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CONSTITUTIONAL LAW I. SOURCES OF CONSTITUTIONAL INTERPRETATION a. Text of constitution b. Intent of framers c. Tradition (congressional/executive action)—structure of government d. Precedent e. Treaties, international law f. Unwritten rights of people g. Social policy h. Morality and justice i. President’s discretion (exigencies) II. HISTORICAL INFORMATION— a. Federalists v. Antifederalists—the federalists wanted a central government to help to pay the war debts incurred during the revolutionary war and there was no provision under the Articles of Confederation to allow the new country to raise revenue. The antifederalists opposed any central government because it resembled the monarchy in England that we had just fought to get away from. They believed in civic virtue of people and that they would put government before their own needs. i. Federalist #10—danger of factions and how to remove the danger from factions. Was against blocking the cause of factions because that would take away liberty. Could block effects by having a larger, heterogeneous government. ii. Federalist #51—danger from above was from government. Could keep in check by the principles of: 1. separation of powers—separate the sovereign power into different branches to prevent power from being concentrated. Each branch would by loyal to its own and prevent corruption. 2. checks and balances—separate branches had some powers on their own, but larger issues had to be passed through more than one branch to keep check on any one branch and preventing one from becoming too powerful. b. Marbury v. Madison —Chief Justice Marshall raised and addressed three questions: i. Does Marbury have a right to the commission? Yes, it was approved by Congress and signed, sealed by executive. ii. Do the laws of the US afford him a remedy? Yes, no one, even the president is above the law (this was not an immunity issue). Also established the power of the judiciary to review executive actions for constitutionality. iii. Can the Supreme Court issue the remedy? Authority was claimed to be in the Judiciary Act, but this in conflict with Art. III, §2-2? Claimed that SC had appellate jurisdiction but statute granted
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original jurisdiction which was against constitution. Established that laws of Congress are subject to check by SC for constitutionality (as well as over executive). Established horizontal supremecy. c. Martin v. Hunter’s Lessee —dispute over land that led to the establishment that SC could bind states with their rulings. VA claimed that they were sovereign, SC rejected argument and said that it had appellate jurisdiction . d. Cohens v. Virginia —Reaffirm that SC can hear and decide cases in which a state is a party. Can declare state laws unconstitutional, but state’s interpretation of their own laws is final. e.
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