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Constitutional Law I
South Texas College of Law Houston
Carpenter, Dale

CONSTITUTIONAL LAW
PROF. DALE A. CARPENTER
SPRING 2008
MASTER OUTLINE
JUDICIAL POWER
I. Modalities of Constitutional Interpretation
a. TEXTUAL. What does the text of the Const. say? How do you determine what it means?
b. STRUCTURAL. What structure of gov’t does the Const. set up?
c. PRECEDENTIAL. What do previous decisions say?
d. EXPERIENCE/PRUDENTIAL. What practices have arisen over time?
e. MORAL/SOCIAL CONSENSUS. What are modern prevailing views?
II. Power of Judicial Review
a. Marbury v. Madison
i. FACTS
1. John Adams’ Sec. State John Marshall (author of this opinion) and his brother James failed to deliver judicial commissions before Adams’ term ended.
2. Pres. Jefferson barred his Sec. State James Madison from delivering them, and Marbury (and other appointed judges) sought a writ of mandamus, forcing Madison to deliver the commissions (pursuant to the Judiciary Act of 1789).
3. Jefferson ordered Madison not to show up to ct.
ii. HOLDING/REASONING
1. Did Marbury have a right to the commission? Yes.
a. The right vested when signed by pres. and seal was affixed
b. Jefferson’s prob. arg: delivery vests the right
2. Is there a remedy for violation of this right? Yes.
a. We’re a gov’t of laws, not men (there has to be some remedy for violation of rights)
b. There is a remedy for wrongs from ministerial acts (where pres. has a legal duty to do something)
c. No remedy for political actions (gives Pres. flexibility)
i. See Political Question Doctrine below
d. Did Marbury request the correct remedy? Yes.
i. Writ of mandamus is appropriate
e. Can the Ct issue this writ to Madison? Yes.
i. Structural Argument
1. Jefferson: all branches are equal; they cannot order each other to do anything
2. Marshall: the law is above all, even the Pres. (doesn’t destroy the balance set up by the Const.)
ii. Prudential/Practical Argument
1. Jefferson: if ct can issue orders

ii. Note: Marshall reads the Const. and Judiciary Act in the only combination that creates conflict.
3. Arguments in Favor of Judicial Review
a. Written constitution sets up a gov’t of limited powers
i. Major premise: the gov’t is one of limited power
ii. Minor premise: w/o judicial review, limits on government authority are abolished
iii. Conclusion: judicial review is essential to enforce a written constitution w/ limited powers
iv. Counterarguments:
1. Congress can take into account what’s constitutional when they pass legislation
a. But, Congress can abuse power
i. But, anybody can abuse power
2. Congress is subject to political constraints
a. Political constraints aren’t effective if legislation is popular
3. Pres. can veto legislation