Constitutional Law Outline

Constitutional Law Outline - CONSTITUTIONAL LAW OUTLINE...

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CONSTITUTIONAL LAW OUTLINE Prof. Lino Graglia – Spring 1997 This outline is e-mailware ! While there is no cost for using the outline, you must drop me a line at dfalgoust@mail.utexas.edu to tell me what you think, if it helped you, etc; it’d also be nice if you dropped by my web page at http://www.geocities.com/NapaValley/3578/ and signed my guest book. Feel free to redistribute this outline unmodified to anyone who may find it useful. This outline is provided “as is” and I make no promises as to its accuracy (it worked for me, your mileage may vary). Good Luck on exams! Damien Falgoust University of Texas School of Law I. General Principles for Constitutional Law A. Key Provisions of the Constitution 1. Article 1, Sec. 8 – Powers Reserved to Congress (includes taxing (cl.1) and commerce (cl.3) power 2. Article 1, Sec. 9 – Limits on U.S. Congress 3. Article 1, Sec. 10 – Limits on State Legislatures 4. Article 3, Sec. 2 – Extent of Judicial Power 5. Article 5 – Amending the Constitution (2/3 of both houses or petition of 2/3 of the states; ratification requires ¾ approval by the states 6. The 14 th amendment (due process for the states) B. Definitions of Types of Governments 1. Government – Why a government? a) Division of Labor – in an anarchy, everyone has to do everything for themselves b) Control of the “animalistic” nature of people – protecting property rights, contract rights, etc. (prevent free riding) c) “Prisoner’s Dilemma” – if everyone acts solely for their own gratification, the effect is ultimately detrimental to all. 2. Democracy a) Basically, rule of the people; in the U.S., representative democracy (meaning elected representatives vote instead of the people voting directly). [Basic Civics] b) Graglia is heavily in favor of democracy, even to the exclusion of individual rights – that is, one of his biggest beefs is the court denying the will of the people. (1) Thus, the courts propagate a liberal agenda never approved by the people via judicial activism under the guise of finding a law 1 of 47
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unconstitutional (even if it isn’t). (2) Graglia has less of a problem with a court ignoring the unconstitutionality of a law, since at least then the will of the people is being done. 3. Federalism a) Basically, a government of divided power, with local control predominating; basically the federal government is only supposed to legislate in certain well-defined areas, leaving the rest to the states (1) The idea is the federal government only operates where it has to, as in trade and defense, taking advantage of economies of scale. b) Federalism as Fiction (1) Graglia believes that federalism, while looking good on paper, is fundamentally unworkable. “Everyone loves federalism except when it gets in the way.” (2) The basic problem is that one side or the other (federal v. state) has to control certain key things, like commerce. (3) That power over time inevitably develops into all power, since
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Constitutional Law Outline - CONSTITUTIONAL LAW OUTLINE...

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