Lecture 2 - 1

Question 1

Americans are going to vote in November, and you can see why our voters are being misled when they are told you vote for the president, and everything will change. He promised change and nothing has gotten better, this is not a dictatorship. Power is ________ in our system and harder for voters to appreciate that elections are not as consequential as they may think.

Answer 1

dispersed

Question 2

In France, it consolidates so much power with the __________, you see it on the news there is constant strikes and pickets and blockades and protests. The French system gives such little power to the opposition that the opposition has to use extra governmental means to manifest its dislike. People got to the streets they blockaded the public buildings and parliament.

Answer 2

President

Question 3

Notice our system gives sufficient power to the ________ that always within the system they can find a way to have their perspective heard.

Answer 3

minority

Question 4

John Marshall. 5th Supreme Court Chief Justice. Secretary of State to President Adams. He is a _________.

Two major parties in the US at this time:
1.
2.

Answer 4

Federalist

Federalist and Democratic-Republicans.

Question 5

Notice in France there is constitutional protection for ______ _______ we have none of that but we the most enduring two-party system in the world.

Answer 5

political parties

Question 6

Federalists were like our _________, but they believed more in a stronger federal government. More industrial or business inclined.

Answer 6

republicans

Question 7

Their democratic republicans which was Jefferson’s party claim the ________ of today claim to be the descendants of that party with the one problem being ______________ today believe in bigger government.

Answer 7

democrats

democrats

Question 8

Adams signed into law the alien and sedition act which referred to what?

Answer 8

felony to criticize the government

Question 9

Why do people vote for you?

Answer 9

You tend to vote for people who do you a favor or give you a job.

Question 10

Adams when he knows he is not going to be re-elected, there is a statute that allows for judges to get positions and he signs commissions and says, I want to have these judges appointed like I am allowed to have them appointed.
What should happen in a democracy if the election goes against you? The public has spoken.

You would value the justice of the peace job: salary. Lifetime salary.

He signs commissions, his secretary is Marshall. The commissions do not go out to all of the judges. They try to deliver them. Marbury – they are delivering the commission (once you receive it, job for life) Marbury wasn’t home or the delivery person went home early, and he doesn’t get his commission. He doesn’t get his commission and they can’t effectuate delivery before Jefferson is chosen president.

Jefferson doesn’t like it because they are trying to put ___________ in as _______.

Answer 10

Federalist in as Judges

Question 11

On the federal bench if you are a democrat as opposed to republican a democrat gets to be a judge In Knoxville- hide your identity or hope for a democratic president to get the position and nominate a democratic inclined judge. What happened with Pam Reeves, who got the position after Obama got elected. !

Answer 11

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Question 12

Most recent 2020 – trump had lost and mitch McConnel and Senate majority pushed through 2 republican judges and were signed into take the commission. Democratic people here were mad. It presents the tension between what is legal it is clearly legal and what is the political culture. !

Answer 12

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Question 13

Jefferson tells Secretary of State James Madison to not deliver the commission. Madison doesn’t deliver the commission.

Madison thought this is __________, that is okay because he wrote it.

Answer 13

constitutional

Question 14

Mr. Marbury files suit for the court to issue a writ of mandamus. Writ of mandamus is to a higher threshold because we are more protective of freedom. Order saying you must give me the _________ is what Marbury wants.

Marbury goes right to the Supreme Court. They do not immediately hear the case and it took them a while to hear the case.

Answer 14

commission

Question 15

At issue before Marshall: 1789 congress enacts a law and if you want a _____ ___ _______ the law says you can commence suit at the US supreme court. Following that law he commences suit.

Answer 15

writ of mandamus

Question 16

Example: people who play checkers. He is dealing with how I transform the political culture of this country, such that the country will accept a decision from a lifetime appointment federal judge to say that the elected representatives chosen laws violate the ___________.

Answer 16

constitution

Question 17

France: no _______ _______ of a duly enacted law. What happens in France, if a law is being passed by the National Assembly before it can be finalized and implemented it goes to the constitutional court and they say it is okay then it is implemented. The only thing the judge does is did you violate the law.

Answer 17

judicial review

Question 18

In Marbury v. Madison:

What Marshall is purporting to do is ____ ______ which is to say even the law is duly on the books I have power to say that law duly on the books enacted bicameral by congress and signed into law by the president is defective.

Answer 18

judicial review

Question 19

Some cases that can be brought immediately to the SC outlined in ____________. Tn and Ga in a lawsuit – TN river to feed Atlanta and TN says stop. That is brought at the supreme Court. Article 3. cases between states, water rights can be brought at the supreme court. Executive branch officials, diplomatic personnel can all be brought there.

Answer 19

Article 3

Question 20

Marshall is saying based on that there is nothing that shows original jurisdiction to bring a mandamus action, it was improper for the court to adjudicate the matter. Improper for congress to write a law saying that we can add to the original jurisdiction.

Why can’t congress add to the original jurisdiction?
Congress gave the power to add to the court’s original jurisdiction and I am saying that was unconstitutional. He sets up a case which says:

Answer 20

I have the power to say that what Congress did is unconstitutional

Question 21

Why do you think the Constitution wasn’t clearer in delineating judicial review?

Answer 21

We want people to sign on

Question 22

Martin v. Hunter Lessee – Dispute Over Land
Remember at the end of the Revolutionary War we still wanted to have good relations with the UK. They control the high seas, and we like to be able to sell them stuff. We sell commodities to them, and manufactured goods come to the US.

Commenced in VA Court. The highest court in Va. has spoken and says we side with the VA as opposed to Englishmen. Homefield advantage.

The SC issues a writ of certiorari. SC allows review of a case. It is a writ saying we will hear the case. Today for it to be granted 4 of the 9 justices have to agree to hear the case.

Response by VA. Is that you can’t review our cases. You can review cases from the inferior federal courts or cases that originate in the SC but you cannot hear cases and review the Va. Supreme Court that is a violation of Federalism.

Justice Story sides with the SC’s review. It is necessary to ensure uniformity.

Condescending. You are prejudiced and I am not.

The flip is maybe through the system of choosing state judges could be problematic which is elections as opposed to lifetime appointment.

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Answer 22

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Question 23

Cohens case:
The problem with the lottery: you are rewarded for your virtue not your game of chance.

The idea is that games of chance are antithetical to the belief of supreme being that is looking out for virtues.

Another problem with lottery: Regressive tax on the poor. Rich people Elon Musk is not playing the lottery, but a convenient store clerk just might. States have lotteries for college funds.

VA has a law against the selling of lottery tickets and these two brothers are convicted.
When the brothers sought review in the SC. VA. Says you have no authority to review our state court decision. Federalism requires you to leave us alone.

Justice Marshall decided with the lottery ticket sellers.

If you go to SC of TN and say I don’t feel comfortable you adjudicating my rights because your salary is paid by legislature in Nashville, you will get sanctioned.
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Answer 23

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Question 24

1804 – we can review congress; we can review president. It is on the books. Have it on the books and not force a confrontation.

1821- we have the power to review a state supreme court. !

Answer 24

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Question 25

Typically, what happens today. If a state supreme court issues a decision on the death penalty they will bring a subsequent claim it to the supreme court on federal _______ grounds or ____ _________.

1787 if they had definitively put this in the Constitution the states might have been like, I may not sign on. But now 30 years into the republic we are going to slowly say we can do this. – Constitutional import of Martins v. Cohen.

Answer 25

HABEAUS

Due process

Question 26

_______ ________ is not the ability to go to court.

Answer 26

judicial review

Question 27

________ _________ is: The ability for the court once the case has been brought to say that even though the laws textual terms have been abided by there is a defect in the law compared to a governing document. In this case our US Constitution.

Answer 27

judicial review