Outline for Constitutional Law

Outline for Constitutional Law - Constitutional Law Outline...

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Constitutional Law Outline I. Separation of Federal Powers a. The Role of the Judiciary i. The authority for judicial review (judicial review = deciding whether constitutional) (pg. 1-9) Note: As long as a case about a certain law doesn’t go to a court, we never really know whether it’s unconstitutional! That means there are unconstitutional laws in the book, but we don’t know because no one has said they are! 1. FEDERALISM: how to function knowing that we have dual system of government (national gvmt and state gvmt). It is about that balance. a. NATIONAL GOVERNMENT: Separation of Powers: Exec, Jud, Congressional Branch 1. Which branch is the most powerful? Probably Judicial branch (John Marshall would say JUDICIAL is DEFINITELY most powerful) 2. One branch really can’t act on its own b. STATE GOVERNMENTS c. INDIVIDUAL RIGHTS: To what extent can national governments or state governments regulate individuals? And when they are both trying to do it, who wins? d. How do we know what the Constitution means? 1. Originalists: in trying to figure out what the Const means, one should start with the text, the language of the Const. if it isn’t clear, we should maybe try to go to the Framers’ intent, legislative history. 2. Non-orig: it doesn’t matter what they intended, willing to look to different sources, times change, must fit people’s needs 3. Worst insult to judge: he/she imposes her own will! Legislating from the bench! 2. Marbury v. Madison: a. Adams was on his way out of office, and he appointed judges to the federal bench before Jefferson came in. He wanted to put a lot of his people on the Federal bench to retain his party’s influence over the government b. Marshall was Secretary of State before he was appointed Chief Justice (that wouldn’t happen today). Marshall was responsible for signing these 1
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commissioners. His brother went around finding these men to give them the commissions. c. Marbury was nowhere to be found. As a result, he didn’t get his commission. d. If we represented Jefferson when he took office, we’d say no, Marbury doesn’t have a commission! e. One hidden assumption: that Marbury, appointed by Adams, would make particular kinds of decisions bc of his political affiliation, and that’s why Jefferson wanted his OWN people as judges so that they could protect his interests. f. Even today, there is a presidential election, this is the issue. g. But wait - JUDGES are supposed to be IMPARTIAL! They have opinions that follow party lines? 1. Is it better to go before a federal judge or state judge? h. Marbury says he will sue, and will take it to the Supreme Court! Why? Judge Marshall, who signed for his commission, was sitting on the bench! His brother tried to find him! i. But Marbury loses, after Marshall passes the exits!
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