The Federal Courts and Judicial Review

AP Government and PoliticsWilson: Chapter 14 "Do you ever have one of those

days when everything seems unconstitutional?"

Is the Supreme Court the “weakest” of all branches?

The Supreme Court vs. the President

The Power of Judicial Review

The ability of the federal courts to rule a law of Congress or the states, or an action by federal or state government, unconstitutional. Not unique, but uncommon in the world. Not created by the Constitution explicitly, and its use under the Constitution

was not the first time it had been used.▪ Used before 1787 by state courts to strike down state laws that violated state

constitutions.▪ Was first used in Marbury vs. Madison (1803)

Does it suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one explanation for its absence. 

It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. 

Why should the federal courts have the right of judicial review? Because the Constitution is the “supreme law of the land”, there must be

some person or group who judges when that law has been violated; it cannot be Congress or the President, because they are the ones who need to be controlled by their actions…

“Active” vs. “Passive” branches

Why is judicial review important?

In his opinion for the Court in West Virginia v. Barnette (1943), Justice Robert Jackson explained why judicial review is used to protect minorities against the possible tyranny of majority rule.

He wrote, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections“.

Interpreting the Constitution

There are generally two ways that judges can look at the Constitution when making a decision: Strict construction (aka, judicial restraint, or

originalism)▪ This is the belief that laws should not be struck down by the

court unless the text of the Constitution specifically forbids them; ▪ Typically, a restraint position would not void a law unless the conflict with

the Constitution was explicit, or required little interpretation.

Activism (or judicial activism) ▪ Belief that the job of the court is to apply the Constitution to

current circumstances, and consider the political, legal, economic or religious circumstances of the day when making decisions.▪ Typically, an activist position would void laws by pointing to the “spirit” or

values embodied in the Constitution as applied to current circumstances

The Flying Fish CaseMany people know the first  Supreme Court decision to declare an act of

Congress unconstitutional (It's Marbury, of course), but few people couldidentify the Court's first decision declaring Executive Branch action to beunconstitutional. 

Little v Barreme (1804), called the Flying Fish case, involved an order byPresident John Adams, issued in 1799 during our brief war withFrance,  authorizing the Navy to seize ships bound for French ports.  Thepresident's order was inconsistent with an act of Congress declaring thegovernment to have no such authorization.  After a Navy Captain inDecember 1799 seized the Danish vessel, the Flying Fish, pursuant to

Adams'sorder, the owners of the ship sued the captain for trespass in U. S. maritimecourt. 

On appeal, C. J. Marshall rejected the captain's argument that he couldnot be sued because he was just following presidential orders.  The Courtnoted that commanders "act at their own peril" when they obey invalidorders--and the president's order was outside of his powers, given thecongressional action. 

Marbury vs. Madison

Gay Marriage and the Constitution Text that is at issue:

Prop 8:▪ …SEC. 7.5. Only marriage between a man and a

woman is valid or recognized in California. The US Constitution, 14th amendment:▪ No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.