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Constitutional Law I
Santa Clara University School of Law
Armstrong, Margalynne J.

Constitutional Law Outline

Historical Background and Contemporary Themes
I. The Constitution’s Functions: The experience of the British monarchy, however, had taught the former colonists to fear a large, powerful govt., and so the new govt.’s power was legally limited in three ways
a. Creates National Government and Separates Power
i. Article I—Legislature
1. Powers are enumerated= Limiting their power
ii. Article II—Executive
1. Outlines method for choosing Pres. and VP
2. 12th Amend—Changes that runner up be vice president
3. 22nd Amend—Limits Pres. to 2 terms
iii. Article III—Judiciary
1. Federal Judges shall have life tenure—Enhance the likelihood that their decisions will be based on the merits of the case and not on political pressure.
2. Selected by Pres. w/ “advice and consent of the Senate”
b. Divides Power Between the Federal and State Governments
i. “Federalism”—vertical division of Power
ii. 10th Amend—“The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people”
iii. Article VI—Supremacy Clause—Constitution and the Laws of the US which shall be made in pursuance thereof and all Treaties made or which shall be made under the authority of the US shall be the supreme Law of the land
iv. Federalism Limits the ability of states to impose burdens on each other
c. Protects Individual Liberties
i. Art. I
1. Section 9—no state or federal gov’t can enact an ex post facto law(criminally punished conduct that was lawful when done) or bill of attainder(law that singles out particular person for punishment)
2. Section 10—no state shall impair contracts
ii. Art. III
1. Trial by jury
2. Limits the scope of treason to “levying war against US”
iii. Art. VI
1. Limits the ability of a state to discriminate against out-of-staters with regard to what are called “privileges and immunities”
I. Why a Constitution?
a. Difficult to Change
i. Differs from the British system which is very easy to change—prevents tyranny
II. History of the Constitution
a. Articles of Confederation—Ratified in 1781—“each state retains its sovereignty, freedom, and independence and every power, Jxnal and right which is not by this confederation expressly delegated to the US, in Congress Assembled.”
i. Problems With Art. Of Conf.—Written by Madison for the Constitutional Congress of 1789
1. Created a very weak national government
2. No Executive or Judicial Branch to enforce anything
3. Congress had no power to tax or regulate commerce—even though they had the right to establish a treasury
III. Differences Between the Articles of Confederation and the Constitution


Articles of Confederation

Separation of Powers = Executive, Judicial, and Legislative branch

No Separation of Powers: Only entity with Federal power is Congress (But Congress is a creature of the states. Each state appoints its own delegates in any manner it likes, and pays its own delegates’ salaries.

Bicameral Legislature

Required unanimous decision by all state legislatures to ratify and amend.
Required nine of thirteen to approve all laws.

*Can’t pass a bill of attainder – can’t make it illegal to be Andy Koppelman
*Can’t pass ex post facto law
*Article IV gives constraints to individual states

a. Arguments against Constitution—Anti-Federalists
i. Creating a more powerful federal government could be inconsistent with the spirit of civic virtue, creating extreme disparities in wealth education and power
ii. Against Representation—Afraid that an aristocracy of politicians would be created
iii. Worried about a strong national gov’t focused on commerce—meaning a nation that is motivated by money
b. Arguments for Constitution—Federalists
i. Each state had to ratify the constitution—supported by the Federalist Papers written by Madison, Jay and Hamilton
1. Federalist 10 (Concern with Factions)- Madison, 1787: Madison thinks the primary problem of gov’t is the control of factions. He wants a system in which even a majority of people would have difficulty securing power. A well-constructed union will “break and control the violence of faction”