Beginning Constitutional Law
Marbury v. Madison and the
power of the federal judiciary.
Constitutional Law can be divided
into two broad areas:
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The powers exercised
by the national, or
federal, government
for its efficient,
smooth operation
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The personal liberties
that are protected
from state action
The Constitution is primarily a
plan of government
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Allocates powers between the feds and
states
Articulates fed powers, their limits, and
reserves everything else to the states
Articulates fed powers, their limits, and
reserves everything else to the states
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Wanted a workable, effective national
government, but there was worry about
any one branch becoming too powerful
Effective but diluted
Broad powers to the national government,
but separated out between departments
and branches
Federalism

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Wanted national unity, effective national
system rather than the weak and
embarrassing articles of confederation.
Also wanted benefits of diversity and
decentralization
Two levels of sovereignty –
State and Federal
Questions arise that require us
to answer – What part of the
government gets to do what?
Judicial branches powers
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Marbury v. Madison
The Courts are charged with interpreting
the constitution through judicial review
Judicial review is very important.
The power of the courts to declare acts
unconstitutional, void or invalid according
to the JUDICIAL branch.
According to their interpretation of the
constitution. Very potent power. An act of
congress can be of no force or effect.
“We are not final because we are
infallible, we are infallible because
we are final.”
Marbury v. Madison
The court declared that yes
indeed the federal courts do
have power of review.
Judiciary Act of 1789 gives the
Supremes Original (Trial)
Jurisdiction for writ of mandamus
cases. The type of case that
Marbury was bringing
However, the court read article III
of the Constitution and said the
Supreme Court doesn’t have
original jurisdiction in such cases.
So, there is a conflict between the
Constitution and an act of the
Congress.
Marshall says that the court is
duty bound to invalidate the act
because the Constitution is
superior to the act of Congress.
Could we have had a weaker
form of review?
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Congress could review its own laws
The president could oversee the executive
departments actions and determine their
constitutionality…
Problems with this approach?
Martin v. Hunters Lessee
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Court reviewed the decision of a state court.
One group claimed a tract of valuable farmland
under state law, another under a federal treaty.
Virginia courts said that the federal treaty didn’t
apply, control. They award it to the party asking
for it under state title.
Supremes reverse saying Virginia needs to view
federal law as controlling.
Virginia resists. Feds show them article VI
Marbury will stay, it wont be
overruled. It isn’t going anywhere.
Two views of judicial review.
Activist – Review is a good thing.
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The court is insulated from politics. Judges
(federal) don’t have to submit themselves to the
political marketplace
Justices are well suited to say what the
fundamental law is because they use reason,
analysis and principle, not COMPORMISE or
expediency as is common to the political arena.
The court is the least dangerous branch. No
money. No army
Restrained vision
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Yes, maybe we need an umpire, but we should use this
power only when necessary, and even then, courts
should rule as narrowly as possible. “People don’t go to
baseball games to watch the umpires” – Chief Justice
John Roberts and his confirmation hearing.
The very insulation activist like is actually bad because
you are thwarting the will of the people. If the legislative
process, through democratically elected officials, has its
will thwarted, it is “counter-majoritarian.” This should be
avoided.
Restrained continued…
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Judicial review diminishes democracy in
general. If the courts can take legislatures off the
hook for the work that they do, than it dulls the
legislators need to be true and in conformity with
the Constitution.
And people can simply look to the courts rather
than know the con themselves. Therefore,
review is a necessary evil, and it should be used
sparingly.