Chapter 3 - Constitutional Law - Terminology Flashcards
A program under which women and/or minorities are granted special consideration in employment, government contracts, and/or admission to programs of higher education.
Affirmative action
The constitution under which the US was governed from 1781 to 1789.
Articles of Confederation
Rules of judicial self-restraint articulated by Justice Louis D. Brandeis in a concurring opinion in Ashwander v. TVA.
Ashwander rules
The first ten amendments to the US Constitution, ratified in 1791, concerned primarily with individual rights and liberties.
Bill of Rights
a legislative act imposing punishment without trial upon persons deemed guilty of treason or felonies. (Prohibited by US Const.)
bills of attainder
Refers to constitutional powers granted each branch of government to prevent one branch from dominating the others.
checks and balances
the doctrine that the First Amendment protects expression up to the point that it poses a clear and present danger of bringing about some substantive evil that government has a right to prevent.
clear and present danger doctrine
Refers to the efforts by the federal government to use its spending power to induce the states to adopt policies they would not otherwise adopt, such as raiding the legal drinking age to twenty-one
coercive federalism
Basically understood to mean that the President would be “first among generals, first among admirals” during a war that Congress declared.
commander-in-chief
The requirement that witnesses appear and testify in court or before a legislative committee (Also : subpoena)
compulsory process
The requirement that an individual give testimony leading to his or her own criminal conviction. Forbidden by Amendment V.
compulsory self-incrimination
A modern approach to American federalism in which powers and functions are shared among national, state and local authorities
cooperative federalism
Punishment that shocks the moral conscience of the community, such as torturing or physically beating a prisoner
cruel and unusual punishment
Capital punishment; a sentence to death for the commission of a crime
death penalty
A tort involving the injury to one’s reputation by the malicious or reckless dissemination of falsehood
defamation
The practice of allowing one document to be made part of another by specific reference OR the doctrine in constitutional law that the Fourteenth Amendment incorporates the provisions of the Bill of Rights and thus makes them applicable to the states.
doctrine of incorporation
Doctrine that holds that a court should interpret a constitution based on the intent of those who drafted it
doctrine of original intent
The condition of being tried twice for the same criminal offense
double jeopardy
A concept of federalism in which the national and state governments exercise authority within separate, self-contained areas of public policy and public administration
dual federalism
Procedural and substantive rights of citizens against government actions that threaten the denial of life, liberty or property
due process of law
The power of government, or of individuals and corporations authorized to perform public functions, to take private property for public use. The 5th Amendment requires that private property cannot be taken for public use without just compensation.
eminent domain
Powers specified in the text of the federal and state constitutions.
enumerated powers
Constitutional requirement that the government not engage in prohibited forms of discrimination against persons under its jurisdiction
equal protection of the laws
A retroactive law that criminalizes actions that were innocent at the time they were taken or increases punishment for a criminal act after it was committed
ex post facto laws
Where a court requires a defendant to post an unreasonably large amount or imposes unreasonable conditions as a prerequisite for a defendant to be released before trial. 8th Amendment prohibits this.
excessive bail
Fines that are deemed to be greater than is appropriate for the punishment of a particular crime
excessive fines
The power to enforce the law and administer the government
executive power
A hearing in a court of law that conforms to standards of procedural justice
fair hearing
The requirement stemming from due process that government provide adequate notice to a person before it deprives that person of life, liberty, or property
fair notice
Constitutional distribution of government power and responsibility between the national government and the states
federalism
Utterances that are inherently likely to provoke a violent response from the audience
fighting words
Sacrifice of ownership or some right (usually property) as a penalty
forfeitures
Implicit in the 1st Am, the right of people to associate freely without unwarranted interference by government
freedom of association
A summary term embracing freedom of speech and freedom of the press as well as symbolic speech and expressive conduct.
freedom of expression
A group of 12 to 23 citizens convened to hear evidence in criminal cases to determine whether indictment is warranted
grand jury
Laws restricting the manufacture, design, importation, sale or possession of firearms.
gun control legislation
“You have the body.” A judicial order issued to an official holding someone in custody, requiring the official to bring the prisoner to court for the purpose of allowing the court to determine whether that person is being held legally
habeas corpus
Unlawful conduct that is about to take place and that is inevitable unless there is intervention by the authorities
imminent lawless action
A legislative act bringing a charge against a public official that, if proven in a legislative trial, will cause his or her removal from public office OR impugning the credibility of a witness by introducing contradictory evidence or proving his or her bad character
impeachment
Powers not specifically enumerated by implied by an instrument such as a constitution, statute or contract
implied powers
A special prosecutor appointed to investigate and, if warranted, prosecute official misconduct
independent counsel
A formal document handed down by a grand jury accusing one or more persons of the commission of a crime or crimes
indictment
The intentions of the Framers of the United States Constitution with respect to the meanings of its provisions
intentions of the Framers
Defined variously, but the underlying philosophy is that judges should exercise power vigorously
judicial activism
Generally, the review of any issue by a court of law. In American constitutional law, judicial review refers to the authority of a court to invalidate acts of government on constitutional grounds
judicial review
The idea that judges should exercise the power of judicial review cautiously and should defer to the decisions of the elective branches of government
judicial self-restraint
The constitutional requirement that a party whose property is taken by government uder the power of eminent domain be justly compensated for the loss, normally at fair market value
just compensation
The idea that original intent should not control contemporary decision making but that the meaning should evolve according to the “felt necessities” of the times
the living Constitution
Explicit sexual material that is patently offensive, appeals to a prurient or unnatural interest in sex, and lacks serious scientific, artistic, or literary content.
obscenity
Refers to the legal responsibility of a legislative body to monitor the activities of government agencies it created
oversight
Refers to Congress’ ability to pull funding , its most effective means of controlling a President’s ability to sustain a long war effort in the face of public disapproval
power of the purse
Refers to the power of a legislative body to conduct hearings and subpoena witnesses in order to investigate an issue or are in which it has legislative authority
power to investigate
A judicial decision cited as authority controlling or influencing the outcome of a similar case
precedent
The doctrine of constitutional law holding that laws are presumed to be constitutional, with the burden of proof resting on the plaintiff to demonstrate otherwise
presumption of constitutionality
The release of a defendant pending trial
pretrial release
An official act preventing publication of a particular work
prior restraint
The redrawing of legislative district lines so as to remedy malapportionment
reapportionment
Right to be let alone, that is free from governmental interference
right of privacy
Right to be represented by an attorney in a court, including the right of an indigent criminal defendant to have court-appointed counsel when subject to incarceration if convicted
right to counsel
The right of persons who are terminally ill to refuse further medical treatment and be allowed to die
right to die
Right to posses certain weapons, protected against federal infringement by the 2nd Am.
right to keep and bear arms
The right of an individual to cast a vote at an election
right to vote
All of the rights belonging to persons accused of crimes, such as the right to counsel, the right to a fair trial, the right to due process, and so forth.
rights of the accused
The 1st Am states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The SC has sometimes used a “wall of separation” metaphor, per Thomas Jefferson, to describe the relationship.
separation of church and state
Constitutional assignment of legislative, executive, and judicial powers to different branches of government
separation of powers
The right to initiate legal action or challenge based on the fact that one has suffered or is likely to suffer a real and substantial injury
standing
“To stand by decided matters.” The principle that past decisions should stand as precedents for future decisions. This principle, which stands for the proposition that precedents are binding on later decisions, is said to be followed less rigorously in constitutional law than in other branches of law.
stare decisis
Discrimination that is endorsed, permitted or backed by the government
state-sponsored discrimination
Judicial review of government action or policy in which the ordinary presumption of constitutionality is reversed
strict judicial scrutiny
Doctrine that Due Process Clauses of the 5th and 14th Ams require legislation to be fair and reasonable in content as well as application
substantive due process
Government limitations on time, place and manner of expressive activities
time, place and manner regulations
The crime of attempting by overt acts to overthrow the government of of betraying the government to a foreign power
treason
A trial in which the verdict is determined not by the court but by a jury of the defendant’s peers
trial by jury
A political system in which all power is vested in one central government
unitary system
