Students will be able to describe how Marbury v.
Madison clarified and expanded the role of the
Judiciary: the judicial authorities of a country;
Judicial Review: review by the US Supreme Court of
the constitutional validity of a legislative act (est. w/
Marbury v. Madison).
Writ of Mandamus: an extraordinary writ
commanding an official to perform a ministerial act
that the law recognizes as an absolute duty and not a
matter for the official's discretion.
The Scope of Judicial Power
Judicial power is passive and reactive
Hamilton (Federalist) called it “the least dangerous
The Framers viewed the federal judiciary as an important
check against Congress and the President (Checks &
Has no influence over the “sword” or “purse”
Judicial power is ensured via:
Insulation from public opinion
Insulation from the rest of govt.
Judicial Federalism: State & Federal Courts (write down)
The US has a dual court system: state and federal;
they exist and operate at the same time in the same
While each hears certain types of cases, neither is completely
independent of the other. The two systems often interact and
share the goal of fairly handling legal issues.
Why two court systems?
The Constitution created a govt. structure known as
federalism that calls for the sharing of powers between
federal and state govts. It gives certain powers to the
federal govt. and reserves the rest for the states.
The federal court system deals with legal issues expressly granted to
it by the Constitution.
The state court systems deal w/ state constitutions and the legal
issues that the U.S. Constitution didn’t give to the federal govt. or
explicitly deny to the states.
For example, because the Constitution gives Congress sole authority
to make laws concerning bankruptcies, a state court would lack
jurisdiction. Likewise, since the Constitution does not give the federal
govt. authority in most family law matters, a federal court would lack
jurisdiction in a divorce case.
Article III (Constitutional)
Article I (Legislative)
The authority of a court to
hear a case “in the first
The authority of a court to
review decisions made by
The Federal Judicial System
Hear more than 258,000 civil cases and 68,000
criminal cases annually
Use both grand juries and petit juries
District judges are appointed by the president, subject to
confirmation by the Senate, and hold office for life
The Adversarial System
The Inquisitorial System
Judges serve as relatively Judges take an active role
passive and detached
in discovering and
referees who do not argue evaluating evidence, will
with attorneys or
question witnesses, and
intervene as deemed
• Court of law is a neutral arena where 2 parties
argue their differences
• The federal government brings criminal cases
• The federal judiciary decides the cases
Types of Legal Disputes
• Criminal Law
– Crimes against the public
– Liberty is at stake
– Right to governmentprovided attorneys
– Right to trial by jury
• Civil law
– Relations between
individuals, and their
– Typically monetary
The Great Debate over the Proper Role of the Courts
The contemporary debate over the Supreme Court's role
is really a debate about the proper balance between
government authority versus individual rights.
Strict and Loose Construction
Strict: literal reading of the Constitution by
examining the original language of the document
and the intent of the framers.
Loose: a belief in a flexible reading of the
Constitution, taking into account modern values and
Strict vs. Loose
Thomas Jefferson believed in a strict construction of
the Constitution. He believed people should follow
exactly what was stated and allowed in it.
When it came to the national bank, he believed in a strict
interpretation, as well.
On the contrary, he believed in a loose interpretation of the
Strict vs. Loose
On the other hand, Alexander Hamilton believed in a
loose construction of the Constitution, and also the
He thought you could take whatever action you
wanted, as long as the document did not specifically
say you couldn't do it.
Marbury v. Madison 1803 (write down)
Date of the
Facts of the Case
Summary of the
appointed to a federal
judgeship by outgoing
President Adams, was
denied his Commission
by incoming President
argued that the
Supreme Court could
force Secretary of State
Madison to perform his
official duty and deliver
The Court struck
the law on which
based his case.
The power of a court to refuse to enforce a law or
government regulation that, in the opinion of the
judges, conflicts with the U.S. Constitution or, in a
state court, the state constitution
Only a constitutional amendment or a later Supreme
Court can modify the Court’s decisions
How did the concept of judicial review expand the
role of the judiciary?