American Constitution

MLK "I have a dream" 1963

uses Linoln langauge in front of Lincoln Memorial

Lincoln "Emancipation Proclaimation" 1863

- executive order during civil war
- can states succeed? can president force them not to? is it worth men dying? why wasn't it abolished sooner?
- lincoln doesn't claim he has authority to ban in states not rebelling but loyal
- written that only in rebel

Article 2 in Constitution

lincoln claims he has authority as commander in chief to uphold our constitution
note; SC doesn't decide many of these questions, Court really only powerful with support of other institutions (part of a bigger dynamic)


Constitution a "promisory note"
- it was created with hope, it had aspirations for future to develop and achieve something else
- says we defaulted on note with no alienable rights

Civil Rights Act 1964

SC not venue for these to take place
- where does Congress get authority to end? what is legislative power?
- ex: declare war, issue patents, establish post offices (nothing about saying no to discrimination)
is a landmark piece of c

Congress power to regulate commerce

later broader interpretation: can take place within one state if effects are national
- if you own hotel and serve travelers you're subject to Civil Rights Act


that constitutional right cases aren't all that different from government power ones/questions


explosion of constitution writing


Afghanistan Constitution (with influence of US)
- preamble
- identify (who we are as a people, often relates back to religion ... for them specifically Islam and Allah)
- who Constitution is for
- what they're doing
- president/legislature


- focus on president/economy
- with statement of fundamental rights
- human dignity & liberty as a Jewish and Democratic State (that Judiasim is part of its identity)

who we are as a people and who are we writing this for?

- provides cultural context
- customs.culture plays role in how these things are practiced

may 1787 until Sept. 17

Philly convention
- previously ruled by Articles of Confederation
- Legislature limited in what it could do
- each state had to raise troops
- wanted national gov to do foreign policy, tax (raise money without relying on states)
- delegates come to amend


who are "the people" ( who counts )
- does establishing justice, welfare, tranquility take time?

Article 1 (Section 1)

vesting clause
- what is political power? are there specific kinds?
- executive v. legislative
- limited power "herein granted" in legislature versus "vested power" for executive

Article 1 (Section 2 & 3)

2 how house is elected
3 how senate is elected

Article 1 (section 4)

- way people make decisions is determined by term lengths, if we create these qualifications what are going to get?

Article 1 (Section 8)

List of powers
- taxes, borrow money, regulate commerce, uniform laws for bankruptcy & naturalization, coin money (regulate value), post offices & patents
- right claim: copyrights (own property, writings/discoveries)
- can create lower courts
- declare w

Article 1 (Section 9)

What can't they do
- before 1808 cannot abolish slave trade
Habeus Corpus
- you have a right to challenge your detention in court
- cannot be suspended unless public safety requires it (rebellion, invasion)
- Lincoln did during Civil War
- ex: Newspaper E

Article 1 (section 10)

what states cannot do

Article 2

- creates the president
- vested powers
- what does it mean to exercise "executive power"
- how elected

Article 2 Section 2

shall be "commander in chief" of army/navy
- what does this entail?
- do you need declaration of war to send troops?
- oath of office
- preserve/protect the Constitution
- only officer specifically prescribed! Why that oath?

Article 3

- what cases SC will hear
- must have a case/controversy
- not seek out cases when they have a legal question, must wait for conflict
- mainly appellate jurisdiction
- hear on appeal, aka other courts heard it first
- nothing specific on judicial review (

If we ratify it, who will we become?

goes forward in newspapers
- federalists versus anti-federalists (records of public debates)

Madison and Hamilton (in favor)

talked about ambition and human nature (how will people behave one in office? argued people are selfish)
- "If men were angels we'd need no gov."
- said parchment barriers will not hold in society (can;t just write up a document, need to look at enforcing

things not in constitution that we would recognize as in it

1. political parties
2. administrative state (often called 4th branch)
3. media (role)

Imperial presidency

is power growing?

Fed 10


Fed 29


Fed 51

separation of powers
- legislative power is the one to be feared not executive

Constitutionalism versus Constitutions

Constitutionalism = limited government bound by written Constitution, sanction way in which laws are created, purpose for Constitution is it exists to create something (good government that does specific things well)
Constitutions - assemblage of laws/ins


do these specific things (intentions) & do them publicly for the public good not private gain
"that the people have agreed to be governed by"
- consent: therefore Constitution can be made without consent but then just have a piece of paper
- an attempt to

John Locke (political theorists)

influences elements/traditions
- reason is natural law: teaches mankind to be equal/independent and not to harm other people
- Locke says we're impartial and do harm, he says by consent we must come together to create a government
- Jefferson uses it in


doesn't specify structure of government (form)
- theory
- history
- experience with self government
&& trial and error


why we should adopt

Federalist 10

control and break violence of factions
- faction has always been problem with popular/republican government (meaning gov with people with a say)
- when people represented, their leaders get divided
- faction = # citizens (majority or minority) united by c

two methods to control factions

1. remove causes
- people believe different things/have different interests ... could we limit religion? economics? give everyone same liberties?
- "Remedy worse than disease"
2. Controlling their effects
- "Republican remedy for republican disease"
- fac

pure democracy

republican government/disease is compression of majority/minority, yet Madison says getting rid of liberty is worse than disease

So who will this work for?

notice many occupations available to people
- presupposes many opportunities to make money
- materialistic society? versus focusing on a religious vision ... we tolerate different ideas for the most part
- requires the desire to participate, assumes knowl

Defense of Article 1 of Constitution

federal structure
- take into account state government/constitution and how they interact

Federalist 39

one powerful national government, can reach down to people no matter what states say
- ex: federal crime & jail
- Madison defends federalism here

Federalist 51

how to maintain limits placed on national government?
- Madison says separation of powers

Fed 10

constitution to control factions by increasing gov sphere of control therefore it's harder for a faction to take over
- increase number of factions, they compete with each other
- unequal distribution of property is most common/durable source of factions

fed 39

2nd objection = maybe it's republican/representative but not federal (gov too national, not enough power to states)
- Congress can do a lot without consent of states (ex: Declare War)
Departure from Articles of Confederation

Madison says

National government would be one that can do whatever it wants, but states have authority to regulate/legislate for the health, safety and morals of the community
- limited to specific enumerated powers and states retain powers
- states must ratify to ado

question emerges:

boundaries between states and federal government (national) and when they conflict who decides?
Madison says: national government decides but decision impartially made

civil war example

appeal to sword"
- compact resolved, can states get out from Union? who gets to decide? decided here by force

Question: what happens if national government goes beyond its powers?

Sedition Acts example: illegal to talk against government (violates first amendment, according to Madison)

Virginia Resolution

- States rights to "interpose" on "progress of evil

Kentucky Resolution


Fed 51- on national government itself and maintaining limits

assumes humans are ambitious/self
- people with power want more and want more power for their area (ex: if in House you want them to have more)
- worthlessness of parchments barriers
- done by giving people authority to counteract each other (ability to h

1791 9 States Ratify

Madison = Congressman
- but did Bill to ensure people they'd protect those rights in Constit.

Amendment 9

Unenumerated rights
- not dney rights of people (just because it's not in there, doesn't mean it doesn't exist)
- nothing on enforcing it

Amendment 10

reservation of powers
- powers delegated to national government, all others reserved to states or people
- Constitution doesn't tell us who gets to decide what powers these are

Interstate versus Intrastate Commerce

Inter : within many
Intra: within one

Article 3 (Original and Appellate Jurisdiction)

creates SC
- judicial review isn't explicit (asserted its own authority)
- last institution created
- SC originally wasn't prestigious (people would leave for state gov positions)
- originally road circuit (went to state courts)
** nothing on judge qualif

Constitution = only applies to states who've consented to it

State Gov = independent, authority not within Constitution

Who decides when conflict between two?

- executive part of legislative power (Veto)
- executive picks judges
- VP presides over impeachment trial
- checks and balances (through conflict)
- solution 4 Madison, not that SC tells us if power is abused instead use human nature

Courts today

- 1 SC + inferior courts (legislature's creation)
Judiciary Act of 1789:
SC (1)
Circuit Courts of Appeal (13) - we are 8th (not orig. juris)
Federal District Courts (94) - we have Eastern/Western

Congress can limit SC jurisdiction

within Constitution ...
- original (straight to SC)
- appellate (appeal, most often)
- this Constit., treaties, states, federal laws passed
- needs federal question
- ambassadors, public ministers or when state is a party

How does a case make it to SC?

~1% cases appealed by circuit courts are heard by SC
- originally with writ of error (error in case) they felt they had a duty to hear it
- declining case = treason

Judiciary Act of 1925

reform to courts (passed by Congress)
- writ of certiorari
- Taft was Chief Justice
- courts can't fulfill their function without discretion of caseload
- take cases to clarify certain contested points of law (stuff not well established, maybe circuit cou

Court of Appeals (Circuit)

have the last word on MOST legal questions


9 justices (each one with law clerks)
- sometimes they do the readings/recommendations to move forward to justice
- justices get together in conference with discussion list (made by Chief Justice)
- 4 need to vote yes to take case
- 30 min per side (1 hr)

Roe v. Wade (to overturn in 1992?)

- Kennedy changes mind while writing opinion
- if he goes one way it's decided to overturn. if the other the vote changes

Opinion Days

Announce decisions to media

SC website

- docket
- merit briefs (parties)
- friend of the court brief (extras with knowledge)

court case names

1st name = petitioner
2nd name = respondent

Neither the purse nor sword

Court CANT make decisions (money)
- Thomas Jefferson: theory, even if conflict resolved by court between parties, that's where that ends unless someone else acts (need their support)

Constit. interpretation

preliminary questions: what is the Constitution? who gets to interpret? is there a final interpretation?
1. Textualism
2. Originalism
3. Doctrinalism
4. Precedent
5. Structuralism
6. Philosophy/moral reading


affected by our own imperfections
- can see what presidents nominated them to think of their (judges) political views
- madison talked about this and referenced the bible

Hard wire features in Constitution

things that are clear in interpretation
- ex: Senator must be 30

things not straight forward

4th amendment "reasonable searches and seizures"
cruel and unusual punishment (what's cruel?)


- start with text for interpretation
- can that be all?
- pacificus v. Helidius debate with Washington Administration (Madison - President doesn't have that power, Hamilton said no this is an executive power)


- understanding/intent of original writers
- question: original ____ fill in the blank with people
- original public meaning
- what words meant to people at the time
BUT similar difficulties: what if meaning isn't obvious (even people with same method deb


legal doctrines matter
- not in Constit. but used to interpret, develop over time


- case (no two are identical), but can apply to similar cases
- most significant source 4 interpretation
- but if precedent conflicts with Constitution it can be overturned
- stare decisis: let the decision stand, defer to precedent


- matches federalist papers
- not a lot about text but architectural questions
- state versus federal powers
- ex: Fed gov cannot force Mo. to expand Medicaid

Philosophy/aspirational reading

- theory emphasizing morality (changing standards of society, evolution of values)
- ex: Lincoln, hard to avoid moral questions ("principle of liberty to all," U.S. prospered the way it did because of this -- Declaration of Independence)
Letter sent back

CPSAN notes (America and Courts with Scalia and Bryers)

Why have a judicial philosophy?
S: Consistency
B: overtime need this for objectivity between cases
S: Death penalty example with cruel and unusual punishment (what stops you from applying it to everyone not just under 18), strict interpretation for origin

Marbury v. Madison 1803

judiciary act of 1789 - writs of mandamus
judicial review
open question: judicial supremacy?

President: John Adams
Secretary of State: John Marshall
------- 1800 election
President: Thomas Jefferson
Secretary of State: James Madison
Chief Justice: John Marshall

Declares an act, passed by Congress as constitutional
- Federalist party controls Congress (Adam's party)
Jud. Act of 1789
- added judicial positions (smaller ones)
- Adams appoints (midnight appoints) judges right before leaving

Appoint, Senate confirms, commission

Marshall tasked with bringing commissions out (Marbury doesn't ever physically get his)
- Jefferson says don't deliver commissions to Madison (don't want Federalists)
Acts rewritten so the seats don't even exist anymore but Marbury sues (what's the remedy


court -> public official to fulfill a duty (that Madison deliver commission)
- SC issues them
Is this (given by Section 13 of JC 1789) in conflict with Sec 2 Article 3 of Constit, in which ambass/ministers/counsels allow for original jurisdiction and all

Marshall argues Judic. Act violates Constit.

adding to original jurisdiction would be unconstitutional
- is this a case that affects public ministers? or was it always within the jurisdiction?
Marshall: expands jurisdiction to more than what they already have, it's the fact that it's a lower court (

can a law repungnant to constitution become the law of the land?

should court defer to laws that are passed or go to constitution?


- he has a right to it but he doesn't get it
- if he's entitled to it the way to get it isn't within SC (no authority to deliver it)
- said Madison should give it to him, though they cannot force him to
4-0 an unanimous decision


associated with departmentalism, warn about consequences to Marshall (are judges any more honest/responsible than normal men with similar tendencies toward a party?)
- challenges Marshall's idea of ultimate authority
- asks how things will work without th

challenging judicial supremacy

Marshall - structural argument
- starts with premise that we have a written constitution (with limited and defined powers)
- purpose for written Constitution is to constrain others and be supreme (say what the law is, have to side with Constitution Marsha


equal right to interpret constitution
Congress - Court - President
^^^^^^^ all feed into states
Just because Constitution is the supreme law of land doesn't answer the question of interpretation
- not spelled out in Constitution
- who's interpretation is

Martin (Lord FairFax) v. Hunter's Lesee (Virginia) 1816

federal review of state court decisions

Dred Scout v. Sandford 1857

judicial review of congressional legislation

Cooper v. Aaron 1958

federal court order to state officials

Courts limited

- cases they can hear (need party with legitimate injury bringing a case for live issue
- if constitutional but political in nature, won't decide.... don't want to appear like they're getting too political

judicial review/supremacy

- review: the reason you write things down is for future, court bound by constitution not statutes if they conflict ... therefore ... power to declare laws unconstitutional
BUT doesn't everyone else have an oath to do the same?
- departmentalism

1816 case

Lord (british) living in Virginia before Civil War against GB, we confiscated Loyals' property
- Martin (nephew) had name with property
- Virginia gives to Hunter's Lessee
- U.S. treaty provision (fed gov) to end war with GB and agree property rights of B

the question from this case...

Can these soverign entities have to obey SC interpretation of the U.S. SC?
- US says to Martin
- Virginia state SC wrote an opinion too, arguing SC doesn't have authority
- unanimous decision at State Court, said Congress' laws unconstitutional
- not sayi

1857 case versus 1958 case

SC got it wrong versus SC got it right
BUT BOTH deal with who has authority

Dred Scott (from Missouri)

- slave (owner moved to IL)
- sued for freedom because he traveled to free states/territory
- both free states with Missouri Compromise
- legal question: once free always free?
- prevents kidnapping of slaves (allows due process of law)

1854 Kansas-Nebraska Act

goes against Missouri Compromise
- changes that to let K + N into Union as new states and can vote on whether they want to be slave or free
- sparks mini civil wars (Lincoln in politics)

Dred's Decision (with Judicial Power)

about property rights
- is he property?
- would compromise fall under same rules other original states have?
- "all needful rules and regulations for territories" (those in 1970s not new ones in 1820)
Decision: Slavery = property
- in Constitution (can't

Lincoln: republican (principles of Constitution)

if you can take slaves across states then there's no free states -> national slavery and cannot contain it
- he was accused of waging war on Constitution
Politically, he had a lot to gain (Republican party was dedicated to this issue and he wanted nominat

Cooper v. Aaron 1958

Conflict on interpretation
- after Brown Case 1954, desegregation of public schools
-14th amendment (no discrimination)
- some states didn't want to follow
- Little Rock issue
- say education = state issue
- court says yes they can order them
- unanimous

--- these cases are not like the earlier ones where the Court expands Jurisdiction
Ex Parte McCardle 1868

suspension of habeus jurisdiction
- Ex Parte = In the party of ____ (name)
- SC says let this man go, Lincoln said no
- who can suspend? If you do have these petitions can you withdraw jurisdiction from SC?
- Newspaper editor (Mississippi)
- military rule

Luther v. Borden 1849

Republican government?
Political questions
- Rhode Island, Constitution requires US to gaurantee to states a republican form of government (but how republican, to what degree??)
- election of public officials
- R.I. doesn't originally have universal suffr

Baker v. Carr 1962

State legislature apportionment
- apportionment = drawing of districts for legislature
- sues Sec. of State, thinks some districts have many more people than others (rural v. urban), if you live in rural you're vote counts more with less actual people
- v

Nixon v. United States 1993

Judicial review of impeachment trials
- Congressional power
- house = impeach
- senate = tries impeachment
House accuses
- Nixon, a judge in for perjury
- can court overturn an impeachment hearing?
- court says power is checked in Congress

1868 14th amendment

Article 1 Constitution
- to suspend/withdraw writs of habeus corpus in cases of rebellion/invasion
- nothing on who can suspend it
- to challenge grounds on detention (without legal charges)
- without write can detain without charges and trial
- Lincoln w

Schecter Poultry Co. V. US 1935

New Deal
- Great Depression
- 1933 FDR: promise to regulate the economy
- broad executive powers to wage war on Depression
- ^^ comes from expanded powers during "war" time
National Industrial Recovery Act
- Presidential authority: can write codes for com

- sold chickens that were not healthy (normally you bought them in bulk)
- consumers weren't supposed to pick out ones they liked (picked first one that came by)
- 500 dollar fine, per offense, per day -> threat of l

- separation of powers
- presumes there's different types of power within different institutions (helps us understand authority in Bureaucracies)
- ex: EPA (made by Congress), must be enforced (Executive Branch)
- principle of non-delegation
*** Congressi

Schecter ruling

- Court says this is unconstitutional
- Article 1: "vested" legislative powers, "necessary and proper" to carry out powers ...
congress unconstitutionally delegated power (went too far)...
so what are the limits to their power??
Congress cannot delegate p

After 1937

Courts start referring to Congressional legislation
- not guessing congressional regulation

Youngstown Sheet Tube v. Sawyer 1952
- executive power

- executive order from Truman during Korean War
- peace keeping = prevent North from going into South
- Steel production (union threatens strike)
- for increase in wages, during war time
- Truman says
- Secretary of Commerce authorized to take possession

Youngstown ruling

workers win and get raises
- Court declares this to be an unconstitutional action but WHY
1. no limit on executive power
2. no discussion on if he can do this during war
But, there's a remedy = impeachment
- if we don't like what they do with their orders

Powell v. McCormack 1969
- judicial oversight of House elections

Article 1 Section 5
- who decides qualifications?
- each house judge of own members
- can expel members of their own body so any oversight?
Powell (Congressman from Harlem, NY)
- re-elected
-sitting congressman but accused of House Ethics rule violations

Justice Warren on opinion

says not speculating if he'd be expelled after he was seated, but wondering if this is a case that court can even take? ..... ehm "judge for own members

Powell ruling

Court says yes judicial question not political and they let him be seated
- separation of powers: Courts judge if someone's elected or qualified
- ex: Bush v. Gore (decides presidential election)

INS v. Chadha 1983
- one house legislative veto

INS reviews immigrant status (decision to deport)
- report decision to Congress (House or Senate can vote to veto it) -- doesn't have to be both
- this is a delegate authority ^^^
Chadha-Kenya with British passport (student VISA)
- applies for suspension

Chadha ruling

Court says unconstitutional
- one-house legislative veto (used a million times)
- Justice White dissents: Courts precedents establish Congressional delegated legislative power can be exercised by agencies
- without veto, agencies may issue rules without b

Morrison v. Olson 1988
- special prosecutor/independent counsel

- Ted Olson: assistant attorney general, accused of giving false info related to EPA (with Reagan)
- Question: related to ethics reform (if an executive branch official breaks the law who enforces it?)
- power to establish an independent counsel to invest

Olson case ruling

- investigator, cannot be removed from position unless for "good reason"
Court: 8-1 (Scalia is the dissent though Rheinquist is also conservative but in majority)
Article 2: Congress can vest powers of "inferior" officers/courts the power to appo

United States v. Nixon 1974
- executive privilege

- Watergate
- Executive Privilege
- maintaining "confidentiality of own" -> secrecy
- claims highest in diplomatic/national security concerns
- can claim shield tapes
- SC holds against Nixon ... they could review because
- "separation powers" didn't prev

Affordable Care Act example

~1000 pages
- Congress delegates power to agencies (in Exec. Branch)
- semi-independent, though sure president can help nominate but cannot remove on his own
- looked at responsibilities Secretary of Human Services has within ACA, "Secretary shall..." ---

Cheney v. U.S. 2004
- executive privilege
- separation of powers

President George W. Bush made an Energy Policy Task Force (for recommendations)
- led by VP Cheney
- in 1972 ... Federal Advisory Committee Act (for disclosure/open meetings)
- for committees not tasked with only government employees
- if private sector m

Cheney case decision

insistance by outside groups that congressional legislation binds them
- district court says can't decide more until they know who was there (Cheney appeals)
- circuit court says no to cheney, who asked them to stop district court's inquiry

Nothing in Article 2 on Executive Privilege, yet the right is asserted
- says they require secrecy for work (executive function)

BUT when is that needed?
ex: Nixon
- court, yes privilege exists, but debates on when
- "depends on circumstances"
- court leaves decision to them

court terms as applied to Cheney case

vacate (don't agree with lower court decision)
remanded (ask courts to rehear it)
** info never comes out


if conflict of interest with a case a judge can do this and not sit in on case
- ex: Scalia was buddies with Cheney, but he didn't recuse himself

Clinton v. Jones 1997
- presidential immunity
- separation of powers

- Jones sues for alleged sex assault before Clinton was president
- proposition to be his mistress
- she declined, was fired after
- is the office of presidency immune to civil litigation while in office?
- clinton asks about dismissal and postponement un

Kennedy precdent to Clinton case?

- Democratic Convention 1960
- State Sen. from Miss. takes his car (gets in wreck with Kennedy's driver)
- hurts his legs (ruined reputation)
- known as "Donkey Rider" it was his trademark
- court lets lawsuit go on and it settles out of court
** in Justi

Clinton verdict

Is there immunity?
- court lets this go forward argues some immunity in an action taken in an official capacity
- can be sued privately for a private action (like Kennedy)
Clinton perjures himself
- disbarred from Bar
- settles for $850,000

** no clause in the constitution that says explicitly things must be separate
- inferred through vesting clauses

Hamilton: maintain separation through conflict between branches
- SC now bigger role taking on questions about boundaries
- exceptions: political questions

Court then

Washington had to plead with friends and twist arms to find people to serve on the Court
- Under the Articles there was no SC and no federal judiciary at all
- Article 3 of the Const. made Court and inferior courts as Congress shall desire
- But today it

justices and appointment

- nominated by President
- must be confirmed by a majority of the Senate
- serve for life on "good behavior"
- removed only be impeachment by the House of Reps and conviction by Senate
- presidents seek out SC nominees whose judicial philosophy and record

federal court system

judicial power shall extend to all cases in law and equity under Constitution, Laws, and Treaties
- Article 3 refers to judicial power but does not say what the power is or what it includes
- Article 3: the court's "power" to hear cases depends upon wheth

cases under appellate jurisdiction

the constitution does not itself create lower federal courts, entrusts their creation/organization to congress
- first created a system of lower federal courts in Judiciary Act of 1789
Just below the SC were three circuit (or appellate courts) -- serves a

court structure today

directly below the SC are the US Courts of Appeals
- 13 organized chiefly by territory
- each court, or circuit, covers at least 3 states
- they hear appeals from the US District Courts and from federal agencies
- usually 3-judge panel with a majority vot


- SC hears a case on first impression
- bypass state courts and the lower federal courts and go straight to the SC
- cases are extremely rare
- courts workload is therefore largely a function of its appellate jurisdiction
- now have control over

3 kinds of appellate jurisdiction

1. certification: US court of Appeal can certify to the SC that a particular case poses exceptional difficulties
- the lower court asks the SC to provide instruction about how some matter of law should be settled
2. appeal: for a while, the SC was require

congressional control over appellate jurisdiction

Article 3 Sect. 2
- provides the Court shall have appellate jurisdiction with such exceptions and under such regulations as the Congress shall make
- means to have the federal courts accountable to the community
BUT what = exceptions/regulations?

process to getting cases

- first cut in caseload made by law clerks (each justice has several)
- they review every petition and prepare summaries for their justices (cert pool)
- Chief Justice then prepares a "discuss list" (a list of petitions the various justices have indicated

the justices decide based on

1. the importance of the issues
2. the clarity of the issues involved
3. whether the lower court has developed a clear and complete record of the case
4. potential impact
** all influenced by the kinds of issues (political, economic, moral and social) tha

once a court accepts a case and puts it on the docket it informs the parties and schedules a deadline for them to file legal briefs

legal briefs: formal legal document in which an attorney tries to persuade the Court that the relevant case law and other legal materials support his or her client's arguments
- many include nonlegal materials (medical information or social science)
aka B

oral arguments

each party is entitled to one half hour (exceptional cases include more time)
ex: Gibbons v. Ogden 1824: lasted five days
- justices frequently disrupt them
- disfavors any read from a prepared text

writing opinions / voting

- Chief Justice states how he intends to vote
- then each of the other justices in descending order of seniority gives his/her view and intended vote
- after the tentative vote the justices must decide who will write the opinion
- if Chief Justice is in t

impact of decisions

neither the power of purse nor sword
- do not enforce themselves
- impact extends to the parties (legal obligation inter partes)
- but also has ramifications for society at large
- when the court decides a matter of law in ways that go beyond the particul

Democracy in America by Alexis de Tocqueville

praised judicial review
- power to review legislation for its constitutionality, whether a consequence of decision or evolution has struck observers as the very essence of constitutional democracy
- the book praised the institution, but later in the 19th

judicial review is spread by ...

- more than 100 countries have constitutions that provide for judicial review
- to protect democracy and human rights


3 sources of power
1. individual states
2. the people
3. national government
National gov = enumerated or limited powers
10th amendment reserves all other power to states or people
** first 8 amendments include a list of personal freedoms that Congress ma

some places where Constitution is precise

ex: a nominee for the presidency must be 35 or older
ex: candidate for senate 30 years and house 25
ex: presidential elections are held at prescribed times
ex: states large and small are equally represented in Senate


when the court is asked to apply general guarantees to specific places
- an effort to discern what these expanding phrases require or prohibit in ordinary life

elastic places in Constitution

in 14th amendment
- guarantee of equal protection
- depriving any person of life, liberty or property without due process of law
^^ what are these exactly

source of the Constitution

- written
- hope judicial opinion is written in a way the public can understand
- citizens have a right to know what their judges are saying about the consitution's meaning and why
- hope that judges recognize the limits of their power and find some way t


based on the claim that constituional interpretation must begin with the written word
- aka "plain words" approach
- advocates claim should read words of constitution for their ordinary meaning and apply them
- provisions sometimes fail to catch or apprec


some judges and scholars have argued that the aim of constitutional interpretation is to discover what the Founders "intended" the provision at hand to mean
- if the Const. is the supreme law of the land it must be interpreted in terms of the original wil


doctrines = verbal formulas that the Court uses to decide specific cases
- attempts to impose a coherent analytical framework on an entire area of the law such as equal protection or no establishment of religion and to use that overarching order to decide


stare decisis - to stand by what has already been decided
- precedent is simply that case (comparing similar ones)
- promise of consistency and predictability through time
critics: it may be more important to get teh case right than to follow wrongly deci


identified with the work of Alexader Bickel
- celebrated various "passive virtues"
- the business of the federal court its limited to questions presented in an adversary context and to assure that the federal courts will not intrude into areas committed t


- separation of powers
- the constitutional document does not contain the phrase ^
- this means we should not focus on the meaning of specific isolated clauses but rather on the location of the clause and its interaction with the whole text
ex: judicial r

philosophy and aspirational argument

fundamental principles
- critics: charge that judges are not and should not be philosophers
- if one believes that a constit. is more than a set of rules establishing limits on the exercise of power
- Aristotle: that a constitution defines the principles


leads to a correction or improvement not re-constitution
- two step procedure requiring two-thirds vote in Congress (the proposal stage) and a 3/4 vote of the states (the ratification stage)

implicit limits

a basic function of consittutionalism is to restrain government even when it accurately reflects the popular will

Griswold v. Connecticut

- birth control case
- Griswold concerned the consitutionality of a state statute that imposed a penalty on the use of any drug or instrument for the purpose of preventing conception
- 6 opinions, two of which are dissenting and incorporates at least six

judicial review as a potent weapon against the enemies of democracy

the institutional form that judicial review takes often depends on the culture and tradition of a country's legal tradition

Marbury v. Madison 1803

Chief Justice John Marshall laid down the doctrine that judges are authorized to nullify and void any law that in their view violates the Constitution (Judicial Review)
- Constit. says nothing about whether the judicial power of the US extends to the refu

Robert Yates (Brutus) in preratification debate charged that the powers vested in the judiciary would enable the federal courts to mould the government into almost any shape they please

Federalist 78
- that the courts would have the right to pronounce legislative acts void because contrary to the Constitution,,,, they would have neither force nor will but merely judgment

Dred Scott v. Sandford 1857

struck down the Missouri Compromise (an act of Congress banning slavery in the Louisiana Territory)
- took judicial review to a new level because the Court was telling Congress what it may or may not do under its constitutional power

Fletcher v. Peck

that the SC had power to extend its review to the constitutionality of state laws
- Chief Justice John Marshall relied on the Constitution's contract clause to invalidate a Georgia statute that nullified a corrupt land grant sale and the property rights d

Martin v. Hunter's Lessee 1816

whether Congress could extend the SC's appellate jurisdiction to the final decision of a state high court
- state policy over the objection that it violated a 1783 treaty between GB and the US
- under the terms of the Constitution, it is the nature of the

expansion of judicial power

Brown v. Board of Education 1954
- struck down state-enforced segregation of the races in the nation's public schools
- dismanteling schools segregated and replace them with integrated schools where white and AA children would be required to attend school

Baker v. Carr 1962

new ground by providing a judicial remedy for malappropriated state legislative districts
- court later extended reach to congressional and local legislative distrcts but laid down the rule that all legislative districts must be equal in population as cir

self-imposed limits on judicial power

doctrines of "justiciability"
- if a dispute is deemed to be non-justiciable, a federal court will decline to decide it; it will have to be resolved politically or in some other nonjudicial way
- federal courts refuse to give advisory opinions because the

political questions

a concern for SC separation of powers
- to avoid unneccessary clashes with Congress or Executive

Marbury v. Madison (excerpt edition) pg 80

- Adams nominates Marbury to office of justice of the peace in DC
- nomination affirmed by Senate, commission signed by president, seal of the US was affixed by the Secretary of State
- when Adams' term of office expired, Marbury applied to James Mad

Martin v Hunter's Lessee excerpts

- Lord Fairfax (citizen of Virginia) willed his estate to his nephew
- after the Revolutionary War, Virginia confiscated this land owned by British subjects
- in 1789 the state conveyed Fairfax's land to David Hunter who then sued to eject Martin
- M

Dred Scott v. Sanford excerpts

-a slave belonged to Dr. Emerson a US Army surgeon in Missouri
- Emerson was transferred to Illinois a state that forbade slavery and he took Scott with him
- Emerson and Scott later returned to Missouri
- Scott sued for his freedom in a Missouri sta

Cooper v. Aaron excerpts

- governor and legislature of Arkansas actively resisted the implementation of a Little Rock School Board plan approved by the Federal District Court for the Eastern District (desegregating)
- Claimed Brown v. Board of Education was itself unconstitu

Baker v Carr excerpts

- arose out of a constitutional challenge to Tennessee's apportionment of its state legislative districts (had not reapportioned since 1901)
- demographic changes over the ensuing decades had resulted in legislative districts that varied widely in po

Madison advocated for political order on a tripartite division

to avoid the twin evils of tyranny and anarchy
- series of checks and balances so long as each department retained its essential independence
- bicameralism within the legislative branch

popular soverignty

we the people of the US"
"do ordain and establish this constitution"
- the people would rule but they would do so indirectly through separate legislative, executive and judicial institutions

separation of powers today (1)

Congress has invited the judiciary to review laws of doubtful constitutionality thus abdicating in a sense its own authority to enforce the Constit.
Presidency overshadows with push of its own legislative program
- significant change in nature when the Ja

separation of powers today (2)

growth of congressional committees and their chairs
- growth of congressional staff
- development and use of legislative veto
- growth of executive power (especially in area of foreign affairs)
- imperial presidency
- growth and operation of American part

congressional powers and their limits

neither the executive nor the legislature can fully define for itself teh extent of its own power
- the SC often reserves the right to define the limits unless a legislative decision or an executive practice falls within the scope of the political questio

executive-legislative relations

principle of nondelegation
-doctrine that Congress may not delegate its law-making power to any other department or body derives from the principle of separation of powers
- court has an apparent reluctance since the New Deal era to review congressional d

YOungstown Sheet & Tube CO. v. Sawyer case

- Congress makes law, the president executes it, and the judiciary interprets it
- represents a struggle over the meaning of those powers ^^
- Truman insisted that his seizure of the steel mills was necessary to avert a strike that would shut them do

Chadha case and separation of powers reasserted

to permit an officer controlled by Congress to execute the laws would be to permit a legislative veto
- this case invalidated teh veto, which was used by Congress to monitor the execution of federal law
by a 7 to 2 vote, the Court held the legislative vet

Morrison v. Olson case and Executive - Judicial relations

creation of the office of an independent counsel
- Congress established to undertake investigations of high-ranking officials accused of committing serious crimes under federal law
- but the process of investigation and prosecution is clearly an executive

US v. Nixon 1974

did implicate the independence of the judiciary
- Watergate tapes ... assistants accused of conspiring to burglarize the headquarters of the Democratic Party during the election campaign of 1972
- special prosecutor in charge of the investigation obtained

Schechter excerpt

National Industrial Recovery Act of 1933
- New Deal
- designed to revive and develop the national economy, authorized various trades and industries to adopt codes of fair competition (ages, hours, practices, labor conditions) ... with president's approval

Youngstown excerpt

- Truman's executive order directing the Secretary of Commerce to seize and operate the nation's steel mills
- Justice Black said ...
* president's orders amounts to lawmaking, a legislative function which the Constitution has expressly confided to t

subject matter jurisdiction

Article 1 sect. 5 assigns to each House of COngress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior

Immigration and Naturalization Service v. Chadha exerpt

- East Indian born in Kenya and holding a British passport
- nonimmigrant student visa expiring
- in a subsequent deportation hearing, the Immigration Naturalization Service allowed Chadha to apply for a suspension of his dportation
- can be authoriz

Morrison v. Olson excerpt

- Ethics in Government Act of 1978 authorized a Special Division of the US Court of Appeals for the District of Columbia to apopint an independent counsel to investigate and if necessary, prosecute high-ranking gov officials for violating federal cri

US v. Nixon 1974 excerpt

* in the District Court the president's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute
* since the Executive Branch has exclusive authority and absolute discretion to d

Cheney v. US excerpt

- president created an advisory committee on energy policy composed solely of federal government employees and led by VP Cheney
- after presenting its recommendations the committee was dissolved without making all of their documents available to the

Clinton v. Jones excerpt

- alleging that while he was governor of Arkansas Clinton made sexual advances toward Jones and that her rejection of them led to punishment by her supervisors in the state job she held
- Clinton wanted presidential immunity and requested that pleadi

Article 1

1. legislative powers herein granted ... vested in Congress with Senate and House
2. info on when house members are chosen, age, term, vacancies, who chooses and impeaches
3. info on number of senators, their vote, vacanies, age, power to try

Article 2

sections ...
1. executive power vested in president, term, how elected, qualifications, who is next in line
2. presidential powers dealing with other countries (treaties, Commander in Chief)
3. State of the Union
4. impeachment for conviction of treason,

Article 3

sections ...
1. judicial power shall be vested in one supreme courts and in such inferior courts as the congress may from time to time ordain and establish
2. what cases they can hear (ambassadors, when a state is a party, controversies between 2 states..

Article 4

full fath and credit in each state to the public acts/records/judicial proceedings
- congress shall have power to dispose of and make all needful rules/regulations respecting the territory or property belonging to the US

Article 5

whenever 2/3 of the houses shall deem it necessary shall propose amendments or on Application of the Legislatures of two thirds of the several states shall call a Convention for proposing Amendments
- when ratified by the Legislatures of 3/4 of the severa

Article 6

Constitution and laws of US are supreme law of the land and judges in every state shall be bound


The Supreme Court is the highest court in the federal Judiciary. Congress has established two levels of federal courts under the Supreme Court: the trial courts and the appellate courts.
The United States district courts are the trial courts of the federa


federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away fro


In the United States, certiorari is most often seen as the writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error (reversible error) and review where no appeal is available as a matter

Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. A specific court with judicial review power may annul the acts of the state when it finds them incompatible w

background on judicial supremacy

Plato tells us in the Republic that democracies will always succumb to tyranny. The Framers of our Constitution certainly troubled themselves to prevent that from happening here, but the anti-Federalist who wrote under the name Brutus did not believe they

legislative veto

The legislative veto was first developed in context of the delegation to the president to reorganize governmental agencies and was first authorized by the Legislative Appropriations Act in 1932
the Supreme Court held a legislative veto on the part of one


The doctrine of nondelegation describes the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit or implicit in all written cons

executive privilege

executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive p

judiciary act 1789

It established the U.S. federal judiciary.[3][4][5][6] Article III, Section 1 of the Constitution prescribed that the "judicial power of the United States, shall be vested in one supreme Court," and such inferior courts as Congress saw fit to establish. I

federalist number 78 (by Hamilton)

Like all of the Federalist Papers, it was published under the pseudonym Publius.
It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States
In particular, it addresses concerns by the Anti-F