General intro to marbury and judicial review
– background
· fundamental importance
1. precarious constitutional situation
2. establishing rule of law
3. courts as arbiters of constitution
4. other principles and ideas
a. political question doctrine
b. original jurisdiction of supreme ct
c. removal of officers
5. alternative historical account
· setting
1. adams defeat à Jefferson prez after
a. political acrimony
b. loss for federalists
2. federalist actions
a. judicial appointments
b. justices of the peace
c. midnight judges act created for new judgments and justices of peace
3. marshall’s role
a. prominent federalist
b. secretary of state (failed to deliver) à Madison sos after
c. appointed chief justice
4. madison’s refusal to deliver commission to marbury after he and Jefferson came into office
· opinion
1. marbury right to commission?
a. signed/sealed; delivery not needed
b. appointment for term of years
2. entitled to remedy?
a. rule of law (negative proof)
b. political question
3. writ of mandamus from sup ct?
a. mandamus proper—need requirement of acting a certain way
b. no orig juris in sup ct (judicial review)
· marshall’s great escape
1. marshall’s dilemma
a. ardent federalist
b. political vulnerability
c. legal exposure
2. marshall’s solution
a. marbury has a right to the commission
b. cts may order delivery…sos may order it
c. but no juris
d. asserts power but anti-federalists win
– key aspects
· the rule of law and executive action
1. govt of “laws, not men”
2. negative proof
a. rule of law requires remedy…“the very essence of civil liberty certainly consists…”
b. us is a rule of law state…“the govt of the us has been emphatically termed…”
c. lack of remedy inconsistent w/ rule of law…“it will certainly cease to deserve this high appellation…”
3. acts of political di
constitution
c. importance
8.21.07
A. Issue: CO amendment 2 violated 14th amend equal protect clause
· barred laws that provided gays protected legal status
B. Structure of opinion
1. factual and procedural background
– amendment passed barred future laws which would provide gays w/ protected legal status and repealed any laws that provided them w/ protected status
2. unequal treatment (equal protect trigger)
– ct has to est this to fall under 14th amend scope
– amendment falls under 14th b/c:
a. repeals existing anti-discrimination laws
b. imposes obstacles to new laws…they will have a higher burden
3. fails rational basis test
broad disability on group is an invalid form of legislation that gives gays a 2nd class status
