Constitutional law midterm

What three things does the constitution do

1. creates national institutions

2. grants powers to those institutions

3. limits powers of those institutions

What are the parts of a brief?

-title of the case

-facts

-legal issues

-decision

-rationale

-separate opinion

-analysis

Summarize the prize cases

Lincoln issued a blockade on foreign ports before Congress declared war and the ships that were seized before then wanted recovery saying that the President was not authorized to institute a blockade before war was declared

What was the decision of the prize cases?

Lincoln was authorized by laws passed in 1795 and 1807 that allowed the president to respond to foreign invasions and insurrections

What are the theories of legitimate authority?

divine right of kings, social contract

What is the social contract?

the authority of the government comes from the consent of the governed

What did Hobbes and Locke agree on?

-there was a state of nature

-it is in the best interest of people to give up rights they have in the state of nature to enjoy the benefits a government provides

What did Hobbes and Locke disagree on?

-what the state of nature looked like

-what the role of the government was

-the nature of social contract

What was Hobbes' view on the state of nature?

every man for themselves, selfish, dangerous

What was Locke's view on the state of nature?

more positive, but people could not organize themselves or accomplish anything

What was Hobbes' view on what the role of the government was?

provide order so people can live peacefully

What was Locke's view on what the role of the government was?

a facilitator for goals

What was Hobbes' view on the social contract?

citizens give up all their rights and the government has complete control, a one-way social contract

What was Locke's view on the social contract?

citizens keep some of their rights and in return the government had to respect the rights not given up, and if they don't, the people have the right to rebel, a two-way social contract

What is federalism?

system of government where power is divided between a central, national government and regional, state governments

What is seperation of powers?

the government is divided into three branches (legislative, executive and judicial), each with their own responsibilities to limit any branches from getting too powerful

What are checks and balances?

they divide governmental power among the three branches to prevent any one from becoming too powerful

Define protection of individual liberties:

fundamental rights protected from government overreach mainly through the Bill of Rights

What acts of oppression occurred during the Colonial era?

-writs of assistance

-sugar, stamp and quartering acts

How did the colonists respond to the acts of opression?

-gathered, asked for change

-committees on correspondence

-violence and uprisings

What were the characteristics of the government under the Articles of Confederation?

-most power with state governments, weak national/central authority

-unicameral legislature

-no chief executive

-national courts dealt with admiralty issues

What financial problems occurred under the Articles of Confederation that led to the constitutional convention?

the federal government could not tax and had to ask state governments for money

What commercial problems occurred under the Articles of Confederation that led to the constitutional convention?

-states had tariffs against each other

-federal government could not regulate interstate commerce

What currency problems occurred under the Articles of Confederation that led to the constitutional convention?

states could have their own currency, led to inflation

What did all those problems under the Articles of Confederation culminate in?

Shay's Rebellion

What was Shay's rebellion?

-farmers took over Massachusetts courts because the banks were going to close their farms if they did not pay in gold

-they asked the federal government to help, but they couldn't

Describe the framers at the Constitutional Convention:

delegates from all states except Rhode Island, all white men and most were rich

What plans were proposed regarding the debate of representation?

-Virginia plan

-New jersey plan

-Connecticut plan

What was the Virginia plan?

states represented based on their population

What was the New Jersey plan?

equal representation for each state

What was the Connecticut plan?

-a bicameral legislative branch

-Upper house: senate, equal representation

-lower house: house of representatives, by population

What did the framers decide to do about the debate over slavery?

They institutionalized it for another 20 years

What did the framers decide to do about how much slaves "counted for?"

3/5 compromise, they counted as 3/5 of a person for population and taxes

Why did southerners want slaves to count?

so they would have a bigger population for more representation in government

Why did northerners want slaves to count?

taxation purposes

What was the role of the states in ratifying the constitution?

nine states had to ratify for it to take effect

What did the federalists want?

more powerful central government

What did the anti-federalists want?

bigger state governments and a smaller central government

What were the Federalist Papers?

85 essays arguing for the ratification of the constitution

What does article 1 establish?

a legislative branch and the process for creating laws

What does article 2 establish?

the president and executive vesting clause

What does article 3 establish?

the judicial branch

What does the supremacy clause establish?

the constitution and federal laws are the supreme law of the land

How is an amendment proposed?

-has to be proposed either by 2/3 vote in Congress or in a national convention called for by 2/3 of state legislatures

How is an amendment ratified?

-has to to be ratified by 3/4 of states either through their legislatures or a convention

What was the debate of the Bill of Rights?

-anti-federalists wanted a guarantee of their rights

-federalists worried if you list explicit rights, the government could infringe on ones forgotten

Define the nature of judicial authority:

insulated federal judges from politics

How are federal judges insulated from politics?

-they are appointed by the president and approved by Senate majority

-they serve life terms

Where does federal judges' authority come from?

-expert interpretations of the law

-law school

-idea that they make decisions based on what is best for democracy

What tools for interpretation do federal judges use?

-text

-original intent

-precedent

What are the weaknesses for using text as an interpretive tool?

-words can change

-things exist today that did not when the constitution was written

-it's not a very long text

-some ideas in it are vauge

What are the weaknesses for using original intent as an interpretive tool?

-is true intent even attainable since so many people were involved in writing it

-why should society from 200 years ago dictate society today

What are the strengths for using original intent as an interpretive tool?

interpretations are made by what the founding fathers would have wanted, not what a current judge wants

What are the weaknesses for using precedent as an interpretive tool?

-could be subjective

-based on similarities

What are the strengths for using precedent as an interpretive tool?

-encourages that people are treated fairly

-allows laws to gradually change

What is precedent also called?

stare decisis

What are debates about influences on judges?

-judges make decisions in line with their own political views

-judges are human can make mistakes

-creates a problem for legitimacy of judicial distribute choices in the government system where judges are supposed to be neutral/fair

How do cases get to the supreme court?

-they choose what cases to hear

-cases have to be brought to them, they can't seek them out

What does article 3 establish for the judicial branch?

-provides selection of federal judicial system

-describes jurisdiction of the supreme court

What is appellate jurisdiction?

-reviewing for mistakes of law

-checking the decisions of lower courts

What is original jurisdiction?

-cases involving foreign ambassadors, ministers and counsels

-cases when a state is a party

What is federal judicial power?

-judicial review

-authority of courts to determine the constitutionality of acts of the legislative and executive actors and strike them down if they are in violation of the constitution

How and where is federal judicial power defined in the constitution?

-it is not

-courts took the power for themselves with Marbury v Madison

What did Marbury v Madison establish?

judicial review

What rationale was used in Marbury v Madison?

-right to commission

What did Martin v Hunters Lessee establish?

the courts power to review decisions of state supreme courts

What rationale was used in Martin v Hunters Lessee?

-the people wrote the constitution so states are bound by it

-the language of article 3

Why is Marbury considered so great?

-it appeased political allies, avoided conflict with the president and established judicial review

-was a great political maneuver

What are modern decisions about judicial review?

-City of Boerne v Flores (1997)

-Dickerson v United States (2000)

What was boerne about?

religious freedom restoration act

What was dickerson about?

miranda rights

What are modern implications of judicial review?

threat of review as primary enforcement mechanism

What are the constraints on judicial power?

-judges have to wait for cases to be brought to them (primarily responsive)

-court must have jurisdiction to hear cases

Does congress restrict appellate jurisdiction of the court to review petitions such as a habeas corpus petition?

-yes

-has power to limit the supreme court's appellate jurisdiction

What is justiciability?

-requires cases and controversies

Why is it important that cases be crystallized?

-specificity, judges decided specific questions so they don't exceed their authority

-parties need to fight hard and present their best arguments to judges

-judges are more likely to take their jobs seriously because important things are an issue

What are the who, when, what questions about justiciability concerns?

-who is bringing an action

-when is the dispute being brought before the court?

-what does the dispute involve?

What is standing?

evidence that the person bringing the action has a significant interest in the outcome of the case

What test did the Lujan v Defenders of Wildlife (1992) establish?

The lujan test

What is the Lujan test?

1. "injury in fact" that is

2. "fairly traceable" to defendant's conduct and

3. "capable of being redressed" by the decision of the court

What is citizen standing?

-prohibits citizens from suing over general grievances on or behalf of public interest alone

What is taxpayer standing?

prohibits citizens from suing the government just because they don't like how public funds are being spent

What did Frothingham v Mellon establish?

taxpayer standing

What did Flast v Cohen establish?

-"double nexus"

-allows federal taxpayers standing to sue when challenging the constitutionality of federal spending

What is third party standing?

-bringing a case forward on behalf of someone else

What is required for third party standing?

-special relationship between the people

-must be an impediment to a person bringing a case on their own

-party bringing case forward must suffer in their own right

What is mootness?

requires "live controversy"

What are exceptions to mootness?

-abortion cases

-class actions

What is ripeness?

requires showing of "harm or imminent threat of harm"

Why will judges not hear cases that are not "ripe?"

issues need to be specific, if they're brought too early, they're not

What is the basic logic behind federal rule against using advisory opinions?

-federal judges won't give advisory opinions due to separation of powers concerns and lack of authority

-there's not case or controversy

What is the basic logic behind federal rule against using political question doctrine?

-rule judges impose on themselves to acknowledge limits to judicial capacity and demonstrate "due respect" for actors in other branches

What is political question doctrine?

-cases that involve "political questions" as defined by the court

Still learning (13)

You've started learning these terms. Keep it up!