Constitutional Law Class Notes 3/3/04


I lost all my notes halfway through class and I canít get them back.Whatever stupid thing I did, donít do it.


It was supposed to be:


More on Cheney




The political question doctrine


The entire universe of constitutional questions include those questions subject to the Marbury power and those that the Court doesnít control.The political question doctrine includes all those constitutional interpretation questions that the Court will refuse to answer because it doesnít think it can.Marbury and the political question doctrine are the opposite of each other.


The Tenth Amendment used to fall under the political question doctrine.Now itís back under Marbury.


Why isnít Padilla a case where the political question doctrine should apply?Foreign affairs is an area where the political question doctrine is frequently invoked.But this doctrine was never mentioned in Padilla!How come?


The Vietnam War was a key example where the courts said that the war was a political question.People wanted the courts to say that Vietnam was an illegal war.But the courts wouldnít touch it!Thatís not to say that sending troops to Vietnam wasnít a very important issue.So how important a question is cannot be determinative of whether itís a political question or not.


Is it a power issue?


In Padilla, the court was deciding both a power question and a rights question.Neither one was considered a political question that didnít belong to the court.


Foley thinks that questions will be decided if they involve the rights of individual people.The answer to certain power questions affects actual litigants and not just the relationship between different branches of government.The court will be more likely to think about a question as a political question when the only parties in the dispute are branches of government themselves.


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