Jacob
ConLaw
Fall 2010
1. In the U.S. political power begins with the people.
2. The representatives we elect become our agents, servant & trustees
3. It isn't our representatives' power that they are exercising, it is the power of the people that they exercise.
4. In our system, to get rid of someone who doesn't exercise the power of the people in the way the people desire, we vote them out of office
5. 3 branches of government
a. Legistlative Branch
i. Most important because it has closest tie to the people
ii. 1st article in the Constitution grants legislative powers
iii. Makes the laws
b. Executive Branch
i. Elected by the people
ii. Executes the laws
c. Judicial Branch
i. Interprets the laws
d. Separation of powers doctrine – the three branches should not interfere with each other
6. 7/4/1776 – Declaration of Independence
7. Articles of Confederation created at the end of the Revolutionary War
8. James Madison
a. Father of the Constitution
b. Took notes on the discussions held to create the Constitution
9. Central Government is a government of delegated / granted powers
10. In order to create a law, the government must determine that it has the power to enact the desired law
11. State government can do whatever it wants WRT creating laws, except for those powers granted to the Federal Government
12. Adoption of the Constitution
a. Each state had to ratify/adopt the Constitution
b. States were afraid that the Fed Govt would take away the rights of the people
c. States demanded that the Fed Govt adopt a Bill of Rights
13. 1st 10 Amendments are the Bill of Rights
1st Amendment
Freedom of Religion
2d Amendment
Right to Bear Arms
3d Amendment
No Quartering of soldiers
4th Amendment
Search & seizure
5th Amendment
Grand Jury for capital crimes, double jeopardy, self-incrimination, due process, taking of property
6th Amendment
Speedy trial, witnesses, defense counsel
7th Amendment
Jury trial
8th Amendment
Excessive bail or fines, cruel & unusual punishment
9th Amendment
Enumeration of rights
10th Amendment
Reservation of Powers of the States
14. Constitution
a. Preamble
b. Article I – Legislative Powers
c. Article II – Executive Powers
d. Article III – Judicial Powers
e. Article IV – State Powers
f. Article V – Power to Amend
g. Article VI – Supremacy Clauses
h. Article VII – Ratification of the Constitution
15. Marbury v. Madison, 5 U.S. (1 Cranch), pp. 17
a. Decided that the Supreme Court has the power to enforce the constitution and determine if a law is unconstitutional
b. In Great Britain, the Parliament makes this decision
c. John Adams
i. Federalist
ii. wanted strong central govt
iii. Appointed commission of Marbury at the end of Adams' term (midnight legislation)
d. Thomas Jefferson
i. Republican
ii. wanted weak central govt
iii. Appointed James Madison as new Secretary of State
iv. Repealed “midnight legislation”
e. Mandamus action filed by Marbury as an original action in the U.S. Supreme Court
f. In order to prove mandamus, one must show:
i. A govt official has a specific duty to perform
ii. That the official's duty is not discretionary, but mandatory
g. Section 13 of the Judiciary Act of 1789, footnote on pp. 24
i. “The Supreme Court shall . . . have power to issue writs of mandamus . . . to any persons holding office under authority of the United States.”
ii. Is this statute consistent with the Constitution?
iii. Chief Justice Marshall finds that:
1. This statute is unconstitutional,
2. The Supreme Court does not have jurisdiction to hear this request for a writ of mandamus
3. He has the power to declare a statute unconstitutional because he is required by Article VI [3] of the Constitution to give his oath to support the Constitution
h. Marshall also asserts the power of the Judiciary over the Executive and Legislative Branches
i. See pp. 21-22
i. The Federalist, Essay 78, Alexander Hamilton, if there is a conflict between the Constitution and a Statute, the Constitution is preferred
Cooper v. Aaron, 358 U.S. 1 (1958), pp. 30, section 8
o Ordered public schools in Arkansas to be desegregated
o Arkansas argued that they were not a party to the case Brown v. Board of Education in Kansas therefore they are not bound to follow the precedent set in it.
o Supreme Court ruled that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.” and therefore their decisions in that aspect are the Supreme Law of the Land and therefore they apply everywhere within the U.S. IAW Article VI [2] of the U.S. Constitution.
o When the Supreme Court hands down a decision that involves the interpretation of a part of the U.S. Constitution, the Court's decision, in effect, becomes a part of the Constitution and that decision becomes applicable to all persons in the United States.
· Courts have the power of judiciary review.
· Any governmental entity that adopts a statute that is in conflict with the Constitution, that statute is not valid.
· The power to declare a statute unconstitutional should be used sparingly.
· All statutes should be presumed to be constitutional. This places the burden of proof upon those who would challenge the statute.
· If the court can decide a case using a lesser solution than declaring a statute unconstitutional, then it should use the lesser method.
· States are required to follow the U.S. Constitution and Supreme Court decisions. Art.VI – Supremacy Clause
· Can State Courts make final decisions regarding the interpretation of Fed
eller
Handguns could not be kept in D.C. without a license
Handguns must be kept disassembled,
U.S. v. Miller said that the 2d Amendment is a Group Right
Operative Clause: “the right of the people” is used in the 1st & 4th Amendments
Pp. 63, footnote 3: test used by the court
Reason for different standards of review:
There are some constitutional issues that are much more important than others, and therefore the court uses strict scrutiny on the most important issues
See pp. 623-625
1938 court began using different levels of scrutiny
Footnote 4 – Chief Justice Stone suggested different levels (see pp. 624)
Most Important Facts Covered Today:
D.C. v. Heller
o Declared 2d Amendment as an Individual right
o Without very good reason, the gov't cannot ban the ownership of weapons by an individual
o Use of History to Interpret Constitution
· Majority Justices point to English Bill of Rights as Basis for our Bill of Rights
§ English Bill of Rights included provision for individual ownership of weapons
· Minority Justices point out that 3 large cities prohibit or limit use of firearms within city limits
Congressional Power to Limit Judicial Power, pp. 64-67
Exceptions & Regulations Clause of Constitution: Article III, Section 2 [2]
“with such Exceptions, and under such Regulations as the Congress shall make.”
Ex Parte McCardle, pp. 67
o McCardle is Southern Newspaper Editor
o Wrote several articles that were critical of Military Governor in the South
o Arrested & held unjustly
o Appealed to Supreme Court
o Supreme Court denied United States' motion to dismiss
o Legislature took away Supreme Court's ability to review on appeal
o Court recognizes Congress' power to make exceptions with regards to the appellate jurisdiction of the Supreme Court
Habeas Corpus – Article 1, Section 9 [2]
o “Next Friend” can file for a Writ of Habeas Corpus when someone is unjustly imprisoned
o Petition is filed in district or state where person is confined
o Court issues order to Respondent (Jailor) to have the body (person) before the court within a few days
o Imprisoned by court who doesn't have jurisdiction
o If Constitutional Rights were violated during trial, you can file Writ of HC
o During 1st year of Civil War, Pres. Lincoln was told that comms would be cut off so he suspended Writ of HC in certain area of Maryland. Merryman was arrested & filed petition for Writ of HC. Tawney (later of Supreme Court) was Circuit Judge & ruled in Merryman's favor stating that the President did not have the power to suspend HC. He based this upon the fact that HC is located in Article 1 (Powers of Congress) that only Congress had this power.
