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| The interpretation of the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions, and societal changes. |
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| The concept that all laws are made by man and are therefore subject to imperfections. |
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| Declaratory Theory of Law |
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| Declaratory theory is propounded on the belief that judges' decisions never make law, rather they only constitute evidence of what the law is. |
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| The Brandeis Brief was a pioneering legal brief that was the first in United States legal history to rely more on a compilation of scientific information and social science than on legal citations. |
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| The power of a court to hear appeals from lower courts. This includes the power to reverse or modify the the lower court's decision. In the federal system, the circuit courts have appellate jurisdiction over the cases of the district courts, and the supreme court has appellate jurisdiction over the decisions of the circuit courts. |
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| The jurisdiction of a court of first instance, or trial court. The Supreme Court has original jurisdiction under Article III of the Constitution. |
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| The power to remove and strike down any legislation or other government action that is inconsistent with federal or state constitutions. The Supreme Court reviews government actions only under the Constitution of the United States and federal laws. |
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| In law, standing is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. |
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| The state or quality of being adverse, or opposed to. |
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| Unsettled, undecided. A moot question is also one that is no longer material, or that has already been resolved, and has become hypothetical. |
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| When a case is ready for adjudication and decision; the issues presented must not be hypothetical, and the parties must have exhausted other avenues of appeal. |
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| “Let the decision stand.” The principle of adherence to settled cases, the doctrine that principles of law established in earlier cases should be accepted as authoritative in similar subsequent cases. |
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| An exclusive right or privilege held by a person or group, especially a hereditary or official right. |
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| Literally means “you have the body”; a writ issued to inquire whether a person is lawfully imprisoned or detained. The writ demands that the persons holding the prisoner justify his detention or release him. |
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| “By the court”; an unsigned opinion of the court. |
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| The doctrine draws from a statement by John Marshall when he served in the House of Representatives in 1800: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The Supreme Court, in United States v. Curtiss-Wright (1936), cited Marshall’s speech in arguing for inherent presidential powers in external relations. |
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| Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification has never been legally upheld. |
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| The Vesting Clauses are provisions in Article I, Section 1; Article II, Section 1, Clause 1; and Article III, Section 1 of the United States Constitution. These vest the legislative, executive, and judicial powers in the Congress, President, and federal judiciary (the Supreme Court and the then-uncreated inferior courts), respectively. The Constitution thus explicitly creates a clear Separation of powers in the federal government. |
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| The notion that judges have the last word when it comes to constitutional interpretation and that their decisions determine the meaning of the Constitution for everyone. |
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| The provision in the Constitution that makes the Constitution and the federal laws superior to any conflicting state and local laws. |
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| A political philosophy of devolution, or the transfer of certain powers from the United States federal government back to the states. The primary objective of New Federalism, unlike that of the eighteenth-century political philosophy of Federalism, is the restoration to the states of some of the autonomy and power which they lost to the federal government as a consequence of President Franklin Roosevelt's New Deal. |
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| Also known as the "negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflicting federal statute. |
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| Substantive due process (SDP) is one of the theories of law through which courts enforce limits on legislative and executive powers and authority. Under American jurisprudence, the avenues for use of this theory by courts are the Due Process Clauses of the Fifth and Fourteenth Amendments, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law." That is, substantive due process demarcates the line between, on the one hand, acts by persons of a public or private nature that courts hold are subject to public regulations or legislation, and on the other hand, acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent. |
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| Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing. The freedom to contract is the underpinning of laissez-faire economics and is a cornerstone of free market libertarianism. Through freedom of contract individuals entail a general freedom to choose with whom to contract, whether to contract or not and on which terms to contract. (Use Lochner v. New York as an example) |
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| The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. It states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. The Contract Clause applies only to state legislation, not court decisions. |
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| The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights. (Use the following to compare to Magna Carta: Clause 39 of the Magna Carta provided: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.) |
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| The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process. |
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| Privileges and Immunities Clause |
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| The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.... |
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| The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress." The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states this Commerce Clause power, and all of the other enumerated powers, may be implemented by the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." |
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| The "Takings Clause" of the U.S. Constitution states simply "nor shall private property be taken for public use, without just compensation." |
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| Regulatory taking refers to a situation in which a government regulates a property to such a degree that the regulation effectively amounts to an exercise of the government's eminent domain power without actually divesting the property's owner of title to the property. |
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| is an economic environment in which transactions between private parties are free from tariffs, government subsidies, and enforced monopolies, with only enough government regulations sufficient to protect property rights against theft and aggression. The phrase laissez-faire is French and literally means "let [them] do", but it broadly implies "let it be," "let them do as they will," or "leave it alone". Scholars generally believe a laissez-faire state or a completely free market has never existed. |
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| In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. |
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| "switch in time that saved nine" |
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| “The switch in time that saved nine” is the name given to what was perceived as the sudden jurisprudential shift by Associate Justice Owen Roberts of the U.S. Supreme Court in West Coast Hotel Co. v. Parrish. Conventional historical accounts portrayed the Court's majority opinion as a strategic political move to protect the Court's integrity and independence from President Franklin Roosevelt's court-reform bill (also known as the "court-packing plan"), which would have expanded the size of the bench up to 15 justices, though it has been argued that these accounts have misconstrued the historical record. |
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| Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause. It is the clause that gives the federal government of the United States its power of taxation. |
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| A legislative veto exists in governments that separate executive and legislative functions if actions by the executive can be rejected by the legislature. |
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| Executive Privilege / Inherent Powers |
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| In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity. |
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| Federalism is a political concept in which a group of members are bound together by covenant (Latin: foedus, covenant) with a governing representative head. The term "federalism" is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (such as states or provinces). Federalism is a system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments, creating what is often called a federation. Proponents are often called federalists. |
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| The Constitution (Article 2, Section 2) gives the President the power to nominate and, with the advice and consent of the Senate, appoint officers of the United States. The Constitution also provides that Congress by law may vest the appointment of “inferior Officers” in the President alone, in the courts of law, or in the heads of departments. Presidents also appoint and promote all military officers subject to Senate consent. |
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| In the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of America." The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury vs Madison. |
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