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Conservative- Individual and Social Freedom
Liberal-Economic and Commercial Freedom
(Individuals have a backseat) |
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Conservative: Individual and Social Freedom
Conservative: Economic and Commerical Freedom
(Respect for gov't involvement) |
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Liberal: Individual and Social Freedom
Liberal: Economic and Commerical Freedom |
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Liberal: Indvidual and Social Freedom
Conservative: Economic and Commercial Freedom |
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| Four Methods to Interpreting the Constitution |
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| Textualism, Original Intent, Balancing of Interest, Stare decisis |
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| reliance on the text itself;"the historical meaning of language as it was understood by society of the Constitution when it was written/ratified" great suspision of judicial authority; less reliance of historical intent; usually allied w/contemporary conservative ( Justice Scalia |
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| heavy reliance on historical evidence; What did the framers intend?; Allied w/ contemporary conservatives. (Justice Thomas, Rehinquist; Somtimes O'Conner) |
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| usually allied with cont. liberalism; Allied w/ legal positivism; Dempazies historical evidence (original intent, wording); weighing values; Judicial authority is tolerated more; individual v. community. |
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| "to stand upon previous decisions"; Heavy reliance on past decisions/precedent; everyone practices |
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Civil Rights- Judicial Restraint
Economics- Judicial Activism |
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Civil Rights- Judicial Activism
Economics- Judicial Restraint |
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| Overturning laws of Congress/Executive branch; (preception) of exceeding Constitutional Authority; Overturn precedent; Overturning State laws; Settle Political questions |
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| New Hampshire 9th State to ratify the Constitution |
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| All 13 States raised under the constitution |
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| Anti-federalist (ratification debate) |
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| Thomas Jefferson Concerns: New national government to big and powerful. Art. 1 Sec 8 Congress granted to much power. Believed government will be unresponsive and distant. Representive capacity to small; Civic virtue would be eroded; Communtarians; Constitution missing BoR |
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| Federalists (ratification process) |
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| James Madison; Individualism; Representive gov't good; |
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| There is no natural law and rights do not need to be listed b/c we already have them. Once you start to list rights you restrict other rights. |
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| BoR became Constitutional law |
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| Legal Formulism (blackstone) |
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| (Declaratory Theory of law) judges have no discretion, make no law, but simply discover and declare the law; Declare according to common sense and plain meaning; See language as objective; common sense v. hyper-literal material; judges simply find it |
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| judges don't find the law, they make it; "The life of law has not been logic; it has been experience.";There is no plain meaning, we make decisions based off of sources. |
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| Confine analysis to the text and historical context of a provision. |
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| tend to formulate more broadly the unerlying principle of a constitutional provision. (turn to history, social science, natural law, philosophy.) |
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| Four Views of Incorporation |
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| Total Incorporation; Selective Incorporation; Fundamental fairness; Total Incorporation Plus; Selective Incorporation Plus |
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| total incorporation of all gurantees- Justice Harlan's Opinion, dissenting in Hurtado v. California. |
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| Selective incorporation of "preferred freedoms" and those rights "implicit in the concept of ordered liberty"- Justice Cardozo's opinion in Palko |
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| Fundamental Fairness and the selective application on a case-by-case basis- Justice Frankfurter, concurring in Adamson v. California |
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| Total Incorporation plus other fundamental rights not expressly granted in the Bill of Rights- Justice Murphy and Rutledge dissenting in Adamson |
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| Selective Incorporation Plus |
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| Selective Incorporation plus other fundamental rights not expressly granted in the BoR. Justice Goldberg, Warren, Brennan in Griswold |
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| Marshall stated that if the BoR was to be incorporated to the states the 1st Congress would have done so. |
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-Superflous Doctrine
-"Totat Incorporation" Justice Harlan Dissenting- "Whether the phrase in our American constitutions, national or state, be "law of the land" or "due process of law," it means in every case the same thing |
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| Oliver Wendell Holmes creates the Clear and Present Danger Test including proximity and degree. |
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| Justice Black, " no place for clear and present danger doctrine."; Justice Douglas Creates Call to Action Doctrine- Direct call,Immimency,Likelyhood |
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| Classical liberalism (also known as traditional liberalism[1] and laissez-faire liberalism[2]) is a doctrine stressing the importance of human rationality, individual property rights, natural rights, constitutional limitations of government, the protection of civil liberties, an economic policy with heavy emphasis on free markets, and individual freedom from restraint |
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All mankind, including nations and groups are subject to the divine will.
Divine will is expressed in natural law and natural rights.
Our Creator endows natural rights.
A government that violates natural law or natural rights is illegitimate.
The greatest expression of natural law and natural rights is in the Declaration of Independence and the United States Constitution. The classical conservative believes in the power of the freedom of ideas, the sanctity of private property, and the free market of commerce. However, he realizes that his obligation is to his community, his people, and his country and shall never allow economic interests to rule over these obligations. |
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