Historical Introduction:
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.
George Washington: “Wisdom a
ng slaves.
Ratification of the Constitution:
Ratification created many of the same problems that the Convention dealt with:
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.
