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Constitutional Law I
University of Illinois School of Law
Nowak, John E.

I. Origins of Judicial Review
a. Marbury v. Madison—The Setting of the Case
i. Marbury sues Secretary of State Madison for delivery of his commission; original action in the Supreme Court under jurisdiction asserted through § 13 of the Judiciary Act of 1789; seeking an order of mandamus to compel Madison to deliver the commission.
b. Marbury v. Madison—The Opinion of the Court
i. Marbury had a right to the judicial commission, but the Court would not enforce this right because the jurisdictional law under which he was suing was unconstitutional.
1. Does Marbury have a right to the commission? YES.
2. Do the laws provide a remedy for the deprivation of the right? Legal remedy required for a legal wrong for essence of civil liberty.
a. Unless the subject matter was political or otherwise committed to the discretion of the executive.
3. Can a mandamus be issued in an original action before the Supreme Court?
a. § 13 of the Judiciary Act of 1789 interpreted to authorize original actions for writs of mandamus to officers of the United States, and this violates Article III of the Constitution.
b. Congress can alter the appellate jurisdiction of the Court, but Article III intended to fix the original jurisdiction.
ii. Executive is subject to constitutional restraints that can be enforced by the judiciary.
1. “It is emphatically the province and duty of the judicial department to say what the law is.” [1. Constitution IS law. 2. Judiciary has the final responsibility to interpret that law.] a. 1 + 2 = Judicial Review
i. The Constitution binds all parts of the federal government
ii. That is enforceable by the Court in actions before it, and
iii. That the judiciary is charged with interpreting the Constitution in a unique manner so that its rulings are binding on all other departments of the government.
1. The first two are from Marbury, and the third is from McCulloch.
a. Must interpret and enforce in order to maintain its supremacy.
c. Notes on the Marbury Decision
i. Commentators argue that to the extent that the authority for judicial review is weak, it should be exercised most sparingly. [Bare assertions of authority?] 1. Today, Court should avoid ruling on a Constitutional issue when a case can be decided on a narrower ground. However, Justices feel free to decide rather than avoid it if important and the Court has jurisdiction.
d. Review of State Laws: The Early Cases
i. In 1810, Fletcher v. Peck was the first time that the Court invalidated a state law under the Constitution. Important for today, in 1816 Martin v. Hunter’s Lessee had the Court enforce its invalidation of state law on the constitutionality of state acts over the objections and contrary opinions of the state officials and judges.
e. State Court Review of State Laws
i. State courts must follow federal laws over inconsistent state acts.
ii. A difficult problem arises when state courts review state laws.
1. State courts must follow the Supreme Court’s rulings on the meaning of the Constitution of the United States or federal law, but it is free to interpret state laws or constitutions in any way that does not violate the principles of federal law.
2. State courts are always free to grant individuals more rights than those guaranteed by the Constitution provided that it does so on the basis of state law. The Constitution establishes minimum guarantees of rights.
II. Federal Jurisdiction
a. An Introduction to the Jurisdictional Framework of the Sup

le and the Power of Congress to Limit the Jurisdiction of Federal Courts
i. Some cite Ex parte McCardle (1868) to support a broad power of Congress to limit the jurisdiction of the lower courts and the Supreme Court.
ii. While the appellate jurisdiction of the Supreme Court is strictly speaking conferred by the Constitution … it is conferred with such exceptions and under such regulations as Congress shall make according to Article III, § 2, cl. 2.
1. However, McCardle noted the limited nature of the statutory withdrawal in that case.
2. Ex parte Yerger (1868) clarified by holding that writs of habeas corpus and certiorari could revise the decision of a circuit court because it had its other avenues of appeal to the Supreme Court.
a. If Congress were to remove all appellate avenues to the Supreme Court, Congress would not have the ability to use the power over jurisdiction to control the outcome of a case; it would just make the lower federal courts the final decision-makers.
3. The jurisdictional limitation in McCardle was neutral in that it applied to both the government and private parties.
iii. Some argue that there is also a power by Congress for “housekeeping” matters.
Congress may not use the power to restrict the federal courts’ jurisdiction in order to control the results of particular cases and achieve the result forbidden by a proper interpretation of the exceptions clause.