1. The Constitution and Judicial Review
The Judicial Branch
The Constitution and Judicial Review

2. Article III of the Constitution
Section 1.
The Constitution creates “one Supreme Court.”
The authors were divided over the need for other courts, so they left the decision up to the Congress.
Judges shall hold office “during good behavior” and shall be compensated.

3. Article III of the Constitution
Section 2.
The court’s power is broad – it applies to laws under the Constitution, laws of the United States, treaties, officials of the State department, things that happen at sea (or, now, in the air), controversies the United States is involved in, disputes between states, between a state and citizens of another state, citizens of different states, citizens of the same state arguing over disputes in other states, and between any of the above and foreign countries.

4. Article III of the Constitution
Section 2 – Jurisdiction
In cases dealing with ambassadors and other foreign ministers, and cases by or against one of the states, the Supreme Court as original jurisdiction.
In any other case, the court has appellate jurisdiction.
All crimes except impeachment can be tried by jury. Trials will be in the states where crimes are committed. Congress will have to make a law about where to hold a trial when a crime was not committed in any state.

5. Article III of the Constitution
The Court had very little power before 1803.
Most of its time was spent traveling the countryside hearing cases (riding the circuit.)
John Jay refused to keep the job in 1801, because it did not have the “energy, weight, and dignity” to contribute to national affairs.
Several other justices resigned.

6. Judicial Review
In 1801, President John Adams appointed his Secretary of State, John Marshall, to the position of Chief Justice.
Shortly thereafter, it addressed the issue of acts of Congress that violate the Constitution.
Marshall held that, when a law violates the Constitution, it is void.
With this, he expanded the power of the court to equal or exceed the other branches.

7. Judicial Review - Federal
This gives the Supreme Court the final say on the meaning of the Constitution.
This may seen counter to Democracy – an appointed elite checking an elected branch.
Only about 160 laws have been ruled unconstitutional, and only a handful have had great significance.
The Constitution provides mechanisms to override judicial review – Constitutional amendments.
The Constitution provides for the impeachment of judges – remember, they serve “during good behavior.”
The court can also reverse its own decision at a later time.

8. Judicial Review - State
Earlier than Marbury v. Madison, the Supreme Court asserted its dominance over state law.
Virginia law canceled the debts owed to British creditors after the Revolution.
A 1796 case brought by a British creditor went to the Supreme Court.
The Treaty of Paris that ended the war said that such debts could be collected; the Supreme Court ruled that the Constitution’s supremacy clause, which elevates national laws (and treaties) above state laws, nullified Virginia’s state law.
States continued to fight this, and lost every time.

9. The Problem of Judicial Review
The courts can declare laws invalid of they violate the Constitution. laws have supremacy when they clash with state laws. The Supreme Court has the final way on the meaning of the Constitution.
Taken together, appointed judges have the right to undo decisions of representative branches of national and state governments.
Hamilton, in Federalist #78, argued in favor of judicial review, saying that the courts lacked physical or economic strength. It had, he wrote, “neither FORCE nor WILL, but merely judgement.”
Hamilton felt that judicial review was necessary to stop legislative oppression.
Lifetime tenure allows judges freedom from influence by the executive and Congress, minimizing the risk of them making decisions motivated by politics – they don’t have to please anyone to get re-elected, and have the possibility of truly advocating for only the Constitution.