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Constitutional Law I
University of Iowa School of Law
Buss, William


Constitution Article III: Not the only Article that talks about the power of the CT – look for other
Section 1:

Sec. 1: The judicial Power of the U.S., shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their offices during good behavior, and shall at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. (where judicial power is listed and congressional power to create lower federal courts)
The Madisonian Compromise = those that wanted lower federal judges to be created by enumeration in the constitution vs. those that wanted NO lower federal courts; Madisonian Compromise was that federal courts were to be established by Congress if they were necessary
While Congress can create courts they see fit, once created, those CTs are vested with judicial power and are protected by continuation and service for life.

Section 2: Jurisdiction is positive and mandatory – not subject to Congressional change

Establishes federal jurisdiction – if it’s not in this clause, federal jurisdiction is not granted
USSCT’s jurisdiction because the appointment was a right established by the law of the United States

· Sec 2 cl. 1The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the U.S., and treaties made, or which shall be made, under their authority;
o affecting ambassadors, other public ministers and consuls;
o of admiralty and maritime jurisdiction;
o when the U.S. is a party;
o between two or more States;
o –between a State and citizens of another state (changed in 11th Amend., gave States sovereign immunity)
o –between citizens of the same state claiming lands under grants of different states and
o between a State or the citizens thereof and foreign states, citizens or subjects (changed in 11th Amend., gave States sovereign immunity)

Section 2: Clause 2

Establishes ORIGINAL SC jurisdiction in cases with Ministers and Consuls and between states
Establishes APPELLATE jurisdiction in all other cases mentioned in Section 2: Clause 1

“With such exceptions as Congress shall make” gives Congress the power to change jurisdiction – Ignored by Marshall in Marbury

IF interpretation is that Congress has the power to reallocate jurisdictions then Congress would be able to give the SC original jurisdiction in Marbury v. Madison
Congress may grant lower courts jurisdiction over cases that may then come to the SC on review by appeal. But, Congress cannot ADD to the SC’s original jurisdiction.


Judicial Act of 1789

Gives SC original and exclusive jurisdiction in suits brought against Ambassadors, and original, but NOT exclusive jurisdiction in suits brought by Ambassadors

Ambassadors because it goes to the core of a country and SCT should handle it

Constitutional Questions:

There is an assumption that Congress doesn’t want to act contrary to the Constitution so the Court avoids the question by choosing statutory interpretations that don’t raise a constitutional issue.

Marbury v. Madison; SC 1803; pg. 1

P = Marbury; appointed as a judge by outgoing Federalist congressional act; seeks writ of mandamus instructing Madison/executive branch to deliver appointments
D = James Madison; incoming secretary of state that stopped delivery of P’s appointment after it had been signed, but before it had been delivered (Republican)
Basis of Federal Jurisdiction was Art. III Sec 2 Clause 1 – “arising under law of US”. – Organic act gives president power to name justices of the peace for DC.
Statute conflicts with Art. III because Art. III Sec 2, Cl 2 only allows appellate reviews of issues of mandamus – Attempts to add SCT Original Jurisdiction which is unconstitutional.

Issue: Does the Supreme Court have the power to deem an act of congress unconstitutional?/ Does the SC have the power to order the executive committee to deliver the appointment via writ of mandamus

Holding: For Madison; the Judiciary Act of 1789 granted the SC the power to give writ of mandamus was unconstitutional extension of power by Congress to the CT.

Marshall reads statute to mean that the statute allows SC to issue writ of mandamus on ORIGINAL jurisdiction because any writ would originate w/in the SCT and thus not be in SCT’s APPELLATE jurisdiction
Marshall ignores exceptions and regulations clause of Art. III, Sec. 2, Cl. 2
CT does decide that Marbury was entitled to this appointment BUT can’t grant writ of mandamus against Secretary of State/Executive Branch

RULE: When the CT is interpreting a statute, which is ambiguous, and about which one interpretation would be unconstitutional and the other would not be, the CT errs on the side of interpreting the statute in a way that avoids the constitutional question.
· Marshall did not do that because he DIDN’T WANT TO – should have interpreted it as constitutional
· If Marshall had interpreted it a different way, Marbury would have been in the wrong CT due to jurisdiction and a lack of remedy
· Marshall could have avoided the Constitutional Question in 2 ways:
o Could have interpreted the statute to conform to C as appellate J, not adding to Orig. J
o Could have said once it was delivered it was valid

Congress can’t add to original jurisdiction of SCT (Not the way it is today)

1. Does Marb have a right to his commission?
2. Does he have a remedy?
3. Is a mandamus the right remedy?
4. From this court?

1. Yes
2. Yes, it would be stupid to have rights without remedy.
3. Yes.
4. No.

A. Marshall uses three examples to illustrate the place that court is forced into when laws are developed in conflict with the constitution – There are times when Congress may not have seen a fact pattern:

The SC judges take an oath to support the constitution – Framer’s Intent – WEAK ARG.

Weak because all Congress and elected officials do the same

CT’s must interpret the CONSTITUTION: Article III, Sec. 2, Cl. 1: indicates that the judicial power of the U.S. is extended to all cases arising under the C. It implies that the SC should look into the C to do their jobs. Absurd to think the drafters indicate they should look at C only sometimes and not look and the C when a federal law is in question. – STRONG ARG.

Constitution is mentioned first when declaring the supreme law of the land
It is the province and duty of the judicial to say what the law is; essence of judicial duty. Congress’s duty to write the law, CT to interpret the law
CT deals with Constitution more often in their role,

If the Court didn’t have this power, Congress would have it and they would be omnipotent

Alexander Hamilton: CT is the least dangerous branch vs. President (sword) and Congress (purse). Constitution gives independence of life tenure, etc.
Better conditions for making decisions:

Better physical conditions than demanding schedule of Congress
Better Social Conditions: no lobbying, socializing, compromising
No Political Nature: C law is different than other law – end up making policy

B. Framer’s Intent
· Constitutional convention contemplated having the president and SC together have the veto power. But this was rejected due to the fear of the power created by creating an association between the executive and judicial branches. – So imply each have pwr. to review legis. independently.
· Judicial Review strongly supported by the Federalist Papers for the purpose of restraining legislative power and to serve as an intermediate body between Congress and the people.

D. Counter-Majoritarian Difficulty: There is something inherently undemocratic in the idea that a non-representative minority can overrule the will of the political majority, i.e. Judicial Review

The Court often remedies this by making a decision in deference of another branch


Legitimacy considers where judical review power is justified, lawful, founded in Const.
Constitution does NOT explicitly grant power taken in Marbury – controversial

Historical roots of judicial review found in British cases and early practice of the Privy Council over colonial cts in prior to independence. The practice of declaring legislation void through the courts was rare though.
Idealogically judicial review became more popular with the view that the will of the people as expressed in the C was superior to any legislative act. Also assures limited government power.
Practicality: Judge Hand found judicial review necessary for practicality – to keep government from struggling. It continues to thrive b/c no practical alternative.


Cooper v. Aaron, USSCT 1958 pg. 18: (Desegregation in Alabama)

Rule: Marb exemplifies that SCT has judicial exclusiveness in interpreting C

Dickerson: (Attempt to alter Miranda Rights)

Congress CANNOT pass legislation that violates previous SCT rulings or C interpret.

o Scalia’s dissent disagrees b/c statute itself was C, but SC ruling unC according to their interpretation. So SC not only taking power to prevent violations of C but also accepting pwr. to expand C. Legislature should also figure out what voluntary meant in terms of Miranda warnings in addition to the court. Once you get farther away from the words of the C, shouldn’t be the court’s sole jurisdiction.
o Congress may make statutes concerning rules of evidence and procedure (as long as they do not interfere w/ C like the Miranda case) but cannot make a statute that overrules the SC’s interpretation of the C.
o Each branch is still allowed to take their own interpretations of the C into account when considering C issues in their own duties.

Authority v. Legitimacy: The connection between legitimacy and authority of judicial review: If you believe the C explicitly gives judicial review power then you think it is absolute but if you think it is a practical m

at Senate can set rules and do this free from judicial entanglement
Also judicial review of procedures used by Senate during impeachment would “expose the political life of the country to months or perhaps years of chaos”, especially if President was being impeached.

Powell v. McCormack p55 – The decision as to whether a member satisfied qualifications was placed in the House, but the decision as to what these qualifications consisted of was not – only allowed to judge on constitutionally defined criteria of age, residence in state, citizenship. CT held for Powell.

Demonstrates a textually demonstrable commitment of duty to congress
Congress was given the power to decide if the qualifications were met, but NOT to add qualify.

Coleman v. Miller; pg. 34 (Amending Process)
1. Whether a state can ratify a constitutional amendment that it had previously rejected?
2. Whether a proposed amendment lapses if not ratified within reasonable time?

Holding: These are both nonjusticiable questions because:

The control of Constitutional amendments is in control of the Congress (First strand – textually demonstrable commitment)
This is a lack of judicially discoverable and manageable standard (Second strand) – can’t come up with time (but could they if they really wanted to?)

Reasons: Article V: Grants Congress “exclusive power over the amending process” and Congress is under no duty to accept the pronouncements upon that exclusive power by the Court.

Pacific States Telephone v. Oregon 1912; pg. 37
Issue: Can the CT rule on what type of government has been established in a state?
Luther v. Borden– under Art IV sect. 4 it is up to Congress to “decide what government is the established one in a state”
Holding: The question whether the US shall guarantee each state a “republican” government; and if OR was violating that due to the initiative referendum legislative model was a nonjusticiable question.
Reason: It is not the CT’s place to step in and demand that a state establish it’s right to exist as a state. (CT relies on strand one – textually demonstrable commitment – says it is Congress’s right)

Baker v. Carr 1962
Not guarantee clause, because it doesn’t give us a test. However, this case is an equal protection clause case. Court found no standards, just reversed and remanded. Later, the court espoused one man one vote.
Dissent: This is a guarantee clause in EPC clothing, apportionment has been done without one man one vote, like 2 senators per state, regardless of population. This should be left to the legislature.

Goldwater v. Carter 1979; pg. 39
Issue: Does the executive have the power to terminate a treaty without Congressional approval?
Holding: The question is nonjusticiable due to a direct conflict between the Congress and the President and the fact that the termination process may be different for different treaties and this is a political question in nature. (Prudential Strand – too hot an issue to handle)
· The constitution implicates both Pres and Congress to make this decision so CT will step away and let them make this decision. Foreign relations also enhance the likelihood that the CT will treat it as a “political question”.
· Brennan: Given the fact that Constitution gives the president the power which representatives of a foreign gov. will be recognized, he will often have ancillary power to deal with treaties – derived from Art II section 3: “He shall receive ambassadors and public ministers” Decides on Merits

Bush v. The Gorical p. 59
Counties counting differently is a violation of EPC, but won’t ever apply in the future
Constitutional delegation on electoral college allows them to overrule FL SCT.


Congress has 5 main ways to deal with dissatisfaction with Judicial Review:
1. Amend the Constitution – Art V
a. 4 Con. Amendments arose from SC decisions – reaction from Cong. To overturn SCT
§ 11th Amendment – states have sovereign immunity from being sued
§ 14th Amendment – slavery/ citizenship
§ 16th Amendment – gives Congress power to collect income tax
§ 26th Amendment – Age of 18 to vote
2. Impeachment of Justices – but only for treason bribery and other high crimes – never done