Con-Law In-Class Exam Directions: This is a take-home exam. Do NOT work in groups. You must complete the answers on your own. Do NOT consult outside material. Answer the questions only with course material. Judicial Review What have you learned in this class that supports the argument that the Court has judicial review? That is, what is there in this course that would leave one to believe that the Court in American government can rightfully declare acts of Congress and/or the states to be unconstitutional? After providing this account, list the arguments people have made to oppose judicial review and critique them for soundness. Include the arguments against Marshall’s decision in Marbury v. Madison. When answering this essay, be sure to include all course material that is relevant to the subject. An inventory of such a thing would surely include: 1. The Enlightenment’s sense of “truth being external,” and of inalienable rights 2. The Lockean idea of the sovereign being subject to law 3. The Glorious Revolution’s idea of the rule of law and of English liberty 4. Bonham’s Case 5. The structure of government in the colonies (how institutions worked and were conceived) 6. The role of the General Court in colonial government 7. Otis and the Writs of Assistance cases 8. The rejection of the Virginia Plan 9. Hamilton’s writings in federalist papers 10. constitutional versus parliamentary systems 11. What England believed the ultimate sovereign to be, and what was considered “constitutional” in the English system – and how this differs from a constitutional system 12. the very idea of promulgating a written constitution versus that of simple natural law; and how it became law through a process different than enacting statutes; 13. the three-branch creature, and how it differs from what history had heretofore done with the institution of courts 14. The vesting clause in Article 3 (the clause about judicial power), and the idea of separation of powers that the three articles of the constitution appear to encapsulate 15. Calder v. Bull, and Hylton v. United States 16. whether the framers at the convention approved of the idea of judicial review 17. whether the states approved of the idea of judicial review in their own state constitutions 18. Marshall’s syllogistic argument and its basic point 19. the role that social learning plays when something new is invented and how this manifested itself (i.e., Judge Gibson’s dissent in the PA case, and other things mentioned in class about cultural confusion) Once again, be sure to list the arguments against judicial review and critique them for soundness.
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