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Constitutional Law I
University of North Carolina School of Law
Bogen, David S.

1) Supreme Court

a) Idea/Theory behind the Constitution

i) History: after the revolution w/ England, the confederation created the Articles of Confederation.
(1) Weaknesses of Articles:
(a) no chief executive (no final authority)
(b) no judiciary (couldn’t settle disputes, protect peoples’ liberties)
(c) no way to collect taxes or regulate commerce to pay back war debts.
(d) No power to raise an army.
(e) No restraint against sovereign states, each could do their own thing.
(2) Solution: create a stronger central gov’t but people feared creating s/t too powerful.

ii) Antifederalists: Opponents to Constitution. Based idea on “civic virtue” – protection against factions (can be either a majority or minority w/ particular interests that differ from others). Promoted localized gov’ts so people would have direct participation. “TOWN MEETING.” Education was import. Most were farmers – not interested in modernization.

iii) Federalists (supported Constitution/commercial owners, large prop owners)
(1) Madison – believed that factions were inevitable but a problem w/ gov’t. Reason for factions – unequal wealth distrib. Causing people to have different wants/desires. Can’t remove the cause of factions, but can CONTROL THE EFFECTS of factions.
(a) LARGE HETEROGENEOUS REPUBLICS – can overcome the effects of factions.
(b) Legacies:
(i) Idea of representation – get reps from larger regions to separate s/o from small localities. Opposed to small groups – Direct contrast w/ Antifederalists.
(ii) Checks and balances, veto, separate branches (thought legis is the most powerful) – provides power, but puts limits on it.

iv) Republic v. Democracy
(1) Democracy – gov’t by the people exercised thru representatives
(2) Republic – power exercised by officials [prez] elected by voters

b) Constitutional Framework

i) Power of SC:
(1) Marbury v. Madison – ESTABLISHES JUDICIAL REVIEW – SC can review and declare acts of Congress uncon. It’s the FINAL ARBITER of what the Constitution means.
(a) Case dealt w/ a conflict b/t legislature and Art III of Const: Judiciary Act says that SC can issue a mandamus to a/o holding an office, but Art III doesn’t grant original jurisdiction, only appellant juris to the SC when dealing w/ executiv

tricted by a Fed Const: state judges don’t have unfettered power w/ respect to fed laws,
1. i.e., diversity juris: reveals framers’ intent that state judges could be partial. It’s the const that places the limits.

ii) SC can determine if it’s constitutional for Congress to delegate a broader array of power to the Prez when dealing w/ foreign affairs
(1) US v. Curtiss-Wright – Congress can delegate to theprez the authority to prohibit selling machine guns to a foreign nation engaged in conflict

(a) This links w/ Congressional treaty and war making power (Migratory Bird Act)….nat’l powers that “infringe” on the states – but internat’l powers req’s a different interpretation of the Const.
(b) Powers exist that aren’t enumerated.
(c) Internal affairs v. external affairs
Prez is limited to enumerated powers when dealing w/ internal affairs, but not limited by enumerated powers when dealing w/ ext.