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


I. Constitutional Basis

II. Judicial Review of Federal Actions

Marbury v. Madison (1803) — horizontal power (judicial v. legislative)

Justice: John Marshall

Facts: In an effort to entrench a Federalist Judiciary toward the end of his term (lame duck period), John Adams appointed 42 justices of the peace in accordance with the Organic Act, newly passed by a lame duck Federalist Congress. Marbury was a JOP whose commission did not get delivered during Adams’ term. When Jefferson, an Anti-Federalist took office, he compelled his SOS, James Madison to withhold the commission.

Procedural History: Filed by Marbury in SC; seeks writ of mandamus; New President and Congress try to postpone this decision by shutting down SC

Preliminary Issues: Court noted that Marbury was entitled to the commission and thus deserved a remedy. The main issue was whether Marbury could get the remedy he asked for. This depended on if mandamus was the correct remedy (which passed muster) and the power of the court to issue it. The Constitution and the Judiciary Act are inconsistent because the Act adds power that the Constitution does not grant. If the Act is constitutional, Marbury is entitled to relief. If not, the Court has no original jurisdiction over the case and he is not:

Judiciary Act of 1789 “Court shall have the power to issue writs of mandamus to persons holding office under the authority of the US”;
Art. III of Constitution “Court shall have original jurisdiction in three cases, in all other cases only appellate jurisdiction”

Issue: Can Congress expand the original jurisdiction of the Supreme Court (Is Judiciary Act constitutional?)

Rule: An act of the legislature which is inconsistent with the constitution is void and does not bind the courts.

Holding: No (4-0). Mandamus not available. Madison loses and does not get the commission, but his party gets benefit of the decision: Clearly establishes “judicial review,” that acts of Congress can be declared unconstitutional by Congress.

Rationale: Anything not expressly granted means the court does not have it (negative inference). Therefore, the Constitution is Supreme and cannot be overridden by Congress: “superior paramount law, unchangable by ordinary means.” Points to oath to support Constitution, and supremacy clause to bolster the argument. Therefore, it is the duty of the courts to say what the law is.

Notes: Fallon — court’s orders are not self-executing (rely on respect); Congress can control appellate j/s of SC (Art. III) — could Congress eliminate it? Probably not because court would have to decide it; political branches have control over budget and membership of judicial branch: 1804 — Samuel Chase impeached and Senate acquitted (no more impeached since). Presidents do a lot of interpreting as well. Bickell — judicial review and democracy are basically at odds with eachother.

III. Judicial Review of State Actions

Martin v. Hunter’s Lessee (1816) – vertical power (SC vs. federal issues in state courts)

Justice: Joseph Story

Facts: Lord Fairfax willed “Northern Neck” to his nephe

power might be abused
-there has to be a final arbiter somewhere
-state interests without oversight may lead to the irregular administration of justice

Cohens v Virgina (1821) — SC can hear federal cases in civil and criminal contexts

Michagin v. Long (1983) — SC v. state laws

Justice: O’Connor

Facts: Long was convicted of possession after the cops Terry searched his car and found weed in the trunk and inside.

Procedural history: Circuit court convicted b/c they denied a motion to suppress; MI SC reversed and weed suppressed as ‘fruit’

Issue: SC has no power to interpret state law. What is test to distinguish whether state and federal grounds were utilized in a case?

Old Test: SC does not have jurisdiction over cases “where a non-federal ground independently and adequately supports the judgment”

New Test: The burden is on the state courts to give a plain statement in their opinion that the decision is based on “bona fide separate, adequate, and independent grounds” — then the SC will not review it. If they do not and it is unclear whether there is an adequate and independent state ground, it will be assumed that federal grounds were necessary and there will be SC jurisdiction.

Holding (6-3): Reversed and remanded.