1. Defining the Judicial Role in the CON
a. Judicial Review
i. Court has power to rule Congress’ statute Unconstitutional
ii. Marbury v Madison (US 1803)
1. Decided court did no have original jurisdiction this time (according to Art. 3-2)
2. 1st Precedent to decide over Congress (Supremacy Clause, Clause 6)
a. Structural implications, why write it unless meant to be followed
b. Art III granted power to decide cases arising under the constitution
c. Judicial oath to uphold the constitution (Art. 6) (otherwise cutback on oath)
i. Implies right over Exec too
d. Supremacy Clause (Art. 6-2)
b. Utility of Judicial Review
i. Pros
1. Counter- Majority Role (Lags 20 years behind political majority)
2. Stability (lifetime immunity to political pressure)
3. Increased Responsibility to verify Constitutionality
ii. Cons
1. Non politically accountable judges–>against fundamentals of representative democracy
2. Entrenched error (harder to correct yourself)
3. Decreased Responsibility to verify Constitutionality for the other 2
c. Supremacy Clause
i. Binding on States
ii. Cooper v. Aaron (US 1950ish)
1. Fed law trumps state law when they conflict –> Arkansas governor must follow Brown v. Board of Education as if was a congressional statute
d. Strength Chart
i. CON / Amendment
ii. SC Precedent
iii. Congressional Statute
e. Constitutional Interpretations
i. Interpretivists (positive law)
1. Predictable (but not flexible enough to deal with the changes
ii. Noninterpretivists (natural law) (imagination) “Vectors of History”
1. Part of human nature (common sense)
2. Ex: enter into K, or own property
00 – Calder v. Bull –> battle between the interpret and noninterpret
a. Textual Method
b. Historical Argument
i. Original Intent
ii. Original Meaning
c. Structural Method
d. Doctrinal Arguments -Stare Decisis
e. Prudential Arguments – Public Policy – what is best for us (
f. Cultural Arguments -what do we like today
f. 3 Levels of Judicial Scrutiny (Stone in 1938)
i. Minimal/Rational basis /Default (very deferential)
1. Burden on Challenger (Presume statutes are valid)
2. Standard: must be “rationally related” to a legitimate(granted) gov. objective
ii. Intermediate/ Quasi-suspect
1. Burden of gov.
2. Standard: must be “subs
n state high courts
b. Martin v. Hunter’s lease—> battle over Virginia land to honor treaty or not
c. Supported by:
i. Art 3-2, (furthered by supremacy clause), and need for uniformity of CON interpretation
2. Adequate and Independent Doctrine – defining the threshold
a. Can decide if it is fed law or unclear (therefore states should make clear)
i. If use fed precedent or law = fed question
1. Michigan v. Lang–>search and seizure law sounded like CON 4th amendment
ii. Can even accept weak fed issue
1. Bush v. Gore–>close to fed statute banning change of voting method during election–> FL SC ordered recount of all non machine votes.
ii. Congress v SC
1. (Political Question too)
2. Exceptions and Regulations Clause
a. Appellate jurisdiction is subject to “such exceptions and regulations as congress shall make”
Can change jurisdiction during a case, unless statute discriminates on it face
