Structural Issues in Constitutional Law

• Author: Charles D. Kelso; R. Randall Kelso
• Profession: Professors of Law
• Pages: 552

Page 552

As noted at ß 5.2.2.2, there are four main elements of constitutional structure: judicial review, federalism, separation of powers, and checks and balances. Judicial review will be discussed in Chapter 17. Federalism will be discussed in Chapter 18. Separation of powers will be discussed in Chapter 19. Additional issues regarding checks and balances will be discussed in Chapter 20. Taken together, these issues provide the governmental blueprint for our form of constitutional democracy.

Given the focus of this book on constitutional law, the discussion of judicial review in Chapter 17 concerns the rules and doctrines regarding judicial examination of whether actions by government officials or other individuals have violated the United States Constitution. Chapter 17 also discusses what limits exist on judicial review regarding the actions of government officials or others.

Federalism concerns the relationship of power between the federal government and the states. As discussed in Chapter 18, this involves issues of federal power versus state power, both in terms of the outer limits of expressly granted or implied federal power, and in terms of prohibitions on federal and state power. Determining the extent of this power involves considering constitutional text on federalism issues; arguments of context, particularly related provisions in the Constitution and theories of federalism which structured the Constitution; the history leading up to a constitutional provision's ratification; legislative and executive practice under that provision; the Supreme Court's precedents in interpreting that constitutional provision; and prudential considerations.

Separation of powers doctrine concerns principles regarding the balance of power between the legislative, executive, and judicial branches. As discussed in Chapter 19, the separation of powers doctrine underlying our constitutional democracy combines two ideas. The first is that the Constitution identifies three distinct governmental functions: the legislative power, a power to make law; the...