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Constitutional Law I
West Virginia University School of Law
Bastress, Robert M.

Professor Bastress
Spring 2005
January 11, 2005
Judicial Review (3 layers)
1-whether the courts have the power to second guess the constitutional judgments made by other branches of government
2- if they have that power can they exercise it in that instance? (are there particular issues which the court cannot exercise that power?)
3- assuming the power and that it is appropriate to exercise it, what is the standard of review that should be applied?
Federal Government
                    50 states
Look at the relationships between the branches—-primarily articles I, II, and III (Ch.1 &6)
Government and states- Article IV, (Ch. 2-5 & 10)
Relationship between the governments and the citizens—Bill of Rights (1-8) and 14th Amendment, (Ch. 7-9)
Following independence the country lived under the Articles of Confederation—they operated under a Congress, but the Congress really had no power to do anything—they could submit something to the states and they would decide if they would or would not enforce it
-many problems developed at this time, economic competition between the states, taxations, etc.
-1787 it was decided that significant reforms were needed
-organized meeting and they came up with a new Constitution, and the states ratified—not all states were in complete support—this conflict produced the federalist papers—Madison, Hamilton, and John Jay
-created a stronger national gov.
-gave taxation powers to congress
-judicial and executive systems
-reflection of Madisonian democracy
            -fundamental to our system of gov.
-concerns with Constitution
            -tyranny, dilute power of states, fears of threats to individual rights, concern that we would look like great Britain
– 1-large size of the undertaking would discourage facilionation
-Madison analogized this government to religion—not one religion was powerful enough to gain control of the whole country
-this large diverse undertaking…could not be in power of minority
-system had safeguards against tyranny
-2- power defused through branches (checks and balances) and also vertically
-3- a very deliberative process for making laws, needed 2 houses of congress to agree on law and president must also sign off on law—if there is a veto then 2/3 must pass
-framers were the heaviest property owners in the country they didn’t want to change economy
-4- hybrid representation—various constituencies electing different people at different times
            – people elect House representatives for 2 year terms—most sensitive to what people want –people interest
            -people also directly elected their state legislature who in turn chose Senate who served for 6 years (not as sensitive) –state interest
            -people elected the electoral college who elects the president (4 year term)– national concern
     -different degrees of accountability
            -president appoints judges who have life terms and are wholly removed from political accountability
-only change is in the Senate— 18th amendment elected by people
2 major parties at the time
Local control, state sovereignty, citizens control, Madison and Jefferson
More conservative, protective of property, advocates of a strong national government
Republican-can refer to a representative government (democracy), can also refer to the presidential party—Jefferson, or this can refer to today’s republican –not same—Jefferson would be democrat
Federalism- federal system ( a strong national government)—today refers to the movement to “our federalism” coined by Justice Black—refers to powers of the states, a greater respect to the states
Federal can also refer to the national government
Federalists—the party, last in 1800’s
Marbury v. Madison
Comes about during Adam’s presidency
During this time a very vocal republican press—advocates of Jefferson’s party
Vicious to Adams and his Congress—truth not necessary
Federalist Congress ( Sedition ACT) print write etc, anything criticizing government—this was enforced which upset the Republicans
The election in the 1800’s was very close and bitter—down to the last state—the votes determined which party won (Jefferson and Aaron Burr tied)
Determined in December
New Congress and President did not take office until March 4th
Federalist had time to do things before leaving office
Adams was appointed to Chief Justice position and served that and Sec. of State
Circuit Judges Act of 1801, 16 new judgeships created and relieved judges from riding the circuit
Also created Magistrates in DC—DC Statute
Commissions were signed and sealed and some of these were delivered
When Jefferson took over he refused to recognized the commissions that were not delivered
Marbury’s was not served and he decided to seek relief in the Supreme Court
Tried to force Madison to deliver the commission and allow him to take office
Jefferson’s Congress repealed the Circuit Judges Act and eliminated the SC sessions in that year, limiting the meeting to Feb which would not happen until the next year
Finally the court hears the case in Feb. 1803
“quite a show” entire court, Marshall, etc. Lee called Lincoln to the stand
Tried Feb. 10th—court rendered decision on Feb. 24—it took 4 hours to read
Marshall identifies 3 issues that need to be decided
Mandamus—a common law writ—which it that which can be used to order an official to perform some non-discretionary duty
Mandamus action against the secretary of state, Madison
1)      Has the applicant a right to the commission? Yes—they were signed and sealed!
2)      Does he have a remedy? Yes! (political acts are not reviewable, where the heads of the dept. are executing the will of the president—these are only politically examinable) vaguely the political question/discretion doctrine—it depends on the people to throw his out-à non discretionary duties involving rights, then the courts can get involved—b/c this is a ministerial act, it is not political—it is an appropriate issue for the court
3)      Is that remedy a mandamus from this court?
a.       Is mandamus appropriate?- yes (edited from text)
b.      Is mandamus appropriate against this defendant? Madison argues that as Sec. of State he cannot be the obj

they should interpret
-this is what courts do—they interpret
-it is the most “natural”
-people think it “works”
-structureàpeople elect senate, house, etc. courts are removed from the “politics”, a system that will guard us from majoritarian tyranny
-as an institution it is perhaps the best suited, a check against the Congress
-the power was not exercised with frequency until it was well established
-finality has to rest somewhere—one branch must be final in given cases, courts are in the business of making law
-the courts are the LEAST dangerous of the branches
            -congress controls the purse
-the court cannot implement any decisions without the cooperation of the executive branch
-certain practical implications
            -courts review the cases after the fact, always when drafting legislation you are trying to predict how it will operate in the future. After the law has been applied you have hindsight
            -legislative process is all about compromise, things included just to get the act past, parts of this may be unconstitutional and courts can pick and choose
-Marshall and Congress knew the importance of the case
-Marshall knew that if he backed off it would weaken the judicial branch
-Also if he said to serve the paper, there was no way to enforce that it would be done
-No man is above the law, so the court has the power to order that the non-discretionary acts be followed
-we are the interpreters of the constitution and can rule unconstitutional
-establishes authority over the executive, and ability to rule Congress’ act unconstitutional, then states that there is no jurisdiction
-brilliant tactical opinion, as shrewd as you can get
-it added/planted the political question doctrine in constitutional law and added judicial review at the same time
-Concept evolved over time
-assertions over time which took the view over time that said that the SC is authoritative in certain cases, but that doesn’t mean that the other branches are held from expressing their opinions and hoping that court over rules itself
Cooper v. Aaron
-once a court decides an issue, the other branches must abide by it.
-executive branches are bound to follow
-executive officials may be held liable
-Congress enacted a statute that contradicted the SCà and effort to overrule Miranda warning
-SC said statute totally ineffective—> a congressional statute cannot overrule a constitutional decision
-broadly stated notion of judicial review, SC has last say and congress can not second guess