Historical Origins of Constitutional Law / Theory Flashcards
Functions of the Constitution
1. Federalism Avoid Conc. of Power Division of State and Federal Avoid Tyranny 2. Create the Federal Gov't
Bill of Rights
1 - 10 amendments
Written by the “powdered wig framers.”
Function: To limit Federal Power
Post-Civil War Amendments
13th, 14th and 15th amendment
Function: To limits State Power
Written by the reconstruction congress (post-civil war congress)
Articles of Confederation
First go at making a federal government.
The 3 Articles of the Constitution
Article I – Legislative Branch
Power of the Purse
Article II – Executive Branch
Power of the Sword
Article III – Judicial Branch
Power of the Pen
Note: judicial judgments are enforced today, by virtue of executive compliance.
Marbury v. Madison
Court held that the Judiciary Act of 1789 was unconstitutional, in that it conflicted with Article III of the U.S. Constitution. Specifically, Justice Marshall said that the SC’s power to issue a writ of mandamus was unconstitutional. This in turn, established FEDERAL judicial review.
Limited congressional power and expanded judicial power.
What are the political branches?
The Executive and Legislative branches, because they get their power from the people aka, ‘the vote.’
Federalists and Anti-Federalists
Federalists
Were against the BoR
Opposed the constitution and the idea of federalism.
Wanted to avoid the danger of listing out rights.
Anti-Federalists
aka Democratic Republics // Agragrian Republicans
e.g., Thomas Jefferson,
Pro BoR
Martin v. Hunter’s Lessee
SC may review STATE court issues.
Cooper v. Aaron
Held that a state court refusing to abide by a SC decision is unconstitutional.
This is the judicial review for state LEGISLATIVE and EXECUTIVE action.
Standard of Review
Rational Basis Test
- Presumably Const. - Easiest to Survive
Intermediate Scrutiny
Strict Scrutiny
-Presumably unconstitutional
Strict Scrutiny Test
To pass SS, the state or federal legislature must have passed the law to:
C.N.
1. further a "compelling government interest"; AND 2. must have "narrowly tailored" the law to achieve that interest.
Laws that are faced with SS, are presumptively unconstitutional.
Intermediate Scrutiny Test
Intermediate scrutiny is invoked when a state or federal legislature passes a statute which “negatively” affects certain protected classes.
To survive intermediate scrutiny, the government must demonstrate that the law:
I.S.
- furthers an “important government interest”; AND
- must do so by means that are “substantially related to that interest.”
No presumption of unconstitutionality.
Plaintiff can argue that there is additionally, an exceedingly persuasive justification (See U.S. v. Virginia).
Rational Basis Test
This standard of review prohibits state and federal legislatures from imposing restrictions on liberty that are “irrational” or “arbitrary,” or “drawing distinctions” between persons in a manner that serves no “constitutionally legitimate end.”
Lowest standard of review.
Test: “The law is upheld so long as it is rationally related to a legitimate government purpose.”
Laws reviewed under this standard are presumably constitutional.
Very easy to survive.
E.g., law says you will get a ticket if you pass a red light.
End-Mean Analysis
End (purpose) = permissible as long as Ct can conceive
ANY goal not prohibited by the Const.
Means (law) = permissible as long as "rational
relationship" to purpose.
Methods of Constitutional Review
Originalism
Originalists do not rely on the specific-intent of the framers. Rather, they interpret the text of the constitution based on how the masses would interpret that text at the time it was written.
May NOT rely on ANY source.
Pluralists
More fluid approach.
Look at a variety of factors when interpreting text, including specific-intent.
May rely on ANY source.
