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

Constitutional Law I – Spring 2004


Constitutional Law necessarily involves interpretation—interpretation embraces both “informal practices and historical accommodations.”
Overriding principles to guide interpretation:
– representative democracy
– republicanism, and its various notions (e.g, various bulwarks against majoritanism, tyranny)
Goals for understanding the document, cases, and statutes:
– the structure of our government, especially the relationships between each branch
– a natural focus on courts and on judicial review
– how the constitution promotes, or attempts to promote, justice

Judicial Review:

(1) Review of legislative acts: can the judicial branches do it?
(2) Assuming that this is the case, should the judicial branch do it?
(3) What level of deference should the judicial branch give the legislative branch: what’s the test that should be used?

Chapter 1:
The Nature and Sources of the Supreme Court’s Power
§ 1: Judicial Review: The Bases and Implications of Marbury v. Madison
Marbury v. Madison
Holding: Rules against Marbury; court could not constitutionally hear the case as a matter of original jurisdiction: the Judiciary Act of 1789 authorized such jurisdiction, but the provision is unconstitutional—congress cannot expand the court’s original jurisdiction beyond the situations enumerated in the constitution under Article III, § 2.
Structure of Argument in Opinion:


Q: Does Marbury have a right to the commission?
A: Yes: the process was completed; therefore, Marbury was a right to the commission (it could be argued, on the other hand, that process could only be completed with hand delivery of the commission).
Q: If Marbury has a right, and that right has been violated, do the laws of this country afford him a remedy?
A: Yes, in general, the US is governed by the rule by law.
More specifically, this is not a political act, which it is the executive’s discretion, and only politically examinable, that is, examinable by the voters. Instead, this is a matter where a legal duty is involved—where the absolute rights of individuals are involved.
Q: What remedy is the correct remedy? Can the supreme court issue the remedy? Is mandamus the appropriate remedy?

Can this defendant be compelled by the writ? Yes: the court establishes right of judiciary to review the constitutionality of executive actions, though some executive actions are unreviewable—they reside firmly in the executive’s discretion. But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus.
Does the statutory authority exist? No; Marshall interprets the Judiciary Act of 1789 to authorize mandamus on original jurisdiction (an opportunistic reading, perhaps: it appears that there is only appellate jurisdiction in cases such as these).
Does the constitutional authority exist? No; Article III § 2 may not be expanded; the article’s list of the court’s original jurisdiction is exhaustive—this is the law to this day.

THE SUPREME COURT HAS THE AUTHORITY TO REVIEW LEGISLATION: THE COURT’S DUTY IS TO DECLARE THE LAW. Law includes the constitution. Constitution trumps statutes. The statute is rendered a nullity. Mandamus denied. JUDICIAL REVIEW IS BORN.

The Legitimacy of Judicial Review

The Authoritativeness of Supreme Court Decisions:

Cooper v. Aaron

Dickerson v. United States

Congress cannot overrule a decision by the Supreme Court by federal statute. By amendment, yes; by statute, no. Congress may not legislatively supersede the Supreme Court’s decisions interpreting and applying the Constitution.

Read together, then, Dickerson and Cooper stand for the proposition that neither Congress nor the states can act to overturn a decision of the Supreme Court on an issue of Constitutional Law.

But this is not to say that the Supreme Court is the only voice to be heard on constitutionality. For example, legislators and executives use their discretion on what is and what is not unconstitutional. Jackson’s veto decision. Same thing with the pardon of the Alien & Sedition Act violators. These are nonreviewable decisions. Additionally, there are several realms of decision that are unreviewable. And furthermore, there exists Congress’ ability to create exceptions to the Supreme Court’s appellate jurisdiction.
What constitutes a “case” or “controversy” appropriate for judicial resolution is the heart of the court’s places in the governmental structure. The judiciary (the Supreme Court, here) is a system of courts that decides cases; accordingly, the criteria by which the court(s) choose their cases is of tremendous importance.
Each of the justiciability doctrines was created and articulated by the US Supreme Court. Netiher the text of the Constitution, nor the framers in drafting the document, expressly mentioned any of these limitation on the judicial power.
Although all of these requirements for federal court adjudication were judicially created, the Supreme Court has designated some as being derived from the Constitution (“cases and controversies”), and others as prudential judicial administration. The difference comes in terms of how they are to be obeyed by Congress. A constitutional limit on jud

e Fourteenth Amendment in Brown is the supreme law of the land, and Article III makes it binding on the states.”
Therefore, under the Supremacy Clause, state executives are bound to the supreme court decisions—even if they are not parties to the matter sub judice.
An emphatic statement of judicial supremacy. That there were other federal statutes that could have accomplished the same end amplifies the point.
Debatable only by academics. It’s here to stay.
The most compelling argument comes from the text: Article III, § 2 gives the court the authority to “examine cases arising under the constitution.” The implication is that if the court has this power, then how can the court not have the power to decide what the constitution means? But this is not a dispositive textual argument. The text never specifically endorses judicial review.
Other arguments include the following:
the court is best situated to decide the cases; because they are insulated from political wranglings, political influence, there’s a value to being apolitical, best served by an independent judiciarythe supreme court has only judgment: the court can’t enforce its decisions (see: Hamilton, Federalist Papers No. 78); a powerful checks and balance argument; courts are fully dependent on the other branches to implement the court’s will; so that the argument is that the court is the least dangerous branch (congress has the purse, the executive branch has the sword).
separation of powers argument:
by having one locus of authority, finality and uniformity are furthered: a stronger argument than pluralism
the other branches seem ill-suited for dispassionate weighing and considering: statutes are created by give and take, so congress is hard pressed to make consciencious decisions “let the courts settle the matter” the argument goes.

Limited government argument
; the constitution created a government of limited powers; having it this way tends to limit government; for congress to determine what is and what is not constitutional would be the fox guarding the henhouse (of course, marshall was pretty foxy himself in this opinion). :: The single most important decision in American Constitutional Law—establishes authority for the judiciary to review the constitutionality of the executive and the legislative branches.