Constitutional Law
I. 8/30/05
Liberty Video & Constitution
Liberty Video
1) Articles of Confederation were failed attempt at government
a) Difficult to get consensus on passing any laws
b) No way to handle boundary disputes, taxes for importing goods from another state.
c) No national treasury to support an army, navy, pay pensions, etc.
d) Shea’s rebellion and aftermath scares the creditor class.
e) No central figure/authority to communicate between U.S. and foreign nations. (France was on the verge of sending 13 separate ambassadors to U.S.)
2) Constitution
a) 55 delegates to convention in Philly, 34 of them are lawyers.
b) Short document – leaves some parts to a great deal of interpretation (due process clause).
c) Article VI – Constitution, hence federal government, is the highest law in the land. “Supremacy Clause”
d) People are the government. There is no supreme authority (no king, queen, emperor, etc.) This was a concern for the leaders because nothing like this had been tried on such a large scale before. Only previous experience is the city-states of ancient Greece.
e) Contrary to this idea Madison supports the theory that a big republic is stronger than a small republic because the different factions will oppose each other and not allow any one to obtain control.
f) Tri-partite government – the system of checks and balances is revolutionary.
g) Electing President
i) State legislatures select the electoral college.
(1) eg. State legislature of FL could have thrown out the whole Bush/Gore election and elected a number of electors to decide the issue.
h) Constitution written by WASP men.
i) U.S. Senate is undemocratic
i) Number of senators is very disproportionate to the number of people they represent in some states relative to others.
ii) Senators originally elected by state legislatures.
j) Judiciary undemocratic
i) President selects judges for life.
k) House of Reps is most democratic body.
i) Reps are elected in the same way that state legislatures are elected in each state.
l) Separation of Powers
i) Congress alone can’t make laws without the participation of executive. (not counting case of veto)
ii) 2 Houses need each other.
(1) Only House can start a tax bill.
iii) The salary of judges can not be reduced while they are in office.
iv) President controls army but needs Congressional approval.
m) Protection of Liberty
i) Each state shall have a republican form of government.
ii) You can not be prosecuted for things you say on the floor of Congress. Elected Reps can call the government to account for itself.
iii) Each house must keep a journal of its proceedings (this was not done at the Constitutional Convention).
iv) Amendment process
(1) amendments can be changed, although it is difficult
v) No title of nobility shall be granted.
vi) *No religious te
ery long and very important. Foundational
Supreme Court
1) Supreme Court is very undemocratic element of constitution.
a) Court is appointed for life.
b) Decisions can not be reviewed by another body
2) Has no power to enforce its decisions.
a) Its power rests solely in the fact that other branches voluntarily abide by its ruling.
i) Example: Nixon, claiming executive privilege for the Watergate tapes. Nixon ended up turning over the tapes voluntarily before it became an issue of him obeying the court.
3) Counter-majoritarian Difficulty in Judicial Review
a) Judicial review consists of unelected group of people passing judgement on bills passed by elected representatives.
b) It might be said that the judges represent nobody.
c) Judges can not be replaced by a method as simple and methodical as an election. Only method is through impeachment.
d) A court that behaves properly or improperly – look up in book.
4) Precedents – court can be activist about overturning precedents or restrained in upholding precedents.
5) Political Issues, Methodological Issues, Countermajoritarian issues all come up in Marbury v. Madison.
