Constitutional Law-Deals with the nature of our government structure, which underlies our legal structure. Loosely speaking, entails the powers between branches of government, and especially the role of the constitution in our society.
I. I. The Constitution: The nature and Sources of the Supreme Court’s Authority
A. A. The Constitution
1. 1. Prior to the Const.: Articles of Confederation
a. a. weak decentralized government
b. b. created to lead us through the Revolution
c. c. lacked the ability to tax or raise armies
d. d. people were considered members of states, not of US
2. 2. Constitution as a Revolutionary Document?
a. a. everyone else had a monarchy and no popular election; we created a republic
b. b. no redistribution of wealth
c. c. no mandatory religion requirement
d. d. contains process for amendment
e. e. people give up a few rights to create government: create social order
f. f. popular sovereignty: people have the ultimate authority
g. g. separation of powers/ checks and balances
3. 3. Constitution as a Democratic Document
a. a. no direct election of President, electoral college elects
b. b. senators are chosen by state legislatures
c. c. slaves were counted as 3/5 person
d. d. not every one had the right to vote, only property owning white males
4. 4. Federal-State Controls
a. a. Supremacy Clause Art VI
b. b. 10th Amendment reserved powers to states
c. c. Art IV: “full faith and credit”
d. d. No state shall enter into treaty or alliance
e. e. Guarantee republican form of gov’t to states
5. 5. Const Reflective of Personal Experiences
a. a. no treason, no nobility
b. b. oaths and impeachment
c. c. focuses on civil justice system (A IV-VIII)
d. d. no quartering of soldiers (A III)
e. e. individual rights (XIII-XV)
f. f. promotion of scientific progress
B. B. Judicial Review and Marbury
1. 1. Intro
a. a. tension of a democratic society v. the oligarchic decisions of the SC
b. b. SC charged with the interpretation of the Const
c. c. Counter-majoritarian difficulty: how does SC get away with decisions that run counter to legislation passed by majority
2. 2. Judicial
f discretion to another branch.
Reasoning: Gov’t is one of laws, not of men. For every right created by law there is a remedy. Const defines the power of the branches and assigns positions.
Issue#3: Is Marbury entitled the remedy of writ of mandamus? NO.
Importance: The Supreme Court is empowered to review acts of Congress and void those which it finds to be repugnant to the Const.
Reasoning: Judiciary Act allowed for mandamus claims to be heard on original jurisdiction. Marshall looked to the “plain meaning” of Art III which confers original jurisdiction in a limited number of cases. Marshall determines that mandamus does not fall within the original jurisdiction provisions and therefore is appellate. Accordingly, the art conflicts with the Const, the act must be declared void.
· · Const is a superior, paramount law of the land
· It is the province and duty of the SC to say what the law is