Abrams_ConLaw_Fall_2015
I. The Constitution and Power of Judicial Review:
A. The Constitution:
1. Preamble
2. Article I: Legislative Branch
a. §1: Bicameral Legislature
b. §2: House
i. Representatives elected every 2 years.
ii. Must be 25, citizen for 7 years.
iii. # of reps apportioned according to population. Each state must have at least one. Not to exceed 1 per 30,000 people.
iv. Vacancies in House filled by Writs of Election by executive authority.
v. House chooses its own officers, speaker. Also has sole power of impeachment.
c. §3: Senate
i. 2 senators from each state for terms of 6 years.
ii. 3 classes on rotating election cycles every 2 years. Vacancies filled by executive authority of state (governor).
iii. Senators must be at least 30 y.o., a citizen for 9 years.
iv. Vice President is President of Senate, but only votes in event of tie.
v. Senate chooses its own officers, also a President pro tempore when VP absent.
vi. Sole power to try all impeachments.
d. §4:
i. Manner of Elections for congressmen prescribed by the electing state.
ii. Congress must meet at least once a year.
e. §5:
i. Quorum is a majority in either house.
ii. Each house gets to make its own rules for proceedings.
iii. Each house keeps a journal of their proceedings.
iv. Neither house can adjourn for more than 3 days without the consent of the other while Congress is in session.
f. §6: Compensation
i. Entitled to compensation, privileged from arrest (with exceptions like felony) during attendance.
ii. Can't be a congressman and be appointed to any civil office.
g. §7: How Bills Become Law
i. First, any bill for raising money (such as by taxes or fees) must start out in the House. All bills must pass both houses of Congress in the exact same form. Bills that pass both houses are sent to the President. He can either sign the bill, in which case it becomes law, or he can veto it. In the case of a veto, the bill is sent back to Congress, and if both houses pass it by a two-thirds majority, the bill becomes law over the President's veto. This is known as overriding a veto.
ii. There are a couple more options for the President. First, if he neither vetoes a bill nor signs it, it becomes a law without his signature after 10 days. The second option is called a pocket veto. It occurs if Congress sends the bill to the President and they then adjourn. If the President does not sign the bill within 10 days, it does not become law.
h. §8: Powers of Congress
i. Includes the power to establish and maintain an army and navy, to establish post offices, to create courts, to regulate commerce between the states, to declare war, and to raise money. It also includes a clause known as the Elastic Clause which allows it to pass any law necessary for the carrying out of the previously listed powers.
i. §9: Limits on Congress
i. Certain legal items, such as suspension of habeas corpus, bills of attainder, and ex post facto laws are prohibited. No law can give preference to one state over another; no money can be taken from the treasury except by duly passed law, and no title of nobility, such as Prince or Marquis, will ever be established by the government.
j. §10: Limits on the States
i. Prohibits the states from several things. They cannot make their own money, or declare war, or do most of the other things prohibited Congress in Section 9. They cannot tax goods from other states, nor can they have navies.
3. Article II: Executive Branch
a. §1: President, VP
i. Establishes the office of the President and the Vice-President, and sets their terms to be four years. Presidents are elected by the Electoral College, whereby each state has one vote for each member of Congress. Originally, the President was the person with the most votes and the Vice-President was the person with the second most, though this is later changed. Certain minimum requirements are established again, such as a 35-year minimum age. Presidents must also be a natural-born citizen of the United States. The President is to be paid a salary, which cannot change, up or down, as long as he in is office.
b. §2: Presidential Power
i. Gives the President some important powers. He is commander-in-chief of the armed forces and of the militia (National Guard) of all the states; he has a Cabinet to aid him, and can pardon criminals. He makes treaties with other nations, and picks many of the judges and other members of the govern
rocess of law.
d. Private property can't be taken for public use without just compensation.
6. Right to speedy and public trial by impartial jury in the state where crime was committed.
a. Right to be confronted with the witnesses against him.
b. Right to an attorney.
7. Right to trial by jury in civil trial where amount in controversy exceeds $20.
a. Can't reexamine facts tried by jury (res judicata).
8. Forbids cruel and unusual punishment, excessive bail/fines.
9. States that rights beyond those listed exist.
10. Powers not reserved by Constitution for US are held by the states.
11. Original jurisdiction of SCOTUS, parties from different states.
12. Electoral College
a. Pres, VP now cooperative roles, not top 2 vote-getters.
b. POTUS, VP can't be from same state.
c. Any VP must be eligible to become president.
13. Abolished slavery.
14. Due Process (applied to the States)
C. Difference Between Constitution and Other Laws:
1. State constitutions can offer greater rights than Federal, but they can't offer less.
2. Contrast to Statutes:
a. Durability – difficult to amend.
b. Broad – open to interpretation.
c. Authority – Supreme Law of the Land.
d. Majority – Constitution with Bill of Rights is anti-majority.
D. Judicial Review:
1. Exists as against both legislative and executive acts, even though it isn't stated in the Constitution.
2. Marbury v. Madison (1803) p.25:
a. Marbury files this lawsuit in order to receive a writ of mandamus to order Madison to deliver the new justice of the peace appointment to Marbury.
b. In the case, Article III of the Constitution is in conflict with the Judiciary Act of 1789 section 13 over whether the court can order the writ.
c. The Court determined that when a statute conflicts with the Constitution, the Constitution is supreme and valid while the statute is declared unconstitutional and void by the Supreme Court.
i. Also, first instance of an Official Opinion that one Justice wrote and the other Justices signed.
d. Marshall's Reasons for Judicial Review:
i. Judicial enforcement of constitutional limitations necessary.
ii. Inherent judicial role.
iii. Article III implication.
iv. Judge's oath to uphold constitution.
