H1 Final Study Guide

H1 Final Study Guide - Law Politics H1 Study Guide 1 William Rehnquist The Notion of a Living Constitution a"Living constitution shorthand

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1) William Rehnquist – The Notion of a Living Constitution a) “Living constitution” – shorthand expression defined by two different meanings i) Justice Holmes: “a being the development of which could not have been foreseen completely by the most gifted of its begetters” “had created an organism” (1) Constitution is written in general language and left succeeding generations to apply that language to changing times. (2) “majestic generalities” in 14 th amendment (3) general language allows application of constitution to acts/procedures unforeseen (4) This is true ii) Brief Version: “This Court, as the voice and conscience of contemporary society… must declare that …and all it represents offends the Constitution of the United States and will not be tolerated.” (1) Constitution with a vengeance (2) Judiciary uses constitution may fix social problems ignored by the other branches (3) This is not true b) Living constitution philosophical principle used in practice of judicial review i) Undemocratic and antimajoritarian in a self-governing representative democracy. ii) Marbury v. Madison (1) People are supreme authority, delegate authority to branches of government, but when they overstep their granted authority (violating the Constitution), the court must stand for the Constitution. (2) Based on people’s power – independent, unelected judiciary is ultimately democratic iii) When applied to brief writer’s definition, it is entirely undemocratic (1) Judges have duty/role to attack society’s problems on their own (2) Without application of popularly created constitution/judges defending people and constitution, judges are an oligarchy that can legislate with no repercussion (a) 3 rd legislative branch iv) Three problems with brief definition (1) Misconceives notion of constitution, which was to allow elected branches to keep country abreast of the times (a) Constitution’s wording clearly gives congress and president constituent power to deal with social problems through legislation (2) Ignores Court’s past experiences embracing contemporary, fashionable notions of living Constitution (a) Dred Scott v. Sanford (1857) (b) Abraham Lincoln “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal” (c) Lochner v. New York (3) Advancing social goals through non-elected judiciary is unacceptable in democratic society. (a) Enactment of a law makes it moral/gives it rightness and goodness, because
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This note was uploaded on 04/07/2008 for the course POLISCI 106 taught by Professor Levine during the Fall '07 term at Rutgers.

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H1 Final Study Guide - Law Politics H1 Study Guide 1 William Rehnquist The Notion of a Living Constitution a"Living constitution shorthand

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