Select Page

Constitutional Law I
University of Cincinnati School of Law
Lockwood, Bert B.

My Con Law Outline
-The power of the court to strike down act of the legislative branch, executive branch, or the states because they are unconstitutional
–          Uniquely American not part of the British tradition, parliament is supreme.
–          Marshall devises this concept from Aricle III § 2:
A. Marbury v. Madison: Supreme Court 1803; CJ Marshall
–          FACTS: (Struggle between Adams Federalists and Jefferson’s Republicans. Marshall supported Adams). Marshall was Secretary of State under Adams, and then appointed CJ of Supreme Court.    Congress enacts the Circuit Court act, creates new judgeships and enlarges the scope of federal jurisdiction. Congress then creates 42 new justices of the peace for DC, approved by president. Marbury , P, is appointed a just of the peace. For commission to “vest” the Secretary of State, Marshall, had to place the seal of the US on the cominssion (did so). The commissions were not delivered to their recipients before Adam’s term of office endend. Jefferson is not president, and Madison is SOS. Madison refuses to deliver Marbury’s commission. Also, the federalists change the court’s callender so no cases are head for a year. This case was not heard until 2 years after it defeloped. Marbury is sueing Madison for a writ of mandamust to force Madison to deliver the appointments.
–          ISSUE:
1.       Does Marbury have a right to the commission
2.       Is there a remedy available
3.       Can the court issue the Writ of Mandamus
–          HOLDING
1.       Yes, the commission was signed by president, and sealed by SOS: the seal vested (created) Marbury’s right.
2.       Yes, Marshal distinguishes between Ministerial and Discresionary acts, Court can order SOS to perform ministerial acts
3.       NO, Judicial act of 1789 § 13 where congress grants the court to order the writ is unconstitutional
–          Outcome: Marshall views ordering the writ as a delicate issue, b/c the Supreme Court would be ordering the executive. HOWEVEr, doesn’t seem to mind the court overruling an act of congress.
–          The genius of Marshall: He basically used this case to establish the Supreme Court as a force to be reckoned with (until now it was thought of as the least powerful branch, the architect who designed D.C. even forgot to give the Supreme Court a building). In this case, he said the court had no power to make a decision. But, that showed that the court did have a greater power – judicial review – the power to declare an act of Congress unconstitutional. Marshall knew that Jefferson would not obey an order to grant Marbury his judgeship, and when Jefferson disobeyed, the court had no power to enforce the order. But, this way, Marshall’s decision required no action. It just stood on its own and therefore established the Supreme Court’s power and no other branch could do anything about it. Just for good measure, he wrote all the dicta about what Jefferson did so that Jefferson would get the message that his acts were wrong. Since Jefferson “won” he wasn’t going to contest Marshall’s decision.
–          Holding 2: The holding of this case is usually thought of as just establishing judicial review. However, Bert says that it was intentionally ambiguous and something like this: when the Congress attempts to alter the power given to the judicial branch in a manner that the judicial branch finds unconstitutional the judicial branch can declare that order void. (A more narrow interpretation.
–          Marshall’s interpretation of Article 3 and Section 13 of the Judiciary Act: Bert says that Marshall was doing selective reading of this section and ignored the word “appellate” (see page 19). He probably could have just dismissed Marbury vs. Madison because it was in the wrong court, but he took it as an opportunity to do more. Also Article 3 of the Constitution seems to indicate that Congress can make exceptions as it sees fit when it comes to the jurisdictional powers of the Supreme Court. Marshall could have interpreted this to mean the Judiciary Act was Constitutional too. NOTE   Congress vested right of writs of man to judiciary cases of original jurisdiction. (Actually occurs in sentence dealing with appellate jurisdiction) A question of whether that which is not specifically addressed in Con is ok? It is not, and so voids any legislative act that is contrary to i.e. Judiciary Act Sec. 13 specifically gives judiciary right to issue mandamus. 
–          NOTE: Congress did not assign original jurisdiction to judiciary in this case, so court cannot act upon. Does not cite “with such exceptions as Congress shall make” which could make legislation fit. “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.”
NOTE: Basis for judicial Review
Textual Basis of judicial review
Art II S 2: extends judicial power to all cases
Art VI: states the supremacy of the constitution
Art. III: some cases should go through state courts?
Structural basis of judicial reviews
Hamilton’s 78: the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents
At the heart of the question is whether judiciary is a non-democratic force.
Historical Basis
Widely held that is right of SC and solidified by Federalist Papers
Not until 1840’s that Court would assert power to direct and executive officer to do his duty, not until passage of the Administrative Procedure Act that writs of mandamus become routine
NOTE: Judicial review can provide legitimacy to gov’t action by giving court’s stamp of constitutional

on of the 14th amendment), this gives the court subject matter jurisdiction, also violation of Civil Rights Act. The court defines equal protection under the 14th amendment as one person one vote (novel idea for the time). State action under the constitution/or in violation of the constitution is not a political question.
Brennan’s Factors for political questions:
A textually demonstrable constitutional commitment of the issue to another political department (separation of powers issues)
a.       Presidential pardons, impeachment, Foreign affairs
A lack of judicially discoverable and manageable standards for resolving it.
Under lying theory of 1 person – 1 vote
The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.
Court does not let States off the hook for political discretions whereas it would in presidential pardons
An unusual need for unquestioning adherence to a political decision already made.
The potentiality of embarrassment from multifarious pronouncement bys various departments on one question.
Clark’s concurrence: 
You should be able to change things through the political process, but here the Tennessee voters were being denied an opportunity to vote. Their only choice was to go to the courts and that’s why the courts should help in this situation. 
Frankfurter’s dissent: 
Precedent requires that the court does not decide these types of cases. TN will not obey the court and the court has no enforcement power so it will lose respect. The political system was meant for this to be fixed by elections or legislation not court
NOTE: Just because it is a political case doesn’t mean it is a political question. Some examples of political questions: foreign relations, deciding when wars start and end, validity of enactments (determining how long a proposed amendment to the Constitution remained open, Coleman v. Miller.
NOTE: Holmes: 14th Ammendment: “last resort of lawyers
                -Since Warren Court, “the second constitution”
NOTE: court also addressed state districting in: Reynolds v. Siggs (one person one vote in NY) and Gomillion v. Lightfoot (gerrymandering case)
NOTE: Court is reluctant to step into battles between congress and the president: usually involves senators and reps not in the majority.