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Constitutional Law - Brooks - Spring 2006 (good)

Constitutional Law - Brooks - Spring 2006 (good) -...

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Constitutional Law Marbury v. Madison p. 29 (1803) Marbury was commissioned by Adams but Madison (new Sec. of State) won’t give him commission. Marbury seeks writ of mandamus but the court does not grant it. Original v. appellate jurisdiction Real issue is judicial review – Marshall gets it in by giving the ruling to Madison. Judicial Review Structural – Court is in a better position to review as they specialize in interpretation and are not self-interested Syllogism – must be some review or there is no check on gov. power Textual – Constitution is supreme law of the land, SC has power over all cases under the constitution, thus they should look into its meaning Real issue is who should do the review? Britain uses parliamentary supremacy (don’t need to listen to courts) Judges are unelected and unaccountable to the majority (Countermajoritarian dilemma) SC is most deliberative group – not swayed by voter sentiment Constitution also represents the will of the people Legislature isn’t as majoritarian and democratic as they claim to be We want a system with limits on the majority, don’t give them all the power Will of the People Constitution was not enacted by a majority (1/3 of white, male property owners) Works when interpretation is mechanical but that is rarely the case (US v. Butler p. 43) Original intent – what did the Framers intend it to mean? How do we know? Different framers intended different things. Dead hand Issue Living Constitution – Need to look to general principles as we have a very different world today. Use a political or moral consensus. Who decides what it says? What is flexible and what isn’t? Lack of certainty/stability if it is always changing? Lets majority trample the minority. Why are judges better suited to this than the legislature? Traditions – more lasting and time tested principles What is a tradition? Whose traditions? Precedent – Best approach is to keep doing what we have been Does not help use with future issues. Might freeze mistakes into place? SC is less bound by precedent when it is a constitutional issue (leg. can’t change the law) 1
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Comparative Majoritarianism Legislature is not that majoritarian Insulated from direct democracy at the time, not many people vote, answer to lobbies and public interests, hard to contact your representative, legislature is generally all of one class. But, in a large republic these interest groups provide a check on each other and law makers must be somewhat insulated from constituents. Courts aren’t actually that insulated Can amend the constitution, need to know the right people to get appointed, theoretically you can be impeached, congressional control over jurisdiction of federal courts, and SC often only does things that are supported by political or societal movements.
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