1) Origins of the US CON
a) Article of confederation did not have:
i) Ability to collect taxes no real way to collect these
ii) And prob. most surprising was that there was no executive authority and no judicial authority
iii) No exclusive power to coin money
iv) Inability to regulate interstate commerce
b) Response convention meet in Philly to revise the AC
c) Framers not actually revise but wrote whole new document- in a way you can think of this as an unlawful document they did not do what they were told.
d) There were 2 camps that the objections to the C fell into
i) Antifederalists
(1) Town meeting model
(2) Opposed to strong central/national/federal govenemnt
(3) National gov. removes power from people
ii) Federalists
(1) National gov. protects against factions
(2) Diversity protects minority views
(3) Federalist papers
iii) Given all this there was great debates and most famous were the federalist papers
(1) Hamilton, Madison, john jay wrote it
e) Is the C unique?
i) The CA state C adopted in 1849 been ratified little over 500 times-250 pages- we amend by our own popular initiative
ii) Fed C
(1) Been amended 27 times by contrast VERY difficult to amend- and you need ¾ state leg to amend it
f) THE CONSTITUTION
i) Purposes of the C
(1) Really just setting forth a national gov. and allocates the power among the branches
§ First three articles were concerned about the structure of the gov
§ Article 1
1) Bicameral leg- 2 house
2) House of reps
3) Senate
4) Enumerated powers- spells out particle powers of congress
5) Restrictions- note also this allows importation of slavery until 1808 weird that it allows this and the document should be a bastion of freedom
6) Restrictions upon states
§ Article 2
· Electoral college- method by which we choose the president don’t by popular vote
· Presidential powers
· State of the union
· Impeachment – not only president but any executive position
§ Article 3
· Supreme and inferior courts
· Judicial power
(2) After just seeing these three articles you can see the C has set forth a structure
(3) To enforce a law you need the executive and the judiciary-
a. Article 4- interstate relations
· Full faith and credit- marriages contracts etc.
· Fugitive slave clause- if a slave were able to run away to another state it had to be given back
· New states- creation of new states- cant carve up a state from an existing state
· Protection of states-
b. Article 5
· Provides for how to amend
c. Article 6
· National government
· Supremacy clause- fed law is supreme law of the land
d. Article 7
· Ratification of C
2) Federalism-
i) Vertical division of power between states and federal government above we spoke about the horizontal division of power- between the 2 branches
a. Not as obvious as separation of powers- more implied by the C
b. Ex. “all leg power herein granted shall be vested in Congress
3) Individual Liberties another reason for the C
a. Article 1
(i) 9 No ex post facto- makes something criminal after the fact
(ii) 9 No bill of attainder- law punishing a specific person
(iii)9 Generally no suspension of habeas corpus-
(iv)10 No state impairment of K
b. Article 3
(i) 2 trial by jury in state where crime occurred
(ii) 3 treason convictions
c. Article 4
(i) 2 privileges and immunities basically regulates the relationship between the states
d. Bill of rights- first ten amend.
4) Why is the C a particularly special document
i) Foundational nature and is oldst surviving federal document around
ii) US set up and our particular C makes article 5 makes it hard to amend
iii) What makes a case a SC case? We don’t really even know why the jusitices take the cases
(1) A lot comes from those that are a matter of appellate review
5) How do we interpret the C
i) This is not obvious because no one really agrees a lot of way to look at these-
ii) Basic Question- why do we interpret the C and why is is necessary
(1) Where C is silent
(2) Where C is vague
a. In many respects the C talks about things but it is hard to see what they mean
b. What about the due processes of law and what does that mean in like a criminal trial
c. Where issues not anticipated by founding fathers
iii) Two Views
(1) Originalist
a. C interpretation restrained stick with what C clearly requires- only interpret on what obvious
b. What is the plain meaning of the C
c. To extent where there should be a huge leap and article 5 is the only means that formal change to the C should happen and NOT by interpretation. Not believe the gv. To be very democratic
(2) Non-originalist
a. Say that the FF intended flexible document- endure changes over time
b. C meant to cover up wide range of circumstances
(3) These are polar views on where to interpret the C
6) Sources of Interpretations
i) Text of C
ii) Structure of C
iii) History and tradition
(1) Also subject to O and NON O views
iv) Intent of FF
v) Judicial interpretations
vi) PP
(1)
EX. Two different courts use interpretive courts come to two different conclusions on the Second Amendment
1) Three possible interpretations of the 2nd A
(1) Collective rights- no individual right but rather a militia can do it
(2) Sophisticated collective right- somewhat in the middle saying that it havea right to have a militia and those members of the militia whether they are indicduals can keep and bear arms
(3) Individual rights- everyone gets their own gun
gives a grant of OJ and it is specific all other cases for appellate
(ii) Established firmly SC has ability to review a law and say uncon or con.
c. Also strange in order case decided
(i) Third question heard first if not jx then no case
(ii) Act of political brilliance
· Firmly established judicial review
b) CRITICISMS
i) Sometimes critics say that there is a counter majoritarian
(1) We elect all pres, senators NOT JUSTICES
a. Argument goes that when justices say a law is uncon. They are going against what the people want because we elect the senate who made that law and they are going against it
(2) Judicial Review is Controversial
(i) Good: Insulated from politics, well suited to interpretation, promotes finality.
(ii) Bad: Undemocratic, counter-majoritarian, concern it will make other branches less careful about Constitutional decisions. Sometimes the court does not hear cases or it defers to the will of the legislature. Why? Court needs to maintain its legitimacy with support from other branches & the people.
(iii)Judiciary only has legitimacy. No army or purse strings.
REMEMBER- M establishes that the court can review actions of Congress and federal executive BUT says nothing whether court can review decisions of state court
ii) Martin v. Hunter’s Lessee (1816) –Marshall court
(1) Supreme Court can review judgments of state court Constitutional decisions.
(2) Facts
(i) Whether a VA statute conflicted with a federal treaty. VA said since litigation began in state court up to them say whether state action violated C and SC had no right to review the state courts conclusion
(3) Courts opinion
a. Story begins with textual argument talking about judicial power and power to fed gov.
(i) “judicial power shall extenf to ALL cases in law and equity arising under this con and laws of the US and treaties made- article 3
· Court has to hear this case if the SC does have the ability to hear the case then not consistent with 3 which extends to ALL CASES
(ii) article 3 section 1- judicial power of US vested in one SC
· this permits that we have one SC but dont need others
· this cant work if don’t have if don’t have inferior courts and cant hear state SC decisions then there would be no appellate jx
