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Constitutional Law I
University of Dayton School of Law
Greene, Dennis

Introduction to the Constitution of the United States – pg. 18-37
·         A written charter of government, deliberately considered & adopted by the sovereign people, & designed to be binding as supreme law on all who exercise governmental power under it
·         1st & oldest written constitution in the world
·         Core concepts
o   Separation of powers among 3 independent, co-equal branches of government
§  Legislative
§  Executive
§  Judicial
·         Each have the power to check & balance the actions of the others
o   Federalism
§  A division of governmental power between a central government & governments for the several states
o   A written Bill of Rights & other provisions like the 14th amendment
§  Protects certain fundamental individual liberties against government interference
o   Popular sovereignty & representative republican government
·         Most important innovation
o   3 intertwined ideas of written constitution, popular sovereignty & status as supreme entrenched law (cannot be changed or suspended by the passage of an ordinary law)
·         Limits & enumerates ALL of the powers of Congress, the president, & the federal courts = a limited government
·         Government emanates from & can be altered by the will of the sovereign people
·         Arrangements of powers & rights came from
o   English historical background
o   Unwritten constitutional tradition
o   Colonial experience of charter governments
o   American Revolution of 1776-1783
o   Experiments of state constitutions
o   The lessons of a failed federated government under the Articles of Confederation
§  our nation’s 1st constitution
§  proposed by Continental Congress in 1777 but not ratified until 1781
·         defects of the Articles led to the call for a constitutional convention in Philadelphia in 1787
o   convention proposed an entirely new Constitution
§  span from American independence in 1776 to ratification of the Bill of Rights in 1791
English & American Constitutionalism
·         Americans were considered Englishmen from the settling of Jamestown in 1607 to the Declaration of Independence in 1776
o   Went by a long history of unwritten constitutional tradition & some written documents
o   English constitution = a collection of written & unwritten traditions & practices
·         Written English documents
o   The Charter of Liberties of King Henry I in 1100
§  Est. there was no Normal royal power to suspend the Anglo-Saxon laws of the pre-Norman realm
o   Magna Carter (Great Charter) in 1215
§  Declared the settlement that the king had no royal power to deprive freeholders of life, liberty, or property except by ‘the law of the land’
o   The Petition of Right of 1628
§  Held that there is no royal power of taxation without action by Parliament & no royal power to imprison subjects without trial by jury
o   The Habeas Corpus Act of 1679
§  No royal power to imprison without trial by jury
o   The English Bill of Rights of 1689
§  Provided that there is no royal power to suspend the laws & further protecting individual rights from infringement by the king
o   The Act of Settlement of 1701
§  Provided for life tenure for English judges
·         Never recognized delegations of power made by the sovereign people & didn’t try to be the supreme law of the land
·         A Mixed Regime              
o   Parliamentary sovereignty arose out of the idea that the king (monarchy), the House of Lords (aristocracy) & House of Commons (common people) were sovereign
§  Power flowed from monarchy & Parliament
·         US is opposite
o   Sovereignty rests in we the people & that the federal government & all it’s officers have limited & enumerated powers that flow directly from the people
o   The ability to change the Constitution rests only with we the people
§  Power flowed from the people
·         If we decide the government is no longer working, we have the ability to change it
·         Why have an entrenched written constitution
o   Allows a society to protect fundamental rights & freedoms from the passions of the moment & of mobs
o   Creates a framework within which intergenerational lawmaking & private ordering can take place
§  Are bound by our ancestors & will bind future offspring
·         Allows for continuity & stability, which create freedom
o   Can write a book now that you don’t have to worry about going to jail for 20 yrs from now if someone new comes into power
o   Function as a kind of gag rule
§  Takes certain arguments off the political agenda
·         Religion, race, ethnicity
o   Makes it easier for people to know what it says & what it requires
o   Constitute or set up the institutions of government & divide & allocate power among them
§  Executive, judicial branches, etc.
o   Limits the power of the government
§  Constitutional government = limited government
o   Can be aspirational—aspires to
§  Form a more perfect Union
§  Establish justice
§  Ensure domestic tranquility
§  Provide for the common defense
§  Promote the general welfare
§  Secure the blessings of liberty from government
Differences creating tension
·         Northern
o   Religious & commercial
§  Shipping & commerce
·         Southern
o   Commercial
§  Plantation, slave labor
·         Major trigger of Declaration
o   Taxation without representation in Parliament
English historical background
·         Most important constitutional event in England for America = the Glorious Revolution of 1688
o   Restored fundamental individual rights against executive authority
o   Est. the supremacy of representative government
o   Est. the principle that legitimate government ultimately must depend on the consent of the governed
§  Implies a constitutional right of the people to alter or abolish their form of government & create a new social contract
·         John Locke (Lockean social contract)
From Colonial Charters to the Declaration of Independence, the Articles of Conf

t a unicameral legislature
o   Created a separate executive & judicial branch
§  Exec would be led by 1 president
·         Picked independently of Congress & guaranteed 4 yr term
·         Given  veto power
o   Different from Articles b/c Articles didn’t vest a central power like this—each state had its own authority w/in its own legislature, with the head of the senate acting as the executive
§  Created a separate national Supreme Court in which all judicial power was vested
·         Congress was given the power to constitute inferior courts
o   Different from Articles b/c Articles didn’t vest a power like this
o   Slaves were counted as 3/5th  a person regarding how many representatives each state had in the House
§  Different from Articles b/c Articles said there was only 1 rep & was not based on population
·         Virginia plan—wanted more representation b/c they were larger states
·         New Jersey plan – representation shouldn’t be based on size
o   Compromise = creation of the senate & house
§  Led to issues b/c the slaves were increasing the amount of representatives the states were allowed to have, but didn’t increase the amount of voters b/c slaves couldn’t vote, so they could win by a landslide with a minority of # of votes = great Southern power
·         Also influenced who was elected to the presidency—all but 2 were either sympathetic to slavery or slave owners themselves & who was then appointed to the Supreme Court
o   Wrote the Constitution so that it would go into effect upon its being ratified by only 9 of the original 13 states
§  Going forward, it would be amendable only by a 2/3rd vote of both houses coupled with ratification by ¾ of the states
·         Different from Articles b/c Articles said you have to have unanimous decision to amend
·         The Federalist
o   A series of 85 newspaper articles written by Alexander Hamilton, James Madison & John Jay urging ratification of the Constitution by the people of New York
o   # 1
§  Hamilton’s call for careful deliberation over the defects of the Articles of Confederation & the need for the new Constitution
o   # 40 & 43
§  Madison’s defense of the propriety of the Convention’s actions in proposing a document that went beyond the assigned task of proposing revisions to the Articles & that departed from the Articles’ rule of unanimity for any changes (requiring complete agreement to amend anything)