Constitutional Law II Outline

I.                   Overview of State Constitutions & State Constitutionalism: Origins, Form & Functions
a.       US Constitution
                                                              i.      Established relationship between nat gov & citizens. First 3 art establishes nat gov
                                                            ii.      Tricky part is that over time from 1787-2007 the US Const has been interpreted to restrict state rights as well. When Constitution or Bill of Rights says that US Congress can’t do something, it has been interpreted as meaning that no other gov body may do so either. Originally some of this regulation of state authority took place, but during reconstruction time the constitution got a huge boost of power w/three construction amendments, including most importantly the creation of the equal protection clause you had the federal constitution protected against state’s powers against citizens. Later in mid 1900s Civil Rights expanded further the powers of those amendments.
                                                          iii.      The principle theory of the US Const: “The US Const is a doc of “grant,” meaning that all powers which the national gov has are delegated to it by the const, meaning that if the US Const doesn’t grant certain powers, then it doesn’t have those powers.
b.      State Constitutions
                                                              i.      All states have one. They forge fundamental laws of the state. You have to be a citizen of a state if you are a citizen of the national government. State constitutions configure state governments and regulate the relationship between state citizens and the state. Also it regulates state’s relationship with state and sub-state governments like counties, cities and agencies; all the public institutions below the state level. Also state const have BoR which protect citizen rights. Many of the rights duplicate rights protected by the US Const. Most states have a free speech clause. Also many states have rights provision that are nowhere found in US Const. For example every state has a provision that says that a state citizen has a right education, even though not mentioned in the US Const.
                                                            ii.      Principle theory of state const: State constitutions are constitutions of limit, meaning that state governments have all powers except in so far as the state constitutions limit those powers. The principle example of this is the police power: power to protect health, safety and morals.
                                                          iii.      State const are very different.
                                                          iv.      State constitutions have so much more interesting detail. 
                                                            v.      California and some other states have amended their constitutions over 500 times!
c.       Big Picture
                                                              i.      Of course state constitutions aren’t identical. Even though there are enormous differences, there are also enormous similarities. These similarities make this class justified instead of just studying the Texas Const. It is like taking torts in general even though all states have right to be different. Our emphasis in this class will be common elements and themes.
                                                            ii.      All your important documents that you may carry in the wallet are state documents. In today’s modern society where people claim that state’s are less important and national government rules, but yet the direct controls clamped on us are much heavier by state than by national government.
d.      “Constitutionalism”
                                                              i.      Constitution – Summer’s def: “charter of fundamental laws that outlines relationship between citizens & gov.
                                                            ii.      Prof asks about Great Britain’s unwritten const; some think that British Const is more flexible than US’s written const, but others say Brirttian’s is less flexible b/c it changes through small changes in common law. Blackstone had big debate w/someone b/c he thought law should change very slowly w/com law & not quickly w/statutory changes. Some argue that lack of written const is good b/c it slows things down.
                                                          iii.      Our const tradition came from Great Britain.
                                                          iv.      Fundamental Law – bedrock laws that shouldn’t change very often & that trump ordinary law.
1.      British Const isn’t “fundamental law” like our const b/c parliament’s acts can’t be struck down by const/judiciary. Parliament has “parliamentary sovereignty” where acts of parliament cannot be struck down for any reason.
                                                            v.      Am. Nat. Const: written, trumps ordinary law, fundamental law for us, forms fundamental structure of gov, it is short,
1.      It’s divided into structural provisions & rights provisions. State consts typically aren’t organized and are never as short.
2.      Doc of “popular sovereignty” / the main diff between US & UK const is that UK’s is const of parliamentary sovereignty, where as US’s is a doc of “popular sovereignty.” Popular sovereignty was not just as mushy idea, but instead people prior to 1787 were of the opinion that people had sovereignty & right to change const even though violence & force.
3.      Was it always meant to be fundamental law? Big debate on this, but who cares, b/c now it is.
e.       Wood & Fritz gives historical detail.  
                                                              i.      There were a # of states that drafted their const before the US const was actually drafted. Don’t make the mistake of thinking that all the states made their const after and took what they wanted from the fed. It’s the opposite b/c the FF were the ones who had already had practice making state const and they picked from their experiences there what to put in the nat const. 
                                                            ii.      State processes for passing const were critical b/c at time when they were created there was no guarantee that there would be a nation at all. They were writing these before the Rev War was won. Even if they were to win the war there was much uncertainty about what would come of it. When 13 states originally wrote their const they were thinking that they were basically writing a const for small nations. These state consts were critical. 
                                                          iii.      A change happened in the minds of FF that made them think of creating a popular sovereignty doc instead of a parliamentary sovereignty doc due to mistrust of gov which came from King George and their won state consts’ failings. The state consts were very democratic and completely weakened their executive branch’s power, and the FF learned from this. The states greatly feared the executive power, but in that period of time the FF learned to fear also democracy almost as strongly as executive branches. 
                                                          iv.      Differences
1.      US Const: created through popular sovereignty a doc of grant, but state consts are cos of limits.
2.      States have extraordinary powers, police power, etc, so shouldn’t we expect a lot more from state gov & maybe we shouldn’t expect so much from nat gov.
3.      Interesting Puzzle: Why is there a difference between these 2 types of docs? Also, should it matter for jud rev how & whether crts should review acts of legislature for whether they are const. State crts review leg under state const like Sup Crt does for Nat Const, should they both have those roles?
4.      This is a very big debate about why all the FF of state const’s saw their docs as docs of limit instead of grant as they did the nat gov.
f.       Conclusion
                                                              i.      We are going to leave the debate about trans-state-constitutional theory, which doesn’t have a firm answer. This Q is whether there is anything we can say cohesively about the value of state con law across boundaries. There is a discussion board Q about this on black board. It is kind o an underlying theory for this whole class.
 
II.                State Constitutions & the Federal System
a.       Admissions – History of Admission of New States
                                                              i.      States had history of sovereignty & they slowly surrendered their sovereignty to the whole. 
                                                            ii.      A main Q in 1787 was whether, how & what extent should the new union allow the creation of new states
                                                          iii.      Existing states gen resists creation of new states b/c:
1.      More states = less power for each state over whole
2.      Feared that new states wouldn’t have same degree of fidelity to union
                                                          iv.      Need for growth outweighed these concerns.
1.      Preservation of political & military power required territorial advancement; needed more area to tax, etc. 
2.      W/huge land grabs like Louisiana purchase everyone knew that more states would be created.
                                                            v.      NW Ordinance & Admission’s Clause
1.      Cong created NW Ordinance & Art