Con Law Outline

Con Law Outline - Part I: The Judicial Function in...

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Unformatted text preview: Part I: The Judicial Function in Constitutional Cases Chapter 1:Nature and Sources of the Supreme Courts Authority Intro: Constitutional Interpretation Historical what the provision meant at the time it was passed o Benefits: words can have multiple meanings, context helps o Problems: Doesnt allow for adaptation, sources unclear, maybe framers intended for it to evolve? Textual look at text and interpret as average person would o Benefits:provides discipline, less political, no inferences o Problems: No case-by-case approach possible Structural infer rules from relationships o Benefits: ? o Problems: some guessing, hard in fact-specific cases, not complete Doctrinal apply rules based on precedent o Benefits: demystifies Const. interpretation, helps lawyers, consistency o Problems: Limits judges, rules can be changed by facts, problem w/unanticipated developments Ethical look at problems/values of Const.; how govt relates to people, whereas structural is how govt relates to itself o Problems: unpredictable, unfair, too many ethics (which should govern?) Prudential balancing costs and benefits of a policy 1 1 o Benefits: allows you to consider all sides, case-by-case, more accountability for judges Section 1: Judicial Review Hobbes: Constitution is a social contract Constitutionalism calls for the (1) limitation of the powers of govt, (2) adherence to the rule of law/the law of rules/common law this gives predictability, justice (3) protection of fundamental rights Federal power is limited and enumerated states have all the power except for whatever Constitution took away and gave to federal govt Checks and balances: vertical how much power to give federal and state govt Judicial review: court can review constitutionality of acts made by executive and legislative branches and refuse to uphold them UNCHECKED CHECK Without judicial review, theres no point in having a Const b/c nobody has to listen to it Marbury v. Madison (1803) p.3 Marbury (P) and others were appointed justices for the peace by President Adams and confirmed by the senate on Adams last day in office. The formal commissions were signed but not delivered. Madison, as secretary of state, was directed by new President Jefferson to withhold Ps commission. P brought a writ of mandamus directly to the Supreme Court under the Judiciary Act of 1789, which established US courts and authorized the Supreme Court to issue writs of mandamus to public officers....
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This note was uploaded on 11/20/2010 for the course CON LAW 1 taught by Professor Rosenfeld during the Spring '10 term at Yeshiva.

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Con Law Outline - Part I: The Judicial Function in...

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