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Constitutional Law I
University of Kansas School of Law
McAllister, Stephen R.

I Constitutional Overview and Principles

II. Judicial Power to Enforce the Constitution

A. Judicial Review—Invalidation of Federal Laws
1. Marbury v. Madison, cb17
a. Three Questions:
i. Is there a right to the commission?
ii. Is there a remedy?
iii. Can the court grant the remedy?
b. Answer to the first two questions is yes.
c. Can the court grant the remedy?
i. No.
ii. Conflict between § 13 of the Judiciary Act and Article III of the Constitution.
iii. Constitution does not grant original jurisdiction in these cases and therefore the federal law is invalid.
d. Bottom line: Marshall establishes the right of the court to review acts of Congress and determine which acts are enforceable.
e. It is emphatically the province and duty of the judicial department to say what the law is and if the law is constitutional.

B. Judicial Review—Invalidation of State Laws

Martin v. Hunter’s Lessee

Have an old land grant invalidated by current state law.
The Court says that the state law is invalid and that the state must honor the treaty that the United States has entered—force of federal law.

i. Policy reason for the decision—uniformity throughout the states.

Bottom line:

i. The Court can review state court decisions as long as there is jurisdiction under Article III.
ii. There must be a federal issue for the court to review.
iii. Judicial review is the power to declare state laws unconstitutional.

C. Sources and Methods of Judicial Decisions


Document’s text only.
Scalia’s method


Framers intent through context.

Natural Law

Moral right and wrong


Use what’s available to make the best decision possible based on court’s opinion


What has the Court said on the subject previously. Cf. note 10 cb31.


How does this ruling change/effect the contours of law/society. What is the most just outcome?

D. Roper v. Simmons, is a good example of the types of approaches used to justify a judicial ruling. Here the court ruled that execution of persons who perso

rt will read the statute to avoid constitutional issues.
i. If Congress wants to limit the powers of the Court then it must do so clearly.
ii. If the intent of Congress as to the Constitution is not clear then the Court will read the statute to avoid the constitutional issue.
iii. Constitutional avoidance doctrine
d. Stands for the proposition that unless Congress makes its intent clear then the Court will avoid any such limitation.
3. Rasul v. Bush
a. Gitmo is U.S. territory.
b. The prisoners are granted the right to file a habeas action but are not granted the other rights that American citizens have.
c. Majority distinguished this case because these people are not citizens at war with the US, they have not been tried and convicted, they are in American territory.
BLR: Congress can grant jurisdiction for parties that are not ever in any jurisdiction (especially if they are American citizens.)