Constitutional Law
The constitutional structure
Civil Rights  · Federalism
Executive branch  · Separation of powers
Legislative branch  · Judiciary
Famous Cases
Marbury v. Madison
McCulloch v. Maryland  · Roe v. Wade
Dred Scott v. Sanford  · Lochner v. New York
Freedoms
Free speech  · Free exercise
Freedom of the press  · Right to privacy
Theory
Constitutional theory  · Judicial review

Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government in the United States. It overlaps with legal theory and democratic theory. Image File history File links Scale_of_justice. ... In the United States, constitutional law generally refers to the provisions of the United States Constitution, as interpreted by the United States Supreme Court. ... The United States Constitution is the supreme law of the United States of America. ... Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ... Federalism is the idea of a group or body of members that are bound together (latin: foedus, covenant) with a governing representative head. ... The presidential seal was used by president Hayes in 1880 and last modified in 1959 by adding the 50th star for Hawaii. ... The separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model for the governance of the state. ... In law, the judiciary or judicature is the system of courts which administer justice and provide a mechanism for the resolution of disputes. ... Holding Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. ... Holding Although the Constitution does not specifically give Congress the power to establish a bank, it does delegate the ability to control national economic policy, which a bank can be considered part of. ... Holding Texas laws criminalizing abortion violated womens Fourteenth Amendment right to choose whether to continue a pregnancy. ... Holding Blacks, whether slaves or free, could not become United States citizens and the plaintiff therefore lacked the capacity to file a lawsuit. ... Holding New Yorks regulation of the working hours of bakers was not a justifiable restriction of the right to contract freely under the 14th Amendments guarantee of liberty. ... Freedom of speech is the right to freely say what one pleases, as well as the related right to hear what others have stated. ... Freedom of the press (or press freedom) is the guarantee by a government of free public press for its citizens and their associations, extended to members of news gathering organizations, and their published reporting. ... The right to privacy is a purported human right and an element of various legal traditions which may restrain both government and private party action. ... Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. ... Constitutional law is the study of foundational laws that govern the scope of powers and authority of various bodies in relation to the creation and execution of other laws by a government. ... This article is about law in society. ...

Overview

Constitutional theory is primarily an academic discipline that focuses on the meaning of the United States Constitution. Its concerns include (but are not limited to) the historical, linguistic, sociological, ethical, and political. Plato is credited with the inception of academia: the body of knowledge, its development and transmission across generations. ... Discipline is any training intended to produce a specific character or pattern of behaviour, especially training that produces moral or mental development in a particular direction. ... History is often used as a generic term for information about the past, such as in geologic history of the Earth. When used as the name of a field of study, history refers to the study and interpretation of the record of human societies. ... Broadly conceived, linguistics is the study of human language, and a linguist is someone who engages in this study. ... Sociology is the study of the social lives of humans, groups and societies. ... Ethics is a general term for what is often described as the science (study) of morality. In philosophy, ethical behavior is that which is good or right. ... Politics is the process and method of decision-making for groups of human beings. ...

Much of constitutional theory is concerned with theories of judicial review.^{[citation needed]} This is in part because Marbury v. Madison, which established this judicial power in the early 19th century,^{[citation needed]} has giving the judiciary near-final authority on constitutional meaning.^{[citation needed]} Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. ... Holding Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. ... Alternative meaning: Nineteenth Century (periodical) (18th century — 19th century — 20th century — more centuries) As a means of recording the passage of time, the 19th century was that century which lasted from 1801-1900 in the sense of the Gregorian calendar. ...

Aside from judicial review, consitutional theory in general seeks to ask and answer the following questions:

• How should the Constitution be interpreted?
• How much weight should be given to the history of the Constitution's framing?
• How much, if any, of the Constitution's meaning can be read as implicit in the text?
• What vision of democratic government does the Constitution seek to further?
• How does constitutional meaning shift with other changes in the political structure?
• How does constitutional meaning shift with changes in cultural norms?
• What is the proper relationship between individual rights and state power?
• What is the proper relationship between the branches of government
  • This question involves the power of judicial review, noted above
• What is the proper relationship between the federal government and the states?

History of Constitutional Theory

Although constitutional theory as a discipline has its precursors in The Federalist and Justice Story's Commentaries on the Constitution, modern constitutional theory began with the publication of Alexander Bickel's The Least Dangerous Branch. (The title is an allusion to The Federalist, in which Alexander Hamilton wrote that the judiciary was the least dangerous of the three branches because it had neither the sword (like the Executive) nor the purse (like the Legislature). The book's primary (but not sole) contribution was to introduce the idea of the "countermajoritarian difficulty." The idea expressed by the term countermajoritarian difficulty is that there is a tension between democratic government (as he defines it democratic government is majoritarian government) and judicial power. If the judiciary--an unelected branch of government--can overturn popular legislation, then either there is a fundamental contradiction within the democractic system, or there is a tension that must be resolved by curbing judicial power. (One of Bickel's solutions is for the Court to exercise "the passive virtues": that is, to decline to decide more than it has to decide.) Title page of an early Federalist compilation. ... Alexander Mordecai Bickel (December 17, 1924 – November 8, 1974) was a law professor and expert on the United States Constitution. ... A portrait of Alexander Hamilton by John Trumbull, 1792. ...

Modern constitutional theory owed much to Bickel's thinking, and much that has been written has had to grapple with the idea of the "countermajoritarian difficulty" in some way.^{[citation needed]}

Important thinkers

The following is a partial list:

• Bruce Ackerman, Professor of Law, Yale University. Primary contributions: We the People: Foundations and We the People: Transformations.
• Akhil Amar, Professor of Law, Yale University
• Jack Balkin, Professor of Law, Yale University
• Randy Barnett, Professor of Law, Boston University
• Alexander Bickel, former Yale professor who published The Least Dangerous Branch, The Morality of Consent, The Supreme Court and the Idea of Progress, among other works.
• Erwin Chemerinsky, Professor of Law, Duke University
• Ronald Dworkin, Professor of Law, New York University School of Law
• John Hart Ely, Scholar and former professor at several leading law schools.
• Richard Epstein, Professor of Law, University of Chicago
• Alex Kozinski, Judge on the U.S. Court of Appeals for the Ninth Circuit
• Sanford Levinson, Professor of Law, University of Texas at Austin
• Richard Posner, Senior Judge on the U.S. Court of Appeals for the Seventh Circuit
• Robert Post
• Antonin Scalia, Associate Justice of the Supreme Court. His ideas on originalism published in A Matter of Interpretation.
• Suzanna Sherry, Professor of Law, Vanderbilt University Law School. Primary contributions: Desperately Seeking Certainty and Beyond All Reason: The Radical Assault on Truth in American Law (both with Daniel Farber of Boalt Hall).
• Cass Sunstein, Professor of Law, University of Chicago
• Laurence Tribe, Professor of Law, Harvard University Law School
• William van Alstyne, Professor of Law, College of William & Mary
• John Yoo, Professor of Law, Boalt Hall

Bruce Ackerman is a famous constitutional law scholar in the United States. ... Yale University is a private university in New Haven, Connecticut. ... Akhil Reed Amar is a Southmayd Professor of Law at the Yale Law School. ... Yale University is a private university in New Haven, Connecticut. ... Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. ... Yale University is a private university in New Haven, Connecticut. ... Randy E. Barnett is a lawyer, law professor at Boston University, and legal theorist in the United States, noted for his libertarian theory of law and his work on contract theory and constitutional law and theory. ... For the unrelated Jesuit university in Chestnut Hill, see Boston College. ... Alexander Mordecai Bickel (December 17, 1924 – November 8, 1974) was a law professor and expert on the United States Constitution. ... Yale can refer to an educational institution: Yale University, one of the United States oldest universities. ... Erwin Chemerinsky (born 1953) is a nationally renowned professor of Constitutional law and federal civil procedure, currently teaching at the Duke University School of Law, a position which he has held since July 1, 2004. ... Duke Chapel Duke University is a private, coeducational, research university located in Durham, North Carolina, USA. Although founded in 1924, Duke traces its roots back to 1838. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ... The New York University School of Law (or simply NYU Law) is one of eight law schools in New York City, USA. It is generally considered to be among the top five law schools in the United States, and is currently ranked fourth in the nation by . ... John Hart Ely (December 3, 1938 - October 25, 2003) is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr. ... Richard Epstein Richard A. Epstein, born in 1943, is currently the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School. ... The University of Chicago is a private university principally located in the Hyde Park neighborhood of Chicago, Illinois, founded in 1890 and opened in 1892. ... Judge Alex Kozinski (born July 23, 1950) is a judge in the United States Court of Appeals for the Ninth Circuit and a popular essayist. ... The University of Texas at Austin, often called UT or Texas, is the flagship institution of the University of Texas System. ... Judge Richard Allen Posner (born January 11, 1939, New York City) is currently a judge on the United States Court of Appeals for the Seventh Circuit. ... Antonin Gregory Scalia (born March 11, 1936) is an American jurist who has been a prominent conservative and originalist voice on the Supreme Court of the United States of America and one of the most outspoken advocates of textualism in statutory interpretation and original meaning in constitutional interpretation. ... The Vanderbilt University Law School is the law school at Vanderbilt University in Nashville, Tennessee. ... Boalt Halls law library was expanded in 1996 with the North Addition, pictured above. ... Cass R. Sunstein (b. ... The University of Chicago is a private university principally located in the Hyde Park neighborhood of Chicago, Illinois, founded in 1890 and opened in 1892. ... Laurence Henry Tribe (b. ... Langdell Hall, home of the HLS library. ... The College of William and Mary in Virginia is a public, liberal_arts university located in Williamsburg, Virginia. ... John Yoo is a professor of law at the University of California, Berkeley (Boalt Hall), and is best known for his work from 2001 to 2003 in the United States Justice Departments Office of Legal Counsel. ... Boalt Halls law library was expanded in 1996 with the North Addition, pictured above. ...

References

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