Constitutional Law Outline – Fall 2002
I. History and theory of the Constitution
A. What’s a constitution?
1. Sets out the powers and limitation of government
B. Articles of Confederation
1. Loose confederation of states
C. The US Constitution
1. Sets up a representative democracy not a direct democracy
a. Representatives of the people meet and vote on issues.
2. Separation of powers
i. Federal government (Article 6 – Supremacy Clause)
ii. Overview of the text
3. State governments (10th amendment – enumerated powers)
a. Article I – Sets up Congress
b. Article II – Executive
c. Article III – Judiciary
d. Article IV – Full Faith and Credit
e. Article V – Amending the Constitution
f. Article VI – Supremacy Clause
g. Article VII – Ratifying the Constitution
1. Federalist No. 10 written by James Madison
a. Factions as groups interested in pursuing their interests without regard to the interests of the whole.
i. Concerned about majority as well as minority factions.
ii. Madison believes that the Republican form of government is better than direct democracy in dealing with the effects of factions
a) Representatives will do a better job at looking at the long term interests of society.
b) Large, populous nation would mean that no faction could dominate over another.
1. The larger body that you can choose from in terms of representative, the better the representative will be chosen.
E. Checks and Balances
1. Federalist No. 51
i. What is the point of having a Constitution is you are going to allow the legislature to pass laws that are inconsistent with the Constitution?
ii. Checks and balances at work.
c. Case establishes concept of Judicial Review
i. If one branch passes a law that goes beyond the assigned powers than that law is void.
ii. Federalist No. 78
a) Can’t have Congress deciding on the constitutionality of their own legislation.
2. Judicial review and the countermajoritarian difficulty
a. No check by the people on the judiciary
i. Justices have lifetime tenure and are not directly accountable to the people.
Courts as a proxy for the voters.