Constitutional Law I Outline

 
       I.            Genesis, Theory, & Relevancy of the Constitution
 
1776 – Declaration of Independence
How did we structure this community? (1st part of Con Law)
We need to take human nature into account. Madison took this into account. They want power etc.
Need to limit range of power and offices to which they are elected. Limit the power they can exercise
Law of constitution makes change very difficult
Checks and balances
Courts
President’s veto power
Interconnections between branches
Separation of powers
Real structure that responds to human nature
 
What was the reason for the colonists to break away from England?
Imposition of taxes by crown – no taxation w/o representation
The British empire could have set up colonists as representatives in Parliament
Keeping too much of their resources
Lack of political power
List of complaints (declaration of independence – supplement 1) catalog of claimed rights
Today those rights are found in the constitution and Bill or rights – formulated in documents/texts
At that time, it was understood. The idea of these rights were found in natural law
Religion gave rise to Natural Law – standards between human beings (St. Thomas Aquinas)
Degree of concreteness must exist for a law to exist
Religion was an important factor in creating our laws
Natural Law limits what Congress can do. Limits our laws
Natural Rights – underlies the common quest for human rights – Liberty and Property
“Liberty and Property” was proclaimed by John Locke
John Locke – government is there to serve the people in liberty and property
We declared ourselves independent and the Dec. of Ind. was drafted – a new country was formed
 
Why did this Declaration of Independence stand when so many failed elsewhere?
 
States are the actus of the international system (nations state)
System of law that deals with the relationship between states – international law
1000 years back in time was there international law – yes the same way we have it today.
The modern nation state is a creation of man not and effect of nature. How old is the state? Started in 1648 – Treaty of Westphalia –
Treaty of Westphalia — ended the 30 years war for religion. Marking the transition from feudal time. Then a reformation came. The leaders split up and some chose to become Lutherans and others did not. Treaty originated the concept of nation state and the first human right – Freedom to choose your own religion. It removed the serfdom that connected with feudal times. Once you changed the religion you had the right to immigrate from your land or lord.
First development — Moved from personal rule to territorial rule. The rulers of theses territories where the old lords and part of the monocratic system. Encapsulated in model of a French king. The identity of a nation-state with a ruler. “The state is me”
Next development – First servant of the state. Subordination of the ruler under the state making the state a higher entity. Mixed constitutions. People wanted more representation. 1700s.
 
In the US went from mixed constitution to one constitution.
Was this the first democracy? No the Greeks had a very active democracy, but the majority of the population where from vanquished territories and did not all have the same rights—not really a full democracy.
 
Historical background before the declaration of independence:
Why were the settlers worked up about the rule of England over the colonies? – the colonists were very enlightened and well read.
 
1776 – break away of US from England
The act of breaking away from another nation-state/country– Secession
When you break away it becomes a question of international law. Is it legal or not, or maybe just an issue of fact
Can part of nation-state secede from a nation-state. What are the guidelines?
Before WWII the change of nation-states and its boundaries was not limited. Now you cannot violate the principle of territory integrity. You cannot take apart a country. Rule of the UN charter. (some exceptions such as self-defense). The big exception was that the colonial empires could break away if they chose – Britain and Nigeria.
In order to establish a nation-state 4 elements must be satisfied:
Must have a territory
Need people
Effective government – a constitution is the baptism of government
Recognition – several governments must recognize you as a nation-state in order to be one
These criteria are self evident
Utipossedetis – look this up – breaking away from nation-state within the original state’s borders
 
For the declaration to be successful, they needed the 4 elements for a nation-state.
The first to recognize the nation-state was France. There were good points to make to ask for the recognition that was needed.
Before WWII, Had to fight a war and see if they could win it.
 
The declaration of Independence was the key document for the Revolution
After it was passed – signed and had effect – British tried to prevent it and the war for independence was started
There was no “United States of America”
What kind of government – joint declaration of independence –
There were colonies – who became independent – what were these entities called – what was the name? A firm league of Friendship
We were a Confederation – a grouping that comes from an international treaty that works to achieve certain goals together – unstable entity – not a state – international legal body
Federation – grouping of states that seeks to cover all aspects of life unlimited in nation — is a state
They needed an army to fight the war for independence
 
1781 Articles of Confederation
International treaty keeping sovereignty between the states
Some limited powers to make laws
If you wanted to make a change and amend articles needed to have all the states agree to the change
That is why it is an international document and not a domestic document
How did we leap to the constitution and why? – constitution creates the establishment of the government itself. And this was done by holding a constitutional convention
It had a mandate from congress plus all states and except Rhode Island
Call in 1787 and consider the exigencies of the union
The exingencies and necessities were
Need to have income to pay their soldiers and there was a lot of war debts
Wanted to create a national federal government to tax as one
Delegates to conference were –Hamilton, Hancock, Madison
Fact that Jefferson was not there – he was an anti-federalist – trying to keep state sovereign
Washington was a federalist but did not join the party to keep the father of the nation status without taking sides
Conflicts between States and Federal Government
 
1787 Constitution & Amendments
Dual sovereignty – states and government
Conflicts between states and federal government
Sovereign power is not what is given to you but what you take
Allocation of powers between the 2 levels
What is the federal government’s range of powers
What is the states’ range of power
The constitutional convention acted outside the scope because they were only supposed to amend the articles of confederation
They undertook a revolution
REVOLUTION – change in the source of legality
Allocated to themselves power to create a new entity
Created a new domestic legal system
Constitution is the pinnacle of that
Illegal act under the articles become a legal act under the enactment of the constitution because people agree that it happen
Did not follow substantive mandate not procedure for making changes – not every state had to consent to it
New nation state through the constitution – United States
Last article of the constitution – Article VII – 9 states supposed to express consent of the states (no longer need all states for ratification)
They obtained the consent by the convention of 9 states. Not the Houses or Elected bodies doing regular legislation. They are the people themselves. Direct representation in this fundamental decision
We now have a domestic union that could have forced some states to comply but they all agreed in the end
This is an institution of perpetual common fate
 
Struggles
Over what powers go to fed and states
Some natural rights were left out
They mainly defined the structures of authority and control
Set up a vertical separation of powers
 
Established 3 branches
Executive
Legislative
Judicial
Montesquieu L’ e Spit des Lois – created these entities in his writings
 
Leg — Congress is the most powerful body in the constitution – can address any issue they want
Power to declare war
Sets policy for the rest of the nation
Pres – exec – executes the laws of Congress
Powers to go to war
Jud – Courts – must wait for cases to come to them
Marbury v. Madison — Established judicial review
The three branches are constituted powers. Cannot go beyond what the constitution allows them to or their actions are unconstitutional.
 
 
 
   II.            Constitutional Methodology and Interpretation
 
THE CONCEPT OF FEDERALISM
A. The federalist system: We have a “federalist” system. In other words, the national government and the state governments co-exist. Therefore, you always have to watch whether some power being asserted by the federal government is in fact allowed under the Constitution, and you must also watch whether some power asserted by the states is limited in favor of federal power. [17]  
B. Federal government has limited powers: The most important principle in this whole area is that the federal government is one of limited, enumerated powers. In other words, the three federal branches (Congress, the executive branch, and the federal courts) can only assert powers specifically granted to them by the United States Constitution. So any time Congress passes a statute, or the President issues, say, an Executive Order, or the federal courts decide a case, you’ve got to ask: What is the enumerated, specified power in the U.S. Constitution that gives the federal branch the right to do what it has just done? (This is very different from what our Constitution says about the powers of state governments: state governments can do whatever they want as far as the U.S. Constitution is concerned, unless what they are doing is expressly forbidden by the Constitution.) [17]  
McCulloch v. Maryland:
Know about Federalism from Necessary and Proper Clause Art 1 sec 8 cl. 18, First thing you look at when you are doing any federal regulation.
Fact: a state bank tax regulation wants to tax a fed bank in Maryland.
Rule: The courts will not strike down a congressional action so long as Congress has employed a means which is not prohibited by the Constitution and which is rationally related to objectives that are themselves within constitutionally enumerated powers.
Notes:
·         Although the fed may act only where it is affirmatively authorized by the Constitution, the authorization does not have to be explicit. “The doctrine of implied powers,”- the gov’t may validly exercise power that is ancillary to one of the explicit powers listed in the Constitution, so long as this ancillary power does not conflict with specific Constitutional prohibitions..
·         J. Marshall rejected contention that necessary meant absolutely necessary or indispensable.
·         Marshall found that Congress had the power to create a corporation (Bank in this case), if this was incidental to the carrying out of one of the constitutionally enumerated powers, such as the power to raise revenue.
·         As long as the legislation is rationally related to one constitutionally enumerated motive, which Congress was or might have been pursuing, the fact that other ends not within the enumerated powers of Congress might also be achieved does not invalidate the power.
 
Article I, Section 8, Clause 8
SEE CLAUSE
 
Calder v. Bull (1798)
Government exists to protect personal liberty and private property; an act by the legislature removing that protection would necessarily exceed the legislative authority
Constitutions were intended to limit the legislative power; a court may believe a statute violated natural law, but could not declare it void unless it was prohibited by the Constitution
 
  
III.            POWERS OF THE THREE FEDERAL BRANCHES
 
A. Powers of the three branches: Here is a summary of the powers of the three branches of the federal government:
1. Congress: Here are the main powers given to Congress [18]:
a. Interstate commerce: Congress has the power to regulate interstate commerce, as well as foreign commerce.
b. Taxing and spending: Congress has the power to tax and the power to spend.
c. DC: Congress can regulate the District of Columbia.
d. Federal property: Congress has power to regulate and dispose of federal property.
e. War and defense: Congress can declare war, and can establish and fund the armed forces.
f. Enforcement of Civil War amendments: Congress can enforce the post-Civil War amendments. (For instance, under its power to enforce the Thirteenth Amendment’s abolition of slavery, Congress can ban even private intrastate non-commercial conduct.)
2. President: Here are the main powers of the President:
a. Execution of laws: The President holds the “executive power.” That is, he carries out the laws made by Congress. It is his obligation to make sure the laws are “faithfully executed.”
b. Commander in Chief: He is Commander in Chief of the armed forces. So he directs and leads our armed forces (but he cannot declare war – only Congress can do this.)
c. Treaty and foreign affairs: The President can make treaties with foreign nations (but only if two-thirds of the Senate approves). He appoints ambassadors. Also, he effectively controls our foreign policy – some of this power over foreign policy stems from his right to appoint ambassadors, but much is simply implied from the nation’s need to speak with a single voice in foreign affairs (so that Congressional involvement in the details of foreign affairs will generally not be appropriate).
d. Appointment of federal officers: The President appoints all federal officers. These include cabinet members, federal judges and ambassadors. (But the Senate must approve all such federal officers by majority vote.) As to “inferior [federal] officers,” it’s up to Congress to decide whether these should be appointed by the President, by the judicial branch, or by the “heads of departments” (i.e., cabinet members). (But Congress can’t make these lower-level appointments itself; it may merely decide who can make these appointments.)
e. Pardons: The President can issue pardons, but only for federal offenses. (Also, he can’t pardon anyone who has been impeached and convicted.)
f. Veto: The President may veto any law passed by both houses (though this veto may be overridden by a 2-3’s majority of each house.) If the President doesn’t veto the bill within 10 days after receiving it, it becomes law (unless Congress has adjourned by the 10th day after it sent him the bill – this is the so-called “pocket veto”).
3. Judiciary: The federal judiciary may decide “cases” or “controversies” that fall within the federal judicial power. See the section on “Federal Judicial Power” in the chapter called “The Supreme Court’s Authority and the Federal Judicial Power,” above.
 
 
·         The Commerce Power
 
A. Summary: Probably Congress’ most important power is the power to “regulate Commerce … among the several states.” (Art. I, §8.) This is the “Commerce power.” [25] Exam Tip: Any time you have a test question in which Congress is doing something, first ask yourself, “Can what Congress is doing be justified as an exercise of the commerce power?” Most of the time the answer will be “yes.”
B. Summary of modern view: There seem to be four broad categories of activities which Congress can constitutionally regulate under the Commerce power:
1. Channels: First, Congress can regulate the use of the “channels” of interstate commerce. Thus Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic. Presumably Congress can do so even though the activity in question in the particular case is completely intrastate. [40] 2. Instrumentalities: Second, Congress can regulate the “instru