Constitutional Law I – Zietlow – Spring 2010
Introduction – The Constitution
i. Creates a national government, gave power to the branches, allocates power among the branches.
1. Checks and Balances
a. If one branch becomes tyrannical, another can step in à ability to become tyrannical is limited.
2. Designed to prevent monarchical absolute power by diffusing it. A government absent a king.
a. Judiciary, Executive, and Legislative Branches
b. Power is divided between individual states
ii. Allocate power between national government and state governments (Federalism)
a. Some things efficiently handled better at local/state level
b. State governments are closer to the people
c. States are unwilling to give up all of their power (states existed before the constitution)
d. Article I, VI and Amendment X (notions of federalism)
i. Article I – The legislative Branch
ii. Article VI – Debts, Supremacy, Oaths
iii. Amend. X – Powers of the States and People
iii. To limit governmental power by protecting individual rights (almost no mention of individual rights in constitution’s text)
1. Indiv. Rights are self-evident and not necessary to mention
2. Could never list all of the rights people possess (mentioning some and not all looks like an implicit denial of others.
3. BILL OF RIGHTS
a. Thought of as limiting powers of federal government ONLY (did not apply to STATE GOV. until 20th century)
b. Applies only to the Government and NOT private institutions
Why accomplish the functions with a constitution?
i. Ratified “BY THE PEOPLE” = legitimacy and force
ii. Difficult to change
1. Limits the ability of the majority
2. Insulates “prized” values from majority rule
3. Prevents short-term impulses from causing us to lose sight of long-term values
Articles of Confederation
History – Madison didn’t like the articles of Confederation because the people didn’t ratify them.
Original Articles of Confederation (POWERS)
i. Federal Power
1. Legislative power only
2. No Executive or Judicial Power
3. No Taxation
4. No Regulation of Interstate Commerce (IC)
ii. State Power:
1. States have ALL power . . . not delegated to the central government
iii. PROBLEMS of the Arts. Of Confederation (Madison)
1. States weren’t compliant with the Fed. Gov. (Trade wars, states coining own money)
2. States Interference with Foreign Policy
3. States Trampling on Individual Rights (Cent. Gov. didn’t have power to do anything about it.
4. Fed. Gov. had not power to tax (no money to govern or enforce)
5. Not ratified by the people
6. Distribution of power: essentially a tiny central government at the center of all the states
iv. DEBATES Surrounding the Constitution –
1. Anti-Federalists (Jefferson)
a. Believed that small government was good
b. Distrusted large government (afraid of king)
c. Difference is bad????
d. Direct Government via town hall meetings (essentially government by consensus)
2. Federalists (Madison, Hamilton)
a. Strong Central Government
b. Representative (not a direct democracy). Believed it was more efficient to have a representative. Better for people to elect a representative who would be informed and who would make decisions on good policy)
c. Difference is good – Factions and differences are good because it encourages debates and leads to the best policy
i. Federalist # 10 – re Factions
1. Factions: “A number of citizens . . . who are united and actuated by some common impulse or passion.” Madison was worried about what factions might do but didn’t see a way to get rid of them without taking away their liberty, so …
2. Madison’s solution to factionalism was:
a. Representative Gov.
b. Large Republic would “extend the sphere, and you take in a greater variety of parties and inte
d by the Constitution (between citizens of different states)
3. Number of Justices is determined by Congress
4. Supreme Court Jurisdiction:
a. Original Jurisdiction over ambassadors, public ministers, and when a state is a party
b. All other jurisdiction is appellate, except under Congressional exceptiosn
c. Congress can pass laws preventing the SCOTUS from hearing certain cases (except those given by the Constitution)
5. Double inquiry to determine if fed court can hear the case
a. Is there constitutional power?
b. Is there statutory power?
Article 4: States (limits) Power of States – States had source of unlimited power and Constitution only set limits – states had general police power – general jurisdiction
i. §1 – Full Faith and Credit Clause
1. Each state must recognize the laws, judicial decisions, etc. of other states
ii. §2 – Privileges and Immunities Clause:
1. Cannot impose a disability on a citizen of another state – laws must apply equally regardless of state citizenship
Article V: Amendment Process – this is a difficult process which is why there are only 27 amendments
Article VI: Status of the Constitution – Supremacy Clause –
i. All laws must be valid as against the Constitution – federal law trumps state law, judges of every state are bound to the Constitution
1. State courts can appeal to the federal system
ii. Amendment X – any power not delegated to the Constitution is relegated to the states
Article VII: Ratification Process