Get ahead with a $300 test prep scholarship | Enter to win by Tuesday 9/24 Learn more

American Constitution

Terms in this set (211)

1803
- Adams nominates Marbury to office of justice of the peace in DC
- nomination affirmed by Senate, commission signed by president, seal of the US was affixed by the Secretary of State
- when Adams' term of office expired, Marbury applied to James Madison (Secretary of State under Jefferson) for the delivery of his commission
- Jeffer said commission not valid until delivered and ordered Madison to withold it

1. Has the applicant a right to the commission he demands?
- yes if all three things listed above happen .... so this was a violation of a vested legal right
2. if he has a right and that right has been violated do the laws of his country afford him a remedy?
- yes, one of the duties of government is to afford that protection
3. if they do afford him a remedy is it a mandamus issuing from this court?
- inquiring on ... the nature of the write applied for and the power of this court
* court says the "province of the court is solely to decide on the rights of individuals, not to inquire how the executive, or executive officers perform duties in which they have a discretion. Questions in their nature political or which are by the constitution and laws submitted to the executive, can never be made in this court."

* court quotes on writs of mandamus

* affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party all other cases the SC will have appellate jurisdiction

** powers of the legislature are defined and limited ... committed to writing

** if an act of the legislature, repugnant to the constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect?
1857
-a slave belonged to Dr. Emerson a US Army surgeon in Missouri
- Emerson was transferred to Illinois a state that forbade slavery and he took Scott with him
- Emerson and Scott later returned to Missouri
- Scott sued for his freedom in a Missouri state court because he was brought into and had resided in a free territory
- Scott won initial case but Missouri SC reversed the judgment
- abolitionists arranged a fictitious sale of Scott to John Sanford so that the Federal Circuit Court could assert jurisdction because of diversity of state citizenship

**act of Congress upon which plaintiff relies declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France under the name of Louisiana, which lies north of 36 degrees ...

* by what provision of the Constitution the present Federal GOvernment, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the US and what powers it may exervise therein over the person or property of a citizen of the US while it remains a territory and until it shall be admitted as one of the states of the union

** opinion that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the US is not warranted by the Constitution, and is therefore void, and that neither Scott or his family were made free by being carried into this territory even if they had been carried there by the owner with the intention of becoming a permanent resident

Curtis dissents: that under the Constitution of the US every free person born on the soil of a state, who is a citizen of the state by force of its constitution or laws is also a citizen of the us
- dissents then that a person of African descent cannot be a citizen of the US
1988
- Ethics in Government Act of 1978 authorized a Special Division of the US Court of Appeals for the District of Columbia to apopint an independent counsel to investigate and if necessary, prosecute high-ranking gov officials for violating federal criminal law
- Olson was the Assistant Attorney General and he was accused of giving false and misleading testimony to a House subcommittee investigating the activities of the Environmental Protection Agency
- Alexia Morrison was the appointee .. she asked for a subpoena for the production of certain documents and Olson wanted to quash the subpoena on the grounds that the act's indep. counsel violated the Constit.
- District court upheld the act but the court of appeals reversed holding that the act violated the Constitution's appointments clause

* interferes with the president's authority under Article 2 in violation of the constitutional principle of separation of powers

* appointments clause of Article 2: the president shall nominate and by and with the advice/consent of the senate shall appoint ambassadors and other public ministers/judges of the SC and all other officers of the US whose appointments are not herein otherwise provided for, but the Congress may by law vest the appointment of such inferior officers as they think proper

* line between inferior and and principal officers is one that is far from clear and the framers provided little guidance into where it should be drawn

- they viewed it as an inferior office because
* subject to removal by a higher Executive Branch official
* empowered by the act to perform only certain, limited duties
* limited in jurisdiction

SCALIA dissents: this is about power and its allocation among Congress/President/Courts to preserve equilibrium
justiciability
* in the District Court the president's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute

* since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, it is contended that a President's decision is final in determining what evidence is to be used in a given criminal case

* vested in the Attorney General the power to conduct the criminal litigation of the US government ... also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties

* claim of privilege: confidential conversations between a President and his close advisors... would it be inconsistent with the public interest to produce them ... welll with the holding of Marbury v. Madison it is emphatically the province and duty of the judicial department to say what the law i

* is privilege resting on the grounds of separation of powers?
- argued that the independence of the Exec. Branch within its own sphere insulates a president form a judicial subpoena in an ongoing criminal prosecution and thereby protects confidential presidential communicatin. However neither the doctrine of sep. of powers nor the need for confidentiality can sustain an absolute, unqualified presidential privilege of immunity from judicial process

* allowance of privilege to withold evidence would cut deeply into the gaurantee of due process of law

Conclusion: subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice
1997
- alleging that while he was governor of Arkansas Clinton made sexual advances toward Jones and that her rejection of them led to punishment by her supervisors in the state job she held
- Clinton wanted presidential immunity and requested that pleadings/motions be deferred until the immunity issue was resolved
- court explained that the President like other officials is subject to the same laws that apply to all citizens, that no case had been found in which an official was granted immunity from suit for his unofficial acts and that the rationale for official immunity is inapposite where only personal & private conduct by a president is at issue

* Justice Stevens said...
- a private citizen was seeking damages
- in all but the most exceptional cases the Const. affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office (cannot be sustained on the basis of precedent)
- immunities are grounded in the nature of the function performed not the identity of the actor who performed it
- Clinton doesn't argue that he is above the law but that given the nature of the office the doctrine of separation of powers places limits on the authority of the Federal judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed

CONCLUSION: they rejected the argument that the potential burden would violate separation of powers, said it was an abuse of discretion for the District Court to defer the trial under after Clinton leaves office
- later impeached for perjury
federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and towards the national government.

Federalism was a political system arising out of discontent with the Articles of Confederation which gave little practical authority to the federal government. For example, the Articles allowed the Continental Congress the power to sign treaties or declare war, but it was essentially powerless to do so because all major decisions required a unanimous vote

The most forceful defense of the new Constitution was The Federalist Papers, a compilation of 85 anonymous essays published in New York City to convince the people of the state to vote for ratification. These articles, written by Alexander Hamilton and James Madison, with some contributed by John Jay, examined the benefits of the new, proposed Constitution, and analyzed the political theory and function behind the various articles of the Constitution.

Those opposed to the new Constitution became known as the "Anti-Federalists". They generally were local rather than cosmopolitan in perspective, oriented to plantations and farms rather than commerce or finance, and wanted strong state governments and a weak national government. The Anti-Federalist critique soon centered on the absence of a Bill of Rights, which Federalists promised to provide.

Another movement calling itself "New Federalism" appeared in the late 20th century and early 21st century . New Federalism, which is characterized by a gradual return of power to the states, was initiated by President Ronald Reagan
Plato tells us in the Republic that democracies will always succumb to tyranny. The Framers of our Constitution certainly troubled themselves to prevent that from happening here, but the anti-Federalist who wrote under the name Brutus did not believe they had gone far enough — especially when it came to the Supreme Court. Though Alexander Hamilton described the Court as the "least dangerous branch," Brutus thought that the Court would eventually expand its own power and, in the process, enable the national government to expand its power at the expense of the states.

ring the past half-century, the Court and the country seem to have embraced the idea of judicial supremacy — the doctrine that the Court is the exclusive, ultimate authority on all constitutional issues. But the Constitution is very clear on the judicial role, and it does not authorize judicial supremacy. Judicial supremacy is an unwarranted extension of the power of judicial review — a power that allows the Court to disregard or invalidate laws in a limited range of cases.


Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws, and treaties of the United States. This means that the decisions of federal courts are binding on the parties to the lawsuits. What it does not mean is that the decisions of these courts become laws in their own right or policies in the legislative sense.

When concurrent powers conflict, Article VI of the Constitution grants supremacy to the federal government. State judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts. This is where the power of judicial review originates

Rather, constitutional judicial review is merely the power to disregard, or refuse to apply, a law that the court believes to be unconstitutional (not "pursuant" to the Constitution) when deciding a particular case
It established the U.S. federal judiciary.[3][4][5][6] Article III, Section 1 of the Constitution prescribed that the "judicial power of the United States, shall be vested in one supreme Court," and such inferior courts as Congress saw fit to establish. It made no provision, though, for the composition or procedures of any of the courts, leaving this to Congress to decide

The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. The Supreme Court was given exclusive original jurisdiction over all civil actions between states, or between a state and the United States, as well as over all suits and proceedings brought against ambassadors and other diplomatic personnel; and original, but not exclusive, jurisdiction over all other cases in which a state was a party and any cases brought by an ambassador. The Court was given appellate jurisdiction over decisions of the federal circuit courts as well as decisions by state courts holding invalid any statute or treaty of the United States;

the Act created the Office of Attorney General, whose primary responsibility was to represent the United States before the Supreme court.

A clause granting the Supreme Court the power to issue writs of mandamus outside its original jurisdiction was declared unconstitutional by Marbury v. Madison (1803). The Supreme Court held that Section 13 of the Judiciary Act was unconstitutional because it purported to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. In Marbury, the Supreme Court ruled that Congress cannot pass laws that are contrary to the Constitution

Thus, the Judiciary Act of 1789 was the first act of Congress to be partially invalidated by the Supreme Court
Like all of the Federalist Papers, it was published under the pseudonym Publius.

It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States

In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life.

Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." There was little concern that the judiciary would be able to overpower the political branches; congress controls the money flow and the President controls the military.

The judiciary depends on the political branches to uphold its judgments.

The fundamental debate that Hamilton and his Anti-Federalist rival "Brutus" addressed was over the degree of independence to be granted to federal judges, and the level of accountability to be imposed upon them.

he primary point of contention between Hamilton and Brutus was in the well-founded concern that judges would substitute their will for the plain text of the Constitution,

Federalist No. 78 describes the process of judicial review, in which the federal courts review statutes to determine whether they are consistent with the Constitution and its statutes. Federalist No. 78 indicates that under the Constitution, the legislature is not the judge of the constitutionality of its own actions. Rather, it is the responsibility of the federal courts to protect the people by restraining the legislature from acting inconsistently with the Constitution
;