Pg 1

Question 1

What is a writ of mandamus?

Answer 1

A legal court order from a Superior Court to an inferior one or directed at a government official ordering him to carry out his duty. These are for exceptional cases to circumvent a final judgment and may be used if a court acts in a way that is a serious abuse of power and that needs immediate rectification

Question 2

What is a preliminary injunction?

Answer 2

An order forbidding a party from doing some act before the pleadings are completed or a full hearing or trial on the merits can be had.

Question 3

What are the four things that are needed in order for a preliminary injunction to be issued?

Answer 3

– Threat of irreparable harm to the movant
- probability of the movant succeeding on the merits
– public interest
– balance of the harm against the injury of granting the injunction

Question 4

What is social contract theory?

Answer 4

Allows governments to be formed and individuals to have inalienable rights to life, liberty, and pursuit of happiness.

Question 5

What is the Magna Carta?

Answer 5

This ended the idea of kings ruling by divine right and suggested that monarchs have limits.

Question 6

What is a citizen?

Answer 6

– Article 3: includes corporations

– fourth amendment privileges and immunities clause: doesn’t include aliens or corporations

Question 7

What is the constitution?

Answer 7

The supreme law of the land that all judges are bound by

Question 8

What is the bill of rights?

Answer 8

This is the first eight amendments to the constitution that establishes the right of individuals against the federal government’s infringement

Question 9

When was the bill of rights and the first 10 amendments to the constitution ratified?

Answer 9

1791

Question 10

Why is the text of the constitution short and open ended?

Answer 10

Because courts are meant to look to it for guidance and also at history such as the framer’s intent

Question 11

How can the constitution be changed?

Answer 11

If there is enough agreement among the states, Congress, and the Senate

Question 12

What are the things that are included in the constitution?

Answer 12

– establishment of the national government and the relationship between the federal and state governments.
- national government comprised of three branches and a system of checks and balances so no one institution is too powerful
– sets out the rights and liberties of people by limiting what the government can do
– courts decide what the constitution means

Question 13

What are the three branches of government?

Answer 13

– legislative
– executive
– judicial

Question 14

What do each of the three branches of government do?

Answer 14

• legislative: pass laws through a majority in both houses and presentment to the president for signing/veto
  – executive: approve laws
  – judicial: expound and enforce laws

Question 15

What should be discussed on an essay in constitutional law?

Answer 15

– does it involve an action in federal court? If yes…
– is it within the scope of federal judicial power? Determine what branch
– is there a case or controversy?
– timeliness/mootness/ripeness?
– does P have standing? Constitution doesn’t mention this, it is impliedly found in “Case”
– justiciability? Is it capable of being determined by a court or settled by law?
– what is the source of the federal power at issue? Identify the power this exercise of federal law falls under
– structural analysis of specific constitutional law

Question 16

What is judicial review?

Answer 16

This is assumed by the federal courts. It is a duty or responsibility to interpret the Constitution, which binds other branches of government to follow the stated meaning and authority to review decisions/actions/omissions of other agencies or branches of government.

Question 17

How did judicial review come about?

Answer 17

It wasn’t set forth in the constitution, it came from Marbury v. Madison

Question 18

What is the fundamental tenet of judicial review?

Answer 18

The constitution is the fundamental and supremely controlling law of the land and is superior to ordinary laws passed by the legislature and the common law of courts. It is the duty of the courts to say what the law is and what it means

Question 19

What happened with Marbury v. Madison?

Answer 19

The Federalist party was voted out, but they created new judgeships, including Marbury‘s, which were approved by Congress, but they were not mailed. When Jefferson took office he found them and kept them so that he could put his own people into those judgeships. Marbury knew about his seat and so he sued.

The court said Marbury should have his commission, but that Congress didn’t have the power to tell the supreme court to issue the original jurisdiction order against the president, so when Jefferson accepted the supreme court ruling, he acknowledged the broad view of the power of the judicial review of the supreme court, and made the Supreme Court the final authority in cases properly before it to say what the constitution means and to bind all other government actors.

Question 20

What are the important decisions that came out of the Marbury case?

Answer 20

– The court has power to review executive branch acts (and can order the executive to comply with the US laws or the constitution)
– Acts not subject to judicial review: political question, things that the constitution or federal law say are in the sole discretion of the executive
- Constitution is superior to legislation
– The judicial department says what the law is and interprets the constitution
– The constitution binds all parts of the federal government, is enforcible by the court, and the supreme court rulings are binding on all other departments

Question 21

What was involved in the Martin v. Hunters Lessee case?

Answer 21

Treaties between the national government and a foreign government are considered to be supreme and states cannot interfere with them.

Article III creates federal courts and gives jx to hear all cases involving federal law. This case involved land in Virginia that was owned by a British man who died and willed it to his nephew in Britain. Virginia passed an act to confiscate the land of X-British people and gave the land to Hunter. Meanwhile there was a federal treaty signed between England and the US that disallowed this. The Supreme Court said the land belonged to the nephew because state law is subordinate to federal treaties under the supremacy clause. Virginia refused to follow this order, but the supreme court has jurisdiction over all cases in the judicial power of the US. The federal judiciary has the power to review acts of state governments.

The idea is that by choosing to have a central government, the people chose to limit state sovereignty through the Constitution which restricts states by the supremacy clause. State law is subordinate to the constitution and federal treaties and laws