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Constitutional Law I
University of California, Hastings School of Law
Amar, Vikram D.

The Constitution, Judicial Review & Jurisdiction Stripping
I. General
* nothing in the constitution gave the Sup. Ct. the power to rule on the constitutionality of acts of congress or state statutes, or power to review the decisions of state courts
* Article III §1-creates the Supreme Court and such infereior courts as Congress may from time to time ordain & establish
* Article II §2 — and extends judicial power/jx. to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Traeties made. . . under their authority”
II. Judicial Review
* Sup. Ct. has the power to interpret the constitution
* Sup. Ct. has a duty to declare cogressional statutes unconst. if it violates the Const.
Marbury v. Madison (1803, Marshall)
1. first case to review congressional law as constitutional or not
2. This decision has been criticized b/c Const. does not explicitly provide for judicial review- but most scholars believe that Framers meant this
FACTS: Pres. Adams appointed Marbury as justice of peace & Marbury was confirmed by the senate on Adam’s last day in office. The formal commission was signed but not delivered. Jefferson was new pres. & ordered Madison (Secty of State) to withold the commission. Marbury brought a writ of mandamus to compel Madison to deliver it.
LAW: Judiaciary Act of 1789 which established US Courts and authorized S. Ct to issue writs of mandamus to public officers.
ISSUE: What branch of govt. has the final say in interpreting the constitution?
HELD: Supreme Court. Acts of Congress repugnant to the constitution are void & the S. Ct. has the authority/duty to declare the statute unconstitutional and to refuse to enforce it. Here, §13 of the Judiciary Act is unconstitutional = null & void. Article III §2 grants the court original jurisdiction only “in all cases affecting Ambasadors, other public Misiters and Consuls, and those in which a state shall be party” No Constitutional authority for Congress to say that S. Ct. can grant writ of mandamus!
Supremacy Clause – const. is supreme law of the land & where an ordinary act conflicts with const-const wins
* Marbury argues that the Article III §2 cl.2 is not restrictive & Congress may add to the orig. jx. all they want.
* but it does list cases-if Congress could add/change this would render the cl. ineffectual
Criticisms of Marbury
1. The conflict could have been avoided if Marshall had read the Judiaciary Act to apply to appellate cases, not original jx. The Judiciary Act actually reads: The Sup. Ct. shall also have appeallate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specifically provided for, and shall have the power to issue. . . writs of mandamus, in cases warranted by the principles and usages of law, to any court appointed, or person holding office under US”
2. Article III §2 gives Congress the power to make exceptions to the original jx. requirements (“In all other cases the Sup. Ct.

ot be upheld. 
III. Jurisdiction Stripping
* Congress has the power to control the boundaries of the Supreme Court’s appellate jx.
* Article III, §2, cl. 2 grants orig. jx only in cases involving ambassadors, ministers & consuls, and cases where a state is a party
Ex parte McCardle (1868, Chief Justice Chase?)
* This is the only example of a result-oriented stripping of Sup. Ct.s appellate jx. that was sustained by the Sup. Ct.
FACTS: McCardle was a news editor in Miss. after the civil war. He published articles challenging the govt’s control over the south in the wake of the civil war. He was arrested by federal military police for libel. He petitioned the lower court for a write of habeus corpus, charging that the Reconstruction Acts under which he was imprisoned/charged were unconstitutional. The lower court upheld the detention & he appealed to the Sup. Ct. under the Congressional Act of 1867, which authorized the grant of habeus corpus by federal circuit courts and also authorized appeals to the Sup. Ct. in such cases.
Congress-afraid that Sup. Ct. would decide that Reconstruction Acts were unconstitutional if they heard the case on the merits-repealed the portion of