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Con Law > Question 1: History & Theory > Flashcards

Question 1: History & Theory Flashcards

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1
Q

Principles of the Declaration of Independence (American Exceptionalism)

A
  1. Equality
  2. Rights
  3. Consent
  4. Right to Revolution
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2
Q
  1. Equality
A

Americans believe that nobody is born superior in contrast to how Britain (and the rest of the world) believed in divine right (a King appointed to rule by God).

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3
Q
  1. Rights
A

The gov’s sole job is to protect your fundamental rights (life, liberty, and the pursuit of happiness (property)).

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4
Q
  1. Consent
A

The government’s power comes from the people.
*Federalist 1: Government by reflection and choice vs. accident and force.

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5
Q
  1. Right to Revolution
A

If the government fails to protect our rights, it is the duty of the people to revolt and overthrow and replace that government.
*Declaration of Independence: “a long train of abuses and usurpations.”

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6
Q

Grievances (Lessons Learned) in the Articles of Confederation

A
  1. Right of Representation
  2. Independent Judiciary
  3. Weak Executive: Don’t want a king
  4. Weak Central Government: Should only be concerned w/ foreign policy and national security
  5. Written Constitution: Not explicitly in the DoI, but British Constitution not written down.
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7
Q

Articles of Confederation

A

Americans wanted weak central government

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8
Q

Madisons Failures of AoC

A
  1. Failure of the states to pay taxes
  2. Encroachment by the states on federal authority
  3. Violations of current treaties
  4. Trespasses of the states on the rights of each other (lack of unity)
  5. Want of concert where common interest requires it (lack of unity)
  6. Want of ratification by the People of the AoC
  7. Lack of legal/coercive federal sanctions
  8. Central government could not protect the states from internal overthrow
  9. Multiplicity of laws
  10. Mutability of laws
  11. Injustice of laws of states
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9
Q

George Washington’s Pillars (Solutions to AoC)

A
  1. Form/Develop a national character/identity (give fed. gov. power).
  2. Have a sacred regard for public justice (pay debts).
  3. Build and fund a permanent peace establishment (military).
  4. Be willing to put the common good above the states’ interests.
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10
Q

Marshall’s Arguments for Judicial Review

A
  1. The nature of the constitution includes limits and boundaries.
  2. The constitution is written down.
  3. We must treat the Constitution like it is law.
  4. Judicial review arises under the Constitution.
  5. The judges take an oath.
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11
Q

Limits on Judicial Review

A

Ineffective:
1. Other Branches have the Power to Interpret the Constitution (Cooper)
2. Cannot Review State Court Judgments (crossed out) (Martin)
3. Political Controls
a. Amendment
b. Appointment
c. Size and resources
d. Impeachment

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12
Q

Constitution (1787-79 – Present) (Madison)

A

-Central govt. operated directly over individuals rather than the states (fundamental switch from AoC)
-gave more power to govt. which is exactly what the people did not want but framers persuaded people by enumerated power and bill of rights

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13
Q

Constitution: Enumerated powers

A

List of the limited powers of the federal govt.

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14
Q

Constitution: Bill of Rights

A

List of the rights of the people to ensure gov. doesn’t get too big and infringe on those rights.

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15
Q

Federalists

A

Supported constitution; Washington, Hamilton, Madison (Madison switched from nationalist to dual-federalist b/c he feared govt. was given too much power after constitution was ratified)

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16
Q

Anti-Federalists

A

Opposed Constitution; Jefferson

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17
Q

Federalist Characteristics

A

*Strong central gov.; weak state govs.
*Opposed Bill of Rights as unnecessary and also fearing the list would be viewed as exclusive.
(Ultimately, added Bill of Rights in order to get the Constitution ratified.)
*We want order b/c when there are messes, it leads people to want a King to bring order.
*Messes are inevitable if you give power to the people, and we don’t like messes.

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18
Q

Anti-Federalist Characteristics

A

*Weak central gov.; strong state govs.
*A strong central gov. could easily become tyrannical and resemble the British monarchy from whom they just freed themselves.
*Gov. should be close to the people, so it should be with the states.
*Demanded Bill of Rights in order to protect individual liberties from a large central gov.
*Having a mess is the price you pay for having a democracy.

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19
Q

Protection of Liberties (Worst to Best)

A

*Enumerated Powers: Doesn’t work b/c implied powers (N&P clause. Parchment barriers don’t work).
*Federalism: Doesn’t work b/c implied powers (N&P clause).
*Judicial Review: Limited and possibly fragile.
*Separation of Powers: The only thing that really protects peoples’ rights.

20
Q

Least Dangerous/Safest Branch

A

Judiciary b/c is only has power of judgement and is made up of lawyers who are the best of society, are best equipped to make important decisions, and whose job it is to be fair and objective

21
Q

Most Dangerous Branch

A

Legislature b/c it’s closest to the people and has the power of the PURSE and SWORD (declare war)

-Internal Check: Split into two and make them very different (House and Senate)
-External Check: executive’s veto power and judiciary’s judicial review.

22
Q

Nationalists (Federalists) re Judicial Review

A

Judicial review is good b/c they are immune to majoritarian pressure and unless some branch has the last word, the Constitution wouldn’t have a settled meaning (supremacy and uniformity).

23
Q

Federalist 78: Judiciary is the safest

A

*Lacks power of purse and sword and only has the power of judgement.
*SC is made of lawyers who’re objective, trustworthy, not partisan, weighed down by precedent, and are best equipped to answer b/c smartest and fairest of society.

24
Q

Dual-Federalists (Dem-Reps) re Judicial Review

A

The people should have the last word on Constitutional interpretation.

-Counter-Majoritarian: Judicial review is bad b/c unelected and unaccountable judges deciding constitutional matters makes our system an oligarchy in direct conflict with the principle of representative democracy (this makes judiciary dangerous)

*Judiciary’s primary purpose is to check and enforce the separation of powers.

25
Q

Judicial Review: Background

A

-The power by which the courts decide whether the actions of government officials comply with the constitution
- not expressly authorized in the constitution

26
Q

Judicial Review Establishment: Marbury v. Madison

A

“It is emphatically the province and duty of the judicial dept. to say what the law is.” Marbury

27
Q

Marbury v. Madison: Major Takeaways

A
  • Marbury did not get his commission even though he has a legal right to the papers.
  • Political questions are not considered by the supreme court.
  • Original jurisdiction CANNOT be increased.
  • Marshall purposefully read the statute wrong in order to seize the opportunity for judicial review; claimed the power while turning it down
28
Q

Marbury v. Madison: Marshall’s Arguments

A
  • Structure: written constitution is pointless if you’re going to ignore it
  • Cases and Controversies: “arising under” constitution; must be a literal grant of power
  • Supremacy Clause: treat the constitution like it is law and all other law is inferior
  • Judicial Oath: this is violated if unconstitutional laws are upheld
  • Constitutional Provisions: it has natural limits and boundaries and specifically directs the courts to address/decide certain matters
29
Q

Methods of Constitutional Interpretation

A

Judicial Restraint & Judicial Activism

30
Q

Judicial Restraint: Philosophy and Methods

A

AKA Originalists/Textualists
Judicial Review is dangerous.
The Constitution does not change and it must be interpreted the way it was written/meant.

  1. Text
  2. Structure
  3. History at the time (original intent).
  4. Theory/Policy/Purpose of the framers
31
Q

Judicial Activism: Philosophy and Methods

A

AKA Living Document
Judicial Review is good.
The Constitution is a living document and it changes with society.

  1. Test
  2. Structure
  3. History and how society has changed
  4. Theory/Policy/ Purpose up to today.
32
Q

Judicial Activist

A

More willing to overturn precedent, expand the Constitution, or strike down laws passed by the legislative branch.

33
Q

Judicial Restraint

A

Limit the exercise of their own power, defer to the decisions of the elected reps, are cautious about overturning precedent, and hesitant to strike down laws unless they clearly violate the Constitution.

34
Q

Judicial Activist Judges

A

Ginsburg, Brennan, Breye, Kagan, Sotomayor

35
Q

Judicial Restraint Judges

A

Scalia, Thomas, Roberts, Alito, Kavanaugh, Gorsuch

36
Q

Functionalist v. Formalist

A

Formalists tend to stick to hard and fast rules even when that makes things ineffective while functionalist take a more sensible and realistic approach (based on practical instead of theoretical considerations).

37
Q

Standards of Review for Constitutional Claims (Levels of Scrutiny)

A
  1. Rational Basis; Minimal Scrutiny (Hamilton)
  2. Intermediate Scrutiny (Marshall)
  3. Strict Scrutiny (Madison)
38
Q

Level of Scrutiny: 1. Rational Basis

A

Legitimate gov. interest, and the law rationally related to that interest.
Pro Nationalist. Favors gov.

39
Q

Level of Scrutiny: 2. Intermediate Scrutiny (reasonable)

A

Important gov. interest, and the law substantially related to that interest.

40
Q

Level of Scrutiny: 3. Strict Scrutiny

A

Compelling gov. interest, and the law absolutely necessary for that interest.
Pro DF. Favors challenger.

41
Q

Calder v. Bull

A

Method of interpreting the constitution
Interpretivist (Justice Iredell) vs. Noninterpretivist (Justice Chase)

42
Q

Judges: Marshall

A

Nationalist/Functionalist

Believes Madison was right in how the gov. was structured and should function, but not in how Madison interprets the Constitution.

43
Q

Judges: O’Connor

A

Dual Federalist/Functionalist

The ultimate functionalist.

44
Q

Judges: Scalia

A

Hamiltonian/ Formalist

Formalist who isn’t afraid to make functionalist arguments. In favor of the administrative state.

45
Q

Judges: Thomas

A

Dual Federalist/Formalist

The ultimate dual federalist. Only way to get back to original Const. is to get rid of substantial effects test (commerce). Only Dual Federalist victory is that gov. can’t use chain of inferences.

46
Q
A

Con Law (1 decks)

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