CONSTITUTIONAL LAW I OUTLINE

CONSTITUTIONAL LAW I OUTLINE - ASH ILKHANI CONSTITUTIONAL...

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A SH I LKHANI C ONSTITUTIONAL L AW I O UTLINE P ROFESSOR W EINBERG F ALL 2002
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Power of Judicial Review G ENERAL The Constitution does not explicitly state that the Supreme Court may determine the constitutionality of acts of other branches of government. However, judicial review of other branches was established in Marbury v. Madison . Levels of Review The action must be rationally related to achieving a legitimate state objective. The first requirement is satisfied if the government is pursuing practically any type of health, safety, or general welfare goal. The second requirement will be satisfied unless the government has acted completely arbitrarily. The individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional, and the action almost always will be upheld. The regulation must be substantially related to an important government objective. The action must be a necessary means to achieving a compelling government objective. In practice, the “necessary” requirement means that the fit between the means and the end must be extremely tight and that there must be no less restrictive means that would accomplish the government’s objective just as well. The government will generally have the burden of persuading the court that the action is constitutional, and the action will almost always be struck down. Congressional Limits on Court Jurisdiction Art. II itself suggests that Congress may place certain limits both on the Supreme Court’s appellate jurisdiction and on the jurisdiction of the lower federal courts. Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn’t expand the Supreme Court’s jurisdiction beyond the federal judicial power. Congress also may decide what lower federal courts there should be, and what cases they may hear. Again, the outer bound of this power is that Congress can’t allow the federal courts to hear a case that is not within the federal judicial power. Facts: McCardle was an unreconstructed rebel who published pro-Confederate articles. He was jailed and filed a writ of habeas corpus (“bring us the body” of the prisoner, and explain why he is being jailed). His writ was denied and he appealed to the Supreme Court under an 1867 federal statute. An 1868 statute repealed the old statute and prohibited McCardle from appealing (Congress did this out of fear that the Court would hold in McCardle that the Reconstruction acts were unconstitutional). Congress basically yanked the rug out from under McCardle. However, the 1868 congressional statute was neutral. If the government had loss previously, it would not have had the power to appeal either.
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This note was uploaded on 02/15/2008 for the course LAW 1040 taught by Professor Barret during the Fall '07 term at St. Johns Duplicate.

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CONSTITUTIONAL LAW I OUTLINE - ASH ILKHANI CONSTITUTIONAL...

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