marbury v madison.ppt - wordpress.comjudicial review is essentially an inventedpower of the supreme...
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judicial review is essentially an invented power of the Supreme Court…it’s not in the text of the ConstitutionAFTER Marbury v Madison it sets the base for the Supreme Court to exercise power in the separated powers system
the Supreme Court can strike down legislation passed by Congress, actions taken by the President, and legislation passed by the states
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No justice of the Supreme Court has ever questioned the power of judicial review…even though it’s just an IMPLIED power
This is a HUGE HUGE HUGE power…can strike down actions of the President and laws created by Congress
This power was created POLITICALLY through a decision of the Supreme Court
The TEXT of the Constitution has to be interpreted (power is in the interpretation)…
EXAMPLE:
Middle Ages…most folks are peasants and can’t read…worried about their eternal life (because this one sucks) so they have to make sure they abide by the Bible…only the priests could read and it was up to their interpretation of the Bible…power was with the priests
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“We the people” in 1787 Philadelphia was?white, male, property owners‐ people who count
TODAY “we the people” means something different because THE PEOPLE WHO COUNT changes
‐during the Jacksonian era, it means universal manhood suffrage(blacks & women couldn’t vote)
‐after 15th Amendmentall males could vote
‐after 19th Amendmentwomen could vote
‐after 26th Amendment18 and over could vote
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Govt has become more “democratic” through17th Amendment which established that senators are elected by CITIZENS in
each state rather than by state legislatures
Justices have changed…
(see McCulloch v Maryland)
Times have changed, problems have changed, govt reponses & policy have changed
Framers never conceived of things like Obamacare, the Internet, or aviation law
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So the Court’s job is to say what the law IS…but there’s no single accepted method of determining what the law MEANS
Here are the current controversies and they’re POLITICAL
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championed by Scalia‐ Textualism The Constitution means exactly what it says and nothing more
not a fan of the idea of a “living Constitution” (meaning the Constitution evolves over time)
EXAMPLE14TH Amendment‐1868 “no state shall deny to any person the equal
protection of the laws”why did this amendment get added?
to protect newly freed slaves from states where they have been recently been freed from making laws discriminating against them
What were the people who wrote it thinking about? – slavesScalia would argue that over time it’s included women BUT the amendment doesn’t protect women from discrimination by sex so laws discriminating against them would be Constitutionally permissable…WHY? because that’s not what it was intended to do
Scalia says judges are there to apply the law…if they make a decision not based on the original intent of the people who wrote the Constitution, then they’re MAKING law and they’re not allowed to do that
Scalia would say that discrimination based on sex is OK because that’s not what the people who wrote the 14th amendment were thinking about
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justices in the 1970s began to reject the textualism argument (at least in terms of gender discrimination) because it says “it shall not deny to any PERSON…” meaning although it was created in context of recently freed slaves, it says any PERSON so it should apply to women or any other arbitrary designation as well…SCALIA WOULD SAY THIS ISN’T CORRECT BECAUSE IT IS A JUDGE’s job to read and apply law based on the understanding of those who wrote it and if they don’t, then they’re LEGISLATING (imposing their values on the people) and that leads to judicial tyranny
Scalia said in a talk in Utah in July, 2013 that one of the things that was a hallmark of Naziism was judges expanding the power of the state under the rubric or illusion of “interpretation”
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