For this exam I would each approach hypo like this:
1) what is the law being challenged?
2) what is the state gov’t or fed govt doing via that law?
3) Is it constitutional – why or why not?
4) what test is needed to answer your why or why nots?
1-8-06
What is the Constitution intended to do?
v 1. To separate powers among the different branches of government.
Ø It also enumerates the powers that the judiciary branch can exercise.
v 2. Federalism – Separation of powers among the state and federal governments.
Ø 10th Amendment – all powers that are not retained with the federal government shall remain with the states and the people
v 3. Individual Rights – The Bill of Rights
Ø Why were individual rights not apart of the original constitution?
§ Powers already separated sufficiently to protect the rights of individuals
§ You could never write a comprehensive list of all the rights of every individual
· Each individual already has a number of inherent rights that do not need to be written
Article I – Legislative Powers
v Section 8 – powers enumerated
Article II – Executive Powers
Article III – Judicial Powers
Article IV – Full faith and credit to individual rights
Article V – Amendment
Article VI – Supremacy Clause – Constitution is the supreme law of the land
Article VII – Ratification
Where does the authority of the judiciary branch to nullify acts of Congress in interpreting the Constitution?
Marbury v. Madison
v This was a major struggle between federalists (Adams) and anti-federalists (state rights activists – Jefferson)
Ø Adams appointed 43 Justices of the Peace and tried to set-up a Circuit Court system made of 16 courts to make an appellate court system.
§ The appointments had to be signed by the President and sealed by the Secretary of State (John Marshall)
§ All but 3 letters were delivered
Which court did Marbury file suit in?
v In the Supreme Court on the grounds that the Supreme Court had original jurisdiction over the case
Ø Source of Power – Uses the Judiciary Act of 1789 which allowed writs of mandamus by the Supreme Court
Ø Does Marbury even have a right to the commission?
§ Yes, he has a vested interest/right in the appointment.
Ø Is delivery a necessary part of appointment?
§ Marshall says no, that once it is sealed and signed then it becomes a property right
Ø Is there a legal remedy in this case?
§ No. But Marshall says that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
v Had Marshall decided against Jefferson then Jefferson would have overruled and Marshall would have been impeached; the consequence would be the erosion of the judiciary powers.
Ø O
is gives the Court a lot of power
v Originalists – judges decide constitutional issues confining themselves to enforcing norms that are stated or clearly implicit in the written Constitution.
v Non-originalists – important that the Constitution evolves by interpretation and not only by amendment.
v How should we view the Constitution during interpretation?
Ø Intent of framers
Ø Tradition
§ If so, what tradition?
Ø Precedent (Stare Decisis)
§ Gives legitimacy to what the court rules
If you have a right, when is the government able to infringe upon those rights?
5th Circuit vs. 9th Circuit
United States v. Emerson (2002) – 5th Circuit
Involved a Federal law.
Take on an analysis of the meaning of the 2nd Amendment, despite all of the sister circuits’ rejection of any individual rights view of the Second Amendment.
Three basic interpretations of the 2nd Amendment:
o 1. Collective Rights –
o Does not apply to individuals; only recognizes the right of a state to arm its militia.
o Construe “people” to mean “States” or “States respectfully.”
2. Limited Individual Rights –
