parent nodes: administrative common law | agency adjudication | agency decisions of fact | agency decisions of law | Amendment V | Amendment X | arbitrariness review | Article III | Constitution | Cooper v Aaron | economic substantive due process | exhaustion of administrative remedies | Fletcher v Peck | judicial power | judicial review | Marbury v Madison | Martin v Hunters Lessee | nondelegation | rational basis | reviewability | separation of powers | standing | substantive due process

judicial review

Sources of constitutional interepretation
[McCulloch v Maryland]
- "it is a constitution we are expounding" -Amendment X doesn't stand in the way of implied powers, because it lacks the word "expressly" as used in similar language in the Articles of Confederation
-the common-sense meaning of words (e.g., "necessary") may be used in their interpretation
-judicial hesitation: courts shouldn't inquire too deeply into just how "necessary" Congress thinks something is
-courts can look to the whole text to see the function of a particular clause (ex., whether the necessary and proper clause was intended to enlarge or reduce the scope of Congressional power)d
-"representation-reinforcement": asking whether representation in this case acts as an effective safeguard against abuse of power (ex. arguing that allowing MD to tax the bank would undermine the representation of the whole people in Congress by giving undue power to MD itself, who could effectively tax everyone in the country as it wished without any representation)


Power of the court
Marbury v Madison
Cooper v Aaron ("the federal judiciary is supreme in the exposition of the law of the Constitution" so that the Supremacy Clause applies to statements of the court over states)

Note the problems of overenforcement and underenforcement, based off whether the Court can convince the other branches to follow it and how the branches will act if the Court does not make a statement (which could risk its credibility).
[McCulloch v Maryland]
-federal government doesn't need state consent to put banks inside the states, because states are not separate sovereign entities, but bits of sovereignty parcelled out by the people to create the structure they want (in which the federal government is presumably supreme)
-rejecting argument that while state cannot resist the foundation of the bank, it can still exercise its "acknowledged powers" upon it (that is, the power to tax), on the grounds that sovereigns can only tax things under their jurisdiction, and the sovereignty of the people, not the states, governs the bank -- that is, something broader than the states has created the bank, and the states have no power to interefere with that broader power

Review of state decisions

Martin v Hunters Lessee (establishing federal judicial review of state court decisions)
Fletcher v Peck (establishing federal judicial review of state laws)
[Cohens v Virginia] (extending Martin v Hunters Lessee to state criminal judgments)

Alternatives to judicial review of the states
removal
22 page(s) referring to judicial review
Amendment X
Constitution
rational basis
Amendment V
nondelegation
Article III
substantive due process
standing
agency adjudication
administrative common law
exhaustion of administrative remedies
Fletcher v Peck
reviewability
Martin v Hunters Lessee
judicial power
Marbury v Madison
economic substantive due process
agency decisions of fact
arbitrariness review
separation of powers
agency decisions of law
Cooper v Aaron