Principles of Constitutional Law
Authors:
Rotunda, Ronald D. / Nowak, John E.
Edition:
5th
Copyright Date:
2016
26 chapters
have results for principles of constitutional law
Chapter 1. The Origins of Judicial Review 61 results (showing 5 best matches)
- Marshall’s discussion of the constitutionality of legislative acts falls into two parts. First, Marshall found that a law that was not in conformity with constitutional principles could not be the law of the land. This proposition established the Constitution as a binding law superior to any other federal action.
- Marshall said that the question of whether a federal statute contrary to constitutional provisions could be the law of the land was “not of an intricacy proportioned to its interest.” Marshall believed that the people of the nation had the right to establish binding, enforceable principles for the governing of society. While the people might have ratified a Constitution that created a government of general powers, they chose instead a Constitution that created one of defined and limited powers.
- , Marshall laid claim to the judicial authority to bind all branches of government by constitutional interpretation. treated the Constitution as a law capable of interpretation and definition by the normal legal process. It also looks at the Constitution as a document of enduring principles requiring an independent judiciary to interpret and apply it throughout changing historical periods.
- Marshall’s effort to reach the constitutional question is open to criticism under today’s generally accepted principle that the Court should avoid ruling on a constitutional issue when a case can be decided on a narrower ground. However, this principle is the modern rule, only a general guide for Court action and not an ironclad precept that has bound the Court at all times in its history. Even is modern times, when Justices believe that a constitutional decision is important for the protection of certain values, they have always felt free to decide the issue rather than to avoid it—provided the Court has jurisdiction.
- Second, having found that the Constitution is law that is superior to legislation, Marshall went on to consider whether the judiciary must follow a law that conflicts with the Constitution. He argued that the Constitution is “law,” and it is the institutional responsibility of the judiciary to interpret law and apply the law that is superior in any conflict between the Constitution and legislation. However, this principle does not establish that the judiciary is the proper body to make the determination of whether the statute is in fact so inconsistent with the provisions of the superior document that it is invalid.
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Chapter 2. Federal Jurisdiction 281 results (showing 5 best matches)
- While this general ripeness principle is not disputed, its application by the Supreme Court has resulted in a line of cases with seemingly inconsistent rulings. The longer versions of this text (the one-volume Nowak-Rotunda
- Exercising federal jurisdiction can raise unnecessary constitutional problems when a plaintiff sues in federal court protesting state action and a decision as to the applicable interpretation of state law is relevant to the federal constitutional issue. Where state law is unclear, the federal court is faced with several unpleasant alternatives. The court can proceed and decide the state law question in such a way as to avoid the constitutional issue, but a state court may later disagree with the federal court’s interpretation. Or, the federal court can apply the state law in such a way as to require a decision on constitutional grounds, but this alternative is not favored if there are nonconstitutional grounds for decision. Under either alternative, the federal rule as to the constitutionality of the state law is binding on state courts, but the state courts are still free to interpret the state law differently in a later case (except in the atypical case where the Supreme Court rules
- If the state court holds the state law valid under both state and federal constitutional provisions, then the Supreme Court may review. In that case, if it disagreed with the state court’s view of the federal constitution (or of the federal statute or of the treaty), the state decision would be reversed, regardless of the interpretation of the state law.
- The power to declare a law unconstitutional exists only because the Court finds the law that one of the parties has relied on to be in conflict with “the fundamental law.” In such a case, the Court rules the act unconstitutional because, in the course of deciding the actual controversy, it must choose the fundamental law over the statute. There is otherwise no general power to revise actions of Congress. That was the theory in : the Court rules on the Constitutional issue because it must, in the course of ruling on the case.
- [A]lthough the validity of a law was formally drawn in question, it is our duty to decline jurisdiction whenever it appears that the constitutional question presented is not, and was not at the time of granting the writ, substantial in character.
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Preface to the Fifth Edition 8 results (showing 5 best matches)
- In many ways, this Concise Hornbook is similar to the first edition of the unabridged edition of our Hornbook on Constitutional Law, which has become, over the last four decades, the premier onevolume treatise. The purpose of this Concise Hornbook, like its predecessors and the early editions of the one-volume treatise, is simply to explain, analyze, and evaluate the basic principles that the United States Supreme Court uses in the topic areas most often covered in constitutional law courses. Although the cutoff for cases included in this text is May 2, 2016, we hope that the analysis presented in this book will help student readers for years to come, because future cases will be a product of the principles found in the precedents examined here.
- Students and professors who are interested in a more in-depth analysis of constitutional law principles should consult our one volume treatise, N . Over time, that book has grown, as the law has become more complex and required more analysis. Because of that, if the editors at West were to print the eighth edition our one-volume treatise in the same type as the first edition, that book would be several inches thicker than it already is.
- That expansion, plus our interest in covering more topics in greater depth, led to our six-volume treatise, now in its fifth edition. Persons interested in doing research in constitutional law topics should consult this six-volume treatise, R ) (Thomson Reuters-Westlaw). The multivolume treatise, we are pleased to say, has become the standard reference work for lawyers, judges and scholars seeking an extensive analysis of those constitutional law issues, including topics rarely studied in law school. State courts, federal courts, and commentators in law reviews have cited our one-volume treatise and multivolume treatise thousands of times, in this country and abroad.
- We rotated the sequence of the authors’ names for the multivolume treatise simply to help us keep track of judicial and law review citations to each of our works. Professors Nowak and Rotunda share equally the responsibility for the six-volume treatise and the one-volume treatise. For health reasons, Professor Nowak has retired from teaching and writing. He did not work on this edition of this book.
- Unfortunately, because of space limitations, we have had to eliminate references to secondary authorities in this Concise Hornbook, and drastically limit our references to secondary authorities in our one-volume treatise. Nevertheless, we want to thank all those professors who have sent us reprints of their law review articles. Although we can only cite those articles in our multivolume treatise, or our annual supplements to the treatise, we are now able to introduce those professors’ works to a much wider audience. In addition to the hard copy, you can find our multivolume treatise, with supplements incorporated into it, in Westlaw. Citations to books and law review articles that appear in the treatise, or the annual supplements to the treatise, also appear in Westlaw. Thus, the thousands of persons who use either the hard copy of our Treatise and supplements, or the Westlaw version of the Treatise, will be able to profit from consulting those secondary authorities.
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Chapter 16. Freedom of Speech 904 results (showing 5 best matches)
- We describe all of the key Supreme Court decisions concerning campaign financing in the First Amendment chapter in our hornbook on constitutional law. An even more comprehensive examination of the subject is contained in our 6-volume Treatise. Here we describe the basic principles that have been established by the Supreme Court decisions on campaign financing.
- Whenever the Court finds that a classification violates the First Amendment, it alternatively could rule that the classification violated equal protection. For example, if a city ordinance allowed distribution of leaflets by persons who favor the policies of the mayor, but prohibited distribution of leaflets on public streets by persons who opposed the mayor, the law could be stricken under First Amendment principles as the suppression of content that did not create an imminent danger of inciting lawless action. Alternatively, the statute could be held invalid under equal protection because the classification regarding who could use the sidewalks to engage in a fundamental constitutional right was not narrowly tailored to promote a compelling governmental interest. The equal protection argument does not make the analysis any easier, because the Court is really applying First Amendment principles, dressed up in equal protection garb.
- Whenever a statute allows some persons to speak or assemble, but not others, or grants a subsidy for some types of speech activities to a limited group of persons or entities, the statute at issue can be analyzed under equal protection as well as First Amendment principles. Generally, the government may classify persons for the receipt of benefits or burdens so long as there is a rational relationship between the classification and a legitimate end of government. However, if the law employs suspect criteria, such as race, to establish the classification, or if the law creates a classification that allocates the ability to exercise a fundamental constitutional right, then the Court will strictly scrutinize the basis for that classification.
- Another way that the government participates in political expression is to subsidize persons on the condition that they engage in, or refrain from engaging in, a certain type of speech or association. Commentators often say that this type of governmental activity is subject to the principle of no “unconstitutional conditions.” Some discussions make it appear that any conditions on granting of government benefits are invalid but that is not the case. In each instance, courts must examine the substance of the condition to determine whether it violates constitutional principles.
- When stated as a general principle, the standard requires courts to uphold the restriction of non-verbal speech so long as the speech regulation is narrowly tailored to promote an important or substantial governmental interest (within the constitutional power of government) that is unrelated to the suppression of expression.
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Chapter 11. Substantive Due Process 374 results (showing 5 best matches)
- Justice Iredell, on the other hand, made a plea for what we now call judicial restraint. He contended that—even if natural law ought to prevail—no valid legal theory authorized the courts to enforce the natural law over the will of the people as that will was reflected by the other (more democratic) branches of government. The people had limited the acts of Congress and the states with specific constitutional checks; if those specific checks were violated, the Court only would be enforcing democratic principles by declaring the legislation void. However, if the Court relied upon natural law to overturn legislative acts, it would assume powers not granted them under the Constitution and would disparage the democratic process. Iredell believed that the courts had no role in enforcing natural law principles because enforcement of such principles would result in the subservience of the people to the individual views of the Justices.
- declared the rescinding statute unconstitutional, the constitutional basis for the opinion is somewhat uncertain. Some language in the decision implies that the Georgia statute violated the contract clause because the grant was in the nature of a contract. Other language in the opinion, however, reflects Marshall’s uncertainty on whether he could rest the entire decision on that clause. He stated that the rescinding legislation violated not only general principles of society and government but also the concept of natural law.
- Post-1937 Decisions and the Blending of Substantive Due Process and Equal Protection.
- . Holmes believed that the majority was imposing its own theory of a proper economic policy on the state of New York by invalidating this law. His remark that “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” has become one of the most famous in constitutional history. Holmes believed the founding fathers created a Constitution “for people of fundamentally differing views,” and the Court should not void a law simply because it implements an economic policy that the Justices do not embrace. Holmes stated that the Court should invalidate a law only when “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”
- If a law impairs a fundamental constitutional right it will be subject to independent judicial review. If the law limits the ability of all persons to exercise a fundamental right, the Court will examine it under due process. If the law restricts the ability of a class of persons to exercise a fundamental right, the Court will examine it under equal protection.
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Title Page 3 results
- PRINCIPLES OF CONSTITUTIONAL LAW
- David C. Baum Professor of Law Emeritus, University of Illinois College of Law, Raymond and Mary Simon Chair in Constitutional Law, Emeritus Loyola University of Chicago School of Law
- Distinguished Professor of Jurisprudence Chapman University, The Dale E. Fowler School of Law
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Chapter 4. The Federal Commerce Power 180 results (showing 5 best matches)
- The previous subsection examined the Court’s decisions that established a limited, but significant, principle that prohibits the federal government from using the Commerce Clause to order the executive or legislative branches of state or local governments to take legislative, regulatory, or executive actions. We will now turn to the question of whether the Tenth Amendment or other federalism principles create doctrines that would provide states with a broader immunity from federal regulatory laws. We will first look at the brief flirtation the Court had with the idea of creating a principle and then concentrate on the Court’s current position, which denies state and local governments a broad constitutional immunity from most, if not all, federal legislation.
- National League of Cities
- did not establish any constitutional restrictions on the scope of federal power. The majority opinion simply established a “plain statement rule” as a principle of statutory construction. Under the , the Court will not interpret a federal statute in a manner that will interfere with essential state or local government functions unless Congress plainly states its intention to do so in the statute itself. The plain statement rules, as a canon of statutory construction, does not undercut
- the Court (by a 5 to 4 vote) ruled that the provision of the Brady Act violated the principles of federalism and the Tenth Amendment because it imposed administrative duties on state and local law enforcement officials to administer federal law. Justice Scalia’s majority opinion rested ’s ruling on three principles that the majority found to exist. First, the history of the Constitution, and its Amendments, provided no evidence that Congress has the authority to control the activities of state legislatures or executive legislative officials. Second, the federal system that the Constitution of 1787 created did not give the federal government the power to control state or local legislative or executive officers merely to implement federal law. Third, earlier decisions of the Court, including
- There are decisions in three subject areas—civil rights legislation, federal criminal laws concerning traditionally local crimes, and the regulation of activities of state governmental entities—that further refine general commerce clause principles. One must be aware of the approaches that the Court has taken in the review of the federal legislation in these areas in order to have a complete picture of current commerce clause analysis.
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Chapter 8. The Commerce Clause and Restrictions on State Regulatory Powers 165 results (showing 5 best matches)
- The following sections of this Chapter consider in more detail specific problem under negative commerce clause principles. The Court has not adopted separate constitutional standards for the different types of problems but these problem areas demonstrate how the Court has applied the principles to different fact situations.
- Judicial invalidation of state laws under the commerce clause does not reject or interfere with democratic processes in the same way as judicial invalidation of state laws under most other provisions of the Constitution. When the Court invalidates state legislation as violating due process, the Court is holding that the state lacks that power unless the people approve a Constitutional amendment. On the other hand, a constitutional amendment is not necessary to revise a state law that the Court holds violates the dormant commerce clause. When the Court concludes that a state law violates the dormant commerce clause, the Court is really interpreting the silence of Congress so Congress can effectively reverse that ruling by enacting federal legislation that approves that type of state law.
- The focus of this Chapter is on the question of what, if any, limitations the commerce clause places on state or local laws that relate to items or activities that have not been the subject of federal regulation. When the Supreme Court examines the compatibility of a state or local law with the commerce clause (on a matter over which Congress has not spoken), the Court may refer to its action as involving either “dormant commerce clause” principles or “negative commerce clause” principles. Sometimes the cases speak of the “negative implications” of the commerce clause. All these phrases embody the concept that the mere grant of a commerce power to Congress in Article I, § 8, by implication, places limits upon state or local laws regulating commerce. The commerce clause, on its own, serves to preempt some state laws.
- Justice Curtis raised the question of whether Congress could enact legislation adopting state laws by incorporation, but he indicated that such action was not constitutional. Justice Curtis, we now know, was in error in equating Congressional adoption of future laws by incorporation as indistinguishable from Congress redelegating, back to the states, the power over interstate commerce.
- The commerce clause balancing test gives deference to the government in two ways. First, it places the burden of proof on persons who challenge nondiscriminatory state laws under negative commerce clause principles. Second, the law must place a clearly excessive burden on interstate commerce. The state is not required to prove that the social good produced by its law is worth the incidental cost it places on interstate commerce. Rather, the person attacking the law must demonstrate the public good produced by the law is so slight that the burden on interstate commerce is truly excessive.
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Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures 223 results (showing 5 best matches)
- The majority opinion noted that the school had followed all of the rules that it had previously established for such cases. The opinion noted that the failure to follow previously established rules would invalidate federal administrative action as a matter of federal administrative law, but the opinion said that this rule was not a constitutional principle binding on the states. However, failure of an institution to follow its own established procedural rules might weigh in the determination of whether or not the institution treated an individual in such an arbitrary manner as to constitute a violation of due process.
- If he has no claim of entitlement under applicable law, there need be no process at all. State law is critical to the determination of whether or not a person has a “property” or “entitlement” interest in a benefit he receives from the government. The state cannot grant persons a right to a benefit that would be an “entitlement” for due process purposes and then, by statutory action or administrative ruling, give recipients fewer procedural safeguards for the termination of that benefit than would be required by a judicial analysis of due process principles. This is an important distinction. Local law provides the basis for the judiciary to determine whether an interest is protected by due process principles. If such an entitlement exists, the judiciary must determine independently whether the procedures that state law authorizes to terminate the entitlement meet the procedural requirements of due process. See
- Erosion of the “Right-Privilege” Distinction.
- It is most common for the government to affect the life, liberty or property interest of a great number of people through its legislative functions. When the legislature passes a law that affects a general class of persons, those persons have all received procedural due process—the legislative process. That is the only process that is due. Challenges to such laws must be based on their substantive compatibility with constitutional guarantees. Similarly, an administrative agency may make decisions that are of a legislative or general rulemaking character. When an agency promulgates generalized rules (as opposed to engaging in adjudicative functions), there is no constitutional right to a hearing for a specific individual. The Court has not required procedural safeguards of systemic fairness in this rulemaking or quasiadjudicative process beyond those established in the Administrative Procedure Act.
- The cases examined in this section involve the determination of when the component of the due process clause requires prison authorities to create a fair procedure for determining that an inmate should be subject to some loss of liberty or property. We examine the legitimacy of prison regulations that restrict the activities of all prisoners, or a specific class of prisoners, under substantive due process and equal protection principles, not procedural due process. The Court has ruled that prison regulations that restrict the exercise of fundamental constitutional rights by prisoners are valid so long as the prison regulation is reasonably related to a legitimate penological interest.
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Chapter 14. Equal Protection 903 results (showing 5 best matches)
- Separating the types of laws that relate to the fundamental constitutional right to travel from the types of laws that restrict transportation or travel of persons is not easy. A state law that restricts interstate movement of individuals or products, but neither restricts the ability of individuals to establish residency in the state nor treats newly arrived residents less favorably than longtime residents, should not be seen as an impairment of the fundamental right to travel. For example, a state license fee for trucks that travel through a state certainly restricts travel (in the sense of reducing the amount of transportation through a state), but it does not impair the right to travel. The Court has not subjected truck license fees to strict judicial scrutiny under the due process or equal protection clauses. If the state’s truck license fee discriminates against interstate commerce, the licensing fee would be invalidated under commerce clause principles.
- Today the equal protection clause of the Fourteenth Amendment mandates that no governmental entity shall burden persons, or deny a benefit to them, because they are members of a racial minority. After many years of indifference to the use of racial classifications, the Supreme Court, since 1954, enforced the constitutional principle of racial equality. Of course, there was no such principle prior to the Civil War when slavery existed with constitutional and Supreme Court sanction. Following that War, the states ratified the Thirteenth, Fourteenth and Fifteenth Amendments as part of an effort to grant constitutional equal rights to the freeman. Although, at the outset, it appeared as though the Supreme Court might strongly enforce the equal protection guarantee, the Court initially endorsed racial segregation of public facilities and functions, other than overt discrimination in jury selection, by adopting the concept of “separate but equal.”
- majority opinion has often been described as establishing a “trimester” analysis for determining what types of government regulations of abortion are constitutional. Yet, the Supreme Court seemed to abandon a strict trimester analysis within a few years after . By the late 1980s, it appeared that a majority of Justices were not following the trimester analytical structure set forth in the , a majority rejected the trimester analytical structure and replaced it with the “undue burden” test. Before looking at the precise test used by the Court in recent cases, we should note that all of the post- cases, including the partial-birth abortion cases, might be explained by the following principle. Even though the Court has never adopted this principle as a constitutional test, consideration of the principle may help the student understand many of the cases.
- (2) The Rejection of Separate but Equal and Establishment of Racial Equality as a Constitutional Principle
- If the promotion of morality is not a legitimate end of government, many laws would come into question. Many of our criminal laws, such as laws prohibiting the molestation of children by family members are easily justified in terms of moral principles that lie at the foundation of this country’s history and traditions. It is unlikely that the government would need to use an economic analysis demonstrating that molesting children [including severely handicapped children] causes some quantifiable social harm in order to uphold an anti-molestation law. Similarly, laws prohibiting animal owners from being cruel to their animals are simple to uphold on moral grounds. Laws prohibiting two adults from negotiating a loan at a high interest rate (usury laws) were traditionally based on moral principles. Should the Justices strike down such laws?
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Table of Contents 127 results (showing 5 best matches)
- (2) The Rejection of Separate but Equal and Establishment of Racial Equality as a Constitutional Principle
- § 3.4 The Separation of Powers Principle
- § 14.30 The Application of the One Person, One Vote Principle
- § 10.5 Which Individuals Are Protected by the Constitutional Guarantees?
- (c) Fundamental Constitutional Rights
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Chapter 7. The President and Congress: Selected Issues 142 results (showing 5 best matches)
- Justice Stevens argued that the law’s cancellation provisions amounted to the President amending “two Acts of Congress by repealing a portion of each,” but his partial repeals did not conform to the requirements of the presentment clause. When the President exercises his veto of the whole bill, he returns it to Congress “ the bill becomes law.” However, under the line item veto, the “statutory cancellation occurs the bill becomes law.” Stevens argued that the Court should treat the constitutional silence on the issue of a line item veto, as equivalent to an express constitutional prohibition.
- The idea of executive pardoning power was so well established in the common law that delegates to the Constitutional Convention adopted, with little debate, a clause granting the President the power of executive pardon. Article II § 2 of the Constitution gives the President “ … Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Case law has now developed the extent of the power to pardon far beyond that recognized at common law.
- we simply do not see how the President’s need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.
- [T]he duty [of the court] to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such
- In speaking of the scope of the President’s Constitutional pardoning power, the Court noted that “[i]t extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” A full pardon erases the act and its legal consequences so that “in the eye of the law the offender is as innocent as if he had never committed the offense” and restores the offender to “all his civil rights.”
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Chapter 12. State Action 78 results (showing 5 best matches)
- , the Court upheld a state constitutional amendment providing that state courts could not order mandatory assignment or transportation of students unless a federal court would do so to remedy a violation of the equal protection clause of the Fourteenth Amendment. Stressing that the amendment did not embody a racial classification, the majority opinion held that mere repeal of race-related legislation that was never required by the federal constitution does not violate equal protection. The state constitution did not allocate governmental or judicial power on the basis of a discriminatory principle, nor did it interfere with the school districts’ obligation under state law to take steps to desegregate and their freedom to adopt reassignment and busing plans to effectuate desegregation.
- When the government provides some direct, specialized subsidy to an entity that impairs fundamental constitutional rights there can be no question but that the government aid program violates the Constitution. Regardless of whether the private party has a right to act free of constitutional restraints, it is clear that the government has no authority to provide specialized benefits to those who effectively burden the exercise of constitutional rights.
- Actions of any governmental entity give rise to state action for the purposes of constitutional limitations. Any subdivision of a state, an administrative agency, a public school, an independent political subdivision, such as a city, represents government or state authority to a sufficient degree to invoke constitutional restrictions on its actions.
- Not every encouragement by state officials will result in a finding of state action if the challenged activities of private persons were themselves worthy of some constitutional deference. For example, the Court might not find sufficient state action if members of the majority race refused to invite minorities to their homes for private dinner parties simply because the sheriff said, in response to a reporter’s questions, that the city will enforce its trespass laws. The importance of private property and associational rights might require the Court to rule that there is no state action unless the racially discriminatory dinner invitations were solely the product of the official encouragement.
- If private persons are engaged in the exercise of governmental functions, their activities are subject to similar constitutional restrictions. The state cannot free itself from the limitations of the Constitution in the operation of its governmental functions merely by delegating certain functions to otherwise private individuals. The functions of government are called “public functions.” While this theory is easily justified, it is very difficult to determine what activities are public functions and subjected to constitutional limitations.
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Chapter 10. Individual Liberties—an Overview 79 results (showing 5 best matches)
- So long as a law does not restrict a fundamental constitutional right or employ a constitutionally significant classifying trait (such as alienage, illegitimacy, race, or sex) the law enjoys a presumption of constitutionality. Such a law will be upheld a long as the law, or a challenged classification within the law, has a rational relationship to a legitimate interest. Chapter 14 examines suspect classifications and fundamental rights.
- When the Supreme Court incorporates a provision of the Bill of Rights into the due process clause of the Fourteenth Amendment that provision applies to state and local governments in exactly the same way as it applies to the federal government. Thus, the restrictions on punishing material as “obscenity” are the same regardless of whether the Court is using the First Amendment to review a federal law or using the First Amendment as it is incorporated into the Fourteenth Amendment to review a state law. See §§ 16.34–16.37. The only exception to this principle is the Sixth Amendment right to a unanimous jury verdict. Because of an unusual division of the Justices in two cases decided in 1972, the Court allows states to have non-unanimous jury verdicts in criminal trials, even though the Sixth Amendment requires a unanimous verdict in federal criminal trials.
- The text of the Constitution contains three specific guarantees of individual rights that are rarely the subject of intensive constitutional study or litigation. Although we examine them elsewhere in this book, one should note at the outset that these guarantees exist and that they may apply differently to different governmental entities.
- Knowing which of the Bill of Rights the Court applies to the state is important when determining what the specific constitutional limitations on a state exists. Under their own terms, the Ninth and Tenth Amendments seem inapplicable to the states.
- For example, if a state legislature enacted a law that imposes the death penalty on any person found guilty of double-parking an automobile after a jury determination of guilt and appellate review, the law would comport with the restrictions of due process. The law should violate the substantive guarantees of the Eighth Amendment, as applied to the states by the Fourteenth Amendment. Indeed the law should also violate the substantive guarantee of the due process clause of the Fourteenth Amendment insofar as it was an irrational and arbitrary abuse of the government’s power to protect against traffic hazards. However, so long as the decision-making process imposed the burden of the death penalty was a fair one the Court would not strike the law on the basis of procedural due process.
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Chapter 17. Freedom of Religion 290 results (showing 5 best matches)
- Church of the Lukumi Babalu Aye.
- The Court has reviewed claims under the different clauses and has developed separate tests for determining whether a law violates either clause. While “neutrality” is still a central principle of both clauses, we have no single standard for determining what a religiously neutral act is. Instead, we must examine the neutrality or permissibility of a law in terms of the challenge to it.
- The cases and the history in the area are as complex as the modern income tax code. Let us examine the major cases and leave the complex history to Nowak & Rotunda’s one volume treatise on Constitutional Law or their six-volume Treatise on Constitutional Law.
- “The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions…. Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation’s essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the law, were pursued only with respect to conduct motivated by religious beliefs.”
- It was unclear whether the Georgia courts had applied a truly neutral rule of majority ownership or a neutral examination of property and contract terms to determine if majority rule controlled under the terms of the property contracts and deeds of the Vineville Church. Thus, the Court remanded the case to the state courts to determine if Georgia had a rule requiring deference to a majority of the local congregation or whether state law provided that the identity of the controlling local group was to be determined on the basis of religious principles. The latter position would require granting of automatic deference to the general church (PCUS) because otherwise the civil court would be involved in questions of religious doctrine rather than the following of neutral principles of contract and property law.
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Index 256 results (showing 5 best matches)
- Racial equality as a constitutional principle, §§ 14.7(d)(2), 14.9(a).
- Fundamental constitutional rights, §§ 13.4, 13.10.
- FUNDAMENTAL CONSTITUTIONAL RIGHTS
- See Due Process—Procedural Review; Due Process—Substantive Review; Equal Protection; Fundamental Constitutional Rights.
- Individuals protected by constitutional guarantees, § 10.5.
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Chapter 6. International Affairs 92 results (showing 5 best matches)
- Constitutional provisions confer the treaty making power specifically on the President and the Senate. The Constitution empowers the President “by and with the Advice and Consent of the Senate, to make treaties provided two thirds of the Senators present concur.” Other language expressly prohibits states from entering, in their own right, into treaties or alliances. The supremacy clause, Art. VI, cl. 2T, provides that treaties are the supreme law of the land and binding upon states. Federal judicial power, Art. III, § 2, cl. 1, extends to cases involving treaties made under the authority of the federal government. Another constitutional directive relevant to the treaty power is the necessary and proper clause, which enables Congress to enact all law needed to implement and enforce treaties.
- Black concluded that Constitutional provisions limit the acts of the President, the joint actions of the President and the Senate, and consequently they limit the treaty power. Given these limitations on the scope of the treaty making power, unless treaties are contrary to the Constitution, they are equal in status to congressional legislation, and, as expressly provided in the Supremacy Clause of Article VI, the supreme law of the land.
- The United States, in its capacity as a sovereign nation, must interact with other countries in the international realm, for the ability of a nation to conduct foreign relations is inherent in the concept of sovereignty. Because specific constitutional references to foreign relations are sparse, much of the foreign affairs power has evolved from constitutionally implied powers and, perhaps, from extra-constitutional sources.
- Theories Based on the President’s Role as “Commander-in-Chief” and His Duty to “Take Care” That “The Laws Be Faithfully Executed.”
- Black’s majority opinion found that no express or implied statutory provision authorized the President’s seizure order. The Court rejected the argument that the order is a valid exercise of the President’s Commander-in-Chief power. Black concluded that the executive power vested in the President by the Constitution, particularly his duty to “take Care that the Law be faithfully executed,” Art. II, § 3, refuted the idea that the chief executive can make law. Congress has “exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in the federal government. The “necessary and proper” clause applies to Congress, not to the executive branch.
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Chapter 5. Federal Power to Tax and Spend 31 results (showing 5 best matches)
- Congress could not require an individual to become a Roman Catholic as a condition of receiving a federal grant, because that condition would violate both the establishment and free exercise clauses of the First Amendment. Congress could not condition a grant of federal law enforcement money to states or cities on the basis that the state or city had to authorize police to engage in searches of houses that would violate the Fourth Amendment. The First and Fourth Amendments are independent constitutional restrictions on federal actions that would invalidate the conditions in those hypothetical federal spending laws.
- also reaffirmed a long-standing principle that a condition on a federal grant that might induce a state or local government to take certain actions it might not otherwise take is not an unconstitutional coercion of state or local government autonomy. Any other conclusion would “plunge the law in endless difficulties.”
- The constitutional power to spend is part of the federal power to tax in, Art. I, § 8, cl. 1. Congress has the power to spend for the general welfare. Congress cannot enact laws simply by stating that it is passing the law to promote the general welfare of people in the United States. However, Congress does have the power to tax, and then spend money for the general welfare; Congress can tax and spend for purposes that are not set forth in the Constitution.
- decision is good law only insofar as it defined a broad power of the federal government to spend for the general welfare. is not good law insofar as it found the Tenth Amendment is a restriction on the federal spending power. Today, the Court will not invalidate federal spending programs merely because they invade the so-called “police power” of the states, or influence state or local government activities. A federal spending law is constitutional so long as it arguably promotes the general welfare (a congressional judgment that the Court will not second-guess), and the federal spending law does not violate a specific check on the federal power, such as free speech.
- Federal tax laws still must comply with specific constitutional limitations on the federal power, such as those contained in Article I, § 9, or the Bill of Rights. Thus, for example, Congress enacted a federal wagering tax. It required gamblers to register and pay an occupational tax which imposed a real and appreciable risk of self-incrimination because state and federal authorities could use the information from that tax to enforce laws prohibiting gambling. The Court invalidated that tax in . Similarly, a federal tax imposed only on the income of persons who were members of the Roman Catholic faith would violate the free exercise clause of the First Amendment.
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Chapter 15. Congressional Enforcement of Civil Rights 84 results (showing 5 best matches)
- This Chapter provides an overview of the power granted to Congress to enforce Amendments 13, 14 and 15, which are commonly known as the Civil War Amendments. For an examination of additional cases on this topic, the reader should consult J. Nowak & R. Rotunda,
- The Court explained that laws enacted pursuant to § 5 must be for the purpose of remedying or preventing constitutional violations. However, the TRCA did not enforce property rights.
- Nevada Department of Human Resources v. Hibbs
- City of Boerne
- The law was also not justified on the basis that it protected procedural due process, because the state had already provided a fair judicial remedy for a takings or conversion claim. The federal statute merely offered a different procedure, but the state already offered a procedure was adequate for Constitutional purposes.
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Chapter 9. Article IV and VI Issues: Preemption and Comity 50 results (showing 5 best matches)
- , the Tenth Amendment, and the concept of federalism and Tenth Amendment principles, as explained in modern cases such as prohibit federal legislation that orders a state to take legislative action [which a state would have to do if it were to change the location of the state capital]. The state law regarding the location of the state capital would remain in force, despite the conflict with the federal statute. A state statute that is preempted by federal law will be invalid under the supremacy clause if, but only if, the federal law [which preempts the state law] does not violate any limit on the federal power.
- All rights directly protected by the Constitution, such as First Amendment rights, or other constitutional rights that the Court has ruled are fundamental for the purposes of due process and equal protection analysis, constitute privileges and immunities of citizenship. Thus, state or municipal laws that make local residency a requirement for the exercise of such rights are subject to the restraints of Article IV.
- If a court decides that a federal law preempts a state law, then the state law will be invalid, unless the federal law itself violates the Constitution. Let us use a rather absurd, but easy to understand example. The State of Illinois has its capitol in the City of Springfield, Illinois. Let us assume that Chicago residents influence the U.S. Congress to pass a law ordering the State of Illinois to switch its capital from Springfield, Illinois to the most populous city in the state (Chicago), and that the President signs this federal law. The federal law would preempt the state law regarding the location of the Illinois capitol so long as the federal law was itself valid. However, the federal statute ordering the state to locate its capital in a certain place would be unconstitutional for at least two reasons.
- When you see a problem where a federal law and a state law relate to the same subject matter, you must consider the preemption issue. You also must anticipate both types of possible preemption rulings: the possibility that a court will find that the federal law preempts the state law; and the possibility that the court will rule that the federal law does not preempt state law.
- If Congressional intent is not clear from the language of the statute—that is, if Congress did not explicitly provide that federal law does, or does not, preempt state law—then Congress’ intention may be clear from the pervasiveness of the federal scheme, the need for uniformity, or the danger of conflict between the enforcement of state laws and the administration of federal programs, of the state law “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Absent persuasive reasons evidencing Congressional intent favoring preemption, the Court will not presume the invalidity of state regulations.
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Chapter 3. Sources of National Authority 33 results (showing 5 best matches)
- The great bulk of the constitutional cases dealing with Congress’ power to enact laws focus on only a few clauses in the Constitution, particularly the commerce clause and § 5 of the Fourteenth Amendment. For that reason, this concise hornbook examines only those sources of federal power. Our hornbook, and our multi-volume Treatise have expanded treatment of the topics covered here as well as other topics such as, the admiralty power (both the ability of Congress to create substantive rules of admiralty and to create federal court jurisdiction regarding admiralty cases); the admission of states to the Union (including the “equal footing” doctrine regarding the equality of the states); the bankruptcy power; the federal power over copyrights and patents; the power to control the currency; federal “common law”; litigation between the states; the postal power; and the property power (including the Article I property power, the status of the District of Columbia, and the Article IV...
- Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
- Stevens, J., for the Court, held that the state constitutional amendment was unconstitutional because it was not a permissible exercise of the state’s power to procedurally regulate the time, place, and manner of holding state elections for federal offices. There were no dissents.
- Marshall derived implied federal powers from the principle that every legislature must have the appropriate means to carry out its powers. Because the framers intended the nation to endure, the federal government had to have the normal discretionary powers of a sovereign so that Congress could choose how to best effectuate national goals.
- § 3.4 The Separation of Powers Principle
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Advisory Board 9 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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Table of Cases 156 results (showing 5 best matches)
- Holder v. Humanitarian Law Project.................................705
- Law Students Civil Rights Research Council, Inc. v. Wadmond............................792
- Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc......................810
- Board of Regents of the University of Wisconsin System v. Southworth........786
- Board of Trustees of the State University of New York v. Fox......................................738
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Copyright Page 2 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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Summary of Contents 8 results (showing 5 best matches)
- Publication Date: June 3rd, 2016
- ISBN: 9781628101195
- Subject: Constitutional Law
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: The authors, recognized authorities for over a third of a century, provide succinct and authoritative coverage of the major principles in modern American constitutional law. This book is a shortened version based on the authors' hornbook (popular with students) and their six-volume treatise (popular with judges, practitioners, and scholars). It analyzes the constitutional issues studied today, and discusses the origins of judicial review and federal jurisdiction, federal commerce and spending powers, state powers in light of the dormant Commerce Clause, the war power, freedom of speech and religion, equal protection, due process, and other important individual rights and liberties. This book is completely up to date and includes all major Supreme Court cases through February, 2016, including the ground breaking First Amendment decisions of the Roberts' Court.
