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					         American Government




                   Lesson 21: Judicial
                         Review
There is no such thing as part freedom.
                                      "Living Constitution?"

The United States Constitution is has been called a "living
  constitution" because it is subject to amendments by
Congress, and now interpretation by the Supreme Court.




    There is no such thing as part freedom.
• Judicial review is the power of federal
    courts to determine the constitutionality
    of laws passed by Congress and acts of
    the Executive branch.
•   The Supreme Court has taken the power
    to review any decision of a lower court,
    acts of Congress, state laws, and
    decisions by administrative agencies to
    decide if it is in line with the spirit and
    intent of the Constitution.

                                            In response, the
                                            Congress has the
                                            power to propose new
                                            constitutional
                                            amendments or
                                            remove jurisdiction
                                            from the Courts
                                            Also, the executive
                                            branch may choose
                                            not to enforce a
       There is no such thing as part freedom.
                                            decision.
     Questions                                   Use this link to Answer
1. Is judicial review a good idea? Should nine unelected judges
be able to tell our elected representatives what they can and
cannot do?
2. Are courts more likely to block an enlightened consensus
with their adherence to outdated principles or to protect the
politically weak from oppressive majorities?
3. Are judges, protected with lifetime tenure and drawn
generally from the educated class, more likely to be reflective
and above the passing enthusiasms that drive legislative action?
4. Does Marbury mean that legislators or members of the
executive branch have no responsibility to judge the
constitutionality of their own actions?
5. Could we have a workable system of government without
judicial review?




       There is no such thing as part freedom.
Judicial review was discussed by
the Framers of the Constitution.
Alexander Hamilton wrote:
"The interpretation of the laws is the proper and 
peculiar province of the courts. A constitution, is, 
in fact, and must be regarded by the judges, as a 
fundamental law. It therefore belongs to them to 
ascertain its meaning, as well as the meaning of 
any particular act proceeding from the 
legislative body. If there should happen to be an 
irreconcilable variance between two, that which 
has the superior obligation and validity ought, of 
course, to be preferred; or, in other words, the 
constitution ought to be preferred to the statute, 
the intention of the people to the intention of 
their agents." Federalist #78, 1788

     There is no such thing as part freedom.
                   How did it Develop?
• English Privy Council
   • “cancel” any colonial law that conflicted with English law
• Courts could nullify statutes originated in England with Chief
  Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case.
• Parliament enabled the London College of Physicians to levy
  fines against anyone who violated their rules. The College
  accused a doctor of practicing without a license and fined him
  accordingly.
• Coke found that their statutory powers violated "common right
  or reason" because "no person should be a judge in his own
  case."

    There is no such thing as part freedom.
                  How did it Develop?
• Supremacy clause: higher law, constitutional law,
  Article VI
• The concept of judicial review was discussed in the
  Federalist Papers. Alexander Hamilton asserted in
  Federalist No. 78 that under the Constitution, the
  federal courts would have not just the power, but the
  duty, to examine the constitutionality of statutes




   There is no such thing as part freedom.
                 How did it Develop?
• Kentucky and Virginia Resolutions
    – States have the right to determine if laws are null and void
    – The Principles of ‘98
            • Jefferson considered these states’ rights a much more important
              and effective guarantee of people’s liberties than checks and
              balances
            • 10th Amendment the cornerstone of the Constitution: anything
              not given to Federal nor denied to the States are left to the States
              or the People
    – Null and void: laws are null and void if they are declared
      so, and are then not to be obeyed

  There is no such thing as part freedom.
                      What does it say?
A constitution is, after all, only a piece of paper.
It cannot enforce itself. Checks and balances
among the executive, legislative, and judicial
branches, a prominent feature of the
Constitution, provide little guarantee of limited
government, since these three federal branches
can simply unite against the independence of
the states and the reserved rights of the people.

 There is no such thing as part freedom.
             Jefferson to Giles 1825
• It is but too evident, that the three ruling branches
  of [the Federal government] are in combination to
  strip their colleagues, the State authorities, of the
  powers reserved by them, and to exercise
  themselves all functions foreign and domestic.
• Much more important than the feeble restraint of
  “checks and balances” is the ability of the states to
  interpose to prevent the enforcement of
  unconstitutional laws. That is a real check on federal
  power.

  There is no such thing as part freedom.
                        Some examples of
                           Nullification
•   Daniel Webster, the Draft
•   US Second Bank 1820-1: Ohio
•   Nullification 1832 South Carolina
•   Cherokee Nation and Removal, 1830s
•   Wisconsin in 1850s and Fugitive Slave Act: the
    Federal government is not the exclusive judge
    of its own powers, that’s despotism

    There is no such thing as part freedom.
                                           How?
• Hamilton: the Courts

• Jefferson: the States




 There is no such thing as part freedom.
Federalist No. 78, 1788, by Alexander Hamilton
"The Judiciary Department"

 "The judiciary, on the contrary, has no 
 influence over either the sword or the purse; 
 no direction either of the strength or of the 
 wealth of the society; and can take no active 
 resolution whatever. It may truly be said to 
 have neither FORCE nor WILL, but merely 
 judgment; and must ultimately depend upon 
 the aid of the executive arm even for the 
 efficacy of its judgments…To avoid an 
 arbitrary discretion in the courts, it is 
 indispensable that they should be bound 
 down by strict rules and precedents, which 
 serve to define and point out their duty in 
 every particular case that comes before 
 them." is no such thing as part freedom.
      There
                                      Jurisdiction
•Original jurisdiction: legal authority of a
court to be the 1st to hear a case (trial
court); issues of facts

•Appellate jurisdiction: legal authority of a
court to hear appeals from a lower court,
issues of law


  There is no such thing as part freedom.
The Judiciary Act of 1789
• The Judiciary Act of 1789 addressed the fact that although Article
  III of the Constitution established a Supreme Court, it left to
  Congress the authority to create lower federal courts as needed.
• It became law under President George Washington.
• It was authored by Senator Oliver Ellsworth to establish the
  structure and jurisdiction of the federal court system and created
  the position of attorney general.




     There is no such thing as part freedom.   Ellsworth
                             The Judiciary Act of 1789 Gave the Supreme Court
                                            Numerous Powers


"The Supreme Court shall also 
have appellate jurisdiction from 
the circuit courts and courts of the 
several states."

"Shall have power to issue writs of 
prohibition to the district courts . . . 
and writs of mandamus . . . to any 
courts appointed, or persons 
holding office, under the authority 
of the United States."



       There is no such thing as part freedom.              Judiciary Act of 1789
Judicial Interpretation
Judicial interpretation refers to how judges interpret laws.




                                      The Robert’s Court of 2011



        There is no such thing as part freedom.
                         How to Interpret?
•Jefferson: “our peculiar society is in possession
of a written constitution.” Americans “must not
make a blank paper by construction.”


• Judge Joseph Story: the Constitution “must
have a fixed, uniform, permanent,
construction…not dependent upon the passions
or parties of particular times, but the same
yesterday, to-day and forever.”
   There is no such thing as part freedom.
                Judiciary Overview
• Supreme Court (Head Court)
    – Judges independent of politics, appointed not elected
    – Resignation, impeachment, or death
• Powers
    – Conflicts between state governments
    – Conflicts with the national government
• Supreme Court jurisdiction
    – Original jurisdiction: ambassadors, between states,
      constitutional law
    – 11th Amendment
    – Appellate jurisdiction

  There is no such thing as part freedom.
                         1796, Ware v Hylton
• Divided court ruled that an article in the Treaty
  of Paris, which provided that debtors on both
  sides should meet no lawful impediment when
  recovering bona fide debts, took precedence
• Overruled a Virginia Law passed during the
  American Revolution which had nullified such
  debts
• State law, even if earlier, could not negate
  national treaties
  There is no such thing as part freedom.
            1796, Hylton v. United States
• Court upheld a federal tax on
  carriages against a claim that
  the tax violated the "direct tax"
  provision of the Constitution.
• Concept of judicial review was
  familiar before Marbury



 There is no such thing as part freedom.
Interpreting the Constitution
Strict Constructionists believe:
• Judges are bound by the wording of the
  constitution and should make decisions
  based on the intent of the Framers of the
  Constitution.
• Judges use judicial restraint, taking care not
  to strike down laws based on the principles
  of the constitution.

                             "My belief that a policy of judicial 
                             restraint — one that allows other 
                             decisional bodies to have the last word in 
                             legal interpretation until it is truly 
                             necessary for this Court to intervene — 
                             enables this Court to make its most 
                             effective contribution to our federal 
                             system of government." - Justice
                             John Paul Stevens, 1983


      There is no such thing as part freedom.
                         Originalism and Strict Constructionism
• Originalism is a theory of constitutional interpretation used by
  strict constructionists.
• It states that the constitution has a fixed and knowable meaning.
• When the language is vague or ambiguous, a judge must interpret
  (also known as to construct) a meaning based on the ideas of the
  Framers of the Constitution.




     There is no such thing as part freedom.
                                          Loose Constructionism
Loose (or Broad) constructionists expand the language of the
constitution to allow for the current standards and meanings of
contemporary society.




     There is no such thing as part freedom.
Judicial Activism
Loose constructionist judges look to the
underlying principles of the constitution in light
of modern values.
•   Judges employ a "Living Constitution"
    whereby the Constitution is seen as
    continually evolving with society.
•   Modern values should be taken into account
    when interpreting the constitution.
                                                                         Sutherland

"[W]hile the meaning of constitutional guaranties never varies, the scope of their 
application must expand or contract to meet the new and different conditions which are 
constantly coming within the field of their operation. In a changing world it is 
impossible that it should be otherwise. But although a degree of elasticity is thus 
imparted, not to the meaning, but to the application of constitutional principles, statutes 
and ordinances, which, after giving due weight to the new conditions, are found clearly 
not to conform to the Constitution, of course, must fall." Justice George
Sutherland, Village of Euclid v. Amber, 1926
       There is no such thing as part freedom.
 Judicial review was established in 1803 with the case of Marbury v.
Madison, a case brought before the Supreme Court with Chief Justice
                       John Marshall presiding.

                                         Chief Justice
William Marbury                          John Marshall   James Madison




     There is no such thing as part freedom.
Marbury v. Madison: The Problem
• Outgoing President John Adams, a Federalist, appointed William
  Marbury as Justice of the Peace in the District of Columbia.
• Although Marbury’s commission had been signed and sealed, the
  papers had not been delivered by the time incoming Republican
  President Thomas Jefferson took office.
• The new Secretary of State, James Madison, refused to deliver the
  commission papers.




   Adams                    Jefferson           Marbury   Madison   Marshall

      There is no such thing as part freedom.
                          THE CONFLICT
                                           Article III
                                          Judiciary Act 0f 1789

                                            Supreme power in
                                          Congress empowered
                                            cases of law, hears
                                          the judicial branch to
                                            cases involving
                                          issue writs of
                                            ambassadors and
                                          mandamus (directives
                                            foreign dignitaries
                                          to Government officials
                                            (original jurisdiction)
                                          to act)


There is no such thing as part freedom.
•   Marbury argued that Madison did not
    have discretionary right to refuse a
    legal commission.
•   It was Madison’s responsibility by law
    to deliver the commission.
•   Marbury invoked the original
    jurisdiction of the United States
    Supreme Court, Section 13 of the
    Judiciary Act of 1789, asking as
    remedy by the Supreme Court to
    issue a writ of mandamus to Madison,
    ordering him to deliver the
                                           John Marshall had been the
    commission.                            Secretary of State when
                                                 Marbury’s commission was
                                                 assigned, but President Adams
                                                 made him Chief Justice before
                                                 leaving office. Marshall himself
                                                 had affixed the Great Seal of
                                                 the United States to Marbury’s
                                                 commission.
       There is no such thing as part freedom.
  Marbury v
 Madison 1803
• Questions
  – Did Marbury have a right to
    be a justice of the peace?
  – If, yes, then is there any law
    to give him compensation?
  – If, yes, is this way a writ of
    mandamus from the
    Supreme Court?




   There is no such thing as part freedom.
                                         Writ of Mandamus
• The writ of mandamus is a remedy used in cases where there is a
  specific right but no specific legal remedy for enforcing that right.
• A mandamus is typically issued when an authority is required to
  perform a duty as directed by law and fails or refuses to do so.
• Issuing a writ of mandamus is up to the discretion of the Court.
  The petitioner must satisfy the Court that he is entitled to the right
  being withheld.
• In Marbury v. Madison, Marbury believed he was entitled to his
  commission.




                                                            Commission
                                                            For Marbury




      There is no such thing as part freedom.
The Marshall Court upheld the notion that for every violation
of legal right there must be a legal remedy.
Marshall stated: "The government of the United States has been emphatically 
termed a government of laws and not of men. It will certainly cease to 
deserve this high appellation, if the laws furnish no remedy for the 
violation of a vested legal right." 




      There is no such thing as part freedom.
After deciding that the Supreme Court could issue
the writ, the Court then questioned the law allowing
it to do so.
      • The appointment had been signed by
        President John Adams and sealed by the
        Secretary of State, merely not delivered.
      • Madison must deliver the appointment
In Marbury v Madison, the case argued
that the Supreme Court had the power
to issue a writ of mandamus as
empowered by the Judiciary Act of 1789.
Chief Justice John Marshall questioned
this authority.

 The Supreme Court upholds that it is
 better to interpret a statute and
 thereby avoid a constitutional issue.
 However, this is not always possible.


      There is no such thing as part freedom.
Art. II, the SC had original jurisdiction
only in cases affecting ambassadors,
consuls, and those involving the States,
all others must be sent from a lower
court after it heard the case first.
Marshall held that Congress did not
have the power to modify the Supreme
Court's original jurisdiction as stated in
Article III of the Constitution.
The Judiciary Act of 1789 became the
first act of Congress to be partially
invalidated by the Supreme Court.
Marbury did not get his writ of
mandamus.

      There is no such thing as part freedom.
                 Marshall’s answers
• 1789 Judiciary Act couldn’t give that power to
  the Court because it wasn’t in the Constitution
• Congress can’t alter the Constitution
• Even though lately the Court itself has
• The Supreme Court the final authority of
  Constitution’s meaning



 There is no such thing as part freedom.
"It is, emphatically, the province and duty of the judicial 
department, to say what the law is…. So, if a law be in opposition 
to the constitution; if both the law and the constitution apply to a 
particular case, so that the court must either decide that case, 
conformable to the law, disregarding the constitution; or 
conformable to the constitution, disregarding the law; the court 
                                                                       Chief Justice
must determine which of these conflicting rules governs the case;  John
this is of the very essence of judicial duty. If then, the courts are  Marshall
to regard the constitution, and the constitution is superior to any 
ordinary act of the legislature, the constitution, and not such 
ordinary act, must govern the case to which both apply." 




       There is no such thing as part freedom.
The Opinion of the Court

The Supreme Court voted unanimously (4-0) that Marbury had the
right to his commission but the Supreme Court did not have the
power to force Madison to deliver the commission.


Chief Justice John Marshall stated
that withholding Marbury’s
commission was an act that violated
the law.

Marshall held that the writ of
mandamus was the proper legal
procedure to require a public official
to do his duty and that the Judiciary
Act of 1789 authorized the Supreme
Court to issue such a writ, but the
Act was unconstitutional.


      There is no such thing as part freedom.
                     Marshall’s Impact
• Chief Justice 1801-1835
• His many decisions expanded the powers of
  the government by a loose interpretation of
  the implied powers (Elastic Clause)
• He did support the validity of contracts, but
  was clearly a “Federalist” and set policies
  much favored by Hamilton and today’s statists


   There is no such thing as part freedom.
                Judiciary Overview
• Court guarantees limits on Congress
• No law can violate the US Constitution
• Article VI, Sec. 2




  There is no such thing as part freedom.
                                           How??
• Broad interpretation
   – Values, social, moral, and political, of today to
     deal with changing situations




 There is no such thing as part freedom.
                                           How??
• Literal interpretation
   – Words in the document are viewed as meant in
     1780s




 There is no such thing as part freedom.
                                             How??
• Intent of Framers (Original intent)
   – Courts should interpret the document as the writers
     would
   – Fundamental values
       • Basic principles and values
       • Natural rights
       • Constitutionalism
       • Republican government
       • Decisions should be based on these values as seen in
         today’s world
       • Not only limited, but circumscribed by custom and
         tradition
   There is no such thing as part freedom.
                                           How??
• Perspective of History
   – Times have changed, so should the document
   – Do not hold back social programs by sticking to
     outmoded interpretations
   – “Living, breathing document” that is the problem
     of England’s “constitution”
   – Legal positivism
           • Law does not exist in conformity with natural law, but
             rather because it was created by a legal authority

 There is no such thing as part freedom.
    What are those values, how to
             find them?
• Speech (political), not conduct!!
      – Moral, religious, scientific
      – Art
      – Not Obscenity, just pornography
•   Free press
•   Religion
•   Privacy: family, sex for procreation
•   Jury
•   Due Process
    There is no such thing as part freedom.
 What are those values, how to
          find them?
• 9th Amendment (new rights????)
   – No
   – Doesn’t give judges the right to “create” new
     rights
• It does forbid the Federal Government from
  overruling a liberty from a State constitution
• US v Burr (1807): only gives Courts the right to
  protect rights, not define those

 There is no such thing as part freedom.
   THE PROCESS




There is no such thing as part freedom.
ADDRESSING THE COURT
• For the government
  (Solicitor General)
• For the petitioner
• “Friend of the Court”
• Protocol
• Justices do not
  address one another
• Justices dominate 30
  minute presentations
• Court pages

There is no such thing as part freedom.
     FOR THE GOVERNMENT
                                          • Solicitor General
                                            Elena Kagan
                                            (Obama appointee)
                                          • Supreme Court?

                                          • Represents the
                                            United States

                                          • Offices within the
                                            Supreme Court
                                            building
There is no such thing as part freedom.
   BEHIND CLOSED DOORS
                                          •   Justices meet in total
                                              privacy in ordered seating

                                          •   Start with a traditional
                                              hand shake

                                          •   Chief determines case
                                              discussion list unless a
                                              case is specifically
                                              requested by one of the
                                                   *including coffee
                                              justices
                                                       (Sotomayor)
                                          •   Chief opens discussion and
                                              votes first
                                          •   Junior justice serves the
                                              body, last to vote*


There is no such thing as part freedom.
               IMPORTANT TERMS &
                   NUMBERS
• Amicus Curiae: “Friends of the court” request
  consideration of case and/or influence in outcome
• Writ of certiorari: formal request by the U.S.
  Supreme Court to call up the lower court case it
  decides to hear on appeal
• Rule of Four: requirement that four Supreme
  Court justices must agree to grant a case
  certiorari in order for the case to be heard
• Quorum: six justices must be present to conduct
  court business
• Simple majority: five votes of the nine
    There is no such thing as part freedom.
                TYPES OF 0PINIONS
• An opinion….

• Majority: written by Chief,
  ranking or appointed
  justice

• Concurring: voting with
  majority with clarification
  (same conclusion,
  different reasoning)

• Dissenting: opposed to
  majority


  There is no such thing as part freedom.
WRITING
OPINIONS
 • Whose responsibility?
    Chief Justice’s role
    Senior Justice’s role

 • Approximately 80
   issued a year

 • Some rejections
   issued without
   comment

 • Oral dissent opinions
        (4-5 yr.)
  There is no such thing as part freedom.
     OPINION DEVELOPMENT
• Opinion writing is assigned
• Draft is formulated and distributed to
  other justices for comment and
  support
• “Please join me” memo
• Eventually the opinion is completed
  and agreed upon


 There is no such thing as part freedom.
               Judicial Review since
• 130+ congressional acts, only 2 before the
  Civil War
• 900+ state laws
• US v Burr (1807) courts must protect
  individuals against the Government; no
  individual in Government is above the Law,
  even executive privilege is limited


 There is no such thing as part freedom.
               I’LL TAKE IT TO THE
                 SUPREME COURT!
       National                                   Wisconsin
• District courts*                          • Circuit courts

• Circuit courts                            • Appellate courts

• Supreme Court
                                            • State Supreme
• 2/3 of all cases
                                              Court
*trial courts                               • 1/3 of all cases

  There is no such thing as part freedom.
McCulloch v Maryland (1819)
• Decision of Constitutionality of a
  national bank
• Bank not specifically named as a
  power in the Constitution
• Marshall ruled that it was convenient,
  thus necessary and proper
• Laws in the “spirit of the Constitution,
  are constitutional”




There is no such thing as part freedom.
 Dartmouth College v Woodward
            (1819)
      • New Hampshire wanted to alter
        Dartmouth College from a private to
        state college
      • Marshall ruled that states could not
        alter contracts, regardless of the age
      • Set the precedent for states putting
        clauses in contracts allowing them to
        alter later
      • Example of a restrictive covenant
        within a contract
There is no such thing as part freedom.
                Judicial Review since
Gibbons v Ogden (1824)
• Only Congress can exercise its exclusive commerce
  powers
• New York law gives steamboat company monopoly
  of ferry service on Hudson River in NYC
• States can’t regulate the Federal Government,
  Federal gov’t can use whatever power is
  “convenient” to its ends!!!
• Gave “commerce” extremely broad definition

  There is no such thing as part freedom.
               Judicial Review since
Worcester v Georgia (1832) States
can’t regulate Indian nations, or
violate treaties




 There is no such thing as part freedom.
               Judicial Review since
• Cooper v Aaron (1958)
   – Supreme Court decisions are also supreme law of
     the land
   – Is this Constitutional?




 There is no such thing as part freedom.
   So How Then? Two Views
                                      Watch Video
• Antonin Scalia                            • Stephen Breyer




 There is no such thing as part freedom.
 Inspiration. Noun. 1. Stimulation of the faculties to a high level of feeling
 or activity. 2. The condition of being so stimulated. 3. An agency, such as
 a person or a work of art, that moves the intellect or emotions. 4.
 Something that is inspired, as an idea or action. 5. Theology: Divine
 guidance or influence exerted directly upon the mind and soul of man. 6.
 The act of breathing in; inhalation. (From the Latin inspirare, to breath
 into) I'm under a lot of pressure to get one of these vanity cards written
 every week and to be perfectly honest, some weeks I've got squat. Like
 this week. Nothing of substance to say. Nothing even marginally amusing.
 Which is why I'm hoping for a little of #1 or perhaps even #5. I'm just
 sitting here waiting... just sitting here... Oh, well, at least I'm doing well
 with #6. Which, if you read the definition again, still counts as inspiration.
 How about that, I'm inspired... and expired... and inspired... and expired...
 inspired...




There is no such thing as part freedom.

				
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