Class Notes Test Two

Class Notes Test Two - Test Two: Chapter Four: I. Judicial...

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Test Two: Chapter Four: I. Judicial Activism vs. Judicial Restraint a. Judicial Activism- a judge is likely to overturn (hold unconstitutional) a law passed by congress b. Judicial Restraint- opposite of activism; tendency to uphold (find constitutional) a law or action of congress and/or the executive branch c. Judicial restraint argues that judges should take every precaution to avoid overturning the actions of the popularly-elected branches of government- congress, the president, or state legislatures. Judicial activists, on the other hand, are much more willing to intervene and reverse the actions of elected officials d. Schematic on page 100 Liberal Conservative Activist (overturn) Laws Restricting: civil rights/civil Laws Restricting: Economic Liberties; individual and social policy and management; Freedom issues (personal economic freedoms autonomy) Restraint (uphold) Laws restricting: economic Laws Restricting: civil rights/ Freedoms; economic policy civil liberties; personal autonomy i. If you are a liberal and you have a law before you restricting economic freedom, you are more likely to be restrained from overruling that law (will find constitutional and uphold) ii. If you are conservative on the court and you have a law restraining economic freedom, you are more likely to be an activist (overturn the law) iii. Relates to the other schematic for test one 1. liberals like government involvement in economic freedoms, but not in social and personal freedoms 2. Conservatives like government involvement in personal and social freedoms but not in economic and civil liberties iv. Primary value of the schematic is whether the laws of congress have been overturned (majoritarian) 1. activist is not a positive thing; negative word 2. Judicial Activism: another way of looking at it is whether someone is using the correct constitutional interpretation method (4 methods learned before test one) a. It is an attack on the interpretation methodology b. Some people are simply using the wrong interpretive school i. Conservatives use textualism c. Each person is inserting their own political views; they are not judging what the constitution REALLY means 3. What this means is that it interprets who is a good judge and who is a bad judge; using the right constitutional interpretation? a. Attack on constitutional interpretation method b. Justice acting wrongly/rightly II. Judicial Review- Marbury vs. Madison (1803) a. Brief 4.4 on page 106
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b. Facts of Case (historical background) i. George Washington John Adams (federalists) Thomas Jefferson (Democratic-republican) as first three presidents ii. Jefferson stands for states rights, autonomy and is worried about a high central government iii. Adams makes a midnight appointment before Jefferson takes office 1. new judgeships; puts federalists in seats so that it would not be filled with states rights men (Jefferson’s men) 2. Before Adams leaves office he establishes new judicial posts (new judgeships) and fills them with federalists
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Class Notes Test Two - Test Two: Chapter Four: I. Judicial...

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