ConLaw.Richards.Fall.051 - Constitutional Law Outline...

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Constitutional Law Outline Judicial Review Marbury v. Madison o Facts: Federalists appoint judges before Jefferson takes office. Marshall, Secretary of State, fails to deliver some commissions though signed and sealed. Madison takes Marshall’s place, refuses to deliver commissions. Marbury, who did not receive his commission, goes to Supreme Court to get a writ of mandamus to force Madison to deliver o You can get a remedy from an independent court if you have a right o Justification: Marshall finds there is a right, and that the remedy is mandamus Marshall asks whether Supreme Court had original jurisdiction According to the 1789 Judiciary Act Court did, but Marshall examined the Act to see if it was constitutional. He found it unconstitutional because the Constitution limits the Supreme Courts original jurisdiction in Article III in a way that precludes original jurisdiction. Marshall overrules the law.\ Real issue is whether Court can do examine a law and find it unconstitutional Rationales: Popular Sovereignty: Why a written constitution if legislators can change it at their whim. o Objection: Other nations with written Constitutions did not have judicial review Judicial Role: If an act of Congress conflicts with Constitution, judge must find it unconstitutional. o Excluding political questions o Objection: Fr. court would defer to parliament, assuming parliament found law constitutional. Chamber of horrors: Judge reads Constitution in enforcing laws Judicial oath requires judges to uphold the Constitution. o Objection: In some countries upholding Constitution means deferring to the legislature. Text of the Constitution: o Supremacy clause makes state courts invalidate unconstitutional laws o Supreme Court is court of final appeal for these state court decisions o Supreme court overrules fed laws under supremacy clause o Problems: Constitution was not clear that the Court had the right to judicial review over Congressional acts Court could have found that Congress and the Court were coequal McCulloch v. Maryland o Holding: The creation of the national bank, while not specifically enumerated, is allowed under the necessary and proper clause. The court should be very deferential when it comes to economics Judicial restraint: Argues courts should allow decisions of other branches to stand even when they offend the judges own sense of what’s required by broad Constitutional doctrines, except
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when these decision are so offensive to political morality that they would violate the provisions of any plausible interpretation o Policies on which judicial restraint may be based: Rights skepticism: Individuals have no moral rights. They have only the legal rights granted by the Constitution and these are limited to the plain violations that the framers had in mind or have since been established in that line of precedent. Idea is based on: o Lack of any moral right or wrong
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This note was uploaded on 09/21/2009 for the course LAW All taught by Professor All during the Fall '09 term at University of the West.

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ConLaw.Richards.Fall.051 - Constitutional Law Outline...

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