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ConLawI-GoldbergSpring2008 - Professor Goldberg SPRING 2008...

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Professor Goldberg CONLAW SPRING 2008 1 CONSTITUTIONAL LAW OUTLINE (GOLDBERG 2008) I. ROLE OF THE SUPREME COURT I. JUDICIAL (SC) REVIEW CONCERNING OTHER BRANCHES WHEN CONSTITUTIONAL QS (1/16) A. Marbury v. Madison i. Holding (MARSHALL) 1. Does Marbury have a right to the mandamus? a. Yes , he commission was complete. Non-discretionary & no decisions to make 2. Does he have a remedy? a. Yes, right was violated so the government has to have a remedy for him. i. Apparently does not apply if you go to the wrong court- no remedy here a. A ct that gave the court the ability to provide this remedy is unconstitutional. C (Article 3, Sect. 2) only gives SC original & appellate jurisdiction in limited case and the Act tries to give it original jurisdiction in a whole other category. b. Cannot add or subtract to either category (non- expandable) in C 3. Results a. Placates republicans (Jefferson) by denying Marbury’s claim. Placates Federalists by establishing judicial review . i. Claims that Congress gave them too much power here, but simultaneously establishes that SC has power to command the executive & executive has to enforce it against itself b. One Way i. The legislature has an independent duty to apply the C to the case / bill at hand. But it doesn’t work the other way. If Congress thinks it’s Constitutional and the court doesn’t, Congress is out of luck. Judicial gets to decide what is constitutional ii. SC has right to strike down act of Congress as Unconstitutional c. Narrowest Reading i. Problem between the C and a statute, the C prevails. ii. SC can’t do anything that the C doesn’t allow him to do. d. Broadest Reading i. The SC is the king and other branches are bound by it’s rulings. e. The power of judicial review is implicit in the C. i. Supremacy Clause says the Constitution and acts of Congress must be made in pursuance thereof. f. SC’s interpretation of constitutionality is binding on everyone (Cooper v. Aaron) i. Unconstitutional law remains on books but has no operative effect. g. Problems i. Why is the Court in charge? 1. If doesn’t make sense for Congress to decide if Congress has the power isn’t that what Marshall does for SC here? 2. Parallelism between Article III, Section 2 and the Supremacy Clause. -- reason why the courts are allowed to decide if an act is constitutional. 3. If the legislature could decide, it would be too powerful 4. Congress more corrupt? 5. Congress makes healthy constitutional change? 6. Judges aren’t influenced by changing politics/bias? 7. Majority could oppress minority – don’t want majority to decide all cases 8. Marshall: Judges take oath to support Constitution (BUT every federal official does) 9. Constitution is silent on the issue - hmmm ii. SEE HYPOS (1/16) 1
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Professor Goldberg CONLAW SPRING 2008 2 1. Condoliza Rice (deal w/ N Korea)- discretionary (for executive to decide) 2. Brit student w/ visa issue- ministerial? (How compel executive to obey order?) II.
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