Constitutional Law - Final

Abbi Van Hook
Flashcards by Abbi Van Hook, updated more than 1 year ago
Abbi Van Hook
Created by Abbi Van Hook over 5 years ago


Flashcards on Constitutional Law - Final , created by Abbi Van Hook on 02/01/2016.

Resource summary

Question Answer
What are the four key dates in the forming of the Constitution and what the dates represent? 1616: Colonial charter governments and the rise of assemblies. 1776: Independence and the Article of Confederation. 1787: USC was drafted 1789: USC was sufficiently ratified and the President/Congress was elected.
What was wrong with the English rule and the Colonial charter Governments? The governor and the courts were both selected by the crown. Only the assemblies represented the people and they had very little power.
What was the structure and therefore problems with the AoC? There was a Congress, but not Executive, Judiciary, power to tax, power to regulate commerce or to amend. This resulted in trade wars between states. There was also no military.
At the Philadelphia Convention, who were the two groups? Federalists: In favor of strong central government. Anti-Federalists: The USC will lead to tyranny.
What was the main key feature of the Constitution? The Separation of Powers. They were separate and balanced.
Comparatively, what is the difference between the Parliament system and the US system of government? (In terms of democracy) In Europe, Parli = People. In US, Constitution = People. Government is simply People's agent.
What is the highest law? The constitution. It represents when people had the time to convene and decide what they wanted. It is a super majoritarian process.
What is the difference between judicial review and judicial power? Judicial review is the court interpreting the Const. Judicial power is the courts ability to say what law is.
What does Article III establish? §1: Establishes SCOTUS and judiciary. SCOTUS's power to limit jdx of lower courts. §2. Cl. 1: Cases SCOTUS can hear. §2. Cl. 1: Original jdx in specific Cl. 1 cases. Appellate jdx in all other cases.
What cases does SCOTUS have original jdx? Article III §2 Cl.2: Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.
In what cases does SCOTUS have appellate jurisdiction? Article III §2 Cl.2: Diversity and Federal question.
How do you determine Congress' exceptions under the Exceptions Clause ? Congress can't expand SCOTUS's original jdx, but they define what appellate means. The court will look to the book of GRANTS. If it is not granted, then the court assumes Congress has made an exception.
What interpretive tactic did J. Marshall use in Marbury v. Madison? This was the first instance of judicial review: "the expression of one thing means the exclusion of another thing."
In Hunter's Lessee, what was the textual argument of the Court's decision? The court said they were obviously meant to have appellate jurisdiction over state matter because Art. 1 §10 talks about lower courts and the lower federal courts were not created yet.
What are the policy reasons for SCOTUS being able to hear state court federal question cases on appeal? 1. Uniformity of Federal Law 2. Avoids states fighting because of biased interests.
True of False: 28 USC §1257 grants SCOTUS the power to hear state court cases on appeal. True. This started out as the Judiciary Act of 1789 § 25 and is now found under 28 USC §1257.
What is the four step analysis for whether SCOTUS has jdx? 1. Is there original jdx under Art. III, §2 2. Is there appellate jdx? (Art. III, §2) 3. Has Congress made an exclusionary exception? (Think of 28 USC §1257) 4. Is the state law standing INDEPENDENT and ADEQUATE? (Yes: no jdx. No: jdx. Maybe: send it back down.)
True or False: State governments are not a government of enumerated power. They don't have to justify their power. True. States don't need texts for actions. They are presumed to have power to do what is good ("good" is determined by the majority). Unlike the federal government.
True of False: States can give its people more rights, but never less rights. False: Don't presume that just because people are getting more rights that it is independent and adequate state grounds.
How do you determine if the state grounds are independent and adequate? Independent: State law would lead to same results. Adequate: Not in conflict with any federal rule. When something isn't adequate, it becomes a federal question.
What are the judiciary limits? - Congressional oversight - Justiciability
Under Art. III, what does "cases and controversies" mean? This is a term of art. It means you have a live, legal dispute, capable of judicial resolution. The person must have something at stake.
True or False: SCOTUS can only resolve cases, not give legal advice. True: If SCOTUS were allowed to give advice, it wouldn't be politically indifferent court. This is why id doesn't deal with independent and adequate state ground cases--it would be an advisory opinion.
What are the four doctrines of justiciability? 1. Standing 2. Mootness 3. Rightness 4. Political question
What case illustrates the court using a standing doctrine? Warth v. Seldin
What are the four criteria for standing? 1. Injury in fact: actual or threatened 2. Causation: "but for" and redressibility 3. Bar against third party claims 4. Generalized grievances: Cannot effect everyone the same. Must be particular to you.
Under standing, what are the requirements that depend on who is bringing the claim? 1. Individual persons 2. Associations a) own injury or b) members, but each person: will have standing, relief germane to organization, and no need for individual participation.
What is the exception for the bar against third party claims? A person can bring a third party claim if they are being forced to violate the third parties right.
True or False: There is no tax payer standing because of generalized grievances. BOTH: There is an exception. The establishment clause (Flast v. Cohen). You can go to the court with tax payer standing but ONLY if your challenge in loves government violating the establishment clauses of the Cont. (1st Amend.)
What makes a case moot? An event occurs subsequent to the filing of the case that would render a decision w/o effect.
What is the exception to mootness? The injury is capable of repetition, yet evades review. Someone is likely to face the same injury again.
What is the policy reason for courts to not take moot cases even if there is an interest in the nation? The courts do not want to come to the wrong decision. If someone doesn't have something at risk, then they might not take
What are two ways you can keep your case from mooting out? 1. Claim for damages, not just injunctive relief. 2. Class action, it doesn't matter if the named plaintiff gets mooted out.
Where is the main list of congressional power found? Article 1 Section 8.
What does Article 1 Sections 9 and 10 cover? Sec 9: Things Congress can't do Sec 10: Things states can't do
What is the main take away from McCulloch? The Necessary and Proper Clause: Art 1. Sec. 8 Last Clause. The federal government can use IMPLIED POWERS. Every grant of power necessarily holds the means to carry it out. Even if it's not express. "Let the end be legitimate, let it by within the scope of the Const."
What was a reason Marshall gave for interpreting necessary to mean convenient in the McCulloch (regarding the Necessary and Proper Clause)? "It is a constitution we are expounding..." We cannot have a restrictive definition of power because you would have to amend the const. all the time. Plus, to determine what is truly "necessary" would entrench upon the political realm.
What test did McColluch bring for testing federal power? Powers are express and implied. Implied power when things are necessary and proper. Necessary and proper meaning: 1) helpful and appropriate but 2) not anything under pretext.
What is the one concession Marshall makes in McCulloch? Pretext Paragraph: Congress cant' do something under the pretext of justice. He doesn't say what counts as a "pretext".
What is the Interstate Commerce Clause? Art. I Sec. 8: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." *most important clause in the Const.
How does Marshall define the Interstate Commerce Clause in Gibbons? Commerce = intercourse = movement = navigation. Interstate = It is something that is more that one state.
True of False: Once the power has been established, States can't interfere with an exercise of Federal power. True. (Gibbons) Any law to the contrary must fall.
True or False: Regarding intrastate commerce, there is no direct power but power from a direct impact according to Gibbons. True. State commerce cannot interfere with federal intrastate commerce. When it does, there is power for Congress.
What did states do to limit Congress' power after Gibbons? Said that Congress couldn't touch agriculture, manufacturing, and mining. However, this goes away during the Great Depression.
Show full summary Hide full summary


How Parliament Makes Laws
Contract Law
A-Level Law: Theft
AQA AS LAW, Unit 1, Section A, Parliamentary Law Making 1/3
A2 Law: Cases - Defence of Insanity
Jessica 'JessieB
Law Commission 1965
ria rachel
A2 Law: Special Study - Robbery
Jessica 'JessieB
The Criminal Courts
AS Law Jury Case Quiz
Fionnghuala Malone
Criminal Law