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Constitutional Law I
Temple University School of Law
Caine, Burton

JUDICIAL FUNCTION IN CONSTITUTIONAL CASES
Introduction/Themes
– What do we imply from silence?
o The more rights that are listed, the more it creates the assumption that the list is exclusive
o If there were no bill of rights, it would still be clear that human rights existed
– Const. = granting of rights to the government by the people
o Gov’t has to prove that Const. grants it particular power at issue
o Applies only to gov’t
§ except 13th Am. also applies to private individuals (“slavery shall not exist”)
Declaration of Independence
– Expresses idea that people have power & gov’t only has the power given to it by the people
o idea also expressed in Const.
– Not a legal document
– Breakdown:
o Self-evident truths => from God, rights you have b/c you’re human
§ different from Const. which separates church & state
o “All men” – meant just men
o “Endowed by creator” – doesn’t say who
o “Inalienable” – can’t be taken away
o “Among” => not limited to enumerated rights
Constitution, generally
– Creates an inefficient gov’t to prevent accumulation of power in hands of any one branch/instrument
– Divides power three ways, horizontally and vertically
o Horizontally: Congress, President, Courts
o Vertically: People, federal gov’t, state gov’t
– Intended to protect unpopular rights on grounds it’s the only way to protect liberty
– Compromises:
o Slavery –
§ couldn’t be eradicated until 1807
§ 3/5ths compromise
o NJ Compromise – two senators for each state
§ undemocratic b/c not fair representation
Judicial Review: the bases and implications of Marbury v. Madison
Marbury v. Madison
– Adams made appointments on the eve of Jefferson’s inauguration, including Marbury; Jefferson refused to enforce them; Marbury sued for a writ of mandamus
– Establishes defensive judicial review –
o Establishes that S. Ct. can tell other branches what to do – “don’t tell us what to do!”
§ incongruous since Judiciary is Art. III & has only one sentence
§ elevates judiciary over exec. & legis.
o Cons

nstitutions)
– Undemocratic? Important decisions are left to unelected judges; laws created by elected officials thwarted by unelected ones (pg. 19)
– Never used by S. Ct. until Dred Scott
Cooper v. Aaron
– Gov. Faubus denied that Brown v. Bd. of Edu. bound him since he wasn’t a party
– S. Ct. ruled he was bound by its dec’n in Brown
– Rule: judicial interpretations by S. Ct. bind other public officials
Constitutional & Prudential Limits on Constitutional Adjudication
– Doctrine of Political Questions –
o = <some constitutional issues are “political” & thus nonjusticiable>
o An exception to rule in Marbury
o Reasons for doctrine:
§ text of Const. assigns issue to another branch
§ lack of judicially discoverable standards for resolving issue
issue is too controversial or enforcement problems