Unit 5 & Misc. - The Structure of Constitution's Protection of Civil Rights & Liberties AND Foundational Terms

Incorporation of the Bill of Rights Rule

The Bill of Rights originally applied only to the federal government via the 5^th Amendment. Today, all but three amendments apply to the states through the due process clause of the 14^th Amendments. The three that don’t apply: 3^rd, 5^th right to a grand jury indictment in criminal cases, and 7^th right to a jury trial in civil cases.

Federalism

The Constitution establishes a framework for the relationship between the federal and state governments. Federalism is the concept that there are two governments, federal and state, with jurisdiction over the same category. Federal government have enumerated powers while states have general police powers.

Under the Supremacy Clause, the federal constitution and federal laws trump state law.

Horizontal Federalism

The Constitution also creates a framework for the relationship between states (also known as “horizontal federalism”)

The Full Faith and Credit clause require state to recognize each other’s court judgements and public records.

Why defer to legislatures?

• Institutional Competence - Legislatures are able to consider broad range of testimony, perspectives (hearings), experts, and engage in debate while courts are limited to the particular case and possess less time, staff, and resources.   Ex. a court cannot request an economic study to decide what to do; leg can.

• “Counter-majoritarian difficulty” - The “counter majoritarian difficulty” is the tension that unelected judges invalidate laws enacted by a democratic legislatures.

• Other answers:

  • Structural feature of the Constitution

  • Legislative self-dealing, acting for bad reasons

Separation of Powers

Each branch of government has its roles in our tripartite system and each should stay in its own lane.

Police Power

Police power is the power to pass regulations for the health, safety, morals, and general welfare of the people. State governments have general police power. Federal government have NO general police power and can only act where Congress has enumerated powers to act.