Episode Details

The branch that today holds the power to strike down acts of Congress was born without a fight — “that a national Judiciary be established,” agreed unanimously, in a morning. Then the Constitutional Convention spent a summer on the two questions hiding inside the easy answer. This is the story of the courts: Franklin’s Scottish lawyers, who always nominated the ablest man to the bench in order to divide his practice; the “may, not shall” finesse that mailed the fight over lower courts to the future; the two locks — tenure and salary — that put judges beyond the reach of the politicians they would rule against. And it is the story of the system’s keystone swapping in a single afternoon: Madison’s cherished congressional veto over state laws dying 3 states to 7, and Luther Martin — the loudest states-rights man in the room — rising with the replacement, the supremacy clause, adopted without one state opposed... a shield he built to protect the states, rebuilt by August into a sword pointed at them. Along the way: treason defined so narrowly no American legislature could ever stretch it, the corruption of blood abolished, and a 10-section indictment of Rogue Island written by men who knew exactly which state wasn’t in the room.

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