CONSTITUTIONAL LAW SPRING 2008– PROF. FISCHER
Outline for Class 2 Judicial Power: Marbury v. Madison (1803) and
Judicial Review
I.
How this class fits into the big picture; central themes
II.
Facts of Marbury v. Madison (political background giving rise
to petition, remedy sought, political background giving rise to
delay in hearing case)
III.
Holding: What is the holding of Marbury v. Madison?
IV.
Reasoning: Focus on 4 questions
i. Should the Court have ever reached the question of whether the
Judiciary Act of 1789 was constitutional?
ii. When may the Court review Executive conduct?
iii. Was the Judiciary Act of 1789 constitutional?
iv. Should the judiciary have the authority to declare Congressional
statutes unconstitutional?
V.
Authority for Judicial Review of State and Local Actions
 Martin v. Hunter’s Lessee (1816); Cohens v.
Virginia (1821): U.S. Supreme Court has power to
review state court rulings
VI.
Conclusion: The endurance of judicial review despite the
Constitution’s silence; the importance of Marbury v. Madison
i.
The Constitution is regulatory. It is not aspirational like
the Magna Carta or Declaration of Independence
ii.
Congress can’t increase the jurisdiction of federal courts
iii. Court can review executive conduct to determine its
constitutionality
iv.
Court can review legislative actions for their
constitutionality.
v.
Marbury arguably leaves open the question of which
branch, if any, is the authoritative interpreter of the
Constitution.
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