Brief introduction much of what we study in this section is

Brief IntroductionMuch of what we study in this section is to
understand the United States Constitution and more particularly
the Bill of Rights- You are required to read the bill of
rightsFirst 10 Amendments to the Constitution
It is important because much of what we learn here flows into
the Universal Declaration of Human Rights of the United
Nations which is one of the most important sources of
international Human Rights LawThat law in turn influences
many other branches of International law in some way.These in
turn have influenced Regional law and National Laws of many
countries.
Read The universal Declaration of Human Rights
Two important Historical DocumentsAs background we needs to
mention two documentsBoth of these were born from rebellions
between classes of people in England against their King.They
sought to limit the power of the King
Magna Carta Libertatum Magna Carta Libertatum (Medieval
Latin for "the Great Charter of the Liberties"), commonly called

Magna Carta (also Magna Charta; "(the) Great Charter"),
[a] is a charter agreed to by King John of England at
Runnymede, near Windsor, on 15 June 1215. First drafted by
the Archbishop of Canterbury to make peace between the
unpopular King and a group of rebel barons,
it promised the protection of church rights, protection for the
barons from illegal imprisonment, access to swift justice, and
limitations on feudal payments to the Crown, to be implemented
through a council of 25 barons.
Magna Carta still forms an important symbol of liberty today,
often cited by politicians and campaigners, and is held in great
respect by the British and American legal communities, Lord
Denning describing it as "the greatest constitutional document
of all times – the foundation of the freedom of the individual
against the arbitrary authority of the despot"
Clause 39 Magna Carta 1215
"No free man shall be seized or imprisoned, or stripped of his
rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force
against him, or send others to do so, except by the lawful
judgement of his equals or by the law of the land.

Clause 40 Magna Carta 1215"To no one will we sell, to no one
deny or delay right or justice. No free man shall be seized or
imprisoned, or stripped of his rights or possessions, or outlawed
or exiled . nor will we proceed with force against him . except
by the lawful judgement of his equals or by the law of the land.
"
Clause 14 Magna Carta 1215of the charter required the king to
“obtain the common counsel of the kingdom for the assessment
of aid”
No taxation without representation
1689 English Bill of Rights The 1689 English Bill of Rights was
a British Law, passed by the Parliament of Great Britain in 1689
that declared the rights and liberties of the people and settling
the succession in William III and Mary II following the
Glorious Revolution of 1688 when James II was deposed.
English Bill of Rights Summary of the English Bill of Rights
The 1689 English Bill of Rights had a massive influence on the
colonies in North America and the Constitution of the United
States. The most important Articles of the 1689 English Bill of
Rights are as follows:
English Bill of Rightsthe pretended power of suspending the
laws and dispensing with[nb 2] laws by regal authority without
consent of Parliament is illegal;the commission for
ecclesiastical causes is illegal;levying taxes without grant of

Parliament is illegal;
English Bill of Rights it is the right of the subjects to petition
the king, and prosecutions for such petitioning are
illegal;keeping a standing army in time of peace, unless it be
with consent of Parliament, is against law;Protestants may have
arms for their defence suitable to their conditions and as
allowed by law;
English Bill of Rights election of members of Parliament ought
to be free;the freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any court
or place out of Parliament;excessive bail ought not to be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted;
English Bill of Rights jurors in trials for high treason ought to
be freeholders;promises of fines and forfeitures before
conviction are illegal and void;for redress of all grievances, and
for the amending, strengthening and preserving of the laws,
Parliaments ought to be held frequently.
The Enlightenment
“Age of Reason”
NIALL FERGUSON- modern historian at Harvard

six powerful concepts (killer apps) of the westcompetition,
science, the rule of law, modern medicine, consumerism, and
the work ethic.
Learning Objective
Day 1Students will be able to define the Enlightenment and key
vocabulary, and identify the historical roots of this time period.
Key VocabularyEnlightenment: a period during the 1600s and
1700s in which educated Europeans changed their outlook on
life by seeing reason as the key to human progress.Age of
Reason: another name for the EnlightenmentSalons: in France,
a simple meeting of philosophers to discuss ideas during the
Enlightenment Philosopher: a scholar or thinkerReason: Using
logical thinking, not superstition
Roots of the EnlightenmentThe Enlightenment grew out of the
Renaissance, Reformation, and the Scientific Revolution.
What’s the same?: Like all of these other movements, much
Enlightenment thinking challenged accepted beliefs. What’s
new?: Enlightenment philosophers wanted to use the ideas and
reason of the Scientific Revolution for problems in governme nt
and society.
Enlightenment in Europe -> modern constitutional ideasWhat is
it?The term "Enlightenment" refers to a loosely organized
intellectual movement, secular, rationalist, liberal, and

egalitarian in outlook and values, which flourished in the
middle decades of the eighteenth century.
Enlightenment in EuropeOriginsIn a long-term perspective, the
Enlightenment can be regarded as the third and last phase of the
cumulative process by which European thought and intellectual
life was "modernized" in the course of the early modern period.
Its relation to the two earlier stages in this process—
Renaissance and Reformation
Enlightenment in Europe IDEAS:Religion. No idea is more
commonly associated with the Enlightenment than hostility
toward established forms of religion—indeed, at least one major
interpreter has characterized the movement in terms of "the rise
of modern paganism" (Gay, 1966). It is certainly the case that
the majority of adherents to the Enlightenment shared an
intellectual aversion to theism in its inherited forms:
Enlightenment in Europe IDEAS:Science. It is a commonplace
that the demotion of religion by the Enlightenment went hand in
hand with the promotion of science—indeed, the very notion of
a generic "science," as a sphere of cognition distinct from
religious "belief," was undoubtedly a gift of the eighteenth
century. The Enlightenment discovery or construction of
science, in this sense, owed everything to the idea of a heroic
age of scientific achievement just behind it, in the development
of modern astronomy and physics from Nicolaus Copernicus to
Newton.

Enlightenment in Europe IDEAS: Politics. The seventeenth
century had seen a profound revolution in political thought,
with the emergence of the modern "natural rights" tradition of
Grotius, Hobbes, Locke, and Pufendorf. One of the major
achievements of the early Enlightenment was to popularize and
disseminate this tradition, via an endless array of translations,
summaries, and commentaries. By the mid-eighteenth century,
the basic conceptual vocabulary of the natural rights tradition—
"natural rights," "state of nature," "civil society," "social
contract"—had entered the mainstream of Enlightenment
political thought, which embraced, nearly unanimously, the
belief that the only legitimate basis of political authority was
consent. The path toward the vindication of "inalienable natural
rights" in the founding documents of the American and French
Revolutions lay open
Important ideasMontesquieu established the idea of three
branches of government—executive, legislature, and judiciary.
John Locke (1632–1704) was another prominent Western
philosopher who conceptualized rights as natural and
inalienable. Like Hobbes, Locke believed in a natural right to
life, liberty, and property.
Light out of the DarknessA Frenchman, Bernard de Fontenelle,
expressed this optimistic faith in reason and progress. In 1702,
he wrote that the new century “will become more enlightened
day by day, so that all previous centuries will be lost in
darkness by comparison.”

The SalonsIn France, thinkers called philosophes (French for
“philosophers”) championed the idea of reason in
government.Philosophers often gathered in informal meetings,
called salons. There they exchanged and debated ideas for
hours.Many salons were organized by women. Gatherings like
these helped to shape and spread the ideas of the
Enlightenment.Think/Pair/Share: Describe the purpose of a
salon.
Why is this important?Many of our own ideas about
government, such as the Declaration of Independence and the
American Constitution got their ideas directly from the
Enlightenment.In fact, many of America’s founding fathers
studied the ideas of the Enlightenment thinkers during the
American Revolution.
Left to right: Benjamin Franklin, John Adams, Thomas
Jefferson
What a concept!Enlightenment thinkers rejected authority and
upheld the freedom of individuals to think for themselves.
Rene Descartes: “I think, therefore I am.”
Enlightenment and GovernmentEnlightenment thinkers
criticized accepted ideas about government. Some questioned
the medieval belief in the divine right of kings [ WE WILL
NOT LOOK AT THIS CONCEPT ANY FURTHER ALTHOUGH
IT IS IN YOUR BOOKMany Enlightenment thinkers stressed
individual rights that governments must respect.Enlightenment
thinkers also felt that people should have a say in their
government.

Enlightenment and ReligionI will not explore this issue other
than to say that Enlightenment thinkers embraced tolerance of
other points of view.Many rejected traditional religion
completely
Learning Objective
Days 2-4Students will be able to describe the ideas of major
Enlightenment thinkers.
Fill out the chart as the presentation progresses.
Thomas HobbesHobbes believed people are naturally selfish,
cruel, and greedy.In 1651, he published a book called
Leviathan. In this book, he wrote that people are driven by a
restless desire for power. Without laws, people would always be
in conflict.In such a “state of nature”, life would be “nasty,
brutish, and short.”His idea: Governments were created to
protect people from their own selfishness.
Hobbes continued….Later Enlightenment thinkers might not
have agreed with Hobbes…But, he was important because he
was one of the first thinkers to apply reason to the problem of
politicsHis ideas may sound harsh, but it was based on his own
observations of human nature and reasoning.

Add these definitions to your vocabulary listSocial Contract: an
agreement between people and their government, in which
people give up some things in return for the benefit of having
government.Natural rights: rights that people have simply for
being human.Bill of rights: a list of basic rights a government
must protect.Constitutional Monarchy: a form of government in
which the king’s power is limited by a basic set of laws, or
Constitution.
John Locke: Social Contract and Natural RightsHe wrote Two
Treatises of Government in 1690. He believed the purpose of
government was to protect people’s natural rights. He said
government should protect,” his life, liberty, and property—
against the injuries and attempts of other men.”His idea: The
true basis of government was a social contract between people
and their government. If the government didn’t respect people’s
rights, it could be overthrown.
John Locke: Social Contract and Natural RightsIn exchange
protection, people gave government the power to rule on their
behalf. We call this idea the “consent of the governed.”Lasting
Impact: the idea that government could be overthrown if it
failed to respect people’s rights had wide influence and was
ultimately echoed in the American Declaration of Independence.
Locke’s ideas in EnglandLocke was in favor of constitutional
monarchies. This meant laws or a constitution limited the
power of the monarchs (or kings).In 1689, the English set down
a new set of rules called the English Bill of Rights. This

strengthened the power of the people and their representatives
in Parliament (an English congress.)
Montesquieu: Separation of PowersLike Locke, Montesquieu
was concerned with how to protect liberty from a bad
government.He Wrote The Spirit of Laws in 1748. In this book,
he described how governments should be organized. His idea:
The separation of powers: By dividing different powers among
more than one branch of government, no one group in the
government could grow too powerful.
Montesquieu continued….Each branch of government checked
the other branches. When powers were not separated this way,
Montesquieu warned, liberty was soon lost. He said: “When the
legislative and executive powers are united in the same
person…, there can be no liberty.”Lasting Impact: He greatly
influenced the men who wrote the U.S. Constitution. We now
have a separate legislative (Congress), judicial (courts), and
executive (President) branch.
Voltaire: Religious tolerance and free speechVoltaire was an
Enlightenment writer.His most famous novel was Candide, in
which he poked fun at old traditional ideas.Voltaire was
especially concerned with freedom of thought and
expression.His idea: He had a strong belief in religious
tolerance and free speech. Tolerance means the acceptance of
different beliefs and customs.

Voltaire Continued…Voltaire said, “I disapprove of what you
say, but I will defend to the death your right to say it.”Lasting
Impact: Voltaire met Benjamin Franklin, and when the U.S.
Bill of Rights was written, the ideas of freedom of religion and
freedom of speech were added to our 1st amendment to the
Constitution.
Cesare Beccaria: The Rights of the AccusedIn the Middle Ages,
torture of criminals was common. The rack was often used, as
well as devices like thumbscrews.Beccaria, an Italian, wrote a
book called On Crimes and Punishments in which he argued
against brutal punishments.
Beccaria continued….His ideas: A person accused of a crime
should receive a fair and speedy trial. Torture should never be
used. Capital Punishment (death sentences) should be done
away with.“For a punishment to be just it, should consist of
only such gradations of intensity as to suffice to deter men from
committing crimes.” This means that “punishment should fit
the crime” and not be more than necessary to stop someone else
from doing it again.
Beccaria’s impactBeccaria’s ideas were adopted straight into
our Constitution’s Bill of Rights. In fact our 8th amendment
prevents “cruel and unusual punishment” for crimes, and our 6th
amendment provides for a speedy trial. (The only exception is
the Death Penalty, which we still have in the United States
today.)

DamiensFetched from his prison cell on the morning of 28
March 1757, Damiens allegedly said "La journée sera rude"
("The day will be hard"). He was first subjected to a torture in
which his legs were painfully compressed by devices called
"boots".
DamiensHe was then tortured with red-hot pincers; the hand
with which he had held the knife during the attempted
assassination was burned using sulphur; molten wax, molten
lead, and boiling oil were poured into his wounds. He was then
remanded to the royal executioner, Charles Henri Sanson, who
harnessed horses to his arms and legs to be dismembered.
DamiensBut Damiens' limbs did not separate easily: the
officiants ordered Sanson to cut Damiens' tendons, and once
that was done the horses were able to perform the
dismemberment.Once Damiens was dismembered, to the
applause of the crowd, his reportedly still-living torso was burnt
at the stake. (Some accounts say he died when his last
remaining arm was removed
Adam Smith
Adam Smith (16 June 1723 NS (5 June 1723 OS) – 17 July
1790) was a Scottish economist, philosopher, and author
Arguably founder of CAPITALISM
Adam Smith

As every individual, therefore, endeavours as much as he can
both to employ his capital in the support of domestic industry,
and so to direct that industry that its produce may be of the
greatest value; every individual necessarily labours to render
the annual revenue of the society as great as he can. He
generally, indeed, neither intends to promote the public interest,
nor knows how much he is promoting it.
Adam Smith By preferring the support of domestic to that of
foreign industry, he intends only his own security; and by
directing that industry in such a manner as its produce may be
of the greatest value, he intends only his own gain, and he is in
this, as in many other cases, led by an invisible hand to promote
an end which was no part of his intention. Nor is it always the
worse for the society that it was no part of it. By pursuing his
own interest he frequently promotes that of the society more
effectually than when he really intends to promote it. I have
never known much good done by those who affected to trade for
the public good. It is an affectation, indeed, not very common
among merchants, and very few words need be employed in
dissuading them from it.
Adam Smith Those who regard that statement as Smith's central
message also quote frequently Smith's dictum:It is not from the
benevolence of the butcher, the brewer, or the baker, that we
expect our dinner, but from their regard to their own interest.
We address ourselves, not to their humanity but to their self-
love, and never talk to them of our own necessities but of their
advantages.

Learning ObjectiveStudents will be able to describe how
democratic thoughts and governments were influenced by the
Enlightenment.
Impact of the Enlightenment on GovernmentModern views of
government owe a great deal to Enlightenment thinkers. The
Enlightenment influenced monarchs in Europe, especially
"enlightened despots," and greatly affected revolutions in
America and France.
Enlightened Rule by MonarchsDespot: a king or other ruler
with absolute, unlimited power.The Enlightenment did not
change Europe overnight. Many countries still had kings.
Some of them became “enlightened despots” by using
enlightenment ideas in their countries.Examples: Some kings
ended the use of torture, started universities, and used religious
tolerance. They wanted to keep the people happy without losing
their power.
The American and French RevolutionsBoth America and France
had revolutions overthrowing their kings. However, the
revolution in France was much more violent.
The Enlightenment in AmericaEnlightenment ideas had a major
influence on the leaders of the American Revolutio n. English
leaders in America shared with John Locke the traditions of the
Magna Carta and the English Bill of Rights. When the
Americans rebelled in 1775, they pointed to the abuse of their

rights by the English king. The Declaration of Independence
echoed Locke’s ideas on natural rights and the purpose of
government.
“We the People”Other Enlightenment ideas can be seen in the
U.S. Constitution. America’s basic law includes Montesquieu’s
idea of separation of powers. The Bill of Rights protects the
freedom of religion and speech championed by Voltaire. It also
includes some of the rights supported by Beccaria, such as the
right to a speedy trial.
Enlightenment in FranceIn 1789, revolution broke out in France.
The National Assembly adopted the Declaration of Rights of
Man and Citizen. This document talked about liberty and
equality. It upheld the rights to own property, and freedom of
speech and religion.
Declaration of the Rights of Man and Citizen1. Men are born
and remain free and equal in rights. Social distinctions may be
founded only upon the general good.2. The aim of all political
association is the preservation of the natural and imprescriptible
rights of man. These rights are liberty, property, security, and
resistance to oppression.
Declaration of the Rights of Man and Citizen
3. The principle of all sovereignty resides essentially in the
nation. No body nor individual may exercise any authority
which does not proceed directly from the nation.

Declaration of the Rights of Man and Citizen4. Liberty consists
in the freedom to do everything which injures no one else;
hence the exercise of the natural rights of each man has no
limits except those which assure to the other members of the
society the enjoyment of the same rights. These limits can only
be determined by law.
Declaration of the Rights of Man and Citizen5. Law can only
prohibit such actions as are hurtful to society. Nothing may be
prevented which is not forbidden by law, and no one may be
forced to do anything not provided for by law.6. Law is the
expression of the general will. Every citizen has a right to
participate personally, or through his representative, in its
foundation. It must be the same for all, whether it protects or
punishes
Declaration of the Rights of Man and Citizen7. No person shall
be accused, arrested, or imprisoned except in the cases and
according to the forms prescribed by law. Any one soliciting,
transmitting, executing, or causing to be executed, any arbitrary
order, shall be punished. But any citizen summoned or arrested
in virtue of the law shall submit without delay, as resistance
constitutes an offense.
Declaration of the Rights of Man and Citizen8. The law shall
provide for such punishments only as are strictly and obviously
necessary, and no one shall suffer punishment except it be

legally inflicted in virtue of a law passed and promulgated
before the commission of the offense.
Declaration of the Rights of Man and Citizen9. As all persons
are held innocent until they shall have been declared guilty, if
arrest shall be deemed indispensable, all harshness not essential
to the securing of the prisoner's person shall be severely
repressed by law.
Declaration of the Rights of Man and Citizen10. No one shall be
disquieted on account of his opinions, including his religious
views, provided their manifestation does not isturb the public
order established by law.11. The free communication of ideas
and opinions is one of the most precious of the rights of man.
Every citizen may, accordingly, speak, write, and print with
freedom, but shall be responsible for such abuses of this
freedom as shall be defined by law
Violence of the French RevolutionSoon, however, terrible
violence erupted. Thousands of wealthy Frenchmen and
members of the Royal family were beheaded on the
guillotine.Guillotine: a machine that cut off people’s heads by
dropping a sharp blade.The bloody chaos brought a strange end
to the Enlightenment dream based on reason.
Learning ObjectiveStudents will be able to list the contributions
of women to the Enlightenment.

Women of the EnlightenmentSeveral women, such as Madame
Geoffrin, Abigail Adams, Olympe de Gouges, and Mary
Wollstonecraft, worked to extend ideas of liberty and equality
to women.Once the ideas of the Enlightenment were expressed,
women wanted these rights as well as men.
French Enlightenment WomenMadame Geoffrin used her home
for many of the salon meetings in France. She not only hosted
the meetings, but often directed the conversations and settled
arguments.Olympe de Gouges published the female version of
the document of the French Revolution. She called it the
Declaration of the Rights of Woman and the Female Citizen.
She called for equality in all things. When she spoke out
against the bloodshed of the French Revolution, they sent her to
the guillotine.
Abigail AdamsWife to John Adams, who was a leader of the
American Revolution and later President.She reminded John not
to forget women in the Revolution. “Remember, all men would
be tyrannts if they could. If particular care and attention is not
paid to the Ladies, we are determined to start a rebellion…we
will not hold ourselves bound to any Laws in which we have no
voice.”
Mary WollstonecraftAn English writer. In 1792, she argued
that women deserved the same rights and opportunities as
men.Wollstonecraft believed education was the key for women
wanting equality and freedom. She inspired many later leaders

of the women’s rights movement in America.
US CONSITUTIONThe Articles (7)
Article I (1) The Legislative BranchA long part with 10
sections, creates the Congress to make laws, divides Congress
into a Senate and House of Representatives, makes rules for
election of members, gives some powers to Congress, limits
other powers
US CONSITUTIONArticle II (2) The Executive BranchSets up
the presidency and vice presidency to carry out or execute the
laws, election rules, powers of the president, how to
impeachArticle III (3) The Judicial BranchSets up the Supreme
Court, duties and powers of Supreme Court and federal courts,
power of judicial review, defines treason
US CONSITUTIONArticle IV (4) The StatesCreates rules for
states to get along with other states, guarantees to states,
admitting states to the Union Article V (5) Making
AmendmentsHow to add amendments to the Constitution
US CONSITUTIONArticle VI (6) Supreme Law of the LandThe
Constitution is the highest law of the landArticle VII (7)
Ratification The Constitution became effective when 9 out of 13
states approved it

US CONSITUTION-AmendmentsThe Amendments (27) I (1)
Freedom of religion, speech, press, assembly, petition II
(2) Right to bear arms III (3) Quartering of troops IV
(4) Search and seizure V (5) Due process, double
jeopardy, self-incrimination
US CONSITUTION-Amendments VI (6) Jury trial, right to
counsel VII (7) Common law suits VIII (8) Excess bail
or fines, cruel and unusual punishment IX (9) Rights not
named X (10) Powers reserved to states XI (11)
Lawsuits against a state XII (12) Election of president
and vice president
US CONSITUTION-Amendments XIII (13) Abolition of
slavery XIV (14) Due process, equal protection, privileges of
citizens XV (15) Rights not to be denied because of race
XVI (16) Income tax XVII (17) Election of senators
XVIII (18) Prohibition XIX (19) Women's right to vote
US CONSITUTION-Amendments XX (20) Presidential term
and succession XXI (21) Repeal of prohibition XXII
(22) President limited to 2 terms XXIII (23) Right to
vote for president and VP for persons in D.C. XXIV (24)
No poll tax
US CONSITUTION-Amendments XXV (25) Presidential
succession XXVI (26) Right to vote at age 18 XXVII (27)
Compensation for members of Congress

Parliamentary Sovereignty
The concept of Parliamentary Sovereignty broadly means that
Parliament has the right to make or unmake any law, and no
person is allowed to override or set aside the law of Parliament.
Acts of Parliament override the law of the judges.
WHAT IS DANGER WITH PARLIAMENTARY
SOVEREIGNTY
HOW DO FUNDAMETAL RIGHTS FIT INTO THIS
The Rule of Law aims to prevent the exercise of arbitrary or
tyrannical power. It became popularised by AV Dicey, who
described it through three main tenets:
1.A man can only be punished if it was proved in court that he
breached a law. This means that the Sovereign cannot punish
people arbitrarily.
2.No man is above the law, and everyone is equal before the
law. This means that the law applies to everyone in the exact
same way regardless of social, economic or political status.
3.The Constitution (the law) is the result of previous judicial
decisions determining the rights of private persons. This means
the constitution is not the source of the law, but the
consequence of inherent rights. We don’t derive our rights from
the Constitution; the Constitution is the result of our rights.

The Rule of Law should not be limited to three tightly defined
principles. The Rule of Law is a broad concept which prevents
arbitrary power in any form.
International Commission of Jurists
The rule of law can be characterised as ‘the principles,
institutions and procedures, …which the experience and
traditions of lawyers in different countries of the world, often
having themselves varying political structures and economic
backgrounds, have shown to be important to protect the
individual from arbitrary government and enable him to enjoy
the dignity of men.’
Lord Bingham
1.Law must be accessible, intelligible, clear.
2.Legal rights and liabilities should be resolved by application
of the law, not discretion.
3.Laws of the land should apply equally to all.
4.Laws must afford adequate protection to human rights.
5.Means must be provided for resolving civil disputes.
6.Ministers and public officers should exercise the powers
conferred on them reasonably and without exceeding their
limits.
7.Adjudicative procedures provided by the state should be fair.
8.Compliance by the state with international law.
What is rule of law

Why is it important
Why is it important
Business environment corruption free –if not what happens?
Wrong people get tenders. The work is not done properly or at
all. Money is wasted. Taxes must be raised. Ultimately
infrastructure starts collapsing
Public works – bridges – are they safe? Water pipes will they
last? Airports become unsafe eg the death of the MD of Total in
Russia last week
Public Health - Hospitals are they clean and medicines available
– SA –environment wrecked as in china where they cannot
breathe the air in Beijing
Problems if not applied
Public Participation – The government does not consult with
local residences. Does what they want because they are corrupt
or just negligent – cell phone towers in schools. Power stations
in residential neighbourhoods. SANRAL again – people remove
number palates, steal them etc
Civil Justice – failures in this regard can be devastating can
lead to violence, loss of money, loss of confidence – people will
not invest in the country because they cannot have disputes
resolved.
How the elements of rule of law are linked to the 9 factors in
two ways

1) the law imposes limits on the exercise of power by the state
and its agents, as well as individuals and private entities
2)The state limits the actions of members of society and fulfills
its basic duties towards society such that the public interest is
served, people are protected from violence and members of
society have access to mechanisms to settle disputes and redress
grievances
Self dealing
Factor 1:
Constraints on Government Powers Factor 1 measures the extent
to which those who govern are bound by law. It comprises the
means, both constitutional and institutional, by which the
powers of the government and its officials and agents are
limited and held accountable under the law. It also includes
non-governmental checks on the government’s power, such as a
free and independent press.
Factor 1:
Governmental checks take many forms; they do not operate
solely in systems marked by a formal separation of pow ers, nor
are they necessarily codified in law.
Factor 1:
What is essential, however, is that authority is distributed,

whether by formal rules or by convention, in a manner that
ensures that no single organ of government has the practical
ability to exercise unchecked power.
This factor addresses the effectiveness of the institutional
checks on government power by the
legislature (1.1),
the judiciary (1.2), and
independent auditing and review agencies (1.3)2, as well as the
effectiveness of
nongovernmental oversight by the media and civil society (1.5),
which serve an important role in monitoring government actions
and holding officials accountable.
Factor 1:
The extent to which transitions of power occur in accordance
with the law is also examined (1.6).3
In addition to these checks, this factor also measures the extent
to which government officials are held accountable for official
misconduct.
Factor 2
This factor measures the absence of corruption in government.
The factor considers three forms of corruption:
bribery
improper influence by private or public or private interests
and misappropriation of public funds or other resources.

Factor 2
These three forms of corruption are examined with respect to :
To government officers in the executive branch
the judiciary,
the military and police
the legislature
and encompass a wide range of possible situations in which
corruption—from petty bribery to major kinds of fraud can
occur.
Factor3
Factor 3
measures the openness of government, which is essential for
effective public oversight. Specifically, this factor measures:
1) Whether the laws are publicized and accessible
2) Whether the laws are stable
2) whether administrative proceedings are open to public
participation;
3) and whether official information, including drafts of laws
and regulations, is available to the public.
Factor 3
The first two sub-factors relate to the clarity, publicity,
accessibility, and stability that are required for the public to
know what the law is and what conduct is permitted and
prohibited.
Factor 3

The second two sub-factors encompass the opportunity for the
people to participate in the processes by which the laws are
made and administered. Among the indicators of participation
are:
1) whether people have the ability to petition the government;
2) whether proceedings are held with timely notice and are open
to the public;
3) and whether official information, including drafts of
legislation and records of legislative and administrative
proceedings, are available to the public.
Factor 4
Factor 4 measures protection of fundamental human rights.
It recognizes that a system of positive law that fails to respect
core human rights established under international law is at best
“rule by law”, and does not deserve to be called a rule of law
system.
Since there are many other indices that address human rights,
and as it would be impossible for the Index to assess adherence
to the full range of rights, this factor focusses on a relatively
modest menu of rights that are firmly established in accordance
with the Universal Declaration and customary international law,
and are most closely related to rule of law concerns.
Factor 4
Accordingly, Factor 4 encompasses adherence to the following
fundamental rights:
effective enforcement of laws that ensure equal protection

the right to life and security of the person
due process of law and the rights of the accused
freedom of opinion and expression
freedom of belief and religion
the right of privacy
freedom of assembly and association
and fundamental labor rights, including the right to collective
bargaining, the prohibition of forced and child labor, and the
elimination of discrimination
Factor 5
Factor 5 measures how well the society assures the security of
persons and property.
Security is one of the defining aspects of any rule of law
society and a fundamental function of the state.
It is also a precondition for the realization of the rights and
freedoms that the rule of law seeks to advance.
Factor 5
This factor includes three dimensions to cover the various
threats to order and security:
1)crime (particularly conventional crime);
2) political violence including terrorism, armed conflict, and
political unrest;
3) and violence as a socially accepted means to redress personal
grievances (vigilante justice).

Factor 6
Factor 6 measures the extent to which regulations are fairly and
effectively implemented and enforced.
Regulations, both legal and administrative, structure
interactions within and outside of the government.
Factor 6
Strong rule of law adherence requires:
1) that these regulations and administrative provisions are
enforced effectively,
2) and are applied and enforced without improper influence by
public officials or private interests
Factor 6
3) Additionally, strong rule of law requires that administrative
proceedings are conducted in a timely manner, without
unreasonable delays;
4) that due process is respected in administrative proceedings
5) and that there is no expropriation of private property
without adequate compensation.
Factor 7
Factor 7 measures whether ordinary people can resolve their
grievances peacefully and effectively through the civil justice
system.
The delivery of effective civil justice requires that the system

be
1)accessible
2)affordable
3) free of discrimination and without improper influence by
public officials
Factor 7
. The delivery of effective civil justice also necessitates that
court proceedings are conducted:
1) in a timely manner and without unreasonable delays,
2)and that judgments are enforced effectively (7.6).
Factor 7
Finally, recognizing the value of alternative dispute resolution
mechanisms (ADRs)
this factor also measures the:
1) accessibility,
2)impartiality, and
3) efficiency of
mediation and arbitration systems that enable parties to resolve
civil disputes (7.7).
Factor 8
Factor 8 evaluates the criminal justice system.
An effective criminal justice system is a key aspect of the rule
of law, as it constitutes the conventional mechanism for
bringing action against individuals for offenses against society.

Factor 8
Effective criminal justice systems are capable of:
1) investigating and adjudicating criminal offenses successfully
and
2) in a timely manner
3) through a system that is impartial and non-discriminatory
4)and is free of corruption and
5) improper government influence,
6)all while ensuring that the rights of both victims and accused
are effectively protected
Factor 8
The delivery of effective criminal justice also necessitates
correctional systems that effectively incapacitate offenders and
reduce criminal behavior.
Accordingly, an assessment of the delivery of criminal justice
should take into consideration the entire system, including the
police, lawyers, prosecutors, judges and prison officers.
Factor 9
Factor 9 concerns the role played in many countries
By customary and “informal” systems of justice – including
traditional, tribal and religious courts- and community based
systems - in resolving disputes. These systems often play a
large role in cultures in which formal legal institutions fail to
provide effective remedies for large segments of the population,
or when formal institutions are perceived as remote, corrupt, or
ineffective.

Labour hearings in the workplace
Factor 9
This factor covers three concepts: whether these dispute
resolution systems are:
1) timely and effective
2) whether they are impartial and free of improper influence;
3) and the extent to which these systems respect and protect
fundamental rights.
Federalism
What is federalism?
Federalism is the mixed or compound mode of government,
combining a general government (the central or 'federal'
government) with regional governments (provincial, state,
cantonal, territorial or other sub-unit governments) in a single
political system. Its distinctive feature, exemplified in the
founding example of modern federalism by the United States of
America under the Constitution of 1787, is a relationship of
parity between the two levels of government established. It can
thus be defined as a form of government in which there is a
division of powers between two levels of government of equal
status
In other words there is a division of power between the federal
(national) government and the governments of the individual
states.
How do we know which powers belong to federal governments
and which powers belong to state governments?

Often times this is clear but in many cases it is not clear.
1. Express powers
Thus, there are powers which definitely belong to the federal
government and these are found in article 1 section 8.
Enumerated or express Powers
Enumerated Powers are those powers specifically spelled out in
the Constitution. These include the powers of Congress, as well
as the Powers of the President. These include such powers as
those granted in Article I, Section 8:
2. Implied Powers
Implied powers are the powers held by congress and the
president, even though they are not mentioned in the
Constitution. These powers, though they are not specified, are
necessary in order for congress to carry out its responsibilities
under the enumerated, or stated, powers. They are derived from
the Necessary and Proper Clause at the end of article 1 section 8
3. Denied powers
Then there are powers which may not be exercised by the
federal governments.
Denied Powers
Not only does the Constitution delegate and divide powers, it
denies certain powers to prevent both the federal and state
governments from overstepping their bounds. Denied powers are
found in Article I, Sections 9.
4. Denied powers
Then there are powers which may not be exercised by the state
governments.
These are also called Denied Powers
found in Article I, Sections 10.
5. Reserved Powers
In the U.S. Constitution, certain specific powers are granted to

the federal government. The Constitution reserves all other
powers to the states. These are known as “reserved powers.”
The reserved powers clause is not found in the body of the
Constitution itself, but is part of the Tenth Amendment.
Amendment X
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to
the states respectively, or to the people.Then there are certain
powers called concurrent
6. Concurrent powers
Concurrent powers are powers a federal system of government
that are shared by both the federal government and each
constituent political unit (such as a state or province). These
powers may be exercised simultaneously within the same
territory, in relation to the same body of citizens, and regarding
the same subject-matter. Concurrent powers are contrasted with
reserved powers (not possessed by the federal government) and
with exclusive federal powers (possession by the states is
forbidden or requires federal permission).
In the United States, examples of the concurrent powers shared
by both the federal and state governments include the power to
tax, build roads, establish bankruptcy laws, and to create lower
courts.
Example:
Article 1, Sec. 9, Par. 1 of the Constitution, Congress shall have
power "to lay and collect taxes, duties, imposts and excises."
Article 1, Sec. 10, Par. 2, "No State shall without the consent of
Congress, lay any imposts or duties on imports or exports,
except what may be absolutely necessary for executing its
inspection laws; and the net produce of all duties and imposts
laid by any State on imports and exports shall be for the use of
the Treasury of the United States; and all such laws shall be
subject to the revision and control of Congress.
Ever since the beginning of our history, the states have
maintained the right to impose taxes. The Federal Government
has always recognized this right. When our Constitution was

adopted, the Federal Government was granted the authority to
impose taxes. The states, however, retained the right to impose
any type of tax except those taxes that are clearly forbidden by
the United States Constitution and their own state constitution.
https://www.treasury.gov/resource-
center/faqs/Taxes/Pages/state-local.aspx
Article 4
Article Four of the United States Constitution outlines the
relationship between the various states, as well as the
relationship between each state and the United States federal
government.
Article IV
Section 1.
Full faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. And
the Congress may by general laws prescribe the manner in
which such acts, records, and proceedings shall be proved, and
the effect thereof.
The first section requires states to extend "full faith and credit"
to the public acts, records and court proceedings of other states.
Congress may regulate the manner in which proof of such acts,
records or proceedings may be admitted.
Section 2.
The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states.
Clause One of Section 2 requires interstate protection of
"privileges and immunities". The seeming ambiguity of the
clause has given rise to a number of different interpretations.
Some contend that the clause requires Congress to treat all
citizens equally. Others suggest that citizens of states carry the
rights accorded by their home states while traveling in other
states.
A person charged in any state with treason, felony, or other

crime, who shall flee from justice, and be found in another
state, shall on demand of the executive authority of the state
from which he fled, be delivered up, to be removed to the state
having jurisdiction of the crime.
Clause Two requires that fugitives from justice may be
extradited on the demand of executive authority of the state
from which they flee.
No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any law
or regulation therein, be discharged from such service or labor,
but shall be delivered up on claim of the party to whom such
service or labor may be due.
This clause was rendered mostly moot when the Thirteenth
Amendment abolished slavery.
Section 3.
New states may be admitted by the Congress into this union; but
no new states shall be formed or erected within the jurisdiction
of any other state; nor any state be formed by the junction of
two or more states, or parts of states, without the consent of the
legislatures of the states concerned as well as of the Congress.
The First Clause of Section Three, also known as the
Admissions Clause,[6] grants to Congress the authority to admit
new states into the Union. Since the establishment of the United
States in 1776, the number of states has expanded from the
original 13 to 50. It also forbids the creation of new states from
parts of existing states without the consent of the affected states
and Congress.
The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims of
the United States, or of any particular state.
This clause, commonly known as the Property or Territorial
Clause, grants Congress the constitutional authority for the

management and control of all territories or other property
owned by United States. – Eg Guam is a territory
Section 4.
The United States shall guarantee to every state in this union a
republican form of government, and shall protect each of them
against invasion; and on application of the legislature, or of the
executive (when the legislature cannot be convened) against
domestic violence.
This clause, sometimes referred to as the Guarantee Clause, has
long been at the forefront of the debate about the rights of
citizens vis-à-vis the government. The Guarantee Clause
mandates that all U.S. states must be grounded in republican
principles such as the consent of the governed.
The Supremacy Clause and the Doctrine of Preemption
What happens when state law conflicts with federal law? The
answer relies on the doctrine known as federal preemption.
The Supremacy Clause is a clause within Article VI of the U.S.
Constitution which dictates that federal law is the "supreme law
of the land." This means that judges in every state must follow
the Constitution, laws, and treaties of the federal government in
matters which are directly or indirectly within the government's
control. Under the doctrine of preemption, which is based on
the Supremacy Clause, federal law preempts state law, even
when the laws conflict. Thus, a federal court may require a state
to stop certain behavior it believes interferes with, or is in
conflict with, federal law.
But in the absence of federal law, or when a state law would
provide more protections for consumers, employees, and other
residents than what is available under existing federal law, state
law holds. For instance, federal anti-discrimination law does not
include LGBTQ individuals as a protected class. Therefore, an
openly gay employee in Kansas can be lawfully fired simply for

being gay. But an Illinois employee may sue under state law for
wrongful termination if their sexual orientation or gender
identity (either actual or presumed) was a factor in the firing.
Eg Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission
A court’s Preemption analysis begins with three assumptions.
First, that Congress does not casually preempt state law. This
assumption is strongest when the legal issue is one of the
general health and welfare of a state’s citizens and consumers.
Second, that Congress’ purpose in enacting the law is a primary
concern of the Preemption analysis. Congress’ purpose is
evident in two ways: the language of the statute and its
framework, and the complete statutory and regulatory scheme.
Third, the relative importance to the State of its own law is
immaterial to the analysis. State law must yield to federal law.
Express Pre-emption case
Express Preemption is the simplest form of Preemption. As
stated by the Court in Jones v. Rath, “ Congressional
enactments...override state laws with which they conflict.”
Jones presents the classic example of Express Preemption. In
Jones, Congress passed a law requiring certain information to
be included in food labels, and a particular method for
calculating that information. Congress included language which
made it clear that any state law that overlapped with the federal
statute was preempted. California had an overlapping food label
law which required similar information, but used a different
method to find that information. Several food packagers
challenged California’s law as preempted. The Supreme Court
agreed, and struck down the California law.
Implied Pre-emption cases
McCulloch v. Maryland
Facts of the case
In 1816, Congress chartered The Second Bank of the United
States. In 1818, the state of Maryland passed legislation to
impose taxes on the bank. James W. McCulloch, the cashier of
the Baltimore branch of the bank, refused to pay the tax. The

state appeals court held that the Second Bank was
unconstitutional because the Constitution did not provide a
textual commitment for the federal government to charter a
bank.
Question
Did Congress have the authority to establish the bank?
Did the Maryland law unconstitutionally interfere with
congressional powers ie was there federal preeemption?
Conclusion
Congress has the power under the Necessary and Proper Clause
to charter the second Bank of the United States.
Maryland may not impose a tax on the bank.
In a unanimous decision, the Court held that Congress had the
power to incorporate the bank and that Maryland could not tax
instruments of the national government employed in the
execution of constitutional powers.
Pursuant to the Necessary and Proper Clause (Art. I, Section 8),
Chief Justice Marshall noted that Congress possessed powers
not explicitly outlined in the U.S. Constitution. Marshall
redefined “necessary” to mean “appropriate and legitimate,”
covering all methods for furthering objectives covered by the
enumerated powers.
Marshall also held that while the states retained the power of
taxation, the Constitution and the laws made in pursuance
thereof are supreme (supremacy clause) and cannot be
controlled or destroyed by the states.
Pennsylvania v. Nelson
Facts of the case
Nelson, a member of the Communist Party, was convicted of
violating the Pennsylvania Sedition Act. This Act was
implemented prior to Congress's adoption of the Smith Act of
1940 (amended in 1948) which prohibited the same conduct as
Pennsylvania's law.

Question
Did the Smith Act supersede enforcement of Pennsylvania's
sedition law?
Conclusion
Yes. The Court held that Pennsylvania's law was unenforceable
and was superseded by the federal act. Chief Justice Warren
argued that the scheme of federal regulation of seditious
activities was "pervasive" and "left no room for the states to
supplement it." Furthermore, the federal act dealt with an issue
of primary importance to the national government which made
any enforcement of similar state laws potentially harmful to the
smooth execution of national statutes.
Gonzales v. Oregon
Facts of the case
In 1994 Oregon enacted the Death with Dignity Act, the first
state law authorizing physicians to prescribe lethal doses of
controlled substances to terminally ill patients. Attorney
General John Ashcroft declared in 2001 that physician-assisted
suicide violated the Controlled Substances Act of 1970 (CSA).
Ashcroft threatened to revoke the medical licenses of physicians
who took part in the practice. Oregon sued Ashcroft in federal
district court. That court and, later the Ninth Circuit, held
Ashcroft''s directive illegal. The courts held that the CSA did
not authorize the attorney general to regulate physician-assisted
suicide, which was the sort of medical matter historically
entrusted to the states.
Question
Did the Controlled Substances Act authorize the attorney
general to ban the use of controlled substances for physician-
assisted suicide in Oregon?
Conclusion
No. In a 6-3 opinion delivered by Justice Anthony Kennedy, the
Court held that Congress intended the CSA to prevent doctors
only from engaging in illicit drug dealing, not to define general
standards of state medical practice. Moreover, the CSA did not

authorize Attorney General John Ashcroft to declare a medical
practice authorized under state law to be illegitimate.
Some interesting areas where this has not yet been resolved:
Historically, the federal government has not cracked down
every single time a state and federal law contradict. If state law
contradicts federal law but it's not something that affects
national security or international relations, the fed might not
intervene. In Nevada, certain counties have legalized
prostitution, which also violates federal law, but the federal
government has so far not enforced the doctrine of pre-emption
in Nevada. Prostitution is illegal according to U.S. federal law,
but under Nevada state law, counties with a population of less
than 700,000 people can legally have legal brothels. Unlike in
Arizona, the federal government has not sued the state to shut
down prostitution, and unlike California's medical marijuana
dispensaries, the fed has not raided any brothels in the state.
You could argue that prostitution is also an international issue,
since human trafficking is certainly a problem that crosses state
and national borders, but the federal government has not taken
any action in Nevada.
Probably the best litmus test for how the federal government
will handle marijuana legalization in Colorado and Washington
is to look at how it's handled legalized medical marijuana in
other states.
As we saw earlier, the federal government can enforce the
doctrine of pre-emption, but it doesn't exercise its full power in
every case. In California, where medical marijuana is legal, the
federal government has taken a different tack.
California legalized medical marijuana in 2003, and the state's
marijuana facilities have had a rocky relationship with the
federal government, especially beginning in the fall of 2011.
Dispensaries in California have been subject to federal raids,
though in most cases there haven't been any arrests -- instead,

the government seizes and destroys the business owner's plants
and sometimes shuts the businesses down completely.
In Colorado, dispensaries and other medical marijuana
businesses have been subject to raids and audits conducted
under federal law. (see below for a relevant case)
The interstate commerce clause
The Commerce Clause refers to Article 1, Section 8, Clause 3 of
the U.S. Constitution, which gives Congress the power “to
regulate commerce with foreign nations, and among the several
states, and with the Indian Tribes.
Congress has often used the Commerce Clause to justify
exercising legislative power over the activities of states and
their citizens, leading to significant and ongoing controversy
regarding the balance of power between the federal government
and the states. The Commerce Clause has historically been
viewed as both a grant of congressional authority and as a
restriction on the regulatory authority of the States.
The commerce clause has traditionally been interpreted both as
a grant of positive authority to Congress and as an implied
prohibition of state laws and regulations that interfere with or
discriminate against interstate commerce (the so-called
“dormant” commerce clause). In its positive interpretation the
clause serves as the legal foundation of much of the U.S.
government’s regulatory power.
Dispute exists within the courts as to the range of powers
granted to Congress by the Commerce Clause. It is often paired
with the Necessary and Proper Clause, and the combination used
to take a broad, expansive perspective of these powers.
The Commerce Clause is the source of federal drug prohibition
laws under the Controlled Substances Act. In a recent medical
marijuana case, Gonzales v. Raich, the Supreme Court rejected
the argument that the ban on growing medical marijuana for

personal use exceeded Congress' powers under the Commerc e
Clause. Even if no goods were sold or transported across state
lines, the Court found that there could be an indirect effect on
interstate commerce. The Court relied heavily on a New Deal
case, Wickard v. Filburn, which held that the government may
regulate personal cultivation and consumption of crops because
the aggregate effect of individual consumption could have an
indirect effect on interstate commerce.
United States v. Bishop Processing Co., 287 F. Supp. 624 (D.C.
Md. 1968), that the movement of AIR POLLUTION across state
lines from Maryland to Delaware constituted interstate
commerce that is subject to congressional regulation. The
plaintiff, the United States, sought an INJUNCTION under the
federal Clean Air Act (42 U.S.C.A. §§ 7401 et seq. [1955]) to
prevent the operation of the Maryland Bishop Processing
Company, a fat-rendering plant, until it installed devices to
eliminate its emission of noxious odors. The defendant plant
owners argued, among other contentions, that Congress was
powerless to regulate their business because it was clearly an
intrastate activity. The court disagreed. Foul-smelling air
POLLUTION adversely affects business conditions, depresses
property values, and impedes industrial development. These
factors interfere with interstate commerce, thereby bringing the
plant within the scope of the provisions of the federal air -
pollution law.
A brief comment on the “dormant commerce clase”
The Dormant Commerce Clause, or Negative Commerce Clause,
in American constitutional law, is a legal doctrine that courts in
the United States have inferred from the Commerce Clause in
Article I of the US Constitution. The Dormant Commerce
Clause is used to prohibit state legislation that discriminates
against interstate or international commerce.
Justice Anthony Kennedy has written that: "The central
rationale for the rule against discrimination is to prohibit state

or municipal laws whose object is local economic
protectionism, laws that would excite those jealousies and
retaliatory measures the Constitution was designed to prevent."
Thus, in a dormant Commerce Clause case, a court is initially
concerned with whether the law facially discriminates against
out-of-state actors or has the effect of favoring in-state
economic interests over out-of-state interests.
Discriminatory laws motivated by "simple economic
protectionism" are subject to a "virtually per se rule of
invalidity"
Example:
City of Philadelphia v. New Jersey, 437 U.S. 617 (1978)
On account of its location wedged between New York City and
Philadelphia (two of the largest cities on the East Coast of the
United States), New Jersey has long been a heavily
industrialized state, frequently containing factories and other
facilities for businesses centered in or servicing the major cities
nearby; as well as in the state. Among the facilities developed
in New Jersey was waste processing, including both toxic waste
and regular municipal-waste landfills. Municipalities and
businesses outside New Jersey made such extensive use of the
state's waste-processing facilities that in 1973, the New Jersey
Legislature passed a Waste Control Act (N.J.S.A. § 13 et seq.)
prohibiting the importation of most "solid or liquid waste which
originated or was collected outside the territorial limits of the
State."
Subsequent to the passage of the Act, the City of Philadelphia,
whose municipal waste was delivered in part to landfills and
other waste-processing facilities in New Jersey, filed suit
against the New Jersey Department of Environmental Protection
in the Chancery Division of the New Jersey Superior Court,
seeking an injunction against enforcement of the Waste Control
Act on the grounds that it was unconstitutional. The New Jersey
Supreme Court, however, found that the law advanced vital
health and environmental objectives with no economic

discrimination against, and with little burden upon, interstate
commerce. It therefore found it permissible under the
Commerce Clause of the Constitution. The plaintiffs appealed to
the Supreme Court of the United States.
whatever New Jersey's ultimate purpose, it may not be
accomplished by discriminating against articles of commerce
coming from outside the State unless there is some reason, apart
from their origin, to treat them differently.
Another way that federal Government controls the state
governments: Funding
Types of Federal Grant Funding
The federal government offers financial assistance to the states,
various non-federal government agencies, and other entities.
The purpose of these grants is to support a program or function
that is beneficial to the public. Federal grants cannot be used as
federal assistance, or loans to individual people. Additionally,
federal grants may not be used to acquire property, or contract
services for the direct benefit of the federal governme nt.
Federal agencies offer more than 1,000 grant programs each
year, each of which falls into one of the following categories:
Project Grant Funding
Project grant funding is awarded to subsidize certain specific
services, for a fixed period of time. Once a project grant has
been approved, the funding agency accepts applications from
eligible organizations, who compete for a portion of the total
grant funding. Once the application period has ended, the
agency evaluates each one, then awards grants to those who best
meet the application criteria.
As an example of project grant funding, the U.S. Department of
Justice operates the Justice and Mental Health Collaboration
Program. This program gives grants to states, local government
agencies, and Indian tribal organizations to improve access to
mental health services for criminals suffering from mental

illness. Applicant agencies must submit a statement of how their
projects will address the program’s required six objectives.
About 20-30 of the highest-scoring applicants receive grants.
Formula Grant Funding
Formula grant funding is used for ongoing programs that serve a
particular group of people, such as children with disabilities, or
low-income students. Formula funding does not have a
competitive selection process, but is determined based on
general criteria, such as population, or other census criteria. All
applicant agencies that meet the application requirements can
receive funding under the formula grant funding process.
As an example of formula grant funding, the U.S. Department of
Health and Human Services (“DHHS”) operates the Nutrition
Services Incentive Program, which provides grant funding to
encourage efficient delivery of nutritious meals to the elderly in
a given geographical area. The formula used to determine the
size of grant awarded to each applicant is based on the number
of meals served to the elderly in the prior year, as compared to
other states or regions. The system is automatic in that, as long
as each state reports their meal tallies, the DHHS reimburses
$0.50 per meal delivered.
Block Grant Funding
Block grant funding is also determined on a formula basis,
though these grants fund broad concerns, rather than specific
individual projects. Block grants, given to address such
purposes as education, public health, or safety, allow the
recipient agencies broad discretion in operations and applying
the funds. Examples of block grant recipients include
Community Development, Adult Social Services, and
Temporary Assistance to Needy Families.
Categorical Grant Funding
Categorical grants are offered to governmental entities and

agencies to be used for a very narrowly defined purpose.
Categorical grants are awarded to applicants who meet the
qualifications, based on a pre-defined formula. These types of
grant come with reporting requirements, to ensure the continued
adherence to program conditions. Examples of categorical grant
funding include Head Start programs, Magnet School programs,
Forestry Assistance programs, and Asbestos Abatement
programs.
What are the powers of Congress?
Federal law is supreme, and therefore it may preempt to a state
or provincial law in case of conflict. Concurrent powers can
therefore be divided into two kinds: those not generally subject
to federal preemption (like the power to tax private citizens);
and, other concurrent powers.
Denied Powers
found in Article I, Sections 9 and 10. These include prohibiting
the federal government from taxing the exports of any state, or
conferring titles of nobility. In addition, the states cannot make
treaties or alliances with foreign countries.
Ever since the beginning of our history, the states have
maintained the right to impose taxes. The Federal Government
has always recognized this right. When our Constitution was
adopted, the Federal Government was granted the authority to
impose taxes. The states, however, retained the right to impose
any type of tax except those taxes that are clearly forbidden by

the United States Constitution and their own state constitution.
https://www.treasury.gov/resource-
center/faqs/Taxes/Pages/state-local.aspx
Categorical grants – use the money for a specific purpose even
if it guides exclusive state grants
Block grants – do what you want
Mandate – tie funding of one thing with compliance with
another thing
FEDERALISM
https://www.thirteen.org/wnet/supremecourt/a ntebellum/landma
rk_mcculloch.html
https://www.law.cornell.edu/constitution/articleiv
https://courses.lumenlearning.com/boundless-
politicalscience/chapter/federalism-in-the-constitution/
CIVIL RIGHTS AND THE BILL OF RIGHTS
http://americanhistory.si.edu/brow n/history/1-
segregated/separate-but-equal.html
Block grants: Federal grants to the states and local communities
that are for general use in a broad area, such as community
development. States or local communities have discretion in
deciding how to spend the money. Created largely as a response
to complaints from state and local governments about the
paperwork and requirements attached to most grants.
Categorical grants: Federal grants to states and local
communities that are earmarked for specific purposes only, such
as pollution control, schools, or hospitals. A categorical grant is
the main instrument the national government uses to influence a
state’s governmental policy.

Concurrent powers: Those powers that are exercised
independently by both the national and state governments.
Those powers shared by the levels of government. Examples
include the power to tax, power to borrow, and power to
regulate commerce within their own borders.
Confederal government: A loose association of independent
states that agree to cooperate on specified matters. Examples
include the U.S. under the Articles of Confederation and the
former Confederate States of America.
Cooperative federalism: The various levels of government are
seen as related parts of a single governmental system,
characterized more by cooperation and shared functions than by
conflict and competition. In cooperative federalism,
responsibilities are mingled and distinctions are blurred
between the levels of government.
Creative federalism: A term derived by President Lyndon B.
Johnson to describe his own view of the relationship between
Washington and the states. During his administration, Congress
enacted legislation that further expanded the role of the federal
government.
Delegated powers: Also known as the enumerated powers, are
granted to, and exercised only by the national government. The
delegated powers are specifically listed in the U.S. Constitution
at Articles I, II, III. Delegated powers of Congress, include the
power to coin money, enter into treaties, regulate commerce
with foreign nations and among the states, collect taxes, pay
debts, provide for the common defense and general welfare, and
declare war.

Dual federalism: The belief that having separate and equally
political levels of government is the best arrangement. It is a
concept of government under which the Supreme Court saw
itself as a referee between two compelling power centers ——
the states and the federal government —— each with its own
responsibilities. States and the national government each remain
supreme within their own spheres.
Enumerated powers: See delegated powers.
Extradition: A constitutional provision which allows a state to
request another state to return fugitives. It requires that states
must return a person charged with a crime in another state to
that state for trial or imprisonment. [Article IV]
Federalism: A system of government which allocates power
between national and state governments. "Federalism" and
"federal system" are used interchangeably. Both national and
state governments exercise power over the same geographical
area. A compromise between the need for strong national
government [centralists] and states’ rights [de-centralists].
Formula grants: Grants for specific programs distributed
according to community demographic factors, such as
population or income. Examples include programs such as
Medicaid and Aid for Families with Dependent Children, where
applicants automatically qualify for aid if they meet the
requirements.

Full faith and credit: This term refers to a clause in Article IV
of the Constitution which requires that each state respect the
public acts, records, laws, records and court decisions of
another state. In practice, this means that a judgment obtained
in a state court in a civil (non-criminal) case must be recognized
by the courts of another state.
General revenue sharing: The smallest category of federal
grants that can be used by states and local communities mostly
as they wish. The program was discontinued in 1986.
Horizontal federalism: A concept founded on the "full faith and
credit" clause of the U.S. Constitution. It describes the
relationship between states, as opposed to the relationship
between a state and the national government. An example of
horizontal federalism is the act of one state recognizing a
divorce decree of another state.
Implied powers: Those powers of the national government that
flow from its enumerated powers and the "elastic clause" of the
Constitution. An example is the Congressional authority to pass
environmental protection and create a national bank in the early
1800s.
Interstate compacts: Formal agreements, largely in the form of
financial arrangements, which are entered into between states,
only with the approval of Congress. Interstate compacts may
include the creation of a new multi-state administration.
New federalism: A concept to restore the responsibility for
making and implementing policies to the state governments. A

view of federalism favored by Richard Nixon.
Reserved powers: Those powers retained by the states based on
Amendment X which states, "The power not delegated to the
United States by the Constitution. , not prohibited to it by the
States, are reserved to the States or to the people." Thus, state
powers are called reserved powers.
Unfunded mandates: Federal laws that require states to meet
certain regulatory standards, but provide no money to help the
states comply. Congress enacted a law in 1995 to curtail the
practice. New York spent $1.3 billion to make its subways
accessible to the disabled, without federal assistance.
Unitary government: A system of government in which power is
concentrated in the central government
secret is not strictly related to military or diplomatic matters
(United States v. Nixon, 1974).
Constitution of the Kingdom Saudi Arabia
https://www.saudiembassy.net/basic-law-governance
Basic Law of Governance
How enacted?
Basic Law of Governance
The Custodian of the Two Holy Mosques, King Fahd Bin
Abdulaziz Al-Saud issued a Royal Decree embodying the Basic

Law of Governance. The following is the text of the Decree.
In the name of God, the most compassionate, the most Merciful.
No: A/90
Dated 27th Sha'ban 1412 H (1 March 1992)
With the help of God, we, Fahd Bin Abdulaziz Al-Saud,
Monarch of the Kingdom of Saudi Arabia, having taken into
consideration the public interest, and in view of the progress of
the State in various fields and out of the desire to achieve the
objectives we are pursuing, have decreed the following:
That the promulgation of the Basic Law of Governance is as the
attached text.
That all regulations, orders and decrees in force shall remain
valid when this Basic Law comes into force, until they are
amended to conform with it.
That this decree shall be published in the Official Gazette, and
shall come into force on the date of its publication.
Chapter Two: The Law of Governance
Article 5
a. The system of government in Saudi Arabia shall be
monarchical
b. The dynasty right shall be confined to the sons of the
Founder, King Abdul Aziz bin Abdul Rahman Al Saud (Ibn
Saud), and the sons of sons. The most eligible among them shall
be invited, through the process of "bai'ah", to rule in accordance
with the Book of God and the Prophet's Sunnah.
c. The King names the Crown Prince and may relieve him of his
duties by Royal Order.

Chapter Five: Rights and Duties
See the Chapter for Specific Rights
Enforcement mechanism
Article 43:
Councils held by the King and the Crown Prince shall be open
for all citizens and anyone else who may have a complaint or a
grievance. A citizen shall be entitled to address public
authorities and discuss any matters of concern to him.
Chapter Six: The Authorities of the State
Article 44:
The Authorities of the State consist of:
The Judicial Authority
The Executive Authority
The Regulatory Authority
These Authorities will cooperate in the performance of their
functions, according to this Law or other laws. The King is the
ultimate arbiter for these Authorities.
Definition of arbiter as per dictionary – Merriam webster
1 : a person with power to decide a dispute : judge The mayor
will act as the final arbiter in any dispute between board
members.
2 : a person or agency whose judgment or opinion is considered
authoritative
King is head of State and Head of Government

Judiciary
Article 46:
The Judiciary is an independent authority. The decisions of
judges shall not be subject to any authority other than the
authority of the Islamic Sharia.
King is head of State and Head of Government
Article 55:
The King shall rule the nation according to the Sharia. He shall
also supervise the implementation of the Sharia, the general
policy of the State, and the defense and protection of the
country.
Executive
Article 56:
The King is the Prime Minister. Members of the Council of
Ministers shall assist him in the performance of his mission
according to the provisions of this Law and other laws.
Cabinet
Article 57:
The King shall appoint and relieve deputies of the Prime
Minister and member minister of the Council by Royal Decree.
Deputies of the Prime Minister and member ministers of the
Council shall be jointly responsible to the King for the
implementation of the Sharia, laws and the general policy of the
State.

The King is entitled to dissolve and reconstitute the Council of
Ministers.
Commander in Chief of the armed forces
Article 60:
The King is the Supreme Commander of the Armed Forces. He
shall appoint and dismiss officers form service, as provided by
terms of the Law.
Head of State
Article 63:
The King shall receive kings and heads of state, appoint his
representatives to other states, and receive credentials of other
states' representatives accredited to him.
Legislative
Article 67:
The Regulatory Authority shall be concerned with the making of
laws and regulations which will safeguard all interests, and
remove evil from the State's affairs, according to Sharia. Its
powers shall be exercised according to provisions of this Law
and the Law of the Council of Ministers and the Law of the
Shura Council.
Article 70:
Laws, international agreements, treaties and concessions shall
be approved and amended by Royal Decrees
Chapter Eight: Institutions of Audit
Article 79:
All revenues and expenditures of the State, as well as movable

and fixed assets, shall be subsequently audited to ensure proper
use and management. An annual report to this effect shall be
forwarded to the Prime Minister. The Law shall specify details
of the competent auditing institution, together with its
affiliations and areas of authority.
Article 80:
Governmental institutions shall also be audited to ensure proper
administrative performance and implementation of laws.
Financial and administrative violations shall be investigated. An
annual report shall be forwarded to the Prime Minister. The Law
shall specify details of the competent institution in charge,
together with its affiliations and areas of authority.
Chapter Nine: General Principles
Article 81:
With regard to treaties and agreements, the application of this
Law shall not violate commitments of the Kingdom of Saudi
Arabia towards other states, international organizations and
bodies.
That is International agreements and this law are not to be
discordant
Amendment Process
Article 83:
No amendment to this Law shall be made, except in the same
manner as it was promulgated.
Royal Decree

Judicial review
Please note that in all Anglophone countries judicial review
exists.
However, it differs in subtle ways from country to country.
USA
WHAT IS JUDICIAL REVIEW
Judicial review is an exclusive power of appellate courts, most
importantly the US Supreme Court (SCOTUS). It is able to
overturn any judicial ruling from another court (at federal or
state level) or to strike down any executive action or law
deemed unconstitutional.
This is not an express constitutional power - the constitution is
vague and open to interpretation in regards to the judicial
branch of government - but a power that the court granted
itself.
This happened in the case of Marbury vs Madison in 1803, in
which SCOTUS overturned congressional legislation. Judicial
review is carried out any time that SCOTUS makes a ruling in a
case taken on appeal, which is the vast majority of it's cases,
and is done so by a vote of the 9 justices. Their vote should in
theory reflect the fundamental authority of the constitution and
thus uphold constitutional sovereignty in the US, which makes
judicial review incredibly important. For example, in the
landmark case Brown vs the Board of Education, SCOTUS ruled
that segregation on the principle of 'Separate but equal' violated
the 14th amendment.
NOTE PLEASE
Judicial review is an exclusive power of appellate courts, most
importantly the US Supreme Court (SCOTUS). It is able to

overturn any judicial ruling from another court (at federal or
state level) or to strike down any executive action or law
deemed unconstitutional.
THUS THE APPROPRIATE COURT CAN OVERTURN THE
FOLLOWING:
1. any judicial ruling from another court (at federal or state
level) (LOWER COURT).
2. law deemed unconstitutional. THESE ARE REVIEWS OF
LEGISLATIVE ACTS (On what topics may congress legislate.
See the powers above)
3. or to strike down any executive action THESE ARE
REVIEWS OF EXECUTIVE ACTS
Judicial Review of decisions of lower courts
In American Law this is the same as appeals but in some
countries appeal and review of lower court judgments can be
separate concepts.
Judicial Review of Legislative Acts
In order understand the rules regarding review of legislation it
is necessary to understand the two categories of legislation.
The process of making federal laws can divided into two
categories:
Primary and Secondary (or delegated or regulatory) legislation:
1. Primary laws - In the United States, primary legislation is, at
the federal level, an Act of Congress, and the statute that
delegates authority is called an authorizing statute or delegation
of rule making authority.
2. regulatory law - (Secondary or subordinate legislation UK
terminology) - A law promulgated by the executive branch
agency of the United States Government as the result of primary
legislation is called a regulatory law, as legislation is used only
to refer to acts of the legislative branch, never the executive or
the judicial branches. The body of law that governs the agency's
exercise of rule-making and adjudication powers is called
"administrative law," primarily the Administrative Procedure
Act. (we will deal with this under judicial review of executive

acts)
Review of Primary laws
Laws of Congress and States and other bodies can be reviewed
if they conflict with the constitution as interpreted by the court.
History and Background
Most of the cases which we will consider in this course concern
judicial review.
What are the powers of Congress?
Reserved Powers
In the U.S. Constitution, certain specific powers are granted to
the federal government. The Constitution reserves all other
powers to the states. These are known as “reserved powers.”
The reserved powers clause is not found in the body of the
Constitution itself, but is part of the Tenth Amendment. To
explore this concept, consider the following reserved powers
definition.
Implied Powers
Implied powers are the powers held by congress and the
president, even though they are not mentioned in the
Constitution. These powers, though they are not specified, are
necessary in order for the three branches of government to carry
out its responsibilities under the enumerated, or stated, powers.
Implied powers may also be referred to as “inherent powers,”
and are most often exercised in instances of national
emergency. (Necessary and Proper Clause)
Enumerated or express Powers
Enumerated Powers are those powers specifically spelled out in
the Constitution. These include the powers of Congress, as well
as the Powers of the President. These include such powers as
those granted in Article I, Section 8:
Concurrent powers
Concurrent powers are powers a federal system of government
that are shared by both the federal government and each

constituent political unit (such as a state or province). These
powers may be exercised simultaneously within the same
territory, in relation to the same body of citizens, and regarding
the same subject-matter. Concurrent powers are contrasted with
reserved powers (not possessed by the federal government) and
with exclusive federal powers (possession by the states is
forbidden or requires federal permission).
Federal law is supreme, and therefore it may preempt to a state
or provincial law in case of conflict. Concurrent powers can
therefore be divided into two kinds: those not generally subject
to federal preemption (like the power to tax private citizens);
and, other concurrent powers.
In the United States, examples of the concurrent powers shared
by both the federal and state governments include the power to
tax, build roads, establish bankruptcy laws, and to create lower
courts.
Example:
Article 1, Sec. 9, Par. 1 of the Constitution, Congress shall have
power "to lay and collect taxes, duties, imposts and excises."
Article 1, Sec. 10, Par. 2, "No State shall without the consent of
Congress, lay any imposts or duties on imports or exports,
except what may be absolutely necessary for executing its
inspection laws; and the net produce of all duties and imposts
laid by any State on imports and exports shall be for the use of
the Treasury of the United States; and all such laws shall be
subject to the revision and control of Congress.
Denied Powers
found in Article I, Sections 9 and 10. These include prohibiting
the federal government from taxing the exports of any state, or
conferring titles of nobility. In addition, the states cannot make

treaties or alliances with foreign countries.
What happens when a law conflicts with the constitution?
Is the constitution silent about this or does it give us an answer?
Implied into the constitution. –
Supremacy clause?
Article VI, Paragraph 2 of the U.S. Constitution
All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the
United States under this Constitution, as under the
Confederation.
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this
Constitution; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United
States.
Necessary and Proper Clause
Under Article I, Section 8 of the Constitution, Congress has the
power "to make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or any Department or Officer thereof".
Marbury v Madison
In the weeks before Thomas Jefferson’s inauguration as
president in March 1801, the Federalist Congress created 16

new circuit judgeships (in the Judiciary Act of 1801) and an
unspecified number of new judgeships (in the Organic Act),
which Adams proceeded to fill with Federalists in an effort to
preserve his party’s control of the judiciary and to frustrate the
legislative agenda of Jefferson and his Republican (Democratic-
Republican) Party. Because he was among the last of those
appointments (the so-called “midnight appointments”), William
Marbury, a Federalist Party leader from Maryland, did not
receive his commission before Jefferson became president. Once
in office, Jefferson directed his secretary of state, James
Madison, to withhold the commission, and Marbury petitioned
the Supreme Court to issue a writ of mandamus to compel
Madison to act.
Marbury and his lawyer, former attorney general Charles Lee,
argued that signing and sealing the commission completed the
transaction and that delivery, in any event, constituted a mere
formality. But formality or not, without the actual piece of
parchment, Marbury could not enter into the duties of office.
Despite Jefferson’s hostility, the court agreed to hear the case,
Marbury v. Madison, in its February 1803 term.
Some scholars have questioned whether Marshall should have
removed himself from the case because of his prior service as
Adams’s secretary of state (1800–01). Certainly, later judicial
standards would have called for recusal, but at the time only
financial connections to a case led judges to step aside, as
Marshall did in suits regarding Virginia lands in which he had
an interest. The Republicans, always quick to criticize Marshall,
did not even raise the issue of the propriety of his sitting in the
case.
The issue directly presented by Marbury v. Madison can only be
described as minor. By the time the court heard the case, the
wisdom of Jefferson’s desire to reduce the number of justices of
the peace had been confirmed (and the Judiciary Act of 1801

had been repealed); Marbury’s original term was almost half
over; and most people, Federalists and Republicans alike,
considered the case to be moot. But Marshall, despite the
political difficulties involved, recognized that he had a perfect
case with which to expound a basic principle, judicial review,
which would secure the Supreme Court’s primary role in
constitutional interpretation.
CRTITAL TO UNDERSTAND – MARBURY WAS LEGALLY
CORRECT THAT MARBURY WAS ENTITLED TO HIS
COMMISSION BUT HE HAD COME TO THE INCORRECT
COURT. WHY INCORRECT? READ THE CASE AND
UNDERSTAND
Although he could have held that the proper remedy was a writ
of mandamus from the Supreme Court—because the law that
had granted the court the power of mandamus in original (rather
than appellate) jurisdiction, the Judiciary Act of 1789, was still
in effect—he instead declared that the court had no power to
issue such a writ, because the relevant provision of the act was
unconstitutional. Section 13 of the act, he argued, was
inconsistent with Article III, Section 2 of the Constitution,
which states in part that “the supreme Court shall have original
Jurisdiction” in “all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be
Party,” and that “in all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction.” In thus
surrendering the power derived from the 1789 statute (and
giving Jefferson a technical victory in the case), Marshall
gained for the court a far-more-significant power, that of
judicial review.
This is an example of a case where the legislation in question
was in conflict with the Constitution and the legislation was
therefore struck down by the courts.
On other occasions the congress may pass legislation which
exceeds their powers and could be struck down for this reason.
Example (see Federalism handouts for United States v. Alfonso
D. Lopez, Jr., 514 U.S. 549 (1995))

ANOTHER EXAMPLE (THIS TIME STATE LAW THAT IS
REVIEWED)
The Equal Protection Clause of the constitution is located at the
end of Section 1 of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
Plessy v. Ferguson (1896).
According to this case laws mandating separate public facilities
for whites and African Americans do not violate the equal -
protection clause if the facilities are approximately equal.
Brown v. Board of Education of Topeka, case in which on May
17, 1954, the U.S. Supreme Court ruled unanimously (9–0) that
racial segregation in public schools violated the Fourteenth
Amendment to the Constitution, which prohibits the states from
denying equal protection of the laws to any person within their
jurisdictions. The decision declared that separate educational
facilities for white and African American students were
inherently unequal. It thus rejected as inapplicable to public
education the “separate but equal” doctrine, advanced by the
Supreme Court in Plessy v. Ferguson (1896), according to
which laws mandating separate public facilities for whites and
African Americans do not violate the equal-protection clause if
the facilities are approximately equal. Although the 1954
decision strictly applied only to public schools, it implied that
segregation was not permissible in other public facilities.
Considered one of the most important rulings in the court’s
history, Brown v. Board of Education of Topeka helped to
inspire the American civil rights movement of the late 1950s
and 1960s.

Judicial Review of Executive Acts
Judge Scalia - [Legislative power] is vested exclusively in
Congress [and judicial power] in the “one supreme Court” and
“such inferior Courts as the Congress may from time to time
ordain and establish”.... Agencies make rules... and conduct
adjudications... and have done so since the beginning of the
Republic. These activities take “legislative” and “judicial”
forms, but they are exercises of—indeed, under our
constitutional structure they must be exercises of—the
“executive Power.
Who is the executive?
The executive carries out laws and consists of the president,
vice president, Cabinet, most federal agencies
The United States federal executive departments are the primary
units of the executive branch of the Federal government of the
United States. They are analogous to ministries common in
parliamentary or semi-presidential systems but (the United
States being a presidential system) they are led by a head of
government who is also the head of state. The executive
departments are the administrative arms of the President of the
United States. There are currently 15 executive departments
each headed by a cabinet member usually called a secretary.
Department of the Interior
Department of Agriculture
Department of Commerce
Department of Labor
Department of Health and Human Services
Department of Housing and Urban Development
Department of Transportation
Department of Energy
Department of Education
Department of Veterans Affairs
Department of Homeland Security
The executive also includes the “agencies” however these are a

little more independent of the President. For example:
Environmental Protection Agency
Central Intelligence Agency
What types of executive acts can be reviewed
1. Delegated legislation (In the USA these are called regulatory
laws)
2. Executive tribunals
3. Executive decisions
4. Executive Orders (Orders by the President)
1. Review of Regulatory laws
To Further explain
Regulatory Law deals with procedures established by federal,
state, and local administrative agencies, as opposed to laws
created by the legislature (statutory laws) or by court decisions
(case law). Regulations can relate to a large array of executive
branch activities, such as applications for licenses, oversight of
environmental laws, and administration of social services like
welfare, just to name a few.
Functions of Administrative Law
Also known as administrative law, regulatory laws can include
everything from rulemaking to adjudication and enforcement. In
other words, administrative laws often relate to functions akin
to all three branches of government (i.e., legislative, judicial,
and executive), but all of them flow from agencies that are
considered to be a part of the executive branch. To demonstrate
how regulatory law is often like three branches of government
in one, consider how administrative laws usually come into
being:
1. The legislative branch passes a law authorizing the
creation of a new executive branch agency to enforce a set of
laws (for example, the Environmental Protection Agency in
order to enforce certain environmental clean up and
preservation laws).

2. The statute authorizes the agency to pass regulations to
meet the goals of its mandate and to enforce its rules. Thus the
legislative rulemaking authority is delegated, in part, to the
administrative agency.
3. The agency enacts regulations (sometimes they require
legislative approval, sometimes they do not), then begins to
enforce those rules (e.g., through fining or arrests). The
enforcement of laws is a traditionally executive function.
4. The agency may also have procedures for hearings, and the
results of those proceedings can become precedent on agency
policies. These hearings are akin to the trial procedures for the
judicial branch.
While administrative agencies are still a part of the executive
branch and are still checked by the other two branches of
government, their regulations and enforcement schema often
resemble their own subsystem of government, inclusive of
functions for all three branches. Consequently, when discussing
any law that may be administered by an agency, it is important
to look not just to the statutory law or the case law, but also to
any regulatory rules and decisions related to that matter. Failing
to do so may amount to overlooking an enormous portion of the
body of law affecting that topic.
What does this mean:
For example in the USA for environmental law:
Creating a law
Step 1: Congress Writes a Bill
A member of Congress proposes a bill. A bill is a document
that, if approved, will become law. To see the text of bills
Congress is considering or has considered, go to Congress.gov

Brief introduction much of what we study in this section is

Brief introduction much of what we study in this section is

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