Constitution is not a legal code.
Stronger central government then provided by Articles of Confederation
Supreme Court has only political capital. No purse, no sword.
They are aware that they have limited political capital and are mindful of where they spend it.
They hesitate to make policy decisions because they are unelected.
They exist as a countermajoritarian institution.
Six different ways to interpret the Constitution.
Textual: look at the text
Prudential: do cost-benefit analysis
Ethical: what is moral
Historical (Originalism): what did the framers think
Structural: look at structure of government for answer
Separation of powers – the legislature makes the laws and the executive enforces them.
Doctrinal: look at case law
Marbury v. Madison: court can review laws and refuse to enforce them.
Judicial Power Clause
The Constitution is the will of the people and it trumps the will of the legislature.
Somebody must be there to say where the line is crossed.
Six Factors to determine if it is a political question (from Baker v. Carr)
If there is a textually demonstrable constitutional commitment of the issue to a coordinate political department, (textual)
A lack of judicially discoverable and manageable standards for resolving it, (textual)
The impossibility of deciding it without an initial policy consideration of a kind clearly for nonjudicial discretion, (prudential)
The impossibility of a court’s undertaking independent resolution without expressing a lack of respect due coordinate branches of government, (prudential)
An unusual need for unquestioning adherence to a political decision already made, and (prudential)
The potentiality for embarrassment from multifarious pronouncements by various departments on one question. (prudential)
Qualifications of congressman: not political. In constitution. (Powell v. McCormack)
How to terminate a treaty is a political question (Goldwater v.
etition yet evading review” – pregnancy. Roe v. Wade. Also, admission to college.
US v. Laird: claimed that gov’t illegally wiretapped him and he was afraid they would misuse the results. Not ripe.
Separation of Powers
McCulloch v. Maryland
“Necessary and Proper” loosely used to mean “convenient”
If Congress is given a power, it must also be given the means to exercise it.
A state may not tax a federal entity because that would mean the people of one state were levying a tax on the people of all other states. This is not valid.
This would be giving a state the power to destroy the government.
This does not apply to regular property tax, etc
US Term Limits v. Thornton
States are not given the power to regulate the makeup of the federal Congress, even by placing limits on who can represent their own state.