Test 1 Flashcards
what is a constitutional government
a government that is based in principle and grounded in law
what are the 3 things the US constitution does?
- creates structure of government
- gives the sections of government power
- limits the power for sections of government
- (maybe) allows itself to be changed
what are examples in the constitution that gives government powers
Art 1 Sec 8 for congress
What is article 1 of the constitution about
legislative branch
what is article 2 of the constitution about
executive branch
what is article 3 of the constitution about
judicial branch
what is article 4 of the constitution about
relations between states
what is article 5 of the constitution about
amendment procedures
what is the main part of article 6 of the constitution
supremacy clause
what is the main point of article 7 of the constitution
ratification procedures
how many total amendments have been passed
27 currently
what is authority
power to make rules and compel others to follow them (through force or writing or other means)
what is legitimacy
a sense of rightfulness with exercising authority
what is the relationship between legitimacy and authority
- legitimacy helps in having authority (allows a government to be stable and last)
- encourages obedience if thought to be legitimate
what are the 2 theories of legitimate authority
- divine right of kings
- social contract theory
what is social contract theory
the idea that the government gets authority from the consent of the governed
what 2 people are associated with social contract theory
thomas hobbs and john locke
what are some agreements between hobbs and locke
- people exist in state of nature
- men are born with rights in state of nature
- to accomplish goals men should give up rights to government
what did hobbs think about the nature of man
- man acts in their self interest even if it means killing their neighbor
- nature is very brute and cold
- every man for himself
how did hobbs see the social contract theory
- thought governments job was to provide order to stop evil nature of man
- one way contract (give up all rights to government, Pro-Monarch)
what did locke think about the nature of man
- man wasn’t necessarily evil and tries to do good but falls short
- role of government is to facilitate men in accomplishing goals and help them
what did locke think about the social contract theory
- saw as a 2 way contract
- people give up SOME rights to government
- if the government does not respect these rights kept people have the right to revolt
what are the 2 sources of legitimacy for the US
- limited government powers from constitution
- periodic democratic elections
why was the french and indian war important
- war on north american soil
- england needed money to pay for war
- started taxing colonies
what are some of the “Acts of Oppression”
- writs of assistance
- sugar act
- quartering act
what are writs of assistance
documents from courts allowing customs agents to search “general property” of someone
what was james otis arguing against
writs of assistance
what was james otis rationale on writs of assistance
- infringement on a right of “house”
- parliament was incapable of enacting law for writs based on common law
- does not advocate rebellion but finds remedy in organs of government
what were big ideas from the first continental congress
- they were not seeing revolution
- write a letter to petition the government of Britain
what were the big ideas form the second continental congress
- ask jefferson to write declaration of independence after war broke out
what is the overall saying about the Articles of COnfederation
“loose league of friendship” (states have all of the power)
what was the structure of the Articles of Confederation
- Unicameral legislature (one house)
- limited powers (no taxing, no regulating commerce, no president)
what happened under the critical period 1781-1787
- government could not pay war debts
- states started taxing things from other states
- each state had its own currency
- shays rebellion
what was shays rebellion
- farmers went to state courthouse and took it over armed
- state goes to federal government asking for help and they could not do anything
when was the constitutional convention
summer of 1787 in Philadelphia
what was the virginia plan
- bicameral congress
- represented by population
what was the new jersey plan
- unicameral legislature
- equal representation by states
what did the framers decide on voting rights
they passed the issue down to the states to figure out who votes
what were the 2 issues of slavery (decision)
- what to do about the practice entirely (institutionalized trade until 1808)
- how much do slaves count (3/5th compromise)
what were some accomplishments under the constitutional
- gave essential powers to government (art 1 sec 8)
- created chief executive
- framework for federal courts
- amendment process
what were the federalists papers
series of papers written to persuade people to adopt the constitution
how does the constitution “insulate” federal judges from politics
- life terms during good behavior
- appointed by president, confirmed by senate
why would you “insulate” judges from politics
- neutral bias
- protect minority rights from majority encroachment
where do judges authority come from
ability to interpret the law as experts
what are sources of constitutional interpretation
- textualism
- originalism
- precedent
what is textualism in constitutional interpretation
using the words of the constitution itself
what is the argument for textualism
no better document to base an opinion off of than the one that creates the law
what are problems with textualism
- words can have different meanings
- constitution cannot cover everything (very vague in areas)
what is originalism
the original intent of the framers (federalist papers)
what are advantages of originalism
judges won’t read their own values into the decision but uses framers values
what are problems with using originalism
- societal issues are different from 250 years ago than now
- 55 people were at the convention so whose intent do we choose
what is precedent in constitutional interpretation
using previous cases that involve similar issues to decide cases at hand
what are advantages to using precedent in constitutional interpretation
- consistency in decisions
- precedent is fluid- can change with societal issues
what are problems with precedent in constitutional interpretation
- cases are not exactly the same
- “constitutional distance”
what is constitutional distance
as precedent builds on each other you get further away from the actual document itself (Griswold v Conn and Roe v wade)
what are 2 different types of LEGAL interpretation that can happen in the same case
1.consitutional argument (congress passing unconstitutional law violating rights)
2. statutory argument (person is not covered by the statute)
what is congresses only response to the constitutional argument of legal interpretation
pass an amendment giving them the authority to create such law
what is congresses response to the statutory argument of legal interpretation
pass a new law if the old one is overturned
what does article 3 section 1 of the constitution say
the judicial power of the united states shall be vested in one supreme court and such inferior courts as congress from time to time ordain and establish
what does article 3 section 2 deal with
jurisdiction of the supreme court
what are the 2 types of jurisdiction
- original jurisdiction
- appellate jurisdiction
what is original jurisdiction
a court has the power/authority to hear a case if it is the first time the case is heard
what type of cases does the supreme court have original jurisdiction in
- foreign ambassadors
- ministers and counsels
- where a state is a party
what is appellate jurisdiction
when courts have the power to review the decisions made by lower courts
what type of cases does the supreme court have appellate jurisdiction
all other cases besides mentioned in original jurisdiction DEPENDENT ON CONGRESS GIVING THEM THE POWER
- leaves cases regarding only state law to the state courts
what is judicial review
the ability to review government actions and decide if they are consistent with the constitution (primary check on other branches)
where did judicial review come from
John Marshalls decision in Marbury v Madison
what did the judiciary act of 1789 do
- established first lower federal courts
- district courts in every state
- provisions regarding supreme court
what were the provisions regarding the supreme court in the Judiciary Act of 1789
- gave congress ability to set number of court justices
- allows court to issue writs of mandamus (section 13)
- gives power to review certain decisions of state supreme courts (section 25)
what was the issue in marbury v madison
is marbury entitled to the appointment
what was the holding of marbury v madison
supreme court dismisses the case due to lack of jurisdiction
what was the rationale behind marbury v madison
says section 13 of the Judiciary act is unconstitutional because congress does not have the authority to expand the courts original jurisdiction… (since marbury brought the case straight to the supreme court)
what are some things MArbury stands for today
- constitution is supreme law
- judges determine the constitutionality of laws (not congress)
who has the best rebuttal to judicial review
justice gibson on the pennsylvania supreme court
what were justice gibsons points against judicial review
- not in constitution
- impedes on congressional authority since judges are not elected
- the people should be the check on legislative via voting them in/out
what are the basic facts of martin v hunter lessee
- virginia law wouldnt let man inherit uncles land
- conflicts with treaty of paris
- supreme court says treaty trumps state law
- virginia supreme court says section 25 of judicial act is unconstitutional (review state supreme court cases)
what is the issue in martin vs hunter lessee
is section 25 (supreme court review state supreme court rulings) unconstitutional
what is the holding in martin vs hunter lessee
section 25 IS CONSTITUTIONAL
what is the rationale behind martin v hunter lessee
- people wrote the constitution and the states are bound by it
- if the framers meant for cases not to be under appellate jurisdiction they would not have said “all other cases”
what are the 2 arguments from the rationale of martin v hunter lessee
- supremacy clause (fed trumps states)
- need for uniformity in federal law
what is the major impact of judicial review
it acts as a deterrence for congress and president
what must a court do without jurisdiction of a case
dismiss the case
who has total discretion for original and appellate jurisdiction for lower federal courts
congress
what are simple facts of Ex parte mccardle
- mccardle is a journalist tried by military tribunal for libelous writing
- files WRIT OF HABEUS CORPUS since he is a civilian
- supreme court is in the middle of decision and congress repeals statue that gave them jurisdiction
what is a writ of habeus corpus
a petition that allows the court to determine if someone imprisonment was lawful
what is the issue in Ex parte mccardle
can congress restrict the appellate jurisdiction of the court to review such petitions
what is the holding of Ex parte mccardle
the court dismissed the case
what was the rationale behind Ex parte mccardle
congress has the authority to take away appellate jurisdiction from article 3 section 2
what are implications of Ex parte mccardle
even though congress has threated to take away appellate power they have only done a couple of times
why hasn’t congress limited the courts jurisdiction in other instances
- seen as a threat to the legitimacy of the court if the top court cannot hear major cases
- shows congress in a negative light
what is justiciability
the idea that cases have to meet specific criteria to require judicial resolutions
where do the requirements come from
language of art 3 “cases and controversies”
what are adversarial disputes
2 sides fighting for opposing outcomes with real interests at stake
what are adversarial disputes required
- want matters deciding to be concrete and specific so there isn’t overreaching authority
- judges will take the case more serious if real things are at stake
what are the 3 questions to ask for determining justiciability
- WHO is bringing the action
- WHEN is the dispute being brought to the court
- WHAT does the dispute involve
what is the doctrine of standing
requirements to bring a suit to the court (want both parties to have skin in the game)
what does the standing doctrine require (legal term)
“injury in fact” (has to be specific and not shared by the public)
what is citizen taxpayer standing general rule
you cannot sue for “injury” that affects every citizen the same (cannot sue US for mexico boarder wall)
what is taxpayer standing general rule
you cannot bring suit against the US as a taxpayer because it would paralyze political actors (anyone could bring suit over policy they do not like)
what case is the exception to the taxpayer standing
Flast V Cohen
what is the rule that came from Flast V Cohen
allows litigation is people can show a “nexus” between injury and taxpayer standing
what are the 2 parts of the “nexus” in Flast v Cohen
- taxpayer must establish link between status of “taxpayer” and the legislature enacted (does the statute entail taxpayer money?)
- the taxpayers status must be connected to the precise nature of the constitutional limit
what is an example of the second nexus rule
the taxpayer must show that the challenged enactment exceeds specific constitutional limitations on the congressional taxing and spending power in Art 1 Sec 8
what is third party standing in regards to justiciability
someone other than the plaintiff can step into the role of the plaintiff (parent for minor child)
what is mootness
requirement for there to be “live” controversy between the dispute
what are the 2 major exceptions for mootness
- class action
- “capable of repetition but evading review”
what is an example of “capable of repetition but evading review”
abortions and pregnancies
what is ripeness
when cases come too early in the dispute
what rule goes with ripeness
bleeding plaintiff rule
what does the bleeding plaintiff rule say
requires show of “harm or imminent threat of harm” to be ripe (cannot bring a suit against a law if the law hasn’t been passed)
what is an Adversary Opinion
when judges give other areas of government information into if the action WILL be constitutional or not before it is done
will Federal judges give adversarial opinions
no
how long should the identification terms be
half a page to 3/4
what was the issue in Flast v Cohen
do taxpayers have standing (nexus)
can congress pass a law telling the courts to interpret the constitution in a certain way
no in marbury it is up to the judges to interpret the constitution
