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Constitutional Law I
University of California, Hastings School of Law
Faigman, David L.


A. Judicial Review
1. Judicial Review Authority:
a. Art. III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions. (Ch. 37)
b. Art. III § 2 provides that “The Judicial Power shall extend to all cases . . . arising under the Constitution.” However, this clause doesn’t tell us what the judicial power is. Some argue it’s a mere jurisdictional provision that indicates what cases the Court has power over, not what power the Court can exercise over those cases.
c. Art. III circumscribes the maximum extent of federal court subject matter jurisdiction
d. Art. III § 2—Congress has the power to create “exceptions and regulations” to the Supreme Court’s appellate jurisdiction
2. Marbury v. Madison:
a. Most important decision in constitutional law. It established the authority for the judiciary to review the constitutionality of executive and legislative acts.
b. Facts: Adams signed Marbury’s commission as a Justice of the Peace but it wasn’t delivered to him before Jefferson was inaugurated. Madison (Sec. of State) withheld the commission. Marbury filed suit in the US Supreme Court seeking a writ of mandamus to compel Madison, as Secretary of State, to deliver the commission. Marbury claimed that the Judiciary Act of 1789 authorized the Supreme Court to grant mandamus in a proceeding filed initially in the Supreme Court.
c. Holdings:
(1) Whether Marbury had a right to the commission.
– When a commission has been signed by the President, the appointment made and affixed with the US seal, it is complete. Delivery is merely a custom and therefore withholding Marbury’s commission was “violative of a vested legal right.”
(2) Whether the laws afford Marbury a remedy.
– The judiciary can provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion (like a veto). Here there was a legal duty to act and there should be a remedy for infringements of individual liberty.
(3) Whether the Judiciary Act of 1789 properly confers jurisdiction of this dispute; and (b) if not, does the Court have the power to review the constitutionality of the law.
– Marshall states that the Judicial Act of 1789 expands the Court’s jurisdiction granting original jurisdiction over writs of mandamus (when they are only properly issued under appellate jurisdiction). Here the SC was exercising original jurisdiction. Therefore the act does not properly confer original jurisdiction—it’s unconstitutional.
(4) Whether the Court has the power to review actions of the coordinate branches of government.
– Marshall answers that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. He gives his reasons why he believes the Court has this power:
(a) We have a written constitution. He states that “there would be no point in having a written constitution if courts could ignore it.” However, one might argue that if you have a written constitution there is less a need to have definitive interpretation.
(b) The ordinary role of courts is to interpret the law: “It is emphatically the province and duty of the judicial department to say what the law is.” However, it is not obvious that it includes the power to invalidate acts of the more political branches.
(c) The Supremacy Clause of Art. VI §2 which provides that the Constitution shall be the Supreme Law of the land. Therefore, Marshall argues that the court needs to be the protector of this clause. However, maybe it just means that a law cannot be made that is repugnant to the constitution—or that it can’t be given effect–.
(d) Next Marshall argues that judges take an oath to uphold the Constitution. But so do all federal and most state employees.
(e) Finally, Marshall argues that judicial review is needed because legislatures would not be as restrained as courts by a written Constitution. While this may be true, many countries depend on their legislatures to interpret their respective Constitutions.
3. Notes
a. Although no one argument Marshall offers overwhelmingly demonstrates that judicial review is constitutionally mandated, his arguments support the view that it is consistent with the constitutional structure and overall scheme of American government and that it is wise

gnore precedent.
(5) Constitutional Facts: somewhat hidden, the court will assert certain inferable arguments that support its conclusion; sometimes they are original intent argument
– sometimes they’re sociological facts such as the realities of domestic violence (in striking down a abortion notification provision in state law)
– striking down the death penalty for mentally retarded citizens, you cannot benefit from retribution and deterrence of the criminal justice system, so the justification for death sentence can’t support it.
– Same goes for executing minors
– “adjudicative facts” are those that are specific to a litigation, tort-like test for a certain type of law
– “legislative fact”—facts that transcend a particular litigation such as (1) is the death penalty a deterrent, (2) when does fetal viability occur
(6) Scholarship: Citing an academic’s work
(7) Contemporary Values
– most controversial
– some justices argue that contemporary values should always be taken into account.
– Others would argue that contemporary values should be looked at in some, but not all constitutional contexts (because the language of the constitution asks the court to look at contemporary values)
B. Political Question Doctrine
1. Definition: The Supreme Court has held that certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even though all of the jurisdictional and other justiciability requirements are met. The Court has said that constitutional interpretation in these areas should be left to the politically accountable branches of government, the president and Congress.(Ch. 129)

Faigman, FA06
Submitted: SP07