American Constitutionalism in Historical Perspective (packet)

A. Constitutional Interpretation by Judiciary (pp. 3-27)

1. Marbury v. Madison, 1803: Marbury had a rt to his commission based on a valid act of Congress. But clear meaning of Article III w/holds Congress from allowing Judiciary Act to grant mandamus to the SC. Mandamus only proper in original j/d of the court but this case isn’t part of SC original j/d, should be brought in lower fed or state court, come here for appellate review. . Holding of the case that S. Ct. has no remedy, but also asserts power of judicial review by striking down 1789 Judiciary Act.

   1. Distinguishes political from non-political constitutional questions: political questions should be left to congress, only invalidate under rule of clear mistake.

   2. 
      Judicial duty to defend the written constitution: c/n make decisions that disregard the constitution if expect it to have authority. (but see French Republic where constitutional shifts are common). Have to exercise the power of judicial review to uphold integrity of the constitution.
      
      1. 
         Apply Article III as supreme over other laws b/c of unique democratic process used to ratify it
         
      2. 
         Judicial oath to uphold Constitution as supreme law.
         
   3. 
      Judicial duty to defend individual rights: aggrieved individuals have right to go to an indep judge and get adjudication of their rights under the law.
      
   4. 
      Inferential claim: Judicial review in state cts not controversial---see supremacy clause. SC has appellate j/d over state cts thus should have same power of judicial review.
      
   5. 
      Parity argument: If state cts have this power of judicial review, lower fed cts should have it. However, argument only works if look at historical understanding of state power over federal and state laws, so fed ct should have power over fed and state laws.
      
   6. 
      Legitimacy of constitution rest on protection of human rights. What ultimately legitimated written Constitution is that it upheld human rts against degradations of democratic majority. Judiciary may play role where state is oppressive of it citizens.
      
2. 
   Constitutional Enforcement
   
   1. 
      Cooper v. Aaron (1958): the Court is the ultimate or supreme interpreter of the Constitution (Little Rock Governor’s opposition to public school desegregation after Brown) The interpretation of the 14^th A enunciated in Brown is the supreme law of the land and under Art 6 has a binding effect on the states.
      
   2. 
      Dickerson v. US (2000): Article V says that Congress may initiate an amendment to the Constitution and the amendment process can be used to overturn a constitutional interpretation of the Supreme Court. But Congress c/n overturn a constitutional interpretation by a statute. (disallowed 18 USC §3501 which overruled Miranda v. Arizona by requiring that the admissibility of suspects’ statements made during custodial interrogation turn only on whether or not they were voluntarily made and not whether a Miranda warning was given).
      
3. 
   Constitutional amendment is constrained by:
   
   1. 
      a lack of political and geographic consensus
      
   2. 
      political culture of self-restraint
      
   3. 
      Constitution’s text is interpreted by the SC w/ considerable latitude
      

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