1) Judicial Review
a) How constitution was formed:
i) First, Under the Articles of Federation, could only request dist. from states, no power over interstate trade, no taxing power, no serious executive (Congressional comm.) no federal court system to speak of, only disputes between states in courts
b) Were lots of interstate conflict with trade and state’s legislated in ways which discriminated against out of state, need to make a more international system, fair amount of imposition on out of state creditors or landowners and were subject to state court proceedings which were sometimes discriminatory
c) Need for a federal court system and it was important in both of trades and wealth that there be confidence in the executive and federal government which led to development of new Constitution, centralized to Government, stronger executive power, with Congress and Court system
i) Separation of powers and division between federal and state Governments
ii) Giving of Federal legislative control over power of congress to give them diversity jurisdiction and matters dealing with federal law, and under Article 1 section 8 other powers
iii) But there was the implicit assumption that the remainder of powers would remain with the states (10th Amendment) and anti-federalist (who opposed the const) assured the federal government would not take over state government, but if they had seen what happened over the next years they were justified because it became much more a central government
d.) Framework of Const:
i.) Article 1: Legislative power of Congress, Art II, executive power, Art III, judicial power, Art IV, a number of provisions and privileges and immunities, Art V, amendments, and Art VI,Supremacy Clause (Const laws and laws passed to Const are supreme law of land)
ii.) First 10 Amendments the Bill of Rights: Look at it as a framework, enumerated limited power to federal government, Art I, section 8. Separation of powers between executive, leg, and jud.
Marbury v. Madison:
a.) Big Question whether Supreme Court has power to declare act of congress unconstitutional, whether void, nothing in constitutional that says they can invalidate another act from a different branch
a. Supreme Court and federal courts must have authority to declare acts of legislature, state government that do not comply with constitution and the supreme court should have power to make the law unconstitutional and that power is judicial review
b. No place in constitution, where you have constitution paramount law of land the US courts shall have under all cases under Constitution should make the ruling unconstitutional.
b.) Stands for more: Article section 13 of Jud Act of 1789 was not compatible with Art 3, section 2 were not congruent: The only areas which the Supreme Court has original jurisdiction, ambassadors, public ministers and between states… Pet for Writ of M
f principles that a controversy involves non-justicialble political question where there is a
1. Textually demonstrably commitment to a particular department either Congress or executive or 2. There is a lack of judicially discoverable or manageable standards for resolving it and the court must first interpret the text in question and what extent it is committed to political branch
iii.) Here looked at Art I, and looked at word “try” has broader meaning then limited view of P
iv.) Textually demonstrable commitment to a political branch and a lack of standards to what the word “try” meant and therefore the court made determination that it was a political question, fell in it and was out of court.
3) Case or Controversy
i.) First Art 3, justiciable power to all cases and controversies and address only to injury to the plaintiff
a.) Must be injury to plaintiff
b) P must suffer some threatened or actual injury form action and a generalized grievance from all citizens will not be enough, must serve all legal rights and show actual or imminently threatened injury otherwise solving policy issues which should be dealt with