Basic Assumptions and An Exercise Relating to Marbury v. Madison and Eakin v. Raub

Basic Assumptions in Marbury

• The Constitution is a set of legal rules
• The rules in the Constitution are supreme
• The rules embodied in legislation are inferior
• When they conflict, inferior rules must give way to superior rules
• Judges determine what rules to apply
• The Constitution itself, not what the judges want the Constitution to be, prevail

An Exercise

Assume that Congress has proposed the following amendment to the Constitution:

    "The judicial power of the United States shall not be construed to authorize any court to declare invalid any statute of Congress or to refuse to enforce such statute in any matter before it.

    "This amendment shall be deemed to have been ratified if approved by a majority of those voting at a national referendum to be called for such purpose.

    "This amendment shall take force and effect the day after the results of the national referendum have been been duly certified by the Federal Election Commission or other body so designated by Congress."

    Following adoption of the amendment in the manner prescribed a person is found guilty of a newly enacted federal statute making criminal the performance of an abortion.  In the trial the accused claims in his defense that the criminal statute is unconstitutional.  After his conviction and subsequent affirmance of the conviction in a U.S. Court of Appeals, he brings the case to the United States Supreme Court.

    Before the high Court he claims (1) that the amendment was not properly ratified and is therefore void and (2) that even if process was valid the amendment is void because the amending power does not extend to abolishing the Court's power of judicial review. 

    The following questions need to be addressed: 

• Does the Court have jurisdiction in this case?  Why?  Why not?        
• What is the status of an amendment that was approved by referendum?  Explain
• If properly adopted, does this amendment impose a valid restriction on the power of the federal judiciary?  Explain.
• Is the law in question constitutional?   Why?  Why not?