Arbury And Judicial Rreview Cases

Front 1

Home Building and Lona v. Blaisdell (1934)

Back 1

Rejects originalist view on the contracts clause where a state law put a moratorium on foreclures during the depression, cites McCullough “It is a constitution we are expounding.” BUT “War power does not remove constitutional limitations safeguarding essential liberties

Front 2

Political Check on the Court – Ex Parte McCardle (1869)

Back 2

Congress strips SCOTUS of its appellate jurisdiction over habeus corpus for political reasons. ALSO precluded court from hearing case even when the case was already pending when congress acted

Front 3

Calder v. Bull (1798)

Back 3

Debate over judicial appliciation of natural law. Chase writes for majority, holding that a state law cannot deny inheritance to will beneficiaries. Iredell writes that there is no fixed standard for “natural law”, and the approach invites judicial activism.

Front 4

Boumedien v. Bush (2008)

Back 4

– Example of Jud Rev. of federal legislation. Struck down sec. 7 of Military Commissions Act, which stripped courta of jurisdiction to hear habeus cases at Guantanamo bay. Court held that alternate measures, called for in Detainee Treatment Act, were not sufficient.

Front 5

Arguments for Jud Rev

Back 5

Check on majoritarian tyranny.

Protect the rights of groups relatively unable to participate in the political process.

fed 48 - The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.

Fed 47 - Fed 47 Madison – Each branch need not be wholly free of influence from one another as long as no one completely controls another.

Fed 78 Hamilton – Judges have life tenure, stands as a barrier to the encroachments and oppressions of the representative body.

Fed 78 - Limitations on the leg such as no bill of attainder or post facto law can be preserved in no way but insulating the legislature. “does not suppose the judiciary superior, only that the power of the people in superior to both, the people having ratified the constitution

Front 6

Arguments against judicial review

Back 6

Countermajoritarian – Gets in the way of democracy. Forces Living legislatures to conform to the judgement of long dead framers. Argument against – Court enforces the constitution, which itself was ratified by a whole series of majorities, namely the representative bodies that compromised and ratified the constitution, at a time when the people had a heightened democratic awareness.

Judges do not represent a cross-section of American Society.

Causes Legislature to ignore principles, which they feel are guaranteed by the const., and which the court will enforce if need be, so leg will do whatever it may. Deadens moral responsibility.

Judges will not enforce framers but their own views on society. Answer back, the constitution was not meant to be completely inflexible and limited to framers intent.

3. Often divides the country, causes the problems.
5. Law changes as the court changes.


6. Invites Activism, judges applying their own opinions, making judgements on question which might not have one right answer.

Front 7

Originalism as an answer to anti-judical Review

Back 7

Answer to jud. Activist concerns – Strict originalism makes intrepretation more mechanical and rule-like.

Problems with originalism:
-May not have been one intent.
-Did rafters intend a broad, general concept or a fixed meaning? Who decides? Might broad meaning allow the courts too much power over the political branches?


Answers to countermajoritarianism – America is not purely majoritarian or an “untrammeled” democracy. Rather the system has many checks on what the majority can do, one of which is jud. Recv.