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

Constitutional Law I – Spring 2004
 
Introduction
 
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[1]  
Marbury v. Madison: 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.
 
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:
 
Marbury:
(1)   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). 
 
(2)   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. 
 
(3)   Q: What remedy is the correct remedy? Can the supreme court issue the remedy? Is mandamus the appropriate remedy?
(i.)                Can this defendant be compelled by the writ? Y

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 judiciary
separation of powers argument: the supreme court has only judgment: the court can’t enforce its decisions (see: Hamilton, Federalist Papers No. 78); a powerful checks and balance
[1] Background to Marbury:
– huge tensions between the two parties; the time of the alien & sedition acts
– led to a highly contested election, where our story picks up; this was the time of the midnight judges & the organic act for the judgeships in DC
– of the organic judgeships, Marbury’s commission was but one of 17 that were not delivered