Judicial Review and

Constitutional
Interpretation
BY: SAEED HUSSEIN MARANDI, UCLA CLASS OF 15
HISTORY, B.A.
What is Judicial Review?

The ability of American Courts and specifically, the US Supreme Court, to

review legislation passed by Congress and (eventually) individual states
and determine whether it is constitutionally sound.
Constitutional/Unconstitutional
Does said legislation go against Constitutional Principles (Any of the
Articles/Amendments)?
American Legal System:
Common Law
For reference: Oliver Wendell Holmes book The Common Law.
What is Common Law? Where does it come from?
Legal System inherited from England; laws decided on a case by case
basis.
Emphasis placed on Precedent.
Idea of Stare Decisis.
I took the road less traveled and it has
made all the difference. And it also led
to Judicial Review.
True of False: Judicial Review is explicitly
mentioned in the United States Constitution??

How did Judicial Review come to be?

-> Marbury vs. Madison (1803)
Where could Judicial Review be
derived from?
Article III of The Constitution: The judicial power of the United States, shall
be vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish. . . . The judicial
power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority. . . . In all cases affecting ambassadors,
other public ministers and consuls, and those in which a state shall be
party, the Supreme Court shall have original jurisdiction. In all the other
cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under such
regulations as the Congress shall make.
The Supremacy Clause from Article
VI (6)
This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding. . . . [A]ll
executive and judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this
Constitution.
Constitutional Interpretation

Constitutional Originalism a.k.a. Original Intent

--Proponents of this theory/thinking
--Origins/Resurgence/Federalist Society
Living Constitutionalism, a.k.a. the idea of a Living Constitution
Oliver Wendell Holmes: The life of the law has not been logic; it has been
experience... The law embodies the story of a nation's development through
many centuries, and it cannot be dealt with as if it contained only the axioms
and corollaries of a book of mathematics.
Thurgood Marshall: The Constitution does not prohibit legislatures from
enacting stupid laws.
Can it all be found in the Constitution?
Hidden Concepts.
Griswold v. Connecticut (1965)
What is the Right To Privacy and where does it come from?
What does this entail/imply?
How has it been applied and what legal issues does it deal with?
Notable Supreme Court Cases:
Constitutional Interpretation in
Practice
McCulloch v. Maryland (1819)
Youngstown Sheet and Tube Co. v. Sawyer (1952)
Brown v. Board of Education (1954)
Engel v. Vitale (1962)
Baker v. Carr (1962)
Gideon v. Wainwright (1963)
Roe v. Wade (1973)
United States v. Nixon (1974)
Notably bad Supreme Court cases for
examination:
Dred Scott v. Sanford (1857)
Plessy v. Ferguson (1896)
Lochner v. New York (1905)
Korematsu v. The United States (1944)
FDRs Court-Packing Plan
Bowers v. Hardwick (1986)
Citizens United v. FEC (2010)
Tossing out the Voting Rights Act in 2013
Constitutional Mishaps Part II:
This is awk. I just cant.

Abraham Lincoln suspending Habeas Corpus during The Civil War (5th
Amendment)
Wiretapping/NSA (Right To Privacy)
Guantanamo Bay (8th Amendment)
Controversy over Judicial Review:
Opposing Viewpoints
Judicial Review as an important function of one of our branches of
government and an appropriate exercise of power from the Judiciary.
Judicial Review as Judicial Activism.
Future Issues that Judicial Review may
resolve:
Gun Laws/Gun Control/Ownership
Right To Live/Medical Decisions/Euthanasia
Healthcare Laws/Legislation
Legalization/Regulation of Drugs
Political Campaigns/Financing
Capital Punishment
A jaded, but inspiring Political Science
Professors thoughts on the US
Constitution:
The Constitution means EVERYTHING, and NOTHING, at the same time.
Judicial Review and The U.S.
Constitution: The Ultimate Question

Role of Judicial Review in past, present, and future

Notable Figures and Activists, their roles in history
The Ultimate Question
Great Legal Thinkers for Independent
Reading
For your learning/consideration:
Alexander Bickel, Robert Bork, Ronald Dworkin, Richard Epstein, Richard
Posner, Alan Dershowitz, Charles Ogletree, Akhil Amar, Oliver Wendell
Holmes, Erwin Chemerinsky, John Paul Stevens (books by), Thurgood
Marshall [books by].
https://www.oyez.org The Oyez Project.