Remembering the Constitution
I – Legislature makes the laws
II – executive branch enforces (executes)
III – Judiciary answers legal questions and determines constitutionality of actions by other branches
IV = relation of states
V-VII = provisions for implementing the Constitution – amendment process, oaths…, provision for ratification
Historical groups of amendment:
1-10 (Bill of Rights) – begin by setting off the last two (which have to do with “retained rights” –things not covered in the Constitution)
* 1 = general positive rights (press, religion, assembly, petition)
* 2-3 = war-related (quartering, arms)
* 4-8 = legal proceedings (in rough ‘chronological’/procedural order from search to arrest to trial -criminal, then civil- to punishment)
9 and 10 –
11-12 early adjustments
13-15 [post]-Civil War (mostly concerning freeing the slaves and maintaining their rights)
16-21 “Progressive” post WW I era (includes ‘reform’ causes – direct election of Senators, women’s suffrage, prohibition and its repeal)
(you might remember 16th as the beginnings of the ‘progressive’ income tax, also as connected to the Civil War, since the income tax was first used to finance the war but later found unconstitutional)
22-26 post WW II (mostly concerned with voting, Presidency)
(beginning with two-term Pres. limit, just after FDR’s FOUR elections, 23-24 relate to Civil Rights movement, 25 was almost immediately invoked under Nixon, 26 inspired by Vietnam war [vote to young soldiers])
27 – an odd, interesting one [an election must intervene between a vote for and implementation of a Congressional pay raise] (passed with the EARLIEST ones, but only recently ratified)
Con Law Weekly Review
Week 1 – had a class rescheduled
Articles of Confederation
Problem: No real way to bond citizens of each state to a national product (fear of national security). Country needed a way to tax and bind each person to the Nation. US Const moves us from states-centered nation to a nation plus states rights
[AoC XIII – can’t amend unless agreed by Congress – didn’t follow that for USC)
US Constitution ratified in 1789
What is the Constitution?
The actual article – dynamic and evolving
– through amendments and the way it is interpreted (through case law and by the Pres.)
Sets up the US gov’t – three branches
The rights of the people (and states)
Protects rights of future generations
– future rights are protected because it is dynamic and evolving
Two differences between the Articles of Confederation and the US Constitution:
Articles of Confederation are STATE CENTERED, US Const = NATIONAL GOV’T
AoC formed a national entity in Congress, but there was no executive branch or judiciary. Founders made a conscious choice to form 3 branches in the US Const.
Week 2
Bill of Rights = first 10 amendments
*In a sense, the BoR is unnecessary. Individuals and States have all the power in the world as long as it is not restricted implicitly in the constitution. Yet, people were nervous the national government would expand and swallow up individual and states’ rights.
*BoR specifies things the National Government CANNOT do, not what we the people have a right TO DO. (We don’t like being told what to do)
Random examples:
Article I §8 – SCOPE OF LEGISLATIVE POWER
– 17 powers, 18 is the necessary and proper clause – regulates 17 others
– These are not boundless – they are enumerated and limited
WHY limit the power of the national legislature?
– to protect individual citizens and the states themselves…
Amendment X – RIGHTS RESERVED TO THE STATES – if the right is not enumerated to the gov’t or prohibited against the states then it is reserved to the states or the people
Amendment IX – NON-ENUMERATED RIGHTS – individual rights are not limited or diminished by the enumerated rights
Federalist Paper #51 – James Madision –
“Ambition must be made to counteract ambition.” – we need checks and balances
Separation of Powers
Horizontal – divided into three separate branches which check each other
Vertical – divided between national federal gov’t and the states
CHAPTER 1 THE FEDERAL JUDICIAL POWER
A. The Authority for Judicial Review
Marbury v. Madison – can the SC issue a writ of mandamus? No – no const. authority. Established horizontal separation of powers.
Where the const, as interpreted by the SC, conflicts w laws or actions enacted by Congress, the SC may declare such laws or actions unconstitutional and invalid.
– The first time the Supreme Court declared something “unconstitutional”.
– Established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of the exec branch AND the legislature).
– The landmark decision helped define the “checks and balances” of the American form of government.
The judicial branch has the ultimate say on the scope of the US Constitution… and therefore it can’t hear this case b/c the act exceeds the power of the Court, but in cases in the future, the Judiciary is the ultimate arbiter on what the US Const. means.
Marshal could have read the Judiciary Act as being only about appellate JX – in that case no constitutionality argument, just that SC couldn’t issue the writ – but he looks at it in light of original JX – ct was not given this authority under original JX – its unconstitutional – we can’t follow it and can’t issue the writ – BUT when the situation arises – we’ll be able to interpret executive and legislative actions and acts.
Why should the Judiciary be the ultimate arbiter of the Const?
USC is a legal document – judges are legal experts – l
ight line (costs of this rule outweigh the benefits)
Note: 1) A good question was posed in class about whether there is a genuine difference between a Bill of Rights that protects against infringements on liberties, such as the US Constitution’s Bill of Rights, and one that promises positive rights (which seem to be absent from the US Bill of Rights). I do not think the difference is just semantics, although sometimes it may seem to be. To give an example: After Roe v. Wade, we would say that a woman has a right of privacy, and therefore can make decisions pertaining to her body, etc. But we would not say that a woman has a positive right to an abortion. Here the difference does sound like one of semantics. But sometimes, like in the example I give in class about a right to an education, the difference is substantive. It is interesting to think about whether the US Bill of Rights could be extended to include positive rights. I also referred to a philosopher who distinguishes between positive liberty and negative liberty–his name is Isaiah Berlin
Ronald Dworkin – read the Const. in the best light possible – as a document that enables us to live as principled ethical democratic people.
2) After class I was asked how come the US Supreme Court would not clearly be able to strike down a NY law banning guns based on the precedent of Heller–since the US Supreme Court asserted in Martin v. Hunter’s Lessee and Cohens v. Virginia that they have judicial review power over state courts. While the latter point is true, all that emerges from those cases is that the US Supreme Court can make sure that states are abiding by the US Constitution. But then the US Supreme Court has to determine whether the US Constitution requires states to abide by the Bill of Rights, and specifically the Second Amendment. This is far from clear, since the US Constitution primarily defines the powers and limits of the national government (not the states). Prior to the 1860s states were never required to abide by the Bill of Rights. After the 1860s states have been required to abide by certain provisions within the Bill of Rights (e.g. freedom of speech), based on the notion of “incorporation” that we will study later in the term, while others (e.g. the second amendment) remain less clear and are subject
