1.

Key Questions:
a. What probems did the gramers suggest would theaten stability/longevity of
the Govt?
b. How Does Govt address problems of federalism, eperation of powers, checks
and balances?
c. Significance of federalist papers
2. History
a. First came the articles of confederation.
b. Than came Constitution
i. Congress only has powers granted to it. Can only act pursuant to
anaffirmative grant of authority
ii. 10th amendment: states have all the power not granted to congress
iii. Federal Govent protecting vulnerable man against state power
3. Federalist papers: propogananda supported ratification of the constution
a. No 10: Madision: Wants a Large Republic
i. Have to fear factions. Eed to worry about the tyanny of the majority
faction
ii. Problem with the big federal govenetmnet:
1. Too remote from the people
2. Corruptive
3. Elitism
iii. Problem with pure democracy: When voting majority always wins
b. No. 51: Want balance of control but not completely separate
4. Articles I-III: First class overview
a. Article I, Sec. 8: Power to regulate commerce
b. Art. I, Sec 9: Power establish Federal Courts, Declare war.
c. Not a lot of specificity in what executive branch could do.
i. Bush Era example: President has inherent powers
5. Exercise: Mr. Jawad
a. Constitutional Avoidance: If you can avoid constitutional question by
statute you want to
b. AUMF: Ways to interpret:
i. Specific grant of authority vs. Broad interpretation
ii. Interpret it literally (literal translation) vs. Trusting the executive
branch to do what is necessary and not abuse their power (common
sense interpretation)
6. Article 2, Sec. 1 & 2:
a. President has inherent powers by virtue of being the executive
b. 2 competeing authorities on executive power
i. Art 1: Here in Granted for congress which means President has broad
authority
1. No comparable clause in article 2
c. It doesnt say they can divest (deprive of power) it says they can establish
i. If congress is suspending Habeus Corpus.
1. But can sa this particular provisision applies to invasion of
rebellion

d. Countermajoritarinism: Judges not elected by the people so how can they

2nd guess executive and legislative who are lected by the people
i. Seperation of powers is about protection individual liberty
7. How do ppl analyze sistuations that are not explicity satesd in the constitution
a. Framers intent
i. Con: But the constitution is archaic
ii. Pro: Grounds the analysis
b. Living or Static Fixed?
i. Living Constitution: Framers could not have anticipated all the
situatios we face nowadays
1. Can always amend it
2. Lays process to amend it
8. Marbury v. Madison: Basis for Judicial Review of legislative and executive action
a. 1789 judicial act gives supreme court Original Jurisdiction over the case
b. Additionally, statute itself constitutional? No ????
c. Where in Constitution it say SC has this authority? Doesnt explicitly state it
anywhere
d. But why is the Constitution the SUPREME law of the land?
e. Why is the Constitution supreme over Federal Statutes?
i. Marshall:
1. Consitution was supposed to be limits on congressional activity,
Congress cant limit the constitution.
2. Consitituion made first: In pursuance of Its a check on
congressional authority.
f. Key Points:
i. Constitution really is binding
ii. Congress cant enlarge the original jurisdiction of the SC
iii. SC can review the executive and legislative action
9. Martin v. Lesee
a. Martin sued in State Ct.
i. Federal Cts. Court of limited jurisdiction
b. Martin Wins, Loses in SC
c. Viginia State Ct declines and says SC ruling is unconstitutional
i. Asserting principle of Federalism
d. 1789 Judicial Act says it had decisions over highest state ct that bear on
federal questions
e. If we dont allow SC to be final arbiter than have state cts making final
interprtations and laws will work differently in every state
f. Also if federal questions can originate in state system the logic is SC must
have final say.
10.
Exceptions and Regulations Clause: SC has appellate jurisdiction boith
as to Law and Fact with such exceptions and under such regulations as the
congress shall make
a. Should congress be able to limit jurisdictional power?
i. The claim is that the unambiguous language of Art III authorizes
congress to create exceptions to the Supreme Cts jurisdicition

including the ability ot preclude review of particular topics (like

abortion)
1. A check on judiciary power
ii.