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Constitutional Law > 1st Half > Flashcards

1st Half Flashcards

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1
Q

Ses. 1-2

  1. What is a constitution?
A
  • Fundamental and supreme legal document
  • Written or unwritten
  • Framework for governance, outlining organization of government, protecting rights, and distributing powers
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2
Q

Ses. 1-2

Explain how constitutionalism became a global idea (use Loughlin’s text)

A
  • Spread of democractic principles
  • Countries began to recognize the importance of limiting government power
  • Saw the best way of doing this through, most often, a written document
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3
Q

Ses. 1-2

Distinguish normative and descriptive perspectives on what is a constitution.

A

Normative definition:
- Loughlin
- What a constitution ought to be
- Should establish checks and balances to avoid tyranny and promote social justice to ensure the rule of law
- China has no constitution

Descriptive definition:
- Sunstein
- What a constitution is in practice
- Real world impact of constitutional provisions, recognizes varying depending on country and context
- China has a constitution

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4
Q

Ses. 1-2

Explain Jefferson’s criticisms against the modern idea of constitutionalism

A
  • Not sacred and unchangeable
  • Did not want dead to rule living
  • Advocated for revisions every 19 years to adapt to evolving society
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5
Q

Ses. 1-2

What are the pillars of modern constitutionalism?

A
  • Written
  • Supreme
  • Rigid
    (All not always the case)
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6
Q

Ses. 1-2

What is “precommitment” and why is this idea relevant for the justification of a constitution?

A
  • Sustein idea of protection against future/abuses and misjudgments
  • Solve collective action problems (ex: federalism, prosecution safeguarding natural rights)
  • Relevant for justification of a constitution to ensure that momentary passions and movements will not rule simply
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7
Q

Ses. 1-2

Use Walter Murphy’s ideas to answer what exactly a constitution should include?

A
  • Text
  • Other documents
  • Intent of the framers
  • Political theories (not neutral)
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8
Q

Ses. 1-2

What is the relation between constitutionalism and democracy? How do they consider the human nature?

A
  • Tension one wants to limit government power and one wants to give power to the people
  • Democracy sees human nature positively
  • Constitutionalism is skeptical
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9
Q

Ses. 1-2

What are the functions of a constitution for Walter Murphy?

A
  • Charter (founding document) of government
  • Symbol reflecting values and aspirations of society
  • Guardian of fundamental rights
  • Shams (superficially legitimate but fail to uphold rights, scam to citizens, failed democratic principles)
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10
Q

Ses. 1-2

Considering the “precommitment” idea of Sunstein, explain the example of the protection of freedom of speech.

A
  • Society precommited to uphold right
  • Protected from future challenges that government or society will impose on it
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11
Q

Ses. 3-4

Compare the constituent power theory in the work of Sieyes and Schmitt.

A

Schmitt:
- CP is authoritative
- Exercised by the person who determines when a country is in crisis, the one who makes the exception, usually a dictator or a sovereign
- Legal philosopher in Nazi Germany

Sieyes:
- People hold CP
- Exercised when people gather in a constitutional convention
- Key figure in French Revolution

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12
Q

Ses. 3-4

Explain the constituent power theory

A
  • concept
  • power of a body or entity to create or change a constitution (idea of “the people” creates this notion of power)
  • absolute power

Constituted power:
- powers constrained by constitution
- derives from constitution which in turn is derived by constituent power

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13
Q

Ses 5-6

Written v. unwritten constitutions. Differences, examples, criticisms against the distinction

A

Written:
- One codified document that serves as supreme and fundamental law for a government
- Outlines structures of government, rights of citizens, mechanisms for changing itself
- U.S, 1789

Unwritten:
- Various sources: statutes (legislation), conventions, judicial decisions, historical documents
- Evolutionary in nature
- U.K (Magna Carta, parliamentary conventions, common law tradition)

Criticisms:
- Written are too rigid and can become outdated
- Unwritten lack clarity and are ambigious, could lead to potential abuse of power

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14
Q

Ses. 3-4

What criticisms can we make against the constituent power theory?

A
  • Undermines democratic values, especially if interpreted like Schmitt
  • Idealized conditions for constitution making, usually it’s in times of crises
  • Who’s to say it is made under a unified will of a unified people?
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15
Q

Ses. 3-4

How should countries replace their constitutions? Refer to the mechanisms and the reasons read above:

A
  • Inclusive, transparent processes
  • Constituional conventions (to make)/constituent assemblies (to revise)
  • Address injustice and adapt to evolving needs
  • Constitution should reflect democratic values
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16
Q

Ses. 3-4

Explain how the Chilean and Ecuador cases used the constituent power theory:

A

Ecuador:

  • Theory used to dissolve political institutions like Congress
  • More power to the Executive

Chile:

  • Challenge founding rules of Constitutional Convention, members said CPT gave them right to modify Constitution without boundaries
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17
Q

Ses. 3-4

Compare the constitution-making processes of Venezuela and South Africa. Identify the main differences.

A

Venezuela:
- CPT used to justify radical changes that consolidated power in a single authority
- Abusive constitutionalism

South Africa:
- More democratic, negotiation and compromise used to make constitution
- Helped country transition from apartheid

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18
Q

Ses. 3-4

How was the constituent power theory used in the case of Venezuela?

A
  • Invoked to justify radical changes to constitution
  • Democratic checks and balances eroded, Chavez was able to remain in power for more terms
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19
Q

Ses. 3-4

Does the constituent power theory fit with the constitution-making process of South Africa?

A
  • No, constitution making process highly constrained
  • Interim constitution to make proper constitution, thus not giving absolute power to make the constitution, “will of the people” idea not respected
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20
Q

Ses 5-6

Rigid v. flexible constitutions. Explanation, examples:

A

Rigid:
- formal and difficult amending procedures
- designed to be rarely changed

Flexible:
- easily altered
- usually simple majority

Examples:
- U.S is rigid, requires two thirds of both houses and/or state legislatures just to propose an amendment
- U.K is flexible, British parliament can change major conventions with simple majority

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21
Q

Ses 5-6

Why do written constitutions tend to be supreme and unwritten constitutions do not?

A
  • Written are supreme because people regard Constitutional document as the ultimate source of law, and any law that potentially challenges it is brought before it
  • Unwritten derive power from numerous sources and thus it is harder to establish authority and supremacy
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22
Q

Ses 5-6

Explain the parts of the constitution and refer to the preambles. Why are they useful? Are they legally binding?

A
  • preambles, dogmatic part (norms), organic part (provisions)
  • preambles articulate aspirations and values of consitution and society, not legally binding but influential in judicial interpretation of constitutional provisions
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23
Q

Ses 5-6

What is constitutional supremacy? Why do we need an argument for constitutional supremacy? Identify the two predominant traditions regarding constitutional supremacy.

A
  • principle saying constitution is superior to ordinary laws, all branches of governments must act in accordance to its provisions
  • necessary to protect state’s foundational principles and limit government authority
  • Kelsen tradition
  • American tradition
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24
Q

Ses 5-6

Explain the Marbury v. Madison case and identify its argument for constitutional supremacy

A

Context:
- John Adams passed Judiciary Act (1801) to maintain influence of his party
- Midnight judges
- Marbury appointed but did not receive commission in time, Madison, Secretary of State, refused to give it
- Took matter to SC to declare unconstitutionality

Decision:
- By regular law (statute) it was illegal to deny Marbury his commission, writ of mandamus
- By constitutional law, the claim could not be brought to Madison
- Statute declared unconstitutional

Rationale and effect:
- SC Chief Justice Marshall said if regular statute prevailed then Constitution would be pointless, Constitutional law needs to be supreme
- Established Supremacy and judicial review, power of SC to determine constitutionality of a law

25
Q

Ses 5-6

Explain Hamilton’s approach to constitutional supremacy in The Federalist No 78

A
  • judiciary should be interpreter of the Constitution, supremacy should be enforced by them
  • least dangerous branch
26
Q

Ses 5-6

Explain Kelsen’s pure theory of law, identify criticisms. Explain who the guardian of the constitution must be for Kelsen

A
  • All law derives from a foundational norm, all subsequent laws should be in accordance to it
  • Content-independent, does not matter what law says, as long as it is in compliance with higher law it is pure
  • Criticized for detaching law from morality and being too abstract in the law that validates a Constitution
  • Constituitonal court should be guardian, not contaminated by political agendas
27
Q

Ses 5-6

What features must a constitution possess for the modern constitutional movement? What are the problems of long and detailed constitutions?

A
  • Modern constitutiions should ensure protection of fundamental rights, separation of powers, rule of law, and provisions for checks and balances
  • Long, detailed constitutions can become confusing in their interpretation and can become outdated when they delve into specifics better suited for regular legislation
28
Q

Ses 5-6

Explain the cases of Brown v Board of Education and Plessy v. Ferguson, and how those cases serve as an illustration to the challenge of constitutional supremacy

A

P. v. F. :
- 1896, Plessy boards white-only train car, violates Act made under separate but equal principle, Plessy says Act is unconstitutional
- SC upheld the segregation, saying separate but equal doctrine is part of the Constitution

B. v. BoE:
- 1954, Brown’s daughter is refused enrollment in Kansas public school close to their home, Browns and other segregated families filed lawsuit declaring segregation policy of the school as unconstitutional
- SC overturned separate but equal doctrine, major step towards civil rights

Challenge of constitutional supremacy:
- As societal values evolve constitution should be interpreted in different ways

29
Q

Ses. 9-10

Explain the principle of parliamentary sovereignty using Dicey’s approach. Refer to the consequences for judicial power, and constitutional supremacy.

A
  • Fundamental concept of British constitution
  • Parliament can “make or unmake laws” as they please, no other person or body can override Parliament legislation
  • Judicial power: judges cannot strike laws as they would be able to in U.S, judicial review appears to be constrained
  • Constitutional supremacy: Parliament established as highest legal authority in U.K.
30
Q

9-10

Explain Hart’s legal theory and its main criticisms (primarily from Dworkin)

A
  • Legal positivism
  • Law detached from morality, “rule of recognition” gives validity to law because it is understood and, thus, practiced by legal officials, internal perspective of law
  • Dworkin criticized detachment from moral principles saying judges will inevitably make moral judgments
31
Q

Ses. 9-10

Compare Hart’s legal positivism with Kelsen’s legal positivism

A

Hart:
- Separate law from morality
- Content-dependent, “rule of recognition” applies to laws that are understood and practiced by officials

Kelsen:
-Separate law from morality
- Content-independent, hierarchy of laws will always be pure as long as they comply with hierarchy

32
Q

Ses. 9-10

How can we use Hart’s theory to explain the UK’s unwritten constitution?

A
  • Important that legal rules are recognized by legal officials/community
  • U.K’s constitution documents gain authority and are legally binding because they are recognized by officials in Parliament and other offices
33
Q

Ses. 9-10

Explain John Gardner’s argument on whether the UK has an unwritten constitution

A
  • “Unwritten constitution” is innacurate, U.K is not unwritten, it is uncodified, it is not compiled into one
34
Q

Ses. 9-10

Give reasons in favor and against codifying a constitution. Which arguments are more compelling to you?

A

In favor:
- Rigidity prevents instability
- Clarity and accessibility
- Facilitates judicial review and makes legal system transparent

Against:
- Rigidity makes it hard to adapt to changing circumstances
- Centralizing power in the hands of judges can undermine parliamentary sovereignty
- Achieving consensus on content can be difficult and polarizing

Compelling for me:
- Arguments against
- Parliamentary sovereignty should not be undermined as it can lead to abusive constitutionalism, a good parliament is less likely to rule tyrannically than executive and judiciary which often work together

35
Q

Ses. 9-10

How has Dicey’s approach to parliamentary sovereignty been modified in the UK?

A
  • U.K’s membership in EU changed Dicey’s approach, no longer ultimate Parliamentary Sovereignty
  • Human Rights Act 1998
  • EU law takes precedence over conflicting domestic laws
  • HRA allows courts to issue declarations of incompatability with ECHR
36
Q

Ses. 9-10

Explain the mechanisms of the Human Rights Act in connection with the idea of “weak judicial review” and “political constitutionalism.”

A
  • HRA brings ECHR into UK law
  • “Weak judicial review”, courts cannot strike down parliamentary legislation, they can however declare incompatibility and change interpretation, not so weak after all
  • “Political constitutionalism” in combination with HRA makes politicians/legislators act in line with this act because they don’t want o be seen as people against Human Rights
37
Q

Ses. 9-10

Refer to the Ghaidan v. Godin-Mendoza case

A

Context:
- Dispute over Rent Act 1977
- Tenant died, partner (Godin-Mendoza) wanted to keep lease, landlord (Ghaidan) wanted to evict
- Act allowed surviving spouses to maintain lease but could not apply to same sex couples because law did not allow homosexual marriage

Decision & Rationale:
- ECHR articles mandated equal treatment of homosexuals
- Lord Nichols changed interpretation of Rent Act applying HRA section 3, read it as if survivor in homosexual couple is the “surviving spouse” mentioned in the text
- Wording of Rent Act did not change, interpretation did

38
Q

Ses. 9-10

Describe Israel’s constitutional system

A
  • Parliamentary democracy, no single consolidated constitution
  • Framework based on combination of basic laws (laws that gradually elevate into constitution through judges, example freedom of occupation/profession), judicial decisions, historical documents, and constitutional conventions
39
Q

Ses. 9-10

Is there a Constitution in Israel?

A
  • Series of basic laws make up constitutional framework, no single document
  • Debate over whether or not basic laws make up constitution
40
Q

Ses. 9-10

What are the problems of unwritten constitutions? Use the example of Israel.

A
  • Constituion viewed as accidental and questions of legitimacy are raised
  • Vulnerable to political manipulation, do not provide strong legal protection for fundamental rights
41
Q

Ses. 11-12

How do constitutions change? Identify and explain the types of constitutional change.

A
  • Amendment (formal procedure usually outlined in Constitution, adding or replacing specific part)
  • Replacement (substitution of entire text, scratch and replace)
  • Transformation (same text, not Replacement, different meaning because of change in political order or huge amendment [Argentina 1994])

Formal change:
- Total replacement
- Amendment
- Involves a process with a clear goal in mind (initiative, parliamentary procedure, referendums, vetos)

Informal:
- Judicial decisions/interpretation
- Superstatutes (regular legislation with lots of constitutional content)
- Constitutional conventions
- Constitutional desuetude (norms that are outdated but stil exist in constitution, nobody refers to them though)

42
Q

Ses. 11-12

How can we justify constitutional rigidity?

A
  • Stability
  • Protect democracy
  • Protect minorities and opposition
  • Protect existence of certain institutions
  • Increase legitimacy of constitution
43
Q

Ses. 11-12

What are eternity clauses? Concept, justification, and how to circumvent them.

A
  • Constituional provisions that declare certain provisions and principles as unamendable
  • Exist because some rights are non-negotiable, such as human rights or democracy
  • Circument by revolution, interpretation, or amending the rules of amendment
44
Q

Ses. 11-12

Identify different uses of “history” in constitutional interpretation

A
  • Originalism: Interpreting constitution based on intent of framers
  • Original meaning-based approach: Interpreting constitution based on meaning the people would have given the text at the time of its enactment
  • Stare-decisis: precedent of previous juridical decisions
45
Q

Ses. 11-12

Justifications and criticisms of the use of history in constitutional interpretation

A
  • Legitimacy of founders
  • Subjective, who defines intent or opinion?
  • Evolving societal needs and values
46
Q

Ses. 11-12

Explain Dworkin’s theory of interpretation

A
  • Judges should interpret the law and constitution as a whole through moral principles
  • Rejects originalism and embraces “living constitution” (dynamic meaning)
  • Says judges should be trained in philosophy and ethics
47
Q

Ses. 11-12

Compare Dworkin’s theory with the views of Hart and Kelsen

A
  • Does not separate law and morality, argues they are intertwined and possibly inevitable
  • No hierarchy or “rule of recognition” to interpret validity of law
48
Q

Ses. 11-12

Refer to Chief Justice Roberts’ analogy for explaining the role of the judge. Is it correct?

A
  • Judges = baseball umpires, not make rules, apply them
  • No one came to see the umpire
  • In resolving conflict they effectively make laws, thus, the analogy is not necessarily correct, judges have more complex roles, however, certain similarities like the need for impartiality are valid
49
Q

Ses. 11-12

Explain the Dobbs case and the use of originalism

A

Context:
- Mississippi law sought to ban abortion after 15 weeks of pregnancy
- Constitutionality of law was brought before SC
- Previous Roe v. Wade had declared abortion as unbannable, ordered states to give people viable access, all until the fetus is able to survive outside the womb

Decision & Rationale:
- Law upheld
- Majority argued constitution does not explicitly mention abortion as a right and the right is not rooted in the nation’s history and tradition. Said decision would be better off in the hands of elected reps.
- Dissent argued that constitution protects liberty (14th amendment), liberty is privacy, privacy means bodily autonomy, relates to stare decisis as this was reasoning used in Roe v. Wade. Taking right to abort diminishes dignity and authority of women.

Originalism:
- What did the framers intend with the mention of liberty in the 14th amendment?

50
Q

Ses. 11-12

Explain Martin Shapiro’s view on what judges do

A
  • Judges are liars, deny being legislators but make law when resolving conflict
  • Lying should not be criticized for it is inevitable, inherent in judicial process, judges need to regard themselves as mere inrepretors of the law
51
Q

Ses. 13-14

Why do constitution-makers create constitutional courts?

A
  • Delegation theory (constitutions work like contracts, CC’s are made so that contract is perceived as credible, insurance)
  • Federal and strongly regional countries (arbiter of conflict between federal and state government [Spain and Catalonia])
  • Incomplete agreements and relational contracting (Constitutions are made as compromises and therefore fail to answer certain questions, CC’s made to be answers)
52
Q

Ses. 13-14

What types of constitutional review and constitutional courts exist? Give examples.

A
  • Centralized: Kelsenian, independent, single court typically specialized for constitutional matters. Ex: Spanish Constitutional Court
  • Decentralized: American, judicial branch, power distributed among various courts in judicial system. Ex: U.S, all judges have power of judicial review
  • Abstract review: review of a law without specific case at issue. Ex: Spanish CC on same sex marriage
  • Concrete review: review of a law stems from a controversy/case that brings it to question. Ex: US SC on same sex marriage
53
Q

Ses. 13-14

What are the alternative models of judicial review? Features and examples

A
  • No court (Netherlands, judicial review based on EU and ECHR)
  • Weak judicial review (UK, declarations of incompatibility)
  • Hybrid model (chamber of a court [constitutional chamber], Specialized Supreme Court [sits atop judiciary and is the only one that can do judicial review, in US all judges can])
  • Political organ (committe within the senate)
54
Q

Ses. 13-14

Explain the difference between positive and negative legislators, and why the difference can collapse. Go back to Kelsen’s theory.

A
  • Positive legislators create laws in accordance to constitution (US Congress)
  • Negative legislators annul laws that conflict with constitution (CC’s)
  • Difference collapses when CC enforces rights and effectively becomes positive legislator
55
Q

Ses. 13-14

Explain the moral debate about whether legal systems should allow same-sex marriage

A
  • Debate tackles moral principles like equality, religious principles, and societal norms
56
Q

Ses. 13-14

Explain the case of same-sex marriage in Spain

A

Context:
- In congress, PP rose doubt of unconstitutionality against law amending Civil code so that it includes same-sex couples
- Violates Article 32 of Constitution (right of man and woman to marry)
- No particular case, abstract review

Decisions & Rationale:
- Law does not violate Article 32
- Amendment to civil code does not alter marriage’s core features, it is within the broad margin granted by Constitution
- Court should not assess wisdom of legislative choice as long as it complies with Constitution

57
Q

Ses. 13-14

Explain the case of same-sex marriage in the US

A

Context:
- Petitioners from four states sought recognition for same-sex marriage that their state was not giving them
- Specific case, concrete review

Decision & Rationale:
- Majority ruled same sex couples have right to marry under the Due Process and Equal Protection clause in 14th Amendment, state laws excluding same-sex marriage overturned
- Dissent said Constitution does not mandate same-sex marriage, it is not within the Due Process and Equal Protection Clause, Roberts said to celebrate progress but not the Constitution since it had nothing to do with it

58
Q

Ses. 13-14

Compare the American Supreme Court (and its model of review) with the Spanish Constitutional Court (and its model of review) using the same-sex marriage cases as examples

A

American SC:
- Decentralized
- Moral reasoning, same sex marriage is not explicitly in Constitution
- Concrete review
- Federal

Spain CC:
- Centralized
- Legally trained, morality only slightly, reasoning is more technical
- Abstract review
- Not federal

Constitutional Law (2 decks)

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