Constitutional Law Class 1

1. Constitutional LawClass 1 Introduction to the Constitution

2. 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

3. Preamble of the Constitution “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

4. 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 signed • Nov. 15, 1777 — Articles of Confederation adopted by Congress • Mar. 1, 1781 — Articles of Confederation ratified by state (cont’d)

5. 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)

6. Timeline (cont’d) • 1787 - 88 — Federalist Papers published • June 21, 1788 — 9th state (NH) ratifies the Constitution, making it effective

7. Articles of Confederation “To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting. “Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia. (cont’d)

8. Articles (cont’d) “I.   The Stile of this Confederacy shall be  ‘The United States of America.’ (cont’d)

9. Articles (cont’d) “II.   Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (cont’d)

10. Articles (cont’d) “III.   The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. * * *”

11. “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. In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. . . . (cont’d)

12. “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)

13. 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)

14. 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.”

15. Separation of powers Legislature Judiciary Executive

16. Checks and balances Executive Legislature Judiciary

17. Federalism Federal government State governments

18. Three divisions of the Constitution • the original text, adopted in 1787 and ratified in 1788 • the first ten amendments, aka the Bill of Rights, which Congress passed in 1789 and the states ratified in 1791 • amendments XI through XXVII, ratified 1798 -1992

19. Article I – Legislative branch • how Senators and Representatives are apportioned 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)

20. Article I (cont’d) • very important: enumeration of Congress’s powers (Art. I, sec. 8) • 17 specific enumerated powers • 1 catch-all: “necessary and proper”

21. Article I — Limitations on federal legislative power • specific limitations on the 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

22. Article I — Limitations on state legislative power • limitations on state legislative power (Art. I, sec. 10); states can’t: • 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

23. 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 •  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) (cont’d)

24. Article II (cont’d) • grounds for impeachment of President, VP, and other officials (Art. II, sec. 4)

25. Article III – 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: e.g., cases arising under the Constitution, cases involving ambassadors, controversies between two states, etc. (Art. III, sec. 2) (cont’d)

26. 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)

27. Article IV – 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)

28. Article V — Amendment of the Constitution • amendments proposed by Congress or state conventions • ratification by ¾ of states

29. Article VI — Supremacy • Constitution and federal law trump state law

30. Bill of Rights • 1st Amd. guarantees free speech and religious freedom • 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)

31. 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”

32. Later amendments • 11th Amd. (1798) forbids most lawsuits by individuals against states in federal court • 12th Amd. (1804) changed how President and VP are elected (cont’d)

33. Later amd’ts (cont’d) 13th, 14th, and 15th Amds. (1865, 1868, 1870) – “Reconstruction Amendments” • 13th Amd. prohibits slavery (cont’d)

34. Later amd’ts (cont’d) • 14th Amd. • 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” (cont’d)

35. Later amd’ts (cont’d) • 15th Amd. guarantees voting rights to everyone, regardless of “race, color, or previous condition of servitude” — but not gender or age • women have to wait 50 more years: the 19th Amd. (1920) gives women the right to vote • 18-year-olds wait an additional 51 years: 26th Amd. (1971) gives 18-yr-olds the right to vote (cont’d)

36. Later amd’ts (cont’d) • 18th Amd. (1919) prohibits the use of “intoxicating liquors” within the U.S. (Prohibition); it was repealed 15 years later by the 21st Amd. (that’s why “The 21st Amendment” is a popular name for bars) •  24th Amd. (1964) abolishes the poll tax in any election for Pres, VP, Senate or House (cont’d)

37. Later amd’ts (cont’d) • most recent amendment: 27th, in 1992: if Congress gives itself a pay raise, it doesn’t take effect till after the next election

38. Hierarchy of sources of law

39. 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” [8]

40. A cure for factions • Problem: Factions • Solution: • republican form of government, instead of democracy • a large, populous nation, instead of a small one

41. Democracy “pure democracy”= “a society consisting of a small number of citizens, who assemble and administer the government in person” [10]

42. Republicanism “republic” = “a government in which the scheme of representation takes place” [10]

43. 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” [10]

44. Representation (cont’d) result of representation: “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” [10]

45. Federalist No. 51: checks and balances “But the 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.” [15]

46. 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.” [15]

47. 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