Constitutional Law Outline
Rhodes – Spring 2015
A. The Foundations, Functions and Purposes of the Constitution
à Notion that people are Sovereign and people can limit the govt.
1) The Magna Carta (1215)
King John abused his power and in response to people’s grievances the Magna Carta was created to provide a means of address when the King abused you.
How it relates/influenced our Constitutionà by providing ideas of venue; establishing a court system; due process
– religious freedom
– courts and venue
– punishments and seizures
– due process
all of these could be modified by Parliament.
Modern: most of the M.C. has been repealed.
2) English Bill of Rights (1688)
Arose from the “Glorious Revolution’ beginning with a list of grievances (ex. Declaration of Independence)
à How influential this was in creating our Bill of Rights:
– free elections, petition the King, no cruel or unusual punishment, excessive bail, quartering soldiers, protestants right to bear arms.
– only the legislature can suspend laws
– no religious court
– concept of juries
Still: King – Divine Right
House of Commons (reps)
House of Lords (senate)
3) Political Philosophers: Locke & Montesquieu
Locke- There should be no absolute law. (Treason against the King). Locke poses the question, What is the state of nature? à everyone is free; absolute freedom. Limits: not harming another then govt. leave me alone.
Under nature’s law = if no govt. ruled by the state of nature. All equal – all free. Also under the state of nature one cannot harm others or yourself or take away someone’s possessions or property à violates God’s law.
However, if there is no political authority then who is the judge? à EVERYBODY
Concern: since everyone has the power, how do we trust someone in their own case? à No way to enforce.
à Move from the State of Nature to political communities w/ someone enforcing the law.
Political Communities: has to be based on the common good. (gives consent). Through consent forms political communities for the common good and therefore you cannot have a King. à gave rise to PEOPLE ARE THE SOVEREIGN.
Montesquieu: focus on separation of powers; checks and balance system. Necessary for individual liberty to preserve liberty. Also thought the British system was best.
Legislature – makes law
Executive – enforces law
Judicial – oversees law
Ambition has to counteract ambition à creates checks & balances
4) American Revolution
Tyranny of a King and a fair off Parliament. (Royal Govts)
– Civic virtue (classical republicanism): people will of nature go towards the common good. When good people do good, good things will happen. à people will pursue common good.
1776- Declaration of Independence
Since there was no U.S. govt. states had to come up w/ their own state constitutions à gave legislature all the power. Governor was subordinate to the Legislature.
Virginia Declaration of Rights
Very philosophical document based on Locke and civic virtue. Importance of rights, philosophical and placed at the beginning of the constitution.
National level adopted:
1781- Articles of Confederation
States retained sovereignty; was not bossed around by federal govt.
Every state was sovereign, federal govt. could only ask please. STATES WERE THE POWER. THEY WERE ABOVE THE FEDERAL GOVT. = DID NOT WORK
Federal govt. powers: could decide disputes between states, regulate value of coins & regulate trade with Indians (not states) à foreign things. Only had power over international affairs & money, but no power to tax or regulate commerce.
Federal govt. limits: no ability to check the States. Nor did the federal govt. have any power to regulate domestically.
1787- Constitutional Convention “Philadelphia Convention”
Need to make a govt, based upon vices not virtues.
James Madison- Montesquieu and Hume
– Hume: vices can be made into a great govt. Ambition can fight ambition.
Issues: slavery, lower/upper house representation, electoral system (people/delegates); presidency, judiciary, and national vs. state power.
States v. Nationalists = Anti-federalists v. Federalists
Anti-federalists biggest argument was that there was no Bill of Rights. Federalists pretty much won.
The U.S. Constitution
Anti-federalists made a deal w/ Madison to create the Bill of Rights and the ratification of the Constitution was approved. J
Bill of Rights (First 10 Amendments)
17 were actually proposed, 12 got submitted to Congress and 10 were ratified by the states.
(our 1st amendment would have been the 3rd amendment. The 27th amendment would have originally been the 2nd amendment)
Constitution does 3 major things:
1) Creates a federal govt. & separates the powers among the federal govt. branches.
Article I: Legislature
– Congress gets l
Thomas- only originalist on the Court
Scalia- “faint-hearted originalist” à established doctrinal over historical
B. Foundations of Judicial Power
What are the judicial powers and what does it mean?
à Powers given to the judges by Art. III of the Constitution.
à Must be a case or controversy. Supreme Court is not an advisory panel. Each branch has their own responsibility. Executive branch is for advisory.
Hayburn case- problem w/ executive reviewing a decision of the court? Not a function of the executive. Don’t want judges reviewing things reviewed by the executive.
Chisholm v. Georgia- caused a lot of controversy. Georgia was a sovereign & couldn’t be sued by individuals. S.C. ruled that citizens are ultimate power/sovereigns in our govt. Georgia is not anymore sovereign than the people.
à PEOPLE ARE THE ULTIMATE POWER. NOT SUBJECTS. WE ARE CITIZENS.
Georgia does not get immunity from suits. S.C. can hear arguments of citizens from two states à diversity jurisdiction; SMJ à Made states unhappy à 11th amendment
1) Judicial Review
1800s new direction for the court. Govt. was ruled by the Federalist Party. à Adams, Hamilton à big business
Jeffersonian Republicans à Jefferson/Madison à small govts. Can do it
1796- Adams defeated Jefferson for president after Washington stepped down. President- Adams, VP- Jefferson
1800- ran againà Jefferson won. Jefferson didn’t take office until March 4, 1801.
Adams began stacking the judiciary w/ Federalists before Jefferson takes office.
Organic Act for District of Columbia: passed Feb. 27, 1801. Adams nominated 42 justices of the peace for D.C. on March 2. March 3 advice & consent of Senate. Adams signing commissions until 9pm. March 4, 1801, 17 commissions were not delivered. Jefferson ordered the remaining commissions to not be delivered.
Marbury who did not get his commission filed suit. Marbury filed suit directly to the Supreme Court.