Constitutionaloutline - Constitutional Law Hypo thoughts...

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Constitutional Law Hypo thoughts Tests Narrow holding Broad holding Why is a case good or bad? Build arguments from scratch before or against positions Look up words prenumbral and colorable 1. How should the Constiution be interpreted? a. Many things not expressly stated i. Its nature…requires, that only its great outlines should be marked, its important objects designated… we must never forget that it is a constitution we are expounding…a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” McCulloch v. Maryland, John Marshall b. Open textured language i. Commerce clause, necessary and proper, liberty, equal protection, etc. c. Should the Con protect rights not expressly stated in text 2. Originalism v. Nonoriginalism a. Framers intent can be stated on many different levels of abstraction b. Originalism i. Change only via amendment ii. Very nature of interpreting a doc requires that its meaning be limited to its specific text and its framer’s intentions 1. Anti: response based on definition iii. Good to restrain power of unelected judges 1. counter-majoritarian difficulty a. framers intended this c. Nonoriginalism i. Good for Con to evolve outside cumbersome amendment process; equal protection, desegregation etc. 1. not convinced it leads to better judgements 2. moderate originalists would have done this as well b/c of higher level of abstraction a. whats the difference then ii. Not a unambiguous, knowable framers intent that answers con questions 1. “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret to Pharaoh.” Youngstown Sheet & Tube v. Sawyer Jackson a. if you can’t figure it out, leave it to political process iii. Nonorig was intended by framers 1. Origs disagree
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3. Who should be the Authoritative Interpreter of the Constitution? a. Nobody b. Each branch in certain areas i. Arguably the system today (b/c of poly question doctrine) c. Judiciary i. “it is emphatically the province and duty of the judicial department to say what the law is” Marbury v. Madison John Marshall ii. US v Nixon 4. Role of the Supreme Court a. Marbury v. Madison – judicial review i. Madison refuses to deliever cert. for judgeship. Marbury sues in Supreme Court for a writ of mandamus. Marshall rules that he lacks jurisdiction 1. politically, Jefferson would have ignored court, so Marshall took opportunity to claim judicial review while distracting folks by ruling for Jefferson 2. he should have stopped at jurisdictional finding and should have recused himself. ii.
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This note was uploaded on 03/22/2008 for the course LAW con law taught by Professor Young during the Fall '07 term at University of Texas at Austin.

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Constitutionaloutline - Constitutional Law Hypo thoughts...

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