Shwartz Outline

Shwartz Outline - Constitutional Law One of the biggest...

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Constitutional Law One of the biggest issues in the Supreme Court is the balance of power between the federal government and state and local government. These issues in constitutional law develop constantly. They are not static. In the Constitution, Article IV is the Supremacy Clause and it says the federal Constitution is the Supreme law of the United States. This means any law, act of Congress, state common law, local law, all law must conform to the federal Constitution. This clause deems the Constitution paramount . If law is not consistent with the Constitution, it is unenforceable. The Constitution was intentionally drafted in a very broad way , very different from statutes. So if you have a specific issue and you turn to the Constitution do you think it will address it directly? No! The Supreme Court takes broad provisions and tries to figure out how the specific issue or problem gets resolved under the general provision. This is another way of saying the Constitution needs to be interpreted. In McCulloch they give 2 reasons why the Constitution was drafted this way: 1) so it would be meaningful to the public, if constitution was written with details, it would not be interesting and meaningful to people; 2) it was drafted this way so the Constitution would be flexible enough to be adaptable to the various problems that might arise from age to age. This raises a question on how the U.S. Supreme Court goes about interpreting the Federal Constitution . We can list approximately 7 methods . These methods are going to surface in cases we will read. . A textual approach-(Textualists) Justices with this approach believe that they should look at the language of the Constitution. The language of the Constitution is technically a good starting point, but normally it does not answer the problem alone because the text consists of language and the language needs interpretation. Is burning a flag free speech? The point is that even those who are textualists are confronted with the problem of interpreting the language in the text of the Constitution, while in some rare cases the text might solve the problem, usually it is a beginning pint, not an ending point. . Original intent of the framers-(originalists) it looks at the history and intention of framers at the time of drafting the Constitution. In many issues, assuming we can do that, there is not going to be an original intent on all issues that arise. There is not even agreement as to who the Framers were. It is not even known that the Framers intended that their original intent would govern or it would be a document that would evolve over time. . Purpose of a particular constitutional provision. From the language and historical reference we can tell what the overall purpose of a each clause. We ask why the provision was put into the Federal Constitution. If we can find the goal it might help us in figuring how the specific issue should be resolved. The Supreme Court points to the Commerce Clause
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This note was uploaded on 04/17/2008 for the course LAW ? taught by Professor Harmon during the Spring '08 term at Touro NY.

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Shwartz Outline - Constitutional Law One of the biggest...

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