POL 373 - Exam 1

Amicus curiae

"Friend of the court." An individual or organization allowed to take part in a judicial proceeding, not as one of the adversaries, but a s party interested in the outcome. Usually an amicus curiae files a brief in support of one side or the other but occasionally takes a more active part in the argument of the case

n forma pauperis

"In the manner of a pauper." Waiver of filing costs and other fees associated with judicial proceedings to allow an indigent person to proceed.

Jurisdiction

"To speak the law". The geographical area within which, the subject matter with respect to which, and the persons over whom a court can properly exercise its power.

Habeas corpus

"You have the body". It is a legal action or writ by means of which detainees can seek relief from unlawful imprisonment.

Writ of habeas corpus

"You have the body."

Per curiam

"by the court." Term referring to an opinion attributed to a court collectively, usually not identified with the name of any particular member of the court

Writ of certiorari

"to be informed". A petition similar to an appeal, but it may be granted or refused at the discretion of the appellate courts

Subpoena

"under penalty". A judicial order requiring a person to appear in court in connection with a designated proceeding.

Briefs

(1) in the judicial process, a document submitted by counsel setting forth legal arguments germane to a particular case. (2) In the study of constitutional law, a summary of a given case, reviewing the essential facts, issues, holdings, and reasoning of the court.

Understand generally how the federal court system is organized

(from bottom to top) District Court - jurisdiction over cases involving both civil and criminal actions. Civil actions must arise out of a violation of one's constitutional rights, a violation of law or treaties of the United States or if the United States is party to the suit Circuit Court of Appeals (13 of these) - resides over cases in where one or both parties are dissatisfied with the judgment in U.S. District Court. The lower court ruling is reviewed by a panel of three judges to determine whether there was an issue with the application of law. The U.S. Circuit Court of Appeals hears both civil and criminal cases United States Supreme Court (9 justices) - the highest court in a state or in the United States and generally only deals with matters of state or national importance or appeals from the appellate court. This court will take cases from appellate court only if there is an issue with the interpretation of the law or with a constitutional right. It is also the last step in the appeals process. There is no appeals process if either party is not satisfied with the decision. One must file a writ of certiorari requesting the court to hear a case

What are ex post facto laws and bills of attainder?

- A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and imposing punishment upon them without privilege of a judicial trial. - Ex post facto (Latin for "from a thing done afterward" or "after the fact") refers to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed

Understand generally how each of the following cases extended the Supreme Court's power of judicial review, first announced in Marbury v. Madison (1803): Fletcher v. Peck (1810), Martin v. Hunter's Lessee (1816), Cohens v. Virginia (1821)

- Fletcher v. Peck (1810) -- In Chief Justice John Marshall's opinion in the Fletcher case, the Court sustained the constitutional challenge to Georgia's rescinding act, thus establishing an important precedent: that the Supreme Court has the power to declare acts of state legislatures unconstitutional. In the end, Fletcher got to keep his land, Peck got to keep his money. - Martin v. Hunter's Lessee (1816) -- The Supreme Court affirmed its power to review state court decisions in cases involving federal statutes and treaties. Martin wins. - Cohens v. Virginia (1821) -- The Virginia Court said that the US Supreme Court has no right to take the case, but the Supreme Court says it has appellate jurisdiction because it is a question of conflict between the federal statue and state statue. The Court extended the power of judicial review, but it did so in a manner that wouldn't give rise to much opposition, since the state won the case.

Explain the innovative features, attributes and/or principles embodied in the Constitution. Can you identify specific provisions in the Constitution which manifest these features, attributes, and/or principles?

- It is a written constitution -- So you can READ it Although the U.S. Constitution is written, much of U.S. constitutional law is derive from America's "unwritten constitution". - Rule of law -- The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials -- The rule of law protects against abuses of governmental power -- Can be traced back to the writings of philosophers in ancient Rome and Greece; Aristotle in particular as an example -- NO ONE IS ABOVE THE LAW --- "Be you ever so high, the law is above you" - Republican form of government -- Democracy/republic are used synonymously -- Many of the Framers believed that democracy was the "worst of all political evils" -- Guaranteed to each state a "republican form of government" -- The United States was formed a republic (allergic to the "D word") -- Both considered sovereignty to rest with the people - Popular sovereignty -- People are the ONLY source of government power -- Power is received from the people -- In the preamble: "We The People" - Limited government --The federal gov't and Congress have certain limited powers -- President, federal courts have limited powers - Individual rights -- Guaranteed by the Constitution through provisions, most notably by the Bill of rights - Federalism -- A system of government under which significant government powers are divided between the central government and smaller government units (states) - Separation of powers -- Article 1 - Legislative Branch - Congress makes the laws -- Article 2 - Executive Branch - President enforces the laws -- Article 3 - Judicial Branch - Supreme court interprets laws - Checks and balances (including judicial review) -- Each of the three so-called co-equal branches of government have the ability to provide a check for abuses of governmental power by the other two separated branches of government -- Judicial review -- The power of courts to determine the validity of acts of the Legislative or the executive department of the government - An amending article (Article V) -- The provision that makes the U.S. Constitution an instrumental of fundamental and extraordinary law -- Ordinary law are statutes passed by Congress; bills signed into law by the President and requires a majority by the House and Senate -- Extraordinary procedure is why the Constitution is an instrument of extraordinary law; extraordinary majority to propose an amendment, and an even larger majority of the states to approve it

Understand Federalist No. 10, No. 47 & No. 51 (summaries from Wikipedia just read them over)

- No. 10 addresses the question of how to guard against "factions" (more specifically the "violence of factions"), or groups of citizens, with interests contrary to the rights of others or the interests of the whole community. Madison saw factions as inevitable due to the nature of man - that is, as long as men hold differing opinions, have differing amounts of wealth, and own differing amount of property, they will continue to form alliances with people who are most similar to them, and they will sometimes work against the public interest, and infringe upon the rights of others. Thus, he questions how to guard against those dangers. - No 47 - This paper examines the separation of powers among the executive, legislative, and judicial branches of government under the proposed United States Constitution due to the confusion of the concept at the citizen level.Madison analyzes the importance, and controversy over the separation of powers, and checks in balances in the new constitution. By identifying the issue, analyzing Montesquieu's philosophy of law, and connecting it to that of the states' governments, Madison is able to fabricate a powerful, and effective essay that persuades the citizens of the United States to look at the proposed constitution more favorably - No 51 - No. 51 addresses means by which appropriate checks and balances can be created in government and also advocates a separation of powers within the national government. Madison's key point is that the members of each department should have as little dependence as possible on the members of the other departments, and to stay independent, their own department must not encroach on the others. Regarding factions, he claims that no faction can become large enough to overthrow all other factions in a well-run republic. Regarding security, the government is guarded from illegal takeovers of power because it is divided into distinct and separate departments. Regarding legislature, Madison asserts, the legislative branch is the strongest, and therefore must be divided into different branches, be as little connected with each other as possible, and render them by different modes of election. He deems the legislative branch to be the strongest since it is essentially the true voice of the people.

Understand that the art of constitutional interpretation is distinguished by those who subscribe to originalism (or the doctrine of original intent) and those who champion the living constitution.

- Originalism: The idea that the Constitution should be understood according to its original meaning. - Living Constitution: The idea that the original meaning of the Constitution should not control contemporary constitutional decision-making. The Constitution's meaning evolves according to the "felt necessities" of the times

What was the Virginia Plan and the New Jersey Plan?

- The Virginia Plan proposed a two house legislature (bicameral) where representation to Congress was based on population; this was supported by larger states. - The New Jersey Plan proposed a one house legislature (unicameral) with equal representation in Congress; this was supported by smaller states who feared losing power in the federal government.

Who were the Federalists and Anti-Federalists?

- The federalist (Alexander Hamilton, James Madison, John Jay) favored ratification of the Constitution and a powerful federal government; they argued that a Bill of Rights was not needed, as federal power was limited. They wrote "The Federalist Papers". - The anti-federalist (Patrick Henry, George Mason, Sam Adams) opposed ratification of the Constitution and wanted a weak federal government that would not threaten state rights; they wanted a Bill of Rights to declare and protect the rights of the people.

Appreciate certain external constraints on judicial review

1) Congress determines the size of the Supreme Court 2) Congress created all "inferior" Federal Courts 3) Supreme Courts decisions interpreting the Constitution can be "reversed" (nullified) by a subsequent constitutional amendment -- Exs: 11th Amendment - Nullified Chisholm v. Goergia and the 14th Amendment nullified Dred Scott v. Sandford 4) Supreme Court justices are subject to impeachment 5) Congress can restrict the appellate jurisdiction of the Supreme Court pursuant to the Exceptions and Regulations Clause -- Ex: Ex Parte McCardle

What are the three types of restraints that limit or restrict access to Judicial review?

1) Constraints on judicial review derived from the constitution itself 2) Cardinal principles of judicial restraint (self-imposed by the courts) 3) External constraints on judicial review (congressional power)

Identify the constitutional question(s) that Ch. Justice Taney addressed in Scott v. Sandford (1857). How did he answer the question(s)? What reasoning did he use to support the Court's holding in this case? Explain how the decision exemplifies the doctrine of substantive due process. *******************

1) Does Dred Scott have a right to sue in a federal court? No, he is not a citizen 2) Does Congress have the authority to prohibit slavery in territories? No, Congress is passing a law that is denying a property owner of his rights (due process), so the Missouri Compromise is unconstitutional.

Appreciate different factors that affect the Supreme Court's behavior, such as ideologies of the justices, the political environment, and internal politics of the Court.

1) Ideologies of the Justices (political attitudes) 2) The Political environment(public opinion, threatened actions of congress & president) 3) Internal Politics of the Court (bargaining, conflict, and compromise)

Impeachment

1) a legislative act bringing a charge against a public official that, if proven in a legislative trial, will cause his or her removal from public office. (2) Impugning the credibility of a witness by introducing contradictory evidence or proving his or her bad character.

Clearly articulate the three questions that Chief Justice John Marshall addressed in Marbury v. Madison. How did he answer those questions? What reasoning did he use to support those answers?

1. Was Marbury entitled to the commission of office? YES 2. Was a writ of mandamus the proper judicial remedy for this type of problem? YES 3. Did the Supreme Court have the power to issue the requested writ? NO Was the mandamus provision in the Judiciary Act of 1789 constitutional? NO: Article III, Section 2 states that: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have ORIGINAL JURISDICTION. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. "

Shay's Rebellion

A 1786 uprising of farmers in Massachusetts led by Daniel Shays, a former Revolutionary Army captain. The rebellion was spawned by economic conditions that the rebels believed to be grossly unfair to farmers and working people. It was put down in January 1787. Shays and 13 other leader of the rebellion were tried for treason and sentenced to death. Two were executed. The Massachusetts governor John Hancock eventually pardoned Shays and the other leaders.

What is a constitution (in the context of American constitutional law)?

A constitution is an instrument of fundamental and extraordinary law, which organizes the federal government, enumerates powers that can be exercised by the federal government, and sets forth certain limitations on the powers of the federal government and the states

Parliamentary system

A democratic system of government in which there is no formal separation of the legislative and executive offices. The leader of the majority party in parliament is the prime minister, or chief executive

Representative government

A form of government in which the people in periodic, free elections elect officials responsible for making policy.

Compelling government interest

A government interest sufficiently strong that it overrides the fundamental rights of persons adversely affected by government action or policy

Memorandum decisions

A judicial decision rendered without a supporting Opinion of the Court.

Unitary system

A political system in which all power is vested in one central government

Tyranny of the majority

A political system in which the rights of the individual or minority group are not protected against the will of the majority.

Case reporters

A series of books reprinting the decisions of a given court or set of courts. For example, the decisions of the U.S. Courts of Appeals are reported in the Federal Reporter, published by West Publishing Company.

English Bill of Rights

A system of legal rules and principles recognized and developed by English judges prior to the colonization of America and accepted as a basic aspect of the American legal system. Guaranteed the supremacy of Parliament over the monarchy

Trial by jury

A trial in which the verdict is determined not by the court but by a jury of the defendant's peers

Dissenting opinion

A written opinion by a judge or justice setting forth reasons for disagreeing with a particular decision of the court

The Supreme Court - Enforcement of Judicial Decisions via U.S. Marshals

Although the Court has no power to force either of the two "political" branches of government to do anything, ever since 1789 (and the enactment of the first federal judiciary act) federal judges could seek assistance from U.S. Marshals to enforce court orders. The marshal escorts of Ruby Nell Bridges Hall and James Meredith serve example to this notion.

Contempt

An action that embarrasses, hinders, obstructs, or is calculated to lessen the dignity of a judicial or legislative body.

Majority opinion

An appellate court opinion joined in by a majority of the judges who hear the appeal.

Limited government

An ideal central to republican constitutionalism in which the power of government is limited by constitutional provisions specifically defining the nature and scope of governmental powers and prohibiting government from acting in detriment to individual rights and liberties.

Opinion of the Court

An opinion announcing both the decision of the court and its supporting rationale. The opinion can neither be a majority opinion or a unanimous opinion.

Concurring opinion

An opinion by a judge or justice agreeing with the decision of the court. A concurring opinion may or may not agree with the rationale adopted by the court in reaching its decisions.

Key provisions of Articles I-VI

Article 1 - The Legislative Branch - CONGRESS The most important article because the framers envisioned that the Congress would be the most important of the three branches of government Section 1 - House of Representatives Section 2 - Senate Article 1, Section 8 - Enumerated powers of Congress --- Clause 1: Lay and collect taxes, pay for common defense and general welfare (tax & spending clause) --- Clause 3: Commerce clause: regulation of interstate and foreign commerce --- Clause 4: Naturalization and bankruptcy laws --- Clause 11: Only Congress can declare war --- Clause 18: Necessary and proper clause (elastic clause) The power of the nation government can be greatly expanded through interpretational of Congressional power Article 1, Section 9 - certain limitations on the power of Congress --- Clause 3: No bill of attainder or ex post facto law Article 1, Section 10 - certain limitations on the power of state governments --- Clause 1: No bill of attainder or ex post facto law; no law impairing obligation of contract; etc Article 2 - POWERS OF THE PRESIDENT Article 2, Section 2 - constitutional powers of the president --- Clause 1: commander in chief of the armed forces; he may require the opinion in writing the principal officer in each of the executive departments upon any subject relating to their duties; pardons for the offenses against the United States (except treason) --- Clause 2: makes treaties, provided that 2/3 of senators present concur; Nominate, and with the advice and consent of the Senate appoint, ambassadors, federal judges, other officers of the United States Article 2, Section 3: Give information on the state of the union to Congress; recommend measures to Congress; receive ambassadors and other public officials; take care that the laws be faithfully executed; commission all officers of the United States. Article 3 - The Judicial Branch Article 3 - Section 1 Mandates how Supreme Court has all "the judicial power" of the United States Congress decides how many other courts are necessary; only one Supreme Court, and the power to establish "inferior" courts Article 3 - Section 2 --- Clause 1: the judicial power shall extend to all cases, arising under this Constitution, the laws of the United States, and Treaties made... Expressed in terms of jurisdiction; what types of cases can be heard by a court? Only certain types that can be heard in the Federal court system --- Clause 2: Some cases that can be filed directly with the Supreme Court "Appellate jurisdiction" - SC can hear the appeal from a lower court decision Article 4, Section 4 Guarantee of a representative form of government; no state can become a dictatorship; also promises to protect states from foreign military attacks, and come to the aid of states if they are threatened Article 5 - Amendments -- The Constitution can be amended through a formal process established by the Framers in 1787. Needs to be proposed by 2/3 vote in both houses, and then ratified by 3/4 of the state legislatures Article 6, Section 2 - Supremacy Clause ...which shall be made in Pursuance thereof (of the Constitutional/Constitutional laws)... shall be the supreme Law of the Land All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding

Understand generally how the Constitution is organized. In particular, be sure to know the primary purpose and key provisions of Articles I through V, and more generally, the Bill of Rights (Amendments One through Ten) and the Fourteenth Amendment. When was the Constitution ratified?

Article 1: The Legislative Branch (congress makes the laws) Article 2: The Executive Branch (President enforces the laws) Article 3: Judicial Branch (Supreme Court interprets the law) Article 4: Protects states Article 5: Amendments Bill of Rights: first ten amendments -- 1. Freedom of speech, press, religion, peaceable assembly, and to petition the government. 2. Right for the people to keep and bear arms, as well as to maintain a militia 3. Protection from quartering of troops 4. Protection from unreasonable search and seizure 5. Due process, double jeopardy, self-incrimination, private property 6. Trial by jury and other rights of the accused 7. Civil trial by jury 8. Prohibition of excessive bail, as well as cruel and unusual punishment 9. Protection of rights not specifically numerated in the constitution 10.Powers of states and people 11. The judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state (Chisholm v. Georgia) Post civil-war amendments 13. Abolish slavery 14. No state shall abridge privileges or immunities of citizens of the US, nor deprive and person of due process of law or equal protection of law. 15. Right of citizens to vote shall not be denied, or abridged based on race, color, or previous condition of servitude Constitution was ratified in 1788

Understand how Article III specifies (and limits) the Supreme Court's original jurisdiction and appellate jurisdiction

Article III of the Constitution declares that the Supreme Court shall have original jurisdiction in all cases affecting government officials and where a state is a party. Also states that the Supreme Court's appellate jurisdiction extends to all federal cases with such Exception, and under such Regulations as the Congress shall make.

Distributive articles

Articles I, II, and III of the U.S. Constitution, delineating the powers and functions of the legislative, executive, and judicial branches, respectively, of the national government.

Understand the background, holding and importance of Cooper v. Aaron (1958). Explain why Supreme Court quoted Ch. Justice John Marshall's famous admonition in Marbury v. Madison (1803) that it is emphatically the province and duty of the judicial department to say what the law is.

Background: The Fourteenth Amendment and Brown v. Board of Education (1954) had declared segregation of public schools to be illegal and contrary to the Constitution. 9 black students were scheduled to attend Central High School in Little Rock, Arkansas in September of 1957, but the governor sent the National Guard to obstruct the students' passage into the school and this continued for weeks until the President sent federal troops on September 25th to allow the students to enter. The school board petitioned to a district court to allow it to suspend enforcing desegregation for 2 and a half years, since doing so was causing so much chaos and violence. The district court granted them this, but the Supreme Court later ruled differently. Issue: Whether the Little Rock school board (Cooper and others) should be allowed to suspend for two and onehalf years the operation of a courtapproved desegregation program on the ground that extreme public hostility - engineered largely by official action of the state governor and legislature - would make it impossible (according to the school board) to maintain a safe and sound educational program at a racially mixed Central High School? Holding: NO! The Supreme Court held that since the Supremacy Clause of Article VI made the U.S. Constitution the supreme law of the land and Marbury v. Madison (1803) gave the Supreme Court the power of judicial review, the precedent set forth in Brown v. Board of Education (1954) is the supreme law of the land and is therefore binding on all the states, regardless of any state laws contradicting it. Importance: The Supreme Court held that the constitutional rights of respondents (black students and their parents) under the Fourteenth Amendment are not to be sacrificed to the violence and disorder that resulted from actions of the governor and legislature which amount to unconstitutional state action. "Law and order are not to be preserved by depriving Negro children of their constitutional rights." Why quote: The Supreme Court's interpretation of the Constitution is equivalent to the Constitution itself so far as the Supremacy Clause of Article VI is concerned.

How was the Supreme Court's holding in the Dred Scott case eventually "overruled"?

Brown v. Board of Education and the Thirteenth and Fourteenth Amendments, which abolished slavery and granted citizenship to all person born or naturalized in the United States.

Constitutional Convention of 1787

Convention of state delegates held in Philadelphia during the summer of 1787, ostensibly for revising the Articles of Confederation. The convention resulted in a new constitution, which was ratified in 1788.

What are the Cardinal Principles of the Judicial Restraint?

Doctrine of strict necessity: The doctrine under which courts engage in judicial review only when strictly necessary to the settlement of a case. Doctrine of saving construction: The doctrine under which courts adopt an interpretation of a statue that saves the statue from being declared unconstitutional. Presumption of constitutionality: The doctrine of constitutional law holding that laws are presumed to be constitutional with the burden of proof resting on the plaintiff to demonstrate otherwise. Narrowness doctrine: The doctrine that judicial decisions should be framed in the narrowest possible terms or based on the narrowest possible grounds. Tells courts to avoid broad pronouncements that might carry unforeseen implication for future cases Avoid the creation of new principles: When they create new principles, the Supreme Court has to consider the constitutionality of existing ones that may be affect by the new principles. Stare decisis: To stand by decided matters." The principle that past decisions should stand as precedents for future decisions. This principle, which supports the proposition that precedents are binding on later decisions, is said to be followed less rigorously in constitutional law than in other branches of the law. Severability doctrine: The doctrine under which courts will declare invalid only the offending provision of a statue and allow the other provisions to remain in effect. Limiting doctrine of unconstitutional as applied: Doctrines by which courts may refuse to render a decision on the merits of a case. (abstention, exhaustion of remedies, political questions doctrine, mootness, standing) Unconstitutional as applied refers to a declaration by a court of law that a statue is invalid insofar as it is enforced in some particular context . All of the limiting doctrines are subject to a degree of manipulation to achieve desired outcomes.

Substantive due process

Doctrine of the Due Process Clause doth e Fifth and Fourteenth Amendments require legislation to be fair and reasonable in content as well as application

Summarize the facts - and the political context - of Scott v. Sandford (1857). Who was Dred Scott? What was he seeking in the lawsuit? How did the case get into federal court?

Dred Scott was a slave of an army surgeon, John Emerson. Scott had been taken from Missouri to posts in Illinois (a free state) and what is now Minnesota for several years in the 1830s, before returning to Missouri (a slave state). The Missouri Compromise of 1820 had declared the area including the Minnesota territory free. Dr. Emerson died. Scott sued Emerson's widow for his freedom, but he lost the case in state court.Mrs. Emerson left him with her brother, a New York citizen. Scott then sued the executor of Dr. Emerson's estate, John Sanford (misspelled Sandford in court papers), in federal court. Claiming Missouri citizenship Scott invoked federal court jurisdiction pursuant to the diversity of citizenship provision in Art. III, Sec. II, because Sandford was a citizen of New York.

Worcester v Georgia

FACTS: In September 1831, Samuel A. Worcester, a minister from Vermont, was convicted in Georgia for "residing within the limits of the Cherokee nation without a license" and "without having taken the oath to support and defend the constitution and laws of the state of Georgia." ISSUE: Does the state of Georgia have the authority to regulate relations between citizens of its state and members of the Cherokee Nation? HELD: No! The Georgia act thus interfered with the federal government's authority and was unconstitutional.

Explain the facts, the constitutional issues, the Supreme Court's holding, and the Court's rationale in Baker v. Carr (1962). Why was this a "landmark case" in American Constitutional law? In its decision, how did the Court distinguish Colegrove v. Green (1946) and Luther v. Borden (1849)? Summarize the political ramifications of the case. Compare Reynolds v. Sims (1964) with Baker v. Carr (1962).

Facts: In Colegrove v. Green (1946), the Supreme Court dismissed a lawsuit against malapportionment of congressional districts in Illinois to avoid the "political thicket" of reapportionment. For years, the Court followed this precedent. The Tennessee General Assembly had not been reapportioned since 1901 and was now significantly malapportioned. Baker argued that this violated the equal protection of the laws accorded to them by the 14th amendment. The federal district court dismissed the case on the authority of Colegrove v. Green and the plaintiffs appealed to the Supreme Court. Constitutional issues: Is it justiciable for the Supreme Court to hear a constitutional challenge to legislative reapportionment? Holding: YES Rationale: The court held that this case was justiciable and did not hold a political question and did not hold an issue to be decided by another branch of government. It was a landmark case because it is the first of the cases developing the Supreme Court's "one person, one vote" legislation. This line of cases helped equalize representation between country and city dwellers in an increasingly urbanized nation. The Court distinguished the other two cases because it declared a case regarding apportionment justiciable for the first time. Compared to Reynolds v. Sims: The Supreme Court rejects the so‐called "federal analogy". The 14th Amendment Equal Protection Clause requires that "a State must make an honest and good faith effort to construct districts in both houses of its legislature [including the state senate] as nearly of equal population as is practical." The Court ruled that population must always be the "controlling consideration" in state redistricting. Alabama was thus ordered to reapportion its legislative districts using this calculus, making them "as nearly equal of population as is practicable."

Judicial review

Generally, the review of any issue by a court of law. In American constitutional law, the authority of a court to invalidate acts of government on constitutional grounds

Voting blocs

Groups of individuals who usually vote together.

Explain the holding and significance of Ex parte McCardle (1869)

Issue: Whether Congress had the power under the Exceptions and Regulations clause to remove the Supreme Court's appellate jurisdiction (in a case which already was argued before the Court)? Holding: Yes! (The Court held that it had no jurisdiction. So, the case was dismissed.) The McCardle case is the only time in American history that Congress used its power under the Constitution to prevent the Supreme Court from hearing certain types of politically sensitive cases. Although there have been periodic movements in Congress to restrict the Court's authority to hear school desegregation cases, school prayer cases, abortion cases and other politically sensitive cases, nothing has ever happened. But it could!

Appreciate the overarching constitutional significance of Marbury v. Madison? In other words, in the context of constitutional law, why is Marbury v. Madison (1803) especially important?

It addresses the controversy of who had the final authority to determine the meaning of the constitution and it established judicial review: it gives the Supreme Court the power to declare laws unconstitutional. This made the Supreme Court powerful, and most of its rulings have favored big government. It declared the Judiciary Act of 1789 unconstitutional. However, one can argue that Madison and Jefferson also lost by giving the Supreme Court the power of judicial review, making them powerful, and in favor of big government policies. This is what Jefferson was primarily against. "IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS,"

Explain the "Exceptions and Regulations" Clause?

It grants Congress the power to make exceptions to the constitutionality defined appellate jurisdiction of the Supreme Court. It states that the Supreme Court has appellate jurisdiction with such exceptions and under such regulations as the Congress shall make.

Summarize Dr. Bonham's case (1610)? Why, arguably, was it significant for the development of judicial review? (See p. 51)

It served a major antecedent to the establishment of judicial review in Marbury v. Madison. In Dr. Bonham's case, the great English jurist Sir Edward Coke recognized that parliamentary enactments were subordinate to the fundamental principles of the common law. It was significant because although it was not an outright endorsement of judicial review as we know it today, Coke's holding was important in recognizing that legislative acts must conform to some higher law.

Understand why the Dred Scott case was significant for the development of judicial review?

It was the SECOND US Supreme Court decision wherein the Supreme Court exercised the power of judicial review to strike down an act of Congress as unconstitutional. The Dred Scott Decision was a "self-inflicted wound" on the Supreme Court which remains open to this day. The importance of the case (i.e. why it is a widely-studied, 'landmark' case) stems from the significance of our awareness of this part of American history. It has also been argued that the decision was a major factor which prompted the Civil War. The decision was seen as unfair, especially by Republicans such as Abraham Lincoln. It shows that the Supreme Court favored slave owners and their use of slaves, which stirred up anger in anti-slavery advocates.

Explain what is meant by the doctrine of judicial review. Why is this concept significant?

Judicial review is the power of the federal courts to rule on the constitutionality of legislation. By assuming this power, the federal judiciary declared its role in the system of checks and balances. Moreover, the courts took on the primary responsibility for interpreting and enforcing the Constitution.

Understand that the power of federal courts, including the U.S. Supreme Court, to hear cases (i.e., jurisdiction) is limited by the Constitution

Jurisdiction of the federal courts is determined by Article III of the Constitution.

Understand the dissenting opinion of Pennsylvania Supreme Court Justice Gibson in the case of Eakin v. Raub (1825). What was his view on the power of judicial review? How did his opinion differ from John Marshall's opinion in Marbury v. Madison (1803)?

Justice Gibson's dissenting opinion is regarded as the most effective argument against Marshall's theory off judicial review. He offered a point-by-point refutation of Marshall's theory. He stated that the Court has no more authority to strike down legislative acts than the legislators had to strike down judicial decision and that the Court should leave it to the people to determine whether or not acts of Congress are constitutional. The Supreme Court does not have the power of judicial review because the Constitution is in writing and it's not there.

Discrete and insular minorities

Minority groups that are locked out of the political process

Due process of law

Procedural and substantive rights of citizens against government actions that threaten the denial of life, liberty, or property

Contracts Clause

Provision of Article I, Section 10, forbidding states from impairing the obligations of contracts

Understand fully Elk Grove Unified School District v. Newdow (2004).

STYLE - Elk Grove Unified School District. v. Newdow, 2004, Rehnquist Court FACTS - Newdow, an atheist, has a daughter that attends school in Elk Grove Unified School District. Under a 1954 Congressional Act, public schools are required to conduct the Pledje of Allegiance (with the phrase "under God") at the beginning of every school day. Newdow sewed on the premise that the School District's policy violated the Establishment Clause in the First Amendment. Although he shares physical custody of his daughter with Sandra Banning, she has legal custody. The Court of Appeals took his case and said he was right, but the Supreme Court must rule on whether or not Newdow has standing in this case (even as ISSUE - Does Newdow have standing to bring the constitutional challenge (being the noncustodial parent of a child who attended a school that required the Pledge of Allegiance be conducted at the beginning at the beginning of every school day)? HOLDING - No RATIONALE - He does not have standing because he does not share custody of his daughter and therefore does not have a right to argue on her part. IMPORTANCE - Although the Supreme Court dismissed the case because Newdow does not have standing, most of the justices addressed the real conflict at hand: whether or not the Pledge violate the Establishment Clause of the 1st amendment (they agreed that it didn't, without officially stating their position on such a conflictive issue). This case, styled as a mandamus action, held that the plaintiff lacked standing.

What are the constraints of Judicial Review that are derived from the Constitution itself?

Standing: You have to demonstrate that you are directly, immediately, and adversely affected by the governmental action. Mere statues as a concerned citizen, voter, or taxpayer DOES NOT give rise to standing to obtain judicial review over some law or governmental act -- Ex: Elk Grove Unified School District v. Newdow - Newdow did not have standing because he did not have legal custody of his daughter. Mootness: A case is moot if the issues that gave rise to it have been resolved or have otherwise disappeared, b/c a court decision would have no effect. It's TOO LATE Ex: the court dismissed the case as moot b/c the students who filed the suit had graduated. Ripeness: Suits that are premature to an effective date of a new law do not count as a case that qualifies for judicial review; An issue is "ripe for review" in the Supreme Court when a case prevents adverse parties who have exhausted all other avenues of appeal (meaning its ready to be argued). If not, then it is TOO EARLY Exhaustion of Remedies: The requirement that a party seeking review by a court first exhaust all legal options for resolution of the issue by nonjudicial authorities or lower courts. The Doctrine of Abstention: The doctrine that federal courts should refrain from interfering with state judicial processes. The Political Question Doctrine: Under this doctrine, cases may be dismissed as nonjusticiable if the issues they present are regarded as extremely "political" and thus inappropriate for judicial resolution. -- Ex: Luther v. Borden (The Dorr Rebellion Case). Ch. Justice Roger Taney and the Supreme Court decided that it would/could not decide the issue . . . because it presented a nonjusticiable political question - one which the constitution delegates exclusively to the two "political" branches of government (i.e., the Congress and the President) to decide. Charter government wins, and the people's government loses.

Explain how, arguably, the Ch. Justice Roger Taney's approach to judicial review differed from that of his predecessor, Ch. Justice John Marshall. Was Taney a judicial activist? With regard to the art of constitutional interpretation [see Ch. 1, pp. 21 - 24] was Ch. Justice Taney an apostle of originalism or did he champion the concept of a living constitution?

Taney would most definitely be considered a judicial activist and he championed the concept of originalism. He argued specifically that the enslaved African race were never to become citizens of the United States, and that the Framers did not support the notion of them being citizens, either.

Magna Carta

The "Great Charter" signed by King John in 1215 guaranteeing the legal rights of English subjects. Generally considered the foundation of Anglo-American constitutionalism.

Explain FDR's court-packing plan. What was the switch in time that saved nine?

The Court was continually willing to strike down New Deal legislation. Finally, in early 1937 Roosevelt unveiled his courtpacking plan, which called for Congress to increase the number of justices by allowing the president to nominate a new justice for every incumbent beyond the age of 70 years and 6 months who refused to retire. This could have given Roosevelt the power to appoint 6 additional justices, raining the membership to 15. He dressed it as a matter of efficiency. The plan failed to win approval by Congress. However, the Court switched and was more willing to comply with some of FDR's proposals (for example, the National Labor Relations Act). The Court's famous "switch in time that saved nine" obviated the need for FDR to pack the Court. Within 5 years, seven of the "nine old men" had retired or died in office, and Roosevelt was able to "pack the court" through normal proceedings.

Explain the political background of Marbury v. Madison

The Federalists had lost their majority in Congress and the presidency in 1800 and were now only left with a majority in the Supreme Court. Lame duck Pres. John Adams nominates Secretary of State (SOS), John Marshall, to fill the vacant position of Chief Justice of the U.S. Supreme Court. The nomination is quickly confirmed by the Federalist-controlled Senate. (Marshall continues to serve as SOS). Federalist-controlled Congress authorizes President John Adams to appoint 42 new justices of the peace (JOP) for the District of Columbia. The Senate confirms Adams' appointments. The SOS office prepares commissions of office, which are submitted to Adams for signature, etc. Thomas Jefferson accepts the oath of office from Chief Justice John Marshall. He soon discovers that all the JOP commissions were not delivered to the intended recipients. Jefferson then revokes/cancels the outstanding commissions. Chief Justice John Marshall was a Federalist party leader and was a known rival of Jefferson (his distant cousin).

Explain why Marbury v. Madison is sometimes referred to as the Mandamus Case? What are the facts of the case?

The Judiciary Act of 1789 was passed by Congress to implement Article III specifying that the Supreme Court shall have original jurisdiction to issue writs of mandamus. Marbury starts lawsuit seeking a writ of mandamus to compel the Sec. of State (to issue the commissions of office) is filed DIRECTLY in the U.S. Supreme Court. The Court determined that the Constitution does not give the Supreme Court the power to issue a writ of mandamus, this provision was given to the Court by section 13 of the Judiciary Act of 1789, but the court ruled that this section of the act was unconstitutional because it expanded the Court's original jurisdiction and Congress only has authority to regulate the Court's appellate jurisdiction under Article III, Section 2 of the Constitution.

presumption of validity:

The Supreme Court's conference held prior to the beginning of its annual term in which the Court disposes of numerous petitions for certiorari.

Myth of legality

The belief that judicial decisions are a function of legal rules, procedures, and principles rather than the ideological leanings or policy preferences of judges.

The Federalist Papers

The collection of essays written in 1788by James Madison, Alexander Hamilton, and John Jay in support of ratification of the Constitution

Remember that the term "judicial review" nowhere appears in the Constitution. What then is the constitutional basis for the doctrine of judicial review?

The constitutional authority to exercise judicial review, although not expressly granted, is implied through the federal judicial power under Article III and the Supremacy Clause of Article VI.

States' rights

The constitutional rights and powers reserved tostate governments under the 10th Amendment. Historically, the philosophy that states should be accorded broad latitude within the American federal system

Treason

The crime of attempting by overt acts to overthrow the government, or of betraying the government to a foreign power

Doctrine of original intent

The doctrine that the Constitution is to be understood in terms of the intentions of the Framers

Bill of rights

The first ten amendments to the Constitution, ratified in 1791, concerned primarily with individual rights and liberties.

Explain the holding of City of Boerne v. Flores (1997). (See generally, p. 71)

The holding was that RFRA was unconstitutional (the Religious Freedom Restriction Act of 1993). Yes, Congress exceeded its Fourteenth Amendment enforcement powers by enacting the RFRA which, in part, subjected local ordinances to federal regulation. Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling government interest, and, even then, it may only impose the least restrictive burden. The Court held that while Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. This, the Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate.

Clearly understand how a case (from a state court or a lower federal court) can reach the U.S. Supreme Court for a final appellate review

The most common way for a case to reach the Supreme Court is on appeal from a circuit court. A party seeking to appeal a decision of a circuit court can file a petition to the Supreme Court for a writ of certiorari. "Certiorari" is a Latin word meaning "to inform", in the sense that the petition informs the Court of the request for review

Strict scrutiny

The most demanding level of judicial review in cases involving alleged infringements of civil rights or liberties

Statutory construction

The official interpretation of a statute rendered by a court of law

What is Judicial Restraint?

The underlying philosophy is that judges should exercise power cautiously and show deference to precedent and to the decisions of other branches of government. Judicial restraint counsels judges to avoid broad or dramatic constitutional pronouncements.

What is Judicial Activism?

The underlying philosophy is that judges should exercise power vigorously. They are more impatient with self-imposed limitations on judicial review and tend to brush aside doctrinal restraints.

Judicial behavior

The way judges make decisions; the academic study thereof.

Constitutional law consists of both....

The written Constitution and also the many court decisions (especially U.S. Supreme Court decisions) which interpret and apply provisions in the Constitution

What is Judicial Restraint and Judicial Activism used for?

These terms are used to describe particular decisions, doctrines, or justices' approaches to deciding constitutional issues.

Reynolds v. Sims Significance

This case has the distinction of bringing the nation closer to the calling of the first national constitutional convention since 1787 than any other development. By 1967, thirty‐three state legislatures had petitioned Congress to call a national constitutional convention to propose an amendment that would allow one house of a bicameral state legislature to be based on a principle other than population (thereby overturning the Supreme Court's holding in Reynolds v. Sims). However, this effort failed, because petitions from thirty‐four states were required.

Fundamental rights

Those rights, whether or not explicitly stated in the Constitution, deemed to be basic and essential to a person's liberty and dignity.

Understand the three mechanisms whereby the Supreme Court reviews lower court decisions. What is certiorari? (See p. 38). What is the rule of four? (See p. 47).

Three mechanisms: 1. from the 13 court of appeals, although they may come from the U.S. Court of Appeals or the Armed Forces 2. Under special circumstances, from the District Courts 3. From the state court at last resort, usually, but not always, designated at state supreme courts. Certiorari: "to be informed". A petition similar to an appeal, but it may be granted or refused at the discretion of the appellate courts. Federal law authorizes the Court to grant certiorari to review all cases, state or federal, that raise questions of federal law. This extremely wide discretion permits the court to decide its own agenda, facilitating its role as a policy maker but allowing it to avoid certain issue that may carry undesirable institutional consequences. Rule of four: U.S. Supreme Court rule whereby the Court grants certiorari only on the agreement of at least 4 justices

Vacate

To annul, set aside, or rescind.

Rule of four

U.S. Supreme Court rule whereby the Court grants certiorari only on the agreement of at least 4 justices

Although the U.S. Constitution is written, much of U.S. constitutional law is derived from America's....

Unwritten constitution; the eight thousand words of America's written constitution only begin to map out the basic ground rules that actually govern our land Exogenous factors - such as social, political, religious, economic and moral considerations - outside the written text of the Constitution itself have an important impact on constitutional interpretation, and constitutional law itself

Name the principal actors involved in Marbury v. Madison (1803) and explain what roles they played in the case?

William Marbury: He was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adam's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court. John Adams: Appointed Marbury as justice of the peace in the District of Columbia during the last days of his presidency. John Marshall: Marbury's secretary of state; he fails to deliver Marbury's appointment. Then he is nominated as Chief Justice of the Supreme Court and ruled that the court did not have the power to force Jefferson to give Marbury the job. James Madison: Jefferson's secretary of state, refused to deliver Marbury's commission.

Summarize arguments that Alexander Hamilton made in the Federalist Papers No. 78 with regard to the doctrine of judicial review? (See pp. 84 - 87).

Written years before the Marbury v. Madison case, he defends the issue of judicial independence, life tenure of federal judges, and the power of judicial review, this would serve to curb the "turbulences and follies of democracy". He argues that the power of judicial review should be used by the judicial branch to protect the liberties guaranteed to the people by the Constitution and to provide a check on the power of the legislature. This principle of judicial review was affirmed by the Supreme Court in the case of Marbury v. Madison.

Common law

a body of law that develops primarily through judicial decisions, rather than legislative enactments. it is not a fixed system, but an ever-changing body of rules and principles.

Specific performance

a courtimposed requirement that a party perform obligations incurred under a contract

Constitutional democracy

a democratic system of government in which majority rule is limited by constitutional principles such as limited government and individual rights

Indictment

a formal document handed down by a grand jury accusing one or more persons of the commission of a crime or crimes

Oral judgment:

a hearing before an appellate court in which counsel fort he parties appear for the purpose of making statements and answering questions from the bench

Law clerks

a judge's staff attorney.

Precedent

a judicial decision cited as authority controlling or influencing the outcome of a similar case

Opinion concurring in the judgment

a judicial opinion in which the author agrees with the decision of the court, but for reasons other than those stated in the court's principal opinion

Injunction

a judicial order requiring a person to do, or to refrain from doing, a designated thing

Declaratory judgment

a judicial ruling conclusively declaring the rights, duties, or status of the parties but imposing no additional order, restriction, or requirement on them

Class action

a lawsuit brought by one or more parties on behalf of themselves and others similarly situated

Civil suits

a lawsuit brought to enforce private rights and to remedy violations thereof.

Unicameral legislature

a one house legislative body

Respondent

a person asked to respond to a lawsuit or writ.

Defendant

a person charged with a crime or against whom a civil action is brought

Certification

a procedure under which a lower court requests a decision by a higher court on specified questions in a case, pending a final decision by the lower court

Constitutional republic

a republican form of government based on a written constitution. The Framers of the U.S. Constitution avoided the term democracy. They preferred the term republican form of government

Punitive damages

a sum of money awarded to the plaintiff in a civil case as a means of punishing the defendant for wrongful conduct.

English common law

a system of legal rules and principles recognized and developed by English judges prior to the colonization of American and accepted as a basic aspect of the American legal system

Demurrer

an action of a defendant admitting to a set of alleged facts but nevertheless challenging the legal sufficiency of a complaint or criminal charge

Appeals by right

an appeal brought to a higher court as a matter of right under federal or state law

Pretrial motion

any of a variety of motions made by counsel prior to the inception of a trial.

Conference

as applied to the appellate courts, a private meeting of judges to decide a case or to determine whether to grant review in a case

Interstate commerce

commercial activity potentially extending beyond the boundaries of a state

Trial courts

courts whose primary function is the conduct of civil and/or criminal trials.

Summary decisions

decisions made by appellate courts without the submission of briefs or oral arguments

Plenary review

full, complete review by an appellate court

Concurrent jurisdiction

jurisdiction that is shared by different courts of law.

Judiciary Act of 1789

landmark statue establishing the federal courts system.

Criminal prosecutions:

legal action brought against a person accused of a crime

Actual damages

money awarded to a plaintiff in a civil suit to compensate for injuries to that party's rights

Rules of procedure

rules promulgated by courts governing civil, criminal, and appellate procedure.

Protective tariffs

taxes on products imported from other nations, which increase their cost and this makes domestic products more appealing to customers. opposed by supporters of free trade

Aticles of Confederation

the Constitution under which the U.S. was governed between 1781 and 1789

Preterm conference

the Supreme Court's conference held prior to the beginning of its annuals term in which the Court disposes of numerous petitions for certiorari

Original jurisdiction

the authority of a court of law to hear a case in the first instance.

Federal question jurisdiction

the authority of federal courts to decide issues of national law.

Bicameral

the characteristic of having two houses or two chambers

Federal courts

the courts operated by the U.S. government

Mayflower Compact

the first governing document of PlymouthColony. It was written by separatist Congregationalists who called themselves "Saints". Later they were referred to as Pilgrims or Pilgrim Fathers. They were fleeing from religious persecution by King James of England

Error correction

the function of appellate courts in correcting more or less routine errors committed by lower courts

Court of last resort

the highest court in a judicial system, the last resort for deciding appeals.

Popular sovereignty

the idea that political authority is vested ultimately not in the rulers but in the people they rule

Appellate jurisdiction

the legal authority of a court of law to hear an appeal from or otherwise review a decision by a lower court

Appellate courts

the legal authority of a court of law to hear an appeal from or otherwise review a decision by a lower court

Discuss list

the list of petitions for certiorari that are deemed worth of discussion in conference.

Plaintiff

the party initiating legal action; the complaining party.

Veto

the power of a chief executive to block adoption of a law by refusing to sign the legislation

Interpretation

the process of assigning meaning to a text

social contract

the theory that government is the product of agreement among rational individuals who subordinate themselves in collective authority in exchange for the security of life, liberty, and property

Reverse

to set aside a decision on appeal

Affirm

to uphold, ratify, or approve