Constitutional Law I Outline

Constitutional Law, Spring 2012, Matt Steilin

Outline/Notes

Introduction and Background

-Course to focus on powers (ability of gov’t to do something), not rights

-Con Law = the body of law based on the Constitution (note that many issues, such as war powers, do not come before the courts). It is also a form of political and social history (context is key), and not about judicial review or constitutional interpretation (originalism, textualism, living constitutionalism)

3 PRINCIPLES OF AMERICAN CONSTITUTIONALISM (Sam Adams)

-Written (Unlike the British ‘constitution’)

-Fundamental (law that limits the powers of gov’t-sets out and defines limits). Rejection of legal positivism sovereign makes law) for sovereign under law. Proper authority is in conformance w/the Constitution.

-Popular (Rests on sovereignty of the people to enforce, vs mixed gov’t theory)

*Rights = express limitations (a Constitution need not have a Bill of Rights). “Expressio unis”-implies rights not listed are not protected-see the 9th Amendment

PREDECESSORS TO THE CONSTITUTION

A. State Constitutions 1776-1787

a. Nothing (RI, CT)

b. Legislative adoption (SC)

c. Convention (PA, MA, NH) – Popular in authority

i. a & b = no fundamental charter to limit gov’t

B. Articles of Confederation

a. Written? Yes.

b. Fundamental? Yes-power limited (taxation), not arbitrary.

c. Popular? No, rests on states and not people (agreement between states-a compact/treaty between sovereign states for common defense and free trade, represent state governments)

d. Article 4: Free commerce among the states (think Eurozone), full faith/credit

e. Article 6: No state powers of foreign policy or war

f. Article 9: Congressional authority to make foreign policy and war

g. Article 10: Committee of states executes power in absence of congress

h. Article 9 section 2/3: Judicial power

i. Article 13: Continental Congress has no power to coerce states-i.e. no legislative power

i. Recommendation power only, no sanction

ii. Art. 9 section 5-no power to raise revenue on its own

CRISIS OF 1780s

A. Failure of Articles

a. States refused to pay common treasury to support war effort, interfered with national treaty obligations

b. Congress lacked power to regulate interstate or foreign commerce, lacked a power of coercion

c. States voted against national measures that might conflict with local interests (needed unanimity) *Collective action problem-individual self-interest overrides common interest

d. States would not permit Articles to be amended to strengthen Congress-radical reform needed inconsistent with basic structure of the compact

B. Failure of State Legislatures (Point 9 in Madison memo)

a. Multiplicity, mutability and injustice (debtor relief legislation) of state laws

b. Representatives focusing on their own interests, republican despotism (tyranny of the majority)

c. Solution: Broaden the electorate, many interests to keep one majority from coming out on top

Political Theory of the Constitution

PROBLEM

SOLUTION

Weakness of Congress

Power to legislate and tax, independent executive and judiciary

Defects in republican gov’t

Legislative design, counteract republican despotism, national gov’t less dependent on cooperation than states

3 DESIGN STRATEGIES

1. Authority rests on people, not states, gov’t has power to govern people. Article 7, Article 5, Article 6

2. National electorate large and national legislature small. Large scope of representation.

3. Powers divided-federalism and separation of powers. Federalism a PR strategy, Article II.

The Federalist: Collection of essays in 1788, run in NY papers during ratification debates (frequently cited by SCOTUS).

Federalist 10: Legislative design. Factions are unavoidable (sown in nature of men), necessarily affect legislation (regulation principle task of modern legislation). A large federal gov’t can counter the effects of faction.

Federalist 51: How to prevent feds from being oppressive-self interest unavoidable but arrange large pieces of gov’t to conflict with each other

Introduction to Article I

[ArticleàSectionàClause]

Article I

Section 1: Vesting Clause

“All powers herein” –legislative authority defined and limited. Structure of federalism (Sect. 4, 8, 9/Amend X, 10/Article VI). Reasons: Prevent tyranny (constitutional overlap), democracy advantage, laboratories.

Section 2: House

Section 3: Senate

Each state equal representation (“Great Compromise”)…counter majoritarian, represents state legislatures, envisioned as a calm great debilitating body semi-immune to public opinion. Senates represents interests of states (pre-17th Amendment). A political device of federalism.

Section 4: Election & Meeting

Section 5: Rules of Congress

Section 6: Privileges

Section 7: Enactment

Section 8: Powers

18 enumerated powers. Not a general grant of power (Virginia Plan proposed authority for legislate on general interests, areas where states separately incompetent and national harmony-sometimes used as a guideline for interpreting the enumerated list). Money, Machismo (foreign), Monopoly (certain organs), curing financial failures of the Articles (commerce) and foreign policy/war powers (international securit