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Constitutional Law I
University of California, Hastings School of Law
Massey, Calvin R.


Judicial Review

– Definition
o The power of federal courts and ultimately the Supreme Court to decide if laws enacted by Congress or actions by the executive branch are in violation of the Constitution
§ Authority not expressly given to federal courts under Constitution, but treated as implied power of courts
– Origins
o Articles of Confederation
§ National government consisted almost entirely of a Congress and there was no executive or judicial branch
§ Congress lacked any authority to compel various independent states to comply with its will
o Constitution
§ Limited but strong federal government
§ Three branches – executive, legislative, and judicial with overlapping and checking powers
§ Presumption that states have power unless given to federal government
o Marbury v. Madison
§ Established judiciary’s power to declare federal legislation unconstitutional
§ Historical context
· Power shift b/w Federalists and Democratic-Republicans
o Federalists – Wanted strong central government
o Anti Federalists (D-R) – Wanted states to retain power
· Federalists create circuit courts by enacting Judiciary Act, appoint Marbury as justice of peace but do not deliver commission.
· Once in power, D-Rs want to abrogate power of judiciary as much as possible and repeal Judiciary Act
· New Sec of St Madison refused to give commission to Marbury
· Marbury sued in the Supreme Court for a writ of mandamus to get his commission
§ Legally – three distinct questions
· Does Marbury have a right to the commission?
o Yes, the commission was complete upon signing by President
· If he has a right, does Marbury have a remedy?
o Yes, the nature of law is for courts to provide a remedy for every wrong. The signing of a commission is not a discretionary act of the executive and therefore is subject to review
· Is Marbury entitled to remedy of mandamus from the SC?
o No, the judiciary act conflicts with the Constitution
§ Under Constitution, SC has original jurisdiction only over ambassadors, public officials, and consuls and those in which a state shall be a party.
· Appellate jurisdiction in all other situations
§ Judiciary Act gave SC original jx over writs of mandamus
o When statute and Constitution conflict, the higher law prevails
§ “It is emphatically the province and duty of the court to say what the law is.”
o Congress could not expand jx, therefore SC lacked jx over Marbury’s suit
o Marshall’s Opinion
§ Justifications for Judicial Review
· Written Constitution
o Written Constitutions would have no meaning if it was not enforceable against the Legislature
· Role of Judiciary
o Judiciary’s duty is to say what the law is, and therefore interpreting the Constitution is implied
· Judicial Review is implied from fact that
o Judges take an oath to uphold the Constitution
o Supremacy clause that Constitution is supreme law of land
o Article III gives federal courts jx over all cases arising under Constitution
§ Criticisms of Court Opinion
· Judiciary Act did not give original jx in cases involving mandamus
· Marshall read Act in such a way in order to discuss what he viewed as a larger issue of Judicial Review
– Utility of Judicial Review
o Arguments For Judicial Review
§ Counter-majoritarian rule
· Congress manifests will of majority, but Constitutional rights protect political minorities
· Since judges are appointed for life, they are immune from majoritarian pressure
§ Stability
· Judicial review prevents chaos that would result if each branch of government was equally free to determine Constitution’s meaning
o Criticisms of Judicial Review
§ Power to invalidate acts of Congress is a violation of the principle of separation of powers
§ Because judicial review is not expressly granted, courts should refrain from deciding constitutional issues whenever possible
§ Antidemocratic to vest authority over meaning of constitution in judges who are not politically accountable
§ Since other branches may not ignore Court decisions, mistaken judicial interpretations of the constitution will be difficult to correct
– State Court Decisions and Judicial Review
o Martin v. Hunter’s Lessee
§ Supreme Court has the power to review federal constitutional decisions of a state’s highest court on matters of federal law
· No federal court, including Supreme Court has power to review state court decisions on matters of state law
§ Justice Story’s Rationale
· Article III
o Article III gives federal courts appellate jurisdiction over “all” (note “some”) cases arising under the Constitution
§ This must include those that arise from the state courts
§ It is the case, and not the court that gives jurisdiction
· The Supremacy Clause
o No state sovereignty over constitutional interpretation
· Un

compelling reason to enforce the legislation, and means chosen to accomplish act are well suited
o Intermediate Scrutiny:
§ Legislation is tainted with presumptive invalidity but not quite enough to invoke strict scrutiny
i. Burden of proof is on government to prove that actual purpose of the statute is important and that the statute is related to the accomplishment of that purpose

Regulation of Judicial Review

– Direct Political Controls
o Constitutional Amendment (overruled SC decisions)
§ Very Rare- Only four times has it happened (11, 14, 16, 26)
§ Sub-issues
· Non-contemporaneous Ratification
o Who gets to decide when the time period on ratification has run?
o Ex. 27th Amendment: Proposed in 1789, ratified by 6 states in 1791, and ratified by 35 more states by 1992
· Convention Calls
o Article V provides that the Const. can be amended through Constitutional conventions but provides no insight as to how to determine the validity of the conventions
· Rescission before Ratification
o If a state rescinds its ratification before fully ratified by 3/4 of states, what is the role of the courts?
· Unconstitutional Amendments
o Amendments cannot limit the equal representation of a state in Congress w/o the state’s approval
o But as long as adopted in a constitutionally prescribed fashion, there is no limit on the substance of the amendments
o Appointment
§ President’s have the power to appoint justices to the SC and pick justices who they think share their ideological views, but
· Justices are hard to predict on the court
· Justices serve way past immediate issues
o Impeachment
§ Judges are removable from office for high crimes and misdemeanors, treason and bribery, but it is extremely rare
– Congressional Power to Control Jurisdiction of the Courts
o Power to Establish Courts
Article III § 1 locates the federal judicial power in one Supreme Court and “in such inferior courts as Congress may from time to time ordain