CONLAW NOTES 10/11

Marshall doesn't really address the question of why judicial review isn't mentioned at all in the constitution (whoopsies... maybe there was a reason he didnt...)

Marshall's task was to transfer the idea of 'constitutional supremacy' into 'judicial supremacy' to 'judicial review'
here's how he did it-
-1st- established the constitution was higher law
-2nd- established tha the constitution is SUPERIOR law
-3rd- established that the constitutional supremacy clause is ENTRENCHED

-if you take these arguments together and put them in a WRITTEN constitution,
-the underlying theory of a written constitution is that an act 'repugnant to the constitution' is void
-continues by saying that judges as well as legislatures must conform to the constitution in deciding cases or controversies
-the judges have to decide in favor of the constitution
-therefore, 'it is emphatically the province and duty of the judicial department to say what the law is.'
-judges cannot enforce a law that is repugnant to the constitution

constitution is paramount to federal law
government has enumerated power
that the judiciary checks the government is in the constitution

the leap from those principles to EXCLUSIVE judicial review is NOT persuasive

why?
-this is a government of limited and delegated powers. why is the court not so limited and delegated?
-are the legislature and the executive also given constitutional review powers? possibly.... all branches of gov't at some point claimed constitutional interpretations
-marshall's argument of the judicial oath is ridiculous, because the rest of the government takes the same oath

an opinion or parts of an opinion that exceed what is necessary to decide the case- obiter dicta
-technically speaking, the only parts of an opinion that matter are those directly pertinent to the case itself, the rest is just filler
-does NOT carry the weight of precedent
-BUT, if a later court likes it, they'll still use it

departmental theory of judicial review- each department has the authority to interpret constitution in their own interest
-most historians believe that marshall didnt want to take judicial review as far as it happened to go
-one of the reasons for this was that the political situation was very tenuous
-marshall expected to be impeached for his political beliefs, so he probably didnt actually want to be so bold