Mr. Levin
POLS 5211
Judicial Review Study Sheet
Terms
Judicial Review
primary rules/secondary rules
Judiciary Act of 1789
Article III
Writ of Mandamus
Original Jurisdiction/Appellate Jurisdiction
Supremacy Clause
Rule of Law
Standing
Justiciability
Mootness
Ripeness
Legal Personality
Incorporation
Environmental Standing
Taxpayer Standing
Guaranty Clause
Political Questions
Assigned Readings: Marbury v. Madison, Eakin v. Raub, Ex parte McCardle, Baker v. Carr,
Nixon v. U.S., Flast v. Cohen, City of Boerne v. Flores, Frothingham v. Mellon; Goldwater v. Carter;
Hein v. Freedom from Religion Foundation
Questions for Reading Assigned Cases:
In Marbury v. Madison, C.J. Marshall misquotes the Constitution. How does he do so? How
does it change the case? Does Marshall make a compelling argument for the special status of
judges in interpreting the Constitution? Why is it necessarily the job of judges to “say what the
law is”?
In J. Gibson’s dissent in Eakin v. Raub, he attacks judicial primacy in constitutional
interpretation, favoring elections as a form of accountability. Is this a reasonable argument? Is
such electoral accountability likely to be effective? Is this plausible? Can you think of some
examples of this, or examples of failure?
The key question in Boerne v. Flores is whether Congress can impose its own interpretation of a
constitutional doctrine after the Supreme Court has ruled on the matter. What arguments does the
Court have on its side that it is supreme in this area? What are the arguments for Congress? Is
there a role for both?
Taxpayer standing is allowed under very restricted circumstances. How do those circumstances
shift from Frothingham to Flast to Hein v. Freedom from Religion Foundation? What are the
rules for taxpayer standing?
Our selections from Baker v. Carr and Goldwater v. Carter recount several different political
questions. What principles unite all these varying questions? How does the opinion in
Zivotofsky v. Clinton draw on those principles? Does it change our understanding of political
questions?
Additional Cases:
Dr. Bonham’s Case. (England, 1610). In a case involving whether Parliament had given the
Royal College of Physicians the power to convict and imprison an individual for practicing
medicine without a licence, (Chief Justice) Sir Edward Coke wrote, “when an act of parliament
is against common right and reason, or repugnant, or impossible to be performed, the common
law will control it, and adjudge such act to be void.”
Bayard v. Singleton (North Carolina, 1787) - Bayard sought to reclaim her Loyalist (Tory)
family's confiscated property after the Revolutionary War. A panel of local judges (NC did not
yet have a Supreme Court) found that the NC law allowing confiscation violated the right to
property. Bayard is the first reported case in which an American court struck down a legislative
act as unconstitutional.