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Unformatted text preview: Con Law Attack Outline SHOPLIFT Arguments o STRUCTURE of the Constitution itself o Post-ratification HISTORY o The pre-ratification ORIGINAL MEANING / INTENT o POLITICAL THEORY o The LOGIC of a CONSTITUTIONAL GOVERNMENT gives branches flexibility to react to problems that couldnt have been fathomed at the time the Constitution was drafted o INSTITUTIONAL ROLE of the CONSTITUTION (broad and general guidebook to be interpreted at a higher level of generality / we must never forget this is a constitution we are expounding) o FUNCTIONAL / PRACTICAL argument o TEXTUAL COMMITMENTS within the Constitution THE JUDICIAL POWER o Judicial Review & Judicial Supremacy Marbury v. Madison (writ of mandamus) Judicial review / Supremacy of the Constitution Cooper v. Aaron (desegregation in Arkansas schools) Supreme Courts constitutional interpretation binding on all people Dickerson v. United States (Miranda law) Congress cannot legislatively supersede / overrule Supreme Court by statute o Limits on Judicial Power: Political Questions Baker v. Carr (reapportionment of Tennessee General Assembly) Brennans 6 Factors / Equal protection claim justiciable Nixon v. United States (Impeachment by Senate hearing) Impeachment by Senate non-justiciable Textual commitment of impeachment to legislative branch / lack of judicially manageable standards Powell v. McCormack (refusal of House of Rep. seat) Qualifications for House of Representatives membership justiciable Lack of textual commitment to another branch / explicit qualifications in Constitution too o Limits on Judicial Power: Standing Allen v. Wright (segregated schools / IRS tax-exemptions) No standing b/c continued segregation not fairly traceable to IRS conduct But, denial of opportunity really the cognizable injury? 3 Requirements: Injury in fact Traceability b/w conduct and injury Redressability Justiciability Doctrine No moot cases, ripe cases, or advisory opinions o Supreme Court Review of State Court Judgments Martin v. Hunters Lessee (federal treaty vs. Virginia statute) Supreme Court authorized to review constitutionality of state court judgments o Congressional Control of Supreme Court / Federal Court Jurisdiction Article III Congressional Jurisdiction Stripping Congress can place limits on federal court jurisdiction and create lower federal courts (or not) Congress can NOT abolish Supreme Court / probably can NOT deprive all federal courts of jurisdiction over certain classes of cases invoking federal law (but could drastically limit them, leaving only appellate jurisdiction in Supreme Court) Ex Parte McCardle (Reconstruction Acts writ of habeas corpus) Congress has power to control boundary of Supreme Court appellate jurisdiction FEDERALISM (the allocation of power b/w and among the states & federal government) o The Scope of Federal Power McCulloch v. MarylandMcCulloch v....
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