Constitutional Law
I. History
a. Articles of Confederation
i. judged to be a failure
1. states maintained their sovereignty
a. Fed. gov’t had no power to tax
b. no power to make commercial treaties w/foreign governments
c. no standing military
d. no Federal courts
e. no power to print paper money (but could make coins)
ii. after Revolution the states were in debt
1. 2 possibilities
a. raise taxes
i. Massachusetts: Farmers unable to pay raised taxes. Sheas’ rebellion – took over courthouse to stop foreclosures. Rebellion spread. 1,000 farmers with pitchforks took over Boston. Fed. gov’t sent in military to ruthlessly crush the rebels.
b. print money
i. Rhode Island: printed money that become worthless. Made it a crime not to accept worthless paper money. S. Ct. said statute was unconstitutional. S. Ct. was fired.
1. merchants who were being paid back in worthless money decided they needed to rely on the courts to vindicate the rights of property
2. men of money are trying to strengthen the Fed. gov’t ability to protect them against populist state legislatures
b. Constitutional Convention
i. Central problem: Faction
1. Republicans
a. function of gov’t is to educate people and make them better people
b. should govern at the local level
c. cities, mercantilism should be discourages
i. people in small community were more likely to have shared values and factionalism would be less likely to occur
2. Madison
a. recognized the problem of faction would be greater at local level
i. no countervailing force: once one faction gets control they become corrupt, and repress the other group
b. check power by centralizing power in a national gov’t in which a multitude of interest groups could fight it out with each other and no group could ever completely dominate
i. represent people at a greater distance \ not susceptible to local political pressure
c. Constitution itself should protect individuals against the oppression of any one group
c. 1800 election is a critical turning point
i. Federalists pass the Alien and Sedition Act
1. Republicans
ry of the adoption of the specific provision they are talking about and using the history as the basis for understanding what that provision means
a. can focus narrowly or broadly – different results
i. talk about Madison, the whole Constitutional convention, the ratifying process, or the intent of the people
ii. Doctrinal
1. precedents
2. looks at how the court has interpreted the law over time
iii. Responsive – authority of ethos
1. reader brings to the Constitution certain values and ideas – uses them as a screen
2. 4 kinds
a. Structural: infer the meaning of the Constitution’s text by looking at the relationship between different branches of gov’t
b. Ethical: focus on the values that generally form the Constitution or American society
Prudential: focus on the consequences of something and look at the costs and benefits
