Constitutional Law
Class 1
Introduction to the
Constitution
1
What’s a constitution?
“The fundamental and organic law of a
nation or state, establishing the
conception, character, and organization
of its government, as well as
prescribing the extent of its sovereign
power and the manner of its exercise.”
— Black’s Law Dictionary
2
Preamble of the Constitution
“We the people of the United States, in
order to . . . establish justice, insure
domestic tranquility, provide for the
common defense, promote the general
welfare, and secure the blessings of
liberty . . . do ordain and establish this
Constitution for the United States of
America.”
3
Timeline — Prequel to the
Constitution
 Dec. 1773 — Boston Tea Party
 Apr. 1775 — first battles of Revolutionary
War, at Lexington and Concord, MA
 July 4, 1776 — Declaration of Independence
adopted by Congress
 Nov. 15, 1777 — Articles of Confederation
adopted by Congress
 Mar. 1, 1781 — Articles of Confederation
ratified by states
(cont’d)
4
Timeline (cont’d)
 1783 — Revolutionary War ends with peace
treaty
 Sept. 1786 — Hamilton proposes a
convention in Philadelphia to revise the
Articles of Confederation
 May 1787 — Philadelphia Convention
commences work
 Sept. 17, 1787 — Convention concludes its
work with a proposed Constitution
(cont’d)
5
Timeline (cont’d)
 1787 - 88 — Federalist Papers
published
 June 21, 1788 — ninth state (NH)
ratifies the Constitution, making it
effective
 Sept. 1789 — Bill of Rights proposed
 Dec. 1791 — Bill of Rights ratified
6
“We the people . . .”
“In adopting [the Constitution], the Framers
envisioned a uniform national system, rejecting
the notion that the Nation was a collection of
States, and instead creating a direct link
between the National Government and
the people of the United States. . . .
(cont’d)
7
“We the people . . .” (cont’d)
“. . . [The] Congress of the United States,
therefore, is not a confederation of
nations in which separate sovereigns are
represented by appointed delegates, but is
instead a body composed of
representatives of the people.”
— U.S. Term Limits v. Thornton, 514 U.S. 779
(1995)
8
Virginia Plan
“Resolved [that] the National Legislature ought
to be impowered to enjoy the Legislative Rights
vested in Congress by the Confederation &
moreover to legislate in all cases to which
the separate States are incompetent, or in
which the harmony of the United States may be
interrupted by the exercise of individual
Legislation; . . .
(cont’d)
9
Virginia Plan (cont’d)
“. . . to negative all laws passed by the
several States, contravening in the opinion of
the National Legislature the articles of Union;
and to call forth the force of the Union agst.
any member of the Union failing to fulfill its
duty under the articles thereof.”
— Virginia Plan, Resolution 6 (presented May 29,
1787)
10
Separation of powers
Legislature
Judiciary
Executive
11
Checks and balances
Legislature
Executive
Judiciary
12
Federalism
Federal
government
State
governments
13
Three divisions of the
Constitution
1. The original text, adopted in 1787 and
ratified in 1788
2. The first ten amendments, aka the Bill of
Rights, which Congress passed in 1789 and
the states ratified in 1791
3. Amendments XI through XXVII, ratified
1798 - 1992
14
Article I – Legislative branch
 Structure of the legislative branch
Apportionment of Senators and
Representatives among the states
 Qualifications for holding office
 Roles of House and Senate in
impeachments
 Basic functioning of the two houses
 Role of Congress and president in making
law: President’s power to veto, Congress’s
power to override
(cont’d)

15
Article I — Powers of Congress
 Enumeration of Congress’s powers
(Art. I, sec. 8)


17 specific enumerated powers
1 catch-all: “necessary and proper”
16
Article I — Limitations on
federal legislative power
 Specific limitations on the federal
legislative power (Art. I, sec. 9):
 No prohibiting importation of slaves before
1808
 No suspension of habeas corpus
 No bills of attainder or ex post facto laws
 No granting titles of nobility
17
Article I — Limitations on
state legislative power
 Limitations on state legislative power
(Art. I, sec. 10)
States may not:
 Enter into treaties
 Issue their own money
 Pass bills of attainder or ex post facto
laws, or impair contracts
 Except with consent of Congress,
impose duties on imports or exports,
keep troops, or enter into an agreement
with another state
18
Article II – Executive branch
 Election of President and Vice
President, qualifications for office (Art.
II, sec. 1)
 Revised by 12th Amendment
 Successorship, in case of President’s
death or disability
 Revised by 25th Amendment
(cont’d)
19
Article II (cont’d)
 Powers of the President (Art. II, sec. 2)
 Commander in chief
 Entering treaties and making appointments,
with advice and consent of the Senate
 “take Care that the Laws be faithfully
executed” (Art. II, sec. 3)
 Grounds for impeachment of President,
VP, and other officials (Art. II, sec. 4)
20
Article III – Judicial branch
 Structure of the judicial branch
 Creates the Supreme Court, and
authorizes Congress to create lower courts
(Art. III, sec. 1)
 Establishes rules regarding judges: life
tenure, no reducing salary
 Describes the types of cases that courts
can hear and decide (Art. III, sec. 2)
(cont’d)
21
Article III (cont’d)
 Assigns the Supreme Court original and
appellate jurisdiction (Art. III, sec. 2)
 Defines the grounds for treason (Art. III,
sec. 3)
22
Article IV – Relations among
the states
Relations among the states:
 States must give “full faith and credit” to
judicial decisions and other official actions
of other states (Art. IV, sec. 1)
 States must extradite accused persons to
other states (Art. IV, sec. 2)
 Each state is guaranteed “a republican
form of government” (Art. IV, sec. 4)
23
Article V — Amendment of the
Constitution
Amending the Constitution
 Amendments proposed by Congress or
state conventions
 Ratification by ¾ of states
24
Article VI — Supremacy
 Supremacy:
 Constitution and federal law trump state
law
25
Bill of Rights
1st Amd. guarantees freedom of speech and
religion
4th Amd. limits the government’s authority to
conduct searches and seizures
5th Amd. has several important provisions:



No double jeopardy
Freedom from self-incrimination (“I plead the
Fifth” or “I decline to answer on the ground that it
might tend to incriminate me”)
No deprivation of “life, liberty, or property, without
due process of law”
(cont’d)
26
Bill of Rights (cont’d)
6th Amd. gives rights to criminal
defendants, including the right to
counsel
7th Amd. gives right to jury trial in certain
cases
8th Amd. forbids “cruel and unusual
punishments”
27
Reconstruction amendments
13th Amd. (1865) prohibits slavery
14th Amd. (1868)


Repeats the Due Process Clause of the 5th Amd.,
making it effective against the states
Prohibits states from denying “the equal protection
of the laws”
15th Amd. (1870)

Guarantees voting rights to everyone, regardless of
“race, color, or previous condition of servitude” —
but not gender or age
28
Other amendments
11th Amd. (1798) forbids most lawsuits by
individuals against states in federal court
12th Amd. (1804) changes how President and VP
are elected
18th Amd. (1919) prohibits the use of “intoxicating
liquors” within the U.S. (Prohibition)

Repealed 15 years later by the 21st Amd.
24th Amd. (1964) abolishes the poll tax
27th Amd. (1992) delays effect of congressional
pay raises
29
Hierarchy of sources of law
The people
(i.e., ¾ of the states)
U.S.
Constitution
Federal statutes
and common law
State constitutions
State statutes and common law
30
Federalist No. 10: factions
“faction” =
“a number of citizens, whether amounting to
a majority or minority of the whole, who
are united and actuated by some common
impulse of passion, or of interest, adverse to
the rights of other citizens, or to the
permanent and aggregate interests of the
community” [15]
31
We can’t count on wise governors
“It is vain to say that enlightened
statesmen will be able to adjust these
clashing interests, and render them all
subservient to the public good.
Enlightened statesmen will not always
be at the helm.” [16]
32
Madison’s cure for factions
Majority factions, which promote
their own interests at the expense
of the public good and the rights of
other citizens
Problem:

Solution:

A republican form of government,
instead of pure democracy
 A large, populous nation, instead
of a small one
33
Democracy
“Pure democracy”=
“a society consisting of a small number
of citizens, who assemble and
administer the government in person”
[16]
34
Madison’s view of pure
democracy
“[Pure democracies] have ever been
spectacles of turbulence and
contention; have ever been found
incompatible with personal security or
the rights of property; and have in
general been as short in their lives as
they have been violent in their deaths.”
[16-17]
35
Republicanism
“Republic” =
“a government in which the scheme of
representation takes place” [17]
36
The benefits of representation
The effect of introducing representation is
“to refine and enlarge the public views, by
passing them through the medium of a
chosen body of citizens, whose wisdom
may best discern the true interest of
their country, and whose patriotism and
love of justice will be least likely to sacrifice it
to temporary or partial considerations” [17]
37
Representation (cont’d)
Result of representative government:
“the public voice, pronounced by the
representatives of the people, will be
more consonant to the public good
than if pronounced by the people
themselves” [17]
38
Majorities will be drawn to
justice
“In the extended republic of the United
States, . . . a coalition of a majority of
the whole society could seldom take
place on any other principles than those
of justice and the general good . . . .”
[24]
39
Federalist No. 51: checks and
balances
“[T]he great security against a gradual
concentration of the several powers in
the same department, consists in giving
to those who administer each
department the necessary constitutional
means and personal motives to resist
encroachments of the others.” [22]
40
We’re not angels
“If men were angels, no government
would be necessary. If angels were to
govern men, neither external nor
internal controls on government would
be necessary.” [22]
41
Plato: we need to become
angels
“Until philosophers are kings, or the kings
and princes of this world have the spirit and
power of philosophy, and political greatness
and wisdom meet in one . . . cities will
never have rest from their evils — nor
the human race, as I believe — and then only
will this our State have a possibility of life and
behold the light of day.”
— Plato, Republic 473c - e
42