Major Issues 4 Role of the Courts 4 Which branch authoritative interpreter of the Cx. 4 C/m difficulty 4 The Supreme Court and the Constitution 4
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Major IssuesRole of the CourtsWhich branch authoritative interpreter of the Cx.C/M DifficultyThe Supreme Court and the ConstitutionIntroductionHistory of the ConstitutionArticles of ConfederationFeaturesExpress powers onlyOnly Legislative BranchNo power to tax.No power to regulate commerce.States Were Fighting Trade WarsMercantilist and Commercial classes damaged most.FramingThree ViewsFramers were giants - FiskeAd Hoc Compromises - FarrandConservative protection of property - Beard's Economic AnalysisMaking of Cx was illegal actcharged with fixing the ArticlesAnti-FederalistsBased on Montesquieu and Rousseaucivic virtuemassive political participation, small communititesCx centered on commerce, avarice and ambitioncreates ruling classdisparities in wealth, education, powerCx is inconsistent with the principles of rebulicanismFederalistsFederalist No. 10 (Madison)Two Solutionsno liberty remove the cause, impossible Faction are "sown in the nature of man" Balance faction in governementBelief in ElitesChoose worthy electors using large electorate Too small group of electors will be frozen by factionSafeguard in diversity of interestprotects majority from minority Federalist No. 51 (Madison)Checks & Balances Offsetting PowersJudicial life tenure no explicit authorization of judicial review Executive Veto Legislative Absolute Proportional Dualing Sovereigns right of exit - move to another state Pluralism prevents tyranny of the majorityFunctions of the ConstitutionCreates Nat'l Gov't and Separates PowersLegislative - Congress - Art. IExecutive - President - Art IIJudicial - Sup. Ct. - Art IIIFederalism - Divides Power Btn Feds and StatesXth A.Supremacy Clause - Art VIProtect Individual LibertyBill of Rightsex-post facto - Art I s. 9attainder - single person - Art. I s. 10contract - Art. I s. 10trial by jury - Art. III s. 2 c. 3Why Have A Cx?Difficult to changeUlysses and the Sirens.Attempt by society to limit itself. Recognizes deficiency and attempt to prevent certain actions.People as SovereignConstitutional InterpretationCounter Majoritarian DifficultyAlex Bickel (1962)Least Dangerous BranchExec and Legis. are majority voices.Courts pose a counter-majoritarian difficultyNarrowing principleResponses to C/M DifficultyRaoul Berger, "Government by Judiciary" (1982)liberal's narrow theory of judicial review. Accepts c/m principlesRobert Borknarrow textualist threory. Courts shouldn't construct rightsuse Art. V instead.John Hart Ely, "Democracy and Distrust"liberal response to Bickel's conservatism.Courts should be deferential to majorityPolitical Process Failure is correct condition for action by courtRepresentation Reinforcementjudicial role to make up for defects in the ordinary operation of governmentBruce Ackerman, "Cx Politics / Cx Law", 1989Dualist Democracy, two modes of lawmakingNormal politicsCx Law MakingJudicial review prevents normal politics from overcoming Cx politics"public during a period of heightened ...public spiritness"People speak through the Cx too.Rejects c/m theoryLoosens grip of c/m d.Bickel is privliging one voice over another.Courts need to protect Cx modInterpretationTheoriesTextualismNarrowScaliaPlanned Parenthood v. Casey dissent (p868)parole evidence, four cornersOriginalismIntentions of FramersConventionLettersThomasBork (p687)origins in the Cx over concerns about legitimacyPowellOriginal Understanding of the Original UnderstandingFramer's weren't originalistsDeconstructionismDerridahermeneuticsDworkinBest constructive accountStructuralMousetrap!Marshalle.g. Art. I s. 8 gives powerArt. I s. 9 takes awayso interpret questionable clauses this way.MarshallMaryland v. McCullochCaveatsAlways start with textLook out for surplussagePlacementMeaning of word in other placesPunctuationArt. IIICreates federal judicial systemvests power in Sup. Ct.Lifetime tenureEnforce Powers of Fed Gov'tunder CxtreatieslawsUS is a partyambassadorsforeign citizensInterstate Umpirestates and their citizenstwo statesnot state and citizens of different state XI A.Jury trialsTreasonFrameworkJudicial ReviewReview of Presidential DecisionsMarbury v. Madison (1803) MarshallEstablishes Judicial Review"Courts role to say what the law is"Establishes power for the judiciary while granting the Jefferson admin. a victoryStatute invalidated enlarged power of judiciary.Claims power for judiciary in less suspect context.BackgroundBattle between Federalists and RepublicansAdams as outgoing president nominates 42 Justices of the peace.Marshall signs them, Marbury doesn't get his before Jefferson's inauguration.Jefferson withholds it.AnalysisMarbury Has A Right to the CommissionSeal is affixed, commission is completeViolated a "vested legal right."The Laws Afford Marbury a Remedyessence of civil liberty is protection of lawShould remedy be possible against the President?government of laws, not men.Introduces political question doctrineYES, remedySup. Ct. can issue Mandamus here.Two types of casespolitical - cannot issue mandamus - like Veto - NO ministerial - legal duty to act on statute - YES Giant leap to claim authority over executive decision. U.S. v. Nixon
The Court has Jurisdiction (jx.)should have been considered firstMarbury sees Jx in Judiciary Act of 1789alternate interpretations not seeing Jx are as plausible, -Van Alstyne Would be no need to go any further could be read as pertaining only to appellate jx. could be read as authority to issue Mandamus in cases properly within its jx. both would give same result, Marbury looses, but no judicial review. Does the Judicial Act of 1789 violates the Cx.Marshall interprets Art. III as the ceiling of Cx judicial authority.Sees Art. III s. 2 as the limit of original Jx.Judiciary Act violates this by expanding itCongress cannot increase the Sup. Ct's original Jx. Argues that distribution of original/appellet power is surplussage otherwiseThe Sup. Ct. Strikes down the Judiciary ActStructural Argument as to how the Cx works.The Cx establishes a gov't of limited powersFederalist No. 78 explicitely contemplates this power Limits are meaningless if changeable by ordinary act of legislatureProvince and duty of judiciary to say what the law is.Art. VI, Cx is supreme comes lexically before federal laws.Laundry ListArt. I duty or tax Art I. s. 9 ex post / attainder Art III. treason Art. VI oaths Law repugnant to the Cx is void.Martin v. Hunter's Lessee (1816)Story, J.Review of State Law decisionsHistoryDispute over land in Virginia. Pits treaty against state law reclaiming land.Virginia court ruled for Hunter, Virginia over treatySup. Ct. issues writ of errorVA again holds same.Argues Art.III appellete power can't hold one sovereign over another.Story's ArgumentAll Cases, Art. IIIappellette power to all, no matter original jxif some were immune, it wouldn't be ALL.States have conceeded some sovereigntyUniformitylitigants could select state/federal accoring to desired result.Section 25 of Judiciary Act upheldNeubourneReal gap between state and federal benchDirectory: public public -> Acm word Template for sig site public -> The german unification, 1815-1870 public -> Preparation of Papers for ieee transactions on medical imaging public -> Harmonised compatibility and sharing conditions for video pmse in the 7 9 ghz frequency band, taking into account radar use public -> Adjih, C., Georgiadis, L., Jacquet, P., & Szpankowski, W. (2006). Multicast tree structure and the power law public -> Duarte, G. Pujolle: fits: a flexible Virtual Network Testbed Architecture public -> Swiss Federal Institute of Technology (eth) Zurich Computer Engineering and Networks Laboratory public -> Tr-41. 4-03-05-024 Telecommunications public -> Chris Young sets 2016 “I’m Comin’ Over” Tour headlining dates Download 170.55 Kb. Share with your friends:
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