PoliSci5

What are the 4 general reasons the text identifies that can explain the development of judicial review in the U.S. system, despite the fact this power isn't explicitly granted in the Constitution?

1. The framers' intentions 2. Historical Acceptance 3. Counterweight to majority rule 4. The continual quest for neutral "first principles" by which to resolve controversies and to effect widespread public compliance

Judiciary Act of 1789

This Act created the federal judicial system. Establishing the Supreme Court and the Federal District Courts

Marbury v. Madison

established judicial review

Mandamus

"we command"

What are the three pieces of "founding era" evidence provided to support the notion that the Constitution presumes the concept of judicial review?

A. Marbury v Madison: 1. Constitution limits legislative power 2. The unique function of courts: interpret the law 3. Constitution compels the practice of judiciary review B. Supremacy Clause: State judges need not enforce legal laws C. Judiciary Act of 1789: Supreme Court reviews state court decisions when the constitutionality of a federal law was challenged

The text says Marbury v. Madison is significant for three reasons. What are these reasons? (see Brief 4.3; this brief also explains succinctly the legal issues in Marbury v. Madison)

A. The first time the court overturned an act of Congress on the principle that laws not conforming to the Constitution are null and void...Supreme Court review Legislation B. Original jurisdiction of the Supreme Court, is established on constitutional rather than mere legislative grounds C. Effective instrument to monitor state legislation and actions

Judiciary Act of 1801

Adams appointed 16 federal judges and 42 justices of peace

Why doesn't the SCOTUS (Supreme Court of the United States) have the power to issue the writ of mandamus, according to Marshall? (know the specific constitutional principle it violates but also be familiar with Marshall's broad logic about judicial review - we'll discuss this in class, too)

No court had the power...expos facto

Why is the case Chisholm v. Georgia significant? How was the Constitution changed in response to this case?

The constitution allowed a citizen of one state to sue another state in federal court Ratification of the 11th Amendment: Citizens of one state may not sue another state against its will

"Auxiliary precautions" (from Federalist 51)

The government needs to depend on the the people, but as the Articles taught there are steps that need to be taken by the central government to still protect the people and the itself

What did the Federalists hope to accomplish with the Judiciary Act of 1801? (see Brief 4.3)

The law created several new judicial posts, to which Adams and the Federalist dominated Congress were expected to appoint loyal supporters of the party.

Judicial review

The right of federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if they are judged to be in conflict with the Constitution.

What 3 questions does Marshall ask that provide the structure for his decision?

i. Has the applicant a right to the commission he demands? ii. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? iii. If they do afford him a remedy, is it a mandamus issuing from this court?

What are his answers to q's 1 & 2 - whether Marbury has a right to the commission and whether the laws provide a remedy?

i. Yes, because the president commission him, and the senate confirmed the commission. Anything written is a pure formality, and because the commission and confirmation occurred, Marbury is entitled. ii. Yes, because if you have a right to something, it should be protected. If it's not protected, then the rule of law is violated, and if no remedy is provided, then we do not have a limited government

Marshall divides up question 3 into two sub-questions, what are they?

iii A. Is the remedy a writ of mandamus? iii B. If so, does the writ come from the Supreme Court?

What are Marshall's answers to questions 3A & 3B?

iii A. Yes. iii B. No- according to the Judiciary Act of 1789, writs of mandamus cannot be given by the Supreme Court in original jurisdiction

Chisholm v. Georgia

the Constitution allowed a citizen of one state to sue another state in federal court...11th amendment said citizens of one state may not sue another state against its will

Complete this quote: "It is emphatically the province and duty of the Judicial Department to say...

what the law is."