Constitutional Law I
Professor Beschle
Constitutional Law = The Law about Lawmaking and operates as the source of authority at the federal level. Focus of Con. Law I: Who has the power to do what?
Introduction to the Constitution
When developing a Constitution there are questions and choices to be considered:
What is the function of government?
A government must legislate (make laws).
A government must interpret (resolve dispute over the laws).
A government must execute (administrate and enforce the laws).
We as children learn that our system is built on the separation of powers, but this was a conscious choice and not one mandated by a higher power. Many European governments do not separate the legislative and judicial branch.
What are the goals?
Are you looking for efficient and decisive resolutions or a decentralized government?
How will you divide power geographically?
Will the national government supercede the state government? Will they be separate but equal sovereigns? Or will it be a combination of both?
Who has the power to do what?
Do you place restrictions on the subject matter and kinds of decisions these actors can make?
Is the Bill of Rights necessary?
Opponents, make the case that in the real world whether these rights are respected and protected comes down to the proper functioning of the legislative, judicial, and executive branches. The way we protect rights is to set up a structure that doesn’t give any one unit or person enough power to deny citizens rights. Therefore, it does not matter if we write and enumerate them.
History Preceding the Constitution
The framers of the Constitution found inadequate the “Articles of Confederation,” under which the Revolutionary War was fought, and immediately after the war the states got greedy and legislated for their own personal gain as opposed to the good of the nation and its citizenry. The idea was to tinker with the “Articles of Confederation”, but it was quickly decided to start from scratch. The document that resulted was the United States Constitution.
Brief Overview of the Constitution:
Article I = Sets forth the Legislative power at the federal level.
Article II = Sets forth the Executive powers
Article III = Sets forth Judicial power at the federal level.
Article IV = Explains what States can and cannot do with respect to each other.
Article V = Sets forth the way in which the Constitution can be Amended.
Article VI = Explains the relationship between Federal and State law.
Article VII = Sets forth the process for Ratification.
Part One: Article III, The Power of the Judiciary
The Power of Judicial Review
s the supreme law of the land it cannot be directly violated.
Example: “no person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the constitution is addressed especially to the courts, if the legislature should change that rule, and declare one witness, or a confession out of court sufficient for conviction, must the constitutional principle yield to the legislative act? The framers of the constitution contemplated this instrument as a rule for government of courts, as well as legislature.
Question: Is there a similar situation, to the example of treason witnesses, in the case at bar? Or in other words, does the Judiciary Act of 1789 directly violate a provision of the Constitution?
Answer (according to Marshall): Yes, according to Article III, Section 2. [2]:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all other Cases before
