Select Page

Constitutional Law I
University of Illinois School of Law
Meyer, David D.

My BIG FAT Constitutional Law Outline
Professor: Meyer            Term: Fall 2007                  Book: Chemerinsky 2nd Ed.
The Authority for Judicial Review
–          The power of the courts to review legislation to determine whether it is consistent with the Constitution
o        Figuring out broadness of review and deference to findings
o        It’s done to protect minority interests
–          Marbury v. Madison
o        Established the doctrine of Judicial Review: The Supreme Court is the ultimate interpreter of the Constitution for the coordinate branches of government
o        The Judiciary Act of 1789 authorized the Supreme Court to issue writes of mandamus (orders to compel officials to perform a duty) to persons holding office under U.S. authority. This was at odds with Article 3, section 2 of the Constitution, which said the Supreme Court was only granted jurisdiction in certain types of cases. The issue of a writ of mandamus in this situation fell outside of Aritcle 3.
o        Marshall held that Section 13 of the Judiciary Act of 1789 was unconstitutional because it sought to confer on the Supreme Court original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction. Where a statute violated the Constitution, the courts had to apply the Constitution as paramount law superseding inconsistent statutes
o        2 problems with the Marshall opinion:
§         Marshall shouldn’t have heard the case in the first place (not proper jurisdiction)
·         In constitution the Supreme Ct has appellate jurisdiction except for a few instances. 
·         The court should have said that it did not have jurisdiction to hear the case à Instead the court looks at the merits first rather than jurisdiction
·         Also if you can avoid finding an act of Congress unconstitutional you avoid it. 
§         If you can avoid constitutional issues then avoid them à Marshall went ahead even though he could have avoided it.
Facts: Marbury was a justices-of-the-peace whom President Adams, on his last day in office, appointed for the District of Columbia. Although Acting Secretary of State Marshall sealed the commissions, several (including Marbury’s) were not delivered on time. Jefferson, President Adams’ successor, ordered Madison, the new Secretary of State, not to deliver the commissions. Marbury argued that (a) he and the other appointees were entitled to the commissions and (b) Madison’s failure to deliver the commissions entitled the appointees to a writ of mandamus.                      
Issue: Does the Supreme Court have the right to review acts of Congress and decide their constitutionality?                          
Rule: (Marshall, C.J.) Implicitly, Article VI, § 2 of the Constitution gives the Supreme Court the authority to review acts of Congress and determine their constitutionality.                                          
Note: As a result of this rule, the Court denied the requested writ of mandamus. Although generally authorized by the Judiciary Act of 1789, such a writ could not be granted because the Court lacked original jurisdiction over this type of proceeding. The provisions of the Judiciary Act that expanded the Court’s original jurisdiction beyond the scope of Article III, and under which Marbury sought the writ, were deemed unconstitutional.
Legitimacy of Judicial Review
Argument against judicial review is that it is countermajoritarian à 9 people shouldn’t determine the will of the people, Congress should because they represent the people. 
Argument FOR judicial review:
Rationale FOR judicial review is that you need a final decision and Supreme Court can make a final decision and is the least powerful branch à don’t have power of the purse nor power to enforce law.
Also letting the power of Congress being able to be interpreted by Congress itself is giving into the tyranny of majority à checks and balances.
Framer intent is that judicial review was implied to protect the minority (Federalist papers). 
Provides a forum for the disconnected, sort of argument that keeps the conversation going rather than inciting rebellion. 
Judicial review gives judicial validation, gives respect to the legislature. 
–          Authority for Judicial Review of State Judgments
o        Article VI establishes that state court judges must follow the U.S. Constitution, even when the state laws conflict with it
o        The Supreme Court can only review a state court’s decision under the Court’s appellate jurisdiction.
§         Article III Section 2 states that the SC has appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make
§         Limited to federal questions decided in state courts
–          Martin v. Hunter’s Lessee
o        Supreme Court’s functions:
§         ensure supremacy of federal law (Article VI § 2 g Supremacy Clause) à If the supremacy clause was to mean anything then they should be able to review state decisions involving federal law. 
§         ensure uniformity of interpretation of the Constitution à If State courts have final say in interpreting federal law and the Constitution, then uniformity may not occur
o        Court states that it does have the authority to review State Court judgments BUT State court is the FINAL arbiter of STATE law.
Facts:   D, a British citizen, claimed title to a parcel of land in Virginia, which he obtained through a familial will. P claimed the land under state laws that confiscated the property of British citizens.   D suppor

ess withdraw certain cases from the Supreme Court’s appellate jurisdiction by rescinding a statute that initially granted such jurisdiction?
Rule: (Chase, C.J.) The appellate jurisdiction of the Supreme Court is conferred by the Constitution but with such exceptions and under such regulations as Congress shall make. Congress may therefore pass and rescind a statute altering the scope of the Supreme Court’s appellate jurisdiction.
Checks on the Judiciary
Impeachment process by Congress.
Need executive to enforce court decisions.
Amendments to the Constitution
Article III, § 2, Clause 2 – Although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the power to make exceptions to that appellate jurisdiction, not much case law (just Ex Parte McCardle) because it rarely happens but things are clear:
Can’t use power to dictate cases (in this case can’t appeal)
Congress cannot eliminate the Supreme Court’s subject matter jurisdiction
Can’t restrict jurisdiction
Can’t say that court will only hear appeals from white people
Two recent issues for removing appeals – abortion and flag burning
If someone appeals one of these then the responding party says that the Supreme Court does not have the right to hear the case on appeal à the appellant would then say restricting the right to review is unconstitutional. 
Congress has power to restrict jurisdiction of lower courts because it didn’t have to set up lower courts in the first place. 
–          Ex Parte McCardle:
·         McCardle requests a writ of Habeas Corpus
o        Writ of Habeas Corpus –   A writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal
–          Separation of Powers as a Limit on Congress’s Authority
o        United States. V. Klein establishes limits imposed on Congress’s ability to control or restrict Supreme Court jurisdiction
–          United States v. Klein
o        Although congress can alter the scope of that appellate jurisdiction, it may not prescribe the rules by which the Court arrives at its decisions
o        Recognized some limits to Congress’s power to restrict jurisdiction of the Court