Con Law Outline
I. What is a constitution?
a. A guarantee of minimum rights provided by the government. There are some rights provided for us against other citizens (ex. 13th amend. Slavery)
i. A constitution provides a basic framework of how the gov’t is going to function (articles 1-3, 4, 5, 6)
ii. A constitution provides “super-legitimacy” and “super-stability”
iii. It provides “super-self restraint” and sets groundwork for future action
II. Articles of confederationà
a. preceded the constitution, it was an agreement reached b/w all 13 states. It created the continental congress which had certain authorities, far less than what congress now has. No president as we know it, there was a president of the continental congress (the person who ran the congress). No judiciary, but the congress could hear certain cases.
III. Ways to interpret const.
a. Textualàwhat does the const. say and apply
b. Structuralàhow does a provision fit in overall?
c. Historical practiceàhave we done something before? And has it been questioned?
d. Judicial doctrineàwhat have the courts said about this practice?
e. Prudential argumentàwhat will happen in congress can do xy?
f. Moral argumentàConst. should prohibit xy because xy is immoral (closely related to prudential)
IV. ARTICLE III JUDICIARY
a. Scope
i. S. Crt has the authority and duty to review the constitutionality of statutes passed by Congress, and to invalidate the statute if it violates the constitution.
ii. Reviews state court decisions, but only to the extent the deci
uring changing times.
1. This interpretation needs to be done by people who are schooled in the law and have the mental acumen to understand and view the document in light of past, present, and future needs.
a. Because judges are not susceptible to political influence, they have the luxury of not being accountable to the electorate, have salary protection and are otherwise insulated they can spend time thinking about all elements of issue.
i. Marshall: written const. are meant to limit the gov’t
Of course, but the real question is why judicial review is the entity which gets to decide when congress has over stepped?
