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Constitutional Law I
SUNY Buffalo Law School
Gardner, James A.

U.S. Term Limits, Inc. v. Thornton
Arkansas amended its state constitution to set limits on its federal congressional terms. Supreme Court says a state does not have the authority to limit terms to the U.S. Congress.  
·         Framers’ Intent –
o       evidence of things said by the Framers taken from discussions regarding the formation of the Constitution – Federalist Papers – Hamilton and Madison. 
o       Omissions/silence – term limits were present in the Articles of Confederation but were left out of the Constitution. Silence is generally a weaker argument than affirmative arguments
o       English experience – The Wilkes Affair – Wilkes was elected to Parliament, but kicked out, but repeatedly elected afterwards, Parliament capitulated and finally made a rule that Parliament did not have the authority to expel a member elected by the people. Historical argument, provisions receiving British common law. Constitution as a critique of British law, Framers were British, knowledge of British history helps to understand Framers background
·         Democratic Principles – political theory argument
o       Sovereignty is vested in the people – popular sovereignty, people have the say over who represents them
o       Egalitarian ideals – everyone has an equal chance to be elected a representative. If you try to limit who can represent than not everyone is represented.
History – Two important crisis – Oppression of the colonies – resulted in the Declaration of Independence. 
·         Addressed to the people of the world, the colonies and Britain. Lays out the political philosophy of liberalism – John Locke – justification of popular sovereignty, had been used by the British subjects themselves to depose the king in the British revolution. 
·         Syllogism – a tyrannized people may rebel, the American colonists are tyrannized, therefore they may rebel. Question becomes; Have the American people been tyrannized. 
·         Jefferson lays out the facts to prove that the colonists are tyrannized. The Bill of Particulars – in the form of an indictment, a published indictment of a sitting monarch. Charges begin general and not too severe, tone changes, transition to serious charges. 
Once independence has been established, the Americans must develop their own form of government
Articles of Confederation
·         More of a treaty between independent, sovereign states. 
·         Requisitioning of money into a federal treasury
·         Must have agreement of atleast 9 of the 13 colonies for most governmental actions. Unanimous agreement for amendments
·         no single sovereign, no single voice to the outside world. Union of 13 separate sovereigns.
·         Lack of federal power to tax. Only a few states actually paid their requisitions. National government had no stream of income
·         Congress was nearly bankrupt, rebellion in western Mass (shay’s rebellion). Led people to rethink the articles –
Philadelphia convention – produced the Constitution
·         Constitution required ratification by 9 of 13 states, ratification counsels. There was criticism of the constitution. Several states wanted a Bill of Rights to be included in the Constitution. 
The Constitution
·         Claims to be a constitution. What purpose is a constitution supposed to serve? 
o       Purposes are listed – Form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty
o       Meant to last forever – process for amending, mentions posterity. Does mention that it should last for atleast 20 years (art. 1, sec. 9, cl. 1)
·         Constitution of the United States of America. Describes the United States for the first time
o       Has powers that are not delegated to the states. Military powers, taxation, foreign policy powers
o       Although the US has the same name as it did in the Articles, it is a much different entity. Has power to back itself up, no has the power to impose taxes and raise its own standing army. 
o       Has it’s own voice to the outside world
o       Change in the status of sovereignty. Sovereignty is now vested in the people of the USA. Articles were created by the states, but Constitution was created by the people. Under the Articles the US was not a nation, was more of a treaty or league of sovereigns. Under the Constitution, the US is a nation of unified people. Document is based on the premise that there is a people and that the people (citizens of the US) have sovereignty over the nation
o       A government’s powers are just when the governed give consent to those powers – Jefferson
Federalist 10
Madison is answering critics of the constitutional scheme of national republican government. 
·         Madison – Advantages of a large republic
o       Election of representatives – people should know candidates, should elect them for their character, wisdom, virtue. “Refine and enlarge the public views by passing them through the medium of a chosen body of citizens (Congress).” Also says that even if the representatives are bad, the large republic expands the pool of fit characters to choose from, that it is harder to deceive the many than the few, and that factions are less likely in a large republic to form and to succeed in taking power (this is true because there is a greater variety of interests in a large group and it is hard for large numbers of people to conspire). 
o       Madison has to break apart what people want and what is good for people. What is good for people as a whole is defined apart from whatever people think is good. The common good is not defined subjectively, it’s defined independently of what people believe. Madison must be embracing some natural law perception of the common good. 
Federalist 47 – Madison
it is human nature to grab on to additional power. Madison says that the accumulation of all powers in the same hands is the very definition of tyranny. Madison says it is human nature to grasp at all this power. Human beings are too weak to resist the temptation of power. Therefore steps must be taken to prevent anyone from taking absolute power – leads to separation of powers.
Power needs to be not completely separated, it needs to be blended. Checks and balances. Blended powers means that powers are shared
Give each branch a means of defending itself against the other branches, blend the power. Federalist 51 – ambition must be made to counteract ambition. Give each department the means to resist encroachments of the others.
Legislature – Legislative Power, Executive Powers (declare wars, confirm executive branch appointments, budgetary control, impeachment), Judicial Powers (confirm appointments, regulate jurisdiction, impeach)
Congress has the power to make laws that are necessary and proper for all three branches to execute their power – Article 1, Section 8
Executive – Executive Power, Legislative Powers (veto, recommend bills, vice president presides over the Senate and breaks a tie vote, makes treaties)
Judicial – Judicial Power, Legislative Powers (judicial review –

        It is less clear that the pres. has authority to suspend claims. President claims that the IEEPA give him authority for this, court says that the statute does not give the president the authority to suspend claims. However, the court says that the president does have this authority because the passing of the IEEPA indicates that Congress has purveyed the attitude that they accept this practice. Court wants to put this into Jackson’s first category, there isn’t express Congressional approval, but their approval can be assumed based on the similar acts that they have passed.
Why does the court act differently in this case?
·         Different situation, more dire situation. Political reasons – court did not want to interfere in the agreement which could bring the hostages home. However, court cannot rely on a political reasons.
·         Legal Reason – can Congress act with legal ramifications on the executive branch without actually making a law. Does inaction suggest that the legislature approves a certain behavior. There is a spectrum from express congressional approval to express congressional disapproval. Implied approval falls between. What about the balance of powers and each branches ambition. This issue represents the executive branch threatening the legislative power, their silence on the issue could represent their approval of the action. 
o       In actuality, who is acting ambitiously – the judicial branch is saying that they may interpret the legislations silence. Court is saying – “the legislature can’t come to an agreement on the issue, but here is what they really want to say”, “let us make the legislature’s decision for them”. Essentially, the court is saying that if the president and the legislature fail to act, then the judicial branch should be able to assume control and rule on the issue.
Executive Power in Wartime or Emergency Situations
How can the president initiate a war or other armed confrontation?
·         Non state combatants – differs from traditional state to state conflict. 
·         Old Model – Congress must declare war. Declaration of War with Japan – simple direct declaration, two paragraphs. However, WWII is the last time Congress has declared war, even though it has pledged support in other conflicts. Congress is choosing not to enact a formal declaration of war for these conflicts – many of these conflicts were unilaterally initiated by the president. 
War Powers Resolution of 1973 – post Vietnam attempt to reign in the president’s ability to commit troops. President may introduce troops pursuant only to
·         a declaration of war
·         a specific statutory authorization
·         a national emergency created by an attack on the U.S.
Also, president should consult with Congress whenever possible, report within 48 hours of the introduction of troops, and to withdraw forces within 60