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Constitutional Law

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Nominal Telos- gives certain rights but does follow through with the rights. Example is Cuban Constitution that gives rights such as healthcare and travel but does not carry them out. Tends to make a lot of promises but does not keep them. Façade Telos- similar to nominal by making promises in a way that seem more logical and achievable for that country but is still not carried out. Example is Iranian Constitution that gives rights for a free media but anything that is not Islamic can be regulated by the government.

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Garantiste Telos- lives up to its name, tends to limit the power of the government and the power of the people, and has balance and in most cases the power is in the people. Examples include the US and Canadian Constitutions. Codified and Un-Codified Constitutions- Codified- is written and contained in a single document. Example the US Constitution. Found in societies that want things to be specific and straightforward.

Typically is found in conjuncture with presidents and federal states.

Un-Codified- is written, contained, and based upon a series of separate documents developed over a matter of time. Example the Constitution of Great Britain. Made up by key legislation and problems and goes back well into history. Another example is the Magna Carta and Israeli Constitution which has a series of documents that change and develop over a series of years. Tend to be found in conjuncture with Monarchy and Unitarian types of governments. Entrenched and Not Entrenched Constitutions-

Entrenched- Constitutions that tend to be very difficult to change, modify, and amend. An example would be the US Constitution which has only amended 27 amendments out of over a thousand attempts. Can be found in societies that values stability. Not Entrenched- Constitutions that is easier to change. An example would be the Great Britain Constitution were the Parliament can simply vote and change it. This easy access to change tends to lead towards radical swings in the type of government that is used.

Judicial Review- The lack of clear mandate providing for judicial review- the right of the courts to invalidate the laws of the Constitution. It is an implied power that is not actually granted to the courts in the Constitution. In Federalist paper 78 Hamilton hints that the judicial review process can somewhat check the power of the legislative branch. If the courts do not have judiciary review they have no powers at all, it is simply the power of judgment. Judicial review was not granted to the court system until the 1803 case of Marbury v. Madison.

Weakness of Judicial branch- In Federalist Papers 78 Hamilton pronounces that judiciary branch will be the least dangerous to the political rights of the Constitution because the executive branch (the president) has the sword or the authority of power, the legislative branch (Senate and House of Representatives) has the purse or the authority to control money and the judiciary branch (Federal courts) only have the power of judgment and neither the power of force nor will. Selection for membership of the courts is determined by the President and the Senate.

Congress can limit the jurisdiction and structure of federal court system at will. Article 3 section 2 gives Congress this power except to the Supreme Court to make and remove any federal courts. An example of weakness of the courts is the Norris-La Guardia Act in 1932 that was about yellow dog contracts in federal courts which was a contract that promises that a person will not join a union or strike and if so they can be fired. The Congress made it illegal for the Court to review this so they had no power of judgment. This proves that there is not independent judiciary.

The Congress and States can also amend the Constitution while the courts cannot even vote. Another example is Texas v. Johnson (1989) in an issue about burning the US flag were the courts ruled it was illegal but under the 1st amendment it was a freedom of expression and the courts could do nothing about it. Congress also has the power of impeachment and removal of a court member. Clauses of the Constitution- Senate Rotation Clause- Found in Article 1 Section 3, says that 1/3 of the Senate is up for re-election every two years. Senators serve a six year term, and the Senate is organized into three classes.

Ineligibility Clause- Found in Article 1 Section 6, says that a person cannot be both an elected member of the House or Senate and also hold a position of a Judge of the Supreme Court or cabinet of the President. The Origination Clause (raising revenue)- Found in Article 1 Section 7, says that any kind of bill that raises revenue the bill must originate in the House of Representatives. The Presentment Clause- Found in Article 1 Section 7 says that the manner in which the Congress presents a bill unto the President, it is presented after the Congress has passed it.

The General Welfare Clause- Found in Article 1 Section 8, says that the military is provided welfare for the common defense. The Enclave Clause-Found in Article 1 Section 8, discusses setting up the District of Colombia. The Commerce Clause- Found in Article 1 Section 8 Clause 3, discusses the regulation of commerce with foreign nations, states, and Indian Tribes. This clause gives Indian tribes legal status in the Constitution. The Necessary and Proper Clause Found in Article 1 Section 8- implied powers state that Congress has all power to do things that are necessary an proper that ties to the Constitution.

The Suspension Clause- Found in Article 1 Section 9- discusses Habeas Corpus Rights that the right shall not be suspended unless when in Cases of Rebellion or Invasion the public safety may require The Contracts Clause- Found in Article 1 Section 10- says that states cannot pass laws impairing contracts, helps with property rights The Advice and Consent Clause- Found in Article 2 Section 2- discusses the President’s powers, given by the Senate the President has the authority to fill up vacancies Take Care Clause- Found in Article 2 Section 3- states the President shall take care that the law should faithfully be executed, Executive orders are included in this section Regulations and Exceptions Clause- Found in Article 3 Section 2- states that Congress has the authority to make rules regarding the jurisdictions of the federal courts, and can tell the courts what they need to hear, they can have an effect on the court, and the ability to abolish and establish their structure and how the appeals process works The Full Faith and Credit Clause- Found in Article 4 Section 1- require that every state gives full recognition to the public records and papers of other states. Privileges and Immunity Clause- Found in Article 4 Section 2- If you go to another state you are under their protections and privileges and are also held at the same standard Fugitive Slave Clause- Found in Article 4 Section 2- if you are a slave or indentured servant you cannot escape that situation by fleeing to another state.

Admissions Clause- Found in Article 4 Section 3- Admitting new states into the Union, no new state should be admitted in the jurisdiction of an existing state, and no state can be formed from several states without the consent of the state’s legislature and the Congress itself Territorial Clause- Found in Article 4 Section 3- Congress can make laws and rules regarding federal territories, Federal cannot make laws over states just territorial land such as Indian tribal land The Guarantee Clause- Found in Article 4 Section 4- guarantees to every state a Republic form of government in which representatives are elected, the form of that is choose by the state.

The Supremacy Clause- Found in Article 6- States the three supreme laws of the land; the Constitution, federal laws are the law of the land, and federal treaties signed by the federal government The Loyalty Clause- Found in Article 6- states that no religious test should be required to serve in the federal government The Establishment Clause- Found in Amendment 1- deals with the freedom of religion, Congress shall make no law regarding to religion or establish a religion Double Jeopardy Clause- Found in Amendment 5- No one should be tried for the same thing twice Self-Incrimination Clause- Found in Amendment 5- no one should have to witness against themselves Due Process Clause- Found in Amendment 5- states that no one shall be deprived of life, liberty, or property without due process of law Confrontation Clause-Found in Amendment 6- gives the right to be able to defend yourself in court with the help of your own witnesses used form cross-examination Speedy Trial Clause- Found in Amendment 6- gives the right to a speedy trial and public trial Right to Counsel Clause-Found in Amendment 6- gives the right to an attorney and the right to a legal counsel in a way to help defend yourself Trial by Jury Clause- Found in Amendment

7- gives the right to a trial by jury in serious cases Cruel and Unusual Punishment Clause- Found in Amendment 8- protects against the cruel and unusual punishment for crimes committed. The Amendments- Amendment 1- Five privileges, religion, press, speech, assemble, and petition on complaints of government Establishment clause- deals with the freedom of religion, Congress shall make no law regarding to religion or establish a religion Contains all of the major points that a Bill of Rights would have James Madison was not in favor for the Bill of Rights because he did not think it would be possible to create an exhausted list; instead he gave a short list and gave the rest for state governments to handle Amendment 2- A well regulated milititia

Federalist papers number 46 and 2nd Amendment- gives the people the power to hold their own with the state governments against the federal government. Ultimately gives power to the states. Ex. 44 state constitutions has articles that say right to bear arms for themselves and the states. The point is that gun ownership is completely valid in defense to the state. People have rights to own guns but states hold the power to regulate. Amendment 3-Quartering of soldiers in peoples homes. Keeping soldiers at your house. Has to have the consent of the Owner unless it prescribed by law. Only be in times during war. Amendment 4- Deals with search warrants.

Known as search and seizure clause. Protected against unreasonable search and seizure. Roe v. Wade 1973 right of privacy, there is no were that an absolute right to privacy exists. Amendment 5- The double jeopardy clause- no one should be tried for the same thing twice. Self incrimination clause- not be able to witness against yourself. Due process clause- states that no one shall be deprived of life, liberty, or property, without due process of law Amendment 6- Confrontation clause- right to be able to defend yourself in court with help of your own witnesses used from cross-examination. Speedy trial clause- right to a speedy trial and public trial.

Right to counsel clause- right to attorney and right to a legal counsel in a way to help defend yourself Amendment 7- Trial by jury clause- right to a trial by jury in serious cases Amendment 8- Cruel and unusual punishment clause, protects against it. Ex. in 2008 having to do with death penalty laws and that shots given to convicts will hurt. Court voted 8-1 that this was not conclusive Amendment 9- The rights of the Constitution that should be kept from people, and that certain rights that aren’t listed are still granted Amendment 10- Reserved powers- any power not granted by the federal government is given to the states to choose so. Ex. right to ride a bike- you can ride a bike but under the states and local laws. This amendment is extremely powerful.

State police power doctrine- states that state governments has the right to regulate the safety, the health, the morals, and the welfare of their citizens. Jacobson v. Mass. 1905- has to do with giving an immune shot, ruled states have power due to health. State determines who gets married. All regulations go back towards the states. Amendment 11- Deals with lawsuits in between individuals and state governments. Essentially makes it difficult for citizens of one state to sue governments of other states. Chisholm v. Georgia Amendment 12- modifies the original plan of the electoral college, does not significantly modify but moderates it. Passed in 1804 as result from 1800, it modified the manner in which ballots are cast in the Electoral College.

It allows the electors to elect a ticket which means two people, the president and vice president. The original plan was to cast two ballots the first winner was president and second became vice president. First happened in 1796 were two parties were part of president and vice president. In the election of 1800 the election went to the House and had to vote 36 consecutive times to elect a president. They originally did not envision separate parties so because of the amendment process they added it later. Separate tickets were then formed. More likely to have a defiant winner and helps make the balloting easier. Out of 18,473 votes casted over time in the Electoral College 8 was against the party.

It demonstrates how the founder’s amendment process was used right off of the bat. Reduces the number of the runoff in the house from 5 to 3. 13th Amendment- Abolishes slavery and indentured servants, except in punishment of crime, within the United States or any place subject to its jurisdiction. Major issue was freeing all slaves owned by Indian republics and gives them tribal citizenship. Ultimately ended slavery. First amendment to have this statement- Congress shall have power to enforce this article by appropriate legislation. Can be found in several later amendments, represents a fundamental shift in how Congress operates the constitution. Congress takes over authority of certain powers. 4th Amendment-

Exterminates the 3/5ths compromise and claims it is no longer useful. It provides equal protection. The equal protection clause requires that states give equal protection of the laws to all of the citizens of their states. Originally did not see the state government as being overpowering of the people. Due process clause- mostly in the 5th amendment restates that the state government has to give people the due process of law. Provides for a federal definition of citizenship, prior to this time the citizenship was dependent on the proof of being born in a state. Huge step in the evolution in the relationship between the state and federal governments.

In 1866 there was a census in the population of the south and there was 4 million black slaves which added up and meant 28 more congressional seats. 15th Amendment- practical effect was to give the right to black men to vote. First constitutional protection rights for voting rights was to go towards black men. 16th Amendment- passed in 1913 during the progressive era one of the most important amendments of the 20th century. Established the Federal Income Tax. Why did the American people give the consent to do this in the first place? 17th Amendment- changes and modifies the manner in which Senators are elected. Originally Senators are elected by state legislators. This amendment permits direct popular election of state Senators.

It gives the individuals interest in states the representation of their wants and ideas. Senate votes for judges. The Senate can no longer represent the state because the people have the power to vote for the Senate. 18th Amendment- Deals with prohibition. 19th Amendment- Deals with Woman’s Suffrage, the right to vote shall not be denied or abridged by the US or by any state on account of sex. Before this some states allowed women to vote. 20th amendment- Basically discussed terms of office for the President and Vice President. Sets the term of office of Presidents and Vice President and Congress. 21st amendment- Repeals 18th amendment on Prohibition.

2nd amendment- limits the President to two terms, it sets the maximum number of years that any individual can hold the Presidency, 10 years. 23rd amendment- deals with the District of Columbia receiving electoral votes. D. C. gets the same representation as the smallest state which is 3. Prior to this amendment anyone living in D. C. did not have the right to vote in a Presidential election. Argument came up that DC was being left out, and was being taxed without representation. Federalist paper 43 describes the indispensable necessity of complete authority at the seat of government carries its own evidence with it, if the capital in a state it will favor that state.

The founders point would be if you want representation don’t live in D. C. Democrats tend to lean towards the representation of DC because they could receive votes due to African Americans living in DC. 24th amendment- deals with poll taxes- fees certain people had to pay to vote. Used to discriminate against certain populations. Abolishes poll taxes essentially for federal offices. The local and state level poll taxes were made illegal by ruling of the Supreme Court. 25th amendment- deals with presidential removal from office. 1. This confirmed prior practice, said that if the president dies the vice president will take over. All powers granted to the VP. 2.

Created a mechanism to fill the office of VP, prior to this is the VP had to take over there was no way to fill up the empty place. Allows the new president to elect who is going to be VP and to be voted by both houses of Congress. 3. Permits the Cabinet to decide if the president has become incapacitated. The level of cabinet goes by creation. 26th amendment- Establishes the right of 18 year olds to vote. The issue came out of the Vietnam War if you are old enough to defend you are old enough to vote. Voting rights are still highly restricted by state governments on the exception of Age, Race, and Gender. There is no such thing as an absolute right to vote in the Constitution. Bush v.

Gore, the right to vote in any election falls back on to the states, no “federal right to vote” 27th amendment- deals with Congressional salaries, cannot have a pay raise without an intervening election, purpose is for the people to control the Congress and the pay. Establishment clause- deals with the freedom of religion, Congress shall make no law regarding to religion or establish a religion The Articles of the Constitution Article 1 contains the essential material for understanding Congress and its role in the federal gov. Congress is mentioned in other articles as well as the amendments in the US Constitution. However, article 1 provides the bulk of the power and limitations of Congress. 1.

Article 1 section 1:- All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives- Only congress gets to make laws only specific to the Federal government a. All legislative powers are granted to Congress and not anyone else b. Bicameralism- clearly says the congress should consist of a Senate- represent the State governments and House of Representative- represent the people and their interests 2. Article 1 section 2: All about the House- lower chamber a. Qualifications for House Membership- minimum age 25, b. US Term Limits vs. Thorton (1995)- Issue of term limits for members of Congress, States cannot impose term limits on members of Congress because there is nothing in the Constitution that grants that power.

c. The creation f Congressional Districts- divide the power throughout states, created by State legislatures d. The census provision- takes care of how many districts e. Vacancies in the House of Representatives- leave it up to the states to fulfill the lost seat, the Governor will elect in most cases but states will decide f. The power of Impeachment lies completely with the House of Representatives- the people cannot rule out only the co representatives 3. Article 1 Section 3: all about the Senate, upper chamber a. The number of Senators per state and the qualifications for membership- at least 30 years old, 2 per state, represent the interest of the various state governments b.

The role of the Vice president in conjunction with the Senate- the Senate is allowed to elect its own presiding officer and that the Vice president is the presiding officer of the Senate, the Senate makes its own rules and the VP only has a vote when the Senate is at a tie c. The power of holding a trial for impeached individual lies completely with the Senate i. The Senate rotation Clause- says that 1/3 of the Senate is up for re-election every 2 years. Senators serve a 6 year term. Senate is organized into 3 classes 4. Article 1 Section 4: States are in control of the elections. Takes total control of Federal government in elections a. The role of state legislatures in congressional elections b.

The scheduling of congressional sessions and meeting- up until 1890 meeting were held in the winter due to harvest, most were farmers, lasted around 3 months 5. Article 1 Section 5: a. Deciding the legitimacy of elections for the House and Senate- if an election is held and there is some kind of corruption then the Congress may refuse to seat that member of Congress b. Procedural issues: quorums, publishing their proceedings, closing the sessions of Congress. Secrecy- 80% is needed to keep secrets in these proceedings, Budget of the CIA is actually kept secret 6. Article 1 Section 6: a. Congressional pay b. Immunity from arrests in civil lawsuits- known as the Immunity clause, makes members of congress immune to civil prosecution, purpose is to protect hem from lawsuits that could be aimed against them and protects their free speech rights

c. Preventing conflicts of interests between the Congress and the executive and judicial branches- Ineligibility clause- cannot be both an elected member of the House or Senate and also hold a position of a Judge of the Supreme court or cabinet of the President Ending of recording 1. 1 Start of 2nd class 1/22/13 Recording 1. 2 7. Article 1 Section 7: deals with how a bill is passed a. The Origination Clause (raising revenue)- any kind of bill that raises revenue the bill must originate in the house of representatives b. The presence of a “blue law” in passing a bill- laws that deal with activities on Sundays c.

The presentment clause- the manner in which the Congress presents a bill unto the president, it is presented after the Congress has passed it d. The veto power- single most powerful tool the president has when it comes to the legislative, the numbers are in the presidents favor, only needs 1/3 to go against the bill 8. Article 1 Section 8: a. The delegated (given to) or enumerated (written down) powers (definition)- exclusively the right of Congress, the states give the Congress these powers, the states gave up these rights for protection and the states could not exercise these rights in an individual fashion, most of these are the rights of sovereign nations b. There are approx. 17 of these enumerated powers c.

Know any 5 of these specific powers such as the power to declare war, to coin money, to grant letters of marque and reprisal (legalize piracy), to establish a uniform rule of naturalization and to promote the progress of science (Smithsonian Institution use for teaching, history, and research, all from British money) and useful arts (Copyright Clause), the General Welfare clause- talking about the providing for the military which is for the common defense, enclave clause- setting up the District of Colombia d. The role and significance of the “Commerce Clause” of article 1 section 8, clause 3. To regulate Commerce with foreign nations, states, and Indian tribes. This gives Indian tribes legal status in the Constitution e. The necessary and proper clause (definition) and proper understanding of its mplications- the Implied powers-

Congress has all power to do things that are necessary and proper that ties back to the Constitution- NASA was created in 1957 for military purposes and necessity started by president Eisenhower, had to prove how space agency had to do with the Constitution 9. Article 1 Section 9: a. The ban on slave importation of 1808- guaranteed the South that slavery would be completely abolished, basically says banning the slave trade after 1808, Franklin did this in two reasons 1. Ban slavery 2. Get rid of slave trade no more slaves, back fires because of supply and demand. Also deals with the 3/5 Compromise b. Suspension Clause Habeas Corpus(Produce the body, bring the body forward, protection against arbitrary arrest without cause) Rights- The right shall not be suspended unless when in Cases of Rebellion or Invasion the public safety may require, does not define who can suspend it c.

The issue of direct taxation without regard to apportionment is altered by the 16th amendment- the Constitution originally permitted the Congress to lay taxes on whatever they want but then after the Civil War then needed a formula to figure out by population how much could be taxed, know 16th amendment states no need for caption d. Prohibitions against bills of attainder (law passed against a specific group or people, or when a legislative body tries to act like a judicial body), ex post facto (after the fact, cannot pass a law and go back to punish people who committed it in the past) laws, titles of nobility (complete power like a King granted by the Congress) and the emoluments clause (cannot receive payment or persuasion from other foreign nations. (Nobel Peace Prize Controversy? Obama won this in 6 weeks should the President be able to accept this) 10. Article 1 Section 10: Limits on the State governments a.

Limitations placed upon state governments in relation to congressional power: treaty power, coining money, titles of nobility, bills of attainder and ex post facto laws, states cannot pass laws impairing contracts (Contracts clause) helps with property rights Article 2- Executive powers 1. Article 2 Section 1: The qualifications and the manner of how the President is elected 2. Article 2 Section 2 &3- Discusses the President’s powers a. The Advice and Consent clause- given by the Senate has the authority to fill up vacancies b. Take Care Clause- the President shall take care that the law should faithfully be executed, Executive orders are included in this section Article 3- Judicial Branch (Federal Court System) 1.

Article 3 Section 1 &2- Shortest article in the Constitution, the judicial power of the US shall be vested in one supreme Court 2. Article 3 Section 2- Regulations and exceptions clause- Congress has the authority to make rules regarding the jurisdictions of the federal courts- congress can tell the courts what cases the court needs to hear, they can have an effect on the court, ability to abolish and establish their structure and how the appeals process works Start of 3rd class 1/29/13- Start of recording 1. 3 Article 3 Section 3- The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.

Which means the Legislature attempting to be Judicial, the Congress cannot declare someone guilty of an act, cannot pass down guiltiness through corruption of the blood and attainder of treason Slayer rule- if you kill your parents you can’t inherit their estate, a number of states have this law. Has to do with the Corruption of Blood, in almost any case if you kill your parents you cancel them, yourself, and the estate which either goes to relatives or the government Article 4-Relationships in between the State and Federal Governments The Full Faith and Credit Clause Article 4 Section 1- require that every state gives full recognition to the public records and papers of other states.

The purpose was for commerce and to have the free flow of goods and people across state lines. Exceptions- hunting and fishing licenses, carry concealed, professional licenses are excluded and do not have to be accepted from state to state. Same sex marriage- 1996 Congress pass DOMA- defense of marriage act- says that if you want gay marriage it is ok but you cannot force another state to recognize it. Privileges and Immunity clause Article 4 Section 2- If you go to another state you are under their protections and privileges and are also held at the same standard. Ex. if you are from Vermont and kill someone in OK then you are up for death penalty. There are some exceptions to this clause for ex. out of tate tuition Fugitive slave clause Article 4 Section 2- if you are a slave or indentured servant you cannot escape that situation by fleeing to another state Admissions clause Article 4 Section

3- Admitting new states into the Union, no new state should be admitted in the jurisdiction of an existing state, and no state can be formed from several states without the consent of the state’s legislature and the Congress itself Territorial clause Article 4 Section 3- Congress can make laws and rules regarding federal territories, Federal cannot make laws over states just territorial lands such as Indian tribal land The Guarantee Clause Article 4 Section 4- guarantees to every state a Republic form of government in which representatives are elected, the form of that is choose by the state, for ex. wanted a state to be safe from a church taking over a state, protection against invasion, and domestic violence which means the federal government can help with states domestic issues, the federal government can only intervene with the acceptance of the local government authority Article 5- deals with the amendment process Article 6

Article 1- all of the debts concurred during the Revolutionary War will still be paid after Constitution is in affect The Supremacy Clause- Three supreme laws of the land 1. The U. S. Constitution 2. All Federal laws are the law of the land 3. Federal Treaties signed by the Federal government The supremacy clause conflicts with other parts of the constitution, ex. Indian lands have treaty with the feds but the states don’t go by that law The loyalty clause- no religious test should be required to serve in the federal government Article 7- the Ratification process, once you get 9 states to sign on the constitution is in effect Key Terms- Dual Constitutionalism- the Federal Government has a Constitution as well as the states.

Norming- using texts outside of US politics to help interpret the US Constitution The Fundamental Law- has to deal with having one thing that is the final law above anything else and that is the US Constitution Higher Law Tradition- what the US Constitution uses, brief and based upon the idea of “enduring principles” Judicial Activism- a justice using their own ideas and beliefs to help decide on a case Judicial Restraint- disregards their own views and goes by the books and laws to decide on a case Bills of Attainder- law passed against a specific group or people Positive Law Tradition- has a lot of verbose or issues, it is long and drawn out and needs to discuss all areas of issues. Most state governments and foreign nations have Constitutions like this Constitutional Telos- spirit of a constitution- Greek word that means purpose or goal of something Senatorial Courtesy- refers to the idea/ practice of appointing justice to federal court system, vacancy occurs, the President asked the Senators if there is any names that he should have fill the vacancy.

Ultimately President picks but the Senators have a say. George Washington introduced this policy. Stare- Decisis- idea of common laws that are found over and over again and should be well known The Slayer Rule- if you kill your parents you can’t inherit their estate, a number of states have this law. Has to do with the Corruption of Blood, in almost any case if you kill your parents you cancel them, yourself, and the estate which either goes to relatives or the government The Paradox of the Constitution- Democracy and Restraint-harnessing the power of the mob and the government. Consider the example of 14th amendment and Prop. 187, 1994- dealt with illegal immigration. 986 under Reagan provided amnesty to illegal aliens and the borders were not sealed. In Cali. was feeling the brunt of the immigration. State of California put Prop. 187 that if you are an illegal alien we cannot provide you with social services. Voted and passed by 60%. Should the people be able to vote and decide this issue? If for democracy, yes. It passed and the day after the election a group of illegal immigrants’ rights people went and applied for an injunction- an order from the court that can implement a law from being carried out. But under the 14th due process clause the law cannot be carried out. You have to keep the majority from becoming a mob.

Ex-Post Facto Laws- after the fact, cannot pass a law then punish people who committed it in the past Federal Definition of US Citizenship- protected by the Due Process Clause of the 14th amendment states than any person in the US shall be deprived of life, liberty or property without the due process of law. Letters of Marque and Preprisal- a government license that legalized the taking over of another ship at sea. Essays 6 methods of decision making by justices and activism and restraint Textualism- (aka) The Plain Words Approach- words are efficient for itself and does not need interpretation. Argues that there are clear meanings throughout the Constitution. Conservatives embrace textualism, when you say it says what it says it is easier to understand it.

Original History- (aka) Orginal Intent Approach- What judges tend to use the most, argues about discovering the ideas and the intent of the founders and the originality. Ex. California decision 187 with the 14th amendment. Try to understand what originally was meant. This process is not always true ex. the 8th amendment with cruel and unusual punishment, interpretation is vague on originality. Doctrinalism- is the idea to use court developed style doctrines to interpret specific policies or sections of the Constitution. Freedom of Religion- court developed lemon test- has to do with free exercise of religion and establishing a religion. Tries to create some degree of continuity.

Compelling state interest doctrine- deals with the rights of state governments, basically says the there are certain things that the states have the right to regulate, can states force their citizens to make their children go to school, also state police powers. Ultimately they tend to be either conservative or liberal in separate ways Precedent (Stare- Decisis)- let the president stand, important with common law. Same things that repeat over and over should stand. Idea to create common decisions that have to do with the same thing. Way to establish a common law that everyone understands. Many possible precedents to choose from and hard to pick which one to apply.

Prudentialism- strategy that tries to avoid a decision in a politically sensitive case or balancing the interests of the case. This is probably the most restrictive view of the courts of its own powers, minimalist perspective and generally uphold whatever is done. Conservatives embrace the problem that when you over interpret the Constitution you give the government powers that do not exists. Tries to avoid the unintended consequences and lets the system do its own thing. Negative- minority rights Structuralism- tends to look at it at a whole, uses many different sections to decide on an issue, goes into great detail and context of a subject and how it relates to the entire Constitution.

Advantage- you get to see the whole picture, but is only needed in areas that come up a lot in the Constitution Three Categories of constitutions- Nominal Telos- gives certain rights but does follow through with the rights. Example is Cuban Constitution that gives rights such as healthcare and travel but does not carry them out. Tends to make a lot of promises but does not keep them. Façade Telos- similar to nominal by making promises in a way that seem more logical and achievable for that country but is still not carried out. Example is Iranian Constitution that gives rights for a free media but anything that is not Islamic can be regulated by the government.

Garantiste Telos- lives up to its name, tends to limit the power of the government and the power of the people, and has balance and in most cases the power is in the people. Examples include the US and Canadian Constitutions. Judicial Review- The lack of clear mandate providing for judicial review- the right of the courts to invalidate the laws of the Constitution. It is an implied power that is not actually granted to the courts in the Constitution. In Federalist paper 78 Hamilton hints that the judicial review process can somewhat check the power of the legislative branch. If the courts do not have judiciary review they have no powers at all, it is simply the power of judgment. Judicial review was not granted to the court system until the 1803 case of Marbury v. Madison.

Weakness of Judicial branch- In Federalist Papers 78 Hamilton pronounces that judiciary branch will be the least dangerous to the political rights of the Constitution because the executive branch (the president) has the sword or the authority of power, the legislative branch (Senate and House of Representatives) has the purse or the authority to control money and the judiciary branch (Federal courts) only have the power of judgment and neither the power of force nor will. Selection for membership of the courts is determined by the President and the Senate. Congress can limit the jurisdiction and structure of federal court system at will. Article 3 section 2 gives Congress this power except to the Supreme Court to make and remove any federal courts.

An example of weakness of the courts is the Norris-La Guardia Act in 1932 that was about yellow dog contracts in federal courts which was a contract that promises that a person will not join a union or strike and if so they can be fired. The Congress made it illegal for the Court to review this so they had no power of judgment. This proves that there is not independent judiciary. The Congress and States can also amend the Constitution while the courts cannot even vote. Another example is Texas v. Johnson (1989) in an issue about burning the US flag were the courts ruled it was illegal but under the 1st amendment it was a freedom of expression and the courts could do nothing about it.

Congress also has the power of impeachment and removal of a court member. Worcester v. Georgia (1832)- deals with Indian tribes, and deals with con example of Brown v. Board of Education. Cherokee nation was on a reservation system and gold was discovered in 1828 the state of Georgia started to dissolve the Indian land. Used treaty rights. 1. No state has rights to have power over Indian lands, 1785 Treaty of Hopewell guarantees certain rights and federal laws and treaties suppress state laws. When you have a president that wants nothing to do with the courts judgment the courts have no powers. Brown v. Board of Educations (1954)- overturns Plessy v.

Ferguson, and strikes down the policy, in 1957 most states had not even moved towards changing segregation President Eisenhower who desegregates public schools at gunpoint in Arkansas. Weakness of Judicial branch- In Federalist Papers 78 Hamilton pronounces that judiciary branch will be the least dangerous to the political rights of the Constitution because the executive branch (the president) has the sword or the authority of power, the legislative branch (Senate and House of Representatives) has the purse or the authority to control money and the judiciary branch (Federal courts) only have the power of judgment and neither the power of force nor will.

Selection for membership of the courts is determined by the President and the Senate. Congress can limit the jurisdiction and structure of federal court system at will. Article 3 section 2 gives Congress this power except to the Supreme Court to make and remove any federal courts. An example of weakness of the courts is the Norris-La Guardia Act in 1932 that was about yellow dog contracts in federal courts which was a contract that promises that a person will not join a union or strike and if so they can be fired. The Congress made it illegal for the Court to review this so they had no power of judgment. This proves that there is not independent judiciary.

The Congress and States can also amend the Constitution while the courts cannot even vote. Another example is Texas v. Johnson (1989) in an issue about burning the US flag were the courts ruled it was illegal but under the 1st amendment it was a freedom of expression and the courts could do nothing about it. Congress also has the power of impeachment and removal of a court member. The Paradox of Constitutionalism- Democracy and Restraint-harnessing the power of the mob and the government. Consider the example of 14th amendment and Prop. 187, 1994- dealt with illegal immigration. 1986 under Reagan provided amnesty to illegal aliens and the borders were not sealed. In Cali. as feeling the brunt of the immigration. State of California put Prop. 187 that if you are an illegal alien we cannot provide you with social services. Voted and passed by 60%. Should the people be able to vote and decide this issue? If for democracy, yes. It passed and the day after the election a group of illegal immigrants’ rights people went and applied for an injunction- an order from the court that can implement a law from being carried out. But under the 14th due process clause the law cannot be carried out. You have to keep the majority from becoming a mob. Article 1 contains the essential material for understanding Congress and its role in the federal gov.

Congress is mentioned in other articles as well as the amendments in the US Constitution. However, article 1 provides the bulk of the power and limitations of Congress. 1. Article 1 section 1:- All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives- Only congress gets to make laws only specific to the Federal government a. All legislative powers are granted to Congress and not anyone else b. Bicameralism- clearly says the congress should consist of a Senate- represent the State governments and House of Representative- represent the people and their interests

Cite this Constitutional Law

Constitutional Law. (2016, Oct 17). Retrieved from https://graduateway.com/constitutional-law/

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