Con Law Outline
Constitution & Judicial Review
Separation of Powers: horizontal allocation of power within a single form of government
Federalism: Vertical division of power between two different levels of government (federal & state)
1) Equal protection- when can the government discriminate?
2) Due process- what does liberty include?
Preamble: We the people of the United States…
-summary of why the Constitution was written and what they wanted to achieve
What is meant by “we the people”?
-This is being created by the people and not a monarch- the source of sovereign authority is the people
-There is a sense of oneness…is this a contract among states?- could be…this sets the ground rules of the states…however, this really can be said to go over the heads of the states and straight to the people
What is meant by “in order to form a more perfect union”?
There was a weak central government…many problems
Congress was given many powers- power to tax in order to pay for the common defense and general welfare
-How does the government tax the states?
They tax people individually
Domestic tranquility- wanted to prevent wars between the states and between the federal government and the states
*The Federal government regulates the people now
The Federal laws are supreme…when state and federal law conflicts, the federal law wins. However, because they are supreme, they are limited…what in the Constitution limits the power of the federal government
Make-up of Constitution:
Article I: Legislative Branch
-Section 8: enumerated powers
Article II: Executive Branch
-Section 3: enumerated powers
Article III: Judicial Branch
-Section 2: enumerated powers
II. Judicial Review
A. Marbury v. Madison:
1) What is judicial review?
Interpreting and applying the constitution in deciding whether a statute or rule violates the constitution
2) When a statute and the Constitution conflict which one should the court follow?
Why is the court allowed to this?
If this is not allowed, Congress would be able to pass any laws and the judicial branch would not be able to enforce its interpretation of the Constitution
3) What are Marshall’s reasons for having judicial review?
1. It’s a written Constitution
Why does this matter? What is it about the judiciary that makes them important in this process?
A judge’s job is to interpret the law and apply it to the facts of the case…make a ruling. To apply the law, judges must understand and interpret the law to know how it applies.
It is the judicial function to interpret the law…Article III created courts, courts have judges, and that is their job
2. What is his point when bringing up provision talking of treason, bills of attainder, & ex post facto laws?
If the courts do not uphold these provisions in the Constitution then it will render the constitution toothless…these are easy cases where there is no real interpretation required…these provisions are clear and violations would be clear
3. Judges take an oath to defend the Constitution. How is this spun into an argument for judicial review?
Judges taking this oath are promising to uphold the Constitution. If a judge stands back and lets Congress walk all over it, they are breaching the oath. Article III says that federal courts can hear cases arising under the constitution…this requires interpretation of the constitution
4. Supremacy clause argument
Article VI…lists the Constitution first among all laws that are deemed to be supreme
I. Definition: Justiciability is the term of art employed to give expression to this dual limitation placed on federal courts by the case and controversy doctrine.
-The business of federal courts is limited to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.
There is no justiciability when:
1) Parties seek adjudication of only a political question
2) Parties are asking for an advisory opinion
3) The question sought to be adjudicated has been mooted by subsequent developments
4) There is no standing to maintain t
ss the case based on non-justiciability.
1) Foreign relations
2) Validity of Amendments
3) Validity of Enactments
4) Duration of hostilities
2) Powell v. McCormack: dealt with refusal to seat a representative
Rule: Divided into two parts
1. When it comes to what the qualifications for a representative are the court can review actions by the House of Representatives because it is not a political question.
2. When it comes to applying those qualifications to specific members, the house and senate are the only judges (there is no judicial review) and it is a political question
3) Nixon v. US: Whether Senate Rule XI, which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause, Article I section 3 is a political question
Holding: What an impeachment trial is supposed to look like is a political question because it has been textually committed to the Senate, you can’t allow the judiciary to review an impeachment of a judge (essentially undercuts the check), and there is a need for finality
4) Political Gerrymandering: redrawing lines to try and stack the deck in favor of one political party (maximize number of votes)
How can it be political without being partisan?
Redrawing lines to try to keep equal representation depending on where people live…need to periodically look at where people have moved to in order to adequately represent those areas
-Issue that comes up: Politics must play some part in redrawing districts, but this can’t go too far