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59 Cards in this Set
- Front
- Back
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US constitution does three things for us
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1. Establishes the structure of our government and or legal system
2. Creates three branches of government & sets forth their powers and duties 3. Sets forth relationship between federal and state government |
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enumerated powers
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powers given specifically to federal government by the constitution
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Powers that aren’t reserved to the state ...
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are specifically given to the federal gov
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Powers that aren’t reserved to the state ... are specifically given to the federal gov BECAUSE
(so important that set forth in what amendment & where?) |
too concerned of fed government that was too controlling
AKA federalism so important that it is set forth in the 10th amendment in the Bill of Rights in the US constitution |
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preemption
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when federal law and state law are in direct conflict with each other, the federal law prevails.
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WHY
when federal law and state law are in direct conflict with each other, the federal law prevails. |
1. in order to have uniformity
2. feds had to have final authority because they can’t have the states go off on their own |
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implied powers
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laws or acts that are taken by federal government deemed “necessary and proper” to carry out the authority that fed government has
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US Constitution
what kind of doc. and what is special about it |
living document – founders wrote it loosely so it can be amended and changed depending on what time period is
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11th Amendment
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judicial power of US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the US citizens of another state or by citizens of any foreign state.”
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under 11th Amendment,
citizens could sue their own state where? |
only in own state court system NOT IN FED
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As a result of several of cases which changed federal court history, it was indicated that ...
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states retain constitution immunity from being sued by own citizen in own states
NOTE- NOW a citizen can't sue own state in own state court system unless state somehow has given up immunity for the issue for which being sued |
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Separation of Power
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division of federal power into three separate powers
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CHECKS AND BALANCE
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each branch OF FED POWER has power to prevent other branch from assuming to much power
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CHECKS AND BALANCE COMES FROM CONSTITUTION UNDER ARTICLE 1 2 3 THAT STATE
(BRANCHES OF LAW AND WHAT THEY DO.) |
Article 1: establishes legislative branch (Congress into Senate and House of Representatives)
Article 2: executive branch (enforce law) – president and establish him as commander and chief of armed forces Article 3: judicial branch (initiates laws) – judge, court system and judicial power |
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JUDICIAL REVIEW
WHOSE POWER & WHAT DO THEY DO |
power of judicial – any to review actions of executive and legislative branch to decide if acts are constitutional
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POLICE POWER
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THE RIGHT OF STATES TO ENACT A WIDE RANGE OF LAWS TO PROTECT THE HEALTH,SAFETY AND WELFARE OF THEIR CITIZENS
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(COMMERCE CLAUSE)
POLICE POWER IS CONSIDERED VALID AS LONG AS |
STATE LAW DOES NOT UNDULLY BURDEN OR DISCRIMINATE AGAINST INTERSTATE COMMERCE
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CONTRACT CLAUSE
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NO STATE CAN PASS A LAW IMPEARING THE OBLIGATIONS OF CONTRACTS
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EXCEPTION TO CONTRACT CLAUSE
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IF STATE CAN SHOW THEY HAVE LEGIT REASON FOR PASSING LAW, AND REASONABLEY RELATED TO STATE ISSUESM THEN IT IS ALLOWED.
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EMINENT DOMAIN
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PERMITS GOV TO TAKE PRIVATE PROPERTY IN ORDER TO BUILD OR CREATE FOR PUBLIC BENEFIT AFTER FAIR PAYMENT HAS BEEN MADE TO OWNER
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2 IMPORTANT PARTS ABOUT EMINENT DOMAIN
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* HAS TO BE FOR PUBLIC BENEFIT
* HAS TO BE FAIR PAYMENT TO OWNER |
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INVERSE CONDEMNATION
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A TAKING; WHEN A SIGNIFICANT PORTION OF THE VALUE OF ONE'S PRIVATE PROPERTY IS TAKEN BY GOVERNMENT-IMPOSED RESTRICTIONS; SO MUCH THAT OWNDER CAN DO NOTHING WITH THE REMAINDER OF IT.
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1ST AMENDMENT
IS MOST IMP BECAUSE |
OF ITS CONTENT AND WHAT IT MEANS
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1ST AMENDMENT
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1 NO NATIONAL RELIGION
2 WILL NOT STOP ANYONE FROM PRACTICING RELIGION 3 FREEDOM OF SPEECH |
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DEFAMATION
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JUST BECAUSE SOMETHING SAID IS A LIE DOES NOT MAKE IT UNCONSTITUTIONAL
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TWO TYPES OF DEFAMATION
WHAT & HOW THEY DIFFER |
LIABLE - WRITTEN
SLANDER - SPOKEN |
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PRIOR RESTRAINT
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COURT ORDERED INJUNCTION PREVENTING PUBLICATION AHEAD OF TIME OF INFO THAT MAY BE UNPOPULAR, UNFAIR OR OBNOXIOUS
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COMMERCIAL SPEECH
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A TYPE OF SPEECH ENGAGED IN FOR BUSINESS AND COMMERCIAL PURPOSED
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WHY ARE THERE MORE RESTRICTIONS ON BUSINESS THAN INDIVIDUAL SPEECH?
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YOU HAVE MORE WAYS AS A BUSINESS TO GET YOUR WORD OUT THAN AN INDIVIDUAL (EX: BILLBOARDS)
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THE ESTABLISHMENT CLAUSE
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CONGRESS WILL NOT SETUP, ENDORSE, PROMOTE ANY PARTICULAR RELIGION IN THE THE US
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THE FREE EXERCISE CLAUSE
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CONGRESS ALSO WONT PROHIBIT THE FREE EXERCISE OF RELIGION OF THE PERSONS CHOICE
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OUT OF THE ESTABLISHMENT CLAUSE AND THE FREE EXERCISE CLAUSE COMES ..
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SEPERATION OF CHURCH AND STATE
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SEPERATION OF CHURCH AND STATE
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GOV WONT COME IN AND PROMOTE RELIGION, BUT THIS DOES NOT MEAN RELIGION BARED OR BANNED IN ANY TYPE OF SESSION
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SEPERATION OF CHURCH AND STATE DOES NOT MEAN
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THAT AS A WHOLE NATION, WE CANT SHOW WE ARE A RELIGIOUS COUNTRY .. EX: $ SAYING IN GOD WE TRUST
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CR PROCEDURES TIES IN WHAT AMENDMENTS?
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4 5 6
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4TH AMENDMENT
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[EXCLUSIVE WITH SEARCH AND SEIZURE]
GOV CANT COME IN WITHOUT A WARRANT OR PROBABLE CAUSE AND TAKE ITEMS OR ARREST YOU AND/OR USE THOSE ITEMS AGAINST YOU IN COURT |
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4TH AMENDMENT PROTECTS
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YOU AND YOUR BELONGINGS
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PROBABLE CAUSE
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SUFFICIANT INFO TO BELIEVING THAT PERSON HAS BROKEN LAW AND BECAUSE GOV HAS SUFFICIANT INFO TO HOLD THEM ACCOUNTABLE FOR SOMETHING
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5TH AMENDMENT
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SELF INCRIMINATION
DOUBLE JEOPARDY CLAUSE |
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DOUBLE JEOPARDY
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CAN NOT BE ARRESTED TWICE FOR THE SAME CRIME
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DOUBLE JEOPARDY DOES NOT MEAN
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CRIMINAL CAN NOT BE ARRESTED FOR A CRIME CONNECTED TO THAT PREVIOUS CRIME
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SELF INCRIMINATION
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CANT BE FORCED TO TAKE STAND AGAINST YOURSELF
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ONLY TIME YOU CAN PLEAD THE 5TH
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WHEN IN IS CONCERNING WHAT YOU DID.
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YOU CAN NOT TAKE THE 5TH
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IF YOU ARE ASKED ABOUT SOMETHING SOMEONE ELSE DID.
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6TH AMENDMENT
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RIGHT TO COUNCIL WHETHER THEY CAN AFFORD IT OR NOT
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PUBLIC DEFENDER BEST AT WHAT THEY DO BECAUSE
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BECAUSE THEY DO IT EVERY DAY
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PRO-SE DEFENDANT
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CHOSING TO REPRESENT YOURSELF
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DUE PROCESS CLAUSE STEMS FROM WHAT AMENDMENT
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14TH
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DUE PROCESS CLAUSE
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REQUIRES SAME TyPE OF HEARING BE HELD BEFORE GOV CAN TAKE AWAY FREEDOM, PROPERTY OR LIFE
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2 TYPES OF DUE PROCESS
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SUBSTANTIVE
PROCEDURAL |
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SUBSTANTIVE DUE PROCESS
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WILL NOT BE STRUCK DOWN UNLESS A FUNDAMENTAL RIGHT HAS BEEN VIOLATED
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PROCEDURAL DUE PROCESS
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HAS TO BE FOLLOWED TO THE LETTER OF THE LAW BECAUSE THIS IS WHERE SOMEONE CAN REALLY BE HURT
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RATIONAL BASIS TEST
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MUST BE GOOD REASON WHY SOME TYPES OF PEOPLE/BUSINESSES ARE TREATED DIFFERENT THAN OTHER PEOPLE/BUSINESSES
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STRICT SCRUTINY TEST
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WHEN DEALING WITH SUSPECTED CLASS (SPECIAL PROTECTED, YOUNG, DISABLED, ETC), YOU HAVE TO MAKE SURE EXTRA PROTECTION GIVEN TO THEM BY LAW AND CONSTIUTION ARE FOLLOWED STRICTLY
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SELECTIVE INCORPORATION
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THESE RIGHTS FROM US CONSTITUTION DONT JUST PROTECT ON A FEDERAL LEVEL BUT ON STATE LEVEL TOO
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RIGHT TO PRIVACY IS OR IS NOT MENTIONED IN THE CONSTITUTION
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RIGHT TO PRIVACY
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HOW DID RIGHT TO PRIVACY COME ABOUT
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IT WAS GLEAMED FROM OTHER LANGUAGE IN THE US CONST. WHICH TALKS ABOUT CITIZENS HAVING OTHER TYPES OF RIGHTS
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STATE ACTION
(ALSO: LOCAL, & FED GOV) |
SOME TYPE OF ACTION BY GOV AGAINST ANOTHER PERSON
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IN ORDER FOR SOMEONE TO CLAIM THEY HAVE BEEN VIOLATED OF THEIR RIGHT TO PRIVACY OR ANY CONSTITUTIONAL AMENDMENTS IT MUST BE AGAINST
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THE GOV.
IT CAN NOT BE AGAINST 2 PEOPLE |
