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Constitutional Law

Constitutional Law. Government has limited powers Enumerated powers: coining money Implied powers: chartering national bank Individuals’ rights also limit gov’t powers Enumerated rights: Speech, Assembly Implied rights: Association, P rivacy. Sources of Rights. Natural Law

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Constitutional Law

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  1. Constitutional Law Government has limited powers • Enumerated powers: coining money • Implied powers: chartering national bank Individuals’ rights also limit gov’t powers • Enumerated rights: Speech, Assembly • Implied rights: Association, Privacy

  2. Sources of Rights Natural Law Customary Law Statutory Law Judicial Precedent

  3. Natural Law Religious conception, but also Deist • “endowed by their Creator” Pre-exists state and inherent: “inalienable” Beyond human choice and universal Poorly defined, lacks firm foundation • “hold these truths to be self-evident” A modern version: “implicit in a concept of ordered liberty”

  4. Customary Law Specific to a single society – not universal • “the rights of Englishmen” Fills in natural rights • due process comes to include jury trial Often relies on invented history • The “ancient constitution,” Magna Carta Should be understood as tradition, not history

  5. Statutory Law Law created by the sovereign (people or king) Applies only within single state May be foundational (Constitution) or ordinary (regular statutes or regulations) Most clearly defined, codified Governed by legislative intent

  6. Judicial Precedent Judge-made Applies only within court’s jurisdiction Non-democratic, may be countermajoritarian Dependent on other forms of law, texts Driven by specific, often insoluble disputes

  7. Terms for Next Time Incorporation (Selective and Total) State Action Due Process (procedural) Substantive Due Process Fundamental Rights Liberty Interests Strict, Intermediate & Ordinary Scrutiny

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