"Do you ever have one of those
days when everything seems
unconstitutional?"
The Last Word: Assignment 19 for Wednesday
"Do you ever have one of those
days when everything seems
unconstitutional?"
AP Government and Politics
Chapter 9

Article III calls for Supreme Court, and “inferior
courts” as Congress may from time to time
establish
 What kinds of things are notably absent?
 Two important aspects that keep Court independent:
▪ Life tenure, no reduction in compensation

**Why is it important to have one “court of last
resort”?

**Why must “all possible care” be taken to defend the
judicial branch?

**How could “permanent tenure” help the judicial
branch remain independent?

**How does having a fixed salary that cannot be
lowered contribute to the independence of judges?

How does Congress
answer the question left
unanswered by the
Framers in Article III?
 More on structure later
9.1
11th amendment:
The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.
"NBC has suspended Brian Williams for six months without pay. Williams said he's not
worried because soon his veterans benefits will kick in." –Conan O'Brien
"A lawmaker in Tennessee is pushing to make the Bible the official state book. It would
replace Tennessee's current state book, the menu at Cracker Barrel." –Seth Meyers
"It was revealed that back in 2011 Michael Jordan was signing a poster for Obama's 50th
birthday but spelled the president's name wrong. The president made sure Jordan's name
was spelled right when he had him audited by the IRS." –Jimmy Fallon
"According to a recent survey, 12 percent of Americans say that it's fine to cheat a little on
your taxes. While the other 88 percent know not to talk to a guy with a clipboard asking
them if they cheat on their taxes." –Jimmy Fallon
"I like Mitt Romney. He looks like the guy who comes with the picture frame." –David
Letterman
"President Obama unveiled a $4 trillion budget for 2016 that would increase taxes on the
wealthy and spend more money on education. He also made a snowball and put it in the
oven, just to see which would last longer, his budget or the snowball." –Jimmy Fallon
The Last Word: Assignment 19 for Wednesday

The ability of the federal courts to rule a law of Congress or the states, or
an action by federal or state government (read: executive branch),
unconstitutional.
▪ Not unique, but uncommon in the world.
 Not created by the Constitution explicitly, and its use under the Constitution
was not the first time it had been used.
▪ Used before 1787 by state courts to strike down state laws that violated state
constitutions.
▪ Was first used in Marbury vs. Madison (1803)

Does this suggest the framers did not intend to give the courts such a
power?
 Not necessarily, although that is one explanation for its absence.
▪ It is also possible that the framers thought the power of judicial review was sufficiently
clear from the structure of government that it need not be expressly stated.

Why should the federal courts have the right of judicial review?
▪ Because the Constitution is the “supreme law of the land”, there must be some person or
group who judges when that law has been violated; it cannot be Congress or the
President, because they are the ones who need to be controlled by their actions…
 “Active” vs. “Passive” branches

In his opinion for the Court in West Virginia v. Barnette (1943),
Justice Robert Jackson explained why judicial review is used to
protect minorities against the possible tyranny of majority rule.
He wrote,
 "The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them
as legal principles to be applied by the courts.

One's right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights
may not be submitted to vote; they depend on the outcome of
no elections“.
Many people know the first Supreme Court decision to declare an act of
Congress unconstitutional (It's Marbury, of course), but few people could
identify the Court's first decision declaring Executive Branch action to be
unconstitutional.
Little v Barreme (1804), called the Flying Fish case, involved an order by
President John Adams, issued in 1799 during our brief war with
France, authorizing the Navy to seize ships bound for French ports. The
president's order was inconsistent with an act of Congress declaring the
government to have no such authorization. After a Navy Captain in
December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's
order, the owners of the ship sued the captain for trespass in U. S. maritime
court.
On appeal, C. J. Marshall rejected the captain's argument that he could
not be sued because he was just following presidential orders. The Court
noted that commanders "act at their own peril" when they obey invalid
orders--and the president's order was outside of his powers, given the
congressional action.

The first major case that tested the ability of the
Court to rule on a law that Congress passed…
 Between a nominated justice of the Peace under
outgoing president John Adams (F – Marbury) and the
new Secretary of State under Jefferson (D-R – Madison)
 Rdg

The powers of the legislature are defined and limited; and that those limits
may not be mistaken or forgotten, the constitution is written. . . .

Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and
consequently the theory of every such government must be, that an act of
the legislature, repugnant to the constitution, is void. . . .

It is emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other the courts must decide on the operation of each. . . .

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 conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the very
essence of judicial duty. . . .

Marbury was, in fact, entitled to the commission

However, the Court does NOT have the power of
mandamus (as given by the Judiciary Act of 1789),
because that power was NOT “warranted” by the
powers set out in the Constitution.

Thus, Marbury does NOT get the job, and the
Court reserves the right to rule laws
unconstitutional (in this case, one LIMITING their
own power, in the short run)