Module Four Constitution Flashcards
Constitution
establishes structure of government and the relationship of the government to the people that it governs. 1789
The Federalist 51
the structure of the government must furnish the proper checks and balances between the different department
Structure of U.S. Government
• Power divided between and sometimes shared between federal, state and local governments (vertically)
• Federal powers are shared between 3 branches: called tripartite (3 part government)
o Executive-president to execute or enforce laws
o Legislative-congress to make laws
♣ Congress is a bicameral (two house) body consisting of the Senate and HR
o Judicial-court to interpret law
♣ Countervailing powers-designed to compete with and counterbalance one another
♣ Power is divided horizontally
The constitution was adopted by the states providing that power is divided as follows
Delegated powers Shared powers State police power Prohibited powers Powers reserved to the people
Delegated powers
♣ Granted the national government by the constitution
• Preemption:
Federal governments superior regulatory position over state laws in the same subject area
Shared powers
Powers delegated to the national government that may be shared by the states
State police power
The power to govern and adopt laws for the protection of the public health, welfare, safety, and morals
Prohibited powers
♣ Prohibits states and the federal government from doing things
• Ex post facto laws:
Law making criminal an act that was lawful when done or that increases the penalty when done
Powers reserved to the people
10th amendment
Conflicting constitution theories
o Bedrock view:
♣ Strict constructionist interpretation of a constitution
o Living-document view:
♣ Term used when a constitution is interpreted according to changes in conditions
Types of Due Process
• Procedural:
o How a thing is done must be fair
o Requires notice and hearing
• Substantive:
o When government affects your rights
o The substance of what is done must be fair
Constitutional Provisions for Due Process
• 5th amendment:
applies due process to the federal government
• 14th amendment:
applies due process to the states
Judicial tests for interpretation of 14th amendment equal protection
• rational relations:
o basic test
• heightened scrutiny:
o used in sex discrimination cases
• strict scrutiny:
o used in cases involving highly protected classes such as race or color
Rational Basis Test
o Is the government action rationally related to a legitimate government purpose
♣ Burden of proof is on the challenger
Heightened (intermediate) scrutiny test
o Is the government action substantially related to an important government purpose?
♣ Burden of proof is on the government
Strict scrutiny test
o Is the government action necessary to achieve a compelling government purpose?
♣ Burden of proof is on the government
Commerce Clause
Constitution allocates business regulation between federal and state governments
Due Process Clause
Guarantee against the loss of property or rights without a chance to be heard
Quasi-judicial proceedings
Forms of hearing in which the rules of evidence and procedure are more relaxed but each side still has chance to be heard
Privileges and immunities clause
Clause that entitles a person going into another state to make contracts, own property, and engage in business to the same extent as citizens of that state
Bill of Rights
First 10 amendments of the constitution
1st amendment
congress will not make a law establishing a religion, or prohibiting freedom of religion, or prohibiting freedom of speech/press/assemble/petition governments grievances
2nd amendment
a well regulated militia shall not be infringed
3rd amendment
no soldier shall be put in a house without the consent of the owner
4th amendment
the right of the people to be secure in their “persons, houses papers and effects” against unreasonable searches and seizures. Upon probably cause
5th amendment
no person shall be held to answer for a capital/infamous crime unless on a presentment or indictment of a grand jury. Nor someone subject to the same offence be twice put in jeopardy of life or limb/shall not be called to be a witness against themselves, nor deprived of life liberty or property without due process of law, nor private property taken for public use without compensation
6th amendment
in criminal prosecutions the accused should have the right to a quick and public trial with an impartial jury/informed about the nature of the accusation/confronted with witnesses/have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense
7th amendment
when value in controversy exceeds $20 the right of trial by jury is preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States according to the rules of the common law
8th amendment
excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted
9th amendment
the enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people
10th amendment
the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people
How to read a case
IRAC
• I-issue: identify issues
• R-rule: what law is involved?
• A-application: apply the law to the facts
• C-conclusion: what answer did the court reach?
