PART I: CONSTITUTIONAL STRUCTURE Flashcards

Question 1

Q

Article I – Establishes the……

Answer

A

Creates Congress through defining the legislature. Two houses made in order to balance power: both houses must agree therefore deterring overriding weighted power by a representative-heavy/heavily-populated heavy state.

Question 2

Q

Article I splits….

and how do their representatives attain their status?

Answer

A

Congress into two Houses:

Senate: Equal Representation

House of Reps: Proportional by Population

Question 3

Q

Article I Section 8 gives congress_ _

Give definitions of both

Answer

A

Powers & Implied Powers
Powers: Law Making
Implied Powers: General law making power conferred, through the necessary proper clause

(Art. I, Sec 8, Clause 18)

Question 4

Q

Article II Establishes the

Answer

A

Executive Branch

Creates the presidency & grants executive power
Charged with enforcing and implementing the laws created by congress
President is Commander-in-Chief of the Armed Services
Political Powers: Grant pardons, Enter into treaties, Appointments, etc.

Question 5

Q

Article III Establishes the

Answer

A

Creates the Supreme Court

Sets out procedures for appointment & the indefinite term of justices
Prohibits compensation to be decreased

Question 6

Q

• Functions of the Constitution:

Why do we have Checks and Balances?

Answer

A

To separate and disperse power, Divide up the Federal Government

Question 7

Q

• Functions of the Constitution

What is federalism?

How do the following apply:

10th Amendment
Full Faith & Credit Clause

Answer

A

Federalism – 3 branches to protect individual liberties, to balance & control the relationship between states and federal government

10th Amendment – Powers not granted to the federal government go to the states
Full Faith & Credit Clause – Relationship of the states with each other

Question 8

Q

Congressional action is valid_ _

State action is invalid_ _

Answer

A

Congressional action is valid only when explicitly authorized.

State action is invalid only when expressly prohibited.

(Except, when the Supremacy Clause applies)

Question 9

Q

• Why wasn’t the Bill of Rights in the original Constitution?

Answer

A

o Hypocritical – Supported Slavery (Did not want to lose the southern states)

o Philosophical Argument – Impossible to list all rights, a list would limit

Question 10

Q

• Why a Constitution and not statutes?

Answer

A

A Constitution is much harder to undo & change

Article V (Procedure for Change)

Constitution creats a federal floor, a garunteed minimum

Question 11

Q

Judicial Review

Answer

A

• Judicial Review – When its validity has properly been presented in a case before the court, the court may then review the constitutionality

(i.e., Congressional Acts, Statute, Executive Nondiscretionary Conduct, State Statutes, etc.)

Courts have the power to review nondiscretionary conduct where there is a specifically identifiable legal command (Excludes review of Political Acts)

Question 12

Q

• Marbury v. Madison

Answer

A

Constitution trumps anything in conflict
Job & Duty of the Court to review the constitutionality under the “arising under” jurisdiction

(Extends to interpretation of the Constitution, because the court Must evaluate and interpret it to solve such cases)

Interpretation of Art III, Sec. 2, Clause 1 – “Judicial power shall extend to all cases…arising under this constitution”

Question 13

Q

• Martin v. Hunter’s Lessee

Answer

A

o The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law.

Question 14

Q

• Cohens v. Virginia

Answer

A

o Demonstration of federal judicial power also encompasses the power to review state court decisions involving state law that include a question of federal or constitutional law as a matter of course

Question 15

Q

3 Functions of the Constitution

Answer

A

Establishes three branches of government
Defines federalism, gives states broad power
Protects individual liberties

Question 16

Q

From Marbury

Two Types of Executive Action

Answer

A

1) Political acts: actions within realm of discretion entrusted to president by the constitution
• no role for judiciary to play. Pardons, treaties

In Marbury we have:

2) Non Discretionary acts: can locate somewhere in law that is a non-discretionary duty of the executive branch.

Specific identifiable legal command/duty

The act of congress that made the appointment, there is no discretion, there is a specific identifiable legal command

Question 17

Q

From Marbury

Can Congress expand the scope of the Supreme Curt’s original jurisdiction beyond what is specified in Article III of the Constitution?

Answer

A

No congress cannot expand the scope of the SCs jurisdiction beyond what’s specified in the constitution. If they could give a court appellate jurisdiction when the constitution says they have original jurisdiction, that passage of the constitution would be useless.

NO clause in the constitution is intended without effect

Question 18

Q

Does the Supreme Court have original jurisdiction to issue writs of mandamus?

Answer

A

o The court would have to exercise appellate jurisdiction to order a writ of mandamus.

o The constitution does not warrant the supreme court the authority to issue writs of mandamus to public officers

Question 19

Q

How to change the constitution

Answer

A

• Article V: how to change the constitution

Two ways to launch proposal:

• 2/3 in congress or 2/3 of state legislatures

(all amendments so far come form congressional vote)

• Congressional vote of 2/3 majority in both houses in congress or ¾ of state legislatures approval

Question 20

Q

• Why three branches? (Federalism)

Answer

A

o Decentralizes. Centralized power was viewed as tyranny

o Branches working in coordination. No single branch acts alone

Question 21

Q

Federalism

Tenth amendment:
Article three:
Article four:
Article one section one:

Answer

A

establishes state rights

federal courts have limited jurisdiction

full faith and credit clause

congress gets only the powers were specifying

Question 22

Q

• Individual’s Rights

In the pre-amendment text, what are some examples of provisions you see as protecting individual rights?

Question 23

Q

• Non-Orginalism:

Answer

A

Courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document

Question 24

Q

• Originalism

&

Democratic Argument

Answer

A

Proper meaning is the meaning originally intended by the Framers (Historical Approach)

o Democratic Argument - The constitution should be changed though amendment through elected officials. Giving more credence to officials who were elected rather than appointed.

Question 25

Q

Problems with Originalism

Answer

A

Strict
High costs of a rigid originalist approach as far as race, gender, etc. go
Beyond the imagination of the drafters what our country does not and has grown to
The constitution was written ambiguously on purpose. Generations would interpret it accordingly. Adhering to original intent would defeat the intent to interpret.

o Original intent in theory is good but only gets us so far.

Question 26

Q

• Textualism

Answer

A

-Based on idea that the normal meaning of the text to the people of the founding generation is what binds us.

o This emphasizes the words they settled on rather than some internal sense of what they were trying to perceive

o Justice Scalia: textualism looks at meaning of words of const to the society that adopted it. Not looking at what they were thinking but what they actually wrote.

o Approves upon originalism bc were not trying to get in the heads of people hundreds of years ago.

Question 27

Q

• Process theory

Answer

A

Interpret const with an eye toward political/legal process it establishes and protects

Concerned with the fact that judicial review has unfair qualities

We need to think of democracy in a rich and robust way, more complex than a majority rule at all times.

Question 28

Q

• Puke test

Answer

A

Oliver Wendell Holmes

Strike down if it makes him want to puke

Question 29

Q

• Pragmatism

Answer

A

Constitution was intended to give the flexibility we need over time (Evolution by interpretation)

Question 30

Q

D.C. v. Heller:

Answer

A

Displays various uses of interpretation theories/methods

No one method of interp. is authoritative, judges use numerous methods while interpreting the const. – The methods are therefore a “toolbox” and all should be considered before interpreting const. in a certain way.

Question 31

Q

Question 32

Q

Discretionary v. Non Discretionary conduct

Answer

A

Disctretionary conduct deals with policy and political acts, decision making power

Non-discretionary conduct: part of standing, court can regulate

court tyring to stay out of politics

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PART I: CONSTITUTIONAL STRUCTURE Flashcards

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