Con Law I Study Guide
General Overview of Con Law I
– Who can do what to each other? Where does power lie? Who gets to make certain types of decisions?
– Vertical b/t fed gov and state
– Relationship b/t branches of gov
– Who decides?
– Methods of Interpretation (5 Ways)
o Textualism—premise that when interpret the Const, you use text of it. In most litigation, this only goes so far
o Originalism/ Original Public Meaning const should be applied in accordance w/ either expectations or the intended applications of either the people who wrote it or the people who ratified it
§ Two parts:
· Originally, this meant that you follow intended application of the people who wrote the Const. The idea is that words mean something and if you’re going to interpret, the best way is to restrain and apply only to circumstances where original authors would have intended it to apply
o Ie, original authors didn’t intend the Pres to be the commander of the Air Force.
o They saw the Const as not speaking to a broad array of possibilities
o Also look at the original intent of authors—original interpretive intent
o Problems—philosophically—its difficult to apply original intention to “liberty”—is it some concept of liberty w/ no specifics?
o Also, w/ intent of authors that matters—historians said why do we care about that if concern is democracy, we should care about voters and what they thought
· Original Public Meaningà pay attention to voters and what they interpret—this predominates today
o Is it the concept that we are interpreting?
o Ie—broader purpose was to give Pres power over military units
o Structuralism—inclusive concept of originalism
§ Look at the constitution as a doc and ask myself—what were they trying to do? Interpret doc in accordance w/ overall goals
§ Ie—what authors are trying tod o was set up a representative democracy, therefore when presented w/ const Qs regarding whether campaign ads should be regulated
· Ask, will it promote democracy or not?
§ Looks at broad purposes and makes decision consistent w/ broad purpose
§ Ie, what Const is trying to do is create checks and balances—concerned about dominant power—so Structuralists might say Pres can’t send troops w/o Congressional approval
o Precedent—principle of using prior existing reasoning when trying to resolve new, similar Qs
§ Ex—stacks of paper on desk (desk is Const)
· Don’t have to start at ground zero for a case
§ Question is when is it appropriate to overturn
o Consequentialist—moral based/policy based
§ Ie—Bush v. Gore—role of Ct. as a referee, sometimes to maintain order
· Ct’s role to stop something
· Fairness in way gov treats citizens
Unit I: Judicial Review
– MARBURY V. MADISON
o Historical backgroundà political struggle b/c John Adams and the Federalists and his successor Thomas Jefferson and the Republicans. Just before leaving office, Adams appointed a number of new judges, but Adams refused to recognize those judges whose appointment letters had not yet reached them by post by the time he took office. Marbury(one of those judges) sued Madison (Jefferson’s S
, they have appellate jurs
§ Marbury’s argà Judiciary Act is a regulation from Congress and allows him to bring writ of mandamus in SC
· Problem with arg—Marshall says that the Judiciary Act CANNOT give the SC original jurs over writ of mandamus
· Marshall—look at Section II—doesn’t include w/in original jurs the power to review writs of mandamus
· Congress has no authority to expand original jurisdiction of the Ct
§ Marshall helped establish the power of the Ct as an institution
· Before, it was not how it is today
· Marshall’s agenda was to build the power of the Ct—did this indirectly—said that the Judiciary Act was unconstitutional—Congress could not give the SC that power
· Established power of Ct to strike down act of Congress as unconstitutional—but did this in a way that it did not make anyone do anything
o Key Take-aways from Marbury:
§ We saw that Ct asserted the right to strike down as invalid acts of Congress
§ 1st look at textual complexity of Art III
§ Lawà premise that Congress when exercising the exceptions and regulations, cannot expand the original jurisdiction of the Ct
· Art III lays out fed jurisd, and divides it into original and appellate
· Orig juris cannot be altered by Congress
