30 November 2015
Introduction
to US Law
Marla Weston
Registered Foreign Attorney
at Law (US)
Map Graphic: By User:Hoshie (File:US insular areas.png)
[CC BY-SA 3.0 (http://creativecommons.org/licenses/bysa/3.0)], via Wikimedia Commons
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Today’s Agenda
›  Housekeeping
›  Wrap
up first part of course
›  US Constitution
›  US
Government structure
›  Federalism
›  Judicial
Review: Marbury
›  Structure of the court system
›  Assignment for next time
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Housekeeping
›  Case
assignments: a decision to make
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Wrap up: US sources of law
and their interactions
›  What
we learned/practiced:
Sources of law in the US
›  Interplay of the various sources of law
›  The three Branches of the US government and
their powers with respect to making, interpreting
and enforcing law.
›  How courts analyze precedent and interpret
statutes.
›  How to read a case and determine what is and
is not important. How to identify the various
parts of a judicial opinion.
› 
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US Constitution
›  1776:
Declaration of Independence (from
Great Britain)
›  1781:
First constitution, The Articles of
Confederation, adopted.
›  1787
– 1789: Current constitution was drafted
and debated by the Framers and ratified by
the States. The new government commenced
March 4, 1789.
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US Constitution
Sections of the Constitution
›  Preamble
›  Articles
I - VII: Establishing the structure of the
federal government and its relationship with
the States
›  “Checks
and balances”
›  Amendments
I - XXVII
›  Bill
of Rights (1791): The first 10 Amendments…
›  The other 17 Amendments
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“Preamble” to the Constitution
WE THE PEOPLE of the United States, in Order to form a
more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general
Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this CONSTITUTION for
the United States of America.
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Formation of the Government/
Separation of Powers
Article I:
› 
› 
› 
› 
› 
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Vice President (Executive Branch) is tie-breaker
Impeachment (of federal officials): Only the House can impeach; only the Senate
can try impeachments
“Speech and Debate” clause: Members shall not be questioned in any other place
Any revenue bills must be raised by the House
President has veto power over bills, orders and resolutions; it can only be overcome
by 2/3 majority of the House and Senate
Powers of Congress:
› 
› 
› 
› 
Legislative Powers vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives… (thus, the Congress is
bicameral)
Tax, Defense, pay Debts, regulate foreign and interstate commerce, immigration and
bankruptcy law, post offices and post roads, patent & trademark, establish courts
inferior to the Supreme Court, …
“To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government
of the United States…”
Restrictions on the States: No treaties or alliances, no printing money, no going to
war…
Oath of Office appears in Article VI.
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Formation of the Government/
Separation of Powers
Article II: Executive power vested in President…
› 
Oath of Office: ,,,I will faithfully execute the Office of
President …and…preserve, protect and defend the
Constitution of the United States.”
› 
Powers of the President:
› 
› 
› 
› 
› 
› 
Commander of the Armed Forces
Make Treaties with foreign powers (with advice and
consent of the Senate)
Appoint ambassadors and justices of the Supreme Court
Recommend measures to Congress, convene Congress
“Take care that the Laws be faithfully executed”
…
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Formation of the Government/
Separation of Powers
Article III: Judicial power of the United States is vested in “one Supreme Court and in
such inferior courts as Congress may from time to time ordain and establish…”
› 
Lifetime appointment: Judges hold office “during good behavior”
› 
Federal jurisdiction: “All cases…arising under this Constitution, the Laws of the
United States, and Treaties made…under their Authority…to Controversies
between two or more States…
› 
“Original” and “appellate” jurisdiction
› 
› 
› 
Original: Cases affecting ambassadors…and those in which a State is a Party.
Appellate: “all the other Cases before mentioned…with such Exceptions, and
under such Regulations as the Congress shall make.”
As for Congress, there is no oath in the Constitution for the federal judiciary,
except the Article VI oath for all Branches “to support the Constitution”
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Relationship between the US
Government and the States
“Horizontal Federalism”
Article IV:
› 
› 
States
States
Full faith and credit between and among the States
Citizens of each State entitled to the Privileges and Immunities
of citizens of the various States
“Vertical Federalism”
Article VI: Supremacy Clause
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made…under the
Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution of Laws of any State to the Contrary
notwithstanding.”
US Gov
States
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Judicial Review
›  The
federal government is one of
enumerated powers.
›  The Supreme Court’s power of judicial
review (e.g., to overturn laws) is not
explicit in the Constitution, which simply
refers to the “judicial power” and
“supporting the Constitution”.
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Marbury v. Madison (1803)
› 
Declares the Judiciary’s power to limit both other Branches
› 
Declares a US statute unconstitutional (for the first time)
Ø 
› 
Gives the President the result he wants, but defines the power to review acts of
the Executive
Ø 
› 
Ø 
Ø 
› 
But in such a way that the Court seems restrained in its own power, i.e., it does not have the
power to give the order of mandamus sought. Therefore Marbury loses and does not get
the commission.
Political/discretionary acts cannot be reviewed, others can. Therefore, Madison acted
unconstitutionally.
Defines the Judicial Power
“It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each.”(at *177)
“…a law repugnant to the constitution is void; and…courts, as well as
other departments, are bound by that instrument.” (at *180)
Establishes the Constitution as law “superior to any act…of the
Legislature”
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Current structure of the judicial
system in the US
Limited Jurisdiction
Federal questions only
Federal Judiciary
State Judiciary
US Supreme
Court
State
Supreme
Court
Courts of
Appeals
Appellate
Courts
District
Courts
Trial Courts
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Assignment
Griswold v. Connecticut, 381U.S. 479 (1965).
Highlighted portions only; pdf available for download on
the course web site.
Or
Abernathy, pages 412-417.
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