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ii. Assumption, not conclusion: Many commentators believe that this criticism is well-taken, at least in the sense that the Constitution nowhere states that courts are to have the last say on whether a conflict between statute and Constitution exists. However, one answer to the critics is to say that Marshall was making an assumption, rather than a deduction, when he stated that courts have the ultimate right to interpret constitutionality. That is, the Constitution can be classified as being “indeterminate” as to who has the final say. When viewed in this way (which is Tribe’s approach; id.), Marshall’s assumption is at least as reasonable as the contrary one (that Congress, not the courts, should decide constitutionality) — this contrary assumption is also nowhere to be found in the Constitution.

iii. Judicial independence: Furthermore, if one is merely trying to decide which assumption to make, there are some practical reasons why judicial interpretation, rather than legislative interpretation, might be a better means of construing the Constitution. Federal judges are appointed for life, and are thus free of day-to-day political pressures. Since Congress generally responds to the majority’s will, and since one of the key functions of the Constitution is to protect the rights of minorities, the relatively apolitical judiciary will interpret the Constitution in a way more sensitive to this minority-protection goal.


A. General principles of review: When the Supreme Court reviews the judgment of a state court, it is of course exercising its appellate, rather than its original, jurisdiction. Article III, §2, provides that the Supreme Court’s appellate jurisdiction may be regulated and limited as Congress shall provide. (See infra, p. 10.) Since the original Judiciary Act was enacted in 1789, the Supreme Court’s appellate review of state court judgments has always been limited to the federal questions decided by the state courts. Tribe, p. 162.

1. No review of state law issues: Thus the Supreme Court may determine whether a state court has reached a decision that is not in conformity with the Constitution; but it may not review state court decisions that merely adjudicate questions of state law. How the Court determines whether a state court decision is limited to state law questions is a problem discussed more extensively below; the main point is that the Supreme Court’s review of state court judgments is limited to questions of federal law.

B. Martin v. Hunter’s Lessee: Recall that in Marbury v. Madison, the Court held that it had the power to review acts of Congress for constitutionality. In the later case of Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), the Court confronted the similar, and perhaps even more important question, of whether the Supreme Court is constitutionally authorized to review the constitutionality of state court decisions.

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