Judicial Review. The Supreme Court (and courts in general) are considered the final arbiters of all questions of Constitutional Law.

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Lily Cameron
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1 Judicial Review The Supreme Court (and courts in general) are considered the final arbiters of all questions of Constitutional Law. Federalist Paper 78: If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

2 Marbury v. Madison: Background John Adams has lost the election of 1800 and was set to be replaced by Thomas Jefferson in early At the last moment, he appointed a slew of federal judges, to keep the Federalist party s legacy going. Jefferson didn t want to deliver the appointments. Marbury (one of the appointees), sued James Madison (Secretary of State) in the Supreme Court to require that the commission be delivered. He asked for a writ of mandamus

3 Marbury v. Madison: Legal Issue Where did the Supreme Court get the authority to issue a writ of mandamus? The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue.. writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States. Judiciary Act of 1789, 13 Great! The Supreme Court can order the commissions to be delivered. Right?

4 Marbury v. Madison: Legal Issue 2 What does the Constitution say about the Supreme Court s authority? In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. U.S. Constitution, Article III, Section 2, Clause 2 Do you see anything about the Supreme Court having original jurisdiction to issue a writ of mandamus? Hmmm

5 Marbury v. Madison: Result Section 13 of the Judiciary Act is unconstitutional and must be struck down! Should Madison have to deliver the commissions under the law? We ll never know, will we? Rules from Marbury: The Supreme Court can review and nullify executive actions. The Supreme Court can review and nullify legislative acts. The federal courts cannot exercise any more authority than granted by Article III of the Constitution.

6 District of Columbia v. Heller A D.C. law prohibited possession of hand guns, even inside one s home. Does that violate the Second Amendment? A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Issues: Does the first clause limit the second? Does the right to keep and bear arms refer only to possessing arms in connection with militia service?

7 District of Columbia v. Heller 2 Majority s answer: NO! The prefatory cause does not necessarily limit the operative clause. Devices used to come to that conclusion: Plain meaning of the phrase the people Dictionary terms from the 1700s Historical background of the Amendment Since the Amendment codified a pre-existing right Analogies to similar provisions in state Constitutions Early interpretations by scholars in the 1790s and 1800s Supreme Court precedent Note: The Court conceded that the 2 nd Amendment right is limited, so the discussion in Part IV is which side of the line the D.C. law falls on.

8 Limits on Judicial Authority Article III of the Constitution limits the authority of federal courts to cases or controversies. The Supreme Court has identified five types of hearings that are not allowed based on this limitation: Advisory opinions Standing Ripeness Mootness Political question doctrine

9 Limits on Judicial Authority Self-imposed limits Decisions based on constitutional law should be no broader then necessary to answer the question. Questions of constitutional law will only be answered when necessary to resolve the case.

10 Allen v. Wright: Facts Parents of black school children sued to force the IRS to deny tax exempt status to racially discriminatory private schools. Plaintiffs alleged standing based on two theories: They are harmed as a mere fact of government financial aid to discriminatory private schools. The funding of discriminatory private goals are causing the schools in their communities to be segregated.

11 Allen v. Wright: Decision Supreme Court dismissed the case for lack of standing. First reason is rejected because: Asserted right to have to government act in ordinance with law is not sufficient to confer jurisdiction. Only persons who are personally denied equal treatment been a challenge to discriminatory conduct has standing to sue based on that conduct. Second reason is rejected because: The injury alleged is not fairly traceable to the government conduct that is being challenged. There are not enough racially discriminatory private schools in plaintiff s communities for withdrawal of exemptions to making an appreciable difference in public school integration.

CONSTITUTIONAL LAW. Professor Ronald Turner A.A. White Professor of Law Fall 2018

CONSTITUTIONAL LAW. Professor Ronald Turner A.A. White Professor of Law Fall 2018 CONSTITUTIONAL LAW Professor Ronald Turner A.A. White Professor of Law Fall 2018 The United States Constitution Article I: All legislative powers shall be vested in a Congress of the United States... Article