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Constitutional Law I
Rutgers University, Newark School of Law
Bell, Bernard W.

Chapter 2: Judicial Review
A. Legitimacy of Judicial Review
a. Article III: creates Fed judiciary and defines its powers. Lifetime tenures and salaries cannot be decreased. Powers: vindicate and enforce powers of fed govt. have authority to hear cases where US is a party. resolve disputes btwn states and their citizens. – btwn 2 or more states. Btwn a state and citizen of another state, btwn citizens of different states, and citizens of same state claiming land in other states. SC has original jurisdiction over cases affecting ambassadors, other public ministers, consuls, and those where a state is party. All other cases SC granted appellate jurisdiction- to law and fact subject to exceptions that congress should make.
i. Never expressly grants Fed courts power to review constitutionality of Fed or state laws or exec actions. Silence reflects understanding that courts possess authority for constitutional review and thought unnecessary to enumerate.
ii. have always claimed power to review the constitutionality of Fed and state laws and exec action.
iii. Fed courts are courts of limited jurisdiction- congress defines its scope and Sc has held that Fed courts may hear a case when there is both constitutional and statutory authorization.
b. Marbury v. Madison (1803):
i. Established authority for judiciary to review constitutionality of executive and legislative acts.
ii. Marbury appointed justice of peace under Adams administration. Commission not delivered bc Madison, Jefferson’s incoming secretary of state didn’t. Invokes original jurisdiction for mandamus to compel delivery of commission. Marbury brought suit in SC invoking original jurisdiction, if appointed position is for 5 years, after seal affixed then commission complete.
iii. Issue: whether he has a right to the commission of his demands, whether his right violated is there a remedy, and if there is a remedy is mandamus issued?
iv. Holding: Ruled against Marbury could not hear the case under original jurisdiction. This situation is outside of the constitution. violation of Marbury’s right but this court did not have the power to enforce the commission. Act of legislation could not modify the SC’s original decision. Marshall held constitution higher than any act of legislature.
v. Included parts aside from jurisdiction bc wanted to show that failing to deliver commission was wrong. Marshall who wrote the court’s opinion was the secretary of state responsible for signing and supposed to deliver.
vi. Original Jurisdiction: where you initially file the suit. Distinction btwn original and appellate. Jurisdiction to essentially act as trial court. Ordinarily original jurisdiction would be trial court. Court concluded that Judiciary Act of 1789 authorized mandamus on original jurisdiction.
vii. Appellate jurisdiction: jurisdiction to review decisions of trial court or original finder of fact or the court that originally entered judgment.
viii. Cannot allow president to eliminate vested rights of others, injured so entitled to remedy. Here applicant has right to his position. SC can issue writ of mandamus in warranted cases. Allowing court to issue writ of mandamus to an officer is contrary to constitution. It would expand the original jurisdiction.
ix. There is a remedy – either commission or compensation
x. SC looks to purpose of a provision, original intent (framers thought should mean then we should think that), structural arguments (structure of govts we have to come to certain conclusions), institutional competence (what branch of govt should be doing certain things), and some value judgment arguments.
xi. After saying that original jurisdiction for mandamus, then looked to see whether violated Article III. Congress couldn’t add to list for those that article III allows original jurisdiction for. The law that congress cannot increase SC’s original jurisdiction holds true today.
xii. “it is emphatically the province and duty of the judicial dept to say what the law is.” But court can interpret and apply law without deciding its constitutionality.
xiii. Politically Marshall had to deny Marbury- Jefferson would ignore the ruling and undermine court. But Marshall used the occasion to establish the power of the judiciary and articulate a role for the Fed courts. Judicial review established by SC and declared unconstitutional a statute read as expanding the court’s powers.
c. Presidential Authority to Decline to Execute Unconstitutional Statute
i. Delinger article: says if president signs something he can

olicy and constitutionality. People can do this are judges not legislators. Elected branch is for policy. Resolving differences for democratically elected people.
ii. Tripartite Theory: Distinction btwn policy and constitutionality is illusory, Constitution doesn’t make such a distinction – speaks of legislative and judicial power, Court has been given weight to constitutional determinations in congress, Constitutional questions are often more technical, Sole reliance on court determination may present difficulties, Some constitutional issues never reach the courts
B. Congressional Control of Judicial review By Fed Courts
a. Scope of Congressional Power over Jurisdiction of Lower Fed Court
i. Article 3 of constitution created SC gave congress ability to create inferior courts of congress.
ii. Inferior Fed courts exist bc of congress it has been clear Article 3 doesn’t require that any single lower Fed court exercise all or any part of judicial power described by article. Article 3 section 2 clause 2 what are the exceptions congress should make.
iii. Can create lower courts as those of limited jurisdiction
iv. Courts interpret statutes to avoid constitutional questions- if it’s close, interpret in a way that avoids constitutional line.
v. Plain statement cannons: statute must be clear, clearly state intentions
vi. Judges: appointed by senate and lifetime tenure
b. Ex. Parte McCardle (1868):
i. Man restrained by military officials upon charges founded on publication of articles in a newspaper where he was the editor. Appeal allowed him to come to circuit court. Motion to dismiss denied.
ii. Issue: whether he can find proper recourse in circuit court
iii. Holding: Circuit court doesn’t have jurisdiction and cannot declare law- congress preventing court from hearing the case