TOPIC #11 — THE ORIGINS OF JUDICIAL REVIEW

Q1      Why would the provisions in a “Hobbesian” constitution be simple and straightforward to interpret but provisions in a “Lockean” constitution inevitably be ambiguous and difficult and interpret?

Q2      Does the Constitution give federal courts the power of judicial review, i.e., to interpret authoritatively the Constitution by (for example) reviewing a law passed by Congress and, if the court judges it to be incompatible with the Constitution, declaring it to be “unconstitutional” and “null and void”?

Q3.     Federal courts are now acknowledged to have this power of judicial review. How do courts exercise this power? In particular, why are laws sometimes declared unconstitutional only long after they have been passed and implemented?

U.S. Constitution, Article III

          Supreme Court vs. inferior courts

          original vs. appellate jurisdiction

Judiciary Act of 1789

          fixed size of Supreme Court (Chief Justice plus five Associate Justices)

          created inferior courts (13 District Courts plus three Circuit Courts)

allocated powers and, in particular, empowered federal courts to issue writs of mandamus

Constitutional interpretation: Hobbesian vs. Lockean constitutions

e.g. “Congress shall have the power ... to regulate commerce ... among the several states” (the “interstate commerce” clause [Art. I, Sec. 8(3)])

Judicial review: Hamilton, Federalist 78

Marbury v. Madison (1803), Chief Justice John Marshall

          election of 1800: Federalists vs. Republicans

                     “lame duck” Congress and President

                     "midnight appointments"