A. Articles of Confederation
1. The earliest for of American government.
a. The central government had no ability to tax, which meant no strong, central military.
b.There was very little foreign policy ability residing within the central government, which meant this power stayed with each of the states.
c. “Balkanization” – A term used to describe the effect of the resulting trade barriers that arose between the states as a result of the weaknesses of the Articles of Confederation.
3. The Philadelphia Constitutional Convention:
a. Originally, it was intended to tweak or refine the Articles of Confederation, but instead, the delegates to the Convention threw out the Articles and wrote the Constitution.
b.Convention took place in 1787.
c. Some of the obstacles the Framers encountered:
i. State jealousy – The states did not want to give up the power they had.
ii. No one had ever done anything like this before; No constitution on a similar scale had ever been drafted, therefore, the question in everyone’s mind was, “Would this work?”
iii. The Declaration of Independence had stigmatized a strong central government.
B. The Founders and Background to Founders’ Intent: The views of the Framers ran a gamut of political views (Their views organized from most pro-central government to those favoring a weak central government)
1. Alexander Hamilton
c. Advocate of a strong central government
2. John Adams
3. George Washington – In the middle
4. Thomas Jefferson
a. Held hopes of fulfilling the “agrarian dream”
b.Did not see an urban future
c. Advocate of democracy: Power vested in the people
d.Did not favor a strong central government
5. Patrick Henry
a. Favored a weak central government
b.Most anti-central government
C. Purpose of the Constitutional Convention
1. Draw the lines between the states, central government, and the people
2. Protect individual rights
D. Governments are created to remove aspects of the “state of nature” that render it “nasty, mean, brutish and short.”
1. Under a monarchy, the power to remove those nasty and mean aspects of the state of nature is vested in a king.
2. The removal of the brutish aspects requires that some power is given to the government—powers that would otherwise be vested in the individual. In return, the government protects the people.
3. The US Constitution seeks to divide power and give checks and balances so no one entity of government has too much power.
4. The concept of Federalism
a. A belief that the centralization of power is bad and has the potential to create a despot.
b.Multi-tiered aspects of government are layered between:
i. The federal government;
ii. The states; AND
iii. The people
5. Separation of Powers: Each branch of government shares power with the other two branches.
E. Fundamental Nature of a Constitution; General:
1. It is an outline of government
2. Important objectives need only be outlined
3. Minor ingredients are deduced from the nature of the objects themselves
F. BASIC QUESTION: IS THE BRANCH OF GOVERNMENT ALLOWED TO DO THIS?
II. Canons of Statutory Interpretation
A. Plain Meaning Rule
1. Examine the plain language of the document;
2. Words are to be given their obvious and plain meaning
B. Ordinary Meaning Rule
1. Words are to be given their ordinary or everyday meaning
C. Technical Meaning Rule
1. When words are used in a technical or complex arena, their technical meaning is preferred over their ordinary meaning.
D. Expression Unius Est Exclusio Alterius
1. The expression of one thing is to the exclusion of others
2. The inclusion of an item in statute implies exclusion of similar items
E. Esjusdem Generis
1. “Of the same kind or nature”
2. When a statute takes the form of specific items followed by a general class, it may be inferred that the class includes only those of the same nature as those specifically listed.
3. When a statute takes the opposite form with a general class followed by specific words, the interpretation of the general term must be consistent with the nature of the specific items.
F. Noscitur a Sociis
1. “It is known from its associates.”
2. The meaning of an unclear term may be derived from the meaning of words connected with it in the statute or statutory scheme.
G. Grammatical Rules
1. The grammar of a statute, including its use of specific articles, prepositions or punctuation, will be considered in deriving meaning, particularly in technical areas.
H. The Whole Act Rule
1. The terms of a statute must be construed in accordance with the entire statute, including its other terms and overall function.
III. Judicial Review
A. Issue / Scope
1. THE KEY TO EVERYTHING ELSE
2. IT is the power of the courts to declare acts of the government and governmental actors as unconstitutional that is, void or invalid according to what the court’s interpretation of what the Constitution is.
a. The effect is that the Court can strike down, or say, according to its own interpretation, whether or not the acts of the government or governmental agencies are in accord with the Constitution.
b.The Court is the LAST WORD ON CONSTITUTIONAL INTERPRETATION
3. Areas of review:
a. Supreme Court review of Congress
i. Judicial review established under Marbury v. Madison (1803).
ii. The judicial branch has the final say in interpreting the Constitution.
iii. Key case: Marbury v. Madison.
b.The Supreme Court and review of State Decisions
i. The Supreme Court’s relationship to the states was defined under the early terms found in Martin v. Hunter’s Lessee in 1816 where the Supreme Court of Virginia challenged an order by the US Supreme Court.
ii. Each state, at the outset, jealously guarded their separate sovereignty.
iii. The Court may not review state court decisions that merely adjudicate questions of state law
c. Congressional Control of the Court
i. Article III suggests that Congress may place certain limitations on the Court’s appellate jurisdiction and the jurisdiction of lower federal courts.
ii. See Ex Parte McCardle for an in-depth explanation.
iii. Limitations on Congressional power: Any jurisdictional limit must be neutral, that is, Congress may not decide on the merits of a case under the guise of limiting jurisdiction.
iv. Congress can so choose not to have any other federal courts beyond the Supreme Court (The Supreme Court is REQUIRED under Article III).
v. Starting with the first Judiciary Act, Congress has always legislated the judiciary and has never given the federal courts the full breadth of what they are allowed under the Constitution.
vi. Congressional motive is relevant, according to precedent, to establish whether the government has exercised its power lawfully.
vii. Scope of Congressional Amendment:
· In order for Constitutional permissibility of amendments to the Court’s jurisdiction to be effective, they cannot be of such a nature that they destroy the essential role of the Court.
· The Court’s essential functions are listed as:
à Ultimately to resolve inconsistent or conflicting interpretations of federal law, particularly of the Constitution by state and federal courts;
à To maintain the supremacy of federal law, and particularly the Constitution, when it conflicts with state law or is challenged by state authority.
· Another view is that the legitimacy of the courts rests upon the popular consent of the people—through the legislative body. Any claim that the people consented to the power of the courts would be empty unless it were recognized that the courts could be subject to limitation of its powers by the legislature, the popularly elected body representing the people.
viii. Other methods of political control:
· Article III allows Congress to determine the number of justices on the Court.
· Like all judges in the judiciary, Justices are appointed by the President, and confirmed by the Senate.
· Congress allowed for the Court to hear cases on a writ of certiorari, meaning:
à Writ of Certiorari – A discretionary writ that permits the Court to decide for itself which cases most deserve its attention.
à The Court chooses cases based upon those which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. Vinson, C.J., 69 S.Ct. vi (1949).
4. Non-justiciable politic
dings. Generally seen as supplementing Martin.
3. Ex parte McCardle, 74 U.S. 506 (1869): Congressional ability to control Supreme Court appellate jurisdiction.
a. The appellate jurisdiction of the Supreme Court is limited by any exceptions or limitations that Congress might make.
b.The Court had no jurisdiction to hear the case based off of those restrictions which Congress had legally placed on the Court’s appellate jurisdiction.
c. The Constitution allows Congressional stipulations (amendments, etc) on the Court’s appellate jurisdiction.
4. Nixon v. United States, 506 U.S. 224, (1993): Outlines non-justiciability. Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is one entrusted to one of the political branches or involves no judicially enforceable rights.
a. Plain language contention of Nixon: The word “try” means a trial before the full Senate.
b.In sending this appeal to the judiciary branch, Nixon is essentially asking for the courts to be the final arbiter of punishing their own members.
c. Since impeachment is the only check on the judiciary, it is counter-intuitive to allow the courts to sit in judgment of their own.
i. The Congress is the final arbiter of the impeachment of judicial officials.
ii. This does not conflict with Marbury v. Madison because the Court decided not to decide the case—refraining from making a decision is a decision in itself.
5. Veith v. Jubelirer, 541 U.S. 267 (2004): Non-justiciability.
a. The Court rules that it will not get involved in the gerrymandering case—thus it is a nonjusticiable political question.
b.The Court rules also that the check that exists against gerrymandering is Congressional oversight of state districts.
i. Thus, there is a textual commitment to another branch.
ii. There are no judicially manageable standards since ideologies cannot be managed.
c. Quoting Baker v. Carr, 369 U.S. 186 (1962), there are six independent test of whether or not a political question exists, they are:
i. A textually demonstrable constitutional commitment of the issue to a coordinate political department;
ii. A lack of judicially discoverable and manageable standards for resolving it;
iii. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
iv. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government;
v. An unusual need for unquestioning adherence to a political decision already made; OR
vi. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.
d.Stevens, J. DISSENT: The court has developed standards in cases involving racial gerrymandering. This case, involving political gerrymandering is not really different and the application of similar standards would suffice.
E. Marbury v. Madison, 5 U.S. 137 (1803): Carving out the role of the Judiciary branch. ESTABLISHED THE POWER OF JUDICIAL REVIEW.
1. Background / Timeline of the events:
a. Presidential election
b.Inauguration: 40 new judicial positions are created under the Circuit Court Act.
c. 40 new judges are confirmed
d.The commissions of these judges are signed, sealed, and delivered (except Marbury’s, his is signed and sealed, but not delivered)