LINDER – CON LAW I
Spring 2005
Introduction:
Important Delegates:
1) James Madison not only prepared the draft that set the framework for debate at the 1787 Constitutional Convention in Philadelphia, but also became the principal drafter of the Bill of Rights.
2) George Washington was elected president of the Constitutional Convention, and most presumed he’d be the first US president.
3)
Among the most important features of the Constitution is that it is a written document. A written constitution possesses three distinct advantages: (1) consistency (2) preservation of expectations and (3) prevention of disputes. Among the principle characteristics of the American constitution are its status as a framework, a document of symbolic importance, and its status at the “top” of the legal hierarchy. Perhaps the greatest feature is the difficulty in amending the document.
Nature and Structure of the Constitution: The American Constitution is (largely) concerned with the creation and limitation of power:
Government of Enumerated Powers: The American constitution provides a framework for an enumerated government – its original intent was to lay out exactly what the government can do. A power that is not within the Constitution is not meant to be a function of government.
Government of Unenumerated Powers: (contrarily) a document more concerned with what a government cannot do.
Within the Constitution, there are two Primary Components:
Structural Provisions: One function of the Constitution is to set up the “machinery” of government.
Power Related Provisions:
Conferring Power:
National Government:
Article 1, § 8: defines the scope of Congressional Authority
“necessary and proper” clause: has been interpreted in a “wide reaching” manner, often broadly interpreted.
Article 4, § 3: power to make rules and regulations regarding territories and government property
Article 3, § 3: designates the appropriate punishment for treason
Article 2, § 2: enumerates presidential powers
Article 3: enumerates judicial powers
Amendment 16: later gave the power of income taxation
State Government: with limited exceptions (the power of extradition and the ability to dispatch the national guard), the National Constitution has no concern with the powers of states. State powers are granted by the state constitutions.
Individuals: No individual is granted power by the US Constitution
Limiting Power:
National Government:
Article 1, § 9: Bills of Attainder and ex post facto laws are outlawed
Bill of Rights: the enumeration of “natural law” that anti-federalists insisted upon for ratification
State Governments:
Article 1, § 10: one of the problems with the Articles of Confederation duties were exercised on state to state transfers of goods.
Article 6, § 2 and Amendment 14: the “supremacy clause,” outlining that all State Laws must conform to the US Constitution above all else.
Individuals: The only limitations on individuals are
13th Amendment: no individual is allowed to own slaves
18th Amendment: later repealed, prohibition was the only other specific limitation to individuals.
Constitutional Convention of 1787:
What “brought” America to Philadelphia?
Debtor Backlash: the economic disaster spreading under the Articles of Confederation – farmers were extremely impacted by the depressed business conditions. Additionally, the state legislatures had been elevated to the most powerful position of government (most governors no longer had veto power). Many passed laws that relieved debtors (due to public demand) but destroyed creditor’s powers to collect.
Shay’s Rebellion (1786): a group of armed farmers prevented the circuit court of Massachusetts from sitting. Confirmed the fears of the wealthy that anarchy was a realistic threat.
Rhode Island: Leaders refused to participate in the convention. Rhode Island was tied to the idea of paper currency, low taxes, and popular government.
Impotent Continental Congress: The government under the Articles of Confederation was “woefully” inadequate [or so Madison believed]:
Had authority to conduct the war, but could not impose taxes to finance them
Had limited power to enact laws, but no means of enforcing them
Bankrupt: paper money flooded the countryside, but the actual treasury (with no means of taxation) was completely depleted by the war effort
9/13 requirement (require support of nine states to pass anything)
Security Concerns:
Indians
Slaves
Shay’s
Pride: to European nations, America was viewed as a “third rate republic”
“Liberty” : potentially the most important concern brought to the convention – though no one agreed on its meaning.
The Convention convened in September, 1786. Seventy-four delegates were appointed to the convention (55 actually attended), including Washington (president), Madison (“father” of the Constitution), Hamilton, and Ben Franklin.
PLANS PRESENTED AT THE CONVENTION:
Virginia Plan: called for a strong central (“consolidated”) government. Essentially Madison’s plan, it proposed the three branch system. The plan created the “supreme” power of government (“nationalism”) favored by the large states.
New Jersey Plan: called for a revision of the Articles of Confederation which allowed Congress to raise revenue and regulate commerce, without interfering with state sovereignty. The model envisioned the states as a “federation” with individual powers, and was favored by the smaller states. The New Jersey Plan was championed by William Patterson.
Hamilton’s Plan: Alexander Hamilton, like many other delegates, believed that America would eventually be a monarchy. However, the post-war sentiment that flooded the country kept this from being a reality.
**The Great Compromise: The “Connecticut Compromise” proposed the familiar bicameral system established. It proposed a house equally divided, as well as a house of proportional representation. It also include the 3/5’s requirement for counting slaves.
Ratification of the Constitution:
Ratification created many of the same problems that the Convention dealt with: (who was fighting who?)
Nationalists (Federalists) v. States-Righters (Anti-Federalists)
Liberals v. Moral Conservatives
Northerner’s v. Southerners
Big States v. Small States
Aristocrats v. Egalitarians
Debtors v. Creditors
New Hampshire finally ratified on July 2, 1788, becoming the ninth state. Among the principle components of ratification was the anti-federalist pressure to include a Bill of Rights. Though a Bill of Rights was mentioned at the original convention, most delegates believed it to be superfluous – all power not expressly delegated to the new government was reserved to the people.
Madison constructed 17 original amendments, the Senate cut the number to 12, and 10 were finally ratified within the states.
Judicial Review:
A hallmark of modern law, judicial review is not specifically allocated to the supreme court through the constitution. There are many theories of why:
One theory is that the power is implicit – most supreme courts at the time of the Convention possessed the power of judicial review.
Another is that the framers didn’t want the Supreme Court to have the power of judicial review – 11 of 55 delegates mentioned judicial review at the conference (and 2 of them were opposing it).
The final theory is that judicial review was viewed as unnecessary—Congress has very specific authority, and there’s no reason for them to stray.
Marbury v. Madison: William Marbury was denied a signed commission for a justice of the peace position for the District of Columbia. He sued for a writ of mandamus under the Judiciary Act of 1801. Rather than issuing the writ, the Supreme Court held that the Act was unconstitutional. Defined the power of judicial review for the Supreme Court.
Writ of Mandamus: a court order to a public official or corporation commanding the performance of a public duty. The Judiciary Act allowed a suit against the Secretary of State (Madison) to be brought under the
ight to judicial precedent and consequence driven thought
Natural Law Theorists: believe that a higher moral law “trumps” inconsistent positive law
The framers indicated that their intentions should not control interpretation
Constitutions cannot necessarily predict future governmental oppression, and judges are to “fill in” the gaps
Amendment process is too difficult to protect the people from inflexible interpretations
Allows the constitution to evolve
Griswold v. Connecticut: (1965) Does anything within the Constitution allow for the right to use birth control? *Non-Originalist Decision
Executive Director of Planned Parenthood was arrested for giving information, instruction, and medical advice to married people about contraceptives.
Majority: (Douglas)
· Rights to privacy have been found in the 1st, 3rd, 4th, 5th, and 9th Amendments
· The specific guarantees of the Bill or Rights have “penumbras.”
· Various guarantees create “zones of privacy”
· In order to invade a “zone of privacy,” a statute must demonstrate both a “compelling state interest” and “least restrictive means”
o Later gives way to the idea that choosing parenting (or not) is a private matter – becomes the primary basis for Roe v. Wade
Concurrence: (Goldberg)
· “Liberty” in the Due Process clause would protect a decision to use contraceptives
Dissents: (Black and Stewart)
· The fact that the law is stupid doesn’t mean it’s unconstitutional
The primary (modern) disagreement between the two schools of thought is the conflict over “fundamental rights” that are not explicitly protected by the constitution. Two interesting struggles between the two fields (below), the rise and fall of “Lochnerism” and “Separate but Equal.” Though the modern court recognizes that constitutional protection should be given to unenumerated rights, it divides on what sources to look to in deciding those rights.
The Incorporation Debate:
Does the 14th Amendment “incorporate” the Bill of Rights, making them enforceable against the states? One of the most heavily debated issues of the late nineteenth and early twentieth centuries, with valid arguments suggesting that it doesn’t.
One of the proposed “rights” in Madison’s original Bill of Rights was an application of the 1st Amendment to the states. It was rejected by the states, who didn’t want to usurp their own power.
Direct limitations to the states are listed in the text – the framers clearly knew how to limit state powers.
Barron v. Baltimore: (1833)
o A complaint under the “takings clause” of the 5th Amendment
o City of Baltimore seized a wharf from a person (and never compensated them)
o The court ruled that the 5th Amendment only applied to the federal government – it could not be applied to states, cities, or municipalities
The Civil Rights Act was created in 1866 – it was declared unconstitutional by Andrew Johnson (who vetoed the Act). The 14th Amendment (1868) was created as a leverage tool – Southern states were forced to sign in order to get back into the union. It was created to give Congress
