US Constitutional Law/The Constitution

History

The Articles of Confederation were flimsy at best in securing the desired amount of control between States and unified government. Throughout the years that the Articles of Confederation were in effect, the supreme level of government was debatably the States. The States had the control to not allow the Confederation's mandates to be acted upon, for instance, taxing was a recommendation from the Articles government. States didn't need to collect taxes for the Confederation if they wanted to and the economy suffered as a result. In New York, documents from New Jersey and other States were not accepted as valid, which created a large conflict on its own which could have potentially turned deadly. With all this being said, it was necessary for a group of delegates to come together and receive what they had created.

In 1787, a group of delegates gathered not to draft a new Constitution, but rather revise the Articles of Confederation. After some deliberation of what needed to change, the group thought of the idea to draft an entirely new document, which would be more powerful than the last. Not every delegate enjoyed entertaining this thought though. The Southern States were opposed to too much Government because of the fact that the proposed Congress was meant to be both based on population and equal representation, while the North appreciated a divided Congress, because smaller States in population would be able to have the same representation as a Virginia, (Very large state). This created the modern Congress system of 2 Senators from each state, and 435 Congressmen that are divided by region from each state.

It is important to know that the delegates thought of themselves as citizens of their state, not citizens of the Confederation of America.

Long story short, proposals were made to have Congress set up in ways of population compared to equal representation. The result was the Virginia plan, where a bicameral legislature was added. Presidential powers were debated, and a oath of office was added. One prevailing opinion which was very influential was one of James Madison, who in his Federalist papers, proposed a opinion that the branches of Government (Legislative, Executive, and Judcial) needed to be checked against each other in order to ensure that "tyranny of the Majority" would not create a tyrannical government which they claimed they had seen from Britain. James Madison was also a interesting figure in the fact he believed that the government should be out of the hands of the people. For that reason, only the House of Representatives and President were voted upon by the people. During that time, the Senate was voted and installed by the state legislatures until the 17th Amendment. With the idea of the power of government being out of the hands of the people, it would be much harder for one branch to become tyrannical.

During this time, factions formed. Though these were not parties just yet, the factions worked similarly in the way that ideologies formed. Many Northern delegates were Federalists, while many Southern delegates were Anti-Federalists. The reason for this was because Federalists promoted a stronger federal government while Anti-Federalists promoted State interests more.

A major point left out of debate were Women's rights, because of the idea that Women shouldn't be tainted with the dirtiness of politics. Slaves were brought up though, because in a house of population, they could be counted. If slaves in Southern States were counted as population, States like Virginia would be able to have a majority in the House of Representatives. Eventually the 3/5ths compromise was made, and for every slave, they were counted as 3/5ths of a person. For tax reasons, this would make a State like Virginia pay more taxes, but they would also have more voting power.

Congress and the Executive were placed at higher positions than the Judcial at the beginning. Congress could raise an army, Executive could command it, but Judcial had no was to enforce their laws, therefore in Andrew Jackson and Abraham Lincoln's presidency, laws and rulings were not followed. Judcial didn't even have the power to exercise Judcial review until a few years later, for that reason, some appointees to the Supreme court sometimes turned their recommendation down in order for their appointment at a lesser state Supreme court which was seen as more prestigious at that time. The Judcial power comes from Article 3 of the Constitution.

With the fear that the government would become too powerful, mostly lying with the Legislative, the 1st Article lists what the Legislative can do, but also what they cannot do. If the Legislative could only do what was listed in Article 1 § 8, they would be severely prohibited though. That is why there are enumerated powers, concurrent powers, implied powers, and reserve powers. We will discuss Reserve Powers in the Bill of Rights section below. Enumerated powers are those that are listed in Article 1 § 8, those include raising an army, taxing, and approving Executive nominees. Concurent are those shared by States and federal. Taxing is an example. Implied powers are those that are discussed in the elastic clause, "Necessary and proper", which have given laws such as declaring War, for which a president has 60 days to convince Congress to declare War. The Legislative could be the most powerful branch, because they control the law making, and they have a force to back them. This is particularly why they have strong checks and balances against them. These include Judcial Review, and the Executive's signature to enact a law.

The Executive branch is quite powerful as well, and their role is discussed in Article 2 of the Constitution. They controlled an army and could have War, (only was it in the 1970's that the 60 day declaration of War was put into place). The Executive can approve a law, or veto it to send it back to Congress for a 2/3rd vote, which is very difficult to achieve. They can issue Executive orders, which command their cabinet to change practices in government organizations such as the CDC or FBI. They send Congress a recommendation for a budget and hold a strong hold of foreign diplomacy. The Executive has its limitations though. When a new supreme court justice is appointed, the Senate must approve of the recommendation, this is true for the lesser Circuit courts of the US as well. The President can be impeached by the Congress and needs approval to ratify treaties. The founding fathers certainly did not expect to see the Executive branch become so powerful as it has today. Throughout times of War and blatant disregard for the law, the Executive has gained many powers that were not expected.

Now that the first 3 Articles have been discussed, we must move to the 4th, which is state and government relations. There are three major details that need to be discussed, Full faith and credit, extradition, and Privileges and immunities. Full faith and credit means federal documents are accepted everywhere, IE. Drivers License. Extradition means crimes committed by a person in one state shall be seen as crimes in another state, in this sense, if someone kills someone in Boston and is found in Houston, they shall be extradited to Boston for trial. Privileges and immunities means every person shall be treated with the same laws. If a man from Wisconsin goes to Montana, a Montana man shall be treated with the same laws and the Wisconsin man. The 4th Article also ensures States shall be protected from invasion. The 4th Article is important because it makes the States more connected than before. Instead of people thinking of themselves as New Yorkers, they started thinking of themselves as Americans, because the laws were treated the same everywhere and federal documents were applied everywhere.

The Fifth Article deals with the amending process. There is a 2 ways to propose ratification and 2 ways to approve it. To propose it, 2/3rds of both houses must approve it, or 2/3rds of state legislators in a national convention. The 2 ways to approve, 3/4th of state legislatures, or 3/4th of state delegates at national convention. The amending process is done mostly in one way and the way of the state convention has never been used because of how dangerous it could be. To open up the Constitution and be able to change anything would be extremely powerful, thus it has never been used.

Article Six deals with supremacy. The Article States that the law of the Federal US is supreme to States. It also establishes that no religious test shall be taken for people seeking office. This would be affirmed in the First Amendment Establishment clause which makes no national religion.

Article Seven deals with ratification. Ratification of the Constitution would by law need 9 out of the 13 States, which was not easily obtainable. In reality though, the Government needed 13/13 States to ratify, so that the Government could actually have control. With all the compromises made, many of the States joined without too much of a hiccup. A problem did arise when many southern States came together to state that in order of ratification, they needed to have 12 Amendments immediately passed. Eventually, the Federalists and Anti Federalists came together and agreed to ratify 10 of the twelve Amendments. These became the Bill of Rights, which will be discussed below. With 12 out of the 13 States ratifying the Constitution, the law had been set. There was only one state left, Rhode Island, which was semi forcefully made to sign the Constitution after they realized they had no other choice economically and politically. Though the Constitution had been ratified, there were still many problems left unsolved, such as slavery. The three Branches were not equal, the checks and balances were unstable and a War was to come along with economic problems with the French. The Constitution was not a final document to end all the problems, but it allowed the Government to take the necessary control and continue the American life.

Bill of Rights

The Bill of Rights consists of 10 Amendments to the Constitution which were ratified in order to ensure 13/13 of the states would approve of the Constitution.

Amendment 1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This means the US shall have no national religion, but allows for private citizens to have any religion they please. Free speech, with limitations on seditious, obscene, hate, etc. Free press, including prior restraint, (Government cannot prohibit news from publishing unless in a matter of utmost national security (NY Times v US)). Right to assemble, with limitation on hours, traffic control, application process. Petition to the government, IE. calling Senator and telling him what you think about a certain bill. This amendment has now moved to expression, IE. a Nazi has the right to practice their beliefs as long as it is not violent (National Socialist Party of America v. Village of Skokie (1973)).

Amendment 2:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This is the amendment which protects the right to bear arms. There is restrictions though. You cannot own a automatic weapon or a bump stock without proper licensing by the ATF.

Amendment 3:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Mostly a law to deal with the British troops quartering in your home. This is not common today.

Amendment 4:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Unlawful search and seizure not tolerated but if there is probable cause, it is allowable. Search warrant is needed to search a home without probable cause. One interesting thing about this is that if a authority uses a warrant to search for firearms in your home and finds cocaine instead, they need a additional warrant to seize that property. Learn more with (Mapp v Ohio).

Amendment 5:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is a loaded amendment. It includes imminent domain, where property given to the government must receive just compensation. It also includes no double jeopardy (meaning tried for the same crime twice) along with the right to remain silent to not incriminate yourself.