American Constitutionalism in Historical Perspective (packet)

Judicial Supremacy and the Democratic Objection (packet, pp. 10-134)

1. 
   Questions about judicial review: how to square with democratic principles, gives a non-elected branch of gov’t ultimate say on constitutional issues binding other branches. Madison: judicial rev not legit.
   
2. 
   Other branches can also use power to protect citizens: Allows room for officials to exercise judgments about the violations of human rights. President has right and duty to exercise an indep view and veto legislation he doesn’t agree with, not inconsistent with Marbury.
   
   1. 
      Pardon power and prosecutorial discretion: Jefferson ordered prosecutors not to prosecute under Alien & Sedition Act and pardoned those who had been prosecuted previously
      
   2. 
      Congress’s and President’s constitutionally inferred power to create National Bank and to regulate national economy. McCulloch v. Maryland
      
   3. 
      Veto of National Bank by Jackson; Lincoln’s threat after Dred Scott
      
   4. 
      Pres. Eisenhower’s enforcement of Brown by ordering federal troops into Arkansas
      
3. 
   BUT Art. 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.”
   
   1. 
      S. Ct. must have final review over fed laws, gives judiciary power over a coequal branch
      
   2. 
      Ct established Marbury on solid ground and vindicated human rts by enforcing the law of the case and expanding further. Court bound by its own precedent, must hold the same way in later similar cases. Legitimacy of judicial review desegregated the South
      
4.