Constitutional Law Test 1 Study Guide
Three Categories of constitutions-
Nominal Telos- gives certain rights but does follow through with the rights. Example is Cuban Constitution that gives rights such as healthcare and travel but does not carry them out. Tends to make a lot of promises but does not keep them. Façade Telos- similar to nominal by making promises in a way that seem more logical and achievable for that country but is still not carried out. Example is Iranian Constitution that gives rights for a free media but anything that is not Islamic can be regulated by the government. Garantiste Telos- lives up to its name, tends to limit the power of the government and the power of the people, and has balance and in most cases the power is in the people. Examples include the US and Canadian Constitutions. Codified and Un-Codified Constitutions-
Codified- is written and contained in a single document. Example the US Constitution. Found in societies that want things to be specific and straightforward. Typically is found in conjuncture with presidents and federal states. Un-Codified- is written, contained, and based upon a series of separate documents developed over a matter of time. Example the Constitution of Great Britain. Made up by key legislation and problems and goes back well into history. Another example is the Magna Carta and Israeli Constitution which has a series of documents that change and develop over a series of years. Tend to be found in conjuncture with Monarchy and Unitarian types of governments. Entrenched and Not Entrenched Constitutions-
Entrenched- Constitutions that tend to be very difficult to change, modify, and amend. An example would be the US Constitution which has only amended 27 amendments out of over a thousand attempts. Can be found in societies that values stability. Not Entrenched- Constitutions that is easier to change. An example would be the Great Britain Constitution were the Parliament can simply vote and change it. This easy access to change tends to lead towards radical swings in the type of government that is used. Judicial Review- The lack of clear mandate providing for judicial review- the right of the courts to invalidate the laws of the Constitution. It is an implied power that is not actually granted to the courts in the Constitution. In Federalist paper 78 Hamilton hints that the judicial review process can somewhat check the power of the legislative branch. If the courts do not have judiciary review they have no powers at all, it is simply the power of judgment. Judicial review was not granted to the court system until the 1803 case of Marbury v. Madison. Weakness of Judicial branch- In Federalist Papers 78 Hamilton pronounces that judiciary branch will be the least dangerous to the political rights of the Constitution because the executive branch (the president) has the sword or the authority of power, the legislative branch (Senate and House of Representatives) has the purse or the authority to control money and the judiciary branch (Federal courts) only have the power of judgment and neither the power of force nor will. Selection for membership of the courts is determined by the President and the Senate. Congress can limit the jurisdiction and structure of federal court system at will. Article 3 section 2 gives Congress this power except to the Supreme Court to make and remove any federal courts. An example of weakness of the courts is the Norris-La Guardia Act in 1932 that was about yellow dog contracts in federal courts which was a contract that promises that a person will not join a union or strike and if so they can be fired. The Congress made it illegal for the Court to review this so they had no power of judgment. This proves that there is not independent judiciary. The Congress and States can also amend the Constitution while the courts cannot even vote. Another example is Texas v. Johnson (1989) in an issue about burning the US flag were the courts ruled...
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