US LAW
CONSTITUTIONAL LAW
COURSE OUTLINE
Germany vs. US
Sources of Law
Common law
Cases / Case analysis
Constitution / Amendments / Bill of rights
Federalism
Federal and state government powers and limits
Federal Separation of Powers
Article I: Congress
Article II Executive Branch
Article III: Judiciary
Individual Rights
Analyzing those rights / levels of review
GERMANY VS. US
Damage awards
“Public law” vs. “Private law”
Role for scholarly literature / academic opinion
Capital punishment
Civil vs Common Law
Inquisitorial (Judge driven) vs Adversarial (party driven) National vs Federal (focus on
state laws)
US LAW INTRO
Common law: future cases should be decided on previous desicions; judges are
bound to follow the president; unfair to decide a case different from other previous
cases; one case should be decided different from other states
Tradition developed in Medieval England
Primarily derived from judicial decisions/principles instead of from statutes.
Stare decisis: judges are required to follow binding “precedent” when making their
respective decisions
COMMON LAW
Not all prior decisions are binding
Non-binding decisions include decisions that:
, i. are not on-point or
ii. come from a non-binding jurisdiction
Judicial Activism - when judges ignore precedent -> society and technology change
rapidly in todays society -> important -> judge hast o include these external factors in
hins desicion
COMMON LAW: STATE VS FEDERAL LEVEL
Federal law is codified -> „higher law“ -> important!
Vast majority of state criminal law is also codified (statute-based)
CASE ANALYSIS
Issue: statement; one sentene: Whats the question of this case?
Rule: name the rule you apply to find the solution fort he case
Analysis: apply facts oft he case tot he rule (most important part)
Conclusion:
*reasoning *holding (both are synonyms für conclusion)
SOURCES OF US LAWS
Alongside the common law, the laws of the US come from:
- United States Constitution (“Supreme law of the land”)
- Statutes (Federal and State)
- Treaties and Executive Agreements
- Regulatory ordinances
- Administrative decisions Etc.
CONSTITUTION
The Constitutional Convention
Created the Constitution (finally ratified in 1790)
Focus on the separation of power and checks and balances
Bill of Rights (first ten amendments) included as a final compromise
FOCUS: 1st amendment!
BILL OF RIGHTS
First: Establishment Clause; Free Exercise Clause; Freedoms of Speech, Press,
Assembly, Petition
Second: Right to Bear Arms
Third: Protection from Quartering Troops
Fourth: Protection from Unlawful Search & Seizure
Fifth: (Federal) Due Process; Double Jeopardy; Self Incrimination; Prohibition of
Takings without Compensation
BILL OF RIGHTS CONT.
,Sixth: Trial by Jury; Rights of the Accused; Confrontation Clause; Speedy & Public
Trial; Right to Counsel
Seventh: Trial by Jury in Civil Trials
Eighth: Prohibition of Cruel & Unusual Punishment, Excessive Bail -> „cruel and
unusal punishment“ means the death penality (some states do not refer to this
amendment when it comes tot he death penality)
Ninth: Rights Retained by the People Tenth: Powers Retained by the People
FEDERALISM
State and national governments coexist
Requires the constant monitoring whether the powers being asserted by either the
state or federal government are granted under the constitution
The federal government is one of limited, enumerated powers: the specific power
hast o be listed in the constitution otherwise the Federal government does not have
the power (important fort he exam!)
This is very different from state governmental power
State governments can act as long as what they are doing isn‘t expressly forbidden
by the constitution
POLICE POWER
The Federal government has no “police power” Tax and spend for general welfare
Congress may “lay and collect taxes...to pay the debts and provide for the ...general
welfare of the United states” (Article I, Section 8)
“NECESSARY AND PROPER” CLAUSE
Congress has the power to “make all laws which shall be necessary and proper for
carrying into execution” the specific powers (Article 1, Section 8)
Rational-relation test (U.S. v Comstock)
If Congress seeks an objective that is within the specifically enumerated powers, it
can use any means that is rationally related to the objective Congress seeks to
achieve AND is not specifically forbidden
SEPARATION OF POWERS
Congressional (House of Representatives and Senate, i.e. Legislative branch)
Powers include:
Interstate commerce
Taxing and spending
Regulation of the District of Columbia (Washington DC) Federal property
War and defense
, SEPARATION OF POWERS
President (Executive branch)
Powers include:
Execution of laws
Commander in chief of the armed forces
Treaty and foreign affairs
Appoint federal officers
Issue pardons
Veto laws passed by both houses
Cant declare war
SEPARATION OF POWERS
Judiciary
Power to decide cases or controversies falling under judicial power
Federal judges have life tenure
„Supreme court:“ Decide about cases/ issues related to the constitution
ARTICLE I: POWERS OF CONGRESS
Regulate commerce among the several states (Article I, Section 8)
Together with the Necessary & Proper Clause, the Commerce Clause is perhaps the
single Congressional power with the most far-reaching effectscourts give it great
deference
Under this delegated power, acts of Congress will most likely fall under 1 of 4
categories...
POWERS OF CONGRESS
1. Channels (Highways, waterways, air traffic): a product being transported
2. Instrumentalities: machines, people, …
3. Articles moving in interstate commerce
4. “Substantially affecting” Commerce
COMMERCE CLAUSE
+ Supremacy Clause (Article VI Clause 2): “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof...shall be the supreme Law
of the Land”
Preemption: When Congress regulates interstate commerce, conflicting state laws
are superseded, i.e., preempted
“Field preemption”
DORMANT COMMERCE CLAUSE
Even where Congress has not acted, the Commerce Clause restricts any potentially
conflicting state regulations. This is sometimes called the “Dormant Commerce
Clause”
CONSTITUTIONAL LAW
COURSE OUTLINE
Germany vs. US
Sources of Law
Common law
Cases / Case analysis
Constitution / Amendments / Bill of rights
Federalism
Federal and state government powers and limits
Federal Separation of Powers
Article I: Congress
Article II Executive Branch
Article III: Judiciary
Individual Rights
Analyzing those rights / levels of review
GERMANY VS. US
Damage awards
“Public law” vs. “Private law”
Role for scholarly literature / academic opinion
Capital punishment
Civil vs Common Law
Inquisitorial (Judge driven) vs Adversarial (party driven) National vs Federal (focus on
state laws)
US LAW INTRO
Common law: future cases should be decided on previous desicions; judges are
bound to follow the president; unfair to decide a case different from other previous
cases; one case should be decided different from other states
Tradition developed in Medieval England
Primarily derived from judicial decisions/principles instead of from statutes.
Stare decisis: judges are required to follow binding “precedent” when making their
respective decisions
COMMON LAW
Not all prior decisions are binding
Non-binding decisions include decisions that:
, i. are not on-point or
ii. come from a non-binding jurisdiction
Judicial Activism - when judges ignore precedent -> society and technology change
rapidly in todays society -> important -> judge hast o include these external factors in
hins desicion
COMMON LAW: STATE VS FEDERAL LEVEL
Federal law is codified -> „higher law“ -> important!
Vast majority of state criminal law is also codified (statute-based)
CASE ANALYSIS
Issue: statement; one sentene: Whats the question of this case?
Rule: name the rule you apply to find the solution fort he case
Analysis: apply facts oft he case tot he rule (most important part)
Conclusion:
*reasoning *holding (both are synonyms für conclusion)
SOURCES OF US LAWS
Alongside the common law, the laws of the US come from:
- United States Constitution (“Supreme law of the land”)
- Statutes (Federal and State)
- Treaties and Executive Agreements
- Regulatory ordinances
- Administrative decisions Etc.
CONSTITUTION
The Constitutional Convention
Created the Constitution (finally ratified in 1790)
Focus on the separation of power and checks and balances
Bill of Rights (first ten amendments) included as a final compromise
FOCUS: 1st amendment!
BILL OF RIGHTS
First: Establishment Clause; Free Exercise Clause; Freedoms of Speech, Press,
Assembly, Petition
Second: Right to Bear Arms
Third: Protection from Quartering Troops
Fourth: Protection from Unlawful Search & Seizure
Fifth: (Federal) Due Process; Double Jeopardy; Self Incrimination; Prohibition of
Takings without Compensation
BILL OF RIGHTS CONT.
,Sixth: Trial by Jury; Rights of the Accused; Confrontation Clause; Speedy & Public
Trial; Right to Counsel
Seventh: Trial by Jury in Civil Trials
Eighth: Prohibition of Cruel & Unusual Punishment, Excessive Bail -> „cruel and
unusal punishment“ means the death penality (some states do not refer to this
amendment when it comes tot he death penality)
Ninth: Rights Retained by the People Tenth: Powers Retained by the People
FEDERALISM
State and national governments coexist
Requires the constant monitoring whether the powers being asserted by either the
state or federal government are granted under the constitution
The federal government is one of limited, enumerated powers: the specific power
hast o be listed in the constitution otherwise the Federal government does not have
the power (important fort he exam!)
This is very different from state governmental power
State governments can act as long as what they are doing isn‘t expressly forbidden
by the constitution
POLICE POWER
The Federal government has no “police power” Tax and spend for general welfare
Congress may “lay and collect taxes...to pay the debts and provide for the ...general
welfare of the United states” (Article I, Section 8)
“NECESSARY AND PROPER” CLAUSE
Congress has the power to “make all laws which shall be necessary and proper for
carrying into execution” the specific powers (Article 1, Section 8)
Rational-relation test (U.S. v Comstock)
If Congress seeks an objective that is within the specifically enumerated powers, it
can use any means that is rationally related to the objective Congress seeks to
achieve AND is not specifically forbidden
SEPARATION OF POWERS
Congressional (House of Representatives and Senate, i.e. Legislative branch)
Powers include:
Interstate commerce
Taxing and spending
Regulation of the District of Columbia (Washington DC) Federal property
War and defense
, SEPARATION OF POWERS
President (Executive branch)
Powers include:
Execution of laws
Commander in chief of the armed forces
Treaty and foreign affairs
Appoint federal officers
Issue pardons
Veto laws passed by both houses
Cant declare war
SEPARATION OF POWERS
Judiciary
Power to decide cases or controversies falling under judicial power
Federal judges have life tenure
„Supreme court:“ Decide about cases/ issues related to the constitution
ARTICLE I: POWERS OF CONGRESS
Regulate commerce among the several states (Article I, Section 8)
Together with the Necessary & Proper Clause, the Commerce Clause is perhaps the
single Congressional power with the most far-reaching effectscourts give it great
deference
Under this delegated power, acts of Congress will most likely fall under 1 of 4
categories...
POWERS OF CONGRESS
1. Channels (Highways, waterways, air traffic): a product being transported
2. Instrumentalities: machines, people, …
3. Articles moving in interstate commerce
4. “Substantially affecting” Commerce
COMMERCE CLAUSE
+ Supremacy Clause (Article VI Clause 2): “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof...shall be the supreme Law
of the Land”
Preemption: When Congress regulates interstate commerce, conflicting state laws
are superseded, i.e., preempted
“Field preemption”
DORMANT COMMERCE CLAUSE
Even where Congress has not acted, the Commerce Clause restricts any potentially
conflicting state regulations. This is sometimes called the “Dormant Commerce
Clause”
