United States Law/Constitutional/Outline

Before we had a constitution in this country, we had the Articles of Confederation. They established a system of government where each state had more power than the central government. What the states did to support the central government was voluntary.

The Constitution replaced the Articles of Confederation and established a much more powerful central government that could make the states does certain things, for example, to Raise and support armies. The Constitution did leave the States some power such as the power to provide for the health, safety and welfare of its citizens which is the main reason that most criminal laws are state laws. It is also the reason most domestic and criminal laws are state laws, and why each state has its educational system.

When the constitution was established, there was still a fear of a strong central government because of what had happened with England. The United States Constitution is the oldest working constitution in the world. One of the reasons why it still works is that the words in it are not specific which lets it be reinterpreted by the courts to change with the times. For example, the Constitution did not provide that a person charged with a crime had a right to counsel before the 1950’s this meant that if you could afford a Lawyer you could have one. Then the Supreme Court reinterpreted what the words said. When it held that if a person that has been charged with a crime and is too poor to afford a Lawyer the government will provide one for him.

Although the writers of the constitution realized that they had to limit the power of the central government they thought the best way to do this was to divide the power into different pots. So that one branch of government didn’t have too much power. Another way they limited power was to provide ways that one group could check up on another. This whole concept is called checks and balances.

Three pots the power is divided into

1. Congress
2. President
3. Courts
4. States

Article I

Congress

Gives Congress the power to enact statutes, Congress can override the president's vote if 2/3 of both House vote for the bill. The Senate must confirm the presidents’ appointments.

Congress holds the pocket book to provide the financial support for these troops. They have the power “to raise and support armies.” and the power of impeachment -to include certain government officials including the President. The House of Representatives decides whether to charge formally a government official and the Senate holds the trial. If the official is convicted, he is removed from office.

Two big parts of article

1. The power to regulate interstate commerce.
2. Congress can do anything necessary and proper to carry out its powers.

Requirements to run for the senate and house of reps Senate:

• Shall choose other officers
• Must be at least 30 yrs old
• Must have nine yrs of citizenship in the USA
• Must be a resident of the state they are running in
• Two from each state make up Congress
• 100 members in Congress

House of Representatives

• Enacts laws
• 435 members this is based on population
• Prints money
• Build post offices
• Bankruptcy
• Tax and pay taxes

Interstate- between states Intrastate- within a state

Power to regulate interstate commerce among the states is used by Congress and the courts to expand significantly the power of the federal government. This clause was originally intended to regulate trade between the states and over the years, it has been interpreted to mean that Congress can pass laws affecting interstate commerce. If goods go from one state to another, it can be regulated by the federal government. For example, the Supreme Court said if a person grows vegetables in their garden and eats them then the vegetable can still be regulated by Congress. If the crop does not travel between states, the fact that the farmer’s growing and eating their vegetables means that they are not consuming vegetables produced by others that did travel between the States. Therefore, less is purchased from the farmers, and this affects interstate commerce and gives the Supreme Court jurisdiction over such cases.

Article 1 Section 8

• Lists the powers of Congress
• Necessary and proper clause make all laws that are necessary and proper for carrying into execution of preceding powers means = we can make all laws that are necessary and proper to carry out all of those listed powers.
• Power to regulate interstate commerce. The necessary and proper clause used more than any other clause to expand the power of government.

Once the US Supreme Court has decided that the law meets the requirements of the Constitution the only thing left to do is would be to amend the constitution and the constitution has only been amended 28 times in 200 years.

Article 1 Section 9

• Puts restriction on Congress

1. Writ of habeas corpus. Courts often call it the great writ. It challenges the lawfulness of confinement is a way that a person who is in prison or held in any way may challenge whether it’s lawful. A person can’t be confined unless there is probable cause that they have committed a crime or it they are legally insane.
   1. Prisoners who are convicted of crimes can file motions for writs of habeas corpus very frequently asking the court to order the custodian of the prison to bring him into court and show the Judge that his confinement is lawful. The writ of habeas corpus is considered to be one of the foundations of our democracy. If we didn’t have writ, the police could take you into custody without any reason and confine you indefinably. The only time the writ can be suspended is in a time of war by Congress. The last time that this happened was during WWII after the Japanese invaded Pearl Harbor. They then passed a law that all people with Japanese ancestors, could be confined in camps, even if the individual was born in the USA. They were given a certain amount of days to get their affairs in order and then sent off to the camps instill the end of the war. They lost their businesses & homes because they couldn’t work. They were placed into camps because of the fear that they would be more loyal to Japan and become spies.

1. No Ex-post facto laws. The government can't make an act a crime after the act was committed. Nor can they increase the punishment for a crime after the act was committed.

1. Can’t pass bills of attainder. A law that would allow punishment of a person for an offense without a trial.

Article II- Presidents

The President may vote a proposed law (bill) sent to him by Congress. The chief executive has the job to carry out the laws that Congress has passed. The president can appoint ambassadors to foreign countries and appoint federal Judges (even the Supreme Court).

As commander in chief - this means that he is the leader of the military and can send troops all over the world, he can do this without Congress formally declaring war. If Congress doesn’t like where troops are sent, they have the power to raise and support armies.

===== Article II Section II =====

The President can grant reprieves and pardons to people convicted of federal crimes, not state crimes. The last known time of this occurrence was right after Nixon resigned. His Vice President Gerald Ford became President, and he pardoned Nixon for any crimes he had committed with relation to Watergate.

Article III-Courts

This article created the Supreme Court, which is the 3rd branch of government. Because the Constitution establishes the article, neither Congress nor the president can distort it. Once a bill becomes law the courts have the power to interpret the words, or strike the law down.

Article IV- States

Whatever power isn’t given to the central government are reserved to the states. States have the authority to provide for the health, safety and welfare of all of their citizens, the reason most criminal and domestic laws are State laws.

Full Faith and Credit Clause

Only applies to civil judgments of every other State.

• Ex. Divorce in NY and you moved to North Carolina. North Carolina must recognize the divorce.
• Ex. A Civil money judgment in one state you can send that decision to the state court of the state where the defendant is living and they are supposed to help you collect the judgment.

Extradition applies only in felony criminal cases. It is the process by which a fleeing felon is returned to the state from which he fled, in a felony crime, the maximum is over two years. The governor of one state must request the return of the felon from the other state (Between governors) the governor of the asylum state (where he fled to) has the choice to send the person back or not.

Article V

This article talks about amending the constitution and is the main reason the Constitution has only been amended 27 times in over 200 years. The words in the constitution are so vague the courts can reinterpret what they mean to change with the times. (Judicial review - power of the court to judge a law by the requirements of the Constitution) It is so hard to get thru the process.

For proposal of an Amendment to pass it must have a majority vote by both houses.

Most Common Way to Amend an Article is a proposal in which 2/3 of both House of Congress vote for the amendment. Last time Congress proposed an amendment was with the ERA= equal rights amendment and allowed Women will have equal rights to men. The amendment got through the proposal stage and was then sent to the state legislatures for them to vote on it.

To allow ratification- ¾ of state legislatures vote to approve an amendment. Rather than formally amending the Constitution it has been changed over the years by how the words in it are interpreted.

Article VI-

Supremacy Clause. If there is ever a conflict between a state law and federal law, the federal law will win.

Article VII-

Explains how the states would use procedures to use the constitution.

AMENDMENTS

The 1st ten amendments are called the Bill of Rights, and they were added to the Constitution shortly after it was written for the final approval of the constitution. The Reason they are called the bill of rights is that they protected the individual from the power of the government. The dividing the power between the different branches of the government and the system of checks and balances that were established in the body of the constitution (the 1st six articles) weren’t enough protection for the individual. We needed something affirmative.

1st Amendment

Freedom of religion. This amendment is the basis of a democratic society and grants the right to believe anything you want to religiously. It allows a right to express your beliefs. As far as exercising the right to religion it can't be limited unless it threatens the safety of others. The amendment defines the separation of church and state and says that our government can’t have a state religion even though most countries have a specified religion.

4th Amendment

Protects Individuals against unreasonable search and seizure and keeps law enforcement from being too enthusiastic about fighting crime by putting a natural party between the person and the police. Who with a cool head can decide is there proof that more likely then not evidence of a particular crime is in a given place.

With most searches, the search can’t be made without an independent official deciding that there is probable cause that evidence of a crime is in a particular place. A search warrant must specifically describe the place to be searched and the items to be seized.

5th Amendment

The privilege against self-incrimination. A person can't be forced our government to give information against himself that would lead to his being charged with or convicted of a crime. This rule applies to what the individual knows in his head. Such as where the dead body is, were stolen merchandise. It doesn’t apply to physical characteristics such as fingerprints.

6th Amendment

The right to Counsel. Provides that a person has a right to an attorney when charged with a crime that will, in fact, result in incarceration if he is convicted. Also provides that a person accused of an criminal offence has the right to confront witnesses against him.

Indigent - Too poor to afford a lawyer

8th Amendment

Provides against cruel and unusual punishment and excessive bail. Bail is designed only to ensure that a person will show up for trial. It can not be more than is reasonably necessary to ensure the person will appear for trial.

10th Amendment

The powers not given to the federal government in the Constitution are reserved to the states. When the 1st ten amendments were added to the constitution, they only protected the individual against the power of the federal government. They didn’t protect against the state government. The reason for this was that the people were more afraid of the federal government and not the state. As the years passed, it became apparent that the states were worse than the federal government in not protecting people's rights.

So after the civil war, the following amendments were added the 13th, 14th, 15th.

13th Amendment

Abolishes Slavery

14th Amendment

No state shall deprive any person of life, liberty or property without due process of law. Used to make some of the rights in the bill of rights apply to the states. The courts have decided due process to mean “fundamental fairness in judicial procedures.”

15th Amendment

A person can’t be denied the right to vote because of race.

After the 13th, 14th, and 15th were passed people lost interest in protecting the citizens. It was in this period (1850-1900) that we had the rise of big business. The theory was that the government should keep its hands off business. It wasn't until the 1920’s that the 1st right of the Bill of Rights was applied to the states.