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Constitutional Law
| Question | Answer |
|---|---|
| Articles of Confederation (AOC) | weak gov, no enforceable fed. taxation power, no national judiciary, trespasses of the states on the rights of each other, etc. Set up path for US const. which was created to fix these issues. |
| U.S. Constitution (1787) | The supreme law of the land, binds the gov., put the legislative branch first in structure to show that the government is to be run by the people and ruled by more than one person alone. Also sets for Judicial and Executive branch duties. |
| True or False: US Constitution was not intended to be a legal code. | True-- it's not possible to list all the laws the US would need in the const; interpretation issues based off this concept!! |
| True or False: The US const is a contract. | True-- failure to follow the Constitution equals breach. (*See this in the Declaration of Independence with the colonists lists of charges against the king) Can be charged for failure to follow rules laid out in const. |
| Sovereignty | power or authority; between states and fed gov. Const separates them. |
| Fugitive Slave Clause | required that enslaved people who escaped to other states be returned to their owners, regardless of whether the receiving state had abolished slavery. Art 6, S2, C3. |
| True or False: Congress has plenary power over naturalization and immigration. | True--ow you end up with issues of naturalization, birth right citizenship, and nationalism. |
| Plenary Power | refers to complete and absolute authority or power over a specific area, with no limitations or restrictions |
| Necessary & Proper Clause | This clause enables govs to pass laws to use its powers. Drafting & structure of the Constitution. "catch all clause". Art. 1, S8, C18. |
| Write of Habeaus Corpus | The right of due process under the Constitution. |
| Ex post facto laws | Cannot be tried for something you did before it was against the law; it is unconstitutional to do this to ppl. |
| Emalument Clause | in Constitution; there to ensure no unfair compensation of the President. |
| Original Jurisdiction | A court has jurisdiction over the case/person. SCOTUS also possess this power. |
| Appellate Jurisidiction | Must apply for jurisdiction in these (appellate) courts; SCOTUS has this power. |
| Axiom of Sovereignty | The idea that a state has supreme power over the people and land within its borders. It also implies that the state has the right to demand obedience from its citizens. |
| Pretext | A false or weak reason or motive to hide the actual reason or motive of something. |
| Concurrent Taxation | State and Fed. gov can get taxed. |
| Two key takeaways from McColloch case | 1)taxation is the power to destroy and 2)that states are not permitted to do anything that would impede fed. Gov. |
| What makes a tax legitimate? | Taxes go through the entire legislative system and ppl choosing their electives implicitly means they choose to be taxed. |
| Vested Right(s) | Rights that are explicitly laid out in the US Const. |
| Justiciability Doctrines | Legal stability, prudential concerns, advisory opinions, political question, standing, and ripeness. |
| Political Question Doctrine | Court is making a decision on whether it has the discretion to review the actions of the Executive. Political matters are left to the executive. |
| Constitutional interpretation (2 primary ways) | 1)Originalism and 2)Pragmatism (strict v. loose constructionism in other words) |
| Originalist view of US Const (Scalia) | meaning interpreting the Constitution as its written not as 'living' Constitution (*Scalia believes in strict constructionism not loose constructionism of the constitution) |
| Pragmatic view of US Const (Breyer) | The purposeful approach to the law; contrasts w/ textualism but Breyer believes in loose constructionism not strict constructionism of the Constitution. Textualist approach ignores the changes that have taken place in in society. |
| True or False- US Const has open textured language w/ no definitions in it. | True |
| Is discrimination legal? | Yes depends on the type; prisons, not hiring ppl w/felonies, etc. Only illegal if its unconstitutional. Ex; 1st amendment parameters- cannot yell fire in a crowded building if there's no fire (time, place, and manner restrictions) |
| Legal Stability | of a particular case or controversy to be considered by the courts. If a case is not suitable for judicial processes and decision making its not justiciable. |
| Prudential Concerns | concerned with the propriety of a court hearing a case, not the subject matter jurisdiction. Doctrines arise from two sources: 1)Article III and 2)Prudential concerns relating to separation of powers and competence of courts. |
| Advisory Opinions | issues by a court on a legal issue outside of the normal adversary process which does not adjucate specific legal issues between parties but instead merely advises on a laws constitutionality (SCOTUS cannot/ does not do this!) |
| Standing | whether a particular person has suffered a legally cognizable injury sufficient to make that person the appropriate person to sue to vindicate the right or legal principle at stake. There are 3 Elements: 1)Injury, 2)Causation, and 3)Redressability. |
| Ripeness | Might not have been injured all the way but injury is pending so the court may still review it. Postpones judicial intervention until its clear a dispute exists bc the facts are developed sufficiently. More than likely the injury is imminent in some way! |
| Mootness | requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence. Ex; criminal defendant dies during the appeals process. Case becomes moot. |
| General Rule Mootness Exceptions (6) | 1)collateral consequences, 2)wrongs capable of repetition yet evading review, 3)voluntary cessation, 4)statutory change, 5)compliance w a court order, 6)properly certified class action. |
| Ripeness Test | 1)party will suffer significant/substantial hardship if a decision by the court is delayed and 2)issues are well defined and fit for judicial decision. Ex; legislature is abt to pass a law which if passed would directly effect you in a negative way. |
| State of Exception (by Giorgio Agamben) | A state of exception is one where law does not apply in its normal sense and executive has power/ sovereignty over citizens. Ex; Hitler & Nazi Germany/ Third Reich. Live in perpetual state of exception w Trumps Executive Orders today. |
| De jure sovereignty defined | Right sovereignty |
| Practical sovereignty defined | by practice/ by actions |
| De fact sovereignty defined | in fact / sovereignty in fact |
| Syllogistic Reasoning defined | making a logical argument and court makes a logical decision. Legal Assertion + Legal Support (relevant constitutional provisions, statutes, gov. regulations, etc.) = Argument! |
| Sounds defined | Mean verifiably true. |
| Formal Fallacy defined | means there is an error in the structure of an argument |
| 3 components of a legal syllogism | 1)Major Premise- rule/law of general applicability 2)Minor Premise- specific facts- legally significant facts 3)Conclusion- application of the rule of facts to reach a logically sound conclusion |
| (Non)-Prosecution Power | discretion- defined as exercising prudence or caution to decide something; of the US Attorney in their control to or not to prosecute; the discretionary and plenary power to not prosecute. (United States vs. Cox) |
| Canons of Construction | In Con. Law it refers to interpreting a statute as to not go against what it stands for unfavorably (its statutory interpretation) |
| Probable Cause | Means a reasonable ground to suspect a person is connected to a crime. |
| Trump v. US gives us these universal rules: (6) | 1)Fed crim subpoenas 3)Immunity claims based on distraction 4)Supremacy clause 5)P retains protections as citizens 6)P can raise subpoena specific challenges 7)Argument requirement-subpoena impedes presidents const duties |
| Collateral consequences | criminal convictions- a challenge to a criminal conviction should be dismissed as moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. (Sibron vs. NY) |
| Wrongs capable of repetition yet evading review | 1)challenged action is in its duration too short to be fully litigated prior to cessation or expiration and 2)there is a reasonable expectation that the same complaining party will be subject to the same action again. |
| Voluntary Cessation | defendant's voluntary cessation of allegedly unlawful conduct does not automatically render a case moot if the defendant could resume the conduct (3 elements) |
| Properly certified Class Action | class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by the plaintiff and thus so long as the members of the class have a live controversy the case can continue. |
| Declaration of Independence (1776) | Form: recogieses US as free from GB; Function: statehood recognition, economic liberty, enlightenment policies. |
| Form defined | asking the structure of the doc or text |
| Function defined | asking how does the doc or text function; what does it do , what's its purpose? |
| "Covenant with Death"- Paul Finkelman | means a pact w/ something harmful or destructive, highlighting the argument that by safeguarding slavery in the Const. Founder Fathers made a morally questionable compromise. |
| US Const Form | Consists of a preamble, 7 articles, 27 amends, first ten are known as Bill of Rights, each of the 7 articles has multiple sections with multiple clauses. Branches of gov are separated and duties laid out. |
| US Const Function | To fix AOC issues, to be a contract w US citizens, to lay out duties of each of the 3 branches of gov and differentiate between state and fed gov. |
| Enumerated Powers | powers explicitly laid out in the US Const. |
| Implied Powers | Powers implied or assumed to be delegated in the US Const to a specific person or branch of gov |
| Form of Banks (Hamilton- McCulloch) | A mix of public and private ownership, included board of directors, bank branches, and capital stock. |
| Function of Banks (Hamilton-McCulloch) | To issue debts, bank notes, support the economy, and create a national uniform currency, acted as fed governments fiscal agent. |
| Sword and purse meaning | Executive and legislative branches of gov, power to wield war and of economy ($). Separation of these two powers between these two branches to prevent monarchy. |
| Necessary defined | useful for carrying out enumerated const powers. |
| Proper defined | "fitting" with the const not violating it. |
| Figurative | means to read the language as departing from its literal plain meaning. |
| Vague | Means marginal indefiniteness in the meaning and application of words. |
| Modalities | a particular way of doing or experiencing something; ways to interpret the Const. (7 ways to interpret the text of the Const) |
| Strict constructionism | interpret Const by its literal plain text meaning |
| Loose constructionism | interpret Const with flexible and implied meanings and understanding/ appeals to modern society |
| Supremacy Clause | Fed law trumps state law when a conflict between them presents itself. Art 6, C2. |
| Federalist Paper No. 78 | Form: lays out 3 questions and discusses checks & balances on branches, notes how judicial is the weakest one. Function: explains the role of the judiciary branch and tenure of judges |
| Good Behavior | Idea that protection of judges and salary for life was ensured by good behavior of the judges to not be unduly pressured by political influence. |
| True or False: Judicial branch lacks sword and purse and is the most independent branch (as viewed through const lense) | True- lacks sword and purse power that legislature holds. |
| Judicial Review | No explicit provision in US const gives court this power, no precedent from Gb either. SCOTUS implied power to interpret the const and say what the law is; established in Marbury v. Madison |
| Writ of Mandamus | order issued by a court to a gov officer or lower court commanding the performance of a duty pertaining to an office/ dept. |
| Anomie | absence of law |
| Aporia | irresolvable internal condition/ contradiction (state of exception being both legal and not legal) |
| Session | act of withdrawing membership (southern states from the union) |
| Absolute immunity | protects government officials from lawsuits and criminal prosecution while they are performing their official duties. It's a type of sovereign immunity that's more protective than qualified immunity. Executive privilege is NOT this type if immunity, |
| Qualified immunity | Executive privilege it this; aims to protect government officials from lawsuits and potential financial penalties when they act within their discretionary functions, but it's not absolute. |
| "Textually demonstrable" | means a power explicitly in the US Const |
| Trump v. Mazors 4 Part Test | 1)does legislative purpose warrant intruding on the President or are there other ways to get the info? 2)Subpoena must be no broader than necessary to achieve congressional purpose 3)Congress better have good justification 4)court has to asses burden on P |
| 3 arguments P can make against subpoena (Trump v. Vance) | 1)Distraction from P duties, 2)Stigma- mark of disgrace associated w compliance of subpoena and 3)Harassment- pressure or intimidation |
| Subponea | Write or order requiring a person to appear before a tribunal or court. |
| Subponea Duces tecum | Ordering witness to appear in court and bring w them specific documents, records or things. (U.S v. Nixon & Trump v. Vance) |
| Motion to quash | Partys request that the court nullify process or an act instituted by the other party as seeking to nullify a subpoena. |
| Principal | appointment of this person requires the President's nomination and the Senate's advice and consent, as outlined in the Appointments Clause of the Constitution. Have a superior officer/supervisor. |
| Inferior | "inferior officers" are those whose appointments can be delegated by Congress to the President alone, the courts of law, or the heads of departments, as opposed to principal officers who require presidential appointment with Senate confirmation. |
| Subordinate | refers to something being placed in a lower rank, class, or position, or being subject to or controlled by a higher authority. |
| Severability | Being divided from one another. Usually used in contracts to indicate if one part of the contract becomes void or unconstitutional that the remaining parts are not void or unconstitutional |
| Presentment Clauses | Art 1, S7, C2. mandates that every bill passed by Congress must be presented to the President for approval or veto before it can become law. |
| Bicameralism | Divided legislature into two parts. House of Reps and Senate. |
| Commerce Clause | Art 1., S8, C3. Gives Congress power to regulate commerce between states and with foreign nations. The word commerce is not defined in US const. giving rise to many interpretation issues. Includes goods, services, exchange of sale, transportation, etc. |
| Intrastate commerce | efers to activities, commerce, or transportation that occur within the boundaries of a single state, as opposed to crossing state lines. |
| Interstate commerce | Commerce between different states/borders. |
| Police Power | States can to some degree regulate health, safety and welfare in the public interest. Limited scope. |
| Theory of Liberty of Contract | Ppl have general right to enter into contracts as protected by 14th amend. |
| Substantive Due Process | ensures that the government cannot infringe upon fundamental rights, even if those rights are not explicitly mentioned in the Constitution. |
| Lochner Era | during this era SCOTUS developed a new jurisprudence that protected economic liberty under the due process clause "police power jurisprudence" |
| Wickard Test (Wickard v. Filburn) | Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce. Substantial Effects Test created. |
| United States v. Lopez (3 channels) | Gives us the 3 categories in which Congress can use its commerce powers: 1)channels of interstate commerce, 2)instrumentalities of interstate commerce, 3)activities that substantially affect interstate commerce |
| 3 categories of interstate commerce | 1)channels of interstate commerce, 2)instrumentalities of interstate commerce, 3)activities that substantially affect interstate commerce |
| Activities that substantially affect interstate commerce | Very broad power. Anything noneconomic that substantially affects interstate commerce. (Wickard v. Filburn & United States v. Lopez) |
| instrumentailies of interstate commerce | refers to the means used to transport goods and people across state lines, allowing Congress to regulate them, such as vehicles, machines, and people involved in commerce |
| Vertical federalism | hierarchical relationship and division of power between the federal government and state/local governments within a federal system, emphasizing the balance of authority |
| Horizontal federalism | he relationships and interactions between states within a federal system, focusing on their responsibilities, rights, and obligations towards each other, emphasizing cooperation and coordination. |
| Aggregate Effects Test (or Substantial Effects Test) | also known as the substantial effects test, allows Congress to regulate activities that, when considered in the aggregate, have a substantial effect on interstate commerce, even if each individual activity, on its own, does not |
| Rational Basis Test | courts determine whether there is a rational connection between the law and a legitimate government interest to regulate interstate commerce |
| Commerce Clause Question Analysis ( 3 parts) | 1) ask yourself if the activity at question is noneconomic or economic activity , 2)which category does it fall under ?, 3)analyze both parts on exam |
| Activity vs. Inactivity | Commerce Clause generally allows Congress to regulate economic activity, but not inactivity, meaning it cannot compel individuals to participate in commerce. (Sebelius case) |
| Channels of interstate commerce | Congress can regulate "channels of interstate commerce," which are the routes and means through which commerce moves, such as waterways, highways, airways, and the internet. |
| Immunity | means exemption from liability , duty or service of process or possibility of prosecution |
| Official duties defined | Duties explicitly laid out in US const of P or a specific branch of gov |
| Unofficial duties defined | implied const duties, or those not stated directly in the US const |
| Veto | power to prohibit an action by another branch or refusal to sign a bill into law. |
| Absolute veto | unrestricted veto that is not subject to being overridden |
| Interpretation defined | Ascertainment of a text's meaning |
| In camera defined | means in the judges private chambers or in the courtroom w all spectators excluded. |
| Discretion | wise conduct and management exercised w/o constraint ; freedom to exercise judgment |
| special prosecutor defined | lawyer appointed to investigate and if justified seek indictments in a particular case |
| certiorari defined | writ issued by appellate court as its discretion to hear lower court case/decision for review. |
| vacate defined | to nullify or cancel |
| indictment defined | formal written accusation of a crime made by a grand jury and presented to court for prosecution against the accused person |
| nolle prosecui defined | "not to wish to prosecute" legal notice that a lawsuit or prosecution has been abandoned and will not go forward; special prosecutor has ability to do this. |
| stare decisis defined | doctrine of precedent which courts generally must follow |
| recess appointment defined | appointment made by President to fill a vacancy when the Senate is not in session |
| Article 1 | Creates legislative powers and vests it in congress |
| Article 2 | places executive power in the President |
| Article 3 | Provides that judicial power shall be in the SCOTUS and other inferior courts created by Congress |
| Federalism defined | divides power between state and fed gov. 10th amend states powers not delegated to fed gov are reserved to the states and Article VI includes Supremacy Clause , fed law trumps state law during conflict |
| Dormant Commerce Clause | Is NOT in US Const. ask is the state unduly burdening out of staters or unduly discriminating against out of staters? State and local laws are unconst if place an undue burden on interstate commerce |
| Impeachment trial by Senate + punishment | Article 1, S3, C6 &7 |
| Article 1, S7, C2 | Presentment Clause |
| Commerce Clause Provision | Article 1, S8, C3 |
| Congress can lay taxes and provide for common defense and welfare of the United States | Article 1, S8, C1 |
| Necessary and Proper Clause Provision | Article 1, S8, C18 |
| Writ of Habeaus Corpus Provision | Article 1, S9, C2 |
| Removal, Resignation or Death of P or VP Provision | Article 2, S1, C6 |
| President is Commander in Chief of Army & Navy Provision | Article 2, S2, C1 |
| Appointments Clause Provision | Article 2, S2, C2 |
| Take Care Clause Provision | Article 2, S3 |
| Exceptions Clause Provision | Article 3, S2, C2 - grants Congress the power to make exceptions to and regulations on the Supreme Court's appellate jurisdiction |
| Full Faith and Credit Clause Provision | Article 4, S1- establishes relationship between states and fed gov |
| Fugitive Slave Clause Provision | Article 4, S2, C3 |
| Supremacy Clause Provision | Article 6, S2- fed law trumps state law when conflict between the two presents itself |
| 1st Amendment | Freedom of speech, press, assembly, petition gov, and religion |
| 2nd Amendment | Right to bear arms and well regulated army |
| 4th Amendment | Right against unreasonable searches and seizures ; must have probable cause |
| 5th Amendment | Grand Jury; cannot be tried twice for same crime or be compelled to be a witness against yourself (right to remain silent) |
| 6th Amendment | Accused shall have right to a speedy trial by impartial jury |
| 8th Amendment | No excessive bail |
| 9th Amendment | Enumerated rights of the Const shall not allow for denial or disparage of rights of others |
| 10th Amendment | Powers not delegated explicitly in the Const to the fed gov are delegated to the states |
| 13th Amendment | No slavery or involuntary servitude. Forbids all forms of slavery across the US and in every territory under its control except for use as criminal punishment. |
| 14th Amendment | Due Process and Equal protection under the laws for all ppl. Grants citizenship to all persons born or naturalized in the US including formerly enslaved ppl and ensures equal protection under the law for all. |
| 15th Amendment | Right to vote shall not be based on race. |
| 26th Amendment | Any US citizen 18 years or older has the right to vote |
| Trump v. US | (1) A former president has absolute immunity from criminal prosecution for official acts within the president’s exclusive constitutional authority. (2) A former president has at least presumptive immunity for all other official acts. |
| Gibbons v. Ogden | Water navigation concerning steamboats; 1st case to interpret the Commerce Clause; Supremacy Clause- fed law trumps state law. |
| LEJ (First 3 Articles of US Const) | Article 1- Legislature (Congress), Article 2- Executive (President), Article 3-Judiciary (Supreme Court) |
| Taxing & Spending (US Const. Provision and Definition) | Article 1, §8, Clause 1- to lay and collect taxes & also the spending power |
| Bailey v. Drexel Furniture Co. | Congress may not attempt to collect taxes & also regulate through a tax as a matter that is reserved to the states through the 10th amendment |
| Sebelius | Congress may impose conditions on grants to the state and local gov so long as the conditions relate to the purpose of spending, clearly stated, and are not unduly coercive. |
| Tax definition | a charge usually monetary, imposed by the gov on persons, entities, transport, etc. |
| Duty defintion | a tax imposed on a commodity to transaction especially goods. (on imports) |
| Impost definiton | tax or duty related to shipping / postal tax |
| South Dakota v. Dole | federal funds conditional if for general welfare, the conditions are related to a federal interest and are unambiguous |
| Dred Scott v. Sandford | |
| Black Codes | |
| State Action Doctrine | |
| Badges & Incidents of Slavery | |
| Senator Howard's speech on the 14th amend | |
| Bill of Rights & it's incorporation against the states | |
| The Slaughterhouse Cases | |
| Birthright Citizenship & American Indians | |
| Plessy v. Ferguson | |
| William v. Lee Optical | |
| Brown v. Board of Education | |
| Anti-commandeering | |
| New York v. United States | |
| Printz vs. US | |
| State Sovereign Immunity | |
| Federal Preemption | |
| Express preemption | |
| implied preemption (2 types) | |
| Field preemption (implied) | |
| conflict preemption (implied) | |
| Arizona vs. US |
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