American Constitutionalism in Historical Perspective (packet)

Congressional Consent: Congress can consent to the action even if the court strikes it down, since court defers to congress on economic matters. Drive is fair rep-ct will strike down discrimination. But if congress is fairly represented, then can strike down ct

1. 
   Correcting statutory interpretation: congress can always override court’s statutory interpretation as long as no constitutional issue is involved.
   
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   Constitutional common law: state legislatures addressing issues in mode of statutory interpretation. Congress can address constitutional common law interpretation if disagree. Gets the issue out of Marbury, which is at the constitutional core. Ex: UCC replaces common law of contracts
   
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   Core constitutional issues: Would not have congressional consent option in Marbury core (individual rights), where we would be more worried about congress invalidating judicial interpretation.
   
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   Metropolitan Life Ins. V. Ward, 1985: AL law that levied more taxes on out of state insurance companies. Insurance was an area previously left to state regulation. Court strikes this down under equal protection. When Congress is validating something that is discriminatory the court will strike it down under something other than the CC so that Congress can’t override.
   

7. Separation of Powers

1. 
   Founders’ Intent: concerned about natn’l power so divided it among 3 branches. Strict sep of personnel, c/n sit in more than one branch. C/n have impartial adjudication of human rts when the same branch of govt creates & enforces the law, this results in tyranny (Locke). Concerned about faction & fair rep. (Madison).
   
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      Art. I: Congress, forbid bills of attainder, legislature forbidden from exercising judicial power.
      
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      Art. II: President, the only natl official with a natl constituency. Need individual to personify the presidency, particularly in regard to foreign affairs.
      
   3. 
      Art. III: Judiciary, power of judicial review not expressly granted.
      
   4. 
      Vertical: federal/state division (federalism) and division w/in federal govt (separation of powers)
      
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