Comparative Constitutional Law & Roper v Simmons

• A constitution serves as a nation's fundamental law
• It outlines the structure of government, how power is divided, and the rights of citizens.
• A constitution can be written, such as the U.S. Constitution, or unwritten, such as in the U.K.
• Constitutions define the relationship between government branches and set limits on government power.

Methods of Comparative Constitutional Law

• Comparative constitutional law involves studying different constitutional systems.
• The goal is to understand their similarities and differences.
• Comparative methods include textual analysis, which compares written constitutional texts.
• Structural comparison examines the framework of government institutions.
• Functional comparison looks at how different countries handle similar legal issues.
• Examining historical context helps to understand how historical events shaped a nation's constitution.

Roper v Simmons

• Christopher Simmons was sentenced to death at 17 for a capital crime.
• A key question was whether it is constitutional to execute juvenile offenders for capital crimes.
• The focus was on the 8th and 14th amendments.
• The ruling was that it is unconstitutional.
• A dissenting opinion argued that there was no national consensus prohibiting juvenile death penalty.
• The US not joining a treaty internationally shows a lack of interest in banning this practice.

Printz v United States

• James Brady was shot when John Hinckley Jr. tried to assassinate Ronald Reagan
• This led to the passage of the BRADY act.
• At issue was whether Congress could require local law enforcement to regulate handgun purchases.
• The ruling stated that they cannot.
• State actors/legislatures are not subject to federal direction
• Current comparisons include weed, immigration, and abortion.
• It is not legal at the federal level but may be at the state level.
• Issues arise about how to enforce laws when there is conflict.
• A dissenting opinion observes what other countries have done.
• Those countries follow the principle that states will implement the laws enacted by the central "federal body."

Context for Our Constitution

• Hobbes defended the absolute power of Kings in his work Leviathan.
• Hobbes argued for a powerful government to maintain order.
• Without it, everyone would suffer.
• Life would be poor, brutish, and short.
• Locke argued that natural rights could never be taken away.
• The social contract resides between the people and a sovereign, not just among the people.
• Kings do not hold absolute power, they only enforce it.
• If they violate the contract, the people can revolt.
• Locke favored representative government and businessmen.
• Montesquieu wrote The Spirit of the Laws.
• He argued that people in a state of nature are so fearful they avoided violence and war.
• This leads to human laws and government.
• The main purpose of government is to maintain law and order.
• There must be a separation of powers with checks and balances.
• Today's government is closest to these ideas.
• Rousseau argued that man is good but is corrupted by society, such that property causes disputes and war.
• Social contract is a fraud against the people committed by the rich.
• People should give up their rights to "the whole community", not to a King.
• Direct democracy is best, where all power belongs to the people.