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Unformatted text preview: Constitutional Law: Separation of Powers Prof. Gerald Neuman Spring 2008 Full Outline Separation of Powers Introduction & Marbury (Constitution; 8-42) Articles in order of importance to Framers • Art. I: legislature • Art. II: president • Art. III: Supreme Court (and any other federal courts created) Product of political compromises, not a single theory Different definitions of republicanism: • Government belongs to all, for the general welfare (vs. monarchy/aristocracy) • Active involvement of citizens for the common good (vs. inter-group politics) • Give some powers to the government (vs. liberalism) • Organized government wields the power, through representation (vs. democracy, which meant direct rule by the masses) Marbury v. Madison (1803) • Adams appointed Marbury as justice of the peace. Signed commission and had seal affixed. Jefferson refused to have the commission delivered. Marbury sued for writ of mandamus to have the Court compel the delivery. • Holding: Marbury deserved the commission but the Court can’t compel the executive branch to fulfill its duty ♦ Judiciary Act of 1789 was unconstitutional in giving Court original jurisdiction to grant writs of mandamus. Marbury should have sued in district court (and appealed). ♦ Court must obey the Constitution over the Judiciary Act (statute) ♦ Not political question case: this was Marbury’s individual right at stake But political questions & individual rights can overlap • There are other ways to read the Judiciary Act that would make it constitutional; maybe Marshall should have decided this differently. Violates idea to avoid reaching constitutional issue unless necessary. McCulloch & Constitutional Interpretation (42-77) How to interpret the Constitution: • Text • Original meaning/purpose? ♦ Difficult to put oneself in the head of one Framer; incomplete and contradictory records, published years later, maybe to hide true intent; whose mind do we probe? ♦ Opens the door to too much judicial discretion • Concept vs. conception: Framers didn’t conceive of email, but the free speech conception would cover it 1 • Social norms today: maybe legislative task. But then same group writes and interprets laws. And legislators are subject to political pressures, federal judges aren’t. • Ideas of justice: natural law Martin v. Hunter’s Lessee (1816) • Land dispute: VA grant vs. treaty with Britain • Holding: Court has appellate jurisdiction over decisions of state courts construing the federal constitution ♦ State prejudices, interests may obstruct justice; state courts are tied more closely to state legislatures than to the federal Constitution; need federal courts to ensure justice ♦ Also ensures uniformity of interpretation • Court’s 19th c. agenda: establish supremacy of federal government McCulloch v. Maryland (1819) • MD assessed tax against Bank of the U.S., McCulloch didn’t pay it....
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