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Constitutional Law I
West Virginia University School of Law
Ashdown, Gerald G.

I.                   The Judicial Function in Constitutional Cases
a.       Chapter 1. The Nature and Sources of the Supreme Court’s Authority
                                                              i.      Judicial Review
1.      Marbury v. Madison
FACTS: Adams in his last days of office named Marbury, and others, to fill the position of justice of the peace. The commissions were signed by Adams and were to be delivered by Adams’ Secretary of State, John Marshall. Some had not been delivered before Adams’ presidency ended. The new commissions were not delivered by Jefferson’s new Secretary of State, James Madison.
PROCEDURAL HISTORY: Marbury moved the court for a writ of mandamus, which was basically an order for Madison to deliver the commissions to Marbury and the others.
ISSUE 1: Does Marbury have a right to the commission he demands?
RULE 1: When a commission has been signed by the president, the appointment is made and the commission is complete when the seal has been affixed by the secretary of state.
HOLDING 1: Yes. Marbury has a vested legal right to the commission.
ISSUE 2: If he has a right, and that right as been violated, do the laws provide a remedy?
RULE 2: Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty…the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
HOLDING 2: Yes. If one suffers an injury to a right protected by law, he is entitled to a remedy.
REASONING 2: Law is powerless if there is no remedy for its violation. Where one has legislatively imposed duties, is directed peremptorily to perform certain acts, when the rights of individuals are dependent on the performance of those acts, he cannot at his discretion “sport away” the vested rights of others.
ISSUE 3: Does the court have authority to give him the remedy he asks for?
REASONING 3: It depends on the nature of the writ and the power of the court. Nature of the writ: The writ must be directed to one whom it can be directed, and the person applying for it must be without any other remedy. This is not interfering with how the executive is operating, but regards a document and a duty that does not depend on executive discretion, but general principles of law. Power of the court: The Judiciary Act of 1789 imposes authority on Supreme Court to issue writs of mandamus…to any…persons holding office. The Constitution gives SC original jurisdiction in cases where ambassadors, public ministers, consuls or a state is a party. Court says this is restrictive because it proceeds with defining judicial power, and that supreme court has original jurisdiction as outlined in constitution, all other jurisdiction is appellate. Appellate jurisdiction revises and corrects, does not create a cause. A writ of mandamus does not revise or correct, so it is not appellate, its original. The statute is unconstitutional. When required to choose, court must choose constitution. Legislature cannot just alter principles of constitution.
CLASS DISCUSSION: 1) conflict between judiciary act and article 3; 2) constitution is binding on courts; 3) function of courts to decide.
2.      The Historical Setting of the Marbury Case
a.       The political environment
                                                                                                                                      i.      Federalist Efforts to Control the Judiciary – Marshall was Adam’s secretary of state and Adams nominated him CJ just before Jefferson was elected. Marshall served as both from February 4, 1801 to March 3, 1801, and then after until he was replaced by Madison, who was appointed by Jefferson. Adams, just before Jefferson became president, created 16 circuit court judgeships which he filled, and then created 42 justice of peace positions, which were signed and sealed, but not all were delivered. 
                                                                                                                                    ii.      The Republican Response – Jefferson treated them as null, repealed the Circuit Court Act of 1801, and abolished the June and December terms. The legislature then impeached a federalist district court judge, and impeached a supreme court judge, but he was not convicted.
b.      Were there alternative grounds of decision? – Some say Marshall’s coup, while others say Marshall could have done things differently – he could have avoided the question by saying commission didn’t vest until delivered, or found that it was a political question, or that cabinet members were not subject to writs of mandamus.
3.      The Legitimacy of Judicial Review
a.       Introduction – Constitution does not explicitly grant judicial review power asserted in Marbury.
b.      Historical antecedents – pre-constitutional convention theories include replacing traditional notions of legislative sovereignty by emphasis on popular sovereignty.
c.       The Constitutional Convention – some have concluded that framers intended to grant court power of judicial review.
d.      The Federalist Papers
                                                                                                                                      i.      Hamilton, Federalist No. 78 – saw court as least dangerous, no force or will, only judgment. Said legislative acts contrary to constitution were invalid. Cannot be constitutional judges of their own powers.
e.       Judicial review and the judicial role – debate between Hand and Wechsler: Hand says judicial review makes court a 3rd chamber of the legislature, should only be done when necessary to keep it rolling. Wechsler says judiciary has obligation to review acts of legislature in a neutral way.
f.       Judicial review and democracy – Criticism is that undemocratic – not elected. But others say how representative is government, really? Legislature and executive is no more than “we the people”, or “us” than the judiciary.
g.      Judicial review in other nations – some constitutions explic

                            iii.      legal questions that ought to be avoided to prevent judicial embarrassment (too controversial, could produce enforcement problems or other difficulties)
b.      The situation before Baker v. Carr – Colegrove was a similar redistricting case which the court declined to hear on the merits because Congress had exclusive authority to secure fair representation.
c.       Baker v. Carr
FACTS: Voters in Tennessee claimed that apportionment violated equal protection rights because they had not been reapportioned since 1901 even though there had been substantial growth and redistribution; could not redress through legislature because it was malapportioned.
PROCEDURAL HISTORY: Sought injunction against elections until reapportionment. Trial court denied.
ISSUE: Whether a challenge to an apportionment is a nonjusticiable political question.
RULE: It is the relationship between the judiciary and the coordinate branches of the federal government and not the federal judiciary’s relationship to the states which gives rise to political question. A political question occurs when there is 1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; 2) a lack of judicially discoverable and manageable standards for resolving it; 3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; 4) the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; 5) an unusual need for unquestioning adherence to a political decision already made; or 6) the potential for embarrassment from multifarious pronouncements by various departments on one question.
HOLDING: No. A challenge to an apportionment presents no nonjusticiable political question.
REASONING: Luther was nonjusticiable because there was commitment to other branches to determine which was lawful state government; the president recognized the charter as the lawful authority, the need for finality in the executive’s decision; and the lack of criteria by which a court could make a decision. There are none of the factors present in this case which makes it nonjusticiable.
Frankfurter: Says court has consistently found controversies which are nonjusticiable and include 1) cases concerning war or foreign affairs; 2) matters concerning the structure and organization of