-The power of the courts to judge the legality/constitutionality of the actions and laws of the elected bodies.
-Not in the body of the Constitution (though Founders thought about it and assumed it would exist, see fed #78).
-Inferred from Article III: “The judicial power of the
United States, shall be vested in one Supreme court, and in such inferior courts
as the Congress may…establish…The judicial power shall extend to all cases,
in law and equity, arising under this Constitution, the laws of the United
Sates, and treaties made, or which shall be made, under their authority.
-Power derived from series of cases in the 1700s.
Power to review acts of President, Congress: Marbury v Madison
Power to review acts of states: Supremacy clause, judiciary act of 1789, Fletcher v Peck
Power to review acts of lower courts: Supremacy clause (if state courts), Logic of a hierarchical court system (if federal)
Judiciary Act of 1789: Statute that established federal courts. During the writing, judicial review was discussed. Federal courts established in the states to make sure the states followed federal law. Created the office of Attorney General. Gave the Supreme Court ability to issue Writs of Mandamus (the ability of the court to force governmental bodies to fulfill their “ministerial” (as opposed to political) duties) as a court of original jurisdiction (supreme court invalidated that in Marbury).
Marbury v Madison: Adams passed Judiciary Act of 1801 (Midnight Judges) just before leaving office. Tried to fill circuit judgeships with anti-Jeffersonians. Marbury appointed by Adams but commission wasn’t delivered. Madison (under orders from Jefferson) didn’t give Marbury his commission. Marbury asked Supreme Court for his commission – using the power to issue Writs of Mandamus as a court of original jurisdiction. Supreme Court denied because the court felt it should not have the power to issue Writs and Mandamus as part of its original jurisdiction (the constitution describes the sup court as having original jurisdiction on matters involving ambassadors and where states are parties to a suit, while the appellate jurisdiction is up to Congress) – by invalidating the Judiciary Act of 1789 it allows the court claim judicial review of presidential and congressional actions
Supremacy Clause: Article VI, Clause II
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Fletcher v Peck
First time the Supreme court invalidated a state law. 1795: Georgia state legislature sold land to private speculators for bribes. New legislature repealed law and voided all transactions. Peck purchased land that had been bought under 1795 Act. Fletcher bought land from Peck and sued, claiming Peck didn’t have clear title to the land. Supreme Court ruled that state legislature’s repeal was unconstitutional since it violated right of contract. Important case for judicial review and contract clause.
Contracts clause – article I, Section X, clause I
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
Writ of Mandamus
Mandamus means “we command” in Latin. The court tells someone (a lower court, public official) to do their job in compliance with the law. A mandamus is normally issued when an officer or an authority is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus be issued unless it is to quash an illegal order. Modern Supreme Court doesn’t really use it—struck down part of Judiciary Act of 1789 that gave the court the ability in Marbury. Appellate courts can use it, but only in special situations when the lower court abused its discretion.
Jurisdiction: What the Court can rule on.
Original Jurisdiction: Ability to rule on something the lower courts haven’t touched (a case that isn’t on appeal). Federal courts are granted original jurisdiction in cases involving interpretations of United States laws, maritime law, cases involving citizens of different states, cases between ambassadors and representatives of foreign nations, cases between state governments, and cases in which the United States is a party
Appellate Jurisdiction: Ability to rule on appealed cases. Congress determines which cases are okay.