1. Constitutional Law Government has limited powers
Enumerated powers: coining money
Implied powers: chartering national bank
Individuals’ rights also limit gov’t powers
Enumerated rights: Speech, Assembly
Implied rights: Association, Privacy

2. Sources of Rights
Natural Law Customary Law Statutory Law Judicial Precedent

3. Natural Law Religious conception, but also Deist
“endowed by their Creator”
Pre-exists state and inherent: “inalienable”
Beyond human choice and universal
Poorly defined, lacks firm foundation
“hold these truths to be self-evident”
A modern version: “implicit in a concept of ordered liberty”

4. Customary Law Specific to a single society – not universal
“the rights of Englishmen”
Fills in natural rights
due process comes to include jury trial
Often relies on invented history
The “ancient constitution,” Magna Carta
Should be understood as tradition, not history

5. Statutory Law
Law created by the sovereign (people or king) Applies only within single state May be foundational (Constitution) or ordinary (regular statutes or regulations) Most clearly defined, codified Governed by legislative intent

6. Judicial Precedent
Judge-made Applies only within court’s jurisdiction Non-democratic, may be countermajoritarian Dependent on other forms of law, texts Driven by specific, often insoluble disputes

7. Terms for Next Time
Incorporation (Selective and Total) State Action Due Process (procedural) Substantive Due Process Fundamental Rights Liberty Interests Strict, Intermediate & Ordinary Scrutiny