Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

60 Cards in this Set

  • Front
  • Back
Article 3
Created & defined the powers of the federal judiciary
Art 3 Sec 2
The judicial power of the US shall be vested in one Sct & in such inferior cts as the congress may from time to time ordain & establish
Art 3 Sec 2
SCt has OJ over all cases affecting ambassadors, other public ministers & counsuls & those in whihc a St shall be a party. Authority to hear all cases in which the US is a party. Authority to hear cases b/w a st & a foreign state. Has AJ in all other cases
Marbury v. Madison
Est Judicial Review
The Judicial Act of 1789 Sec 13 does confer OJ to Sct to hear mandamus but by doing so the statute is unconstitional
Why is section 13 of JA Unconst
Congress cannot give the judiciary more power than the Const grants. By deciding this way Marshall temporarily limited The Scts power but in the end creates JR b/c 1st time they have held a statute unconst
Facts Marbury
During interim b/w election & Jefferson coming into power the Adams created a bunch of judgeships stacked w/Federalsits, Jefferson was an Anti-Federalist. Created numerous justice of the peace
F Marbury con
Marshall then secretary of st signed the appts dispatched them but not all the apts were delivered b/4 Jeff was sworn in inc Marbury
Suit Mar v Mad
Marbury suing Madison new Sec of st under Jefferson to obtain writ to make him deliver the commission
Remedy sought
Mar asking the ct to deliver writ of mandamus. Mandamus: ct order req gov official to do what they're supposed to do.
JA Sec 13
Cojngress passed 13 of 1789 JA which purported to give Sct OJ over writ of mandamus
Mar Decision
Marshall sd Sec 13 unconst b/c it was not enumerated in the const
Entitled to commission? Y
Everything was done that had to be done. Signed, sealed just needed to be delivered
Q 2 Does Marbury have a remedy
Does Marbury have a remedy? Yes
Where the executive had a legal duty to act or refrain from acting & DN abide by that legal duty the fed judiciary can provide a remedy inc a writ of amndamus
Q 3 Does the Sct have authority to issue the writ?
No Mandamus is the proper remedy but it can't issue from Sct
Why can't Sct give writ
13 confers OJ over a class of cases outside of the orig list in Art III. the Statute is effectively taking something that was originally supposed to be AJ & shifting it to OJ. Ct says Congress can't do that
Division of OJ & AP
Ct says cases delineated as OJ & AJ in Art 3 Sec 2 represent mutually exclusive categories. Congress can't shift
Why can't Congress shift AJ into OJ
A/T mandamus is on the list (AJ) Mar & Congress want it shifted over. Mar/C Exceptions clause "with such exceptions as Congress may from time to time est" Allows.
Why Doesn't the exceptions clause allow transfer
Shifting is unconst b/c it cannot be presumed that any clause in the const is intended to be wo/effect & t/f such a cosntruction is inadmissible... If allowed shifts to occur the original deliniation wb meaningless. Want to honor the Const as fundamental laws. T/F the only meaning which gives effect to all clauses is determination that categories are mutually exclusive
Arguments for JR
1. Fed govt is a govt of lmtd powers
2. Judiciary's duty to decide b/w 2 conflicting laws. Incidental of byproduct of normal case deciding function
Is Sct claiming to have special authority to interpret
No. JR power stems from the cts duty to resolve conflicts. Those who apply the rule to particular cases must of necessity expound & interpret that rule. If 2 laws conflict w/ea other the cts must decide on the operation of ea. Ct must decide which of the conflicting rules governs the case. This is the very essence of the judicial duty
Separation of powers
It WB giving to the leg's a practical & real omnipotence (if they could determine own powers). It is prescribing limits, & declaring that those limits may be passed by pleasure.
Framer's Intent
Framers contemplated certain clauses & rules tb appied by the cts when writing them. No person shall be convicted of treason unless on the testimony of 2 witnesses to the same overt act, or on confession in open ct. Here la of the C is addressed esp to the cts. Rx crim penalties for the cts to enforce. It is apparent that the framers of the C contemplated that inst as a rule for the govt of cts as well as elg
Judges are req'd to give an oath promising to uphold the const. Why would this be the case if they weren't to upohld the const
The oath of office is also imposed on the leg & the pres. T/F presumably the congress thought the law they were passing was const
Supremacy of the Const
The C is either a superior, paramount law, unchangeable by ordinary means or it is on a level w/ordinary lega cts & like other acts is alterable when the leg shall please to alter it
Sct's JR Power
1. Fed gov't is a gov't of enumerated powers
2. C limits fed govt powers
Who decides what is const?
1. Exec branch could decide whether or not to enforce the law. Might veto
2. Congress could decide. They take an oath so if they pass a law it must be const
3. This argument mushes together 2 arguments what is the role of the ct in interperting the C 2) What is the status of the C
Marshall misdirects our atten: Does the ct have the authority to render acts of Congress unconst
1. No the congress itself can
2. The pres may veto
3. The people Brown, seg
4. Ct says they have authority to decide what Congress's limits are
Suppose Congress acts in flagrant violation of Const what is the ct to do
When Marshall poses this way any R. person would say ct should have the power of JR to protect us. HW not likely situation b/c dealing w/C there are many interpretations which can be given. Alt interpreation of C & JR
Is the duty of the fed ct to say what the law is, to interpret & apply the rule
Incidental byproduct of case dealing function. JR power is no different: statute v constitutional the ct decides which rule governs the case
Hamilton Art No 78 Federalist
Essay written @ const debate. Hamilton argues that limits set forth in const wb ineffective absent judicial power to enforce the C. J. is the lesat dangerous branch to political rights est in C. JR Ct is performing special function to ensure the behavior of the other br of Fed gov confrom to the limitations of powers in the C
Sct Autohrity to Rev St Ct Judgments
Martin v HUnter's Lessee: Sct can rev st ct decisions
F: 2 conflicting claism to Va land. Martin claimed as devisee to Lord Fairfax, a Br citizen who owend prop. Hunter claimed that VA had taken the land b/4 treaties came into effect & t/f Martin DNH a valid claim to the prop
Procedure Martin v Hunter's Lessee
1. Va Ct App ruled for HUnter & sd Va was superior to treaties
2. Sct rev'd treaties sb honored.
3. Va Sct says USSct had no J no power to do what they've done
Va's Stance on Sct's decision to overturn Va's interpretation of fed law
1. Va & US both soverign separate spheres.
2. Va/c they are bound by fed law & that when there is a conflict fed law supersedes. No dispute that fed law is supreme. HW arguing that when sts cts resolve fed issues the st sct will be final
Final decision M v H
1. Sct round 2 whether 25 of JA 1789 is C 25 provides JR of final decisions of the highest st ct rejecting claims based on fed law inc fed const claims
Sd Sct can rev st ct decisions. Story sd art 3 left disc to Congress w/respect to the allocation of J to fed cts. It is the case not the ct that gives J
Why is 25 const
You lk @ the way ARt 3 defines J it defines the type of hte case not who decided the case.
Plain meaning of 25
1. Plain meaning preferred in const construction
2. If la is clear & palin we're going to support the text unless there's some important reason to do otherwise
Va slippery slope argument
Its always a doubtful course to argue against the use or exsistence of a power from the possiblity of abuse
Role of st cts
1. St cts behave parochially. St cts look out for the residents of their own st.
2. B/C we expect them to behave parochially to protect their citizens no act outside the bounds fed govt steps in to referee
Reason fed gov't can rev final st ct decision
1. Story needs to be uniformity in the application & interpretation of fed law
2. Counter arg: Often times we want contrary results, we want sts to appluy the law to diverse situations; social policy. Areas of st laws are a reflectoin of that. Ex. law of easements differ based on st property concerns.
Alt ratoinale for 25 interp
1. Many members of Congress hwo voted for 25 were also drafters of the Const who better to understand what the const says than the drafters. Understanding at time const was drafted that sct would have app j over st cts
White Martin v Hunter
Process of interpretation cnb understood as mechanical it req the interpreter tb discrete in judgment? Why Lk to nature of natural law: its ambiguous & la req judgment. Isn't law which is based upon treating txt authoritatively foolish b/c there is no single meaning & the inherent uncertainty of law
Hart: M v H
Uncertainty is essential to const interpreation b/c there is no single meaning & the inherent uncertaintly of law. Essential to interpreters of legal rules b/c it enales jduges to recognize the full range of meanings & to avoid those interpretations that are most onorous
Ex Parte Mccardle F
Editor brought habeus proceeding. Gives ct hte power to grant HC to anyone restrained in violation of the const & also authorized appeals to the sct. Lower ct denied app to Sct
Judicial Act of 1867
Authorizes lower fed cts to hear habeas petitions. Authorizes Sct to hear appeals from lower fed ct decisions.
Aftermath Ex Parte Mccardle
After Sct granted habeus review & heard arguments, Congress passed leg which took away the ability to appeal ahbeaus petition to the Sct
New Ex Parte McCardle Issue: What is the extent or scope of power under Art 3 to make exceptions to Scts AJ?
The excweptions power is power Cong has by leg to withdraw from Sct's AJ to hear certain cases. Cong could go so far as to totally eliminate AJ but WN b/c bad politics.
Extent of exceptions power
Remove not move: The exceptions power is not an ability to move from AJ to OJ
Use of Exceptions power
1. SB used in a careful bal
2. Unlmtd exceptions power serves to give Cong counter-chehck over decisions of Sct.
3. Where ct strays too far from popular will Congress can step in & strip power
4. Under this view failure of Cong's power might serve as Congressional acquiescene of this case
Essential function tehory
1. Congress may not use exception power to destroy the essential role of Sct in C by effectively leg it out of the picture
2. Essential function of Sct. Cong can't use exceptions power to destroy the essential function/authority of the sct
3. Core function to keep Cong wi/the C limits
4. If Congress can insulate certain laws from AJ by Sct then Congress can write the Sct out of the const plan
Critique of Essential functions theory
1. Inconsistent w/Marbury's rationale of JR as incidental
2. Basis for JR is not that ct has essential check-bal role to play. Rather JR power is the incidental byproduct of normal case deciding function
3. JR power DN define any role. DN tell us some essentail role function
4. Marbury just represents what the ct has the power to do
Defense to Critique
1. Underlying arg for JR under Marbury is more ambiguous than this.
2. Portions of the opinoin talk @ restrianing political branches in restraining power
3. Ct has special role to play as a disinterested party in appllying restraints
Independent Const Barriers Tehory
1. While ARt3Sec 2 says nothing @ limits of Cong poewr, but particular exercise of exceptions power has to be read in context w/entire doc
2. Limitations in other parts of C. Ex Congress under exercise of exceptions power CN pass law that says that only reg REpub could appeal b/c it would violate EPC
Practical Limitations on Cong Exceptions Power
1. Cong often responds to controversial decisions to Sct.
2. Important that they DN undue the decisions of the ct otherwise the effect will be to freeze the law.
3. Withdrawing J serves to preserve J that results in preserving the unhappiness
4. Eventually the ct will alter its view in response to understanding cases that come b/4 the ct that challenge J
5. Weak decisions will be subj to tests. Only the fittest decisions will survive
Not allowing Ct to hear cases will weaken centeral gov's authority over the st
1. Contradicting interpreations of fed law. Could undermine efficacy of fed law
2. Cong is a fed DM. As such we assume they reflect some tilt in favor of centralized power
3. Smart leg DN want to weaken fed gov so much that the power is reduced
Power of teh charimen: whether leg gets through depends on the leadership in the house & senate
1. Ldrship tends to be people wh been around a while
2. Often means that these people have a LT viwe of the institutional relationship b/w branches of fed gov
3. Reluctant to make significant adj in relationship b/w fed branches for short term reasons
McCulloch v Maryland
F: Congress created a bank. Baltimore branch. MD leg passed law saying that lal bankds ahd to apy a tax or else they can only print their currency on stamped paper. Bank refused to pay St of MD brought usit (McCulloch cashier fo the Baltimore Branch)
Issues in McCulloch
1. Does Congress have the power to incorporate a bank
1. Yes hardly an open question
2. Marshall makes a historical argument. Cong has thought @ it b/4 & done it b/4 2nd bank of the US.
3. Ct makes historical reference to the inc of Bank 1 & its necessity.
4. Analytical significance is that const interpreation is grounded in pragmatism
Where does Congress get hte power to inc bank
1. All power must come from C. Fundamental con law principal Fed govt is govt of enumerated (or delegated power)
2. Fed gov can only exercise those powers granted to it in the C. By contrast st gov power is not enumerated, their power is limitless. It inc general police power
Where again?
1. Nowehre in the C does it explicitly grant Cong the power to inc a bank
2. So somehow we go from fed govt is govt of enumerated powers Congress DNH power to create a bank, Congress inc a bnak
Congress also has implied powers
1. This is a neg inference: nothing in the C expressly limits Cong's powers
2. Based on a historical understanding. The Art of Confed contained a provision that expressly lmtd Congress only powers that were expressly granted to it. The limitation caused probs in teh central gov b/c it was w/o powers nec to deal w/serious ntl prob. B/C of prob the art were anabonded & the C was adopted
3. It WB anomalous to interpret the C as the same as the ARt if we abandoned the Art & adopted the C