Constitutional-Literacy-3

=**Section 3: Judicial Review and Original Intent**=

British courts cannot declare a law of Parliament to be unconstitutional. This is one of the most important aspects of British law. American courts are based on the British court system. So, how can American courts (Supreme Court) declare a law of Congress unconstitutional? Judicial review is not mentioned in the Constitution. The Supreme Court has used judicial review since 1803. There have been court rulings that conservatives have liked and liberals have criticized. There have been rulings that liberals have liked and conservatives have criticized. It's important to be consistent in your evaluation of Supreme Court authority.

Article III of the Constitution sets up the Judicial Branch. Read Article III of the Constitution below:

Section 1
The judicial Power of the United States, shall be in supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2
1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime ;--to Controversies to which the United States shall be a Party;--to Controversies between or more States; --between a State and Citizens of another State  --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original. In all the other Cases before mentioned, the supreme Court shall have, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 3: The Trial of all Crimes, except in Cases of, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of unless on the Testimony of Witnesses to the same overt Act, or on Confession in open Court. 2: The Congress shall have Power to declare the Punishment of, but no Attainder of shall work, or Forfeiture except during the Life of the Person.

As you can see, there is no mention of judicial review. Section 1 says the judicial power is vested in one supreme court. Section 2 is also vague and says judicial power shall extend to cases arising under this Constitution, the laws of the U.S., and treaties made. It's clear that when states are in conflict, the Supreme Court is the highest court to resolve the conflict. Keep in mind a problem under the Articles of Confederation was that there was no central court system to solve disputes between the states (remember the whole problem over controlling the Chesapeake)? But, what is meant by judicial power? If our system is based on the British system, then we would have to use the British system as a model. Keep in mind, the British system doesn't declare acts of Parliament unconstitutional. Therefore, we cannot automatically say that judicial power means that the Supreme Court has the power of judicial review. By the way, an excellent site to view original intentions of the Constitution is the Founders' Constitution operated by the University of Chicago. [|Click here] to view (you don't need to go to this site for our purposes here).

Another part of the Constitution to look at is Article VI Clause 2

Article VI
2: 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.

Article VI says the Constitution is the supreme law of the land and laws of the U.S., which shall be made in pursuance there of - laws must be made in pursuance of the Constitution. Judges take some of their authority from here too. The Founding Fathers put in Article VI to solve conflict of law. If a state passes a law then ten years later passes a new law that is the opposite, there is a conflict of law. The new law would be the one in effect. Article VI tells how to handle a conflict of laws. The Constitution is always supreme. Laws of Congress are supreme over state laws if as long as laws of Congress are made in pursuance of the Constitution. The Supreme Court takes their authority as being the ones that decide when there's a conflict of laws. This leads to the assumption of judicial review.

In terms of the Founding Fathers, what did the Supremacy Clause mean to those who wrote and ratified it? To get the best ideas, we have to look at the 1787-88 era. It's important to look at records of debates at the Constitutional Convention and debates at state ratifying conventions (better source since elected by the people, but not all records are still around). The //Federalist Papers// as well is a good source since they explained to the public about the Constitution. Dictionaries from that era are also good to see the meanings in 1787 of words used by the Founding Fathers.
 * Comprehension Question: We often talk about the original intent of the Constitution. Where do we look if we want to find the original meaning of the Constitution?**
 * Discussion Question: Why is it important (do you think) to know and understand original intent? What is the goal of knowing original intent?**

The Supremacy Clause is where judicial review can be justified based on original intent.
 * Comprehension Question: If Congress passes a law that violates the Constitution, what text in the Constitution (article and clause) gives the courts the power to declare that law to be unconstitutional and void?**

Oliver Ellsworth was a delegate at the Constitutional Convention, a delegate to the ratifying convention in Connecticut and Chief Justice from 1796-1800. He said "//If the general legislature should, at any time, overleap their limits, the judicial department is a constitutional check//." A similar statement was issued by James Wilson from PA who was a delegate at the Constitutional Convention, a delegate at the PA ratifying convention, and one of the first justices on the Supreme Court appointed by Washington. He said "//If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates//." Federalist #78 says "//The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing//."

It's clear that the intent of the Supremacy Clause was that if Congress passes a law outside the powers of the Constitution, the Supreme Court would be the body that would declare such a law void. There are five steps to look at when looking at Supreme Court cases. First, make a brief summary of the facts. Second, identify the core legal issue in the form of a question. Third, state the holding (yes or no to the question). Fourth, look at the reasoning of the court to justify its holding. Fifth, look at the legal rule that comes from the case you are studying. A great website that lays out the court decisions is Oyez.com.

Marbury v. Madison in 1803 was the court case that first established the Supreme Court's power of judicial review, the power of the Supreme Court to declare a law or act of the government as unconstitutional. William Marbury was appointed Justice of the Peace for D.C. in John Adams's last hours. The official appointment was not delivered before Adams left office. The new president, Thomas Jefferson, told Secretary of State James Madison not to deliver the appointment. William Marbury sued taking his case directly to the Supreme Court. In the early 1800s, Marbury could take this case right to the Supreme Court. Today, he would not be able to...it would have to go through the lower level courts first. Why? In 1789, Congress passed the Judiciary Act, which made a long list of cases that could be brought right to the Supreme Court. Go back up above and re-read Article III and you'll see what cases the Supreme Court had original jurisdiction based on the Constitution. The Judiciary Act gave Marbury the ability to take his case right to the Supreme Court. The question for the Supreme Court though was whether or not Congress had the power to expand the powers of the Supreme Court in terms of original jurisdiction. The Supreme Court answered no - the court upheld the Constitution, but it opened the door for future judicial review. The Supreme Court's failure was they didn't ground their ruling in the text of the Constitution. A good Supreme Court decision is grounded in the Constitution. Over the years, rulings have been based more on the political ideologies of the justices.
 * Comprehension Question: What do we call the power of the Supreme Court to declare a law unconstitutional? What set the precedent of this power?**


 * Discussion Question: The fact that the Supreme Court (in Marbury v. Madison) didn't ground their ruling in text of the Constitution or original intent, how did this open the door for future Supreme Court rulings and how future courts would rule?**

**Overall: Summarize the main idea of this section and why it's important.**

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