Constitutional Law I Outline

Salamanca_ConLaw_Spring_2015

Theoretical Underpinnings of the United States Constitution

I. Revolution and the rule of law

A. Sources of law

i. Positive Law – set forth by a readily identifiable sovereign

ii. Natural Law – an asserted fact about the nature of human beings; independent of positive law

B. Hobbes

i. Begins at state of nature

ii. Leviathan (1651)

1) Identifies first right of human beings as that of self-preservation – right to defend oneself.

a) Not subject to anyone’s interpretation – if you feel the need to exercise that right, no one else could tell you that you’re wrong.

2) Only way to avoid “state of war” is if everyone simultaneously denounces that right, and gives it up to a sovereign with power to “over-awe them all.”

3) Pessimistic; government is necessary to keep people from killing each other

ii. Context surrounding his writings:

1) Turmoil in England/beheading of King Charles I.

a) Sought stability.

iii. Essentially only time you can get rid of a ruler is when he stops protecting you.

1) More restrictive approach on “rights”

iv. Modern?

1) Is in the sense that he believed the King doesn’t rule by divine right, but by practical necessity.

v. Mixed Government:

1) Opposed on the grounds that it would either be ineffectual or evil – more susceptible to the ills of human nature.

a) Mixed government provides the seeds of instability.

C. Locke

i. Begins at state of nature

ii. Second Treatise (1690)

1) Much more optimistic than Hobbes

2) If government is not effectively performing its duty, people have the authority to overthrow it

iii. Perhaps self-fulfilling – if you’re strong enough to overthrow the government, you may be able to defend yourself

iii.on the grounds of Locke and won’t get in trouble with positive law

D. Burke

i. Social contract; but society should evolve

ii. Reflections

1) Would support revolution if government were completely antithetical to good policy; but it’d take a lot to get him there

2) Against revolution in France

E. English Bill of Rights

i. An act of parliament; but looks like a Constitution because:

1) IDs transgressions against James II, sets out rights of people over the monarch

2) Overthrows James II, brings in William & Mary

ii. Reads like a contract between parliament and William & Mary

F. Declaration of Independence

i. Reads like a document written to the whole world; addressed to:

1) King George & Parliament (break-up letter)

a. Much more conciliatory toward parliament

2) Also to other countries to help (don’t want to look crazy)

3) To loyalists to support the revolution

ii. Tone: respectful, defiant, rational

iii. Invokes Locke’s theory of justified revolution

iv. Pulls from the English Bill of Rights

v. Note: live/die by violence in revolution

1) Go outside 4 corners of positive law: put yourself at immediate risk, and also for a potential revolution against the government you created

II. Formation of the Constitution

A. Articles of Confederation

i. Required unanimous consent to change by state legislatures.

ii. Very strong commitment to sovereignty of states

iii. Problem: tyranny of one

iv. Counter: promotes self-determination

B. Art. VII (“the Ratification Clause”)

i. Requires 9/13 to ratify

ii. “shall be sufficient…between the States so ratifying the same”

iii. Withdraw from AOC was not within 4 corners of positive law; similar to withdraw from UK (invoke Locke)

i. Power lies in the people, who can alter constitution if they wish.

C. Records of the Federal Convention:

i. Lawyerly argument that the previous document (Articles) binds the discussion

1) Procedural à need to follow the rules; unanimity. Previous “constitution” prevents this one from binding states that do not ratify this new constitution.

a. Mr. Wilson (PA) – [self-preservation] “House on fire” must be extinguished without scrupulous regard to “ordinary rights.”

2) Smaller states had incentive to fight ratification of Constitution à they had more power under the Articles.

ii. Madison on why Conventions were preferable for state ratification:

1) The powers being given to the new Federal government being taken from the State governments means that the legislatures of the latter would be disinclined to ratify.

2) Conventions are made up of a fundamentally different group of people à and people being the source of all power, could resort to first principles to alter constitutions.

iii. Madison, Federalist No. 40: “To the People of the State of New York”

1) The plan requiring confirmation by the people [in conventions] rather than legislatures is actually not a source of controversy.

2) The proposed Constitution is merely advisory à meaningless until a stamp is put upon them by the people.

3) In all great changes of established governments, form ought to give way to substance. à does it matter from whom or how the advice comes, so long as it is good?

iv. Madison, Federalist No. 43:

D. SC’s Secession, uses Locke to justify slavery

i. Justifies secession on a ground that roughly corresponds to a breach of contract.

ii. Resort to first principles? Self-preservation (of southern economy)?

III. Amendment of the Constitution

1) Article V (the amendment procedure)

i. 2/3 of both houses, then to 3/4 of the states

1) Ratified by 3/4 state conventions (used once)

2) Ratified by state legislatures (used all other times)

ii. Convention

1) 2/3 of states to call for Congress to convene a constitutional convention which would propose amendments for the states to consider

2) Amendments then sent to states to be approved by 3/4 vote of legislatures or conventions

3) Thought to more fully speak for the people as a whole than a legislature.

a. Reconstitution of the people – people speak with a much louder, loftier voice.

4) Usually a special election for who will participate in the convention.

a. May be some overlap with people who serve in the legislature, but the body is typically larger and may be composed of different members.

b. Sitting not for the purpose of ordinary legislation, but for a “special,” longer purpose à would be aware of importance.

5) Never used

2) Gatewood v. Matthews (1966)

iii. Madison, Federalist 10 – Benefits of a Republic

1) More people and more land can exist in a republican government than democratic

a. A large republic can be an effective antidote to factionalism.

i. If you widen the focus of the political entity you encompass many different and conflicting factions such that no one faction will be able to dominate.

2) A representative government tends to produce more virtuous, educated, far-sighted representatives than a direct democracy.

a. Likely to be immune to local prejudices and schemes of injustice.

3) What comes from legislature will be battle between factions, so it’ll be more satisfying

4) Distribute power widely, people will correct each others’ excesses

iv. Federalist 51 – stri