Con Law I
I. Structure of the Govt and how it function
a. There are two fundamental concepts:
i. Separation of Powers (SOP)—The Judicial, Executive and Legislative branches
ii. Federalism—The sharing of power between the state and federal governments
b. With these two concepts being present in our constitution, the founders initiated a way to prevent a concentration of power (No more kings!)
c. Brief History:
i. AOC—weak precursor to Constitution
1. Govt lacked power to regulate commerce
2. State Govts like little countries
3. No executive or judicial branch
4. AOC wasn’t ratified by the people—couldn’t be sure people supported the document.
ii. Civic Republicanism-Antifederalists
1. Liked the idea of a decentralized govt with the model of a town meeting
2. Did not favor expansion of govt
3. Most worried about tyranny of central govt
4. This concept works best when everyone agrees
iii. Federalists = Madisonians
1. Believed in representative form of government
2. Madison saw a lot of factions and was skeptical of direct government and concerned about the danger of oppression [Federalist 10] a. Since we cannot eliminate factions, must adopt the concept of a republic with a Senate and House of Rep.
b. This flew in the face of civic republicanism
3. Elected reps. were more likely to step back and make decisions without becoming personally invested
4. Madison was most worried about the majority oppressing the minority.
5. [Federalist 51] Power should divided horizontally [sop] and vertically [federalism] but Madison did not initially mention BOR because he felt that the best security of rights was the structure of the government.
iv. The powers of the federal government:
1. Each branch has its own article providing for its powers:
a. Legislative are within Article I
b. Executive are within Article II
c. Judicial are within Article III
2. Each branch has a check over the ot
lism: Federal Government=Limited Power
1. Limited Power—Congress has no police power and the presumption is it lacks power until the state gave it power by ratifying the constitution.
2. Assume no power unless the Constitution gives it power
The Supremacy Clause = Federalism
ii. RULE #2 of Federalism: State Governments = Unlimited Power
1. States have General Police Power—state courts have general jurisdiction, states can do pretty much whatever they want
2. Assume they have power unless the Constitution takes it away.
10th Amendment confirms this—if the states don’t delegate the power to the feds then they still have that power. The states reserve their powers.
III. Federal Judicial Power in General
a. The Source of Power is Article III
Provides for a supreme Court