stuff i keep getting wrong Flashcards
why cannot a U.S. Supreme Court review how state supreme courts interpret state constitutions
- violation of federalism
U.S. Congress is responsible for writing bills that become
statutes
what are the number of justices on the Supreme Court determined by
federal law, not the constitution
accurate description of Marbury v Madison
- The Supreme Court asserted the power of judicial review
- The Supreme Court held that a law expanding its original jurisdiction was unconstitutional
what was the views of the authors of Federalist 78 of the possibility that the judiciary could become too powerful?
- it was unlikely, because the Supreme Court has no way to enforce its decisions on the other branches
- ‘it may truly be said that to have neither FORCE nor WILL, but merely judgement; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgements’
what was the problem of the Articles of Confederation was the Constitution designed to fix?
The government under the Articles was too weak
Suppose a case is appealed to the Supreme Court, but the Supreme Court decides that it doesn’t have appellate jurisdiction over that particular type of case. To make that determination, the Supreme Court would have to look at what text, in addition to Article III of the Constitution?
Federal Statute
2 ways Chief Justice Marshall changed how the judiciary or the entire federal government functions
- he established the judiciary’s power of the judicial review
- he helped the judiciary take on an important role in policing the separation of powers and enforcing federalism
- he expanded the federal government’s power under the Necessary and Proper Clause
- he expanded the federal government’s power under the Interstate Commerce Clause
originalism
- view that the Constitution should be interpreted by looking at how it was understood when it was adopted
Living Constitutionalism
view that the Constitution’s meaning should evolve to keep up with social, economic and cultural changes
congress =
senate + house of representatives
how do constitutional rights protect individual freedom
- constitutional rights limit government action, including what statutes legislatures can write and what actions executive-branch officials can take to enforce the law.
- this creates an area for people to act as they choose
3 solutions on how the framers aimed to limit the power of the federal government
- checks and balances
- gov of enumerated powers
- bill of rights
is the 14th amendment part of the bill of rights
- no, the bill of rights consists only of the first 10 amendments to the constitution, not later ones like the 14th amendment
does the supreme court’s power of judicial review come from statute, case law, or the constitution?
case law; specifically, the case of Marbury v Madison
- the constitution doesn’t mention judicial review
Does the President’s veto power over proposed legislation come from statute, case law, or the constitution?
Article 1 of the Constitution (the Presentment Clause)
Does Congress’ authority over the Supreme Court’s appellate jurisdiction come from statute, case law, or the Constitution?
Article 3 of the constitution
Restaurants as a private institution
- First Amendment does not require that the owners abide by the Free Speech Clause. Under the state action doctrine, constitutional rights are limits on governmental actors, not on private actors or businesses
what would the first amendment prohibit?
the government from banning all political speech in a public area.
3 discussed arguments for free speech
- Democracy
- Marketplace
- Individual rights
What case is this dictum from?
‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic
what does incorporation mean in selective incorporation
- means that the 14th Amendment Due Process Clause incorporates some of the rights in the Bill of Rights, and therefore makes those rights binding on the state government
What is the selective part of selective incorporation?
Selective because the Supreme Court early on decided that the 14th Amendment did not incorporate the entireity of the Bill of Rights against state governments. Instead, the courts decides on a case-by-case basis whether a particular right found in the Bill of Rights is so important that failing to apply it to a state government would constitute a violation of due process under the 14th amendment. Some parts of the Bill of Rights have still not been incorporated (though most have)
state action doctrine
- constitutional rights only limit government actors, not private people or private institutions
constitution places limits on..
legislature which writes laws governing private actors
how does a constitutional right protect individual freedom?
- limited how the legislative and executive branches can regulate private actors
state action doctrine says that
- constitutional rights only limit governmental actors
when was the constitution amended to include the Bill of Rights (first 10 amendments)
1791
what was the concern of the framers
- federal government would become too powerful
- thats why the 10th amendment ‘reserves’ all non-enumerated powers for the state governments
why was a large centralised government seen as more likely to become tyrannical?
- less responsive to the will of people
what changed for the bill of rights to apply to not only the federal government but the state government too
- the civil war
what did the fact some states had fought against the federal government to maintain the system of slavery show
- needed constitutional limits on state governments, not just the federal government, to ensure individual freedom
what are the 13th, 14th, 15th amendment called
- reconstruction amendments because they were added during the post-civil war period called reconstruction
Due Process Clause (14th Amendment)
- ‘nor shall any state deprive any person of life, liberty, or property, without due process of law’
Presentment Clause
A bill passes both the House of Representatives and the Senate.
The bill is presented to the President.
The President has 10 days to sign the bill into law or veto it and return it to Congress with an explanation.
If the President doesn’t return the bill within 10 days, it becomes law unless Congress prevents its return by adjourning.
- If President doesn’t return the bill in 10 days, it becomes a law unless Congress prevents its return by adjourning
federal exec examples of departments
- DOJ
- Department of Homeland Security, and the State Department
state federal examples of departments
- department of public health, and the department of education
state legislative branch
- 49 states have bicameral legislatures
- nebraska only state with unicameral legislature
what does Congress use the Interstate Commerce Clause to legislate on
- public health, civil rights, environmental protection, and interstate crimes
federal judicial branch
- Constitution establishes a Supreme Court
- The Constitution says that Congress can set up additional courts, which was one of the first acts of Congress after the Constitution was ratified
state judiciary branch
- every state has a supreme court and lower courts
- state courts deal much with disputes between private citizens and handling family matters
federal courts - judicial branch
- federal crimes
- handling issues that the Constitution explicitly says are the power of the federal government alone
- hearing challenges to the constitutionality of laws under the federal Constitution
