CON LAW, Spring 07
Nowlin, § 1
· A government derives its power and legitimacy from those who it governs
o The Founders felt that government is created to protect rights of citizens, and when government fails in this respect it is the duty of the citizenry to create a new government
o Popular Sovereignty: the foundation of all governments is the consent of the governed
· Declaration of Independence (1777)
o All men are created equal with certain inalienable rights
§ Life, liberty, and the pursuit of happiness
§ The ultimate guarantee of liberty is the people
o Set up the basis for the Constitution
§ Major theme in the DOI is federalism, which was further expanded in the Constitution
o Set up the idea of a “Bill of Rights”
§ List of grievances against King George III; the founders felt that this list enumerated the rights that should be protected
· Constitution of the United States
o Sets up the ideals of the DOI in a structural form
o Federalism: founders were afraid of an all powerful central government so left many governmental powers to the States by enumerating the powers of the National government (Article 1)
o Separation of Powers: founders split the central government into three separate branches with the hope that the branches would check and balance one another; this would inhibit any one branch from becoming all powerful.
§ Legislative: Congress; Article 1; make laws
· Bicameralism: two house legislature to further weaken its power
§ Executive: President; Article 2; enforce laws
§ Judicial: Supreme Court and other courts; Article 3; interpret laws
o Bill of Rights
§ A guarantee that the National government would not infringe upon certain rights (at the time these did not apply to the states)
· The powers of the Judicial Branch are set up in Article 3.
· The most controlling power of the judiciary is judicial review (Marbury v. Madison and Allen v. Wright)
o Judges and lawyers comprise an aristocracy, or juristocracy, and wield inordinate power in their ability to make rulings on the law. Is this true? If so, is a bad thing?
§ Populist thought: yes
§ Anti-populist thought: no, those who know the most about the law should make rulings on the law.
· Texas v. Johnson: Texas statute made burning the FLAG illegal; Johnson claimed that this statute was a violation of his constitutional right to free expression. The SC agreed.
o Brennan (majority): the burning was a way of communicating a political message and therefore should be protected. The statute prohibited the message, not the act, and was in violation of the First Amendment.
o Kennedy (concurrence): Did not agree with the action of Johnson, but did agree with the outcome.
§ “The case before us illustrates better than most that the judicial power is often difficult to exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the constitution. The outcome can be laid at no door but ours.”
o Dissent: The statute did not prohibit Johnson’s message. He had other means available to him to protest. The FLAG is an intangible asset that must be protected; it is the same as a monument in DC (you can’t spray paint the Lincoln memorial, so you shouldn’t be able to torch a flag).
§ Judicial Power: the judiciary has the power to interpret the Constitution
§ Judicial Power based on
· Article 3 language
· The Judicial oath Separation of powers of the branches
· Constitutional Supremacy
o It’s the people’s law
o It is established by the Supremacy Clause
o The Constitution if written
o Inherent in its nature to limit government
o The Constitution was adopted by the popular sovereignty.
§ The constitution is supreme because it’s the people’s fundamental law that creates and limits the governmental and is written to preserve those limits and Constitution itself that the Constitution is supreme.
· Judicial Review
o Separation of Powers
§ It’s the province and duty of the judiciary to say what the law it.
o Other arguments
§ Article 3 gives judiciary jurisdiction over all cases arising under the Constitution
§ Oath of Office: judges oath of office is to uphold the Constitution
· Constitutional Interpretation: Four possible setups
o Legislation Supremacy: Congress had the final authority to determine the meaning of the Constitution. Supported by a few, clearly rejected by Marbury.
o Executive Supremacy: the President interprets constitutional issues; never truly supported
o Judicial Supremacy: the SC is supreme in its explanation of the Constitution. Federalist support.
Very close to what we have today.