Constitutional US Law

Tag: Long Read

  • Writ Scope

    Habeas Corpus: Scope of the WritAt the English common law, habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. That common law m…

  • Indian Tribes

    Commerce With Indian TribesCongress's power to regulate commerce "with the Indian tribes," once almost rendered superfluous by Court decision,1 has now been resurrected and made largely the basis for informing judicial judgment with res…

  • Habeas Corpus

    Suspension of Habeas Corpus by the PresidentSee Article I, § 9.ResourcesNotes and ReferencesThis text about Habeas Corpus is based on "The Constitution of the United States…

  • Contempt

    Sanctions of the Investigatory Power: ContemptExplicit judicial recognition of the right of either house of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain v. Daugherty.1 But the…

  • Mootness

    MootnessA case initially presenting all the attributes necessary for federal court litigation may at some point lose some attribute of justiciability and become "moot." The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply…

  • Prospectivity

    Retroactivity Versus ProspectivityOne of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do no…

  • Baker v. Carr

    The Doctrine Before Baker v. CarrOver the years, the political question doctrine has been applied to preclude adjudication of a variety of other issues. In particular, prior to Baker v. Carr,1 cases challenging the distribution of political power thr…

  • Political Questions Doctrine

    The Doctrine Before Baker v. CarrOver the years, the political question doctrine has been applied to preclude adjudication of a variety of other issues. In particular, prior to Baker v. Carr,1 cases challenging the distribution of political power thr…

  • Public Rights

    The "Public Rights" DistinctionDistinction.-A major delineation of the distinction between Article I courts and Article III courts appears in Murray's Lessee v. Hoboken Land & Improvement Co.1 At issue was a summary procedure, without b…

  • Bill of Rights

    Bill of Rights Introduction The first ten amendments were added to the Constitution less than three years after it became effective. They were proposed by the first session of the First Congress in 1789 and were ratified by the States in late 1791. Each of these amendments arose out of the controversy surrounding the ratification…

  • Termination of Treaties by Notice

    Termination of Treaties by NoticeTypically, a treaty provides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other mea…

  • Presidential Immunity

    Presidential Immunity From Judicial DirectionIn Mississippi v. Johnson,1 in 1867, the Court placed the President beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statu…

  • Separation-of-Powers Judicial Protection

    Executive Power: Separation-of-Powers Judicial ProtectionIn recent cases, the Supreme Court has pronouncedly protected the Executive Branch, applying separation-of-powers principles to invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately…

  • Necessary and Proper Clause

    Necessary and Proper Clause DefinitionAll grants of power to Congress in § 8, as elsewhere, must be read in conjunction with the Necessary and Proper Clause, § 8, cl. 18, which authorizes Congress "[t]o make all Laws which shall be necessary and proper for carrying into Execution the …

  • Myers Case

    The Myers CaseHowever much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States 1 to have carried a majority of the Court with him in establishing the Hamiltonian conception…