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Wills and Trusts
Santa Clara University School of Law
Schneider, Eric C.

Constitutional Law; Spring 2007; Professor Dore; Saint Louis University

JUDICIAL REVIEW

ESTABLISHING

I. Marbury v. Madison:
a. Facts/Process of Marbury
i. Federalists tried to maintain control of courts after losing the election by appointing 42 justices of the peace. Adams nominated Marbury and was confirmed on Adams last day in office and Adams signed Marbury’s commission. The outgoing SOS (Marshall) signed/sealed the commissions, and a few of them failed to get delivered. Once in office Jefferson denied to recognize any of the undelivered commissions
1. Marbury went directly to the SC to get an order for SOS to deliver rest of the commissions
b. Three issues examined:
i. Does he have a right to the commission?
1. First found M had a vested right to the commission, b/c the commission process was completed w/presidents signature
ii. Did Marbury have a right to a legal remedy?
1. if an individual’s civil libs have been violated, there is an absolute rule that every violated right has a remedy in the court.
2. M’s entitlement to the commission is a legal question, not a political question and is reviewable and, a mandamus would normally be appropriate, there is a remedy
iii. If he does have a remedy, is it a mandamus from the SC?
1. the SC lacked jurisdiction to issue a writ of mandamus directing the president to deliver M’s commission, a mandamus is not under the SC’s original jurisdiction.
2. SC lacked jurisdiction b/c §13 of the Judiciary Act of 1789 purported to expand the original jurisdiction of the SC provided in Article III §(2)(2) by authorizing it to issue writs of mandamus to executive offices
a. The SC has original Jurisdiction in two types of cases (1) those affecting ambassadors, other public ministers and counsels, and (2) those in which a state is a party
b. all other cases SC has appellate jurisdiction
c. That the C divided jurisdiction b/n original and appellate suggested it did not intend for the leg. To expand orig. J.
d. Marbury’s claim was not original jurisdiction, and Marshall interpreted the C to mean that the legislation could not expand the court’s jurisdiction beyond what was originally lain out, thus § 13 of Jud. Act was void.
3. if the SC identifies a conflict b/n a C’l provision and congressional statute, the court has the duty to declare the statute unconstitutional and to refuse to enforce it.
4. The statute (judiciary act) conflicted with the original jurisdiction in Article III of the C, a law that is repugnant to the C is void.
c. Four Principal Asserted by Marshall
i. (1) Government is based off the rule of Law, not the rule of men
ii. (2) the constitution is the paramount law, a law unchangeable by ordinary means, such that any inconsistent statute is invalid
1. Article VI Supremacy Clause: C is the Supreme law of the land
2. If no is limit placed on the leg., they would be given a “real omnipotence” and wouldn’t be subject to any C’l limits, it would impose limitations that could be ignored at will
iii. (3) ours is a system of limited government
1. written constitution: Marshall argues the significance of a written constitution, that it is a guarantee of limited gov’t.
a. why have a written constitution if it is not going to be followed, it would be worthless
2. Three Consequences of a written C:
a. C is Superior Law
b. Acts of law in conflict w/C must yield to the C
c. The court has the ability to decide the conflicts
iv. (4) the judiciary has the power over judicial review
1. “it is emphatically the province

ing on other constitutional decisions, like those binding on lower courts (Everything but constitutional questions
IV. Following Dickerson and Cooper:
a. Neither congress nor the states may overrule the SC on C matters
i. The C gives both congress and the states a method for overruling the SC, under Art. VI congress and the states can initiate the amendment process.
V. Review of State Law:
a. Martin v. Hunter’s Lessee (Story, using a textual argument)
i. Defends legitimacy of SC review of state court judgments resting on interpretations of fed law, and rejected Va.’s SC challenge to the constitutionality of §25 of the Judiciary act of 1989.
1. SC’s appellate review is limited to the federal questions, the SC may not review state court decisions that merely adjudicate questions of state law.
ii. The SC has the power to hear and reverse an appeal from the highest state courts, this is a case of Vertical Review.
1. VA didn’t deny being subject to C, but §25 was uncon and SC cant review the state courts b/c the case originated in VA SC & they were claiming judicial autonomy b/c the case arose and came through the state court, and they should then have final say,
a. Framers must’ve seen this problem but didn’t give remedy and therefore judges say they wanted parallel tracts
iii. Justice Story: wanted to (1) establish SC superiority (2) rebut Va. Judges assertion of limited judicial autonomy.