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Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.

Chapter 1 – The Federal Judicial Power
I. Authority for Judicial Review
a. Marbury v. Madison (1803) p. 2
FACTS: In the waning days of his presidency, John Adams appointed, among others, William Marbury to the position of Federal judge. Marbury’s commission was not delivered before the new president, Thomas Jefferson, was inaugurated. Jefferson told his Secretary of State, James Madison, not to tender Marbury a commission, despite the order given by the previous commander-in-chief. Marbury, in turn, sought a writ of mandamus from the Supreme Court, directing Secretary Madison to deliver the commission. Marbury’s argument was that he had a vested right in the position, pursuant to President Adams’ order, and that the Judiciary Act granted the Supreme Court original jurisdiction over writs of mandamus such as his.
i. ISSUES: (1) Did П’s have a right to their commissions? (2) If so, had that right been violated? (3) If so, was a writ of mandamus the appropriate remedy for violation of that right?
1. BIG QUESTION: Whether the Supreme Court (“SupCt.”) has the power to review the constitutionality of this dispute. (i.e., what does Art III, §2, cl. 1 mean when it says “The Judicial Power shall extend to all cases arising under this Constitution?”)
2. HOLDING: The Court actually held that the portion of the Judiciary Act that gave them jurisdiction over this matter was unconstitutional because Congress cannot expand the original jurisdiction of the Court. See Art. II, §2, cl.2 (exclusive list of matters over which SupCt. has original jurisdiction).
a. Thus, in a sense, Chief Justice Marshall “punted.” He disposed of the case on jurisdictional grounds, without making a binding decision as to whether Marbury would get his judgeship, but still managed to establish the rule that the SupCt has the power to review the actions of the other branches of the government when the constitutionality of those actions is challenged. This was the real brilliance of Marshall’s opinion. The Court was faced with granting an order that could either be ignored or could cause a constitutional crisis between the Anti-Federalist Congress and the Federalist Supreme Court. Not to grant the order, however, would be a capitulation by the Judiciary.
ii. The FOUR themes of Marbury
1. The Constitution (“CXN”) is the “Supreme Law of the Land” à If there is a conflict between a Congressional statute and the CXN, the CXN must prevail.
a. “The Constitution is superior to any ordinary act of the legislature; the Constitution must govern the case to which they both apply.”
b. Rationale: Passing a law in Congress requires merely a majority, whereas amending the CXN requires 2/3 à CXN controls.
2. The SupCt is the final arbiter of the CXNà It is the Court’s job to state, at any given time, to interpret the laws enacted by Congress.
a. “It is emphatically the province and duty of the Judicial department to say what the law is.”
3. Art. III is the ceiling of the federal courts’ jurisdictionà Congress may not expand the original jurisdiction of the Supreme Court.
a. Art III, §2, cl. 2: “Courts have original jurisdiction in [1] cases affecting ambassadors or other public ministers and [2] those in which a State shall be a party.” Nowhere in there does it say anything about mandamus cases, and Congress cannot add such cases to that list.
4. Separation of Powers
a. Legislative vs. Executive vs. Judiciary
i. “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”
ii. “The province of the Court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion.”

b. Martin v. Hunter’s Lessee (1816) p. 9
FACTS: From 1779 to 1785, VA passed laws whereby the state confiscated all lands owned by foreigners. David Hunter was granted 800 acres of confiscated lands that had been willed to Denny Martin Fairfax, a British subject. Fairfax sued Hunter’s lessee (the guy living on the land at the time) for return of the land. On Fairfax’s death the suit was taken over by his heir, Martin. (Hence,

er than now, as was the technology and morality of the society.
2. The “four corners” approach to reading the CXN is dumb because it is but a single document, only a few pages long, which the drafters in no way purported would solve every problem by a simple reading of its text or by somehow ascertaining the intent of its authors.
iii. EXAMPLE: 2nd Amendment: “A well regulated militia, being necessary to the security of a free State, the rights of the people to keep and bear arms, shall not be infringed” WHAT DOES THIS MEAN? AND WHO SHOULD DECIDE WHAT IT MEANS, CONGRESS OR THE COURT?
1. The Arguments, in brief
a. Pro-gun (The “Originalist” perspective)
i. Any law that infringes one’s right to bear arms is presumptively unconstitutional.
ii. The drafters chose not to qualify this statement with respect to who should have the right to own a gun, it clearly says “the right of the people” so why should we now try to determine which “people” they meant?
iii. The amendment was premised on the idea that the government could rise up against the citizens and that, in such an event, the citizens should not be left defenseless. Since this is not impossible, even today, citizens should never be deprived of arms.
b. Anti-gun (The “Non-Originalist”)
i. The drafters DID qualify this statement, by mentioning it in the same breath as a “well-regulated militia.” Thus, the drafters meant, “the well-regulated militia, [as defenders of the people], shall have the right to bear arms.”
Given the checks and balances within our modern government, the likelihood of a modern president creating a dictatorial regime and running amok against the citizens is negligible.