ConLawOutline-Young[1]

ConLawOutline-Young[1] - Con Law Modalities Young 1999-2000...

Info iconThis preview shows pages 1–4. Sign up to view the full content.

View Full Document Right Arrow Icon

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: Con Law Modalities Young 1999-2000 1. Historical – Originalist 2. Textual 3. Structural – relationship of parts of the Constitution to other parts of the Constitution; structure is state, then relationship is inferred from this structure, leading to a new rule; makes inferences from power explicitly granted 4. Prudential – “wise” and “unwise”; weighs costs and benefits 5. Doctrinal – precedent; apply a rule derived from relevant case law; stare decisis or overrule 6. Ethical – guided by ‘all residual authority remains in the private sphere’; inferences from powers derived Whose Constitutional interpretation will prevail? The interpretation debate entails separation of powers and the power of judicial review. Early Constitutional Political Theory Anti-Federalists (Jeffersonians, Republicans) A centralized federal government promotes factions (parties). Our Republican government is for small communities. A.k.a., decentralization Federalists (Madison, Hamilton, Pres. Washington, Pres. Adams) Institutional safeguards ( Federalist 51 Hdt. 10, Preemption Hdt. 26) and size ( Federalist 10 ) will guard against factions. Judicial Review A federal court’s opinion is never binding on the political branches. However, a court’s judgment is controlling and must be honored and enforced. These officials – federal, state and local – do have the power to interpret the Constitution as needed per Art. VI, cl. 3, but resistance is futile; defiance of judicial judgment will likely be found unconstitutional upon judicial review, and if the official does not have immunity they may be subject to suit. The Legitimacy of Judicial Review Textual Basis for Judicial Review- Magna Carta- Federalist Paper No. 78 by Hamilton The Court’s duty is to ‘declare all acts contrary to the…Constitution void’- Constitutional Convention (Hamilton/Madison debate)- Council of Revision Proposal (Hdt. 2)- Supremacy Clause Art. 4, Cl. 2: - Art. III §2, Cl. 2: establishes the federal judicial power of the United States.- Federal Judiciary Act of 1789, §13, 1 Stat. 73 Countermajoritarians Challenge Judicial Review In a democracy, the majority rules. Judicial review is a departure from this principle. But judicial review protects individual’s rights against tyranny of the majority, and there are controls on the judiciary (see p. 5). 1 2 Growth of Judicial Review Judicial review gives SC power to review acts of Congress and, if they are found repugnant to the Constitution, declare them void. Marbury v. Madison (1803). “This is a Constitution we’re expounding here.” Appellate Jurisdiction Established Constitution empowers Congress to define the SC’s appellate jurisdiction Art. III, §2, Cl. 2. “the supreme court shall have appellate Jurisdiction, both as to Law and Fact… Exceptions Clause Art. III, §2, Cl.2 “…with such Exceptions, and under such Regulations as the Congress shall make.” Exceptions Clause and Marbury v. Madison (1803) Justice Marshall interprets Exceptions Clause to allow removing cases from SC’s...
View Full Document

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.

Page1 / 43

ConLawOutline-Young[1] - Con Law Modalities Young 1999-2000...

This preview shows document pages 1 - 4. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online