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Constitutional Law I
University of Alabama School of Law
Horwitz, Paul

2008 Constitutional Law Outline
The Nature and Sources of the Supreme Court’s Authority
                   I.            JUDICIAL REVIEW
a.       Judicial review is the power of a court to review the actions of public sector bodies (legislation) in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.
b.      It basically empowers courts, in cases before them, to examine legislation to assess its compliance with the Constitution
c.       There is no judicial review explicit in Article III of the United States Constitution, but the doctrine has been inferred from that document.
d.      Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions.
e.       The Constitution states in Article III that:
                                                                           i.      The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish….The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority….In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
                                                                         ii.      Article III provides two primary restrictions of federal judicial power.
1.      It circumscribes the maximum extent of federal court authority (subject matter jurisdiction), restricts access to federal courts (through principles of standing, ripeness, mootness, and the political question doctrine)
2.      Congress plays an important role in limiting federal court jurisdiction. –the Supreme Court has held that the federal court may hear a matter only when there is both constitutional and statutory authority
f.        Judicial Review- the doctrine that courts have the power to invalidate govt. action which is repugnant to the Courts.
g.      Marbury v. Madison
                                                                           i.      This case established the authority for the judiciary to review the constitutionality of executive and legislative acts.

of US: Sec of State must affix seal to all Pres signed commissions
2.      Do the laws of the country give Marbury a legal remedy?
a.       YES! If there is a right, there is a remedy. (common law principles)
b.      #2B: Does § 13 of the 1789 J.A. auth. issuance of the writ? YES
c.       #2C: Is § 13, so construed, unconstitutional? YES
d.      #2D: Can the Supreme Ct. review the constitutionality of Act of Congress? YES
3.      Is asking the Supreme Court for a writ of mandamus the correct legal remedy? [main issue] a.       NO! The Judiciary Act of 1789 (a statute), which says that the Supreme Court has the power to issue writs of mandamus to any persons holding office in the US, conflicts with Article Three which does not grant original jurisdiction to the Supreme Court over cases involving executive officers.
b.      This creates conflict b/w Congress and the Constitution (separation of powers issue)
c.       Political Acts (can be corrected by Leg./Elec.) have discretion., no Judic Rev
Duty IS assigned by Legislature (duty of Sec. to affix seal & deliver once signed)