Outline: Constitutional Law I - Government - I - Judicial Review

Constitutional Law I - Government (Spring 2006, Burcham)

I. JUDICIAL REVIEW

1. Legitimacy [Marbury v. Madison - Laid out foundations of analysis]
   1. Does the government have the power?
   2. What are the limitations on this power?
      1. Structural
      2. Textual
2. Congressional Control
   1. Supreme Court
      1. No limits on regulating jurisdiction
      2. Congress may regulate number of justices
   2. Lower federal courts
      1. Ex parte McCardle - Congress may withdraw Supreme Court appellate jurisdiction over appeals from lower federal courts, but not ex post facto. Note: McCardle got his day in court.
      2. US v. Klein - Congress may not dictate how courts must decide facts, such as whether a recipient of a pardon has in fact given aid and comfort to the enemy. Note: Klein hadn’t gotten his day in court yet.
   3. Analysis
      1. What was the purpose in restricting jurisdiction?
      2. Structural limitations (separation of powers)
         1. Congress may not insulate all of its actions from judicial review
         2. Congress may not overturn the Court on a Constitutional matter
         3. Congress may not dictate to the Court how to decide a case
      3. Textual limitations