Constitutional Law
I. The Founding
A. Declaration of Independence Thomas Jefferson, 1776
1. We hold these truths to be self evident…
a. Natural and Inalienable Rights – Life, Liberty, Pursuit of Happiness
b. Compact Theory of the State – Government from the people
c. Popular Sovereignty – the people hold the power
d. Right of Revolution
2. Individual Rights
3. Democracy
4. Property replaced with Pursuit of Happiness
5. List of Grievances against the King
6. “Free and Independent State” – last paragraph
B. Articles of Confederation Drafted 1777; ratified 1781 – 1787
1. “severally enter into a firm league of friendship”
2. No implied powers – everything was expressly delegated, very limited powers
a. Didn’t want to be governed by a distant gov’t after having just gotten rid of one
b. Congress with legislative, executive and judicial power à can’t raise taxes independently of the states. States were required to give the money; no power to enforce laws.
C. Failure of the Articles
1. Madison Theory of Faction – majority rule unjustly violating the rights of the people. James Madison, Vices of the Political System of the US, April 1787:
a. States’ failure to comply with the Constitution
b. Encroachment by the States on the federal authority
c. Violations of the law of nations and of treaties
d. States trespassing on each others’ rights (putting other states on par with foreign entities)
e. Want of concert in matters where common interest requires it
f. Want of guaranty to the states and their constitutions and laws against internal violence
g. Want of sanction to the laws and of coercion in the Gov’t of the confederacy
h. Want of ratification by the ppl of the Articles of Confederation
i. Multiplicity of Laws in the several States
j. Injustice of the laws of the States
2. Madison argues for a national gov’t where various factions could exploit each other without interfering with the states. “An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains…”
D. Drafting and Ratifying the Constitution Constitutional Convention, 1787
1. Virginia Plan: James Madison – Strong national government
a. Directly elected House selects Senate, both select a veto-less President
b. Council of Revision – National bicameral legislature gets veto power over every bill
2. New Jersey Plan: William Patterson
a. Small states strike back
3. Hamilton’s Plan:
a. Hints at monarchy: President-for-life
b. Senate-for-life
c. House of Representatives with 3 year term
4. Great Compromise:
a. House would represent the people, a Senate would represent the states
b. Electoral College elects President
c. Slaves counted at 3/5 person
i. Southern states want slaves to count as full person for purposes of representation
ii. Northern states wanted them to count as 0.
iii. Congress bans slave trade after Jan. 1, 1808
5. Bill of Rights is missing – some states hold out because of this.
6. Ratified 1789 – 13 yrs after the Declaration of Independence
a. 9 of 13 colonies needed for ratification
b. Massachusetts comes on board after promise of Bill of Rights is guaranteed (along with promise of VP for John Hancock)
c. Rhode Island is the hold-out, but isn’t needed for a ¾ majority
E. Constitution Drafted Sept, 1787; ratified June, 1788; new gov’t in force Mar, 1789
1. Legislative Powers 10 sections
a. Vestment and Bicameralism “All legislative powers herein granted shall be vested in a Congress of the US, which shall consist of t a Senate and House of Representatives”
b. House of Representatives – “chosen… by the People of the Several States” Look to the “electors in each state” who will have the qualifications of the most numerous state legislative branch
c. Senate – state legislatures vote for Senators *changed by 17th amendment to allow for direct election
d. Holding elections
e. Judging elections
f. Payment
g. Passing Bills – House, Senate, presented to the President, veto overridden by 2/3 each house (Bicameralism & Presentment)
h. Enumerated Powers
i. Taxes
ii. Debt
iii. Regulate Commerce
iv. Uniform rules of Naturalization
v. Post office
vi. Raise an Army
vii. Declare War
viii. Militia
ix. Necessary and Proper Clause (sweeping clause)
i. Limitations on Federal Gov’t
i. Slavery, after 1808
ii. Suspending Habeas Corpus
iii. Ex-post facto laws
iv. No preferential treatment of one state over another
v. No titles of nobility
j. Limitations on States
i. No entering into treaties, alliances, confederation
ii. No coining money
iii. No ex-post facto laws
iv. No entering into agreement with other states or with foreign power or enga
X – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” – just a truism, go look at the list.
G. Early Controversies Bank of the United States, Alien and Sedition Acts, Sovereignty
1. Bank of the United States – originally proposed to Congress by Federalists Hamilton (modern Reps), and opposed by Anti Federalists Madison. Madison and Jefferson (modern Dems). Bank passes and Pres. Washington asks for opinions before signing it.
a. What is the Bank?
i. Federally incorporated
ii. Quasi-Public/Quasi-Private enterprise
iii. Given authority to take deposits, issue currency, make loans, coordinate taxation
b. Is it Constitutional? Why does Pres. Washington ask for the opinions?
i. To establish precedent
ii. To ensure the Const would be followed
iii. To preempt any lawsuits
iv. Judicial Supremacy – compartamentalist view as opposed to the departmentalist view which states that each branch should be tasked with ensuring that a bill is constitutional
c. Distinction between Policy and Constitutionality
i. Art 1 § 8 – enumerated list of powers
(a) Power to Establish a corporation – not on the list
(b) Necessary & Proper – not enough by itself, it’s a helper clause that needs something more
(c) Power to Tax – Madison argues against this
(d) Power to Borrow – from other govts, private institutions, individuals, State banks; Hamiltonian argument
ii. Necessary and Proper
(a) Madison: says power to borrow necessitates the means of lending à Bank of US, but this creates a potential problem of creating other corporations
(b) Jefferson argues that Necessary should be interpreted in the strictest sense possible – the absence of any other alternative. Here there are other sources of borrowing.
(c) Hamilton argues that Necessary means conducive, convenient, appropriate
