Affidavit. A declaration in writing made upon oath for use as evidence in legal proceedings.
Affirmative power. Power granted explicitly in either the Constitution or through legislation.
Amici curiae. Friends of the court, used to denote groups filing supportive briefs in the Supreme Court who are not parties to the litigation.
Appeal. A request to a higher (appellate) court to review the decision of a trial court of a lower appellate court.
Appellate court. A court with the power to rule on an appeal of a trial court or other lower tribunal, normally only reviewing questions of law.
Articles of Confederation. The 1781 compact among the thirteen original states that formed the basis of the first national government of the United States until it was supplanted by the Constitution.
Bad tendency test. A test in seditious libel cases from English Common law that asks whether the words spoken have a “tendency to bring about evil consequences.”
Belief-action dichotomy. Distinction regarding the First Amendment’s Free Exercise Clause, suggesting that the clause protects against the government’s efforts to restrict beliefs but does not prevent the state from forbidding specific actions that might threaten public safety, even if undertaken because of religious beliefs.
Black codes. Laws enacted by southern legislatures after the Civil War that severely restricted the freedoms of former slaves and put them at the mercy of whites.
Certiorari, writ of. An order that is given by a superior court to a lower court directing it to send up the record of a case for review; the primary means by which the Supreme Court determines what cases it will hear.
Circuit court of appeals. In the federal system, the court that hears appeals and reviews judgments of the district courts, and whose decisions may be appealed to the Supreme Court. The thirteen courts of appeals form the intermediate branch of the federal judicial system.
Class legislation. Laws allegedly designed to benefit only one particular group and not all citizens equally.
Clear and present danger test. A test devised by Justice Holmes in 1919 and used for the next fifty years to determine whether the state could punish people for speech that might bring about “an immediate substantive evil.”
Comity. Legal reciprocity, or the principle that one state will extend certain courtesies to and recognize the jurisdiction, laws, and judicial decisions of other states.
Commerce clause. The provision in Article I, Section 8 of the Constitution that gives Congress the authority to regulate commerce with other nations, among the states, and with native tribes.
Common law. Judge-made law as opposed to statutes.
Concurring opinion. A written opinion by a judge who agrees with the majority decision of the court but disagrees with the rationale for reaching that decision.
Confession. An admission to the police by a suspect that he or she has committed a criminal act.
Construction (regarding the Constitution). The method by which the various clauses of the Constitution are construed.
Contempt of court. A commission or omission that hinders the orderly administration of justice or impairs the dignity of a court or otherwise shows contempt for its authority.
Coverture. The legal term for the status of a married woman.
Cruel and unusual punishment. Criminal penalties that a society does not consider appropriate, involve torture, or could result in death when the death penalty had not been ordered.
Cy pres. Ancient common law doctrine under which if a charitable trust could not be fulfilled according to its terms, the state would apply it to purposes most close to that of the original intent.
De facto segregation. Segregation that results from practice rather than law.
Defamation. Speech or print that publicly traduces the reputation of another.
De jure segregation. Separation on the basis of race enacted into law and imposed by the government.
Dissenting opinion. The written opinion of one or more judges who disagree with the ruling of the majority.
Double jeopardy. The subjecting of a person to a second trial or punishment for the same offense for which the person has already been tried or punished.
Due process. Judicial procedural rights, as given by the Constitution, statutes, regulation, and common law.
Eleventh Amendment. An amendment prohibiting suits by citizens against a state in federal court.
Enemy combatant. An individual who is not a uniformed member of the military of a recognized nation state but who engages in acts of terrorism or combat against the United States, and who, under the laws and customs of war, may be detained for the duration of an armed conflict.
Enforcement clauses. Provisions in the Thirteenth, Fourteenth, and Fifteenth Amendments allowing the extension of the powers of Congress such that they could enforce these articles by providing appropriate legislation.
Enumerated powers. A list of items found in Article I, Section 8 of the Constitution that set forth the authoritative capacity of the Congress.
Equal protection clause. A Fourteenth Amendment clause assuring that all citizens will be treated equally by the government in its laws.
Equity. That branch of law which deals in nonmonetary remedies, with the goal of establishing just and fair solutions to civil wrongs.
Establishment of religion clause. A clause given in the First Amendment prohibiting the national government from recognizing one church or religion as the official religion of the nation.
Exclusionary rule. A judicial rule prohibiting the police from using at trial evidence obtained through illegal search and seizure.
Ex parte. Literally “from one party,” a hearing in which the court hears only one side of a controversy, as in the case of a temporary restraining order.
Federal court. A court of the U.S. national government.
Federalism. A political system in which powers and responsibilities are allocated between states and a national government.
Femme sole. Prior to the emancipation of women, a term applied to a woman who was legally entitled to carry out business contracts without the express consent of her husband.
Fifteenth Amendment. This amendment declared that the right to vote could not be denied because of race.
Fifth Amendment. This amendment protects against abuse of government authority in a legal procedure.
Four Horsemen. A name given to New Deal–era conservative Justices James McReynolds, Willis Van Devanter, George Sutherland, and Pierce Butler, alluding to the four horsemen of the Apocalypse.
Fourteenth Amendment. This amendment defined as a citizen of the United States any person born in the country or who had immigrated and been naturalized, and it prohibited states from denying any citizen the due process of law and equal protection under the law.
Fourth Amendment. This amendment guards against unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
Freedom of contract. Parties capable of entering into a contract and giving their consent to its terms ought not to be curbed by the state, save to protect the health, welfare, and morals of the community or to prevent criminal activities.
Free exercise clause. The second clause of the First Amendment, which forbids the national government from interfering with the religious beliefs of a person.
Fugitive slave law. An 1850 law compelling northerners to honor southerners’ property claims to slaves and to aid in capturing and returning runaway slaves.
Full faith and credit clause. From Article IV, Section 1 of the Constitution, this clause requires states to honor the legal actions taken in other states.
Great Right. A clause in the Fifth Amendment safeguarding persons from being compelled to be a witness against him or herself in a criminal proceeding. See Fifth Amendment.
Habeas corpus. A writ or legal action that releases a prisoner from unlawful detention based on insufficient cause or evidence.
Hand test. Developed by Judge Learned Hand to evaluate the constitutionality of First Amendment challenges, this asked whether “the language directly advocated resistance to the draft.”
Impeachment. A proceeding brought against the president or federal judges to remove them from office.
Imperium in imperio. A state within a state.
Implied powers. Those powers authorized by the Constitution that, though not explicitly stated, are necessary to implement powers expressly stated.
Incorporation of the Bill of Rights. The process by which the courts have applied portions of the Bill of Rights to the states.
Injunctions. Judicial orders to cease certain actions.
Interlocutory. Provisional or temporary, and not final; only final decrees can be appealed to the Supreme Court.
Jim Crow laws. Southern state laws mandating segregation of blacks and whites.
Judicial restraint. Theory of interpretation that encourages a judge to limit the exercise of judicial power.
Judicial review. The doctrine under which legislative and executive actions are subject to review and possible invalidation by the judiciary.
Jurisdiction. The authority of a court to decide particular cases or questions of law.
Jurisprudence. The philosophy or science of law.
Libel. A published falsehood or statement resulting in the defamation of someone’s character.
Mandamus, writ of. A court-issued writ commanding a public official to carry out a specific act or duty.
Manumission. The act of freeing a person from slavery or involuntary servitude.
Married women’s property acts. Mid-nineteenth-century laws allowing married women to own property in their own names.
Martial law. The rule of law established and maintained by the military in the absence of civil law.
Merits (of a case). The strengths of a judicial case that make the matter worth pursuing legally.
Military tribunal. A military court designed to try member of enemy forces during wartime, operating outside the scope of conventional criminal proceedings.
Minority rights. Collective rights afforded to minority groups.
Miranda rights. Requirement that the police inform suspects that they have a right to remain silent and to have counsel while being interrogated.
Missouri Compromise. An 1820 law that prohibited slaves above the southern border of Missouri in the Louisiana Territory.
Natural law. Any system of law that is purportedly determined by nature and thus is universal.
Necessary and proper clause. The last clause of Article I, Section 8 of the Constitution, which grants Congress the authority to make all laws that are required to exercise its designated powers.
Nemo tenetur prodere seipsum. No man is bound to accuse himself.
Nineteenth Amendment. This amendment granted women the right to vote.
Ninth Amendment. This amendment described rights retained by the people as a basis for the right of privacy.
Obiter dicta. The comments provided in an opinion, as opposed to a finding of law.
Originalism. A theory of constitutional interpretation that tries to determine and reflect the intent of the Constitution’s Framers.
Parens patriae. The role of the state as “parent” to guard the interest of children and other persons under legal disabilities.
Peculiar institution. A euphemism for slavery and its effects on the social and economic realms.
Peonage laws. Passed in nearly all southern states, laws dictating that if a black man ran afoul of the law, even for loitering, he could be sentenced to jail and his labor sold to a white man.
Per curiam. Collectively written; a memorandum from the entire court that does not bear a single author’s name.
Personal liberty laws. Laws in northern states that gave runaway slaves the right to appointed counsel, jury trials, habeas corpus, and even the writ of personal replevin in order to fight being returned to their owners.
Personal replevin, writ of. An old procedural device to free a person from prison or from the custody of another.
Pluralism. A theory describing a political system in which all significant social interests freely compete with one another for influence over the government’s policy decisions.
Police power. The power of the state to protect the lives, health, and safety of the public.
Popular sovereignty. Citizens’ delegation of authority to their agents in government, with the ability to rescind that authority.
Positive law. Statutory enactments; man-made laws as opposed to common, or judge-made, law.
Precedent. A principle or rule established in a legal case that other courts or judicial bodies may apply when deciding subsequent cases with similar issues or facts.
Preemption (e.g., preemption doctrine, federal preemption). A rule forbidding states from acting in any way contrary to federal policy.
Privileges and immunities clause. The clause in Section 1 of the Fourteenth Amendment that guarantees all U.S. citizens certain basic rights.
Procedural rights. Rules governing how actions of the government, such as a jury trial, may be carried out.
Protective legislation. Legislations in which reformers tried to secure laws, mostly at the state level, to eradicate child labor, limit the number of hours a person could work each day, establish safety standards in the workplace, set minimum wages, and create a safety net of employer liability and workmen’s compensation to help those injured on the job.
Recidivist statute. Law adding extra penalties to repeat offenders.
Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments. Also known as the Civil War Amendments.
Remedial legislation. Legislation that provides remedies to counter certain wrongs or abuses, and also to correct defects in previous legislation.
Search and seizure. In law enforcement, an exploratory investigation of a premises or a person and the taking into custody of property of an individual in the interest of gaining evidence of unlawful activity or guilt.
Section 3501. A law, since held unconstitutional, that allowed statements to be used against suspects in a federal prosecution, even if the police had given no Miranda warnings, as long as the suspect supposedly gave the confession voluntarily to the police.
Segregation. The political and social practice of separating whites and blacks into dual and highly unequal schools, hospitals, prisons, public parks, housing, and public transportation. (See also Jim Crow laws.)
Separate but equal doctrine. The Supreme Court–initiated doctrine stating that separate facilities for blacks and whites are constitutional provided they are equal.
Separation of powers. The distribution of government powers among several institutions—in the United States: legislative, executive, and judicial.
Seriatim. Judicial decisions in which each justice writes a separate opinion.
Severability clause. A clause in a contract or a statute that allows for the terms of the contract or statute to be independent of one another so that if a court deems one term unenforceable or unconstitutional, the contract or law as a whole will remain in force.
Signing statement. A written pronouncement issued by the U.S. president that is intended to modify implementation or ignore altogether provisions of a new law.
Sixth Amendment. This amendment provides the right for counsel on the grounds that a resulting confession can be valid and admissible only if the accused had been properly informed of his or her rights.
Sixteenth Amendment. This amendment allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results.
Slander. False and malicious oral statements that damage another person’s reputation.
Sovereignty. The power that inheres in government.
Stare decisis. The authority of prior decisions in ruling in a new case.
State paper. A document kept by a government to record discussions, options, and decisions by government officials, departments, and civil servants.
States’ rights. Powers reserved to the states and denied to the federal government.
Stationary despotism. Term used by reformers and liberal politicians to describe slavery.
Sub silentio. Under silence; without notice being taken or without making a particular point of the matter in question. If a case is decided against precedent, the newer case is said to have overruled the previous decision sub silentio.
Substantive due process. The theory of law through which courts enforce limits on legislative and executive powers and authority.
Substantive law. The statutory law that defines rights, duties, and responsibilities.
Substantive rights. Basic human rights, including those granted by both natural and positive law.
Supremacy clause. From Article VI of the Constitution, establishing a hierarchy of law, with the Constitution taking precedence over legislation, thereby giving courts the power to nullify legislative acts.
Taking the Fifth. Relying on the Fifth Amendment’s protection to avoid testifying about one’s prior activities.
Tenth Amendment. This amendment establishes that powers not granted to the federal government nor prohibited to the states by the Constitution are reserved, respectively, to the states or the people.
Thirteenth Amendment. This amendment officially abolished and continues to prohibit slavery.
Tort. In common law, a wrong that involves a breach of a civil duty, other than a contractual duty, owed to someone else.
Unlawful cohabitation. An offense, created by the Edmunds Act, that required no proof of marriage but merely proof that a man lived in the same household with two or more women; designed to get around the legal distinction between bigamy and polygamy.
Vested rights. Rights that have accrued or are secured to their possessor and are not contingent on any change in the law.
War powers. The president’s claims under the Constitution’s Article II, which empowers him to have authority as commander-in-chief to do whatever he considers necessary regardless of existing law, international treaties, or even the Constitution.