1/9: Judicial Power—–
I. Introduction & Judicial Review
A. US Const
1. Great Hamilton quote: “the sacred rts are not to be rummaged for among old parchments or musty records. They are written, as w/ a sunbeam, in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal pwr”
B. Class & Read Notes
1. Magna Carta provides fundamentals to US Const (freedom of speech, religion, taxes by rep, etc…)
2. Judicial Powers Art III
a. “The judicial power of the US, shall be vested in one supreme ct, and in such inferior cts as the congress may fr time to time ordain and est. The judges, both of supreme and inferior cts, shall hold their offices during good behavior, and shall, at stated times, rec for their services a comp, which shall not be diminished during their continuance in office…(§2) the judicial power shall extend to all cases, in law and equity, arising under this const, the laws of the US, and treaties made, or which shall be made, under their auth; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime juris; to controversies to which the US shall be a party; to controversies between two or more states…twix citizens of diff states…the trial of all crimes, except in cases of impeachment, shall be by jury…(§3) treason…”
b. Creates supreme ct and there will be lower ct
c. Congress decides lower cts
d. Lays out juris of supreme/fed ct
e. Supreme ct justices serve for life
i. Since 1869, 9 justices (decided by exec & congressional action and subj to change)
ii. 110 justices thus far
iii. 12 circuits (we’re in the 9th)
iv. 94 districts
f. Judicial review
i. Pol ques (is this an exec or leg or judicial issue?)
ii. Standing
iii. Mootness
iv. Ripeness
v. Advisory opin cannot be issued by ct
vi. Scope of judicial review
3. Leg power Art I §8 (gov’t of enumerated power)—the powers granted to congress(interstate commerce; spending power (the power to tax & allocate $); federalism power (congress v state power);
a. (1)“The congress shall have power to lay & collect taxes, duties, imposts & excises, to pay the debts and provide for the common defence and general welfare of the US; but all duties, imposts and excises shall be uniform throughout the US”
b. (2) to borrow money on the credit of the Us
c. (3) to regulate commerce w/foreign nations and among the several states, and w/the Indian Tribes
d. (4)to est an uniform rule of naturalization…
e. (5)to coin money…
f. (6)to provide for punishment of counterfeiting…
g. (7)to est post offices…
h. (8)to promote the progress of science & useful arts, by securing for lmtd times to authors and inventors the exclusive right to their respective writings and discoveries
i. (9)to constitute tribunals inferior to the Supreme Ct
j. (10)punish piracies…
k. (11)to declare war…
l. (12)raise armies…
m. (13)maintain navy…
n. (14)make rules for gov’t & navy
o. (15)call in militia
p. (16)organize army…
q. (17)to exercise exclusive legislation [over the US and its territories]…
r. (18)to make all laws …necessary and proper …
s. Powers forbidden to congress §9…(2)the priv of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety shall req it…(6)no preference of one state over another…(8)no titles of nobility granted..
4. Exec Power Art II of US Const
a. Inherent power?
b. Foreign policy powers
c. War powers
d. Enemy combatants (current cases involving Guantanomo Bay)
e. Art II, §1
i. (1) exec power vested in pres
ii. (2)ea state shall appoint…electors…
iii. (3)electors shall meet in their respective states…
iv. (4)congress det time of choosing electors and day they give votes
v. (5)only nat born citizens are eligible for pres
vi. (6)what happens if pres dies
vii. (7)compensation of pres
viii. (8)oath of pres, “I do solemnly swear that I will faithfully execute the office of pres of the US, and will to the best of my ability, preserve, protect and defend the const of the US”
f. Art II, §2
i. (1)Pres shall be commander in chief of army
ii. (2)pres shall have power w/the advice/consent of senate to make treaties
iii. Section 3 & 4
5. Fundamental Rts & Due Process
a. What type of rts does const protect?
b. What type of privacy rts does const protect?
c. Substantive due process
d. Is there a rt to contraception? Sexual rts?
6. Art V and Amend process of const
a. Amended 27 x’s (27th amend took 200 yrs to ratify)
b. Why make the US Const tough to amend?
i. Because of need for continuity, reliability
ii. Only challenge to statutory law
c. What to do?
i. Wait for ct to reverse decisions
a. Exp, sodomy law of 1986 but 2003, in Lawrence v. Texas, overturned
C. (class/read notes, con) Marbury v. Madison
1. Art III
2. Ct responsible for const interp
3. J. Marshall
4. What is judicial power?
a. Interp of const
b. (p. 4) Judiciary Act of 1789 “and be it further enact
SC could act as an appellate ct in this instance but USSC here lacked orig juris; Marbury should have run thru lower ct first; Thus, J. Marshall agrees but Marbury still loses.
7. Writ of mandamus : act order issued commanding a public or private entity, or an official thereof, to perform a duty req by law
8. Art III of the Const provides the USSC shall have orig juris in all cases affecting ambassadors, other public ministers and consuls, and where a state is a party.
9. Art III §2 cl. 2 contains no restrictive wds & sets forth exhaustive list of categories of possible Supreme Ct orig juris
10. Alexander Hamilton & his Federalist Papers mention the proper role of the Ct is as an intermediary twix the people and the leg
a. Interp of laws = responsibility of the judiciary
b. Const = supreme law of the land
c. Conflict twix leg acts and the Const to be resolved by the ct in favor of the Const
11. Opponents to this: think that judicial branch should only review laws and not scrutinize leg decisions
12. Historically:
a. Judicial pwer to review Congressional/legislative decisions
b. USA = tripartite gov’t w/3 branches acting as checks/balances on ea other
c. To limit the judicial to passive task of interp would be to limit its strength in the tripartite structure
13. Marbury served to buttress the judiciary branch making it equal to the exec and leg branches
14. Thus, Judiciary: reviews exec, congress/leg & interprets constitution
15. When can the judiciary review?
a. Pol discretionary acts:
(1) Pres w/discretion/choice
(2) Veto pwr (enumerated pwrs)
(3) Appt pwr ( “ )
(4) No other branches may review
(5) **non-reviewable
b. Non-pol, ministerial acts
(1) Warrants
(2) Wiretaps (4th Amend compels)
(3) **reviewable
16. Should Marshall have recused himself based on his close relationship to the parties?
17. It is the province and the duty of the judiciary to say what the law is (p.7; paraphrase of J. Marshall)
a. Why?
(1) Oath (Supremecy Clause) to uphold Const
(2) Balance of pwr (checks/balances)
(3) Art VI of the Const grants this pwr to Judiciary (Supremecy Cl and is the supreme law of the land)
