CONSTITUTIONAL LAW OUTLINE
I HISTORY OF THE CONSTITUTION:
A. The development of the constitution
1. Articles of Confederation
a The predecessor to the constitution
b Was in place during the Revolutionary War
c Once the war was over problems erupted b/w the states – federal power v. state power.
d The articles of confederation did nothing to solve the problem
e Was seen as a mutual defense treaty b/w the states
f Major flaw was the lack of an executive and judicial branch
2. Constitutional Conference
a A conference was called in order to redo the Articles of Confederation
b What wound up happening was the complete disposal of the Articles and the drafting of the Constitution
c The first three articles dealt w/ the three branches of the government
B. Concept of a government administered by three co-equal branches
1. the constitution separated government into three co-equal branches
a the legislative
i Article I deals w/ the legislatures branch
ii Representation/ how many congressmen
iii What their power is
b the executive
i Article II deals w/ the executive branch
ii Power of the executive
iii How long a president can be in office
c the judiciary
i Article III deals w/ the judicial branch
ii There will be one supreme court of the land and as many courts as congress sees fit under them.
C. Federal v. State Power
1. At the time of the drafting of the constitution the representatives considered themselves primarily state citizens
2. Where hesitant to incorporate anything that would give a central government or a single person too much power
a Wanted to stay as different and as far from the British crown as possible.
3. The states delegated powers to the federal government
a These powers were enumerated in Article I § 8
b These powers include the post offices, coin money, interstate commerce – 14 in total
c The necessary and proper clause however gave the federal government more power than originally expected.
D. The constitution and slavery
1. Slavery became the primary issue at the constitutional conference; there was tension b/w the Northern and the Southern states.
2. There are three specific references to slavery in the constitution:
a Article I § 2 (paragraph 3)
i Commonly known as the 3/5th provision of the constitution
ii The question was whether slaves should be counted in regards to representatio
ute (or portion of) is alleged to be in conflict w/ what portion of the constitution
3. When the Supreme Court finds there is a conflict b/w the statute and the constitution:
a The statute becomes null and void
i Or part of it becomes null and void
ii Will not necessarily void the whole statute
b The statute, or portion, becomes unconstitutional
c Example:
i Congress passes a law making flag burning a crime punishable by 5 years, someone gets convicted of the crime and the courts find that it was a form of symbolic speech, and therefore protected under the 1st amendment — the Court’s decision makes the law unconstitutional.
4. The Supreme Court gets this power from two places:
a The Supremacy Clause-Article VI § 2 of the constitution is called the Supremacy clause
i States that the constitution is the supreme law of the land
ii Every other body must write laws that conform to and are not in conflict w/ the constitution
Judicial Review
