CONSTITUTIONAL FRAMEWORKUNIT 1, PART 1

James Madisonhistoricalstockphotos.com/images/xsmall/711_president_james_madison.jpg

Where would you rather live?

Freeland: In this country the people are free to do whatever they want. Children and adults may decide for themselves if they want to go to school, work, sleep all day, play at the beach, watch videos, etc. There are no laws of any kind in Freeland.

Leaderland: In this country there are many laws which all have been made by one man:  the Leader. The people of this country are told by the Leader and his assistants where to live, how to dress, what jobs to hold, what newspapers to read, and whom to vote for at election time. The people lead safe and orderly lives...as long as they follow the Leader.

Limited government

The U.S government is based on the principle of limited government.

The U.S. Constitution grants powers, limits those powers, and lists the people’s freedoms.

Limited government is fundamental. States reluctant to give up power to national government. Federal government can only pass laws related to areas in Article I of Constitution.

SEPARATION OF POWERS

Power is divided among three branches:

(1) Executive-(President) Main job is to enforce law

(2) Legislative (House/Senate) passes laws, known as statutes

(3) Judicial (Courts) interprets law

Checks and Balances

Checks and Balances: Constitutional system keeps one branch from becoming too powerful

Each branch serves as a “check” on the others

Most importantly for our purposes: judicial review-courts can determine that actions of executive or legislative branch or even a state legislature are unconstitutional. .

Checks/Balances: Judicial Review

Two reasons law may be found unconstitutional: (1) Constitution does not give power to pass law; or (2) the law violates someone’s rights

Federalism: State power

Federalism: Power of federal government also limited by the power of the states. Federalism is the division of power of power between state/federal government.

Any power not given to federal government in Constitution is reserved to the states.

Bill of Rights-Your Power

THE BILL OF RIGHTS-First ten amendments to the Constitution. Most provisions limit federal, state, and local governments.

Some state governments provide greater protections than the U.S. Constitution.

End of 8-21 notes

8-23 Warm-up

The Supreme Court can remedy an unconstitutional statute through its power of ________.

Congress passes a law that the President believes is not in the bests interests of the country. The President can check Congress’ power by ___________ the legislation.

North Dakota challenges a law that is passed by the feds because it claims the Constitution does not authorize the feds to pass the law. This demonstrates the concept of _______, wherein states retain powers not delegated to the federal government.

Mary is arrested for engaging in a peaceful demonstration. What limitation on government might protect her?

GUIDELINES FOR WRITING A LAW

(1) Is the law written in clear language?

(2) When does the law go into effect?

(3) Does the law contradict other laws?

(4) Is the law enforceable? If so, by whom?

(5) Are the penalties for breaking the law clear and reasonable

• The law we will be addressing is:

• “It shall be unlawful for any person operating a motor vehicle to use a cellular telephone or other mobile device for communication by any means.”

After BREAK

What was the legislature’s purpose in passing the legislation?

Can you see anyone challenging the legislation? If so, why?

Legislatures

Federal/state legislatures are the primary law-making bodies. Legislatures introduce legislation as bills. Bills that are not vetoed become law.

Federal legislature made up of House of Representatives and Senate. They pass laws for the entire country.

Congress passes statutes dealing with national issues like: environment, veterans affairs, public health, civil rights, postal services, federal taxes, social security, etc.

State LegislatureS

State legislatures only have power to pass laws that apply in their states.

States pass state statutes.

State laws deal with state issues like education, transportation, traffic, state taxes, marriage and divorce, most criminal laws, etc.

States have broader powers to legislate than federal government. In general, can legislate where federal government was not given power in the Constitution.

LOCAL GOVERNMENT

Local governments pass laws known as ordinances or regulations.

Examples are land use, parking, school, and regulation of local business. These laws only apply to the local area.

SUPREMACY CLAUSE

Supremacy clause: Constitution’s supremacy clause provides that the Constitution and federal laws will be the “supreme law of the land” and thus will prevail in a conflict with state law.

At times the Supreme Court has found at times that federal laws were unconstitutional because they intruded on state rights as they were laws on topics that were the proper focus of the states, not the federal government.

In some areas both state and federal government have legislative power.

Interpreting Statutes

Legislative intent: When a judge tries to determine what the legislature meant when it passed a law he/she is determining legislative intent.

Rules in interpreting statutes:

(1) Vague laws not enforced. Can’t enforce if it is unclear exactly what conduct is prohibited.

(2) When in doubt in interpreting a word in criminal statute, the word is strictly interpreted against the government. Usually means words are given their ordinary meaning. POLICY for these two: Lawmakers encouraged to write clear laws; keep people from being punished for failing to obey unclear law.

Warm-up 8/27

• Think of 5 things you did this morning. Was the government involved? Discuss with a neighbor.

• When you have finished pondering this, quickly review for your quiz. Quiz? What quiz? Uh oh!

8-27 Agencies

Legislatures make general laws.

They allow agencies to develop rules and regulations to make laws more specific.

Administrative agencies are thus “hidden lawmakers,” and they affect business, industry, and individuals

Regulations issued by agencies become law without being voted on

They typically hold public hearings before issuing proposed regulations to allow interested parties to express their concerns.

COURTS

When appeals courts make rulings, they set precedents that lower courts in that jurisdiction must follow. In effect, the appeals courts are making law that others must follow.

Famous examples: Miranda, Brown v. Board, etc.

APPLYING PRECEDENT 8-27

The appeals court in the state of North Dakota has issued a ruling stating that “Where the driver of a tractor-trailer has a seizure without any advance notice of that condition and without any advance notice at the time of the seizure, he is not negligent and therefore is not responsible for the resulting injuries to others.”

• You are faced with a case in a lower court in North Dakota. Your client was on a skateboard when he suddenly sneezed and ran into Granny Smith, causing severe injuries. Could you use the precedent? Why or why not?

Questions

Is the North Dakota Supreme Court bound by the appeals court opinion?

Can the N. Dakota supreme Court overturn the decision?

What if the case goes to the N. Dakota Supreme Court and then to the US Supreme Ct. Is the US Supreme Court bound by that court’s decision?

WARM UP 8/31

What is the role of agencies?

How do courts make law?

What are the three branches of government?

How does the executive check the legislative branch?

What is the courts’ check on the congress?

Writing exercise for 8-29

Describe how the Constitution limits government.

Nana is arrested under a statute that outlaws wearing “gang-related clothing.” What argument could Nana raise about the statute?

Nevada legalizes the sale and use of marijuana in all casinos. This contradicts federal law which prohibits drug use and trafficking. The federal government sues. What will the result be and why?

Writing practice

The Supreme Court issues a decision. Why is this decision considered like the creation of a new law?

Why are agencies “hidden lawmakers”?