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Constitutional Law I
University of Connecticut School of Law
Becker, Loftus E.

Chapter 2 Constitutional Review
It is the Supreme Court, not Congress, which has the authority and duty to review the constitutionality of statutes passed by Congress, and to invalidate the statute if it violates the Constitution.
Marbury v. Madison 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)
Rule: Established right to judicial review. Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction.
Relevant Law
U.S. Const. Art. III, § 2 Clause 2
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases [within the judicial power of the United States], 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.”
Judiciary Act of 1789, § 13
“The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts…and writs of mandamus…to any courts appointed, or persons holding office, under the authority of the United States.”
Facts: Before leaving office, Adams, a Federalist, appointed a bunch of Federalist judges. Although the commissions were signed by Adams, some of the justice-of-the-peace nominations (including Marbury’s) were left undelivered when Jefferson took office the next day. Jefferson, a Republican, refused to deliver Adam’s commissions. Marbury sued to order by writ of mandamus that his commission be delivered.
1. Does P have a right to the commission?
2. If P has a right, and that right has been violated, does the law afford him a remedy?
3. Is P entitled to the writ for which he applies? The Judiciary Act gives the SC the right to issue a mandamus, but this is outside the scope of the Constitution. So, does Article III give an exhaustive list for original jurisdiction or can Congress add to it?
a. This depends on:
i. The nature of the writ applied for
ii. The power of the Supreme Court
b. Note, if Marshall decided this question first (the question of whether the court has jurisdiction), the answer would be no and that would be the end of it. But he doesn’t decide this question first because then he wouldn’t be able to go on to talk about judicial review
4. What is the duty of the court when the Constitution and the law are in conflict?
1. Yes, P has a right to the commission.
a. The commission was signed by the President and the law gives the officer a right to hold office for five years. The appointment, as a matter of law, is not revocable.
b. But, the promise with this argument is that with personal property, you don’t actually have a right to it until it’s delivered to you.
c. Note that there’s a question as to whether he’s guaranteed to hold the position for five years. He could just be appointed for up to five years, in which case the President has the option to fire him after he’s appointed.

Yes, he has a right to recover damages

a. There was a duty assigned by law (to deliver the commission) and that duty was not performed. Therefore, the person whose rights were violated by the omission has the right to seek relief with the courts.

No, P is not entitled to the writ because the case is beyond the court’s jurisdiction.

i. Actually, the Judiciary Act doesn’t say specifically that it’s giving original jurisdiction. It only says you can issue writs of mandamus. And since this is in the same sentence as the mention of appellate jurisdiction (there’s a semicolon between them), the Act might mean that the Court is allowed to use writs of mandamus in cases of appellate jurisdiction. This reading makes a lot more sense because it means that Congress is not expanding SC’s original jurisdiction and thus the Act would still be constitutional. (of course, Marbury would have to refile in a lower court and appeal to the SC for a writ of mandamus).
ii. When given the choice between interpreting it as constitutional and an interpretation that is unconstitutional, he interprets the latter because it allows him to establish judicial review.
iii. This is strange- you think he would be eager to interpret it in the easiest way possible. But there are political ramifications for Marshall–he’d have to tell Jefferson what to do and Jefferson has already said he won’t enforce it. This would be a very bad precedent.
So the question to be decided is if Article III’s original jurisdiction list is exhaustive, or is Congress allowed to add to that list to give the Court further power?

· Irreducible minimum theory: Article III §2 says that the SC should have original jurisdiction in these specific cases, and “in all other cases” they should have appellate jurisdiction. But this doesn’t necessarily mean that the Congress can’t add on to what’s listed. (i.e., “do the dishes” doesn’t imply “don’t do the laundry” but “if you do nothing else, make sure you do the dishes.”)

· If Article III’s original jurisdiction is an exhaustive list, but Congress tries to modify it anyway, who wins that conflict, Congress or the Constitution? And, more importantly, who is supposed to decide who wins? In his answer to this last question, Marshall creates the notion of judicial review of congressional statutes.

The duty of the court is to decide whether a law acts within the bounds of the Constitution. If both the law and the constitution apply to a particular case, the court must determine whether the law or the constitution should be upheld, therefore granting the court judicial review.

Ultimate ruling: Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress can not pass laws that are contrary to the Constitution, and it is the role of the federal courts to interpret what the Constitution permits.

Can the S.Ct declare laws which are repugnant to the Constitution unconstitutional? (Yes):
A. Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement.
B. Judicial Duty:
a. It’s inherent to the judicial role to decide the constitutionality of the laws that it applies.
b. “It is emphatically the province and duty of the judicial department to say what the law is.”
c. The court, not legislature, must determine which of these conflicting rules governs the case, this is the very essence of judicial duty.
C. Either paramount or ordinary: Either the Constitution is paramount in that it overrules any law repugnant to it or it is ordinary in that it can be overruled by any legislative act
D. Purpose: what’s the purpose of our written constitution other than to have a set of laws to be followed
a. If an act is entirely void, however, in practice, completely obligatory. Then it would give legislature a practical and real omnipotence.
b. It thus reduced to nothing what we have deemed the greatest improvement on political institutions—a written constitution—would of itself be sufficient.
E. Written document: there’s a reason why framers chose to write certain provisions. Why would they write restrictions on their jurisdiction if they meant that it could be enlarged?
F. Judges take an oath of office and they would violate this oath if they enforced unconstitutional laws.
G. Supremacy Clause: Art VI § 2 – law of the land is “Constitution and laws made in pursuance thereof.” Marshall interprets “pursuance thereof” as meaning “law not repugnant to the Constitution”.
Judgment: Judiciary Act is repealed.
Chapter 1 Constitutional Law in Development: The Treatment of Children Born outside of Marriage
Constitutional question is

(1968) Louisiana p.16

State statute prevent an illegitimate children sought to recover for mother’s wrongful death.
Louisiana statute explained child/children meant only legitimate child.
Ct held distinction between legitimate and illegitimate children denied illegitimate children the equal protection of the laws.
“Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother . . . it is invidious to discriminate against the children when non action, conduct or demeanor of theirs is possibly relevant to the harm that was done the mother.”
Rule: relationship between mother and legitimate child and between mother and illegimate child. Mother’s wrongful death

Glona v. American Guarantee & Liability Ins. Co. 391 U.S. 73 (1968) Louisiana p.16

Mother brought a wrongful death suit for her illegitimate son in a car accident.
S.Ct declared Louisiana statute violated the equal protection clause by barring her wrongful death suit b/c the child was born out of wedlock.
Harlan’s dissent: this (who are entitled to sue for recovery) is inherently arbitrary choices , like children are ahead of parent for suit.
Levy involves two claims: pain and suffer, (for her mother) b/c parents always have to support their children, so when parents die, children need find some support.
Difference: in Levy, daughter seeks recovery for mother, and in Glona, mother seeks recovery for daughter. Child had absolutely no choice. Mother in Glona may have different choice. Statute is just as irrational as
Father and mother, we’re pretty confident who’s the mother, but at that time, w/o DNA test, it’s hard to tell who is father.

Stanley v. Illinois 405 U.S. 645 (1972) Illinois p.21

Custody of children, kids were taken away from the unmarried father (biological father) and taken into state custody when the mother died.
Under Illinois law, when mother died, if children are illegitimate, the custody is open to everyone instead to their father. Reason behind state statute is that suppose a young woman she is pregnant, but she doesn’t want abortion, she does not want to keep the child, sometimes, she may not know who the father is,
At this time, court changed judge again.
Ct held Illinois denies Stanley equal protection of the law b/c a man who has “sired and raised” children is constitutionally entitled to a hearing on his parental fitness before their children were taken into state custody.

Weber v. Aetna Casualty & Surety Co. 406 U.S. 164 (1972) Louisiana p.22

Illegitimate children received no workmen’s compensation benefits b/c the benefits were entirely exhausted by the amount of a tort settlement in which only legitimate children participated.
Louisiana statute denied equal recovery rights to unacknowledged illegitimate children.
Ct held Louisiana statute violated the Equal Protection Clause.
In this case, the situation is both legitimate and illegitimate exist. Louisiana did not say illegitimate can not get compensation, but simply b/c benefits were exhausted by legitimate children.

Gomez v. Perez 40