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Constitutional LawClass 1

Introduction to the Constitution

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What’s a constitution?

“The fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise.”

— Black’s Law Dictionary

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Preamble of the Constitution

“We the people of the United States, in order to . . . establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty . . . do ordain and establish this Constitution for the United States of America.”

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Timeline — Prequel to the Constitution

Dec. 1773 — Boston Tea Party Apr. 1775 — first battles of Revolutionary

War, at Lexington and Concord, MA July 4, 1776 — Declaration of

Independence adopted by Congress Nov. 15, 1777 — Articles of Confederation

adopted by Congress Mar. 1, 1781 — Articles of Confederation

ratified by states(cont’d)

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Timeline (cont’d)

1783 — Revolutionary War ends with peace treaty

Sept. 1786 — Hamilton proposes a convention in Philadelphia to revise the Articles of Confederation

May 1787 — Philadelphia Convention commences work

Sept. 17, 1787 — Convention concludes its work with a proposed Constitution

(cont’d)

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Timeline (cont’d)

1787 - 88 — Federalist Papers published

June 21, 1788 — ninth state (NH) ratifies the Constitution, making it effective

Sept. 1789 — Bill of Rights proposed

Dec. 1791 — Bill of Rights ratified

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“We the people . . .”

“In adopting [the Constitution], the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. . . .

(cont’d)

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“We the people . . .” (cont’d)

“. . . [The] Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people.”

— U.S. Term Limits v. Thornton, 514 U.S. 779 (1995)

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Virginia Plan

“Resolved [that] the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; . . .

(cont’d)

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Virginia Plan (cont’d)

“. . . to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.”

— Virginia Plan, Resolution 6 (presented

May 29, 1787)

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Separation of powers

Legislature

Executive

Judiciary

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Checks and balances

Judiciary

Executive

Legislature

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Federalism

Federal governme

nt

State governmen

ts

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Three divisions of the Constitution

1. The original text, adopted in 1787 and ratified in 1788

2. The first ten amendments, aka the Bill of Rights, which Congress passed in 1789 and the states ratified in 1791

3. Amendments XI through XXVII, ratified 1798 - 1992

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Article I – Legislative branch

Structure of the legislative branch Apportionment of Senators and

Representatives among the states Qualifications for holding office Roles of House and Senate in

impeachments Basic functioning of the two houses Role of Congress and president in

making law: President’s power to veto, Congress’s power to override

(cont’d)

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Article I — Powers of Congress

Enumeration of Congress’s powers (Art. I, sec. 8) 17 specific enumerated powers 1 catch-all: “necessary and proper”

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Article I — Limitations on federal legislative power

Specific limitations on the federal legislative power (Art. I, sec. 9): No prohibiting importation of slaves

before 1808 No suspension of habeas corpus No bills of attainder or ex post facto

laws No granting titles of nobility

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Article I — Limitations on state legislative power

Limitations on state legislative power (Art. I, sec. 10)States may not:

Enter into treaties Issue their own money Pass bills of attainder or ex post

facto laws, or impair contracts Except with consent of Congress,

impose duties on imports or exports, keep troops, or enter into an agreement with another state

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Article II – Executive branch

Election of President and Vice President, qualifications for office (Art. II, sec. 1) Revised by 12th Amendment

Successorship, in case of President’s death or disability Revised by 25th Amendment

(cont’d)

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Article II (cont’d)

Powers of the President (Art. II, sec. 2) Commander in chief Entering treaties and making

appointments, with advice and consent of the Senate

“take Care that the Laws be faithfully executed” (Art. II, sec. 3)

Grounds for impeachment of President, VP, and other officials (Art. II, sec. 4)

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Article III – Judicial branch Structure of the judicial branch

Creates the Supreme Court, and authorizes Congress to create lower courts (Art. III, sec. 1)

Establishes rules regarding judges: life tenure, no reducing salary

Describes the types of cases that courts can hear and decide (Art. III, sec. 2)

(cont’d)

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Article III (cont’d)

Assigns the Supreme Court original and appellate jurisdiction (Art. III, sec. 2)

Defines the grounds for treason (Art. III, sec. 3)

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Article IV – Relations among the states

Relations among the states: States must give “full faith and credit”

to judicial decisions and other official actions of other states (Art. IV, sec. 1)

States must extradite accused persons to other states (Art. IV, sec. 2)

Each state is guaranteed “a republican form of government” (Art. IV, sec. 4)

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Article V — Amendment of the Constitution

Amending the Constitution Amendments proposed by Congress

or state conventions Ratification by ¾ of states

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Article VI — Supremacy

Supremacy: Constitution and federal law trump

state law

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Bill of Rights

1st Amd. guarantees freedom of speech and religion

4th Amd. limits the government’s authority to conduct searches and seizures

5th Amd. has several important provisions: No double jeopardy Freedom from self-incrimination (“I plead the

Fifth” or “I decline to answer on the ground that it might tend to incriminate me”)

No deprivation of “life, liberty, or property, without due process of law” (cont’d)

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Bill of Rights (cont’d)

6th Amd. gives rights to criminal defendants, including the right to counsel

7th Amd. gives right to jury trial in certain cases

8th Amd. forbids “cruel and unusual punishments”

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Reconstruction amendments

13th Amd. (1865) prohibits slavery14th Amd. (1868)

Repeats the Due Process Clause of the 5th Amd., making it effective against the states

Prohibits states from denying “the equal protection of the laws”

15th Amd. (1870) Guarantees voting rights to everyone,

regardless of “race, color, or previous condition of servitude” — but not gender or age

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Other amendments

11th Amd. (1798) forbids most lawsuits by individuals against states in federal court

12th Amd. (1804) changes how President and VP are elected

18th Amd. (1919) prohibits the use of “intoxicating liquors” within the U.S. (Prohibition) Repealed 15 years later by the 21st Amd.

24th Amd. (1964) abolishes the poll tax27th Amd. (1992) delays effect of

congressional pay raises

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Hierarchy of sources of law

The people(i.e., ¾ of the states)

U.S. Constitution

State constitutions

State statutes and common law

Federal statutesand common law

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Federalist No. 10: factions

“faction” =“a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” [15]

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We can’t count on wise governors

“It is vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.” [16]

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Madison’s cure for factions

Problem: Majority factions, which promote their own interests at the expense of the public good and the rights of other citizens

Solution: A republican form of government, instead of pure democracy A large, populous nation, instead of a small one

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Democracy

“Pure democracy”=“a society consisting of a small number of citizens, who assemble and administer the government in person” [16]

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Madison’s view of pure democracy

“[Pure democracies] have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” [16-17]

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Republicanism

“Republic” =“a government in which the scheme of representation takes place” [17]

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The benefits of representation

The effect of introducing representation is “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” [17]

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Representation (cont’d)

Result of representative government:“the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves” [17]

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Majorities will be drawn to justice

“In the extended republic of the United States, . . . a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good . . . .” [24]

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Federalist No. 51: checks and balances

“[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” [22]

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We’re not angels

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” [22]

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Plato: we need to become angels

“Until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy, and political greatness and wisdom meet in one . . . cities will never have rest from their evils — nor the human race, as I believe — and then only will this our State have a possibility of life and behold the light of day.”

— Plato, Republic 473c - e