Constitutional Law Outline
I. Separation of Powers (Ask: Is a power trying to do something they are not supposed to? Has Congress enacted a law that asks some other branch to do something?)
a. General Considerations
i. Policies and Goals (Pros versus Cons)
1. Pros
a. If we do not separate power, we cannot get the job done
b. Organizes national and state governments
c. Makes the concept of representative democracy work to avoid tyranny
2. Cons
a. There are no cons to Separation of Powers
ii. Checks and balances (defined) – each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government
iii. Faction (defined) – a number of citizens, whether a majority or a minority, who are united and motivated by a common impulse or interest that is adverse to the rights of others or to the permanent or aggregate interests of the community
1. Federalist Papers
a. Federalist Papers 51 (Separation of Powers)
1. Double security: Federal versus State: ambition counteracts ambition
2. Government is segregated into different branches that work against each other, not with each other
i. Human beings are not angels, and have evil tendencies, therefore, the people in power will have evil tendencies
ii. It is not just about separating power, it is about combining power (i.e. checks and balances)
b. Federalist Papers 47 and 48 (Checks and Balances)
1. “Parchment barriers” – if you do not have checks and balances, the only thing that will keep a branch within its power is “we told them not to”
2. “Ambition must counteract ambition” (the whole concept of checks and balances – every branch is supposed to restrain the others)
i. “Encroaching spirit of power” – the very nature of power makes you want more of it
c. Federalist Papers 10 (Democracy to Control Factions)
1. Factions (different groups of people with different viewpoints or opinions)
i. Factions are going to occur in a free society
a. Remove liberty, remove factions – but we do not want to do that
b. Remove factions by giving everyone the same viewpoint – not possible
2. Effects of Factions
i. Federalism – spread the representation out, small group of people elected by the group as a whole
ii. Independent judiciary – no person can be the judge of their own cause
b. Formalism versus Pragmatism
i. Formalism (defined) – follows the letter of the law
1. Ask: What is the rule?
a. Rules are there for a reason and establish consistency
b. Danger: How do you deal with extenuating circumstances?
2. Ask: What is the purpose of the rules?
a. Is the right branch doing the task?
b. Assuming the right branch is doing their job, are they using their power the right way?
ii. Pragmatism (defined) – do what works best, what is practical
1. Ask: What works?
a. Anytime a person is given discretion, he/she can use that discretion for his/her own benefit
b. Danger: How do you keep people from doing the wrong thing for the wrong reason?
2. Ask: What is the purpose of the rules?
iii. Express power versus implied power (from where & why)
1. Express power – a political power specifically delegated to a governmental branch by a constitution (enumerated powers from in Article
iv. Rule: Under the Necessary and Proper Clause, any appropriate means that Congress uses to attain legitimate ends that are within the scope of the Constitution and not prohibited by it, but are consistent with the letter and spirit of it, are constitutional
b. Necessary and Proper Clause
1. The Necessary and Proper Clause – Article 1, Section 8, Clause 18 – can enhance Congress’ other powers through this clause, but Congress cannot do anything not listed in the constitution
3. Cue: some branch is acting, and there is an issue as to:
a. Whether it is acting in its powers; and
b. Whether it is acting in the right way
c. Legislative branch and Separation of Powers
i. Powers
1. Make laws (general requirements or mandates on society usually with consequences for not following)
2. Tax and appropriate money (“power of the purse”)
3. Declare war
4. Raising the military
5. Establishing rules for the military
6. Impeach
7. Confirm appointments (Senate only)
8. Ratify treaties
9. Establish system for granting patents (rules and regulations)
10.Establish post offices and postal roads
11.Propose amendments
12.Establish executive agencies
13.Suspend writ of habeas corpus (during emergencies)
14.Conduct investigations and hearings (i.e. subpoenas, impunities, etc.)
15.Count electoral votes (in cases of no majority, House elects President, and Senate elects Vice President)
d. Executive branch and Separation of Powers
i. Powers
1. Negotiates and signs treaties (agreements between the United States and another country)
2. Grants patents
