Con Law Outline
All political power resolves in the people. This is not the case in all countries (ex. monarchy).
We then exercise political power by voting for representatives. These representatives are our agents, servant, and trustees. Our power is being exercised not theirs. This is why the right to vote is so important.
The legislative branch is arguably the most important branch. Why? It is where the people derive their power. The legislative branch is the branch closest to the people.
Judicial Review-Marbury v. Madison
Marshall in his opinion finds that Marbury was appointed to his post, and the there is a remedy and that remedy is mandamus (compel action). However, the question is whether the Supreme Court had the power to hear the case. Was Section 13 of the Judiciary Act of 1789 Constitutional is the real question? The statute gives the power to hear the case at question, but the problem is that it violates Article III of the Constitution. The Supreme Court only has original jurisdiction only over cases affecting public ambassadors, other public ministers and consuls, and those a State is a party. The Legislature cannot extend the Constitution through legislation.
Marshall states that power of judicial review resides in the Supreme Court not the legislature. The power of judicial review comes from the Supremacy Clause (Article 6) and the Oath the justices’ take to protect the Constitution to take office.
Rule: The Supreme court has the authority to declare unconstitutional and refuse to enforce a congressional statute that is in conflict w/ constitution, because the purpose of the constitution is to be the Supreme Law of the land (Supremacy Clause; Article VI)
Rule: It is the duty of the judicial branch, not the legislature, to say what the law is (court must determine whether an act is in conflict w/ the constitution).
Judicial Review is binding on the states and is the supreme law of the land-Cooper v. Aaron
The result: When the Supreme Court announces a ruling this interpretation becomes the law of the land and must be followed everywhere whether a party or not.
The Supreme Court can review state court decisions-Martin v. Hunter’s Lessee
Rule: State Court decisions on federal can be reviewed by federal courts. Supreme Court ha
state law w/o interference with federal courts. However, if there issue of federal law decided by state court, the Supreme Court has the power of review. State courts should make it clear whether it is state or federal law they are relying on. If it isn’t clear then the US Supreme court can assume it is federal law.
Methods of Constitutional Interpretation
I. Interpretivists (positive law) – the only legitimate form of judicial review is the interpretation of the written text of the Constitution.
Advantages: more predictable; judges would only be able to interpret law not make law
Disadvantages: static and constitution is not living and breathing argument that changes with the times
II. Noninterpretivists (natural law)- The courts are not limited to constitutional text, buy may use other norms such as notions of fundamental justice as a source of constitutional decision.