{[ promptMessage ]}

Bookmark it

{[ promptMessage ]}

H1 Final Study Guide

H1 Final Study Guide - Law Politics H1 Study Guide 1...

Info icon This preview shows pages 1–2. Sign up to view the full content.

View Full Document Right Arrow Icon
Law & Politics H1 Study Guide 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.
Image of page 1

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Image of page 2
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern