Con Law I Outline
v The Constitution
Ø What is a constitution?
§ The framework, purposes, powers, governmental process, privileges of its members
v Historical Development of the U.S. Constitution
Ø Some important milestones:
§ Articles of Confederation 1781
§ Original Constitution 1788
§ Bill of Rights 1791
§ Reconstruction Amendments 1865, 1868, 1870
Ø The Articles of Confederation put into writing the rules and practices of the Continental Congress
§ Loose-knit organization of independent states (each state was its own nation)
§ Problems:
· No money
· No unifying executive
· Trade barriers/wars between the states
Ø The Constitution was created when trying to address the Articles of Confederation problems
§ Gave powers to tax persons directly
§ Created an executive (president on down)
§ Commerce Clauseà allowed the federal government to regulate trade between states
· Can prohibit state from erecting unfair trade practices
§ Serious flaws:
· Slavery question – recognized and supported slavery
· Contained few specific civil liberty protections
§ Framers promised in exchange for ratification, they would propose amendments shortly thereafter
Ø Bill of Rights
§ Amendments 1-10 (1-8 being very important; 1 and 5 the most important)
§ Dealt with the second flaw
Ø Reconstruction Amendments
§ 13 – abolished slavery
§ 14 – citizenship clause (in response to the Dred-Scott case), due process clause, equal protection clause
§ 15 – right to vote not denied by race
§ 17 – Senate appointed by popular vote, “people of the state”; was once chosen by the Legislature
§ 19 – women’s right to vote
§ 26 – right to vote at age 18
v The Main Purposes of the U.S. Constitution
Ø Creates the federal government and allocates its power among the 3 branches (separation of powers/checks and balances)
§ Legislative Power – Art. I, especially Sec. 1, 8(1), (2), (3), (18)
· Sec. 1 – sets up the legislative branch; bi-cameral (2 Houses)
¨ Bi-cameralism – approved by both houses
¨ Presentment – present to the president for signature
· Sec. 8 – forms the basis of American power in peace time
¨ (1), (2), (3) – may collect taxes or borrow money; regulate commerce with foreign nations, between states, and with Indian tribes (created a powerful commercial organization)
¨ (18) – Congress is given the power to make laws
· Everything Congress does must be authorized; usually by something in Art. I, Sec. 8
¨ Must be authorized somewhere in the Constitution for everything it does domestically
· Created a government with enumerated, limited powers, (intention of the framers); Theory: if it’s not there, can’t do it
· McCulloch v. Maryland: Maryland sued McCulloch for issuing bank notes that were not stamped to show that taxes had been paid on them
¨ Does congress have the power to incorporate a federal bank and if so, may states tax them?
Ø Art. I Sec. 8 – Congress has the power to establish federal banks
§ May Congress do what it wants to promote the we
eral wins (Art. IV Sec. 2)
§ Before there can be a conflict between state and federal law, it must be determined if the federal law is constitutional; if the law is not, it is invalid therefore there can be no conflict (is axiomatic it is determined)
· Gibbons v. Ogden: Ogden was given exclusive rights to runs his boats; Gibbons was given permission by statute to run competing boats in the same waters; injunction was granted against Gibbons
¨ Is the state injunction constitutional against the federal statute?
Ø Was held to be unconstitutional
Ø “Congress has the power to regulate commerce….” Art. I Sec. 8(3) – includes navigation
§ The Commerce Clause has 3 parts:
· With foreign nations
· Between states (interstate commerce)
· With Indian tribes
§ Must be more than the act of buying and selling; must include travel (HAS to include navigation)
· For foreign nations and interstate commerce
¨ New York can’t control New Jersey commerce, but can control New York commerce; once Gibbons is in New York water, it’s IN state not interstate commerce
¨ Interstate commerce involves more than one state (falls within Congressional power)
¨ How does this make the state action unconstitutional?
