PART I: CONSTITUTIONAL STRUCTURE Flashcards Preview

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Flashcards in PART I: CONSTITUTIONAL STRUCTURE Deck (32):
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 Article I – Establishes the......

Creates Congress through defining the legislature. Two houses made in order to balance power: both houses must agree therefore deterring overriding weighted power by a representative-heavy/heavily-populated heavy state.

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Article I splits....

 

 

 

 

and how do their representatives attain their status?

Congress into two Houses:

 

Senate: Equal Representation

House of Reps: Proportional by Population

 

 

A image thumb
3

Article I Section 8 gives congress                        

Give definitions of both

• Powers & Implied Powers

 

• Powers: Law Making

• Implied Powers:  General law making power conferred, through the necessary proper clause

(Art. I, Sec 8, Clause 18)

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Article II Establishes the


Executive Branch

• Creates the presidency & grants executive power

• Charged with enforcing and implementing the laws created by congress

• President is Commander-in-Chief of the Armed Services

• Political Powers: Grant pardons, Enter into treaties, Appointments, etc.

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Article III Establishes the


Creates the Supreme Court

• Sets out procedures for appointment & the indefinite term of justices

• Prohibits compensation to be decreased

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• Functions of the Constitution:

Why do we have Checks and Balances?

To separate and disperse power, Divide up the Federal Government

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• Functions of the Constitution

What is federalism?

How do the following apply:

1. 10th Amendment

2. Full Faith & Credit Clause

Federalism – 3 branches to protect individual liberties, to balance & control the relationship between states and federal government

• 10th Amendment – Powers not granted to the federal government go to the states

• Full Faith & Credit Clause – Relationship of the states with each other

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Congressional action is valid                  

State action is invalid                 

Congressional action is valid only when explicitly authorized.

 

State action is invalid only when expressly prohibited.

(Except, when the Supremacy Clause applies)

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• Why wasn’t the Bill of Rights in the original Constitution?

o Hypocritical – Supported Slavery (Did not want to lose the southern states)

o Philosophical Argument – Impossible to list all rights, a list would limit

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• Why a Constitution and not statutes?

1. A Constitution is much harder to undo & change

Article V (Procedure for Change)

2. Constitution creats a federal floor, a garunteed minimum

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• Judicial Review – When its validity has properly been presented in a case before the court, the court may then review the constitutionality

(i.e., Congressional Acts, Statute, Executive Nondiscretionary Conduct, State Statutes, etc.)

 

Courts have the power to review nondiscretionary conduct where there is a specifically identifiable legal command (Excludes review of Political Acts)

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• Marbury v. Madison

• Constitution trumps anything in conflict

• Job & Duty of the Court to review the constitutionality under the “arising under” jurisdiction

 

(Extends to interpretation of the Constitution, because the court Must evaluate and interpret it to solve such cases)

Interpretation of Art III, Sec. 2, Clause 1 – “Judicial power shall extend to all cases…arising under this constitution”

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• Martin v. Hunter’s Lessee

o The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law.

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• Cohens v. Virginia

o Demonstration of federal judicial power also encompasses the power to review state court decisions involving state law that include a question of federal or constitutional law as a matter of course

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3 Functions of the Constitution


1. Establishes three branches of government

 

2. Defines federalism, gives states broad power

 

3. Protects individual liberties

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From Marbury

Two Types of Executive Action

1) Political acts: actions within realm of discretion entrusted to president by the constitution
• no role for judiciary to play. Pardons, treaties

 In Marbury we have:

2) Non Discretionary acts: can locate somewhere in law that is a non-discretionary duty of the executive branch.

Specific identifiable legal command/duty

The act of congress that made the appointment, there is no discretion, there is a specific identifiable legal command

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From Marbury

Can Congress expand the scope of the Supreme Curt’s original jurisdiction beyond what is specified in Article III of the Constitution?

No congress cannot expand the scope of the SCs jurisdiction beyond what’s specified in the constitution. If they could give a court appellate jurisdiction when the constitution says they have original jurisdiction, that passage of the constitution would be useless.
 

NO clause in the constitution is intended without effect

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Does the Supreme Court have original jurisdiction to issue writs of mandamus?

 

o The court would have to exercise appellate jurisdiction to order a writ of mandamus.

o The constitution does not warrant the supreme court the authority to issue writs of mandamus to public officers

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How to change the constitution

• Article V: how to change the constitution

Two ways to launch proposal:

• 2/3 in congress or 2/3 of state legislatures

(all amendments so far come form congressional vote)

• Congressional vote of 2/3 majority in both houses in congress or ¾ of state legislatures approval

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• Why three branches? (Federalism)

 

o Decentralizes. Centralized power was viewed as tyranny

o Branches working in coordination. No single branch acts alone

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Federalism

• Tenth amendment:
• Article three:
• Article four:
• Article one section one:

establishes state rights

federal courts have limited jurisdiction

full faith and credit clause

congress gets only the powers were specifying

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• Individual’s Rights

In the pre-amendment text, what are some examples of provisions you see as protecting individual rights?

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• Non-Orginalism:

Courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document

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• Originalism

&
 

Democratic Argument

Proper meaning is the meaning originally intended by the Framers (Historical Approach)

 

o Democratic Argument - The constitution should be changed though amendment through elected officials. Giving more credence to officials who were elected rather than appointed.

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Problems with Originalism

 



• Strict
• High costs of a rigid originalist approach as far as race, gender, etc. go

• Beyond the imagination of the drafters what our country does not and has grown to

• The constitution was written ambiguously on purpose. Generations would interpret it accordingly. Adhering to original intent would defeat the intent to interpret.

o Original intent in theory is good but only gets us so far.

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• Textualism

-Based on idea that the normal meaning of the text to the people of the founding generation is what binds us.

o This emphasizes the words they settled on rather than some internal sense of what they were trying to perceive

o Justice Scalia: textualism looks at meaning of words of const to the society that adopted it. Not looking at what they were thinking but what they actually wrote.

o Approves upon originalism bc were not trying to get in the heads of people hundreds of years ago.

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• Process theory

Interpret const with an eye toward political/legal process it establishes and protects

Concerned with the fact that judicial review has unfair qualities

We need to think of democracy in a rich and robust way, more complex than a majority rule at all times.

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• Puke test

Oliver Wendell Holmes

Strike down if it makes him want to puke

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• Pragmatism

Constitution was intended to give the flexibility we need over time (Evolution by interpretation)

30


D.C. v. Heller:

Displays various uses of interpretation theories/methods

1. No one method of interp. is authoritative, judges use numerous methods while interpreting the const.  – The methods are therefore a “toolbox” and all should be considered before interpreting const. in a certain way.

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Discretionary v. Non Discretionary conduct


Disctretionary conduct deals with policy and political acts, decision making power

Non-discretionary conduct: part of standing, court can regulate

court tyring to stay out of politics