Module Four Constitution Flashcards
(33 cards)
Constitution
establishes structure of government and the relationship of the government to the people that it governs. 1789
The Federalist 51
the structure of the government must furnish the proper checks and balances between the different department
Structure of U.S. Government
• Power divided between and sometimes shared between federal, state and local governments (vertically)
• Federal powers are shared between 3 branches: called tripartite (3 part government)
o Executive-president to execute or enforce laws
o Legislative-congress to make laws
♣ Congress is a bicameral (two house) body consisting of the Senate and HR
o Judicial-court to interpret law
♣ Countervailing powers-designed to compete with and counterbalance one another
♣ Power is divided horizontally
The constitution was adopted by the states providing that power is divided as follows
Delegated powers Shared powers State police power Prohibited powers Powers reserved to the people
Delegated powers
♣ Granted the national government by the constitution
• Preemption:
Federal governments superior regulatory position over state laws in the same subject area
Shared powers
Powers delegated to the national government that may be shared by the states
State police power
The power to govern and adopt laws for the protection of the public health, welfare, safety, and morals
Prohibited powers
♣ Prohibits states and the federal government from doing things
• Ex post facto laws:
Law making criminal an act that was lawful when done or that increases the penalty when done
Powers reserved to the people
10th amendment
Conflicting constitution theories
o Bedrock view:
♣ Strict constructionist interpretation of a constitution
o Living-document view:
♣ Term used when a constitution is interpreted according to changes in conditions
Types of Due Process
• Procedural:
o How a thing is done must be fair
o Requires notice and hearing
• Substantive:
o When government affects your rights
o The substance of what is done must be fair
Constitutional Provisions for Due Process
• 5th amendment:
applies due process to the federal government
• 14th amendment:
applies due process to the states
Judicial tests for interpretation of 14th amendment equal protection
• rational relations:
o basic test
• heightened scrutiny:
o used in sex discrimination cases
• strict scrutiny:
o used in cases involving highly protected classes such as race or color
Rational Basis Test
o Is the government action rationally related to a legitimate government purpose
♣ Burden of proof is on the challenger
Heightened (intermediate) scrutiny test
o Is the government action substantially related to an important government purpose?
♣ Burden of proof is on the government
Strict scrutiny test
o Is the government action necessary to achieve a compelling government purpose?
♣ Burden of proof is on the government
Commerce Clause
Constitution allocates business regulation between federal and state governments
Due Process Clause
Guarantee against the loss of property or rights without a chance to be heard
Quasi-judicial proceedings
Forms of hearing in which the rules of evidence and procedure are more relaxed but each side still has chance to be heard
Privileges and immunities clause
Clause that entitles a person going into another state to make contracts, own property, and engage in business to the same extent as citizens of that state
Bill of Rights
First 10 amendments of the constitution
1st amendment
congress will not make a law establishing a religion, or prohibiting freedom of religion, or prohibiting freedom of speech/press/assemble/petition governments grievances
2nd amendment
a well regulated militia shall not be infringed
