Const law
Factions
(parties or interest groups ) Political groups that agree on objectives and policies; the origins of political parties.
we have a very hard constitution to amend
-Republicans wanted the exclusion of the southern states - needed 3/4 to ratify - new southern state goverment
Anne Hutchinson
A Puritan woman who was well learned that disagreed with the Puritan Church in Massachusetts Bay Colony. Her actions resulted in her banishment from the colony, and later took part in the formation of Rhode Island. She displayed the importance of questioning authority.
Article of Confederation
Article 1- Congress 2- Executive Branch 3- Judiciary 4- States
Civil Rights
Claims about equality - 13, 14, and 15th amendment abt groups and individuals the rights of citizens to political and social freedom and equality. - VOTING is both a civil right and a civil liberty
Civil liberties
Constitutional freedoms guaranteed to all citizens - Individual claims against the government - In first 10 amendments
Klan Acts 1870-71
Criminalized conspiracy of saw to vote
Missouri Compromise
Demonstrated tht the Constitution disagreement was significant - the foundations of national polity shook "Compromise of 1820" over the issue of slavery in Missouri. It was decided Missouri entered as a slave state and Maine entered as a free state and all states North of the 36th parallel were free states and all South were slave states.
John Locke
English philosopher who advocated the idea of a "social contract" in which government powers are derived from the consent of the governed and in which the government serves the people; also said people have natural rights to life, liberty and property. -insisted on limited goverment whose primary purpose was to protect individuals rights
Americans after the Revolution
Established written constitution and believed a written one was superior to unwritten English constit bc officials could not go against them Leary of strong central governments
Negative Liberty
Freedom from constraints or the interference of others
13 1 14 1 and 15 1 give
Individual rights
You have a diff constitution because the change is so profound
Is a change an interpretation if its so profound like charging ppl for their wheat - there is a level where the whole thing becomes different
Positive Liberty
The ability—and provision of basic necessities—to pursue one's goals.
Law of Nations
a branch of Roman law that was applied to citizens in all parts of the Empire regardless of nationality
Da Jeune Eugene
condemned the international slave trade as violating law of nations and nature
The constitution is increasingly
distiinctive in its emphasis on negative liberties or freedoms from goverment
Enforcement section of Reconstruction ammend
give congress new pew
The rights Americans enjoy stem from 5 uncontroversial and 2 controversial sources
1- The constitution of the US 2- Federal Laws 3- State Laws 4- State Constitutions 5- Judge Made common law Controversial 1- Natural Law. 2- Customary International Law or the law of nations
Gettysburg Address (1863)
Abraham Lincoln's oft-quoted speech, delivered at the dedication of the cemetery at Gettysburg battlefield. In the address, Lincoln framed the war as a means to uphold the values of liberty. UNITY preservation of the nation, the dedication of the cemetery on the battlefield site for the fallen soldiers, and the importance of continuing the struggle to win the war.
"Federalists" and "Anti-Federalists" disagreed over how best to protect rights.
Antifeds won this debate by adding the Bill of Rights but GGW states that, "the scope of this victory was contested. Constitution was ratified
Not a sharp line dividing
Civil liberties and rights
14th Amendment section 5
Congress shall have power to enforce, by appropriate legislation, this article.
Roscoe Filburn
Farmer who was charged for growing too much grain on his farm during the Great Depression because the surplus would affect interstate commerce by changing the price of grain. Roscoe Filburn, was growing wheat for his consumption in Ohio. The government had established limits on wheat production based on acreage owned by a farmer, to drive up wheat prices during the Great Depression. Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it. The Court decided that Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce.
Federalists and National republicans
Favored laws limiting political participation, promoting religious establishment and maintaining vested property rights
Article 1 section 9
Forbade congress from suspending the writ of heats corpus - passing bills of attainder or making post facto laws Powers denied to Congress
Federalists
Individuals who favored a strong national government with sufficient powers to promote national interests. GGW states that the Federalists were often more affluent than the Antifederalists and were more involved in commercial activates. Federalists did not believe that enumeration of our rights was necessary. Advocated for ratification believed that the federal government lacked the powers to violate fundamental rights and that a government can be trusted to protect fundamental rights even if they are not directly stated in the constitution
Calder v. Bull (1798)
Insisted that courts should not rely on natural law when decision making bc they have no fixed standard -Reviewed an act of Connecticut's state legislature that sought to hold a new trial over the review of someone's will -The ex post facto prohibition applies to criminal law, not civil law - SC court unanimously rejected the clause bc the ex post facto clause banned only retrospective criminal laws not prop rights
departmentalism
Jefferson's idea that every department of the national government has a role in interpreting the Constitution my house my rules
Petticoat
John Adams reference saying women rule us by their undergarments
United States v The Da Jeune Eugene
Justice story concluded that Actual ownership was not legally relevant - cargo slaves were forfeit
black codes
Laws denying most legal rights to newly freed slaves; passed by southern states following the Civil War
14th Amendment section 3
Required a vote of a two-thirds majority of Congress itself to allow former Confederate leaders to regain the rights of American citizenship " No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the the United States, or under any State, who having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Dred Scott (1857)
Slaves were property and could not sue. Missouri Compromise ruled unconstitutional. Sued and lost case to gain freedom from his owner when he was brought to free territory. This Supreme Court case legalizes slavery everywhere in US
Commerce Clause
The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations. The section of the Constitution in which Congress is given the power to regulate trade among the states and with foreign countries.
Instrumental Veichles for securing rights
The structure of the constitutional institution, the powers of National goverment and Federalism
voting rights enjoyed limited success during the Founding Era
This was because most states limited the ballot to free white landowning men (with exception for women in 2 states and free African American's in some states.) Even so, there was a narrow view in American society of who should be denied the right to vote more so than who should have access to the vote. For example, John Adams letter to James Sullivan claims that we should deny women the right to vote because "their Delicacy renders them unfit for Practice and Expertise..." (P. 107) This clearly shows how the right was strictly constricted in a society with strict gender roles and racism. Men with no property were also not allowed to vote and considered less capable of making decisions that did not apply directly to him.
What institution assured that congress respected constitutional limits?
Thomas Jefferson in the Kentucky Resolutions insisted that states retained the authority to determine meaning of constitutional provisions
17c Whigs and Tories
Whigs- Favored greater parliamentary power Tories - Favored preserving more royal powers
Plessy v. Ferguson
a 1896 Supreme Court decision which legalized state ordered segregation so long as the facilities for blacks and whites were equal "separate but equal" doctrine supreme court upheld the constitutionally of jim crow laws
ex post facto law
a law that makes an act criminal although the act was legal when it was committed
Alien and Sedition Acts
acts passed by federalists giving the government power to imprison or deport foreign citizens and prosecute critics of the government Federalists: insisted the alien and sedition acts were constitutional for preventing citizens and immigrants from subverting common law of England, provided property standard. Jeffersonians : Inssisted the ASA were unconstitutional efforts to suppress political opposition - constit meaning of free speech was derived from features of a committed constitutional republic
District of Colombia v. Heller (2nd amendment)
addressed the meaning of 2nd Amendment as it applies to maintenance of a militia versus an individual's right to possess and use guns in their homes.
post facto
after the fact
Most authors of the Constitution were
classical liberals They believed that the Constitution protected individual rights and committed to a liberal republic They rejected non-liberal ends as achieving global domination or one true religion
Congress may provide additional rights and liberties protections beyond the Constitution as long as they are
consistent w higher legal authorities
most Americans in the Jeffersonian era believed that slavery was
consistent w natural law
Federal Constitution ratified in 1787-89
contained v few provisions that protected individual rights
Disagreements between the state and federal judges often reflect
differences in political contexts
Procedural rights
ensure that persons are given a fair hearing before the state is permitted to take away any rights
under txt of voting rights in the constitution only
free white men could vote - NJ let women vote
Many new constitutions declare that goverments provide
goods for all citizens ex: adequate housing
Equality rights
guarantee all persons the same goverment benefits and burdens that are provided to other similarly situated persons - 15 amendment prohibits state laws that deny people the ballot based on race
Section 14 of the North West Ordinance
guaranteed the fundamental liberties of persons living in NW territories
Rights and liberties enumerated in the constitution after the revolution
had been contested in England and the colonies before moving to to americas - EX: Americans declared persons constitutional right to religious freedom bc they experienced intolerance before & after
Prudentalism
happening now w/ covid focuses on the costs and benefits
Marshall described the Constitution was defective from the start
it required several amendments, civil wars, and social transformation to attain a system of constit goverment
Legal model of judicial decision making
judges set aside their own values and make decisions based solely on legal criteria
Judges say they use the
legal model bc they read the constitution different the law explains the way judges act they way they do
Courts may limit the
minor a major tyranny
the law of nations does not rest on theory but is
modified by practice
natural law
moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world. A doctrine that society should be governed by certain ethical principles that are part of nature and, as such, can be understood by reason.
Republicans in the wake of the Civil war believed the
nat goverment had a constitutional obligation to provide former slaves w goods and Services they needed to become full citizens
Alien Friends Act
permitted the president to deport noncitizens at his sole discretion—if, for instance, he considered them to be "dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect [they] are concerned in any treasonable or secret machinations against the government." (Opponents of the bill jested without humor that the president could expel someone if he or she was merely "suspected of being suspicious.") The Alien Friends Act expired two years after its passage, unlike the Alien Enemies Act, which permitted the arrest and deportation of male "alien enemies" during wartime and which, in modified form, remains in effect today
More often Elected officials empower courts to make strong decisions because
politicians like it bc there is less pushback if there is something you are doing the ppl dont like you can say the courts did it
Jacobs Law
req ppl who were convicted of sex crimes to be registered on nat public sex off registration
Letting more ppl vote weakens when
rights are extended
The Central jurisprudential debate of ENE was over the
role of natural law in constitutional decision making - Also marked beginning of constitutional politics in america
During the New deal era Americans were divided more by
section than by parties
In much of American constitutional decisions on specific issues were
state and Constitutional issues Federal constitution decisions are often based on previous constit decisions
Many state courts relied on
state due process or clauses to protect vested property rights
When the Supreme Court declares that the Constitution does not req states to respect a particular right
states are free to choose wether to protect that right
Purpose of the Declaration of Independence
to explain to foreign nations why the colonies had chosen to separate themselves from Great Britain - secure life lib and happiness - Americans learned that declaring fundamental rights is easier than defending liberties
Rights at any given time are
what most ppl want rights to be
Federal courts generally have exclusive jurisdiction in cases involving
(1) the Constitution, (2) violations of federal laws, (3) controversies between states, (4) disputes between parties from different states, (5) suits by or against the federal government, (6) foreign governments and treaties, (7) admiralty and ...
Bonham's Case
(1610) British case in which Sir Edward Coke, chief justice of the King's Bench, laid the foundation for judicial review. The common law will control acts of parliament, and sometimes adjudge them to be utterly void." (p.31) Many colonists felt that this case established crucial foundations for English courts to later declare parliamentary orders mandating use of general warrants and other actions thought to violate what colonists saw as their constitutional rights as Englishmen. Despite these pleas for a more secure process, no British or colonial court ever declared unconstitutional any law that the colonists said violated their rights. While judicial review was in the minds of some important thinkers, the American government had not yet evolved to accept the legitimacy of judicial review.
What would reverse dread Scott
- 13th amendment pt 1 & 2 combats drew Scott " we dont have par to act on slavery" - 13 2 gives congress the right to further make legislation on equality rights -14th amendment power to enforce. 14 1 clearly overturns DS by making citizenship. national NO state shall abridge on life Lib and protection of laws - 13-14-15 = new powers for congress the states increase federal power
Bushell's Case 1670
- A judge could not imprision juries for declaring a defendant not guilty Established the right of a jury to be free from judicial coercion.
13 Amendment (1865)
- Congressional approval came in 1865; it was then approved by the requisite number of state legislatures, after Congressional Republicans made clear to ex-Confederate legislatures that ratification was necessary before they would be readmitted to full participation in the Union Section One. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section Two. Congress shall have power to enforce this article by appropriate legislation.
Heiarchy exsists among the uncontroversial sources of rights and liberties
- Constitutional Law is higher that statutory law - Statutory law is higher than all forms of judge made common law - All Federal Laws are a higher legal authority than state Constitution laws - No lower legal authority may pass a law that contradicts w a higher legal authority - IF congres passes a law forbidding race discrimination in employment, no state can ratify something only allowing whites workers rights
What did the founders think of political parties?
- They set the Constitution w/o mention of parties - They believed that the system would work without parties lol Dangerous, evil "factions" that threatened democracy and good governance
James Otis / "No taxation without representation"
- wrote a pamphlet condemning the Sugar Act in which he argued that because the colonists had no representatives in Parliament, they could not be taxed for the purpose of raising money - gave rise to the expression, "No taxation without representation"
Abraham Lincoln's First Inaugural Address
-Succession is illegal and unconstitutional and the essence of anarchy - He believes that the election process is the only true sovereign of the ppl - pushes the moral responsibility of war on the ppl to save the nation they all love - Union of ppl determined by elections not states - Focused on shoring up his support in the north without further alienating the south, where he was almost universally hated or feared. In his inaugural address, Lincoln promised not to interfere with the institution of slavery where it existed, and pledged to suspend the activities of the federal government temporarily in areas of hostility. Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these great and true principles. In his first inaugural adress, lincoln said clearly that he would not force the South to abolish slavery nevertheless he made clear that he would compel them to pay about 80% of federal taxes with taxes with tariffs
William Blackstone (1723-1780)
-insisted on parliamentary supremacy - rights were limits on the monarch not the legislature William Blackstone was an English Jurist, the first Vinerian professor of law at Oxford, and Solicitor General to the Queen. Before Blackstone joined the faculty, English universities had focused exclusively on the study of Roman law. Blackstone authored Commentaries on the Laws of England widely regarded as the most complete and readable commentary on English law. The Supreme Court often references Blackstone's writing as a source for determining the intent of the Founders when interpreting the Constitution.
Congressional Debates over the 1875 Civil Rights Act
. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude The denial of any right is a wrong that darkens the enjoyment of all the rest. Besides the right to testify and the right to vote, there are other rights without which Equality does not exist. The precise rule is Equality before the Law; nor more nor less; that is, the condition before the Law in which all are alike—being entitled without any discrimination to the equal enjoyment of all institutions, privileges, advantages, and conveniences created or regulated by law, among which are the right to testify and the right to vote Civil Rights Act of 1875 had a tortuous path to passage
Constitutional rights are connected in at least 3 ways
1- Functional connections 2- Political connections 3- Principled connections
Adams v Franklin property tests
1- Independence (land) property provide for independence 2- Steak in society 3- Will of your own 4- Knowing enough abt politics
Constitutional rights and liberties in the us can be divided into four rough categories
1- Individual Rights 2- Equality rights 3- Political Rights 4- Procedural rights
The English civil war and Glorious revolution inspired 2 novel perspectives on the purpose of constitutional goverment
1- Liberalism; Society based on a social contract between free persons in a state of nature and goveremnt was created by this contract to protect natural rights (life, lib,property) 2- Republicanism: saw freedom as self government - Constitutions granted all citizens the opportunity to participate in the political process tht determined what liberties were protected
There are 6 approaches to Constitutional interpretation
1- Originalism 2- Textualism 3- Doctrinealism 4- Structuralism 5- Prudentalism 6- Aspirationism
Class The rights Americans enjoy stem from 5 uncontroversial and 2 controversial sources
1- The constitution of the US 2a- Federal Statutes (law made by legislator) 2b- Executive branch interp of those statutes (your protections do not depend on the constitution they depend on rule making from executive government- covid morning after pill 3- State Constitutions mores than federal constitutions 4- State statutes 5- Judge made common law Controversial 1- Natural law- human rights God-given right 2- International law: not as big in the us
American Political thinkers challenged 2 elements of English Constitutional thought
1- They insisted tht a parliament in which the American colonies were not represented could not make binding law for the colonists 2- they began to think of the social contract as binding popular majorities (king) All citizens are part of this social contract = all governing institutions had to protect fundamental rights
The slave trade was null in 1808 for 2 reasosn
1- it violated the law of nature = the natural right of persons to be free 2- slave trade violated the law of nations = the customary practices of civilized countries
Reconstruction ammendments
13th, 14th, and 15th amendments which state freedom of slavery, citizenship, and voting rights.
coverture
A common-law doctrine under which the legal personality of the husband covered the wife and he made all legally binding decisions
3/5 Clause
A compromise written into the Constitution by the Framers of the Constitution, abolitionists only wanted to count free inhabitants of states, while slaveholders wanted to count slaves fully, since slaves couldn't vote, southern slave states would get bigger representation in HOR and present elections When determining votes for congress and how many representatives they got slaves would count as 3/5 of a person.
English Civil War (1642-1649)
A conflict over royal versus parliamentary rights, caused by King Charles I's arrest of his parliamentary critics and ending with his execution. Its outcome checked the growth of royal absolutism and, with the Glorious Revolution of 1688 and the English Bill of Rights of 1689, ensured that England would be a constitutional monarchy.
SENATOR CHARLES SUMNER (Republican, Massachusetts)
A radical Republican his entire life, Sumner insisted that Congress had the power to take whatever steps were necessary to ensure that persons of color enjoyed legal, political, and social equality in the United States leader of the antislavery forces in Massachusetts - I begin with public hotels or inns, because the rule with regard to them may be traced to the earliest period of the common law - (theaters inns) They are public institutions, regulated if not created by law, enjoying privileges, and in consideration thereof, assuming duties not unlike those of the inn and the public conveyance. From essential reason, the rule should be the same with all. As the inn cannot close its doors, or the public conveyance refuse a seat to any paying traveler, decent in condition, so must it be with the theater and other places of public amusement.
Slaughterhouse Cases (1873)
A series of post-Civil War Supreme Court cases containing the first judicial pronouncements on the 13th, 14th, and 15th Amendments. - first opportunity for SC to interpreted the privileges and immunities clause of 14 amendment, protected only a limited set of right of national citizenship wild interp SC refused to enforce 14 amendment so states responded by expanding black codes into Jim Crowe, laws to prevent blacks from becoming ecomincally stable members of society - it took 115 yrs for the SC to recognize the right to bear arms in the 14 amendment NARROW view of the constitution failing to nationalize the BOR The Court held that these amendments had been adopted solely to protect the rights of freed blacks, and could not be extended to guarantee the civil rights of other citizens against deprivations of due process by state governments. These rulings were disapproved by later decisions. - can calif set policy to increase fuel economy standards than the state - liberal says it depends siding w state authority New Orelans - State goverment sets up monopoly for butcher or they could not sell = the white butchers lost in Louisiana- say they were deprived of their equal protection - the ability to work my job is a right - butchers also argued it enslaved them by forcing them to work for state goverment monopolies - Northern lib on SC seeing slaughterhouse sees a public safety law and those butchers are trying to destroy republican gov ] - SC says no a bad faith effort
Abigail Adams & John Adams
Abagail's response to Adams was very strong and pointed out how he had not taken her prior comments seriously. Adams saw himself as one of the important men working to establish a successful system of government. He may have been as GGW claims supportive of more progressive thinking in terms of women's rights. However, the remarks he made to Abagail certainly did not scream women's rights and if anything skimmed over the issue she was asking him to address. petticoat Context This document is a series of letters sent from Abigail Adams to her husband John Adams. John Adams became the second President of the United States. Abigail Adams was a close advisor to her husband throughout his political career. Content Abigail Adams discusses the state of Boston during the Revolutionary War; it was in a state of chaos, disorder, and anarchy. Abigail Adams next discusses that when they will obtain freedom, they can relax and live their lives in peace and comfort without constant fear. Abigail Adams advises her husband to make sure that he includes representation and rights for women in the Declaration of Independence, so that they are not suppressed and have a role in America. Abigail describes that these gender rights will be beneficial for the whole country, so that the women do not rebel and stir up trouble. Adams lastly outlines that instead of making women objects for men's pleasure, he should describe men and women as equals and friends as Abigail and John Adams are for each other. Significance Abigail Adams is a powerful woman at the time as she has one of the founding father's ears on issues of gender inequality and rights. Adams argues on behalf of women, trying to convince John Adams that women are inherently equal to men and deserve to have a role in this new country they are creating. Abigail and John have an unconventional marriage in which they consider each other equals and close friends. **Abigail tries to tell John that if women were just given representation, voices, and rights, relationships between men and women could be like their marriage across the country, making the United States of America the strongest country in the world.
"the people will have ceased to be their own rulers"
Abe Lincoln inaugural address against Judicial Supremacy - today most ppl support judicial supremacy
Property tests
Abolished during Jackson's time to allow more white men to vote
14th Amendment Section One
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Originalism
Arguments maintain that constitutional provisions mean what they meant when they were ratified - Public meaning: Each word must be interp the way a normal speaker of English would have read it when it was enacted - historicism ; interests of who wrote and ratified
Doctrinealism
Arguments resolve contemporary controversies by interp past precedents. What judges have said over time - legal rule extracted from previous cases
Fugitive slave clause
Article IV, Section 2, Clause 3 of the Constitution, which stated that slaves who escaped must be returned to their owners. It was later abolished in the Thirteenth Amendment
Blackstone's Commentaries
Blackstone explains that "the very being or legal existence of the woman is suspended during the marriage..." (P.58) The legal status of woman in colonial and early American law was completely at the will of their husbands and everything from her legal rights to her debts and disputes were handled by their husband. GGW claims that the most fundamental right that women had in colonial America was to "decide on a marriage partner." (P. 58) While this freedom for women to choose a partner sounds nice, by marriage in the colonies, as early feminists put it the "husband and wife were one person, and that one person was the husband." (P. 59) - legal status of women in the colonies as GGW and Blackstone frames it belonged to their husbands who were meant to protect their wife's rights as well. Blackstone states, "These are chief legal effects of marriage during the coverture; upon which we may observe that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit." (P. 59) - Blackstone even ensures that by giving up her rights and legal obligations to her husband, even in hard times it is ultimately in the best interest to sign this coverture for the wife's protection and benefit. - Men can use domestic violence restrain a wife of her liberty for her P&B
This course is mostly about
Civil rights and Equality claims
Act Prohibiting Importation of Slaves 1807
Congress could not ban importaytion of slaves by 1804
The Founding Era (1750-1790)
Consisted of the value of enumerating rights in a constitution - the original constitution did not include the BOR but txt did enumerate some liberties
A single constitutional clause may protect more than one thing EX
Constitutional protections for freedom of speech at present guarantee the freedom to advocate that congress reduce the min wage (a political right) & the freedom to urge your friend to buy your car for $500 (an individual right)
Principled connections
Constitutional thinkers often insist that numerous rights and liberties are aspects of more general constit principles - New Deal Liberals believed that the constitutional committed to Democracy justified judicial activism on v diff set of const. rights and lib - Scila Saying second amendment dies not protect individual right to use a gun in self defense but person responsible 14th amendment did not intend to protect abortion rights
Marbury v. Madison
Courts asserted judicial power to declare laws unconstitutional - Congress can't add to the courts OJ - Constitution became understood as unchanging Sec. of State James Madison held up one of John Adams' "Midnight Judges" appointments. The appointment was for a Justice of the Peace position for William Marbury. Marbury sued. Fellow Hamiltonian and Chief Justice John Marshall dismissed Marbury's suit, avoiding a political showdown and magnifying the power of the Court. This case cleared up controversy over who had final say in interpreting the Constitution: the states did not, the Supreme Court did. This is judicial review.
US Department of Justice
Created in 1870 - the Judiciary Act created an office but no - Established bc of postwar challenges - Reconstruction 1865-1876 major amendments 13, 14, and 15th extended Civil rights and legal protections
John Marshall
Dominated the SC - Federalist judicial appointee Chief Justice from 1801-1838 - Marshall court was committed to exedending national power and protecting property rights - Marshall court DID NOT make any civil rights and liberties decisions in ENE American jurist and politician who served as the chief justice of the U.S. Supreme Court (1801-1835) and helped establish the practice of judicial review.
Textualism
Emphasize the specific language of the Constitution - Focuses on the words ; impair the obligations of contracts
Trial By jury
Enabled citizens to check the rare elected officials bent on restricting popular rights The right of a person to be tried by a jury, or a group of citizens, to decide if the person is guilty or innocent of committing a crime.
Sedition Act of 1798
Enacted by the Federalist Congress in an effort to clamp down on Jeffersonian opposition, the law made anyone convicted of defaming government officials or interfering with government policies liable to imprisonment and a heavy fine. The act drew heavy criticism from Republicans, who let the act expire in 1801. *Terms:* Made it illegal to defame or criticize the president or the government; aimed at war newspapers critical of the Federalist policies; Jeffersonians viewed it as proof that individual liberties were threatened if the central government was too strong. *Historical Significance:* Led to the Kentucky and Virginia Resolutions; contributed to the debate concerning constitutional rights in times of war. not long after the US Constitution was ratified and the Bill of Rights adopted, Congress passed the four infamous laws known as the Alien and Sedition Acts of 1798. They explicitly muzzled criticism of government policies and officials, and sadly demonstrate that not a few founding Americans could be petty, shortsighted, and more than willing to prosecute speech they didn't much like - federalists thought opposition was sedition
Precedent is good for
Fairness, Efficiency and predictability
Antifederalists
Favored a more limited government that lacked the power to oppress ordinary citizens. The antifederalists believed that the constitution needed more explicit protections that prevented the government from oppression. The Antifeds won this debate by adding the Bill of Rights but GGW states that, "the scope of this victory was contested.
1789-1801
Federalists controlled all 3 branches of nat goverment - 1801 - 1828 Jeffersonians controlled all 3 = change in PARTISAN CONTROL of GOVT IN ENA
extraterritoriality
Foreign residents in a country living under the laws of their native country, disregarding the laws of the host country. 19th/Early 20th Centuries: European and US nationals in certain areas of Chinese and Ottoman cities were granted this right.\ This country was established against colonialism. But then we acquired territories that could only be called "colonies:" we control them, but they are not states, and no one expects them to be states soon. (In addition to some other lands, like, military base
Much of history Kings, aristocrats, and religious elites were the only persons who insisted they had
Fundamental rights and liberties - Most ppl saw rights as limits on royal power
Grandfather analogy
Grandfather said to always treat ppl fairly (was an antisemite) talking abt gender - does this follow or honor what he told you to do -Dworgkins point is you honor his wishes Originalism but things change overtime
Political Rights
Grant persons power to influence state and nat goverment policymaking 1st amendment = protects right to criticize public officials Harper V Virginia State Board of Elections (1966) - State governments could not condition the right to vote on the payment of a poll tax
14th Amendment 1868
Grants citizenship to "all persons born or naturalized in the US"; it forbids any state to deny any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws." Most important law ever passed besides original Constitution and Bill of Rights. It has been the vehicle for the expansion of civil rights, women's rights, gay rights among other movements. It also allowed for the "incorporation doctrine" which means the application of the national Bill of Rights to the states. - protects privileges and immunities controversial in many ways - Recalcitrant Southern whites began in 1865 and 1866 to write "Black Codes" regulating the conduct and status of freed slaves, limiting or eliminating completely their rights to own property, testify, make contracts, travel, preach, assemble, speak, and bear arms. The abolition of slavery, meanwhile, obviated the three-fifths clause and put Southern states in a position to make substantial gains in the House of Representatives. It was immediately clear, however, that resurgent Southern white élites would simply bar blacks from voting, then use their increased representation to regain power in national politics. Reluctant to require voting rights for blacks, Congressional Republicans instead wrote Section Two into the Fourteenth.
Friedman's burrow act
H says 13 1 eliminates legal relationship land edu some housing for former slaves
Federalist 78 (Hamilton)
Hamilton claimed that a federal judiciary would provide added protection for individuals rights Judiciary branch isn't too powerful because it doesn't have the power of the purse or sword; can't tax, enforce laws, or bring the nation to war
Cognitive dissidence
Hurts when 2 thoughts collide in your head in a way your mind can't stand tension or discomfort that results from a contradiction between two thoughts or a thought and actions. Example: you know stealing is wrong, but when you see an open bowl of candy, you take a bunch. You feel the need to explain your behavior-- I only took it because it was just laying there. Mental discomfort, you know it was wrong
Rutgers v. Waddington, 1784
In 1783, the New York State Legislature passed the Trespass Act, which allowed land owners whose property had been occupied by the British during the Revolution to sue for damages. Rutgers sued in the Mayor's Court over the seizure of her brewery, and the Mayor, James Duane, declared the Act void because it conflicted with a provision of the Treaty of Paris. It was the first time a U.S. court had declared a law unconstitutional, and was an important precedent for the later U.S. Supreme Court decision in Marbury v. Madison. asserted the comm
Law of nations
International Law or the Law of Nations as a body of rules governing. the intercourse of independent States is as ancient as independent. States themselves.
1820 debate on establishing a bank
John Marshall says necessary and proper laws to carry out powers - T says rememberer how Necessary and proper are interp = if congress thinks its necessary its allowed appropriate
Knowing who wrote the Declaration of Independence is absolutely essential to really understanding its meaning." Support and explain, in two or three good sentences.
Knowing who wrote the Declaration of Independence is absolutely essential to really understanding its meaning because in order to interpret American governments' place in modern day society we must know why aspects of the government were put in place and their intent. If we determine that the men who wrote the Declaration of Independence are interesting but dont matter in terms of the context of its meaning then essential themes are ignored like the motivation to forum new allies in the document's creation. In order to modify our interpretation of the declaration it is important to first understand the reasons the men who drafted it put each line in.
Individual Right
Limit the extent to which nat and state officials may regulate personal behavior EX: Terminating pregnancy
Constitutional Decision Making
Looking at the various theories of constitutional decisions and seeing which ones actually impact constitutional practice. Proponents on both sides of highly controversial issues have legitimate constitutional arguments over things like abortion and gun rights. Constitutional decision making involves seeing which of the theories (textualism, originalism, doctrinarism, structuralism, prudentialism, or aspirationalism) is most effective in achieving rights and liberties for constitutional interpreters.
Enforcement acts
Made it a crime to conspire vote (1870-1871) Congress in response to the KKK and others, passed these acts to protect black voters. It created penalties on person who interfered with any citizen's right to vote. Outlaws the activities of the KKK
Virginia Ratification Convention
Madison and Henery celebrated potential judicial power to declare laws unconstitutional
Conflict was not only btwn colonists and parliament but also among colonists
Many Americans endorsed the English view that liberty meant only liberty consistent w laws enacted by parliament
No taxation without representation
Many colonists believed tht the rights of englishmen in the colonies could be restricted only by institutions in which the colonists were represented \ reflected the colonists' belief that they should not be taxed because they had no direct representatives in Parliament
Martin v Commonwealth of Massachusetts
Martin wanted property rights bc she's a loyalist woman - coverture ; woman looses most rights but property rights remain complex and not all gone the court system says a woman cannot commit treason so it is more rebellious if she was considered a traitor -
Dicta
Meaningless words or statements made in a judicial opinion that are not essential to the decision of the case
Fifteenth Amendment (1870)
Military Reconstruction legislation mandated black suffrage in ten southern states as a condition of readmission to the Union in 1867, but violence, intimidation, and political change threatened massive black disenfranchisement in the South, and Republicans feared the loss of the slim electoral advantage they enjoyed in 1868. The fight for ratification followed party lines, in the lower North as well as the South. The Amendment probably represents the most limited,or modest, of the options proposed by "Radical" Republicans, who would have preferred an Amendment that was not repealable; that guaranteed officeholding by blacks; and that abolished all literacy, property, and nativity tests for suffrage
Presidential candidates
Must gain office according to rules land in article 2 modified by the 12th Qualifications: (1) natural born citizen (2) thirty-five or older (3) 14 year residency in US
1808-1828 political competition largely between two different Jeffersonian Factions
National Republicans and Old Republicans
Zenger Trial
New York libel case against John Peter Zenger. Established the principle that truthful statements about public officials could not be prosecuted as libel.
One element of the program sets a maximum amount of wheat the farmer may grow. The farmer grows more than that maximum. But knowing the rules of the program, he is careful not to sell any of the excess: he grinds some up for flour for his family, saves some for seed, and feeds some to his livestock. He's honest and forthcoming about all this when federal regulators check in with him as part of the program. can the U.S. government fine the farmer for exceeding the maximum amount of wheat he was allowed to grow?
No the government should not be allowed to fine the farmer because he cannot help if he grew more than the maximum and he respected the guideline by using the wheat for his family and did not profit off it. While the rules are necessary to protect price inflation, the farmer did not have malicious intent and will know to grow less wheat in the future - commerce clause The constitution's commerce clause was put in place as a farmers response to the constitution and should therefore respect the hardworking American farmer. They should not tax the farmer for his yield because he did not break the regulation by growing extra wheat for his family on his land.
Robert Dahl
Not focus on the constitution means but what the dominant coalition says it means - Generally, sometimes the court should overrule elected branches but its a problem when they do & politicians do not like it when judges go against them A political scientist who supports the pluralist theory of government
Trevett v. Weeden, 1786-1787
Occurred under the Articles of Confederation, when each state had a different type of currency. Acts passed by the Rhode Island Legislature imposed heavy fines on those who refused to accept the state's depreciated currency at face value. Weeden was acquitted on the grounds that the acts were unconstitutional.
Aspirationalism
Often referred to as purposive arguments interp the constitutional provisions in light of the fundamental principles of justice underlying the constitution interpret constitutional provisions in light of the fundamental principles of justice underlying the constitution - Change is necessary so identify core values
SC ruled that justices lacked jurisdiction to resolve Marburys claim because the case was improperly brought under the courts
Original jurisdiction- meaning the case began in that court rather than appellate jurisdiction- the case was appealed from another court
Functional connections
Particular rights are both intrinsic good and vital means for protecting other rights - Procedural rights enable persons to better secure other freedoms - colonists believed right to trial by jury helped guarantee free speech and property rights - you can speak by voting, some rights protect other rights Some rights help secure other rights
Political connections
Political parties, movements, and interest groups often champion a robust set of rights and lib Different rights are connected by politics - political groups, movements, and interest groups pursue a variety of rights policies - Fairness, Framers Idea, Federalism - To promote racial equality, the right to protect non-government buildings marry and desegregated edu
Some constitutional commentators believe American Constitution provisions, when properly interp protect
Positive rights
enumarated powers
Powers of the federal government that specifically addressed in the Constitution; for Congress, including the powers listed in Article I, Section 8, for example, to coin money and regulate its value and impose states.
14th Amendment section 4
Prohibited payment of any debt owed to the defunct Confederate States of America Banned any payment to former slaveholders as compensation for the loss of their human property. public debts incurred in the War shall be paid, but neither the U.S. nor any State shall pay Confederate debts nor pay "any claim for the loss of emancipation of any slave;" all such debts and claims "shall be held illegal and void
Abe Lincoln (Gettysburg address)
Protecting fundamental rights and liberties is a core concern of Amer constitutionalism - Trump was 1st post-New Deal president to not make freq references to the DoI in his addresses Who said "It is for us the living to be dedicated to the unfinished work"?
What were the ratification votes like, in key state conventions? Did it sail right through, or what?
Ratifying the constitution took some time due to debates that arose from the Federalists and Anti-federalists in different colonies at the time. In the chart on page 74 of GGW, it is clear that in states where the convention majority was Federalists, there was less debate about ratifying and states like New Jersey and Georgia had 100% support to ratify the constitution. This is probably because federalists supported the constitution and a stronger national government. The anti-federalists had a harder time accepting ratification, this is reflected in the final votes seen in anti-federalist states like New Hampshire and Maryland this was because they believed that our rights needed to be explicitly stated and that the national government should not hold too much power.
Structuralism
Rely on the general principles that best explain the structure of & relationships between government institutions
14th Amendment section 2
Repealed the three-fifths clause (Article I, Section 2, Clause 3) of the original Constitution All males over 21 can vote Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
SENATOR MATTHEW CARPENTER (Republican, Wisconsin)
Republican who had supported previous civil rights acts. His speech was typical of those Republicans who increasingly emphasized constitutional limitations on federal power to provide for persons of color. Significantly, whereas the Civil Rights Act of 1866 was debated entirely as a measure to implement the Thirteenth Amendment, the Civil Rights Act of 1875 was debated as a measure to implement the Fourteenth Amendment most participants in constitutional debates had abandoned previous broad interpretations of the Thirteenth Amendment, focusing instead on how broadly the Fourteenth Amendment should be interpreted. - This bill is intended to repress all manifestations of this prejudice, and to secure to the colored man the rights he ought to enjoy. If it could go upon the statute-book and accomplish a complete eradication of the deep and long-existing prejudice of the white race against social contact with the race in whose favor it is proposed, it would be a signal triumph of humanity. - certain persons shall be entitled to equal accommodations and facilities of public conveyance on land or water. This might be sustained as a regulation of commerce if confined to the commerce over which Congress possesses the power of regulation—commerce with foreign nations, among the several States, or with the Indian tribes. But the bill does not purport to be a regulation of the particular branches of commerce over which Congress has control. It applies to every person or corporation engaged in transportation from point to point within a State as well as to those engaged in transporting among the several States. !! It is manifest that the fourth clause [of the fourteenth amendment], that "no State shall deny to any person within its jurisdiction the equal protection of the laws," has no application to this subject, especially to the jury clause of this bill. It is equally evident that the third clause, "nor shall any State deprive any person of life, liberty, or property without due process of law" has no such application. This is evident from the fact that women and infants are citizens of the United States, and the fact that they are excluded from serving as jurors in every State in the Union, and the fact that no one pretends or claims that, in consequence of such ineligibility they are deprived or life, liberty, or property, or of the equal protection of the laws. no argument based upon the fourteenth amendment establishing the right to serve as a juror which does not also establish the right to serve in the Legislature and hold any State office. And this, in view of the fifteenth amendment, must be regarded as a perfect reductio ad absurdum. From this consideration which I have briefly stated, I am compelled to vote against the bill. . . . I am consoled, however, by the confidence that, if it should become a law, the judicial courts will intervene to vindicate the Constitution.
Civil Rights Act of 1875
Republicans had lost their majority in the House of Representatives in the November 1874 elections, the new majority would not be seated until March 1875. As a last-ditch effort to pass a civil rights act, Republicans scrapped the provision prohibiting school segregation and reworked certain procedural rules. As a result of this maneuvering the Civil Rights Act of 1875 became law in February. A law that required "full and equal" access to jury service and to transportation and public accommodations, irrespective of race.
Dartmouth College v. Woodward
Ruled that contracts clause protected rights granted by corpcharters ruled that contracts are legally binding
Commonwealth v. Dunlap
Search was unconstitutional and lottery tickets could be admitted into evidence even if search was unconstitutional - Courts determined wether trial judges were required to exclude illegal seized evidence
Judiciary Act of 1789
Set up entire Federal Court system In 1789 Congress passed this Act which created the federal-court system. The act managed to quiet popular apprehensions by establishing in each state a federal district court that operated according to local procedures. Courts interp the law only a trial court and inferior courts and congress can set up other courts NO federal courts Article III of the Constitution established a Supreme Court, but left to Congress the authority to create lower federal courts as needed.
Constitutional interpretations
Should/ought - how should we decide between what the constitution means, should districts have the same number of people
Supreme Court justices
Since 1789 appointed acc to the rules in Article 2 modified by the 12th 9 justices, lifetime appointment, nominated by the president,approved by the Senate
Hendrix
Slavery in the American South was a LEGAL RELATIONSHIP in which one person owns the labor of another
Senator T of Illinois
Slavery was all the laws that supported it - 13 2- Tremble argues empowers congress to do more than just follow but also create new laws bc they had been made free - empowers congress to make freedom meaningful
Somerset v Stewart
Somerset ruled that enslaved persons on English soil cannot be forcibly removed from the country to be sold anywhere else. While this will affect the laws regarding slavery in England, this will not affect us here in the colonies. The status of free blacks in Americas colonies (18 century) currently varies in each colony and should not be affected by Somerset. -Lord Mansfield resolved uncertainty of Black legal status in England . Slavery could only exist by Positive law. -parliment never made slavery legal in England - Status of free blacks in the US was ambiguous and varied by each colony However, colonists like you may fear that this ruling will undermine American slavery as abolition becomes a center of focus epically in the North.1772; Lord Mansfield held that Somerset, a slave, brought to England could not be enslaved in England -->says slavery is repugnant and not protected by common law --> since there is no law of the kind in England, there is no legal foundation for the protection of slave holders; made clear that promise of of liberty being extended would be best secured for slaves in England, not America
Fletcher v. Peck (1810)
State does not posses the power of revoking its own grants - disputes exists over wether constitutional decision makers may rely on natural law or the law of nations -showed judicial willingness to aggressively use the contracts classy to promote property rights and restrict state legislatures - Justice Johnson asserted his decision would be based on general principle on the reason and nature of things Established firmer protection for private property and asserted the right of the Supreme Court to invalidate state laws in conflict with the federal Constitution.
Lincoln first inaugural address
Stated that, "no state...can lawfully get out of the Union" but pledged there would be no war unless the South started it.
9th Amendment
States that Citizens entitled to rights not listed in the Constitution
Federalists believed that __________ was the best way to protect rights w/o BOR
Structuring institutions - Limited goverment as protector of rights
Jack Rakove: Original Meanings
Suggests the meditations abt popular govt tht we encounter when we read oars and original commentaries are more profound than those abt ordinary politics of democratic present
Harper v. Virginia State Board of Elections
Supreme Court held the use of poll taxes in state elections violates the 14th amendments equal protection clause Struck down poll taxes at the state level
Reconcile
Taking 2 things that may not seem related and explaining how they make sense (v.) to restore to friendship; to settle; to resign (oneself)
Barron v. Baltimore
The 1833 Supreme Court decision holding that the Bill of Rights restrained only the national government, not the states and cities. - The BOR did not apply directly against the states
Article 4 Section 2 Clause 1
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
15th Amendment Section 2
The Congress shall have power to enforce this article by appropriate legislation.
During the 19c constitutional liberties migrate in meaning
The Freedom Association was the most often understood as an Individual right :1st the right to combine w others for any lawful purpose, tht liberty is currently treated as a political right :the freedom of expressive association a right tht enacted persons to combine w others for the purpose of communicating messages to the general public
Barron v. Baltimore, 1833
The Supreme Court ruled that the due process clause of the Fifth Amendment did not apply to the actions of states. This decision limited the Bill of Rights to the actions of Congress alone. The guarantee in the 5th Amendment that private property shall not be taken "for public use, without just compensation" is not applicable to state governments as well as the federal government.
Judicial Supremacy
The court and only the court says what the constit means The courts have the supreme authority to determine the constitutionality of the actions of others including the President and Congress. This principle, known as JUDICIAL REVIEW, is derived from the Supreme Court interpretation of the constitution in the case of Marbury v. Madison in 1803. This principle is the most important check on the powers of the other branches of government.
Jeffersonian Era
The election was between Thomas Jefferson and Samuel Adams. The election was close, but because of the 3/5 clause the Federalists: Samuel Adams was given the advantage and because one vote was cast for Aaron Burr and one for Jefferson making the Federalists king of the House. As a result of this election THE TWELFTH AMENDMENT was created which gave each elector in the Electoral College one vote for president and one for vice president.
1866 Civil Rights Act
The first civil rights act in US history. It had little power. It was passed by congress over Johnson's veto. The Act stated all persons born in the US were citezens regardless of race. As citizens they could make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. A post-Civil War federal statute prohibiting race discrimination in connection with real and personal property transactions.
McDonald v. Chicago
The right of an individual to "keep and bear arms" protected by the 2nd Amendment is incorporated by the due process clause of the 14th Amendment and applies to the states.
15th Amendment Section one
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Constitutional Interpretation
The should Can follow any one of the is six approaches and is the way that people with constitutional authority interpret the law or meaning of the constitution. An example of constitutional interpretation could be a textualist resolving a controversy claiming that it rejects a certain line in the constitution such as stating that the farmer should not be taxed because of Section
Articles of Confederation
The written agreement defining the structure of the government from 1781 to 1788, under which the Union was a confederation of equal states, with no executive and limited powers, existing mainly to foster a common defense.
Constitutional decision making : actually
We explain what actually happens why?
January 6, Congressional Representatives and Senators inside the U.S. Capitol discussing the votes of the Electoral College believed they were fulfilling the Constitution's obligations and rules. Protesters outside the Capitol believed the people inside were threatening the Constitution. The protesters believed that they were the Constitution's true defenders, and they believed that so strongly that they stormed the building. What does this episode tell you about the Constitution, specifically?
What happened at the Capitol building on January 6 truly showed how broadly the US constitution has come to be interpreted. While most Americans see the attack on the Capitol as a violation of the constitution others who attended truly, or willingly, believe that they were upholding and protecting the constitution by being patriotic Americans. The Constitution can be interpreted very loosely or word-for-word by countless organizations, supporters, judges, and individuals. For example, people who attended the riot at the Capitol believe that Joe Biden's victory was "stolen" and Mike Pence should have rejected Biden's presidency.
what does it mean to say that many Federalists saw the Bill of Rights as merely "hortatory?"P. 77
When GGW states that many Federalists saw the Bill of Rights as merely "hortatory" they meant that it encourages the government to take action to protect powers whose protections were already implied and did not need to be enumerated. GGW explains that many Federalists supported the Bill of Rights because they did not the listed rights to have any effect on political decisions if kept broad. Thomas Jefferson was the only public figure who thought that the Bill of Rights should might prove to be a powerful tool for courts to limit government.
Kentucky and Virginia Resolutions
Written anonymously by Jefferson and Madison in response to the Alien and Sedition Acts, they declared that states could nullify federal laws that the states considered unconstitutional. Political declarations in favor of states' rights, written by Thomas Jefferson and James Madison, in opposition the the Alien and Sedition acts. Maintained that states could nullify federal legislation they regarded as unconstitutional
Positive law
Written legislature made law an actual law that exists
bill of attainder
a law that punishes a person accused of a crime without a trial or a fair hearing in court
attitudinal model
a theoretical model where judicial decisions are primarily determined by the policy goals and ideological agendas of judges - judges are individual policymakers
The place of Natural law and the law of nations in the American constitutional hierarchy is less clear
agreement: Constitutional provisions are a higher legal authority than natural law
Teachers Oath
allegiance to "support" the constitution and government of US and VT -
colonists understood equality
as having the same rights as subjects in Britain, the guarantee that the government cannot establish aristocracy where nobles are given special privileges at birth, and that governing officials should not give special favors to privileged citizens. In many ways, these values alone created a more equal society because in all other European countries during the 18th century ranks of nobility played a large role in everyday life and access to rights In England, people ranked in lower classes had very limited rights while in America there would be no " titles of nobility." (P. 56)
Judicial Review Lord Edward Coke
asserted in Bonhams case " The common law will control all acts of parliament & sometimes adjudge them to be utterly void Dr Bohams case established precedent foundations for English courts to declare unconstitutional parliamentary acts mandating the use of general warrants but the Judiciary did not listen , no British or colonial court ever declared unconstitutional a law colonists claimed violated their rights
Judges are sworn not to use the
attitudinal model
Enumeration was for
citizens as well as judges. Enumerating liberties would provide civic edu in fund principles
Nature of rights in American constitutional politics
constitutional rights and liberties have changed in the way that they are considered over time. Specifically, on page 5 the authors state, "Constitutional liberties often migrate over time from being considered as one kind of right to being considered as another. - "A single constitutional provision or specific constitutional clause may protect more than one kind of right. -different political coalitions may simultaneously fight for gun rights and against capital punishment to mobilize more supporters and because members participating make "principle connections" between gun rights and capitol punishment. - divergences between federal and state constitutional law regarding rights. The authors gave the example of how five years after the U.S Supreme Court ruled in Gregg V. Georgia that the "cruel and unusual punishment clause" did not prohibit capital punishment, the Supreme Judicial Court of Massachusetts ruled that capital punishment was inconsistent with the clause. This related to the idea that "Constitutional liberties often migrate over time from being considered as one kind of right to being considered as another." And showed how common these disputes are. -Disagreements between state and federal judges often reflects differences in political contexts which can explain why some states have laws banning capital punishment while others do not.
Thomas Jefferson gave the declaration of independence
declared to protecting freedom not world conquest
Naturalization Act
extended the waiting period for US citizenship from five to fourteen years and required foreigners to register within forty-eight hours of their arrival in the US. (In 1802, the less restrictive Naturalization Law reduced the waiting period to five years as long as "aliens" declared their intent to become citizens three years in advance.)
Rights in a constitutional republic
limited to all governing officials
Rights in a constitutional monarchy are
limited to the king
Individual political equality and procedural rights usually understood as
limits on goverment power
preamble
lists the primacy of the states , no state gets more than one vote legislative supremacy -canada can join if they want to lol
Communications Decency Act
made it illegal to make indecent sexual material on internet accessible to anyone 18 or under. It was unconstitutional because of the 1st amendment. Scared of of internet, unconstitutional joke, court struck down failed 1996 and 1999 laws to keep indecent content off the internet
Madison feared that
majority factions would redistribution property to repress religious...
Farming
no buy or sell used for his family it can be considered his own personal crop - General welfare protecting price stability means they can fine the farmer - Is the constitution where the answer is yes the same as the Constitution where the answer is no?
Jeffersonian Republicans
one of nations first political parties, led by Thomas Jeffrson and stemming from the anti-federalists, emerged around 1792, gradually became today's Democratic party. The Jeffersonian republicans were pro-French, liberal, and mostly made up of the middle class. They favored a weak central govt., and strong states's rights. absolute acquiescence in the decisions of the majority." Stemming from his deep optimism in human reason, Jefferson believed that the will of the people, expressed through elections, provided the most appropriate guidance for directing the republic's course.
Most major controversies in the ENE were settled in
outside of the federal court - Constitutional rights were increasingly seen as legal limitations on official powers that were enforceable in courts of law
Stuart v Laird
presented two constitutional questions raised by the repeal of the Judiciary Act of 1801. First, could Congress abolish the circuit courts created by the 1801 statute and thereby, in effect, deprive the judges appointed to them of their positions? Second, could Congress require justices of the Supreme Court to sit as circuit judges? Justice William Paterson's brief opinion answered both questions in the affirmative, basically allowing Congress to rearrange the judicial branch. - eliminated a Supreme Court seat and relieved justices of circuit court responsibilities. The act abolished the existing circuit courts and established six circuit courts with sixteen new circuit judgeships. Judicial Repeal of 1802 is constitutional because congress has the authority to create and destroy lower courts. "judges should not hold office during "good behavior" Both MvM and SvL - the court claimed new power in the same breath as it gave up powers by claiming authority to interp
Madison Hamilton and Washington believed different goverment institutions were needed to
protect liberty
Colonists looked more to juries than judges to
protect their fundamental rights - royal appt judges were instruments of royal power
5th Ammendment
protects against self-incrimination , cant be tried twice for same crime, private property cant be taken from you without just compensation, cant be deprived of life, liberty or property
The BOR and post civil war amendments
provide legal foundations for fundamental rights in the US - BOR was ratified but many federalists remained skeptics tht the "parchment barriers" provided adequate protections for rights
republicanism
referencing the identity of colonists who understood freedom as self-government. (p. 31) Leaders in republican thought included James Harrington who believed that the constitution grants all the opportunity to participate in the political process which determines what liberties are protected. - Active participation in self government makes you free In GGW the authors emphasize how these pathways for political thought lead to monumental realizations among the colonists such as the demand for, "no taxation without representation."
Liberalism
referring to people who believed that society was based on a social contract between the free persons in a state of nature and that the purpose of government, created by the contract, was to protect natural rights. (p. 31) - Individual rights are infringed upon Leaders in liberalism included John Locke who championed the idea that all people had a set of natural rights such as life liberty and happiness.
that the framers of the Fourteenth Amendment believed that
school segregation was unconstitutional.[1] He is correct to note that Summer and many other Republicans believed Congress had the power to desegregate schools under the Fourteenth Amendment. Nevertheless, Congress did not exercise that power in 1875, in part because other members of Congress did not interpret national power so broadly. Moreover, most Republicans during Reconstruction thought Congress was the institution primarily responsible for implementing the post-Civil Sar Amendments.
Obergefell v. Hodges (2015)
set debate on wether juducial decisions declaring laws unconstitutional are laws or politics - highlighted how American constitutionalism is shaped by historical and political context
slavery
set of legal disability's of a racial group 13 1 did and empowered congress DS does not bind anybody anymore
colonial politics during the 16 and 17c were
struggles for power between families rather than contests over political principles - parties united by policy commitments developed in England
National Republicans
supporters of a strong central government who favored road building and supported the Bank of the United States to shape the nation's economy; many were farmers or merchants They favored nationalistic measures like recharter of the Bank of the United States, high tariffs, and internal improvements at national expense. They were supported mainly by Northwesterners and were not very successful. They were conservatives alarmed by Jackson's radicalness; they joined with the Whigs in the 1830's
The constitution rarely mandates explicitly that goverment officials take specific actions
that enhance liberties
Section 2 of the 14th amendment gets rid of
the 3/5 clause problem it gives former legislators more power
Two crucial Supreme Court cases (Barron v. Baltimore,1833, and Dred Scott, 1857) together meant that the
the Bill of Rights did not limit actions by state and local governments (Barron), and that blacks were not national citizens under the Constitution and therefore not entitled to the rights and privileges it assured citizens (Dred Scott).
Parliamentary supremacy
the belief that the national legislator was legally and constitutionally free to decide whether to "maintain, modify, or abolish" the traditional rights of English citizens. This means that the parliament actually determines the individual rights of citizens. On the top of page 73, when GGW discuses that Americans believed that fair regular elections and fair criminal trials were equal to a free regime. This connects to the idea of parliamentary supremacy because Americans in the colonies believed that as long as they could choose who was representing them and had access to systems such as trial by jury, then the parliament had the power to make decisions about people's rights. GGW also echo's the ideas of parliamentary supremacy by explaining that even many of the framers believed that government authorities could restrict free speech or voting rights if it was best for the "common interest."
the Constitution does not expressly say
the constit says some things but implies others - the txt alone does not answer big questions for us - the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. It does require that Representatives be chosen and Senators be elected by "the People," and who comprises "the People" has been expanded by the aforementioned amendments several times. - It only lists reasons why you can't be denied the ability to vote — for example, because of race and sex. It also lists some basic requirements, such as being 18 or older. - does not mention political parties, yet they play an important role in U.S. government. One of the areas of fiercest competition among political parties is redistricting. ... Incumbents often draw the boundaries of their congressional districts to keep themselves in power.
National courts hear
the laws of the US
parliamentary supremacy
the national legislator was legally and constitutionally free to decide whether to "maintain, modify, or abolish" the traditional rights of English citizens. William Blackstone was a political commentator in the 18th century who insisted on parliamentary supremacy and saw the relationship between parliament and individual rights as the parliament being the ultimate source of authority and law as man-made. In the eyes of a parliamentary supremacist, rights are limits on the monarch rather than the legislature so individual rights that originated in the parliament are in the hands of the parliament to repeal and control.
Magna Carta
the royal charter of political rights given to rebellious English barons by King John in 1215
Central issue of Marbury v Madison
wether the justices could require the executive to deliver the commission NOT wether the justices had the par to declare laws unconstitutional
Many constitutional provisions protect more than one rights
what kinds of rights Americans understand a constit clause to protect changes overtime
The original constitution does not specify
who has the right to vote
State Constitutional decisions are only law
within the state where the decision wad made
Badge of slavery
you can't choose your Childs education even after free