Constitutional Analysis in a Nutshell
Author:
Baker, Thomas E.
Edition:
3rd
Copyright Date:
2019
20 chapters
have results for Constitutional Analysis in a Nutshell
Chapter 3. Constitutional Analysis 92 results (showing 5 best matches)
- Finally, the balancing metaphor never actually comports with its famous origins—the blindfolded female figure of Justice holding a pair of scales and a sword. It masks a conclusion, as revealingly stated above, that the judge merely has a subjective personal preference for one side or the other of “the government-versus-the-individual-lawsuit.” For balancing to be objective, rational, and empirically authentic it would have to be scientifically quantifiable in a wholly impossible way. For example, the judge would have to explain the metrics by writing an opinion that said: “The value of the legislature’s policy in this case is 10 constitutional and the value of the individual’s right is only 6 constitutional , so the government must prevail” or alternatively “The value of the individual right in this case is 10 constitutional , so the individual must prevail.” Obviously, there is no such thing as a “constitutional ,” an objective unit of measure of the constitutional value of a...
- To better understand what American constitutional analysis Chapter 7 (Constitutional Theory). Here a brief discursion into comparative constitutional law will be instructive. American constitutional analysis is not the kind of extreme balancing analysis performed by courts outside the United States. Human rights adjudication in Europe, Canada, India, South Africa, and elsewhere employs the principle of proportionality.
- To aid in understanding the nature of the fundamental distinction between individual liberty and the exercise of government power and to provide us with a foundation for the rest of constitutional analysis, let us develop a simple imaginary concept that will be used throughout this book—the constitutional diagram.
- Do not be deceived by the metaphor of balancing. Go back to the constitutional analysis diagram introduced in this Chapter. The U.S. Constitution draws the line between government power and individual liberty or freedom. The Constitution delegates government powers. The Constitution protects individual rights. The Supreme Court makes a constitutional value judgment whether the government’s policy being challenged is on the government power side of the line—and therefore Chapter 7, § 4 (How to Interpret the Constitution?). The constitutional analysis is a zero-sum game: a statute is either constitutional or unconstitutional. A statute cannot be just a little bit unconstitutional any more than a woman can be just a little bit pregnant.
- Virtually all constitutional issues involving individual liberty are subject to this simple and elegant representation, although the actual decision in many cases is a difficult and complex one that is not easily predicted by the constitutional diagram. The purpose of this simplified analysis is not to suggest that constitutional decision-making is simple and easy. Rather, the purpose of the constitutional diagram is to better understand the essential nature of constitutional decision-making, , what constitutional interests are being balanced and how the balancing affects those interests.
- Open Chapter
Chapter 6. Structure of the Constitution 99 results (showing 5 best matches)
- In Chapter 3 (Constitutional Analysis), this Nutshell introduced a way of thinking about the Constitution that focuses on the primary relationship of the government with its citizens illustrated by the constitutional diagram. In Chapter 4 (Constitutional Liberty), we examined that relationship from the side of the individual. In Chapter 5 (Government Power), we examined that relationship from the side of the government. Having thus completed our examination of both sides of the constitutional diagram, now in this Chapter we shift our focus to the complex interrelationships among government institutions under the Constitution.
- Chapter 2 (Judicial Review) provides a rather detailed account of the Third Branch within the separated powers. Some of that discussion bears repeating here to allow the reader to more fully appreciate the separation of the Third Branch
- The strident dissent, penned by Justice Thomas, took the majority to task for its constitutional analysis. The dissent interpreted the Constitution to express a different Tenth Amendment default: if the text is silent, then there is no bar to action either by the states or by the people. The federal government has only limited and enumerated powers. Each state was delegated the remainder of government powers not retained by the people. It was the people—not the states—that did the reserving and the retaining of powers to the states and to themselves, respectively. The dissent interpreted the Qualifications Clauses to establish only the minimum qualifications for election to Congress. The states thus have reserved powers—from the people—to add other qualifications unless the people of that state have retained the right to themselves in their state constitution. The people in the other states thus had no federal constitutional ground to complain about the Arkansas provision being...
- The Constitution thus sets in motion the three interrelated branches of the national government in a complex dynamic with the state governments. The three branches do not exist in splendid isolation. Rather, they function together in the same government matrix of separated powers. The national government and the states necessarily contemplate and complement each other in our federalism. The Framers of the Constitution designed a clockwork mechanism, an elaborate yet elegant machinery of government that would go of itself, but a government that would act predictably and according to their plan to secure liberty. They were self-consciously and deliberately practicing the “science of politics.” . They believed that there were principles of government—not unlike the principles of the natural sciences such as gravity—that were dimly perceived in ancient republics, principles that they could discover and implement in the Constitution. Indeed, James Madison understood federalism and...
- The Supreme Court commented that the constitutional principle of separation of powers is not violated “by mere anomaly or innovation.” . at 385. Congress would have transgressed the separation of powers by placing the Commission in the Judicial Branch only if the Commission’s powers expanded the powers of the judiciary beyond constitutional bounds or undermined the integrity of the Judicial Branch. Neither concern applied. The Commission’s powers were not judicial, so it could be made accountable to Congress and its members could be made subject to the President’s limited removal power. Judges were allowed to accept the extra-judicial duty to serve as commissioners. The Commission was not a court, so non-judges could also serve. In short, Congress was allowed to delegate to an expert body located in the Judicial Branch the task of formulating and monitoring the Sentencing Guidelines. The majority gave the Guidelines a constitutional “thumbs up.”
- Open Chapter
Chapter 4. Constitutional Liberty 114 results (showing 5 best matches)
- Finally, from the perspective of this Nutshell, the analytical fallacy in the definition of obscenity is antecedent and fundamental. The Supreme Court’s obscenity standard puts the questions in reverse. The Supreme Court majority first assumes that the category of obscene speech is unprotected speech and then the majority attempts to define what is obscene under a juror-determined community standard. But labeling a publication “obscene” is a conclusion, not constitutional analysis. The Supreme Court seems to be trying to avoid the reality that every incident of regulating obscenity raises a constitutional issue under the First Amendment freedoms of speech and the press. The constitutionality of the regulation must be faced in those terms. The constitutional analysis cannot be avoided. Labeling something “obscene” can be justified only as the statement of the result after that essential constitutional analysis has been undertaken and performed. Under the I-R-A-C ...Rule-Analysis-...
- The refutation of this constitutional question seems to be suggested in its restatement to ask: whether Congress can pass a statute to make some governmental action constitutional after the Supreme Court has ruled it to be unconstitutional or whether Congress can pass a statute to make some governmental action unconstitutional after the Supreme Court has ruled it to be constitutional? But to master constitutional analysis one must become accustomed to analyzing the obvious.
- The most basic question of constitutional law is whether the challenged governmental action deprives the individual of constitutional liberty and thus lies beyond the constitutional powers of government. Chapter 3 (Constitutional Analysis). Does the challenged action fall on the liberty side [1] or on the government power side [2] of the constitutional line? The constitutional analysis of this irreducible question is depicted in our basic constitutional diagram:
- One other facet of the congressional implementation of constitutional liberty deserves mention. Here we depart from our general constitutional analysis that defines constitutional liberty in opposition to government power. That constitutional analysis is fundamental and sound for the wide range of constitutional liberties. Deprivations of federal rights “under color of state law” are redressable under , which creates a civil rights cause of action, but that statutory cause of action does not reach purely private defendants not acting on behalf of the state. The rights guaranteed under the Fourteenth Amendment thus are guaranteed against state violation—against “state action”—but the wrongful acts of purely private individuals unsupported by any state involvement do not make out a constitutional deprivation of the guarantees of privileges or immunities, due process of law, or the equal protection of the laws. ...A § 3 (State Action). There are exceptions, however, that fit into our...
- , that provide rules for decisions. Interpreting the meaning of the Constitution produces these legal constructions. The text of the Constitution is constant, but constitutional doctrines accumulate and develop and evolve over time.
- Open Chapter
Chapter 7. Constitutional Theory 120 results (showing 5 best matches)
- . The Constitution is something different and apart from constitutional law. A good lawyer understands this distinction. This is illustrated in a backwards way by the perhaps apocryphal story told about a leading constitutional law professor at Harvard at the beginning of the 20th century, Thomas Reed Powell, who was fond of telling his students, “Never, ever read the Constitution because it will only serve to confuse you.” Most teachers and students of constitutional law spend most of their time together analyzing Supreme Court opinions and talking about Court precedents or doctrines, , past interpretations of the Constitution that seem to promise coherent and consistent answers in later cases. Indeed, maybe it is a good idea in this Chapter on Constitutional Theory to remind the reader once again that there is still plenty of constitutional law that must be learned and mastered. Indeed, there are so many rules and doctrines that there is a market for student aids like Nutshells....
- borrowed from the blindfolded goddess of justice holding a set of scales to weigh the opposing claims. Balancing two constitutional values in conflict, as when the Court balances an individual’s right to associate against a group’s right not to associate with the individual, is one form. Chapter 4, § 5 (Competing Constitutional Liberties). Another form of the metaphor is to balance individual liberty versus government power, which is the primary issue for constitutional analysis depicted in the constitutional diagram. Chapter 3 (Constitutional Analysis). But balancing can amount to little more than a conclusion or a stated preference: “we find in favor of the individual and against the government” does not reveal much analysis. It is an intellectual sleight of hand to divert our attention. Taking the metaphor literally, we would carefully assay the individual liberty and the government power and assign each a calibrated value in order to balance them: “the individual liberty is...
- The purpose of the use of our constitutional diagram in our constitutional analysis has been to develop a better understanding of the questions and a mastery of the answers for constitutional law issues. Our constitutional analysis has become second nature by now. For the most part—and most importantly—constitutional analysis involves the tension between individual liberty versus government power. Chapter 4 (Constitutional Liberty). Individual liberty and government power exist in a zero-sum ratio, more liberty for the individual means less power for the government, and less liberty for the individual means more power for the government. The Judicial Branch stands as the great guardian of our civil liberties and civil rights by exercising its power of judicial review to interpret the Constitution in the course of deciding cases or controversies. The Supreme Court occupies the apex of the Third Branch and performs the role of ultimate and final constitutional court.
- A brief verbal summary of our constitutional analysis fits into this last Chapter on constitutional theory. Chapter 3 (Constitutional Analysis). Imagine you are in the constitutional law examination or writing a seminar paper. Imagine you are working on your law review note. Imagine you are taking the bar exam. Imagine that you have graduated and passed the bar, and you now are a practicing attorney representing a client and presenting a case in court. You are going to begin your brief or your oral argument: “Mr. Chief Justice and may it please the Court, now you see we start off with this great big box that contains all the governmental power there is. Then we saw off a large portion of that box—take those powers away from the government—and those are by definition individual constitutional liberties * * *” and so on!
- This Chapter provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the literature. However, these references should not be considered any kind of endorsement of the views expressed. Indeed, a close reading of this Chapter reveals how the constitutional commentary is profoundly contradictory and deeply disputatious. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. These theories are neither self-contained nor static. Rather, they overlap over time and they are evolving in different directions. They are plastic and therefore highly contestable and greatly contested. For example, Scott D. Gerber, at Ohio Northern, has demonstrated that all the prevailing methods of constitutional interpretation can be...
- Open Chapter
Chapter 5. Government Powers 94 results (showing 5 best matches)
- In Chapter 3, you were introduced to the constitutional diagram that divided individual liberty from government power. In Chapter 4, the emphasis was on Constitutional Liberty on the left side of that constitutional diagram. The subject of this Chapter is Government Powers on the right side of the constitutional diagram. This dichotomy between individual liberty and government power is the self-disciplining insight of this Nutshell that will help you become a master of the study of constitutional law.
- This brief summary oversimplifies a rather complex area of constitutional law. But for present purposes it is enough to note the similarities and the differences in the constitutional analysis under the dormant or negative Commerce Clause of state taxes and state regulations. A discriminatory state tax on interstate commerce, like a discriminatory state regulation, is very likely to be struck down as a violation of the dormant or negative Commerce Clause. A state tax is analyzed under the four-part test summarized in this Section, not under the two-level balancing analysis applicable to state regulations that was summarized earlier in this Chapter in the discussion of the Dormant or Negative Commerce Power. The doctrinal test for taxes is slightly different from the doctrinal test for regulations, although there is a strong resemblance. Finally, congressional approval will save a state tax that otherwise would be invalid under the dormant or negative Commerce Clause, just as... ...a...
- For purposes of our constitutional analysis, the basic content of the residual state government powers in our constitutional diagram follows upon our two fundamental inquiries. Chapter 3 (Constitutional Analysis). First, we take away the individual liberty and freedoms guaranteed by the Constitution. That balance of individual liberty versus government power was the subject of the last Chapter. Chapter 4 (Constitutional Liberty). Second, we take away the enumerated and delegated powers of the federal government, a national government limited in its objects but supreme within its sphere, and consequently we divest the states of some of their original powers. It is this balance between federal power and state power that is the subject of this Chapter on Government Powers. What is left in the state government power portion of our constitutional diagram is the state police power as modulated by the Constitution:
- In our constitutional analysis, therefore, for a treaty to be valid we must answer the liberty versus government power question in favor of government power. The vertical line between individual liberty and government power remains constant. Turning then to the subject of this Chapter, however, the federal treaty power can be exercised to increase federal powers and to diminish state powers, , the horizontal line separating federal and state powers can be moved. This can be drawn in our constitutional diagram:
- Many state constitutions contain state bills of rights and protections of individual rights that go beyond the rights protected in the United States Constitution. Sometimes these state provisions guarantee wholly new and completely different protections that have no federal counterpart, like a state constitutional right to a free public education. Sometimes these state provisions resemble their federal counterpart but are interpreted more broadly, like a state free-speech provision that is interpreted by the state supreme court to protect obscene material, , material that is not protected under the First and Fourteenth Amendments to the United States Constitution. These state constitutional provisions are limits on the exercise of the state police power, but for our purposes they are not part of our study of constitutional analysis under the United States Constitution.
- Open Chapter
Appendix A. Leading Case Outline of Constitutional Liberty 175 results (showing 5 best matches)
- Constitutional liberty and government power usually exist in a zero-sum ratio: more government power results in less individual liberty and more individual liberty results in less government power. This is the perpetual dilemma of our constitutionalism: how to empower the government sufficiently to perform its essential tasks, and, at the same time, how to limit it from overreaching the individual. This is the constitutional analysis of the constitutional diagram. Chapter 3 (Constitutional Analysis).
- to define and protect individual liberty against government power. The constitutional diagram depicts this dynamic balance of ordered liberty. This Appendix keeps the promise made in Chapter 4, § 2 (Constitutional Law Doctrines) to provide a leading case outline of Supreme Court precedents dealing with constitutional liberty. The holdings and doctrines highlighted here define civil rights and civil liberties under the Constitution—these cases give content and meaning to the individual liberty side of our constitutional diagram. The reader should be reminded that the theme of individual liberty also played a prominent role in Chapter 2 (Judicial Review), Chapter 3 (Constitutional Analysis) and Chapter 4 (Constitutional Liberty). Those chapters and this Appendix correspond to the topics in the typical “Constitutional Law II” law school course that emphasizes individual rights
- . Substantive due process has a fundamental rights version that calls for the strong form of judicial review. If a statute burdens the exercise of a fundamental constitutional right, like the provisions in the Bill of Rights that have been incorporated, then the due process analysis requires that the statute be narrowly-tailored to promote a compelling government interest. This strong form of substantive due process review was first associated with a non-textual right of privacy, derived from the penumbras and emanations of the Bill of Rights. Under this analysis, the Court upheld the constitutional right to obtain information and access to contraceptive devices and techniques. . Eventually, the Court would re-think this justification and relocate the textual anchor for the right of privacy in the Due Process Clause protection of liberty in the Fourteenth Amendment. This is the basis for the constitutional protection of personal autonomy to obtain an abortion.
- State action is a threshold issue, supposedly determined without looking ahead at the merits of the constitutional claim. When a state legislature passes a law, when a Governor enforces a statute, or when a state court issues an order, those are obvious examples of state action and the constitutional analysis moves straight to the merits to balance individual liberty against government power
- In , the Court provided a two-step sequence of questions to sort through the constitutional analysis: (1) is the plaintiff a public official or a public figure? and (2) is the speech itself a matter of public concern? If the answer to both questions is affirmative, then constitutional malice and falsity must be proven. If the answer to the first question is negative but the answer to the second question is affirmative, then at least negligence and falsity must be proven. If the answer to both questions is negative, then state tort law is controlling.
- Open Chapter
Table of Authorities xli 90 results (showing 5 best matches)
- Baker, Thomas E., Constitutional Theory in a Nutshell, 13 Wm. & Mary Bill of Rts. J. 57 (2004), 339
- Faigman, David L., Constitutional Fictions: A Unified Theory of Constitutional Facts (2008), 346
- Balkin, Jack M., Constitutional Redemption: Political Faith in an Unjust World (2011), 351
- Sager, Lawrence G., Justice in Plainclothes: A Theory of American Constitutional Practice (2006), 391
- Epstein, Richard A., A Common Lawyer Looks at Constitutional Interpretation, 72 B.U. L. Rev. 699 (1992), 381
- Open Chapter
Chapter 1. American Constitutionalism 111 results (showing 5 best matches)
- In all this “rights talk,” the Supreme Court must always be mindful of the Madisonian dilemma. Our Constitution demonstrates a profound bias against claims of absoluteness from either side, the individual or the government. It is the genius of American constitutionalism that neither government powers nor individual rights should ever be allowed to reach their logical extreme. Rights and powers coexist in balance and, properly understood, are always in tension. Thus, the constitutional relationship between the individual and the government can be described as a zero-sum game. That is the of this book. That is this Nutshell in a nutshell.
- How is it possible to make government more powerful without making those subject to its authority less free? This is the fundamental paradox at the bottom of all constitutional analysis—the irreducible question of American constitutionalism. This paradox explains, in large part, how and why constitutional law issues are so open-ended, forever being reconsidered and reargued, never being fully and finally settled. The relationship between individual liberty and government power, by theoretical and practical necessity, is subtle and complex and is constantly evolving. Internalizing this paradox will go a long way towards mastering constitutional analysis.
- This Chapter provides some background on the Constitution and the foundational principles of American constitutionalism. Read it for the “big picture.” Constitutional analysis ought to and does begin with the text. Every student and every interpreter of the Constitution is a documentarian. The complete Constitution appears in the back of this book. Appendix B. Always start with the text. But our study of constitutional law requires some appreciation for the historical and philosophical context of the Constitution.
- Manifestly, no one is in a position to give assurance that the proposed act will withstand constitutional tests. But the situation is so urgent and the benefits of the legislation so evident that all doubts should be resolved in favor of the bill, leaving to the courts, in an orderly fashion, the ultimate question of constitutionality.
- Historic later amendments and the Supreme Court’s power of interpretation changed all this. The Fourteenth Amendment was ratified in 1868, in the aftermath of the constitutional paroxysm of the Civil War. Along with the Thirteenth Amendment, which abolished slavery and forever banished that witch of the 1787 christening, and the Fifteenth Amendment, which guaranteed the freedmen the franchise, the Fourteenth Amendment was addressed directly to the states. For the longest time, however, its constitutional potential went unrealized because the earliest Supreme Court interpretations of the Fourteenth Amendment were begrudgingly narrow. Tentatively at first, later more insistently during the Warren Court years (1953–69), in case after case the Supreme Court “interpreted” the guarantee of “liberty” in the Fourteenth Amendment Due Process Clause to include almost all of the particulars of the Bill of Rights. This development is known in constitutional circles as the “incorporation... ...a...
- Open Chapter
Copyright Page 5 results
- Nutshell Series, In a Nutshell
- 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
- © 2003 By West, a Thomson business
- © 2019 LEG, Inc. d/b/a West Academic
- Open Chapter
Foreword to the Third Edition vii 9 results (showing 5 best matches)
- Chapter 7 is a long term contribution to your liberal education, in addition to being a study aid for your constitutional law course in the immediate short term. It takes a theory to beat a theory and if everyone else has their own theory of the Constitution, then you should too. Your con law prof has his or her own theory and this chapter will help you figure out what it is. If you want to wander deeper into this intellectual rabbit hole, check out:
- , to define and protect individual liberty against government power. Chapter 1 provides a summary of the foundational principles of American constitutionalism. Chapter 2 explains the importance and function of the American invention of judicial review. Chapter 3 introduces and explains the constitutional diagram that is the central feature of this book. Chapter 4 chronicles civil rights and civil liberties protected by the Constitution. Appendix A (Leading Case Outline of Constitutional Liberty) provides granular detail of those civil rights and liberties in a leading case outline of Supreme Court precedents. The holdings and doctrines highlighted there give content and meaning to individual liberty in our constitutional diagram. Those four chapters along with Appendix A roughly correspond to the topics in the typical “Constitutional Law II” law school course.
- This book is written for the intelligent novice. Again with this new edition, my goal is to help law students and lawyers better understand constitutional law. But I hope this book also will be read by the curious general reader, , anyone who wants to better understand the U.S. Constitution and the role and function of the Supreme Court of the United States. I will describe in careful detail how our rights and liberties are protected by the Constitution and how the Constitution reconciles those fundamental rights with fundamental government powers. Indeed, the technique of this book is to “draw a picture”—literally and figuratively—of our constitutional system. Chapter 3 introduces and explains this constitutional diagram.
- As will be further elaborated in Chapter 4, the Constitution performs three other necessary functions, besides defining and preserving individual liberty: to establish the national government; to control the relationship between the national government and the states; and to enable the government to perpetuate itself. The leading Supreme Court decisions about establishing the national government and controlling the relationship between the national government and the states are discussed in considerable detail and depth in Chapter 5 (Government Powers) and Chapter 6 (Structure of the Constitution). The perpetuation-of-government function is the subject of Chapter 1, § 11 (Amendments). Those discussions roughly correspond to the typical “Constitutional Law I” law school course. (Students enrolled in a stand-alone “Constitutional Law” course or some advanced elective course are obliged to match topics covered in their particular course with the relevant chapters in the Outline of...
- The pictures I draw to explain constitutional law are derived from the first edition work of the late Jerre S. Williams, scholar and jurist. His “Williams diagram” will be referred to simply as our “constitutional diagram” in this Third Edition but my debt to his concept is acknowledged—along with named others—in the Foreword to the Second Edition which follows. For this Third Edition, special thanks goes to friends and colleagues who looked over portions of this Third Edition with a mind to save me from howlers: Lawrence Alexander, Warren Distinguished Professor of Law, University of San Diego School of Law; Erwin Chemerinsky, Dean, University of California Berkeley School of Law; and Ronald D. Rotunda, Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law (
- Open Chapter
Chapter 2. Judicial Review 79 results (showing 5 best matches)
- But each and every case has followed a prescribed jurisdictional and procedural path to that moment. Each and every case tells a story about real flesh-and-blood people, a genuine case or controversy over the wrongs they have suffered and the rights they seek to remedy. What the Supreme Court decides will determine the rule in their particular case and settle the general rule of law that is the Constitution for the entire nation. In the next Chapter we will turn our attention to the framework of constitutional analysis that provides the context for resolving these constitutional issues.
- Constitutional issues arise in cases in federal and state trial courts throughout the country. Once a case involving a constitutional issue begins, it follows the established procedures of that court system for all cases. Typically, there is trial and a final judgment followed by one appeal as of right, with written briefs and an oral argument about the law before a panel of judges sitting on an intermediate court of appeals. There is no guarantee, however, that the constitutional issue will be decided by the Supreme Court of the United States. Our highest Court has a limited jurisdiction and in most instances the discretion whether to hear and decide a case.
- Third, one of the most significant of the prudential rules of self-restraint in the exercise of judicial review obliges the Supreme Court, in effect, to interpret the congressional statute being challenged in a way that makes it constitutional and valid. Faced with a statute that is ambiguous, as is often the case, the deciding court must choose between a broader interpretation that would make it unconstitutional and invalid versus a narrower interpretation that would render it constitutional and valid. It is obviously better for the administration of justice to choose the narrower interpretation when it is reasonable and appropriate. The Court should not go out of its way to declare statutes unconstitutional. It should not assume that the Congress intended to pass a statute that would be unconstitutional rather than one that would pass constitutional muster. Indeed, the assumption is just the opposite: whenever an otherwise acceptable construction of a statute would raise serious
- Second, the Court will not consider a constitutional issue if the case has been disposed of in the lower court on some other non-constitutional ground that is sufficient to justify the final decision. The non-constitutional ground can be procedural or substantive. The non-constitutional ground must be independent and adequate. It must be independent of the federal constitutional ground and not be entwined with it either explicitly or implicitly. It must be adequate in the sense of being , of sufficient legal significance to decide the case and to justify the Supreme Court’s declination to reach the federal constitutional issue.
- The doctrine of standing in the party raising the constitutional issue basically requires that the party have an actual stake in the outcome of the case. . Return again to the simple situation of a requirement in a municipal ordinance that a permit must be obtained to hold a meeting in a public park. Suppose we have a well-meaning citizen who believes that meetings should be allowed in public parks without restriction. But this citizen is not planning a meeting in the public park, has never attended a meeting in the public park, and indeed never has used or intends to use that public park for any purpose whatsoever. This citizen is simply someone who believes that the ordinance is unconstitutional in the abstract. The citizen has no “standing” to raise the constitutional issue concerning the granting of permits for meetings in that public park. The citizen has shown no reason why he or she should be allowed to raise this question. It is simply an abstract question to this particular...
- Open Chapter
Foreword to the Second Edition xiii 12 results (showing 5 best matches)
- I have been teaching this subject for more than twenty years at three different law schools. The First Edition of this book helped me as a beginning teacher. A generation of law students relied on it. I undertook this Second Edition to preserve and extend its promise for the next generation. It provides a simple but elegant framework for understanding constitutional analysis.
- English legal historian Frederic W. Maitland’s famous characterization of the common law applies in kind to our subject: constitutional law is “tough law.” It is tough to master—tough to teach and tough to learn. This little book will help in our common undertaking to achieve a mastery of constitutional law.
- Without further attribution, I acknowledge the intellectual debt of borrowing heavily from three text books for the organization, the themes, and some of the content of Chapter 7 (Constitutional Theory):
- The Appendix presents a “Leading Case Outline of Constitutional Liberty.” This is not designed as a general text or a detailed exposition on the subject. But in order to develop an analytical framework and a deeper understanding, a basic outline of the case law is a needed and useful reference.
- I did not know him well, but he and his First Edition have always been an important part of my constitutional law course. As long as I have been teaching, I have been recommending this book to my students and each Spring Semester I stand at a blackboard and draw what might be called “Williams diagrams”—the constitutional law equivalents of those Venn diagrams we all remember from mathematics classes of overlapping circles depicting number sets relationally. The Williams diagrams always seem to help me explain to my students and always seem to help them to understand the deep structure and subtle nuances of constitutional law.
- Open Chapter
Outline 14 results (showing 5 best matches)
Appendix B. Constitution of the United States of America 97 results (showing 5 best matches)
- The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from...
- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
- The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on ...House shall in like...
- No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Open Chapter
Index 601 56 results (showing 5 best matches)
Floating Part 2 results
- In all governments there is a perpetual intestine struggle, open or secret, between AUTHORITY and LIBERTY; and neither of them can ever absolutely prevail in the contest. A great sacrifice of liberty must necessarily be made in every government; yet even the authority, which confines liberty, can never, and perhaps ought never, in any constitution, to become quite entire and uncontroulable. * * * In this sense, it must be owned, that liberty is the perfection of civil society; but still authority must be acknowledged essential to its very existence * * *.
- It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
- Open Chapter
Table of Cases xxiii 10 results (showing 5 best matches)
- Publication Date: December 28th, 2018
- ISBN: 9781640202085
- Subject: Constitutional Law
- Series: Nutshells
- Type: Overviews
- Description: This authoritative text provides a framework for understanding individual liberty and governmental power and the institutional role played by the Supreme Court of the United States. Coverage in this new improved edition includes all the major topics of the subject: judicial review: commerce clause and state powers: federalism: separation of powers: congressional and executive powers: and individual civil rights and civil liberties. Includes diagrams that aid understanding of the fundamentals of our system of government. Extremely accessible and comprehensive — this is a paperback course in American Constitutional Law.
