CONSTITUTIONAL INTERPRETATION

CONSTITUTIONAL INTERPRETATION

Marbury v. Madison : it creates the concept of judicial review. constitutional supremacy.

McCulloch v. Maryland: Marshall, for the court, finds that the state taxing of the federal bank is unconstitutional

FEDERALISM

James Madison: republican form of government, with checks and balances, will be most

effective.

McCulloch v. Maryland: question of whether or not a national bank was a constitutional exercise of federal power.

THE COMMERCE CLAUSE AND REGULATION OF COMMERCE

1- Interpretation from 1824-1936 provided the basis for a broad interpretation of the commerce clause powers, though decisions were mixed.

-Navigation is commerce

-Processes necessary for interstate commerce can be regulated: US as one economic unit

-Intrastate commerce can be regulated when it affects interstate commerce

-Federal Government has Police Power

-But, there is a direct/indirect distinction: for determining whether or not something affects commerce.

2- Decline of Limits on the Commerce Clause 1937-1995

-Demise of the Direct/Indirect Distinction

3- New Limits on Commerce power since 1995

SEPARATION OF POWERS

SYSTEM OF FREE EXPRESSION

Freedom of speech, press, religion, assembly, petition

RELIGIOUS AUTONOMY

Dominant view today: separation of church and state

Free exercise Clause:

people are free to choose and practice their own religion, the one that they want.

-Laws that purposely discriminate against religion violate free expression clause:

Animals can’t be sacrificed in a religious group, some people elected had to profess belief in God and it was judged unconstitutional

-Neutral laws

A woman jewish because of her religion, couldn’t work Saturdays Court agreed with her because the law was against her religion

Establishment clause: means that government can’t establish, promote only one religion;

Government can pass laws impacting religion but not discriminate it. For example, polygamy is prohibited and it target Mormons. Also child working is prohibited Jeova’s is a religion which go door to door to explain their history, children can’t do that

There are 3 levels of importance (scrutiny)

-strict scrutiny: a fondamental right is endangered, threaten by a law

-rational scrutiny:

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