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| the first Article of the Constitution, dealing with the Legislative Branch (election, rules, powers, and limitations of Congress) |
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| the Executive Branch (election and powers of the President) |
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| the Judicial Branch (selection, powers, and limits of the Supreme Court |
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| interstate relations (full faith and credit among states; extradition; new states; guarantee of republican government) |
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| the Nation as a whole (debts; Supremacy Clause; oaths of office) |
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| a convention of reading the Constitution; because the Constitution embodies contradictions, some parts must be weighed or balanced against others |
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| what one does for Jesus (in Alaska), see Morse v. Frederick (2007) |
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| a convention of reading the Constitution; because of the amendment process, parts of the document are altered by later parts, especially the Fourteenth Amendment |
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| Common Law Constitutionalism |
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| one of the four major schools of constitutional interpretation, grounded in the idea that respect for precedent creates the best foundation for a stable system, and new circumstances should be dealt with through incremental changes that offer workable rules |
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| Compelling State Interest |
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| the standard to override a fundamental right under the strict scrutiny test, that the government is pursuing a necessary goal, which cannot be achieved by less restrictive means |
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| a disputed convention of reading the Constitution, that we should not read clause by clause, but take the whole document into consideration, which leads to the concept of transcendence |
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| a convention of reading the Constitution, that each word has a distinct meaning and does not repeat other parts of the document |
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| a constitutional principle that recognized legal procedures must be followed, ruling out arbitrary state action; grounded in the Fifth and Fourteenth Amendments |
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| a constitutional principle that all persons must be accorded the same rights, regardless of category distinctions such as race, gender, or religion |
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| Evolving Standards of Decency |
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| a foundation of a living constitutional approach, the idea that as we grow as a society our principles evolve with us, such that something that did not violate the Constitution earlier may do so now |
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| the constitutional principle that our system divides powers between the national and local governments, maintaining a large realm of local autonomy |
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| a Supreme Court precedent that expressions which by their very nature are likely to inspire a violent response are not protected by the First Amendment (Chaplinsky v. New Hampshire, 1942) |
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| a right that is “intrinsic to a scheme of ordered liberty,” i.e. the constitutional order of individual liberty and dignity would be significantly harmed if the right were violated |
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| Fundamental Rights Doctrine |
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| the Supreme Court doctrine that some rights are fundamental and some are not; those that are fundamental are incorporated against state governments and receive the highest form of constitutional protection, requiring strict scrutiny (see incorporation, selective incorporation, total incorporation) |
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| Hamdi v. Rumsfeld (2004), a major Supreme Court case ruling that unlawful combatants must be allowed access to a neutral third party tribunal, such as a military tribunal, but not full access to federal courts |
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| D.C. v. Heller (2008), a major Supreme Court case ruling that the Second Amendment right to bear arms is an individual fundamental right |
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| the effect of the Fourteenth Amendment applying the Bill of Rights to state and local government as well as federal actions (see selective incorporation and total incorporation) |
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| Interstate Commerce Clause |
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| the constitutional provision in Article I allowing the Legislative Branch to regulate certain kinds of economic transactions, it has been a foundation of the expansion of federal power; from a federalist perspective the clause applies only to transactions that are truly national in scope, while local trade is outside of federal bounds; from a living constitutionalist perspective the clause has broadened federal power as interstate trade has affected more aspects of American life and the realm of truly local trade has decreased |
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| Korematsu v. U.S. (1944), a major Supreme Court ruling that the Japanese exclusion from the West Coast during World War II was constitutionally permissible, one of the only rulings that strict scrutiny and a compelling state interest had been met in order to abridge a fundamental right (due to war and impending invasion) |
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| Lawrence et al v. Texas (2003), a major Supreme Court case overturning sodomy laws, grounded in the doctrine that morality is not a rational basis for law, altering the traditional police power to regulate in the interests of the safety, health, and morality of the people |
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| one of the four major schools of constitutional interpretation, grounded in the idea that as society evolves, the principles as well as premises of the Constitution adapt to the needs of the people |
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| McDonald v. Chicago (2010), a major Supreme Court case ruling that the individual right to bear arms applies to local governments; the Second Amendment is incorporated against the states |
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| the constitutional principle that rights and responsibilities are linked, specifically that individual liberty to act is combined with the collective liberty to maintain a decent society; the balance between individual freedom and local regulatory power |
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| one of the four major schools of constitutional interpretation, grounded in the idea that the intent or meaning of the document established by the Founders is the guiding means of understanding the Constitution |
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| Snyder v. Phelps (2011), a major free speech case on the limits of indecent behavior in a free society |
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| the ability of local government to regulate society for the protection of the safety, health, and morals of citizens |
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| the 52 words introducing the Constitution, discussing the actors, actions, and purposes of the document |
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| a prior decision of the Supreme Court, which the Court should respect under the principle of stare decisis |
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| a perception of reality, or a social fact such as the personhood of a fetus |
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| a protected constitutional liberty under the line of cases beginning with Griswold, that intimate personal decisions are outside of the realm of state control |
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| Privileges and Immunity Clause |
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| one of the three key clauses of the Fourteenth Amendment, providing all constitutional protections against state and local government, though this line of protection was ignored following the Slaughter House Cases in favor of selective incorporation of the Bill of Rights against the states |
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| the newer interpretation of freedom, opposed to ordered liberty, the idea that individuals are free to act unless they cause direct harm to others (see J.S. Mill “On Liberty”) |
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| the lower standard for considering the constitutionality of government actions, applied by the Supreme Court to protections that are not fundamental |
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| Roe v. Wade (1973), the Supreme Court case that established the constitutional protect of legal abortion, grounded in a fundamental right of privacy |
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| the position that the Fourteenth Amendment did not fully apply constitutional protections against local government, but only those that can be identified as fundamental |
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| a reality constructed by collective belief, such as the personhood or non-personhood of fetuses |
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| Latin for “that which has been decided,” the principle of following previous decisions or precedents |
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| the prevailing standard for abridging a fundamental right, requiring a compelling state interest |
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| the concrete requirements of liberty and justice protected by the due process clauses of the Fifth and Fourteenth Amendments |
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| one of the four major schools of constitutional interpretation, grounded in the idea that the language of the document is all that is necessary to understand its meaning |
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| Tinker v. DesMoines (1969), a major school speech case, ruling that student expression that is disruptive of the educational mission of the school can be controlled but non-disruptive speech cannot |
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| the position that the Privileges and Immunities Clause of the Fourteenth Amendment immediately applied all constitutional protections against state and local government |
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| the idea that the Constitution is more than the sum of its parts, such that when read as a whole it embodies broader principles than the specific enumerated rights; the whole is more than the sum of its parts; liberty is the most frequently invoked transcendent principle, while possible others are equality or preservation |
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