INTRODUCTION AND OVERVIEW

Transcription

1 Constitutional Law I Prof. Manheim Fall, 2004 INTRODUCTION AND OVERVIEW Welcome to Constitutional Law. Needless to say, this is the course you ve been waiting for free speech, abortion rights, racial equality, and all the other topics that make America s political culture so dynamic and interesting. Well, you ll have to wait a little longer, since we won t cover any of them in this course. That s ok because the field of individual rights has been supplanted in popular interest by the topics we will cover this semester war and national security, presidential power, states rights, and the power of federal courts. These are the really sexy and important issues in constitutional law. As Alexander Hamilton stated in Federalist No. 1 (1787): To the People of the State of New York: After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. Accordingly, the existence of the Union and the safety and welfare of its citizens are the focal points of this first course in Constitutional Law. We will concentrate on three basic areas: (1) the role of the Supreme Court ("judicial review"); (2) the structure of the federal government ("separation of powers"); and (3) the relationship of the federal and state governments ("federalism"). These three major themes permeate all of constitutional law. Various topics in individual rights are covered in Constitutional Law II, which you will take next spring. Many law students have taken undergraduate courses in Constitutional Law, or have a background in American history, government, or political institutions. However, since the workings of the federal government are core areas of concern in this course, we will explore the basic structure of government in some detail. I apologize in advance to any students who may find these foundational materials repetitive. What is Constitutional Law The question is easily stated; not so easily answered. Briefly (but incompletely), the Constitution of the United States of America is the basic foundational document which both describes and limits government power in this country. All official actions, at any level of government (federal, state, local), and by any branch of government (legislative, executive, judicial) must comply with the constitution. When an action conflicts with the constitution, it is said to be "unconstitutional" and invalid. Con Law I / Manheim 1 Fall, 2004

2 There are several problems and uncertainties inherent in the statement just made. First, who determines whether an official action "conflicts" with the constitution? Who interprets it? In the first case we will read, Marbury v. Madison, the Supreme Court declared that it had this task and power. Modern Americans accept this as valid. But two centuries ago, when the constitution was written and debated, the Supreme Court's power was so not commonly understood. Indeed, there is nothing in the constitution itself, or in any other foundational document, which gives the Supreme Court the ultimate power to interpret and enforce the constitution. Second, how does the Supreme Court interpret the constitution? As you read the text of the constitution, you will find it filled with ambiguities and uncertainties. What does "equal protection of the laws" mean? Or "due process" or "commerce"? Unfortunately, the constitution did not come supplied with a glossary or list of definitions; they must be supplied. We now know who supplies them (the Supreme Court). But, where do they look for definitions? This is known as the problem of "interpretivism"--how should the constitution be interpreted? Third, when does the Supreme Court interpret the constitution? In some states, the courts of that state work hand-in-hand with other government branches in writing laws. For instance, the Massachusetts Legislature can ask that state's highest court (the Supreme Judicial Court) for "advice" on pending legislation. In contrast, the United States Supreme Court cannot give "advice." It can only decide "cases" and "controversies;" i.e., those legal issues which have already resulted in actual disputes between people who are directly affected. These are some of the major issues addressed in this course. We will encounter other problems along the way, such as what is the effect of the Supreme Court declaring a law to be unconstitutional? But in all areas, please keep in mind the three basic themes of this course: "judicial review," "separation of powers," and "federalism." Since the basic purpose of the constitution was to create a federal government and its 3 branches (including the judicial branch), and to mediate federal interaction with the states, most problems of constitutional law can be seen as manifestations of these themes. The Relevance of History There have been more than two centuries of American constitutional law. Indeed, constitutional "legal" issues emerged even before the Constitution was ratified in During this time, the nation has undergone several revolutions (both military and economic) and social upheavals of major proportion. These historical events have had profound effects on the development of constitutional law. It is impossible to have a full understanding of constitutional law without a frame of reference which includes the historical period in which cases were decided. For instance, during the Civil War, both President Lincoln and the Congress ignored the constitution on several occasions (e.g., the "Emancipation Proclamation," seizure of southern ships, elimination of Supreme Court jurisdiction). Are these acts, or the decisions which uphold them, valid precedent Con Law I / Manheim 2 Fall, 2004

3 for other times? Or do these cases make sense only in the historical context in which they were decided? Periodically throughout the course, I will provide a historical context for cases we read. If you would like to learn more about American history, I will be happy to provide you with supplemental materials. But you will not be required to know anything beyond what is assigned or discussed in class. With that said, the rest of this handout concerns the drafting of the constitution, including relevant historical factors. It is necessarily brief and merely an overview. The Making Of The Constitution We often think of July 4, 1776 as the starting point for the United States of America. But there are other competitors for that honor. First of all, the Declaration of Independence was signed on July 2, not July 4 (it was postdated). More importantly, by then we already had a Congress (the "Continental Congress"), we were well into our "War of Independence" (which began in April, 1775 and formally declared in July, ), we already had thirteen well-established state governments, and we had a long and rich history of "constitutional law," both in the American states and in Britain. The so-called British "constitution" is unlike ours, in that it does not consist of a single document called a constitution. But, what it does consist of, including the Magna Carta (1215), the Petition of Rights (1628), the Bill of Rights (1689), and various lesserknown documents, were instrumental in spawning not only our Revolution, but also the political theory embodied in the several state constitutions (such as the Virginia Declaration of Rights) and ultimately in the United States Constitution. In June, 1776, the Second Continental Congress appointed two committees. The first was to draft a "Declaration of Independence" which, when ready, would be presented to King George in much the same manner as the "Declaration and Resolves of the First Continental Congress" was done in 1774, and the Declaration of Causes in The committee consisted of Thomas Jefferson, Benjamin Franklin, John Adams, Robert Livingston, and Roger Sherman. The second committee was appointed to draft a constitution for the government of the United States of America. Both committees reported back to the Congress in July The Declaration of Independence passed quickly, but the draft constitution, entitled the "Articles of Confederation," took longer to debate. It wasn t approved by Congress until November, 1777, at which time it was submitted to the thirteen states for ratification. Ratification was delayed while some of the states worked out conflicts amongst themselves, such as land claims. The Articles were finally approved on March 1, The Declaration of the Causes and Necessity of Taking Up Arms (July 6, 1775) was viewed by King George III as the ultimate break from the Crown. See A Proclamation, by The King, for Suppressing Rebellion and Sedition (Aug. 23, 1775). Con Law I / Manheim 3 Fall, 2004

4 Pres. John Hanson The following day, March 2, 1781, the Second Continental Congress adjourned for the last time. It then assumed a new name: "The United States, in Congress Assembled." The President of the old Congress, Samuel Huntington of Connecticut, continued in office. Huntington could be considered as the first "President of the United States." But he was not the first to be elected to that post, nor the first to assume that title. That honor goes to John Hanson, delegate from Maryland. In 1781, Hanson was unanimously elected (by congress) as President of The United States in Congress Assembled." 2 The Articles of Confederation was our nation's first constitution. It remained in effect for nearly 8 years. The Articles provided for a "congress of states," each with a single vote; no executive, and no judiciary, save for a trifling few federal courts to try piracy and felony on the high seas. Yet, during this time, we continued to fight and eventually win the revolutionary war. (The war effort was directed by the Congress.) We also signed a peace treaty with England known as the Treaty of Paris in This is when the United States of America became a sovereign nation. Other major events under the Articles of Confederation included the Northwest Ordinance in This established a regime for all territories west and north of the Ohio river. The best modern analogy to the Articles of Confederation is the present day European Union. In both cases, the separate states or nations each retained their own sovereignty, their own armies, their own money, their own laws. But, just as the nations of Europe are now coalescing into a single power, with a uniform currency--the Euro, a European Parliament at Strasbourg, a supreme court the European Court of Human Rights, a joint military command, and so on, the 13 states of the U.S. found it necessary to strengthen their ties and to create a stronger central government. 3 2 Some see Hanson as the true father of our country, having saved the revolution through his support of General Washington. See Some of Hanson s acts endure to this day. He established the Great Seal of the United States, the Treasury, War and State Departments, and proclaimed the fourth Thursday of November as Thanksgiving Day. There were 6 other U.S. presidents under the Articles of Confederation. 3 There is one major difference between the 13 original states under the Articles and the Nations of the European Union. The individual states were never actually sovereign, even though they thought of themselves as such. The colonies did not attain that status until the Treaty of Paris, when sovereignty passed directly from the Crown to "the United States of America in Congress Assembled," a single unified entity. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936) ("As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America"); Penhallow v. Doane, 3 Dall. 54, 80, 81, 1 L.Ed. 507, Fed.Cas. No (1795) ("When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union"). Still, the 13 states had some measure of "demisovereignty," and often acted as if they were fully autonomous nations. The status of the indi- Con Law I / Manheim 4 Fall, 2004

5 Thomas Jefferson said of the Articles: "with all [its] imperfections... it is without comparison the best [gov't] existing or that ever did exist." Yet, the form of government created by the Articles may best be considered an experiment, an attempt to solve the problems of a confederated republic. Its defects became apparent. Congress was without authority except as had first been granted by the Crown, and then later delegated by the legislatures of the 13 states. Article 1. Article 2. The style of this confederacy shall be "The United States of America." Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. The Articles gave insufficient authority to the Congress and the central government. Congress had difficulty raising taxes to pay for the war; it was not respected by the community of nations; it could not enforce its treaties (defects in the Treaty of Paris were not corrected until the Jay Treaty of 1794); and it could not protect American interests abroad. Great Britain won through its dominion of the seas that which it had lost at Lexington and Concord. Congress tried amending the Articles, first to allow a uniform levy on imports to sustain the national government, and second to assess the states sufficient monies for the maintenance of the Congress. Rhode Island rejected the first, New York the Second; and since unanimous consent of all states was necessary to amend the Articles, these proposals failed. Meanwhile, trade wars raged amongst the states. As Madison stated: "Some of the states having no convenient ports for foreign commerce, are subject to be taxed by their neighbors, through whose ports their commerce is carried on. New Jersey, placed between Philadelphia and New York, is likened to a cask tapped at both ends; and North Carolina, between Virginia and S.Car. to a patient bleeding at both arms." James Madison The Articles of Confederation provided no remedy for its own defects. It was evident that amendments, if presented in the ordinary way, were not likely to succeed. In vidual states was a major legal issue during the ratification debates and remains one today. It is perhaps the most important "constitutional" issue in our history. Con Law I / Manheim 5 Fall, 2004

6 September, 1786, five states assembled in Annapolis "to take into consideration the trade of the United States." Four other states appointed delegates but the individuals "had not hastened their attendance and had not arrived by adjournment." Without a quorum, the Annapolis Convention could not accomplish anything but recommend that another convention convene in Philadelphia the following year. The Annapolis convention reported back to the State legislatures enumerating: "important defects in the System of the Federal Government... of a nature so serious as... to render the situation of the United States delicate and critical, calling for an exertion of the united Virtues and Wisdom of all the members of the Confederacy." The Constitutional Convention On February 21, 1787, Congress Resolved as follows: Whereas, there is provision in the Articles of Confederation and perpetual Union, for making alterations therein... And whereas experience hath evinced, that there are defects in the present Confederation, as a mean to remedy which, several of the States... have suggested a convention for the purposes expressed in the following resolution. Resolved, That in the opinion of Congress, it is expedient, that on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union. [emphasis supplied] Each of the States responded, except for Rhode Island. Fifty-five delegates met as "a convention" in Philadelphia's Old State House to amend the Articles. According to historian Max Farrand, the delegates were "professional men, business men, and gentlemen of leisure; patriotic statesmen and clever, scheming politicians; some trained by experience and study for the task before them, and others utterly unfit." Patrick Henry, was appointed but declined to serve, stating only "I smelt a Rat." General George Washington was appointed "President of the Convention." General Washington Con Law I / Manheim 6 Fall, 2004

7 The document that emerged from the convention was born of original sin. The delegates violated their authority in 3 important respects: 1st, they did not propose amendments to the Articles, as had been their sole charge. 2d, they did not report the new document back to the States, as was their duty. Rather, they called for ratification by the people, not by the states. 3d, ratification was by 9 states, rather than unanimously as required by the Articles. 4 One of the delegates who refused to sign stated his reason: "As I enter the door of this document, I stumble at the threshold, for it states `We the People,' rather than `We the States.'" This reflects the refusal of the delegates (sometimes called the "framers") to submit the draft constitution directly to the States for approval. The reason was clear. The constitution transferred much important power from the states to the federal government. It would not have been approved had the delegates responded to their original charge. Indeed, it was almost not approved by the people. The convention itself was intensely political, and threatened to generate into raw political struggle. But the President of the Convention, George Washington, kept the peace. Nonetheless, when the proposed constitution emerged and was revealed to the public for the first time in the fall of 1787, there were savage and divisive political debates. The first state to vote on it, North Carolina, voted against ratification. It barely passed in key states such as Virginia, New York and Massachusetts. Ratification of the Constitution Two political factions emerged during the constitutional debates (from fall 1787 through 1788) the "Federalists" and the "Anti-federalists." These were not political "parties" in the modern sense, but coalitions with common sentiments. The Federalists are better known to us, because they won the constitution was ratified. But the Antifederalists included prominent men, including George Mason and Patrick Henry. The most well-known and longest raging debate occurred in New York City newspapers. New York was an Antifederalist stronghold, and it appeared the constitution would be defeated there. Constitutional proponents Alexander Hamilton, John Jay, and James Madison, wrote a series of propaganda pieces under the pseudonym "Publius." These are referred to as the "Federalist Papers," or simply the "Federalist." The Federalist Papers came too late to make a difference. By the time New York ratified the constitution, it was already in effect; nine states having previously approved it. Still, as the sentiments and arguments of influential proponents, the Federalist Papers help us understand the intent of the framers. 4 As we all know, the sin ran far deeper than that; the convention sanctioned slavery. Worse yet, the draft constitution prohibited its own amendment in this particular area for 21 years. Con Law I / Manheim 7 Fall, 2004

8 Several state ratifying conventions were concerned over the constitution s lack of a Bill of Rights. Many states had one in theirs. Even the hated British government abided a Bill of Rights. The Federalists countered that none was necessary in "a limited constitution." Since the constitution gave only limited, "enumerated" powers to the federal government, the government would not have the power in the first place to trample on individual rights. For instance, why bother to declare the "freedom of the press," if Congress did not have the power to regulate the press in any case? 5 The Antifederalists were unconvinced. The leading Antifederalist tract, "Letters from a Federal Farmer," stated: "These [individual] rights are not necessarily reserved, they are established or enjoyed but in few countries: they are stipulated rights, almost peculiar to British and American laws." The people had effectively secured these rights "by long custom, by magna charta, bills of rights &c." Patrick Henry declared: "If you intend to reserve your inalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights." The Federalists relented and promised that the first Congress would propose a Bill of Rights. The constitution was ratified on that condition. In accordance with Article V, the first Congress did propose twelve amendments, constituting a Bill of Rights, ten of which were ratified in The constitution has been amended 17 more times since then. In all respects, it is an organic, evolving document--it is not yet finished. Structure of the Constitution The delegates to the Philadelphia convention were influenced by Montesquieu's theory of divided government, with the powers of law making, law executing, and law interpretation separated amongst three distinctly constituted departments or branches, respectively: the national legislature or Congress, the executive, and lastly the judiciary. 7 But much compromise went on over which branch got which power. 5 For example, James Wilson, a Convention delegate, defended the Constitution in a speech in the Pennsylvania State House Yard on October 6, Wilson distinguished the new federal government from the state governments, arguing that a bill of rights was unnecessary. He explained that under state constitutions, "everything which is not reserved is given." Under the federal Constitution, "the reverse of the proposition prevails, and everything which is not given, is reserved." 6 The original second amendment, relating to Congressional pay increases, was finally ratified in 1992, two hundred and three years after it was submitted to the states. Some state ratifying conventions demanded additional amendments, such as one which would give states absolute control over federal elections. But these were never adopted by congress or submitted to the states for ratification. 7 Charles Louis de Secondat, Baron de la Brede et de Montesquieu ( ), was a French political philosopher, historian, and jurist who is best known today for The Spirit of the Laws (1748) which was greatly influenced by John Locke. Its thesis was that the powers of government ought to be separated in order to ensure individual freedom. Con Law I / Manheim 8 Fall, 2004

9 For instance, the delegates chose to give Congress the power to declare war, rather than the president, because the executive would be too prone to use it. In early drafts, the Senate was to appoint members of the Supreme Court. But the delegates thought the Senate too powerful, and in the last days of the convention, the power of judicial appointment was transferred to the executive. You should scan the constitution and get a feel for its structure. Whatever else may be said about the document, it is at least well organized. Article I. Article II. Article III. Article IV. Article V. Article VI. Article VII. Amendments Powers of the Congress Powers of the President (executive) Powers of the Judiciary Inter-State relations Amendment Continuity and Supremacy Ratification Individual Rights As stated at the top of this handout, this course (Constitutional Law I) is mostly concerned with 3 doctrines: judicial review, federalism, and separation of powers. We will study them in that order. Thus, we first look at Article III, relating to the powers of the Supreme Court and "inferior" federal courts. Next, we examine the powers of Congress (Article I) and the reserved powers of the states (Articles IV and VI). Finally, we study the relationship of the "co-equal" federal branches, principally the power struggle between Congress and the President (Articles I and II). The Amendments will be taken up next spring in Constitutional Law II. You should look at the text of the Constitution often, particularly when encountering a new topic or section. There is no substitute for the actual words written there. Since this is a course in "constitutional law," our analysis always begins, and often ends, with an examination of the constitution itself. More information about the course, assignments, materials, grading, can be found on the class web site: This is the official repository for announcements, rules and everything else you need to know. Please consult it often. Con Law I / Manheim 9 Fall, 2004

10 Washington Presiding at Convention Con Law I / Manheim 10 Fall, 2004