PROF. KANNAR FALL 2015
Is it fair to regard the Constitution as revolutionary? YES
There is No King (biggest development of the Constitution)
“We the People” (government based upon the people)
No religious tests to hold office (you don’t have to believe in anything to hold office, i.e. Catholic)
Concept of Federalism (sovereignty divided – power among the states as well as a central government)
Is it fair to regard the Constitution as democratic? NO
Not representative of minorities – even though women and slaves participated in the revolutionary war (w/o their assistance, winning would be unlikely), the Constitution placed their rights on a back burner
One person ≠ One Vote
Slave states not as representative since slaves can’t vote
U.S. Senate consists of 2 reps. from each state, regardless of population.
Ex. Delaware wildly over representative b/c population of Buffalo
House of Representatives is the most democratic
Supreme Courts Justices are appointed, not elected and their term lasts forever (very undemocratic)
The Idea of Slavery
All white male political universe – “We the people” where the people are the white male society…Hierarchical view of the universe (demonstrated how little things have changed)
Emphasis on liberty not equality, until 13th, 14th, and 15th Amendment
What provisions, if any, do you find surprising?
Members of Congress are constitutionally protected from what they say in Congress (Art. 1, Sect. 8)
No direct connection between the people and the executive and judicial branch (3/4 of elected bodies)
Emphasis on Treason – b/c they are all treasonists themselves
What provisions, if any, do you think need revision?
Amendment VII – right to a jury trial where value in controversy is > $20.00
Amendment XIV – provides equal protection under the law (sect. 1), but voting rights only to white male (sect. 2)
What additions to the Constitution, if any, ought now to be made?
Right to bear arms – clarify
Balanced budget amendment
Right to privacy amendment
Individual Rights (sexual orientation. Medical care, etc.)
Supreme Court Justices unremovable; SC decisions only reversible by amendment
JURISDICTION AND JUDICIAL REVIEW ê NATURE OF SC AUTHORITY
MARBURY V. MADISON 1803-pg. 2
àThe Court defines what the law is when § conflicts w/ Const.
** Gives SC power of Judicial Review** (Not really a surprise…Article V – Supremacy Clause)
FACTS: Marbury awarded commission by President Adams right before he left office, but never delivered to him (can’t become justice of people w/o paper). The Secretary of State, John Marshall, never delivered (got lost on his desk). The new Secretary of State, James Madison, was advised by Jefferson (new President) not to deliver the commissions the previous administration issued. Marbury filed suit directly with SC requesting writ of mandamus to compel Sec. of State to deliver commission, under Sect. 13 of 1789 Judiciary Act, developed by Congress.
Marbury’s assumption is that SC has original jurisdiction to issue writs of mandamus under the Judiciary Act. Madison ruled that it is “emphatically the province and duty of the judiciary to say what the law is.”
ISSUES & Did Marbury have a right to his commission? Yes. The commission
HOLDINGS: was signed by the President and had the seal of the U.S. – complete.
Did Marbury have a judicial enforceable remedy? Yes. If there’s a right, there’s a remedy.
Was Marbury entitled to Mandamus from the SC? No. Marshall found that the SC lacked jurisdiction in this matter, having only appellate jurisdiction.
In general, is the writ of mandamus a proper remedy? Yes.
RULE: Judicial Review by the Supreme Court is in place to ensure that laws conform to the spirit and letter of the constitution.
If there is a conflict between the Constitution and a Congressional provision, the Court has the authority (and duty) to declare the statute unconstitutional and refuse to enforce it. Constitution is paramount
The Court, not the legislature, says what the law is. To deny the Court judicial review is unconstitutional.
DISCUSSION: Conflict between law (congress) and constitution.
The Judiciary Act is in conflict with Article III of the constitution wherein there is a list of specific cases where the SC is allowed original jurisdiction, all other cases SC has appellate jurisdiction. If not in list in Article III under original jurisdiction, SC can’t hear originally.
Constitution does not preclude Congress from expanding SC powers, but constitution has an explicit list wherein SC has original jurisdiction and all other cases appellate jurisdiction…MEANS ALL other cases. Since constitution specifically outlines where SC has original jurisdiction and the writ of mandamus is not in
he Supreme Law of the Land and must be complied with by all of the states, even if they are not parties to the original case. Asserted the court’s prior decision in Brown v. Board of Education, calling for desegregation.
Once the Supreme Court clearly states a rule – All states must comply.
SC is the ultimate interpreter of the Constitution.
* Idea of SC finality*
SUPREME COURT & INSTITUTIONAL PROCEDURE
How do you get to the Supreme Court? (almost all cases are appellate)
File Papers – petition for review (writ of certiorari – set of papers that address certain legal issues (ambiguity or conflict of law)).
Conflict between state courts on federal issues that are extremely important.
Congress had mandated SC review.
Internal Procedure – SC has almost complete control over its docket. If wants to hear a certain case, can find out. Can decide that it wants to decide (a certain to case). If 4 members of SC want to hear a case in full, will do so. “Rule of Four.” Needs to be on someone’s “discuss list,” rather than simply on a list.
There are leaks from the SC.
SC does not take lower court case in order to sustain decision (majority of cases taken are reversed).
Docket of SC has decreased significantly.
Basically 2 routes to SC:
Circuit Court Ü SC
Highest Ct. in State Ü SC
Original Jurisdiction (basically claims between 2 states). Court can appoint a “master” (does not have trials) who makes a recommendation to Ct., parties argue in SC whether master’s recommendation should be accepted.
If SC does not take your case, decision of lower court stands.
If SC has a tie, decision of lower court stands.
If SC takes your case…3 Briefs
Brief of Petitioner,
Brief of Respondent and
Reply Brief (Petitioner’s Response to Respondent).
Oral Argument (20-30 min. for each side) – October through April (2 weeks out of each month).
Meet on Fridays to discuss that weeks cases (only 9 justices in room). Chief Justice asks for everyone’s opinion…Drafts decision (dissents written).
Get Majority – 5/9 works.
Judicial Activist v. Judicial Restraint