CONSTITUTIONAL LAW
PROFESSOR ODOM
2006
TYPES OF CONSTITUTIONAL ARGUMENTS:
Textual (Formalist)
Structural – type of gov’t created by Constitution
Historical/Stare Decisis – judicial precedent
Original – framers’ meaning and understanding
Tradition – how things have been done in the past
* * Strongest when used together
BRUTUS
Expressed fear that judicial errors could not be reviewed (from the Supreme Court)
Also, judges could not be removed for making errors
Expressed his fear that the Supreme Court would not be limited strictly to the text of the Constitution
Therefore, judiciary would lean toward a stronger central gov’t
The judiciary would also seek to enlarge their own power and that of the legislature
Expressed his dissent toward a state being subjected to appear in Court to defend a suit brought by an individual
State gov’ts would eventually become ‘useless and burdensome’
THE FEDERALIST (Hamilton)
Saw the judiciary as the least dangerous branch of the gov’t
One reason is that it cannot be overpowered by other branches
Saw the judiciary as a check b/w the people and the legislature/executive
Supreme Court would be impartial for controversies where a state should be a party
Better than having the case tried in biased state tribunal
Also went on to say that a state cannot be sued by an individual b/c of sovereign immunity
THE JUDICIARY
Judicial Review
Calder v. Bull [1798]
Law against ex post facto laws only applies to criminal cases
Text of Const: Art. I, § 10:
“That no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.”
By including obligation of contracts (civil issue), court reasoned that ex post facto must only apply to criminal cases
Iredell’s opinion helped to establish judicial review
Only review cases involving federal l
ce this original jurisdiction is not granted specifically in the Constitution, it appears to be outside of the Court’s power
DISMISSED FOR LACK OF JURISDICTION
JUDICIAL REVIEW: [3] “If then courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”
Declares §13 of the Judiciary Act of 1789 to be UNCONSTITUTIONAL
Congress cannot expand the Supreme Court’s original jurisdiction
Marshall, J. does not see all cases not under appellate jurisdiction, to be within the Supreme Court’s original jurisdiction
Therefore, there would be cases outside of the Supreme Court’s jurisdiction altogether
