Con Law
Thursday, January 18, 2007
10:23 AM
Part I
The Constitution
American movement
Unique because it is a single written document, adopted at a particular point in time and because it contributed to the concept that the government is a creation of the constitution, not the other way around.
Emphasized the representation of people within the councils of the government; many people will speak the people’s will through many structures of government.
Still had the key purpose of limiting governmental power
Three important points
Constitution and government are not one and the same
Constitution is antecedent to the government and creates the government
The people create the constitution and therefore create the government
Functions of the Constitution
Establishes the structures and mechanisms through which the government operates and interfaces with the state governments
Delineates the powers of the government and of the branches, juxtaposed against the powers of the states
Imposes limits upon the powers of the federal and state governments
Orders relationships among the states
Characteristics of the Constitution
Fundamental law
It is the original act of the sovereign power (the people)
The purpose was to establish a political community and set forth the principles in which the people would be governed
Supreme law
It is the expressed will of the people
Highest and most authoritative law in the nation’s legal system
Hard law
Unlike other nations, the Constitution is legal and just a political instrument because it may be invoked in court and used by judges in cases
The Constitution will govern if there is a conflict with a law
It is reliable and not easily altered, so it may provide stability and consistency of judicial rulings over time
Distinction between Constitutional powers and Constitutional Rights
Provisions/Clauses- parallel the functions of the constitution.
Empowerment/power provisions/clauses: grant power; power refers to power of government not of pr
The primary ones are the rights clauses. Almost all of the limitations are ones that arise from the rights clauses.
Challenges to the acts of a federal government
Reasons
It is beyond the scope of the federal government’s constitutional powers
It violates an individual rights
Types
Facial: the law is challenged on its face and in its entirety
As applied: the law is challenged as it is applied to particular persons and particular sets of circumstances
Constitutional Interpretation: The process by which interpreters apply the Constitution to, and thereby resolve, particular problems regarding the scope and allocation of government power and the rights of individuals.
Sources of Interpretation
Primary: the root sources; the original materials from which all interpretation derives
