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Constitutional Law I
Rutgers University, Newark School of Law
Pope, James Gray

JUDICIAL REVIEW

Marbury and its Implications (v-vi, 2-31)

4 main reasons why Con Law is Important right now:
(1) The circumstances surrounding the War on Terror
(2) The new Supreme Court justices as well as the recent pendulum swing from the Warren Court to the Rehnquist Court. Also the many changes occurring in the commerce clause (esp. US v. Lopez)
(3) There has been an explosion of writing and debate over Constitutional Theory
(4) We have entered an Era of Global constitutionalism – emerging democracies

From the Articles of Confederation to the Development of the Constitution:
The Articles of Confederation of 1777 was a “compact between the states” verses the Constitution being between the “people and government.” The people are the antecedent to the Constitution, not the states. With the Constitution, the people are the sovereign republic.
Articles of Confederation: http://www.usconstitution.net/articles.html
Under the Articles: States retained their sovereignty, there was no executive or judiciary, and Congress was very limited especially in that it could not tax or regulate commerce.
A Constitutional Convention was held in Philadelphia in May 1787 “in order to form a more perfect union” (to improve the Articles).
At this “Convention of Compromise,” the Virginia Plan and New Jersey Plan were combined to form the make-up of Congress.
Virginia Plan: large states – emphasized creating a national government with relatively strong powers and the ability to regulate the conduct of individuals and the
New Jersey Plan: small states – would’ve created a unicameral legislature where all states had equal representation and would have established the Supreme Court as the only federal court.
With the creation of a National Government with power to act over individual citizens, the Constitution set limits on government (Thomas Payne) unlike England, where Parliament is supreme.
The significance of the ratification of a written Constitution (as opposed to England’s non-written) is that it leads to many questions regarding interpretation. Constitution limits government unlike Parliament.
The Constitution establishes a Republican Government (of the people) of limited powers.
Popular sovereignty: efforts to constrain the King. Influential were the Magna Carta (1215), 1688 Glorious Revolution, John Locke (social compact theory) – defended removal of the King.

Distribution of Powers


Powers
Rights
Fed
Art II – executive, president Amd, 20,22,25
Art I, esp. I, 8, Legislative Congress, Amd. 16
Art III, Judiciary, Supreme Court, Amd. 11
Bill of Rights
Amend
Amend 13, 14, 15
Amd. 19, 24,26
Art, 1,9 (habeas, attainder)
Art. III (treason)
State
Amendment 10
Art. IV, 4 (rep. government)
Limits in I, 10


Structural Distribution of Governmental Power:
The Constitution establishes a government that is structurally balanced between 3 branches and the states (federalism).
Federalism: states have power and co-exist w/ federal government
There are 3 branches of the federal government because centralized power is considered tyranny. It prevents abuse by one branch. 
States were deemed “clos

her two branches of government.
The Constitution does not explicitly state that the Supreme Court may determine the constitutionality of acts of other branches of government.
Even though Article II does not authorize Judicial Review, it does say that the Judiciary shall have power in all cases arising under the Constitution and laws of the land.
Marbury v. Madisonestablished the principle of judicial review in the Untied States. America traces the power of judicial review to this case.
Just over 200 years later, Marburyremains at the foundation of the debate over the courts in our republic.

Marbury v. Madison

Marbury v. Madison (1803)(p. 3): Marbury was named a justice of the peace for D.C. at the end of Adams’ Administration and Madison (Sec. of State) under the Jefferson Administration chose to disregard the appointment. The Court established Judicial Review and held that it did not have the authority to hear this case b/c it was only authorized to hear it on appeal and not original jurisdiction.

Marshall proposed 3 questions:
1) Does Marbury have a right to the commission? YES
Marbury has a right to the commission because all appropriate procedures were followed.
2) Do the laws of the country establish a remedy for the deprivation of the right? YES