Historical Background and Contemporary Themes
I. The Constitution’s Functions
A. Creates National government and Separates Power
1. Article I: creates legislative power in Congress
a) Popular election of House of reps to two year terms
b) Selection of senators by state legislators for six-year terms
(1) Seventeenth Amendment provided for popular election of senators
2. Article II: executive power is the president
(1) Four year term through electoral college
(2) President selects federal judges with advice and consent of Senate
b) Twelfth Amendment eliminated the practice of making the vice president the runner-up in the election
c) Twenty-second Amendment: cannot be elected more than twice
3. Article III: judicial power is Supreme Courts and inferior courts as Congress creates
a) Federal judges have life tenure
B. Divides Power Between Federal and State Governments
1. Federalism: vertical division between the federal and state governments
a) Tenth Amendment: powers not delegated to the U.S. through the Constitution are reserved to the state and the people
(1) Early in 20th century Court aggressively used it to limit Congress’s power
(2) Post-1937 (New Deal) Court did not see Tenth Amendment as a basis for declaring federal laws unconstitutional à deferential
(3) 1990’s, it was resurrected
b) Supremacy clause of Article VI: “Constitution and the laws of the US which shall be made in pursuance thereof and all treaties made, or which shall be made, under authority of the US, shall be the supreme law of the land”
(1) Provides hierarchical relationship between federal government and the st
ernments can enact an ex post facto law or a bill of attainder
(1) Ex post facto law: criminally punishes conduct that was lawful when it was done
(2) Bill of attainder: law that singles out a particular person for punishment
b) Section 10: No state shall impair the obligations of contracts
2. Article IV: privileges and immunities among the states
a) Limits the ability of a state to discriminate against out-of-staters
3. Constitution restricts only the government
a) Private Behavior: only the Thirteenth Amendment (which prohibits slavery and involuntary servitude) directly regulates private behavior
b) Bill of Rights did not apply to individuals until 20th century
c) Private conduct generally does not have to comply with the Constitution
II. Why a Constitution?
A. Difficult to Change
1. 2/3 of both houses + ratification by 3/4 of states
2. constitution represents an attempt by society to limit itself to protect the values it most cherishes
a) society’s attempts to protect itself from itself
III. History of Creation and Ratification of the Constitution and its Amendments
A. Articles of Confederation
1. created a very weak national government and embodied a strong commitment that state governments retain sovereignty
2. problems with trade and national ability to deal with problems
B. Constitutional Convention
1. unlawful to propose new constitution rather than in amending the Articles??
