Weiser - CON LAW - Spring 2005 - OUTLINE

Weiser - CON LAW - Spring 2005 - OUTLINE - CON LAW OUTLINE...

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CON LAW OUTLINE * Con law is about public law – law that limits the gov * Con law is not law in an abstract enterprise, it is law that affects the system of government. * Theme of course: judicial power and judicial integrity * Expressio unius, exclusio alterius- to include some is to exclude the others Our Constitution Powers of government (judiciary Art 1, legislature Art 2, executive Art 3) Why Written? o Easily referenced, o Provides stability and framework, defining basic rules of the road (age req to be a Senator) o Defining powers of government Articles of Confederation model – limited power Constitution still relied on enumerated powers (Necessary and Proper; Commerce Clause) o Defining who we are as a people, a country o Express limits on authority – e.g., abridgement of free speech (also referred to as “individual rights”) o Aspirations for governance (health care) – not in the US model o Obligations of citizenry Subjects of Constitution Powers of Government (Federalism) Horizontal—separation of powers between different branches of govt Vertical—relations between federal and state government Individual Rights Rights guaranteed against govt—not against private actors (except for slavery) Some rights not self-evident—what exactly does it mean to be guaranteed “equal protection of the laws” Who is entitled to interpret Constitution? o Congress – swears an oath o President – in deciding whether to veto o Judges Are judges empowered to enforce the constitution? Are judges authorized to interpret the Constitution or do they have to adhere closely to the text? Judges are free to ignore the legislative or executive branches. Don’t have power of the purse or power of the sword. They have to power to persuade. Public opinion of the time affects how a ruling is enforced or supported by the other branches Justiciability – Judicially enforceable can be interpreted flexibly can be interpreted textually (original intent) or ct can say that an issue is non-justiciable What qualifies judges to be entrusted w/ auth to review the judgments of the political branches and to decide impt issues? - Deliberation —they act after reading briefs and considering issues. - Legitimacy —the judiciary has earned the respect of the public, in part because of their mysteriousness. o Hasn’t always been there –compare Cherokee Nation v. Georgia with Little Rock integration case - Independence —Federal Judges are not subject to short-term political pressures and enjoy life tenure (i.e., not necessarily true for state judges) Confirmation Process Increasing Scrutiny makes it harder to nominate well known individuals Stealth nominees also risky—“no more Souters” Should Judges Interpret constitutional provisions?
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