CCL Flashcards
What is the difference between normal law and constitution?
Its symbolic not substantial.
What are the two meanings of constitution?
- Formal sense: the document that is the constitution
- Material sense: laws and conventions of the constitution
What is the historical descriptive value of constitutions?
Describes the world as it is, providing examples and observations of actual occurrences.
What is the modern prescriptive value of constitutions?
Describes what the world should be, indicating desirable conditions.
Who are important figures associated with the idea that power should come from the people?
- Rousseau
- Locke
- Hobbes
What is constituent power?
People’s power.
What is constituted power?
Government’s power.
What historical events are significant in the history of modern constitutionalism?
- 1789 - French Revolution
- 1776 - American Revolution
- 1861 - Civil War
- 1900 - Lochner vs. New York
- 1937 - West Coast Hotel vs. Parrish
What does constitutionalism entail?
Legal constraints on the political; the government has limited power.
What is the purpose of a modern constitution?
To serve a limiting function.
What is the classification process in constitutional law?
- Why to classify
- What to classify
- How to classify
What are the three criteria for a modern constitution?
- Written or unwritten
- Written confined in a single document
- Flexible or rigid
What characterizes a liberal democratic constitution?
- Rooted in social contract theory
- The rule of law
- Separation of powers
- Interest groups represent pluralism in society
What are cardinal laws?
They have an intermediate rank between the constitution and ordinary laws and serve as a basis for constitutional review of ordinary laws.
What is the difference between constitutional law and ordinary law?
Ordinary laws emanate from the government and bind the people, while constitutional law is attributed to the people and binds the government.
What are the three generations of rights?
- First generation: civil and protection rights
- Second generation: social economic rights
- Third generation: collective rights
What is the Supremacy Clause?
Article 6 states that the Constitution is the supreme law of the land, and federal laws prevail over conflicting state laws.
What does the Bill of Rights cover?
- Freedom of speech
- Freedom of religion
- Freedom of the press
- Right to bear arms
- Right to a free trial
What does the 14th Amendment guarantee?
Citizenship to all persons born or naturalized in the US.
What is the Rule of Law?
Laws must be clear and public, applied equally to all, ensuring legal certainty and protection of human rights.
What is the separation of powers?
The division of government responsibilities into distinct branches: legislative, executive, and judicial.
What landmark case established judicial review in the US?
Marbury v. Madison (1803).
What is positive law?
Constitutional rights as a formal or procedural concept within a given legal system.
What is the difference between rights and freedoms?
Rights entail positive obligations for the state, while freedoms demand that the state remains passive.
What principles govern birthright citizenship?
- Territoriality principle
- Descent principle
What is the definition of citizenship?
Membership in a political community.
What are the two models of judicial review?
- Decentralized model
- Centralized model
What is the legal system in federal states characterized by?
- A federal legislature consisting of two chambers
- Constitutionally entrenched distribution of powers
- Alteration processes involving both constituent states and the federation
What is the difference between direct democracy and representative democracy?
- Direct democracy: collective decision-making
- Representative democracy: elected representatives make decisions
What is sovereignty?
Supreme power authority.
What does the term ‘internal sovereignty’ refer to?
Absolute power of the state within its territory.
What is the difference between horizontal and vertical structuring in state organization?
- Vertical structuring: central, federal, and local
- Horizontal structuring: executive, legislative, and judicial
What characterizes a constrained parliamentarism model?
The chief executive can only be removed if a successor is nominated.
What is the quality of Nationality Index (QNI)?
Non-legal but comparative perspective on citizenship.
What is the constitutionally entrenched distribution of powers in federal states?
Legislative, executive, and judicial powers are distributed between the constituent states and the federation.
This distribution ensures that both the states and the federation have defined roles and responsibilities.
How can the constitution in federal states be altered?
The constitution can only be altered through a process involving both the constituent states and the federation as a whole.
This process ensures that changes reflect a consensus among the various levels of government.
What is a key similarity between the legal systems of the USA and Germany?
Both have constitutional courts.
These courts are responsible for adjudicating issues related to the constitutionality of laws.
What is a major difference between the legal systems of the USA and Germany?
The number of supreme courts and state legal systems.
The USA has a single Supreme Court, while Germany has a specialized constitutional court alongside other courts.
What does ‘models of juridical review’ refer to?
Constitutional justice involving control of constitutionality of laws.
This includes the methods and processes by which laws are evaluated against constitutional standards.
What are the two main types of juridical review?
Juridical review of executive acts and legislative acts.
Each type is based on different legal standards: legislation and constitution.
What is the decentralized model of juridical review?
A system where all courts have the right to review the constitutionality of a law, handled by local entities.
Examples include the United States and Nordic countries.
In a centralized model, who reviews the constitutionality of laws?
A specialized constitutional court.
This model is prevalent in most civil law countries.
What is unique about the UK regarding its constitution?
The UK has no written constitution.
Instead, its constitutional framework is based on statutes, conventions, and legal precedents.
What is the Human Rights Act 1998?
An act that gives future effect to rights and freedoms guaranteed under the European Convention.
It ensures that UK law adheres to the principles established in the European Convention on Human Rights.
What does Section 4 of the Human Rights Act state?
A provision of primary legislation is incompatible with a convention right only if the judge cannot find an interpretation compatible with the convention.
This section emphasizes judicial interpretation in aligning domestic law with human rights standards.
