Term
|
Definition
| Some say its the physical structure/aspects. Others say its the set of rules that set up incentives. Others say its the *congealed idea* behind it. The Supreme Court is the institution that solves the contradiction between majority rule and individual rights. |
|
|
Term
|
Definition
| the doctrine that the numerical majority of an organized group can make decisions binding on the whole group. |
|
|
Term
|
Definition
Rights claimed by the individual, as opposed to rights claimed by a group.
Individual rights refer to the rights of individuals, in contrast with group rights. An individual right is the sanction of independent action. |
|
|
Term
|
Definition
| The idea that you can read the constitution like a novel in that it has meaning and themes that you can apply to other new situations. You can then identify specific fundamental values (Liberty, Equality, Constitutionalism, Privacy, Popular Sovereignty, Religion, Justice) |
|
|
Term
|
Definition
The power of the judiciary to review the actions of other branches of the government and to determine the constitutionality of those actions. This power was established in the United States by the US Supreme Court case of Marbury v. Madison (1803) led by Chief Justice John Marshall.
The idea that courts may oversee and nullify the actions of another branch of government. |
|
|
Term
| Marbury v. Madison (1803) |
|
Definition
It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.
This was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. The landmark decision helped define the "checks and balances" of the American form of government.
John Marshall – Supreme Court Justice |
|
|
Term
|
Definition
| COMMON LAW INTERP: Court held that a woman's right to an abortion is determined by her current trimester of pregnancy: In the 1st trimester, the state cannot restrict a woman's right to an abortion in any way. The court stated that this trimester begins at conception and ends at the "point at which the fetus becomes 'viable'". 2nd trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health". 3rd trimester, the state can choose to restrict or proscribe abortion as it sees fit when the fetus is viable. The Court rested these conclusions on a constitutional right to privacy emanating from the Due Process Clause of the 14th Amendment. |
|
|
Term
|
Definition
| LIVING CONSTITUTION INTERP: Intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment. |
|
|
Term
|
Definition
| ORIGINALIST INTERP: Case concerning the constitutionality of Exec. Order that ordered Japanese Americans into internment camps during WWII. the Court sided with the government, ruling that the exclusion order was constitutional. The opinion held that the need to protect against espionage outweighed an individual's rights, and the rights of Americans of Japanese descent. The Korematsu decision has not been explicitly overturned. The ruling is significant both for being the 1st instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a tiny handful of cases in which the Court held that the government met that standard. |
|
|
Term
|
Definition
| TEXTUALIST INTERP: Court held that the 2nd Amendment protects an individual's right to possess a firearm for private use in federal enclaves. 1st Supreme Court case in US to decide whether the 2nd Amend. protects an individual right to keep & bear arms for self defense. Affirmed Parker v. DC where the court had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the 2nd Amendment, found that DC's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." |
|
|
Term
|
Definition
| Chief Justice Roberts and Justices Scalia, Thomas, and Alito. All originalists except Scalia is a textualist. Believe in limited judicial review, majoritarian democracy is right unless it is really wrong, literal meaning of the constitution, and the burden of proof is on the court to prove a law is unconstitutional (makes it harder for the court to overrule laws). |
|
|
Term
|
Definition
Justices Stevens, Ginsburg, Breyer, and Sotomayor. Sometimes Kennedy.
All living constitutionalists except Kennedy is common law.
Believe Judicial Review should be used in an expansive way and that individual rights trump majority rule. Believe in transcendent values, expansive judicial review, judicial judgment is prime, and the burden of proof on congress to prove law is unconstitutional |
|
|
Term
| Premises and premise rulings |
|
Definition
| Premise - an assurtion of an imperical statement of reality (Ex: Abortion is wrong) With Premise Rulings, the judicial left believe the court should move ahead of society, whereas the right believe the court should wait on society. |
|
|
Term
| People – person distinction |
|
Definition
| Person = a legal entity that holds rights. Women and minorities were once not considered persons by US law. Fetuses are not persons now. This is a question of social reality. |
|
|
Term
|
Definition
| The evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and towards the national government. Federalists favored a stronger centralized federal government instead of strong state governments. Fed > States |
|
|
Term
|
Definition
| Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. |
|
|
Term
|
Definition
| A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. |
|
|
Term
|
Definition
| The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. |
|
|
Term
|
Definition
| Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. |
|
|
Term
|
Definition
| The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. |
|
|
Term
|
Definition
| Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. |
|
|
Term
|
Definition
| The doctrine of fundamental rights is a feature of United States law under which certain human rights that are enshrined in the U.S. Constitution are given a high degree of judicial deference in conflicts between individual liberty and governmental intrusion. Although many fundamental rights are also more widely considered to be human rights, the classification of a right as fundamental invokes specific legal tests used by courts to determine the carefully constrained conditions under which the United States government and the various state governments may impose limitations on these rights. Ex: marry, privacy |
|
|
Term
|
Definition
| Most stringent standard of judicial review used. It is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. fed gov, a state gov, or a local municipality is at issue. It arises in 2 basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment; or when the gov action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. To pass strict scrutiny test, the law must, be justified by compelling gov. interest, the law must be narrowly tailored to achieve that goal or interest, and the law must be the least restrictive means for achieving that interest. |
|
|
Term
|
Definition
| The rational basis review tests whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government. This test requires that the governmental action be “rationally related” to a “legitimate” government interest. Under this standard of review, the “legitimate interest” does not have to be the government’s actual interest. Rather, if the court can merely hypothesize a “legitimate” interest served by the challenged action, it will withstand the rational basis review. |
|
|
Term
|
Definition
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled."
In other words, stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way"). |
|
|
Term
|
Definition
| Common Law Standard that says if the regulations create a barrier to the right itself then it is an undue burden. This standard has been used in cases involving state restrictions on a woman's access to abortion. The standard was applied by Sandra Day O'Connor when she utilized the test as an alternative to the strict scrutiny test applied in Roe v. Wade. |
|
|
Term
|
Definition
| part of the 14th Amendment to the Constitution, provides that "no state shall deny to any person within its jurisdiction the equal protection of the laws". It can be seen as an attempt to secure the promise of the US's professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states. However, it grants equal protection, not equal rights, and applies only to states, not to the fed gov. |
|
|
Term
|
Definition
| Principles evolve as well as principles (Far left view). As society changes we will interpret the Constitution differently then we have before. Society > Constitution. |
|
|
Term
| Strengths and weaknesses of Living Constitutional view |
|
Definition
| Strengths - Great flexibility for dealing with a developing society. If society is continuously developing this view gives us great flexibility to change. Deals with outdated views of founders. Weaknesses - Judges can pull decisions out of their butt with no reason why. Lack of consistency. Personal politics can come into play because there is no standard to go back to. |
|
|
Term
| Common Law Constitutionalism |
|
Definition
| Belief that premises set by the court have primacy. They look at previous decisions to make their rulings. Problem = overturning a previous interpretation if their was a mistake made. |
|
|
Term
| Strengths and weaknesses of Common Law Constitutionalism |
|
Definition
Strength: Law follows a predictable pattern. Look at past rulings and see where laws are going. Stable.
Weakness: Lack of justification for overturning previous decisions. Almost destroying the premise of their view. May use natural law to overturn previous decisions. Judge-made Law. |
|
|
Term
|
Definition
| Look straight at the constitution only. No history necessary. They look at the exact wording of the constitution. Words mean what they mean. |
|
|
Term
| Strengths and weaknesses of Textualism |
|
Definition
Strengths: It is the most clear and principled view. It has clear points of origin to argue from. No previous decisions or transcendence. Least room for personal politics.
Weaknesses: 9th amendment (just because we didn't mention all rights here, doesn't mean you don't have them). No flexibility for dealing with a flexible society. |
|
|
Term
|
Definition
| The main focus = accepting what the founders wanted. Founders = true selves. Problem = sometimes we don't know how they would have felt about something. |
|
|
Term
| Strengths and weaknesses of Originalism |
|
Definition
Strengths: Captures founder's ideals. Clear point of origin.
Weaknesses: No flexibility, more so then any other view. How could men that lived in a world so different from us come up with rules that should absolutely apply to us. |
|
|
Term
| Major differences between GA Constitution and U.S. Constitution |
|
Definition
Similarities: Separation of Powers (Executive, Legislative, & Judicial)
Differences:
— Length – Georgia Constituion is very long, due to policy applications
— GA: Judges elected on non-partisan ballots
— GA: House and Senate members serve 2 years
— GA: Plural Executive – 6 department heads, possibly from different parties
— GA: Limits itself to to 159 Counties |
|
|
Term
|
Definition
Plural Executive – separate elections
— Gov, Lt. Gov, 6 department heads = elected constitutional officer
— 6 Heads have power independent of the government
It is the nature of the plural executive
that the governor shares power with
other elected executive officials who may challenge the governor’s authority. |
|
|
Term
|
Definition
| Some say its the physical structure/aspects. Others say its the set of rules that set up incentives. Others say its the *congealed idea* behind it. The Supreme Court is the institution that solves the contradiction between majority rule and individual rights. |
|
|
Term
|
Definition
| the doctrine that the numerical majority of an organized group can make decisions binding on the whole group. |
|
|
Term
|
Definition
Rights claimed by the individual, as opposed to rights claimed by a group.
Individual rights refer to the rights of individuals, in contrast with group rights. An individual right is the sanction of independent action. |
|
|
Term
|
Definition
| The idea that you can read the constitution like a novel in that it has meaning and themes that you can apply to other new situations. You can then identify specific fundamental values (Liberty, Equality, Constitutionalism, Privacy, Popular Sovereignty, Religion, Justice) |
|
|
Term
|
Definition
The power of the judiciary to review the actions of other branches of the government and to determine the constitutionality of those actions. This power was established in the United States by the US Supreme Court case of Marbury v. Madison (1803) led by Chief Justice John Marshall.
The idea that courts may oversee and nullify the actions of another branch of government. |
|
|
Term
| Marbury v. Madison (1803) |
|
Definition
It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.
This was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. The landmark decision helped define the "checks and balances" of the American form of government.
John Marshall – Supreme Court Justice |
|
|
Term
|
Definition
| COMMON LAW INTERP: Court held that a woman's right to an abortion is determined by her current trimester of pregnancy: In the 1st trimester, the state cannot restrict a woman's right to an abortion in any way. The court stated that this trimester begins at conception and ends at the "point at which the fetus becomes 'viable'". 2nd trimester, the state may only regulate the abortion procedure "in ways that are reasonably related to maternal health". 3rd trimester, the state can choose to restrict or proscribe abortion as it sees fit when the fetus is viable. The Court rested these conclusions on a constitutional right to privacy emanating from the Due Process Clause of the 14th Amendment. |
|
|
Term
|
Definition
| LIVING CONSTITUTION INTERP: Intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment. |
|
|
Term
|
Definition
| ORIGINALIST INTERP: Case concerning the constitutionality of Exec. Order that ordered Japanese Americans into internment camps during WWII. the Court sided with the government, ruling that the exclusion order was constitutional. The opinion held that the need to protect against espionage outweighed an individual's rights, and the rights of Americans of Japanese descent. The Korematsu decision has not been explicitly overturned. The ruling is significant both for being the 1st instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a tiny handful of cases in which the Court held that the government met that standard. |
|
|
Term
|
Definition
| TEXTUALIST INTERP: Court held that the 2nd Amendment protects an individual's right to possess a firearm for private use in federal enclaves. 1st Supreme Court case in US to decide whether the 2nd Amend. protects an individual right to keep & bear arms for self defense. Affirmed Parker v. DC where the court had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the 2nd Amendment, found that DC's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." |
|
|
Term
|
Definition
| Chief Justice Roberts and Justices Scalia, Thomas, and Alito. All originalists except Scalia is a textualist. Believe in limited judicial review, majoritarian democracy is right unless it is really wrong, literal meaning of the constitution, and the burden of proof is on the court to prove a law is unconstitutional (makes it harder for the court to overrule laws). |
|
|
Term
|
Definition
Justices Stevens, Ginsburg, Breyer, and Sotomayor. Sometimes Kennedy.
All living constitutionalists except Kennedy is common law.
Believe Judicial Review should be used in an expansive way and that individual rights trump majority rule. Believe in transcendent values, expansive judicial review, judicial judgment is prime, and the burden of proof on congress to prove law is unconstitutional |
|
|
Term
| Premises and premise rulings |
|
Definition
| Premise - an assurtion of an imperical statement of reality (Ex: Abortion is wrong) With Premise Rulings, the judicial left believe the court should move ahead of society, whereas the right believe the court should wait on society. |
|
|
Term
| People – person distinction |
|
Definition
| Person = a legal entity that holds rights. Women and minorities were once not considered persons by US law. Fetuses are not persons now. This is a question of social reality. |
|
|
Term
|
Definition
| The evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and towards the national government. Federalists favored a stronger centralized federal government instead of strong state governments. Fed > States |
|
|
Term
|
Definition
| Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. |
|
|
Term
|
Definition
| A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. |
|
|
Term
|
Definition
| The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. |
|
|
Term
|
Definition
| Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. |
|
|
Term
|
Definition
| The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. |
|
|
Term
|
Definition
| Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. |
|
|
Term
|
Definition
| The doctrine of fundamental rights is a feature of United States law under which certain human rights that are enshrined in the U.S. Constitution are given a high degree of judicial deference in conflicts between individual liberty and governmental intrusion. Although many fundamental rights are also more widely considered to be human rights, the classification of a right as fundamental invokes specific legal tests used by courts to determine the carefully constrained conditions under which the United States government and the various state governments may impose limitations on these rights. Ex: marry, privacy |
|
|
Term
|
Definition
| Most stringent standard of judicial review used. It is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. fed gov, a state gov, or a local municipality is at issue. It arises in 2 basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment; or when the gov action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. To pass strict scrutiny test, the law must, be justified by compelling gov. interest, the law must be narrowly tailored to achieve that goal or interest, and the law must be the least restrictive means for achieving that interest. |
|
|
Term
|
Definition
| The rational basis review tests whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government. This test requires that the governmental action be “rationally related” to a “legitimate” government interest. Under this standard of review, the “legitimate interest” does not have to be the government’s actual interest. Rather, if the court can merely hypothesize a “legitimate” interest served by the challenged action, it will withstand the rational basis review. |
|
|
Term
|
Definition
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled."
In other words, stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way"). |
|
|
Term
|
Definition
| Common Law Standard that says if the regulations create a barrier to the right itself then it is an undue burden. This standard has been used in cases involving state restrictions on a woman's access to abortion. The standard was applied by Sandra Day O'Connor when she utilized the test as an alternative to the strict scrutiny test applied in Roe v. Wade. |
|
|
Term
|
Definition
| part of the 14th Amendment to the Constitution, provides that "no state shall deny to any person within its jurisdiction the equal protection of the laws". It can be seen as an attempt to secure the promise of the US's professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states. However, it grants equal protection, not equal rights, and applies only to states, not to the fed gov. |
|
|
Term
|
Definition
| Principles evolve as well as principles (Far left view). As society changes we will interpret the Constitution differently then we have before. Society > Constitution. |
|
|
Term
| Strengths and weaknesses of Living Constitutional view |
|
Definition
| Strengths - Great flexibility for dealing with a developing society. If society is continuously developing this view gives us great flexibility to change. Deals with outdated views of founders. Weaknesses - Judges can pull decisions out of their butt with no reason why. Lack of consistency. Personal politics can come into play because there is no standard to go back to. |
|
|
Term
| Common Law Constitutionalism |
|
Definition
| Belief that premises set by the court have primacy. They look at previous decisions to make their rulings. Problem = overturning a previous interpretation if their was a mistake made. |
|
|
Term
| Strengths and weaknesses of Common Law Constitutionalism |
|
Definition
Strength: Law follows a predictable pattern. Look at past rulings and see where laws are going. Stable.
Weakness: Lack of justification for overturning previous decisions. Almost destroying the premise of their view. May use natural law to overturn previous decisions. Judge-made Law. |
|
|
Term
|
Definition
| Look straight at the constitution only. No history necessary. They look at the exact wording of the constitution. Words mean what they mean. |
|
|
Term
| Strengths and weaknesses of Textualism |
|
Definition
Strengths: It is the most clear and principled view. It has clear points of origin to argue from. No previous decisions or transcendence. Least room for personal politics.
Weaknesses: 9th amendment (just because we didn't mention all rights here, doesn't mean you don't have them). No flexibility for dealing with a flexible society. |
|
|
Term
|
Definition
| The main focus = accepting what the founders wanted. Founders = true selves. Problem = sometimes we don't know how they would have felt about something. |
|
|
Term
| Strengths and weaknesses of Originalism |
|
Definition
Strengths: Captures founder's ideals. Clear point of origin.
Weaknesses: No flexibility, more so then any other view. How could men that lived in a world so different from us come up with rules that should absolutely apply to us. |
|
|
Term
| Major differences between GA Constitution and U.S. Constitution |
|
Definition
Similarities: Separation of Powers (Executive, Legislative, & Judicial)
Differences:
— Length – Georgia Constituion is very long, due to policy applications
— GA: Judges elected on non-partisan ballots
— GA: House and Senate members serve 2 years
— GA: Plural Executive – 6 department heads, possibly from different parties
— GA: Limits itself to to 159 Counties |
|
|
Term
|
Definition
Plural Executive – separate elections
— Gov, Lt. Gov, 6 department heads = elected constitutional officer
— 6 Heads have power independent of the government
It is the nature of the plural executive
that the governor shares power with
other elected executive officials who may challenge the governor’s authority. |
|
|
