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| The power given to courts to interpret the constitution, and the power to make judgements as to whether or not certain Federal and State laws are unconstitutional. |
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Facts (Summary of the case)
Constitutional Question (Legal issue)
Ruling (Summary of the Court's decision) |
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| People who opposed Judicial Review |
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Jefferson (Every branch decides for themselves)
Madison (Believed a true and safe constitution would emerge)
Andrew Jackson
Gibson (Theory of Judicial Restraint-Tripartite view) |
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| Judicial Review given credibility through... |
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Article III (Judges can use power for cases and controversies)
Supremecy Clause (Article VI-Constitution is the supreme law of the land.) |
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| The finality of the courts interpretation of borad constitutional principles for resolving major political questions. |
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Facts:
John Adams appoints marbury
Jefferson (pres) does not finalize appointment.
James Madison (Sec. of State) never delivers appointment.
Marbury sought Writ of Mandamus
Question:
Is Marbury entitled to his appointment?
Can court issue Writ?
Is Court allowed to have Original Jurisdiction in this case?
Ruling:
Court only has Appealate Jurisdiction in this case.
Court can only issue Writ in Appealate cases.
Marbury is entitled byt court can not issue Writ.
Judiciary Act of 1789 unconstitutional. |
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Facts:
a) Justice Gibson dissenting
Branches are co-equal. One should not have more power than the other.
State Courts have no power to overturn state statues.
States could strike down state law inconsistent w/ the con.
Where does Supreme Court's power in Judicial Review stop?
The legislative branch is the one who should have power b/c it makes laws.
Every Branch checks itself (Tripartite interpretation)
Legislator alone is responsible for making laws that fall in line w/ the con. |
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1. Overturning laws
2. Using of illegitimate interpretive methodology
3. Overturing precedent
4. Overturning state laws
5. Settling of political questions
6. Scope of opinion is narrow
7. Level of certainty is broad
8. Might exceed jurisdiction |
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Opposite of activism
Judges still not willing to declare statues unconstitutional. |
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| The incorporation of the BOR using the 14th amendment. This process took a lot of time to be completed. There were five different views of how the BOR should have been incorporated using the 14th. |
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| Before the 14th Amendment |
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The Constitution only allowed for 5 civil liberties.
The BOR was not applicable to the states. |
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| Madison's Four reasons for ambivalence conerning the BOR: |
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I.The rights in question are reserved by the manner in which federal powers are granted (federalist arguement)
II.Rights might be narrowed b/c of positive declaration.
III.Liberty already guarded by limits on Congressional power and Federalism.
IV.Experience proves the inefficacy of a bill of rights on those occasions when its controul if most needed. |
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| Alexander Hamilton concerning the BOR: |
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*BOR not necessary
*A claim for more than we are granted
*BOR only a declaration of what Govt could not do already.
*Gives more power b/c rights not listed-not protected.
*Make it tough to decide what rights to include. (ex-freedom of press not a natural right) |
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| Barron v. Baltimore (1833) |
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| Marshal argued against the opinion of the Court that if 1st congress would have wanted the BOR applied to states they would have "declared this purpose"! Theory of |
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| Hurtado v. California (1884) |
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*Justice Matthews argued in the opinion of the court that the "indicment by grand jury" had been desired in the 14th it would have been inserted. Instead the list under Due Process (5th) is not superfluous.
*Justice Harlan argued in the dissent that if Federal govt can be kept from infringing on the fundamental and essential rights of the individual, why should the state be any different. [Total Incorporation] |
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| Palko v. Conneticut (1937) |
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| Justice Cardozo argued in the opinion of the court for a theory of Selective Incorporation. Double Jeapardy (5th) is applicable to the states through the 14th, but what Palko was arguing was not Double Jeapardy. [Selective Incorporation] apllied to the 1st, 5th, and 6th amendments. |
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| Adamson v. California (1947) |
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Justice Frankfurter argued that a selective application of the BOR should apply, but on a case by case basis. This theory is also known as [Fundamental Fairness]
Also in the dissent in this case another theory was born. [Total Incorporation Plus]. Justice Murphy and Rutledge. |
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| Justice Murphy along with Justice Rutledge championed this theory in his dissent in Adamson v. California. This theory states that not only should BOR be applied to the states, but that there are certain fundamental and essential rights that are to be protected as well. |
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| Selective Incorporation Plus |
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| This theory is the same as Selective Incorporation, but with this theory there are said to be certain fundamental and essential rights that are not listed in the BOR that should be applied to the states. This came about in Griswold v. Conneticut. |
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*liberal on economic and commercial freedoms
*conservative on individual and social freedoms |
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*Liberal on social and indivudual freedoms
*Conservative on economic and commercial freedoms |
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*Liberal on Social and Individual Freedoms
*Liberal on Economic and Commercial Freedoms |
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*Conservative on social individual freedoms
*Conservative on economic and commercial freedoms |
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| Four Methods of Interpreting Constitution |
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Textualism
Original Intent
Balancing of Interest
Stare Decisis |
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a reliance on the text itself
historical meaning of language
great suspicion of judicial authority
less reliance and intent
*Justice Scalia
*Contemporary Conservatism |
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Heavy emphasis on historical evidence
focused on intent of Framers
*Justice(s) Rhenquist and Thomas |
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De-emphasized historical evidence
Judicial authority tolerated
*legal positivism |
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Heavy reliance on precedent
yrs of judicial precendent shouldn't be deviated from
*All judges |
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| How many rights (BOR) were proposed intially? |
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| Which Article was used in the authoring and establishment of the BOR? |
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| What year did the BOR become part of the CON. |
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| Intially the BOR applied to which Govt(s)? |
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| Through which amendment did the BOR apply to the states overtime? |
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(No Objective Lens) [Karl Llewelyn]
Interpretivism v. Non-Interpretivism |
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Confine analysis to text and historical context
Textualism and original intent |
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Formulate more boradly the underlying principle of the Con provision
Not too much attention to words or plain meaning. |
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judges have no dicrestion, they simply declare the law.
declare the law according to common sense and plain meaning
see language as objective
judges simply "find the law" |
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| Interpretivism is associated with whom? |
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| Blackstone (Declatory Theory of Law) |
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judges don't find the law they make it
no plaing meaning, decisions based off sources.
a. Socialogical Jurisprudence[Roscoe Pound]
judges should be social engineers
evaluate social evidence to dtermine common sense.
b. Brandies Brief
The use of sociological evidence to prove a case. |
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| Who championed the Death of Legal Formalism? |
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