Cecily Zamora
Constitutional law outlines are a great way to gain an overview of the subject and how its concepts fit together. Outlines such as those by Quimbee and Emanuel Law provide an introduction to the scope and limitations of governmental authority under the US Constitution, covering topics such as judicial review, separation of powers, federalism, and individual rights. There are also more detailed outlines available, such as those by Aspen/Wolters Kluwer, which cover casebooks and case notes.
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What You'll Learn
Judicial review
The first American decision to recognise the principle of judicial review was Bayard v. Singleton in 1787, decided by the Supreme Court of North Carolina's predecessor. Notable early state cases involving judicial review include Commonwealth v. Caton (Virginia, 1782), Rutgers v. Waddington (New York, 1784), and Trevett v. Weeden (Rhode Island, 1786). Several of the delegates to the Constitutional Convention had personal experience with judicial review, having been lawyers or judges in these early state court cases.
The first case decided by the US Supreme Court involving a direct challenge to the constitutionality of an act of Congress was Hylton v. United States in 1796, which involved the Carriage Act of 1794 and its imposition of a "carriage tax". However, the landmark decision that established judicial review of the government was Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional. In this case, Chief Justice John Marshall famously stated:
> It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
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Separation of powers
The principle of separation of powers is a fundamental aspect of constitutional law, designed to prevent any one branch of government from becoming too powerful. This system of checks and balances ensures that each branch of government—the legislative, executive, and judicial—has its own distinct role and authority, while also depending on the others for the government to function effectively.
The legislative branch is responsible for making laws, the executive branch enforces those laws, and the judicial branch interprets them. This separation is intended to create a healthy tension among the branches, stabilising democracy.
The US Constitution's Article I, Section 7, for instance, requires that any legislation passed by Congress be presented to the President for signature or veto before it can become law. This process ensures that the executive branch has a check on the legislative branch's power. Similarly, the Vesting Clause in Article II states that executive power is vested in the President, preventing Congress from encroaching on the President's power.
The Supreme Court has also played a role in upholding the separation of powers. In the case of Marbury v. Madison, the Court interpreted Article VI as establishing the Constitution's superiority to other federal laws, thus preventing Congress from enlarging the Court's original jurisdiction beyond the boundaries set out in Article III.
The separation of powers is not just a theoretical concept but has been put into practice in cases such as U.S. v. Alvarez, where the Supreme Court found that certain legislation violated the First Amendment, leading Congress to remedy the constitutional issues.
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Federalism
The Indian Constitution provides an interesting example of federalism. India has a federal structure with a single constitution that applies to both the central and state governments. This is in contrast to countries like the United States, where each state has its own constitution. The Indian Constitution enables states to address local matters while maintaining national standards.
The Indian model of federalism is often referred to as a "quasi-federal system" as it combines features of both a federation and a union. One key feature is the clear division of powers between the centre and the states, delineated in the Constitution through three distinct lists: the Union List, the State List, and the Concurrent List. The Union government works at the centre, implementing laws made by the parliament, while state governments have autonomy in certain areas, allowing them to make laws and policies tailored to their specific needs.
The Indian Constitution also establishes an independent judiciary, with the Supreme Court at the apex. This independent judiciary plays a crucial role in interpreting the Constitution and resolving disputes between the centre and the states. Additionally, the flexibility of the Constitution allows for adjustments in the sharing of powers as circumstances change.
In conclusion, federalism in the context of constitutional law, as exemplified by India, involves a division of powers between different levels of government, providing a framework for national unity, regional diversity, and cooperative governance.
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Individual rights
The original text of the US Constitution contained very few provisions protecting individual rights. This was likely due to the belief that the central government had limited powers and could not violate individual rights, as well as the fear that any list of rights might be incomplete and later interpreted restrictively. However, some provisions were included, such as Article I, Section 9, which protects the privilege of the writ of habeas corpus, a procedure that allows courts to order the release of unlawfully imprisoned individuals.
Article I, Sections 9 and 10, also include important protections, prohibiting ex post facto laws and bills of attainder, which prevent the punishment of conduct that was not illegal at the time and the singling out of individuals or groups for punishment, respectively. Article III, Section 2, guarantees the right to trial by jury in criminal cases and specifies that the trial must take place in the state where the crime occurred. The "privileges and immunities clause" in Article IV, Section 2, limits state power in discriminating against out-of-state citizens regarding certain fundamental rights.
While these provisions are significant, the primary protections of individual liberties are found in the first ten amendments to the Constitution, collectively known as the Bill of Rights. The Sixth Amendment, for instance, provides several rights for criminal defendants, including the right to a speedy and public trial, an impartial and local jury, and the right to a lawyer. The Seventh Amendment preserves the right to a jury trial in most civil cases, and the Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.
The Fourteenth Amendment, with its "state action" doctrine, also plays a crucial role in protecting individual rights. It applies not only to the Bill of Rights but also to the due process and equal protection clauses, ensuring that constitutional protections extend beyond the federal government to state and local governments as well.
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Equality and due process
The Fourteenth Amendment to the US Constitution guarantees "equal protection of the laws" and due process. This means that individuals in similar situations should be treated alike under the law and that they cannot be discriminated against without a valid reason. The Equal Protection Clause is crucial to the protection of civil rights and allows governments to differentiate between individuals if the discrimination meets constitutional standards. For example, in Plyler v. Doe (1982), the Supreme Court struck down a Texas law that prohibited children who were not legal residents from attending free public schools. The Court held that the law imposed a lifetime hardship on a group of children who were not responsible for their status.
Due process, on the other hand, refers to fair procedures. The Due Process Clause of the Fourteenth Amendment has been used by the Supreme Court to prohibit certain practices outright, such as protecting the right to privacy regarding sexual relations and a woman's right to abortion. Due process also deals with specific subject areas, such as liberty of contract or privacy, and has had a significant impact on state legislation. For example, it is proper by law to cut off a defense by a life insurance company based on false and fraudulent statements in an application, unless the matter misrepresented contributed to the death of the insured.
While the Fourteenth Amendment applies to state governments, the US Supreme Court has interpreted the Due Process Clause of the Fifth Amendment to require equal protection from the federal government. This interpretation ensures that individuals are protected from unfair treatment by both state and federal governments. In practice, when an individual believes that their guaranteed equal rights have been violated, they can bring a lawsuit against the governmental body for relief.
The Equal Protection Clause requires that the state has a good reason or a "rational basis" for its choices. In areas with a history of past wrongful action, such as discrimination based on race or gender, the state must meet a much higher burden to justify such classifications. For instance, in Plessy v. Ferguson (1896), the Supreme Court upheld racially segregated public facilities, but this was later overturned in Brown v. Board of Education (1954), where the Court ruled that separate but equal facilities were inherently unequal and violated the Equal Protection Clause.
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Frequently asked questions
Some resources for outlining constitutional law include:
- Black Letter Outlines: Constitutional Law
- Principles of Constitutional Law
- Siegel’s Constitutional Law: Essay and multiple-choice questions and answers
- Blond’s Law Guides: Constitutional Law
- Constitutional Law Stories
Some good casebooks for constitutional law are:
- Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law by Professor Ruthann Robson
- Constitutional Law in a Nutshell
- Sum & Substance: Constitutional Law
CALI Lessons are extensive, available lessons that are hyperlinked.
Some examples of constitutional law outlines are:
- Glannon Guide to Constitutional Law
- Emanuel Law Outlines for Constitutional Law
- Quimbee Quickline
A tip for outlining constitutional law is to use a supplement, like the Chemerinsky supplement, to help organize the concepts.
