CONSTITUTIONAL LAW OUTLINE
pROFESSOR “ROCKY” RHODES
Chapter 1 – The Origins and Development of the U.S. Constitution
(1) Is written by the people
(2) Creates the Government
(3) Constrains the government’s power
(4) Typically does separation of powers
(5) Creates individual rights
A. The Magna Carta
“The Great Charter” – Only gave powers to the Barons of England
Clauses 39 and 40 are the original “Due Process Clauses”
B. The English Bill of Rights
Created by the “Glorious Revolution of 1688”
Believed to cause the American Revolution b/c Colonists didn’t believe their EBR rights were being followed
C. The Political Philosophies
John Locke, Two Treatises of Government
To be a valid government, it has to be a body that protects the people and protects their property, liberty, and security.
This justifies the declaration of independence, because it was the people who stated they no longer give consent to the government to govern.
Montesquieu, The Spirit of the Laws (1748)
He was the champion of THE SEPARATION OF POWERS
His thought was that you can have the consent of the governed, but you still have to separate the powers
It doesn’t matter if it is a democracy, liberty shall be threatened if there is no separation of powers.
D. The Early American Constitutional Experience
– “People are inherently good”
Virginia Constitution was the first State Constitution
The Articles of Confederation was the first National Constitution
The government could only ask the States to pay taxes. So no one would pay taxes.
The Articles of Confederation could only do limited things:
Only one branch – the congress
They had no power to:
Enforce any law
Essentially ensure compliance to remedy any differences that arose between the states.
The continental congress realized they were garbage, so they decided to “Amend” the Articles of Confederation
This was pushed by James Madison, Thomas Jefferson, and George Washington
The U.S. Constitution
Article 1 – This sets up the legislature
2 different houses
Who can run, how often they can run, the basic qualifications
Various rules about how their proceedings must be conducted.
Article 1 – Section 8 – Enumerates the powers of Congress
The Congress must find one of these powers before they can enact
They can borrow money
Spend the taxed money
Taxing & Spending are 2 of the most important powers that they have
Create inferior federal courts
Regulating Commerce among the States
Necessary and Proper Clause
Art 1 – Section 9 – Limitations
Art 1 – Section 10 – Powers of the states
Article 2 – The Executive Branch
The term, the qualifications, basic qualifications
Veto power in Article 1 section 7
He is the commander and chief
He is the executor of the laws.
Deliver a state of the union address to the Congress
Appointment of Federal Officials
Only needs the advice and consent of the Senate
Negotiate treaties with foreign nations
Article 3 – The Judiciary Branch
This sets up the Supreme Court
It enumerated that all laws created under the constitution are subject to this Supreme Court’s judgment
This means that federal courts shall decide what: Cases or Controversies
Article 4 – Full Faith and Credit Clause
This basically states what the relationship between the states among each other and the relationship the Federal Government has with the states.
Article 1, 2, and 3 are for the national government, separation of powers, checks and balances
Article 4 and 6 – Relationship of the states to states and the US.
Article 5 – Establishes the Amendment Process to the Constitution
To propose, you need 2/3 of both houses propose an amendment; or
2/3 of the states ask for a convention for the amendment of constitution.
You would then need 75% of the States to pass it, which is roughly 38 states
The 12 biggest states control 60% of the population**
The ratification can be done through state legislature, or state conventions
The US Constitution has been amended 27 times
10 of the amendments happened immediately, and these are the Bill of Rights
Bill of Rights
These were added immediately to the Constitution
We only have these because they became the norm in other documents, and people felt safer by having them.
The Federalists didn’t support the Bill of Rights, and when they realized that the other political parties were really wanting one, they back tracked and went for it.
James Madison kept his word, so in 1789 the first thing he did was work to create the new Bill of Rights
The order of the Amendments were placed in by mistake, because they originally were going to be placed in the Constitution that would correspond to the Article they referenced.
Instead of placing them in their respective areas, they just left them afterwards
E. The Subsequent Amendments of the U.S. Constitution
The 27th amendment was actually proposed to be the 2nd Amendment, but didn’t get ratified until 1992 (pay raises after we have the chance to vote out)
The most important Amendments are 13th, 14th, and 15th.
We will study the 5th big, just touch on the 1st amendment, 2nd Amendment, 3rd Amendment, 4th Amendment, 6th
n making a decision apart from the federal law. [Michigan v. Long]
Adequate – Material to the outcome
Independent – There is a plain statement to show decision rested on state grounds
Martin v. Hunter’s Lessee established SCOTUS had the power to review state court judgments resting upon the constitution or other federal law. The Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land and the judges in every state shall be bound thereby. There was a need for nation-wide uniformity.
Eustis v. Bolles determined the extent of the Court’s Jrd. over state judgments. The basic concept: if the state court would come to the same judgment irrespective of the resolution of the federal issues in the case, the Supreme Court will not review the state court’s holding. The Case illustrates that it is not enough for Supreme Court review that a federal question was presented in a state court; instead, the federal issue must be material to the state court’s determination of the case. The Supreme Court’s power over state court judgments only extends to correcting incorrect holdings on federal rights, not to correcting incorrect dicta on federal rights.
Michigan v. Long in determining whether a federal issue was decided by a Supreme Court: If there is not a plain statement that a lower state court’s decision rests upon adequate and independent state grounds and when the state appears to have rested its decision primarily on federal law, the Supreme Court will assume that the decision is in fact based on federal law. A State decision must have “adequate and independent” state ground when making a decision. Adequate means “material” to the outcome. Independent means – if the state law basis appears interwoven with Fed law, its presumed NOT INDEPENDENT unless there is a plain statement.
E. Congressional Power to Limit Jurisdiction
Congress has the power to limit the appellate jurisdiction of the SCOTUS. [Ex Parte McCardle] Although Congress has power to limit the appellate jurisdiction of the federal courts, it may not use this power to effectively prescribe a rule for the decision of cases before the courts. [United States v. Klein]