2. Beginning Constitutional Law Marbury v. Madison and the power of the federal judiciary.

3. Constitutional Law can be divided into two broad areas: The powers exercised by the national, or federal, government for its efficient, smooth operation The personal liberties that are protected from state action

4. The Constitution is primarily a plan of government Allocates powers between the feds and states Articulates fed powers, their limits, and reserves everything else to the states

5. 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

6. Federalism Wanted national unity, effective national system rather than the weak and embarrassing articles of confederation. Also wanted benefits of diversity and decentralization

7. Two levels of sovereignty – State and Federal Questions arise that require us to answer – What part of the government gets to do what?

8. Judicial branches powers Marbury v. Madison The Courts are charged with interpreting the constitution through judicial review Judicial review is very important.

9. 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.

10. We are not final because we are infallible, we are infallible because we are final.

11. Marbury v. Madison The court declared that yes indeed the federal courts do have power of review.

12. Judiciary Act of 1789 gives the Supremes Original (Trial) Jurisdiction for writ of mandamus cases. The type of case that Marbury was bringing

13. However, the court read article III of the Constitution and said the Supreme Court doesnt have original jurisdiction in such cases.

14. So, there is a conflict between the Constitution and an act of the Congress.

15. Marshall says that the court is duty bound to invalidate the act because the Constitution is superior to the act of Congress.

16. Could we have had a weaker form of review? Congress could review its own laws The president could oversee the executive departments actions and determine their constitutionality… Problems with this approach?

17. Martin v. Hunters Lessee 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 didnt 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

18. Marbury will stay, it wont be overruled. It isnt going anywhere. Two views of judicial review.

19. Activist – Review is a good thing. The court is insulated from politics. Judges (federal) dont 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

20. Restrained vision 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 dont 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.

21. Restrained continued… 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.