Constitutional Law Outline
Fall 2007
Constitutional Structure
7 Articles
Article I: Legislature
Article II: Executive
Article III: Judicial
Article VI: Supremacy Clause
Amendments
1) Establishment clause, free speech, right of assembly
2) Right to bear arms
3) No quartering of soldiers in time of peace
4) No unreasonable searches and seizures
5) No double-jeopardy, due process, takings
6) Right to speedy trial
7) Right to jury trial
8) Cruel and unusual punishment
9) Rights enumerated in Constitution are not the only rights people have
10) Power reserved to states if not spelled out in Constitution
13) Abolition of slavery
14) Due process, equal protection
15) Right to vote regardless of race, color, servitude
18) Prohibition
20) Women’s right to vote
21) Repeal of prohibition. States control local alcohol use.
Constitution as a pre-commitment device
Look for best long-term interest by setting up a commitment strategy. Not just acting ad-hoc based on what seems best at the moment.
Statutes are easy to change.
Constitution is more difficult to amend.
Article 5
Need 2/3rds of house to propose an amendment.
Need 3/4ths of states to ratify the amendment.
Why should we be bound?
Stability
Constitution is foundation of law
Adaptable: judicial interpretation, amendment
Origins of Constitution
Articles of Confederation
States remain sovereign after revolution.
No executive or national judiciary
No national government, right to tax and regulate commerce. Thus federal government was powerless.
Problems: 1787, James Madison Memo
Individual states were breaking international treaties.
States were trespassing on the rights of other states
i. States had own currency. There should be a single national currency.
ii. In commerce, states treated other states as though they were foreign countries.
Need a united country.
Framing the Constitution
Republican theory: (supported constitution) civic virtue, willingness of citizens to serve the general welfare over their individual interest, self rule
Anti-federalists: (opponents of constitution)
Opposed expansion of powers of national government.
A powerful national government would oppose notions of civic virtue.
Representative government comes at a cost of public’s direct participation in government.
Factions, Federalist No. 10, Madison
Large republic with centralized government shoul
t goes against the Constitution, so the Court cannot enforce it.
The Supreme Court has the power to declare acts of Congress unconstitutional.
Reasoning:
Acts that go against the Constitution are void.
The Constitution is superior to statutory law. Thus, if courts have to choose between one and the other, they should follow the Constitution. (Supremacy Clause, Article 6)
If unconstitutional laws were allowed, the legislature would have unlimited power. We want the legislature to have only the powers granted to them by the Constituiton.
Additional Notes
Rejection of departmentalism, the theory that each branch has the power to determine for itself the Constitutionality of its functions.
Just lay the statute next to the appropriate part of the Constitution. Mechanical review.
Constitutional Avoidance: If possible, courts should interpret a statute as not in conflict with the Constitution.
It is possible to find Judiciary Act consistent with Constitution in this case. Madison is public official, so Supreme Court can have original jurisdiction.
