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CALPOLY / Political Science / POLS 341 / What is habeas corpus?

What is habeas corpus?

What is habeas corpus?

Description

School: California Polytechnic State University - San Luis Obispo
Department: Political Science
Course: American Constitutional Law
Professor: Professor denbow
Term: Spring 2016
Tags: constitutional law, final exam, Study Guide, and american
Cost: 50
Name: Final Exam Study Guide POLS 341
Description: This study guide includes terms to know, concepts to now, and a detailed explanation and takeaway of each case or reading that we have read. The essays are also included at the end. This chart style really helped me get an A on the first midterm so I hope it helps you too! I promise it is only super long because of the table format. :)
Uploaded: 03/10/2016
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Final Exam Study Guide: Con Law  


What is habeas corpus?



Professor Denbow

Vocabulary / Terms to know:

Classical Liberalism Rationality Review Judicial Activism Republicanism Footnote 4 (Carolene Products) Judicial Restraint  13th Amendment Living Constitution Freedom of Contract Liberalism 14th Amendment Warren Court The Great Depression  State Action Doctrine Fugitive Slave Clause Substantial Effects Test  Civil Rights Act of 1875 Civil Rights Act of 1964 Warren Court (and critiques) Enumerated powers Concurrent powers Writ of Mandamus Judicial Review Habeas Corpus Interstate Commerce  Police Powers Sherman Anti-Trust Act Desegregation  Federal Fugitive Slave Act Revenue Clause Gun Free School Zone Act  Federalism Lochner Era  

Court-Packing Plan The New Deal  

Legislative Deference Warren Court

NIRA Interstate Commerce Clause  

National Labor Relations Board Violence Against Women Act  

The New Democrats Concurrence


James Madison focuses on the inevitability of factions.



Dissention Narrow interpretation vs. broad  If you want to learn more check out soci 2010

Reconstruction Era Original Jurisdiction  

Appellate Jurisdiction Majority Opinion  

What cases deal with which constitutional issues? (match from list of readings from class)  

1. Powers of the national government  

2. Separation of powers

3. Judicial power

4. Federalism  

5. Civil rights

Case / Reading

Background / Happenings  

/Court Decision

Significance / Constitutional / Relevance  /Takeaway

The Declaration of  

Independence 1776

∙ Declares independence  for the colonies from  

the British Crown  

∙ Life, liberty, and the  

pursuit of happiness  

(later amended to  

“property”)

∙ Government should  

protect these rights  

∙ Government is  

illegitimate if it does not  


What is civil rights act of 1964?



have the consent of the  

people

∙ Gave rise to the Articles of  

Confederation

∙ Fear of strong central  

government, attempting to limit  

national power

∙ Gives rise to a debate between  classical liberalism and  

republicanism

The Constitution 1776

∙ General welfare and  

liberty are most  

important  

∙ North wanted stronger  central gov to regulate  

interstate commerce

∙ South wanted strong  Don't forget about the age old question of 5) What is angle rotation?

central gov to protect  

“property” right (slaves)

∙ Lays out powers of  

national and state  

governments

∙ Struggle between national and  state governments (federalism)

∙ Division between the North and  South

∙ Separation of powers between 3  branches  

∙ Emphasis on slavery and property  rights

∙ Property ownership very  

important

Losurdo 2011

∙ Talks about the  

relationship between  

slavery and liberty  

arguments in regards to  

liberalism  

∙ Cannot call for one  

while simultaneously  

calling for the other  

∙ A despotic government  is the best at abolishing  

slavery rather than a  

“free government”  

(direct democracy)

∙ Draws on ideas from  

Locke, Calhoun, Smith

∙ Points out a clear tension b/w  how the framers of the  

Constitution and Liberalists view  

personal liberty and their  

justification of slavery

∙ Shows the importance of slavery  disputes in creating the  

constitution (3/5 clause, fugitive  

slave)

∙ Points out contradiction within  liberalism  

∙ Shows constitutional justification  of slavery

Federalist #10- James Madison  1787

∙ Focuses on the  Don't forget about the age old question of dr lasalvia

inevitability of factions  

∙ We must control the  

effects bc we cannot  

control the causes

∙ Pushed for the ratification of the  constitution and a representative  government (strong central)

∙ Relationship between national  government and individual rights

∙ Democracies are not  

very good at this  

∙ Republic are the best  

governments to control  

factions with a  

representative  

government  

∙ Land ownership and  If you want to learn more check out math 126 unlv

property rights of those  

who govern emphasized

Marbury vs. Madison 1803

∙ Marbury wanted a writ  of mandamus to force  

commission to be  

delivered

∙ Dispute over if the court  had the power to issue  

the writ or if Marbury’s  

rights had even been  

violated

∙ Marshall delivers  

unbiased and in-depth  

decision  

∙ Marbury has the right  to a remedy, but the  

Court has no authority  

to offer one  

∙ Judiciary Act of 1789  

giving Congress the  We also discuss several other topics like geography of pakistan notes

right to issue writ was  

passed through  

ordinary legislation and  

not through the  

Amendment process  

making It  

unconstitutional

∙ Established judicial review and  power

∙ Gave credibility to the Court  

system  

∙ Established Constitutional  

Precedence  

∙ Unbiased opinion gives even more  credibility  

∙ What the Supreme Court says  goes

Gibbons vs. Ogden 1824

∙ Gibbons owns federal  license to operate ferry,  

Ogden wants a  If you want to learn more check out chris pope uga

monopoly on this and  

seeks and acquires one  

from NY  

∙ Court rules that NY law  is in violation of the  

interstate commerce  

clause

∙ Congress has the right to regulate  interstate commerce- huge  

establishment  

∙ This is an EXCLUSIVE power of  congress  

∙ Dispute between national and  state powers

∙ Overturns NY law and federal  license for Ogden (national  

supremacy)

∙ ICC includes navigation

∙ Marshal shows judicial restraint

∙ Broad construction of ICC

Worcester vs. Georgia 1832

∙ Worcester convicted for  being on native  

American lands without  

permit in GA

∙ GA law states that they  must, this violates  

federal treaties with  

Native Americans  

∙ Court overturns GA law  and Worcester’s  

conviction but he is not  

released by orders from  

Jackson

∙ Congress has the power to create  treaties with tribes, GA had no  

constitutional authority to uphold  the permit law  

∙ States cannot pass legislation that  effect sovereign nations (Native  

Americans)

∙ Struggle between national and  state powers, issue of federalism  

∙ Holding unenforced by the  

executive, ignored (separation of  powers)

Prigg vs. Pennsylvania 1842

∙ Prigg; slave catcher  

capturing an escaped  

slave and her family  

from free territory  

∙ Arrested for this by PA  for violating their  

personal liberty laws

∙ Court rules that the  

Fugitive Slave clause  

allows for the recapture  

of escaped slaves and  

that personal liberty  

laws are not  

constitutional

∙ Issues of federalism

∙ National supremacy  

∙ Established more slaveholding  security for the South

Dred Scott vs. Sanford 1857

∙ Scott and family taken  to free territory for  

many years- master  

dies; are they free?

∙ Court says no, salve  

holders have individual  

“right” to property and  

Congress can’t make  

these changes in new  

territories  

∙ Congress does have the  power to impart  

“needful rules and  

regulations” in new  

territories, but the  

Court dismisses the  

abolishing of slavery as  

not needful; says this  

text is “narrow”

∙ Slaves established as property  more firmly  

∙ Territory governance- national  powers

∙ Slaves are not citizens and  

therefore cannot litigate (civil  

rights)

∙ Judicial activism is shown in this  decision; I a political decision  

∙ Strengthened security of slavery  ∙ Established that congress had  limited power in the newly  

acquired territories

∙ This provision must be  applied ONLY to  

territories they had in  

1776 at the time of its  

drafting

Lincoln’s 4th of July Address  1861

∙ Justifies his launching of  the Civil War while  

Congress was out of  

session and his  

suspension of habeas

corpus

∙ Although declaring war  is an exclusive power of  

congress, Lincoln says  

that the South presents  

a threat to the general  

public and therefore he  

has a constitutional  

duty to act and stop  

that threat

∙ Separation of powers – executive  and legislative  

∙ Individual rights / liberties  

∙ President has the duty to protect  and preserve the constitution and  the people

Ex Parte Merryman 1861

∙ Merryman arrested  

under the suspension of  

habeas

∙ Does the President have  the authority to do this?

∙ Court (NOT a Supreme  Court decision) says no,  

he does not  

∙ Asserts that the framers  were afraid of a  

powerful executive

∙ Separation of powers  

∙ Individual rights  

∙ Powers of the national  

government  

∙ Civil war as historical context  

Bates Opinion 1861

∙ Further justifies  

Lincoln’s actions  

∙ Refers to inaugural oath  of vowing to preserve  

the constitution and  

protect the people  

∙ Lincoln was within his  rights to take these  

measures

∙ Separation of powers  

∙ Draws attention to a too powerful  executive or legislative

Slaughter- House Case 1873

∙ After Reconstruction  

Amendments  

∙ Butcher’s unregulated  and dumping waste; LA  

places regulations

∙ National vs state government  power  

∙ Police powers  

∙ 13th and 24th amendments  

address only issues of race and  

nothing else

∙ Broad vs. narrow construction

∙ Is this within their rights  regarding police  

powers? Court says yes  

∙ Creates a monopoly

∙ Swain’s dissent says the 14th 

amendment applies to much  

broader circumstances (equal  

rights and protections)  

∙ This ruling STILL stands

Civil Rights Cases 1883

∙ Series of cases  

questioning the  

constitutionality of  

certain acts of Congress

∙ Civil Rights Act of 1875  prohibits discrimination  

in public  

accommodations  

∙ Court says that they  

can’t do this under the  

State Action Doctrine  

and that this falls under  

police powers  

∙ Congress cannot restrict  private actions, only  

state

∙ Limits national power  

∙ Issues of race with 13th and 14th amendments

∙ 13th abolishes slavery, but  

majority says that discrimination

does not fall under this (narrow  

view)  

∙ 14th privileges and immunities is a  state power (State Action Doc)

∙ Harlan’s dissent: says that there is  no distinction between slavery  

and discrimination in the 14th

U.S vs. EC Knight 1895

∙ Trust agreements b/w  companies create  

monopolies  

∙ EC Knight has huge  

sugar monopoly that  

Congress wants to make  

void  

∙ Sherman Anti-Trust act  allows Congress to  

prohibit them  

∙ Court rules they can’t  

do this bc ICC does not  

include manufacturing  

∙ Police powers control  

manufacturing

∙ Very narrow construction of ICC ∙ Interstate commerce  

∙ Court says Congress is infringing  on private company’s rights to  

monopolize

∙ Issues between national and  

state powers (federalism)

∙ Manufacturing not included in ICC ∙ Harlan’s dissent: Court is worried  about destroying police powers  

but they are destroying  

commerce powers in the process

Insular Cases 1901

∙ Deals with territories of  Puerto Rico, Cuba, and  

Guam

∙ Does the U.S. have the  power to levy export  

taxes on them?

∙ Court says yes, that the  revenue clause does not  

apply to them bc they  

are not citizens of the  

U.S.

∙ Territory incorporation  

∙ Established and further defines  U.S. citizenship  

∙ Strict view of the equal rights and  protections  

∙ 14th amendment doesn’t  

specifically address “territories”  

∙ Decision uses the 13th 

amendment and previous  

congressional acts to decide  

(uncommon) to assert that

∙ While they are not  

citizens they still have  

some constitutional  

protections, but not all

“Congress won’t abuse their  

power bc they have Anglo-Saxon  

values”

∙ Says that if Congress does not  intend on making acquired  

territories states, they can levy  

taxes and not give full citizenship

The Commonwealth Club  

Address- FDR 1934

∙ Everyone has the right  to his own property and  

therefore the security  

of his savings  

∙ NIRA: government  

mandate initiative that  

asserts that the  

President can industries  

have the right to  

regulate themselves

∙ Wages, hours, and  

employees are under  

this  

∙ Part of the New Deal in  an attempt to raise  

prices and combat  

deflation  

∙ This clearly violates the  understanding of the  

Const.

∙ Powers of national government  ∙ Established a new meaning of  property rights  

∙ Infringing on privatization  

∙ Providing a more robust role for  government in the economy  

∙ New Deal is important context

Schechter Poultry 1935

∙ Poultry company that  

imports chicken from  

out of state to sell in

state

∙ Federal government  

wants to regulate this  

under NIRA  

∙ NIRA Poultry Codes: 40  hour minimum work  

week, min wage, strict  

health and safety codes  

∙ Schechter sells sick  

chickens and refuses to  

impose regulations  

∙ Congress claims they  

have the power to  

regulate under ICC as  

Schechter is importing  

the chickens

∙ Established direct and indirect  effects, changes interpretation of  the ICC

∙ Federalism  

∙ Limits congressional power in  regards to ICC

∙ Court refuses to look at  

economical context of Great  

Depression

∙ Court says no they  

don’t, processing of  

chickens does not count  

as ICC and that the  

selling of sick chickens  

does not have a DIRECT  

effect on ICC  

∙ This is a state police  

power; if we give  

congress the power to  

regulate indirect  

effects, what can’t they  

do?

Court-Packing Plan – FDR

∙ Court has been striking  down numerous New  

Deal legislations, FDR  

comes up with plan  

∙ Proposes legislation  

that would enable him  

to add a justice to the  

court for every one over  

70 years old; up to 6  

justices

∙ This would be a 15  

justice court  

∙ Thinks the Court should  defer to the legislature  

more often and not  

“prevent democracy”

∙ Separation of powers

∙ FDR wanted younger justices that  weren’t “outdated” on current  

issues during the New Deal Era  

∙ Introduces the idea of legislative  deference  

∙ Never is passed

NRLB vs. Jones and Laughlin  Steel 1937

∙ Steel company fires  

employees for joining a  

labor union  

∙ NRLA says they cannot  do this and they must  

rehire, steel company  

says no  

∙ Congress says they have  the power of regulation  

under ICC

∙ Court says that yes, this  act is constitutional

∙ Seemingly changes its  mind from Schechter,  

but the Court focuses  

more on the individual  

rights of the employees

∙ Draws a brighter line between  direct and indirect effects on ICC

∙ Power of national government  ∙ Federalism  

∙ Expands Congressional power  under ICC

∙ Rule that the national  scope of this company  

effects interstate  

commerce directly and  

that labor strife falls  

under ICC

U.S. vs. Carolene Products 1938  Footnote 4

∙ Filled Milk Act prohibits  the shipment of filled  

milk across state lines  

∙ Is this act constitutional  under ICC?

∙ Rational basis test /  

rationality review is  

used to determine if  

there is legitimate  

government interest  

here  

∙ Court says that this is  

not a decision for the  

judiciary to make and  

defers to the legislative

∙ Footnote 4 states that  the court will rule with  

more scrutiny on cases  

regarding civil and  

minority rights, but will  

defer to the legislature  

during cases of  

economic, commercial  

interests

∙ Established rationality review  ∙ Separation of powers

∙ Sets precedence for legislative  deference

∙ Established a role for the judiciary  as limited

The Southern Manifesto 1956

∙ After the Brown v.  

Board opinion  

mandating integration  

of schools  

∙ Southern states accuse  the Supreme Court of  

judicial activism  

∙ Calling for resistance of  integration  

∙ Say the states have the  rights to educate their  

children how they want  

under police powers

∙ Say the Const and the  14th do not mention  

education

∙ Struggle between state and  

federal- federalism  

∙ Civil rights and discrimination  ∙ Narrow interpretation of the 14th amendment  

∙ Divides the South and North on  the issue of race  

∙ Attempts to lower the credibility  of the Court

∙ Plessy v Ferguson used  as precedent –

“separate but equal”

Eisenhower Address to the  Nation

∙ Affirms judicial review  an supremacy  

∙ If states can always take  it upon themselves to  

challenge the courts, all  

of our rights are in  

danger

∙ We must recognize  

court authority to  

protect them  

∙ He is not defending Civil  Rights

∙ Attempts to establish role of the  court  

∙ Powers of federal government ∙ Federalism

Cooper vs. Aaron 1968

∙ In the wake of Brown v  Board decision  

∙ Arkansas government  refused to adhere to  

desegregation in  

schools and passed laws  

to allow children to not  

attend school  

∙ Arkansas School Board  petitioned to send black  

children back to black  

schools and defer the  

desegregation plan for  

two years due to the  

chaos and violence it  

was causing  

∙ Court says no, it is  

unconstitutional to  

disobey a supreme  

court decision,  

supremacy clause  

∙ It is also  

unconstitutional to  

uphold this law under  

the 14A and the equal

protection clause

∙ Established a precedence of  

supremacy  

∙ The judiciary has the authority to  interpret the Constitution, not the  states  

∙ Therefore nullification by the  

states of UCSC decisions is not  

allowed under the Const  

∙ Binds states to adhere to USCS  decisions  

∙ Marbury is used as a precedent  ∙ Civil rights  

∙ Powers of the national  

government

∙ Federalism

Heart of Atlanta Motel vs.  United States 1964

∙ Civil Rights Act of 1964  prohibits discrimination  

in public  

accommodations

∙ Establishes the “substantial  

effect” principle (if something has  a substantial effect on ICC or not)

∙ Rationality review and deference  used as this deals with commerce

including motels and  

hotels (Title II)

∙ Motel refuses to rent  

rooms to blacks and  

says that the CRA is  

unconstitutional bc it is  

restricting private  

actions  

∙ Court says that  

Congress does not have  

the authority to  

implement integration  

in public  

accommodation BUT  

they can pass title II  

under ICC

∙ People who stay in  

motels are usually from  

out of state, which is  

navigation, which is IDD

∙ Court distinguishes Title  II under from Civil  

Rights Cases of 1883,  

meaning they aren’t  

controlling here  

∙ Court limits the scope  of its reasoning by not  

going any further than  

addressing ICC

∙ Rationality review

∙ Expands congressional power  under the ICC  

∙ Powers of the national  

government

∙ Sets a precedent for Congress  using the ICC to accomplish goals  

that are not economic

Reagan First Inaugural 1983

∙ Government too big

∙ Government is the  

problem  

∙ Gov’t did not create  

states, states created  

gov’t  

∙ Wants to shrink the  

federal gov and says  

this is the only way to  

turn the economy  

around  

∙ Complete opposite of  

FDR

∙ Powers of the national  

government  

∙ Asserts that the government  

should not play a robust role in  

the economy  

∙ Government undermines states  and individual according to  

Reagan

Meese 1987  

The Law of the Constitution

∙ Constitutional law vs.  

Constitution  

∙ Law binds the parties to  dispute

∙ Asserts a lesser role for the  

judiciary  

∙ Separation of powers- limits  

judiciary

∙ All branches of  

government play a role  

in interpreting the  

constitution  

∙ UCSC decisions should  not be the supreme law

∙ Powers of the national  

government

Rehnquist 1976

Notion of a Living Constitution

∙ There is no obvious way  of interpreting the  

Const. bc some of the  

language is general and  

vague  

∙ We cannot be confined  to the situations that  

were present at the  

time of the founding  

∙ The judiciary shouldn’t  second guess other  

branches; judges should  

be dethatched and  

subjective

∙ Judicial restraint on  

social and political  

issues – defer to other  

branches  

∙ Critique of more  

expansive living  

Constitution that states  

that the Court can  

interpret expansively

∙ Limits judiciary

∙ Separation of powers  

∙ Principle of deference  

∙ Narrow construction of the  

constitution

Brennan 1985  

The Constitution of the United  States

∙ Framers intent as  

interpretation strategy  

is inadequate  

∙ Changing society calls  for changing  

interpretations  

∙ Believes that a  

minimalist view takes  

away minority rights,  

which the government  

has a duty to protect  

∙ Classical liberalism  

∙ The government needs  to protect minorities  

(prisoners) from politic  

and infringement of  

rights

∙ Broad construction  

∙ Expansion of judicial power as  protective of minority rights  

∙ Powers of the national  

government

Clinton 1996

Fourth Annual Message

∙ Part of the New  

Democrats  

∙ Says “Era of big  

government is over”

∙ There is not a program  to fix every problem, big  

government does not  

have the answers  

∙ Opposite of FDR but  

similar to Reagan

∙ Clinton focuses on a  

regulation of existing  

government rather than  

its expansion

∙ Limitation of national government  and power  

∙ Focus on social welfare

U.S. vs. Lopez

∙ Lopez brings gun to high  school, arrested under  

Guns Free School Zones  

Act  

∙ Appellate and Supreme  overturn the conviction  

∙ Congress says that GFZA  is constitutional under  

ICC bc bringing a  

weapon to school that  

could potential cause a  

violent crime affects  

schooling, and  

therefore affects  

students abilities to  

learn, affecting future  

vocations, affecting ICC.

∙ Court says this is  

ridiculous and could be  

applied to almost  

anything if allowed;  

what couldn’t Congress  

regulate?

∙ Gibbons vs. Ogden used  to show that there are  

clear limits on what is  

ICC and what is not;  

there must be room for  

intrastate actions too

∙ GFSA has nothing to do  with commerce

∙ Congressional power under ICC  restricted  

∙ Precedence of Gibbons used not  for its decision but for the  

implications of limitations on its  

decision in regards to ICC

∙ Powers of the national  

government  

∙ Substantial affects test used

U.S vs. Morrison 2000

∙ Girl at VA Tech raped by  two male students, VT  

and Virginia court  

doesn’t do much to  

punish them  

∙ Violence Against  

Women Act is passed by  

Congress, 13981 states  

that survivors of gender  

motivated violence can  

seek punitive and  

compensatory damages  

through a civil suit  

∙ Does congress have the  authority to pass this  

part of VAWA under ICC  

or the Section 5, 14th A?

∙ Section 5 allows  

congress to use  

appropriate legislation  

to enforce the 14th 

∙ No for both, Court says  that gender motivated  

violence does not have  

a substantial effect on  

ICC and has nothing to  

do with it  

∙ Court says no under  

Section 5 bc this is a  

slippery slope, that  

there is no distinction  

between federal and  

state powers if it is  

passed  

∙ Uses Civil Rights Cases  and State Action  

Doctrine- Congress can  

only prohibit state  

actions; this is aimed at  

individual perpetrators  

therefore is  

unconstitutional  

∙ Dissentions assert that  this should be subject  

to a rationality review  

and that ICC

∙ Congressional power vs judicial separation of powers

∙ State and national power

federalism  

∙ Limits congressional power under  the 14th and ICC

∙ Substantial effect principle used  again  

∙ Referral to the State Action  

Doctrine, giving more power to  

the states in this case  

∙ ONLY striking down 13981 of  

VAWA, not the entire thing

jurisprudence is  

incoherent

Gonzales vs. Raich 2005

∙ Compassionate Use Act  is passed in 1996 to  

permit the use and  

cultivation of medicinal  

marijuana  

∙ 2 women growing  

marijuana in  

accordance with CA  

law, feds become  

involved and destroy  

their crop  

∙ Feds say it is a violation  of the Controlled  

Substance Act of 1970  

∙ Raich challenges the  

constitutionality of this  

∙ Does Congress have the  power to prohibit local  

cultivation and use of  

marijuana that is in  

accordance with CA  

law? YES

∙ In the aggregate,  

medicinal marijuana has  

a substantial effect on  

marijuana commerce as  

a whole  

∙ Congress has the power  to regulate purely local  

activities that are part  

of an economic class of  

activities that have a  

substantial effect on ICC  

∙ Rationality review  

shows clear economic  

activity (distinguishes  

this from Lopez and  

Morrison)

∙ Established a precedence of broad  interpretation of ICC in economic  

cases, but s strict one in moral  

cases  

∙ Expands congressional power  under ICC and limits states

federalism

∙ Powers of the national  

government  

∙ Substantial effect and deference  to the legislature in economic  

cases  

∙ Court continues to draw bright  lines in regards to direct, indirect,  and substantial effects on ICC

Torture Memos 2002

∙ Congress has the  

exclusive power to  

declare war

∙ Section 0340A of the  

Const prohibits public

∙ Relates to Meese’s idea of narrow  judicial authority  

∙ Greatly expands the executive  and limits the legislative –

separation of powers

officials from  

committing torture  

∙ President has exclusive  power of being  

Commander in Chief  

∙ To what extent can  

congress limit this  

power of the president?

∙ Torture memos were  

given by officials within  

the DOJ giving their  

opinion on whether or  

not they can torture  

detainees

∙ They interpret  

congressional statute  

prohibiting this so  

narrowly that it means  

nothing  

∙ Interpret commander in  chief privilege so  

broadly that Congress  

couldn’t possibly  

prohibit it

∙ Limits the role of legislative and  judicial branch in military affairs

Hamdi vs. Runsfield 2004

∙ U.S. Citizen captured in  Afghanistan  

∙ Determined as enemy  combatant an held on  

U.S. soil

∙ He requests writ of  

habeas corpus; gets it  

∙ Does congress have the  authority to detain  

people deemed as

enemies? YES

∙ But, if they are US  

citizens, thy have a right  

to due process and a  

chance to change their  

enemy status before an  

impartial authority  

∙ War is not a blank check  for the executive,  

cannot give them too  

much power or else  

liberty is at stake

∙ Powers of the national  

government  

∙ Separation of powers  

∙ Established principle for detaining  enemy combatants  

∙ Context of the Iraqi / Afghan war  ∙ Executive cannot be to powerful  ∙ Huge expansion of executive  

power in regards to military  

actions

Practice Essay Questions: refer to the table to find which cases you can use for each prompt!

1. Debates over slavery were key to the founding of the United States and to the development and  adoption of the US Constitution. Slavery and, after the Civil War, the status of former slaves continued to  play a key role in Constitutional debates and cases concerning the powers of the national government  and federalism from the founding to today. Write an essay that traces the history of Constitutional  debates and Supreme Court jurisprudence regarding the powers of the national government and  federalism as they were expressed in cases and issues concerning slavery and the status and rights of  former slaves.  

2. The powers of the national government have contracted and expanded at different points in  US history. Many of these shifts have been reflected in and brought about through the Court’s  interpretation of the Interstate Commerce Clause from the Early National Era to the present. Write an  essay that traces the history of Constitutional debates and Supreme Court jurisprudence regarding the  powers of the national government as they have been expressed in cases and issues concerning the  Interstate Commerce Clause. Be sure to provide adequate historical context for the debates and Court  decisions you discuss.

3. Constitutional conflicts over the separation of powers and judicial authority tend to flare up in times  of social and political conflict and upheaval. Write an essay that traces the history of Constitutional  debates and Supreme Court jurisprudence concerning the separation of powers and judicial authority from the Early National Era to today. Be sure to provide adequate historical context, especially regarding  social and political conflicts, for the debates and Court decisions you discuss.

4. The Court and political actors often express their views on how critically or skeptically the Court should  review acts of the legislature. Drawing on course concepts and examples from course material, including  politicians’ speeches, the writings of judges, and Court decisions, write an essay that examines the  differing views on when and whether the Court should defer to the legislature. Be sure to provide  adequate Constitutional and historical context for the debates and Court decisions you discuss.

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