Basics

What is the function of the Constitution? Creates a national government and divides power amongst the three branches o Article I legislative power vested in Congress o Article II executive power vested in POTUS o Article III judicial power vested in SCOTUS and inferior courts created by Congress o Checks and Balances Usually two branches are necessary for the government to act Adopting a law Congressional passage + POTUS signature/veto Enforcing a law Executive prosecution + judicial conviction Division of power between Federal and State governments o Federalism vertical division of authority 10th amendment Article VI of Constitution supremacy clause Protection of individual liberty o Bill of Rights Initially applied only to federal government Almost entirety has been selectively incorporated since o Protected slavery for many years o These protections apply only to the government Only 13th amendment directly protects individuals from private conduct

Why have a Constitution? Difficult to change o Protect rights of minority from oppression by a tyrannical social majority o An attempt by society to limit itself to protect the values it most cherishes o Unifying device, increasing legitimacy of government and its actions How should the constitution be viewed? o Intentionally anti-majoritarian document o Has it succeeded in restraining the majority and protecting rights of minorities, especially in times of crisis? o Protecting long-term values from short-term passions means interpretation is a big deal

History Declaration of Independence o No binding legal authority o Its rhetoric and criticisms of British rule framed the protections of the Constitution Articles of Confederation o Very weak national government retained sovereignty of State governments

No judiciary or executive branches No method of ensuring States would comply with laws enacted by legislature o Legislature in form of Confederation Congress Mixed authority Power to wage war, coin money, establish post office, deal with Indians No power to tax or regulate interstate commerce Set of noncontroversial powers of British Parliament from colonial times o Inter-state trade barriers and discrimination was rampant Constitutional Convention o Proposed new constitution possibly unlawful, as Articles allowed amendment Can argue that it was complete revision, approved unanimously in 1790 o Supermajority ratification, instead of unanimous under Articles o Proposed three branch system of government o Compromises Bicameral legislature; one equally represented, one based on population Creation of SCOTUS; lower courts up to discretion of Congress Slavery Ratification o Strong debate and initial opposition o Federalist papers thoroughly analyzed and defended the Constitution o Antifederalists didnt like the national governments control over States, and the absence of enumeration of individual rights Bill of Rights passed to appease them Amendments o Overruling specific SCOTUS decisions o Correcting problems in original Constitution o Reflecting changes in social attitudes

Who should be the authoritative interpreter of the Constitution? No one o Would give each branch equal authority, conflicts settled through political process o Advocated by Jefferson and Jackson, among others Each branch in certain areas o Essentially the current approach o Each branch is authoritative for some Constitutional provisions Some parts of Constitution pose political questions and should not be decided by the Courts e.g. challenges to POTUS conduct of foreign policy Judiciary o Marshall endorses this in Marbury it is emphatically the province and duty of the judicial department to say what the law is

Main Powers of the Three Branches Congress: 1. Interstate commerce: Congress has the power to regulate interstate commerce, as well as foreign commerce. 2. Taxing and spending: Congress has the power to tax and the power to spend. 3. DC: Congress can regulate the District of Columbia. 4. Federal property: Congress has power to regulate and dispose of federal property. 5. War and defense: Congress can declare war, and can establish and fund the armed forces. 6. Enforcement of Civil War amendments: Congress can enforce the post-Civil War amendments. (For instance, under its power to enforce the Thirteenth Amendment's abolition of slavery, Congress can ban even private intrastate non-commercial conduct.) President: 1. Execution of laws: The President holds the "executive power." That is, he carries out the laws made by Congress. It is his obligation to make sure the laws are "faithfully executed." 2. Commander in Chief: He is Commander in Chief of the armed forces. So he directs and leads our armed forces (but he cannot declare war- only Congress can do this.) 3. Treaty and foreign affairs: The President can make treaties with foreign nations (but only if twothirds of the Senate approves). He appoints ambassadors. Also, he effectively controls our foreign policy - some of this power over foreign policy stems from his right to appoint ambassadors, but much is simply implied from the nation's need to speak with a single voice in foreign affairs (so that congressional involvement in the details of foreign affairs will generally not be appropriate). 4. Appointment of federal officers: The President appoints all federal officers. These include cabinet members, federal judges and ambassadors. (But the Senate must approve all such federal officers by majority vote A2S2) As to "inferior [federal] officers," it's up to Congress to decide whether these should be appointed by the President, by the judicial branch, or by the "heads of departments" (i.e., cabinet members). (But Congress can't make these lower-level appointments itself; it may merely decide who can make these appointments.) 5. Pardons: The President can issue pardons, but only for federal offenses. (Also, he can't pardon anyone who has been impeached and convicted.) 6. Veto: The President may veto any law passed by both houses (though this veto may be overridden by a 2-3's majority of each house.) If the President doesn't veto the bill within 10 days after receiving it, it becomes law (unless Congress has adjourned by the lOth day after it sent him the bill- this is the so-called "pocket veto"). Judiciary: The federal judiciary may decide "cases" or "controversies" that fall within their power