CON LAW OUTLINE
I. Role of the Judiciary
A. Federal Judicial Review:
Why a Constitution?
Functions:
Separation of Powers (SOP)
Federalism (C defines relationship between national & state power)
Individual Liberties
Unique Aspects:
Marbury v. Madison: US Sup Ct-1803
Facts:
P appointed to be Justice of the Peace for life by Adams as his term ended.
Jefferson takes office and D refuses to deliver the commission to P
Case began in the US Sup Ct.
Holding:
Sup Ct lacked jurisdiction to rule on this case
Congress acted unconstitutionally by giving the Sup Ct jurisdiction under the Judiciary Act of 1789.
Cardinal Rule: Federal Judges will NOT interpret the C if they don’t have to.
Why did Judge Marshall interpret the C in this case?
He wanted to establish Judicial Review.
“Marshall Highway”: Possible Outs:
1. He could have said that the commission doesn’t vest in Marbury unless it is delivered. But he didn’t say this. He said the commission vested when the documents were signed. He didn’t say that the delivery was necessary in order for the commission to have bested in him because he doesn’t want to back down. He wants to get to the constitutional question.
2. He could have read the Act as giving the Sup Ct Appellate Jurisdiction
3. He could have said it was a political question, NOT a legal duty. But again, he wanted it to continue.
The Executive Realm is split in half. Half of it is political/discretionary that is not subject to judicial review. The other half is a legal duty that is subject to judicial review.
4. He could have interpreted the exceptions clause of Art II § 2 to allow mandamus in original jurisdiction., but he didn’t.
Art III § 2 spells out the Federal Court’s subject matter jurisdiction. The claim must be within this section to be in Federal Jurisidction.
Art II §2 à Sup Ct/Ct of Appeals/ Dis Cts à Sup Ct
The Sup Ct hears cases regarding ambassadors, where the state is a party, or in any of the other listed situations.
Mandamus is not a case regarding ambassadors or the state being a party, so technically they didn’t have to proceed.
Marshall à Mandamu
ch sphere?
Model 3: Judiciary (Sup Ct)
+ 1 unified voice interpreting the C as a whole
– no one to check them
+ no bias/influence from others
What to consider when Interpreting the C:
Text
Can society handle the interpretation?
Prior cases
Framer’s intent
Historical context (tradition)
Legislative history)
What are States doing?
Judge’s own views (Marbury v. Madison)
Modern Context (vs. 4,5,6
Originalist: interpretation should be confined to the clearly implicit norms stated in the written C
Nonoriginalist: Courts have substantial discretion in interpreting the C. Believe that the C evolves by interpretation as well as amendment to meet the needs/norms of an evolving society.
Continuum: Know where your judge is on the continuum
Originalist (1,4,5,6) ß—————————————– à Nonoriginalist (1,2,3,4,7,8,9)
