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

I. The Power of Judicial Review
A. Historical Background: After the failed attempt at individual state sovereignty (congress had insufficient power- could conduct war, but couldn’t impose taxes to finance it, etc), states came together and created a constitution with more executive and judicial power and less legislative power, so that the power was evenly divided among the branches (ambition checking ambition). The federalists controlled congress and the presidency for the next 12 years, but then their downfall occurred when they passed the Sedition Act (inspired by the French Revolution; made it a crime to write, print, or utter any false, scandalous, and malicious writing against government). Under Adams, many people were sent to jail under that act. The Republicans (Jefferson) swept the next election. In the last months of the Adams (federalist) term, he appointed Chief Justice Marshall as the head of the court, so that Jefferson couldn’t appoint the new chief justice. He also passed the ‘Midnight Judges Act’, creating 16 new federal circuit courts, and filled those positions, with senate confirming the nominees. The Federalist Congress also approved the Organic Act of the District of Columbia, which allowed Adams to name as many justices for the peace as he saw fit, so he thought 42 was a good number, and filled those spots; one of those judges was Marbury. Jefferson ordered his secretary of state, James Madison, to withhold the commissions from 17 of the 42 judges, one of whom was William Marbury, and also repealed the circuit court act, which could have been ruled unconstitutional since judges hold their office during good behavior under Article III sec. 1. They also canceled the June and December terms of the Sup. Ct., and threatened to impeach all six supreme court justices if they declared an act of congress unconstitutional. All of this placed a cloud over judicial review.
1. Marbury v. Madison
a. Three Issues: (1) Whether Marbury had a right to the commission, (2) whether Marbury had a remedy, and (3) the power of the Supreme Court in this case- whether the Judiciary Act can confer jurisdiction fo this dispute constitutionally, and if now, whether the court had the power to review the constitutionality of the law.
Analysis of (1): When a commission is signed by the president and the appointment is made, the commission is complete when it is sealed by the secretary of state. Therefore, withholding Marbury’s commission violates his legal rights.
Analysis of (2): Marshall argued that the laws of the land must stand ready to remedy infringements of individual liverty. Marshall asked what the nature of the writ applied for was, which would be one directed at a government officer, making him do something that the court decided. They drew a distinction between ordering the executive department to effectuate a legal right and interfering with the executive’s political discretion. However, the Court gets to define the line between legal rights and political discretion.
Analysis of (3): Article III sec. 2 does not permit extension of the Court’s original jurisdiction to cover the power to issue a writ of mandamus.
The court has original jurisdiction over those cases affecting ambassadors, public ministers and consuls, and those in which the state shall be a party. This mainly applies to foreign reps.
The court has appellate jurisdiction over cases including diversity, federal questions, and those in which the U.S. is a party. Purely state law questions can not be reviewed by the Sup. Ct. unless they challenge the constitutionality of that law.
The judicial power extended to Marbury’s suit because it arose under federal law, so Article III assigned it exclusively under appellate jx. However, since he was suing a public minister (the secretary of state) the court had original jx. However, section 13 of the judiciary act gave the court the power to issue writs of mandamus to anyone holding U.S. office. This made section 13 unconstituional. The Exceptions Clause appears to permit transfer of cases between appellate and original jx., (court has original jx in all other cases the under regulations as congress shall make), Marshall argued that the Framers would not have defined the court’s appellate and original jurisdiction if those categories could be freely transferred by congress. Marshall said the exception clause allows Congress to remove cases from the court’s appellate jx, but not to move them from appellate to original. Therefore, the court held that section 13 was unconstitutional and dismissed Marbury’s suit for lack of jx.
Marshall’s review of a Congressional act for constitutionality was under the premise that we have a written constitution, so the court’s role is to interpret it. However, anyone can read the constitution, so that argument is subject to question.
His next argument was that the constitution says that it is emphatically the province and duty of the judicial department to say what the law is, which is persuasive but also subject to criticism because it doesn’t obviously include the power to review acts of political branches.
His next argument was that the Supremacy Clause provides that the ‘Constitution and laws of the U.S, which shall be made in pursuance thereof, shall be the supreme law of the land.’ This means that if there is a conflict between a law and the constitution, the court decides which law governs the case. He argued that judges take an oath to uphold the constituion, which can be criticized because so do all federal employees. His final argument was that judicial review is necessary because legislature is not as restrained as courts by a written constitution.
Conclusion: judicial review is constitutionally mandated. The court could have done things in a different order, by simply dismissing the case for lack of jx without going into the whole analysis, but the court wanted to use it as a vehicle for the courts to rule on judicial review to retain some power.

II. Supreme Court Authority to Review State Court Judgments
A. Section 25 of the Judiciary Act gave the court authority to hear appeals from state courts involving questions of federal law. After state right’s agitation during and after the war of 1812, the court defended their authority.
B. Martin v. Hunter’s Lessee: Issue arose when Martin issued an ejectment action in VA court claiming that the title to land that VA confiscated from his ancestor during the Revolutionary War and later conveyed to Hunter should be given back to him under the treaty beyween the U.S. and Britain. The VA court of appeals rejected his claim, and he appealed to the Surpeme Court under the judiciary act section 25. The Supreme Court reversed, holding that the title belonged to Martin. On remand, the VA court declined to comply with the mandate on the grounds that section n25 was unconstitutional because VA was a sovereign state and their judgments were not subject to review under any other sovereignty. Martin appealed again to the Surpeme Court under section 25, and the court reversed VA and held section 25 as constitutional.
1. The court held that it had jurisdiction and authority to review all state acts under the constituion, laws and treaties of the U.S., which stemmed from the Supremacy clause and Article III. The Supremacy Clause of Art. IV indicates that the framers anticipated conflict and granted jx to the Sup. Ct. in Article III over all cases , which must include state court decisions.
The court is the final definitive interpreter of the constitution, which is necessary so that there aren’t a bunch of interpretations across states, which would be bad
This ruling does not depend on the validity of Marbury v. Madison- the union would end if the court didn’t have the power to review state court judgments.
C. Cohens v. VA: appeal from a conviction under a VA law banning the sale of lottery tickets. The VA court rejected D’s contention that because he was selling tickets for a federally authorized lottery, the prosecution was barred by the Supremacy Clause. The Martin ruling was extended to whether the court had the authority to review state judgments- the state was a party in this case, unlike in Martin. Marshall said that the Framers intended Supreme Court review of state court decision because state court judges could not always be trusted to honor the supremacy of federal law, because they are less isolated from influence and majority pressures

standards for resolving the controversy?
2. Does resolution of the controversy require and initial policy determination of a kind clearly for nonjudicial discretion?
3. Will judicial resolution express a lack of respect for coordinant branches of government?
4. Is there an unusual need for unquestioning adherence to a political decision already made?
5. Will different pronouncements by various departments cause embarrassment to the government?
C. Baker v. Carr: court considered whether it had the power to review the apportionment scheme of the TN general assembly. Voters claimed that the apportionment of the assembly violated equal protection rights because the districts hadn’t been redistributed since 1901 and since then the population had shifted. They asked the court to issue an injunction to direct elections at large or decree reapportionment by an application of the TN Constitution. They invoked no federal constitutional right other than the guarantee of a republican form of government under the Guaranty Clause.
1. Guaranty clause claims involve all the elements of a political question and are therefore nonjusticiable.
a. Who is the court to say if government is republican or not? that is political.
2. Types of political question: foreign relations/wars, validity of enactments, guarantee of a republican form of government.
3. The question in this case could be made under the Equal Protection clause, which is not a political question. That claim is not so enmeshed in the Guaranty Clause claim that they can’t separate the two and try it, so the court remanded.
4. Dissent: the judgment is wrong because you can’t make a political question non-political just by invoking a different article of the constitution.
D. Basis for the political question doctrine:
1. Functional view: court should consider such factors as difficulties in gaining judicial access to relevant information, need for uniformity of decisions, and wider responsibilities of the other branches of government
2. A cynical reading of the doctrine is that it provides shelter or escape for the court from difficult issues that might damage its prestige or legitimacy. Given that Marbury assumes that the court is the ultimate arbiter of the constitution, the court is shirking that responsibility when it will be unpopular for them to decide a certain way.
E. Nixon v. U.S.: a district judge was convicted of making false statements before a grand jury; the House held impeachment proceedings and the senate convicted him. Nixon said that the trial by senate was unconstitutional; the court held that the constitution said it was the sole authority of the legislative branch to conduct such hearings, and that impeachment is the only check on the judicial branch by legislature; judicial involvement would eliminate that purpose (textual argument). However, if senate’s actions are far beyond the scope of their constitutional authority and the impact on the republic is great, judiciary may respond.
1. However, if Nixon had claimed a 14th amendment violation, the answer would not be so clear, and an analysis of the question would be necessary.
F. Bush v. Gore: court held that recounts were conducted under non-uniform standards are therefore unconstitutional under equal protection act and 14th amendment, but also rule that a remedy was not possible by the constitutional deadline.