal state vote in either house of congress over the long run. we will see this in coming weeks when we talk about civil war and reconstruction. madison is 100% accurate here. this was the lasting interest. the civil war and reconstruction, arguably if you look at the politics today, the politics of race, the politics of slavery, madison's sociology is much better. then those saying that the real conflict of interest is between larger states and small states. he is trying to argue, he is trying to win the other delegates as to why he is right

on the merits. so, how does the story play out? the convention deadlocks on the representation of the senate. a couple days later there is a compromise committee that meets. madison is very much against having the committee meet. the convention is not that large anyhow. the convention comes back with a proposal on july 5. they take a day off to celebrate the fourth, which was becoming a holiday at that point. and then the convention does agree, in a matter of a few days, they moved their way through -- essentially the outcome is that they accept the 3/5 clause for the house of representatives. you can understand the debate here. people like paterson say, you are substituting for the larger population with political rights

. since slaves do not have political rights at all, they should not be factored into any logarithm or simple formula for representation. they do not exist politically. slaves are not subjective actors. women and children are subjective actors. they do have rights of their own. slaves have no rights. they are property. southerners say that it is a peculiar form of property and that is important. this is somewhat euphemistic in many ways, but i think it's a good deal, again not because i like slavery. i think if you take the formula of constitution making, you have two regions with very good interests. this identifies a lasting interest. it is ugly, we wish that the framers were born in light, but the fact is slavery is deeply

indebted in american constitutional structure. it is hard to imagine a constitution framed as an anti-slavery document would have ever been ratified. so, the convention deals with these things pretty easily. there are some moral statements. there are interesting statements. it demonstrates what was a new fact in american history, that slavery was becoming a moral issue. it becomes a moral issue sometime around the middle of the 18th century. not much of one before but in the 18th century it becomes one. you can see how these concerns are resonating through american thinking. are you ok? going to make it? if you need first aid, let us know. they'll take care of you. so the slavery question was dealt with easily. what happens with the equal state vote, it passes by the narrowest of margins. it carries five to four. there are 10 states present.

it carries five to four with one state, massachusetts, divided. ok. sorry about that. so it passes five to four with one state, massachusetts divided. massachusetts is divided because garry, the guy i put up earlier from the north shore at marblehead. garry, i think he is one of the first genuine mavericks of american history. what happens over time with the electoral college is retrospectively we start calling that decision a compromise. this is more justifying it to the public. madison won and the other side lost. that is why wyoming and idaho have two senators and california

with 37 million people -- some of you guys probably do not know. you know this? the old lady is as good as you. they got 12 and you got 12? my favorite movie is "the kid." his daughter went to my lecture class. they actually babysat for us some time ago. anyhow. that is myth number one. i like the 3/5 clause, not because like slavery, but in terms of what it says about the politics constitutionally. secondly, the grounds for political selection, let's get the big guy out here. washington, you can post. he is probably more most mobile. in any case, washington is the big guy. 6'3", 6'4", he would tower over most of the soldiers.

there is a standing story that the presidency was created in washington's image. that's not true. that's not true at all. the framers went around and around on the presidency. and they make the critical decisions only in the last week and a half before the convention was adjourned and they did so in conditions of profound uncertainty. let me try to explain why. i'll try to do this in seven minutes and then we will have five minutes for this issue and then i will wrap it up. for starters, i think the first thing to realize is that this was the one area of power where they had to improvise, be creative. as i said in the outline, there was no adequate model for a national republican executive. the whole idea of executive power in the 18th century is still wrapped up in the idea of

monarchical government which the americans have rejected or ministerial government like in great britain, which americans also renounced, because a big part of their political convictions going into the decision for independence was the british constitution is being corrupted by a ministry that was a power seeking clique of aggressive officeholders. so, there's no real precedents for what a national republican executive would look like. you really had to make it up. you had to think creatively. the dominant image is monarchy. that model's not going to work very well in a republican society. they indicated how they were starting to react, however against the republican enthusiasms of 1776. they agree that the executive power should be vested in one person.

it will not be a collective executive. the first sentence of article ii says the executive power shall be vested in the president of the united states. that is a significant statement. there was an executive in pennsylvania. but the idea that the executive power resides ultimately in a single figure who is the decision maker that is a pretty significant step. the framers agree the executive should have limited negative veto. one of the key prerogative powers of the british crown. the veto had disappeared. erik nelson has a very interesting, and i think very problematic, book. there are a group of what he calls patriot realists.

-- patriot royalists. he has some good arguments i found some of them deeply unconvincing, but it's an interesting way to think about it. ok. then you have this whole picture -- this whole puzzle again. there is no precedent for knowing what a republican executive is going to look like. if you look at the outline there were three obvious modes of elections. one is popular election. james wilson from sylvania. a scotts immigrant who also served on the first supreme court. died bankrupt of a heart attack in a north carolina jail. in 1795 or so. came to a bad end. wilson was a big advocate of popular election. madison, although skeptical, comes around to wilson's position. if you have a genuinely popular election -- you get rid of the electoral college, the states, just have one big constituency

, let's call it the united states of america -- if you have that kind of election and regional terms, the south would be a big loser. why? because in the south, only citizens can vote. slaves have no recognition. 40% to 60%, depending on your county, slaves are a major part of the southern population and will only increase in time. if only citizens vote, the south is the loser. there is a big regional problem. it makes the virginia dynasty kind of hard to imagine. the second problem is the federal problem. this goes back to the democracy point. it wasn't that the framers feared democracy. it was not that the framers worried that the american voters would be whipped into some kind of frenzy to see the next guy come by on a white horse or

palomino or whatever. it was an informational problem. they said it would be hard to identify a truly national character. washington is a no-brainer. but after washington, the assumption, and this is not realistic, is that people would vote on a regional basis. it would be hard to get a majority in that circumstance without having some mode of ongoing elections. it was pretty problematic. not because the framers worried that americans would be swayed by proto-fascist demagogues, a mussolini character or worse. it's hard to do worse, but you can if you try.

that turns out to be terrible judgment, by the way. by the time you get to 1796, the framers did not anticipate how the present would work when you create more parties down the road. it was not a bad estimation for 1788. you can solve the information problem pretty easily. if you want to have an informed electorate, some of this will sound counterintuitive, but it isn't, just have a legislative election. have congress elect the president. the problem with that though -- who is going to be better informed than congressman? -- congressman? -- congressmen? you have to give them some credit. who would more knowledgeable -- would be more knowledgeable than members of congress. by definition, they ought to be the most qualified guys. you solve the information

problem, but then you have another problem. what you really want is a president who's going to be an independent executive. if you have a president that's going to be elected by congress, he has to be a one term limit. you cannot give him a second term. because if you give him a second term, he will just toady up to the dominant majority in congress. he won't be independent. he will be a tool. to use the popular term. hamilton is in some ways the most interesting example. some people understand correctly that having ambition was something that you wanted to spurn. if you put the president in charge of the whole government that will encourage a mode. anti-federalist not agree, because they worry a lot about tyrants and despots. but i think that that was the decisive consideration.

it was not that the framers feared democracy. the argument here is the two other votes of dissent -- excuse me, votes of election, you do have the popular election, which could have worked quite well, or the election by congress, which could have worked well anytime. both are subject to what would appear to be killer objections. the electoral college is left is the kind of default mechanism. it has one obvious advantage by the time it is adopted. the convention adjourns on september 17. a week and a half before the convention adjourned. by that time, the framers have worked their way around to the idea that the constitution will go to the people, it is in our interests to present it as a compromise. that is what you have the construction of the electoral college. large states have the advantage

in round one. if you cannot produce a majority for electors in terms of how electors vote, then it goes to the senate. originally it was going to go to the senate. but it takes the convention three days to figure this out. so, you replicate the political compromises that went into the formula for creating congress and you solve the separation of powers. and the incoming president will be a different situation. they had no idea who they would be. it was just kind of an empty placeholder. george mason says they might be men. if you have ever been an elector in your life, it doesn't make any difference your political perceptions. so that is my second point, my third point which i want to do quickly.

we started to late. give me about three minutes and we will try to wrap the separate he quickly. so, here's a great place to start. the famous rotation from alexander bickel. his book, "the least dangerous branch." the greatest work of constitutional theory even though it is a half-century old. congress was created nearly full blown by the constitution itself. but the institution of the judiciary needed to be summoned up. the vast possibilities of the presidency were relatively easy to perceive -- i'm not so sure about that -- and the great chief justice, john marshall not say go handed, but first and foremost, was there to do it ended. if any social process can be said to have been done at a given time and by a given act, it is marshall's achievement. the time was 1803, and the act was the decision in the case of marbury versus madison. a lot of my buddies in con mall

do not -- con law do not like to teach this anymore. i think that there are marbury's skeptics, the way i am, but let me try to brief you. it's very simple. it will be madisonian. one of madison's key proposals , i said the other day, in addition to state laws and representation, he is following an example from the new york state constitution and having a council that would present a limited negative, a limited vo -- veto over legislation. why did madison like this idea? because madison as i said previously was first and foremost a legislature -- legislator. he had been involved in activities of collective deliberation, whether he been in congress or the virginia assembly. madison was deeply, deeply mistrustful of the quality of legislative deliberation. he is looking for ways to

improve it and enhance it. he is skeptical about it. he thinks the key thing will be to improve the quality of legislation. it is much better to have statutes that are better drafted at the beginning then to deal with poorly drafted legislation later on. it's better to deal with it then before the statue takes effect than later on when the consequences have to be litigated out. madison sees the trade-off here. better to have legislation like this. but when he proposes the council revision, you see, all of the framers understand. all of the framers except for james wilson think that this is not a good idea, and their basic argument is a, it will comprise the judicial role to involve judges in making policy decisions.

you just won't be able to draw a line very sharply between technical legal advice on the one hand and policy decisions on the other. secondly, the problem is when you have actual cases -- instead of imagining something before it takes place. let the controversy evolve in -- and then work it out then. on that basis, the idea that marbury versus madison, which no one cites afterwards -- it is a new idea and the framers were aware of the new idea. the real application of judicial review as the framers thought would not be against congress. it would be against the states. which is by the way what the supremacy clause of the constitution does. the real application of judicial

review would be against the states. judicial review first and foremost was an alternative to madison's idea of coercing the streets into doing what they are supposed to do, -- the states into doing what they are supposed to do, to write a legal remedy without having to muck up national legislation. the idea that they were trying to be novel, i think that is a big misconception. and we will come back and talk about this in a couple weeks when we talk about maryland and marbury versus madison. the seminal cases. so, thanks a lot. we really left all of the stuff we need for next week up here. federalist's, anti-federalist's, moderates, and some other stuff. here is the outline for today if you want to have it. and lily taped the lecture and she will start working on her notes. so, you will all be here, i hope, on monday, and we will see how this experiment goes.

thanks. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015] courts remarkable partnerships, iconic women -- >> remarkable partnerships, iconic women. their stories and "first ladies" the book. >> whoever could find out where francis was staying, that was going to sell papers. >> she takes over a radio station and starts running it. how do you do that ?>> up next >> she exerted enormous influence. >> looking inside of the personal life of every first lady in american history using interviews from the first ladies series. learn about unique partnerships.

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