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addresses three aspects of the Judicial Branch; 1) method of appointing justices 2) life-time tenure 3) relationship of the courts

Federalist 78


a body of law stemming from judges, not from statutes

common law


there must be an actual dispute, not a hypothetical one

cases and controversies


a party bust have standing to sue by being a stakeholder in the outcome



a criterion usd to dismiss cases that no longer require a resolution



standard set for other courts to follow; 1) cases and controversies 2) standing 3) mootness 4) ripeness 5) political question

Ashwander Rule


latin for "to be more certain"

Writ of Certiorari


case that gave the Supreme Court the power to review state court decisions

Martin v. Hunter Lessee (1816)


first case where the Supreme Court overturned state law

Fletcher v. Peck (1810)


wrote the Judiciary Act of 1789, framing the courts

Oliver Ellsworth


said the people are the greatest evaluators of the constitution, not judges; opposed judicial review

Justice Gibson in Eakin v. Raub


talks about factions and how to avoid them; said that though eliminating liberty would take away factions, we can't deprive humans of liberty, it is a natural right; said having a federal government to provide for the national needs and having a state government to provide for the local needs was necessary

Federalist 10


said man is ambitious and no angel, so government has to have internal limitations to check abuse of power; double security; said having distinct federal branches, checks and balances, and the states having some power keeps the federal government from amassing too much power; said having a lot of government bodies will prevent oppressive majorities; though the legislature will be very powerful, that is checked by it being bicameral, having each part be elected differently, and having the two chambers be connected as little as possible; separation of powers is essential to the preservation of liberty

Federalist 51


federalism is the division of state and federal government; a compound republic

double security


said ratification is the most important question any people has ever had to decide because the public is choosing whether to approve a government that will protect their liberties or have the power to subvert them; was against the constitution because it took too much power from the states; concerned about the federal government's power to tax in the constitution, that the public good was sacrificed to the thousands of views, if the republic is too large, the elected officials can't understand all the different needs, and that people would ally together with people like themselves too much, making government quarrelsome

Brutus 1


justice concerned with the public nature, obligatory character, and consequential aspects of the Constitution; thinks intent of the Framers is understanding exactly what the Framers thought about the question under consideration and following that intention - he thought trying to do this was really arrogant; said using the democratic theory allows for the will of the minority to be protected; believe that the court should address contemporary issues and what the Constitution means today

Justice Brennan


justice who was a textualist; textualists reasonably interpret the constitution within the range of the written word, see the constitution last he rule of the law, and don't make the meanings of the words too broad

Justice Scalia


a body of law that grows and changes from age to age, in order to meet the needs of the changing society and judges who determine those needs and find changing law; Scalia says this view had no guiding principle

Living Constitution


justice that said focusing on Active Liberty in the use of judicial interpretation allows for a focus on the people's general will and consequence; said justices should focus on the consequence of a decision; said active liberty allows subjectivity, objective guidance, the consideration of laws, precedents, and previous standards

Justice Breyer


people possess natural rights that government must protect; government is limited; individualistic

classical liberal


people need the community; government is there to unite people, solve problems and establish justice; communitarian

classical republicanism


said the formation of cities is natural and man is a political being by nature; said constitutions should aim for the common good; said justice is concerned with the common happiness of the political community and thus should be distributed to people based on their merit/what they contribute to the community; thought kingship was the ideal government



an act by which individuals agree to form a government; governments are established by the people who combine to achieve some goal; there is the existence of a state of nature prior to any government, man has natural rights and is reasonable

social contract theory


wrote The Leviathan; said the state of nature is war and security is the most important thing; civil peace and social unity are best achieved by a commonwealth established through social contract and is ruled by a sovereign power; describes the commonwealth as an artificial person

Thomas Hobbes


wrote Second Treatise on Government; governing principle is liberty - people are equal and have natural rights; our state of nature is we live free from outside rule; people exercise their own justice for themselves; people exchange some of their natural rights in order to enter into society and be protect by laws and executive power to protect their property and defend their liberty - role of government; describes a legislative, judicial, and executive branch as the ideal government - people have the right to dissolve their government if it stops working for them

John Locke


wrote Social Contract; said general will is aimed at the public good, while the will of all is self-interested; political community's goal is to create a society where everyone chooses the laws that govern them; men, by nature, are unequal, but making people citizens of a society makes them equal under the law