Con Law Outline Updated Spring II

8/3/2019 Con Law Outline Updated Spring II

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Con Law outline

Pg. 18-36

Introduction to the Constitution of the United States

I. The formation of the Constitution of the United StatesA. A short history of the adoption of the United States Constitution: Below are a list

of things Incorporated into the U.S. Constitution.

y U.S. Constitution is the supreme law of the land. The U.S. Constitution limits andenumerates all of the powers of Congress, the president, and the federal courts.

Constitutional government in the United States is by definition limited government, and

the limits are prescribed by the sovereign people.

a. Separation of powers: three independent, co- equal branches of governmenti. Legislativeii. Executiveiii. Judicialiv. Each branch has the power to check and balance the actions of the others

b. Federalism:In this sense of a division of government power between a central government and

governments for the several states

c. Bill of Rights in other provisions like the 14th amendment that protects fundamental libertiesd. Popular sovereignty and representative, Republican governmente. What the Constitution grew out of:

1) The long English historical background and unwritten constitutional tradition2) Out of colonial experience of charter governments that were the prototypes of the first

ring constitutions

3) American Revolution 1776-83.


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Very Important dates (discussed in class on 1.10.12)

y 1776 : Constitution is written.1791 : Bill of rights isnt ratified until then, Before then we had articles of confederation.

4) The lessons of a failed Federated government under the articles of Confederation ournations first constitution proposed by the Continental Congress in 1777 but not ratified

until 1781 (pg. 19)

y Defects of articles led to a constitutional convention held in Philadelphia. Theconvention propose an entirely new constitution the document we have today but

now with 27 amendments added to it (pg. 19)

y Bill of Rights was adopted in 1791, two years after the new national government.B. English and American constitutionalism

C. Canada is a part of the U.S. under the articles.

a. Before 1776, most Americans consider themselves Englishmen heirs to a largely unwrittenconstitutional tradition.

b. Documents that helped inspire the U.S. Constitution:1)charter of liberties of King Henry I

2) magna Carter in 1215 declaring the settlement that the king had no real power to deprive

freeholders of life liberty or property except by the law of the land.

3) The petition of rights of 1628, holding that there is no royal power of taxation without

action by Parliament, and new royal power to imprison subjects without trial by jury.

4) the habeas corpus act of 1679 ( no royal power to imprison without trial by jury.

5) The English Bill of Rights of 1689 ( providing that there is no royal power to suspend the

laws, and further protecting individual rights from infringement by the King.


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c. Function of the kind of dad role, taking certain topics off the agenda of ordinarypolitics. For example, there is no debate in the United States over what our

national religion or church should be because the Constitution for bids and the

establishment of religion

d. Constitution actually constitutes or set up the institutions of government anddivide and allocate power amongst them

e. limits the power of the governmentf. can be aspirational. It aspires:

1) to form a more perfect union2) to establish justice3) to ensure domestic tranquility4) to provide for the common defense5) to promote the general welfare6) to secure the blessings of liberty, not only for the farmers generation but

also for generations in the future

D. English historical background (pg. 23-24)

a. The glorious Revolution of 1688:i. English manner Rosen outrage to overthrow the Stuart dynasty of King James II and

establish parliamentary supremacy over the English monarchy. Parliament enacted

by statute the English Bill of Rights of 1689, recognizing a series of individual rights

against the King.

ii. 1) The revolution restored fundamental individual rights against executive authority2) establish the supremacy of representative government


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Establish the principle that legitimate government ultimately must depend on the

consent of the governed, which implied the constitutional right of the people to

alter or abolish their form of government created new social contract.

iii. Rights secured by the glorious revolution:

1) Individual rights to be governed by law, to trial by jury, to habeas corpus;limitations on the power of government, the right to be represented in any

legislative body that possessed the power to enact taxes, the right to

independent judges.

iv. Lockean theories of the social contract on the consent of the governed animatedthe American Declaration of Independence in 1776.

E. The American innovation of written constitutionalism

a. Colonial charters divided power horizontally between royal governors on the popularlyelected lower house of colonial legislator and vertically between the imperial government in

London and the colonial government and the 13 original colonies.

i. This paved the way for the written Constitution United States. Colonial charters didnot, however, recognize popular sovereignty since they work grants from the King.

Thus, written constitutionalism, but not popular sovereignty, had its origins in

colonial arrangements.ii. Tensions between England and American colonies began with the French and Indian

war. Inc. in Concord French Canada adding the province of Qubec the Empire, but

defending the American colonists in the war had been costly.

iii. King George III then sought to tax the American colonies, which were notrepresented in Parliament, in part to pay for the cost of defending them. The

colonists were outraged by these efforts and by other moves to strengthen Royal

executive power.

iv. The American colonists all evil and as abusive in tyrannical power which led to therevolution.

v. The declaration of independence reads a lot like a brief in opposition to the King:

The declaration is a public assertion by representatives of the American people of

what they saw as an ancient but dreadful and dangerous popular power. The

representatives of the United States of America were undertaking to solemnly

publish and declare, that these United colonies are, and of right ought to be free

and independent states

vi. Independence was not recognize formally until the Treaty of Paris was signed in

1783 and ratified by the U.S. Congress in 1784.

F. Articles of Confederation


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Before the Constitution was enacted there were the Articles of Confederation, and noSupreme Court. It is due to the failure of the Articles that the Constitution was enacted

Constitution is a govt relationship with its citizens. If have something against govt need to useconstitution as support. If complaint between you and neighbor its a tort.

Notes in class 1.10.12: ALEC: writes legislation Every state gets two senators: 100 in senate How many house representatives do we Have: 435

In total: 535Article I Congress shall pass the law (discussed in class)

Legislative powers - 8Congress cannot act without invoking an enumerated power directly out of the USCKryptonite of the legislative powers is the states 10 th amendment right When congress is out of session ( recess) president can pass appointments.

Article IIPresidential powersImplied power from tradition and codified in US v. Nixon, Steel Mills, etc.Article IIISupreme Court was created by Article III, 1The USSC gets its power from Marbury v. Madisono John Marshall created the power of the USSC as the final arbiter

Article IV Travel and trade between states

Article V

Establish a framework for government a general government, consisting of a unicameral Congress inwhich each of the 13 states received one vote.

Article VI, VII, and VIII

Regulated trees and duties and war expensesArticle IX

The powers of the United States in Congress assembledArticle XIII No changes in the articles could be made without approval by Congress and approval of every state

legislator.LimitationsPresident Congress, impeachment, privileges within his official acts, terms of officeJudicial no advisory opinions, cases and controversies, justiciability doctrine, cannot createlaws, impeachment, Congress

Misc.The original constitution had no bill of rights because there were no individual rights asslavery was the status quo and no one wanted to give rights to slavesThe BORapplies to the federal government and was incorporated into the states by the


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incorporation doctrineState action doctrine to sue the federal governmento Public function exception when acting like a federal government you can sueo Entanglement exception when the state facilitates, encourages, or authorizesdiscrimination by a public actor, the public actor must comply USC or the

government must cease involvement with the private actor

G. Problems with the articles of Confederation

i. 9 out of the 13 states had to agree on most significant matters, this meant that theCongress could be at the mercy of a small minority and often could not act.

ii. Even though Congress can request money from the 13 states, it could not tax themor the American people directly.

iii. Congress under the articles lacked power to regulate trade between either the 13states or between the states and foreign powers such as England or France. As a

result, the wealth creating free trade zone that the colonies had been a part of

when they were members of the British Empire disappeared. This led to economic

disaster and Congress had to print money which led to inflation.

iv. Inflation led to Shays rebellion .v. Congress then called a special convention of representatives from each of the state

to consider revising the articles of Confederation in Philadelphia.

H. The Philadelphia convention of May 1787 ended in Sept.

i. Are you drafted by a distinguished convention of 55 citizens assembled in Philadelphia itwas chaired by George Washington.

ii. Originally was what started as a convention for revisions ended up in producing anentirely new constitution of the United States.

iii. proposed five major changes: 1) regulate commerce power to tax and spend topromote the general welfare, power to adopt all laws necessary and proper, members

of Congress would have fixed terms of salaries paid by the national treasury, Congress

has the power to legislate upon indirectly taxed citizens, give the new government all


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the powers of the old one as was the power to act in all cases in which the states were

separately incompetent or unable to act.

2) The great compromise: Agreed to have a bicameral legislature with the stateshaving equal representation in the Senate and with representation in the House

of Representatives being based on population. It was more geared toward

states like Virginia which wanted representation based on population and the

smaller less populous ones like New Jersey, which wanted a rule of one state,

one vote as had existed under the articles of Confederation.

3) Created separate executive and judicial branches of the national government.4) Slavery: slaves were counted as three fifths of a person.5) Constitution would be amendable by a two thirds vote of both houses of

Congress coupled with ratification by three quarters of the states.

IV. The Federalist papers

The federalism is a series of 85 newspaper articles written by Alexander Hamilton,

James Madison, and John J, under the pen name Publius.i. Fed. No. 1 Written to the state state-of- New York. Hamiltons famous call for

careful and honest deliberation over that affects the articles of Confederation

and the need for this new Constitution. ( pg. 31-32)

ii. Federalist number.40 ( pg. 32)y addresses one question whether the Convention were authorized to frame and

propose this mixed Constitution or was the authorization merely to amend theArticles.

y Madison argues that to establish the republican form of government desired it wasnecessary to essentially start anew and scrap the Articles even if this was not exactlytheir assigned task. He summarizes the work of the convention as follows; further ifthey had exceeded their powers they were not only warranted but required as the

confidential servants of their country by the circumstances in which they were placedto exercise the liberty which they assumed. And finally if they violated the powersand obligations with which they were entrusted, the Constitution should still beapproved given it is for the benefit of the American people.

iii.Federalist number.43

i. Express authority of the people alone could give due validity to the Constitution. Requiredthe unanimous ratification of the 13 states, would have subjected the essential interests of

the whole to the caprice or corruption of a single number.

a. On what principle the Confederation, which stand in the solemn form of acompact among the states have been superseded without the unanimousconsent of the parties of it?

Answer: the safety and happiness of society the objects at which all political

institutions and, into which all such institutions must be sacrificed.

b. What relation is to subsist between the nine or more states ratifying theConstitution, and the remaining few who do not become parties to it?

Answer: there is no answer must be left to provide for itself.


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Note: both number.40 and number.43 are Madisons defense of theprop priority of the conventions actions in proposing a document that

went considerably beyond the assigned task proposing revisions to the

articles in that department from articles rules of unanimity for any

changes.

The federalist No. 39

In this document, Madison argues in the course of defending the strictly Republican character

the government under the Constitution. The government power proceeds from the great body

of the people, acting either through their national institution or through Thursday institutions.

But the government is partly national and partly federal. The Constitution was adopted by the

collective decision of the people United States, acting through the separate decisions of the

people in three fourths of the states.

Six Broad themes of the Constitution

1. Written constitutionalism:y Constitution is written.y Constitution, article 6, section 2 the supremacy clause: a rule of law contained

in the Constitution prevails over any act, policy, or practice of government

inconsistent with that constitutional rule. The Constitution prevails over

contrary enactments of Congress, contrary actions of the president, and

contrary decisions of the judiciary.

y Five type of constitutional arguments:1) based on text meaning the words would have had, in context, to speakers

and readers of the English language at the time they were enacted or adopt

it

2) based on structure or internal logic of the document a sophisticated formof textual argument that attempts to draw sound inferences from therelationship of provisions to each other, their location contacts within the

constitutional text, and the structure of government necessarily framed by

the document as a whole.

3) arguments from intent or purpose or he provisions historical backgroundthis concept focuses less on the words this type of argument looks for

evidence of specific or general intentions of the drafters for example, the

federalist or the records of the debates of the constitutional convention

4) Arguments based on precedent that is, past judicial interpretations, wherethose interpretations have become sufficiently settled to essentially fixed

the meaning of constitutional provisions that otherwise might be thought

ambiguous or unclear.

5) Arguments based on policy or pragmatic considerations one interpretationproduces the better or best result from the standpoint of social policy or

specific notions of justice


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2. Republicanism and popular sovereignty: the consitution begins with we the people theUnited States. Thus, the states are not sovereign. Nor is the national government

sovereign rather we the people the United States are sovereign.

y Sovereignty of the people United States under the Constitution is oftenexercised by the people acting through the representative institutions, including

states.

3. Separation of powers and checks and balances there are three branches: Legislative

executive and judicial each branch is to a substantial degree, independent of the others

and each possesses power which to check or balance the exercise of powers by the

others.

Congress: exercise only the legislative power.

President: executive power

Federal courts:judicial power.

y The checks and balance system is often called the Madisonian system of checksand balances because Madisonsonian defended it in the phili convention.

y Madison explains that under the Constitution each branch is given differentresponsibilities.

y The president, the Senate, and the House of Representatives are all picked indifferent ways by different I look towards.

y Six year electoral cycle is set up for all the elected officers of the governmentcan be replaced and three staggered elections that must be how precisely 2

years apart.

y Political movements must usually sleep at least two national elections in a row,held two years apart, before they could do much.

y No branch owns the other branch. None is bound by the other.President: elected for fixed term of four years and can be removed sooner only

by impeachment.

Vice president: cannot be fired by president because it is an elected position

not an appointed position, if it's appointed that that person could be fired.Example head of security.

4. FederalismConstitution is supreme law, and constitutionally valid actions of the national government

prevail over actions of the states, under the supremacy clause of article 6.

Sovereignty: rest nine the people as a whole but with the majority of the people in three

quarters of the states.

National government power: has the power to act directly on individuals, not merely a power

to make request of state governments. It is a government of limited enumerated powers, with

the states and the people retaining all powers not delegated to the national government.

Constitutional federalism allows the central government to address situations such as

1) races to the bottom,2) an inability to realize economies of scale3) a problem of regulating sub state actions that generate negative externalities4) situations worse the states cannot recoup the value of positive externalities they generate5) situations worse the states majorities violate the civil rights of so state minorities


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5. Individual rights:

the Constitution structure separation of powers, federalism is designed in part to promote

individual liberty, as well as effective, limited government.

y Has increasingly become a theme of increasing importance to protect individual rights.The Civil War: produced three more Reconstruction amendments 13th 14th and 15th, which

greatly expanded the rights of individuals and groups protected them from abridgments by the

state governments.

The Bill ofRights and the Reconstruction amendments give rise to:

1) freedom of religion2) speech3) and of the press: the prohibitions against unreasonable searches and seizures, multiple

punishments, denial of life, liberty, or property without due process, and denials of the

equal protection of the laws, the privileges against self recrimination and double jeopardy

along with the right to counsel.

14th amendment: has created many of the most intense constitutional controversies of the modern era,concerning everything from voting rights to sexual freedom to abortion to assisted suicide.

16th amendment: allows the taxation of income which gave the federal government an enormous

increase in revenue which it could use itself or give back to the states with lots of federal strings

attached.

17th amendment: provided for the direct election of US senators who had previously been elected by

the state legislators.

15th amendment: preventing discrimination and voting on the basis of race.

19th amendment preventing discrimination and voting on the basis of sex.

23rd amendment: giving Washington DC representation in the electoral college

24th amendment outlawing poll taxes

26th

amendment: giving 18-year-olds the right to vote.

The original Constitution

The preamble: Sets forth the purpose of the Constitution, and the authorities from

which it claims to emanates the collective, deliberate action of we the people of the

United States.

Article I (pg 47-48) Congress shall pass the law (discussed in class) 1.10.12

Legislative powers of congress- 8Congress cannot act without invoking an enumerated power directly out of the USCKryptonite of the legislative powers is the states 10 th amendment right When congress is out of session ( recess) president can pass appointments.

Article IIPresidential (executive) powers


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Implied power from tradition and codified in US v. Nixon, Steel Mills, etc.Article IIIJudicial powersSupreme Court was created by Article III, 1 Judge has a lifetime appointment made by the president with the Senate's consent.

The USSC gets its power from Marbury v. Madisono John Marshall created the power of the USSC as the final arbiter

Article IV

Travel and trade between states requires that fugitive and originally fugitive slaves escaping from one state to another be delivered

up and returned. States must recognize and of forced each other's judgments and judicial decrees. But also court citizens of other states the same fundamental privileges and immunities of citizenship

that they give to their own citizens.Article V

sets forth the procedures for amending the ring Constitution, the only way the Constitution itselfauthorizes constitutional change. Requiring proposal either by two thirds vote of both houses or by aspecial constitutional convention requested by calls from two thirds of the states plus ratification ofany proposal by three fourths of the states.

Establish a framework for government a general government, consisting of a unicameral Congress inwhich each of the 13 states received one vote.

Article VI,

specifies the authority of the Constitution. The Constitution shall be the supreme law of theland and bind the judges of every state, trumping anything to the contrary in state law.

Article VII

declared that the Constitution would become operative upon ratification by nine of the 13 originalstates a rule of recognition departing from the articles requirement of unanimity.

Article IX (not in book) The powers of the United States in Congress assembled

Article XIII (not in book)

No changes in the articles could be made without approval by Congress and approval of every statelegislator.

LimitationsPresident Congress, impeachment, privileges within his official acts, terms of officeJudicial no advisory opinions, cases and controversies, justiciability doctrine, cannot createlaws, impeachment, Congress

Misc.The original constitution had no bill of rights because there were no individual rights as

slavery was the status quo and no one wanted to give rights to slavesThe BORapplies to the federal government and was incorporated into the states by theincorporation doctrineState action doctrine to sue the federal governmento Public function exception when acting like a federal government you can sueo Entanglement exception when the state facilitates, encourages, or authorizesdiscrimination by a public actor, the public actor must comply USC or the

government must cease involvement with the private actor


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The amendments pg. 49

First Amendment: protects freedom of speech, freedom of the press, freedom of religion, and the

right to petition for dress of grievances. It also prohibits Congress from making any law respecting an

establishment of religion.

Second Amendment: protects the right of citizens to keep and bear arms in order to provide for a well

regulated militia

Third amendment: prohibits government from ordering soldiers in private homes, except in times of

war and in the manner prescribed by law.

Fourth fifth sixth and eighth amendments: concerning the rights of criminal suspects and defendants,

including the right to be free from unreasonable searches and seizures and from double prosecution or

punishment for the same crime known as double jeopardy, the right to trial by jury and indictment by

grand jury, the privilege against self incrimination, the guarantee of due process of law, the right of a

speedy trial and public trial etc.

the Fifth Amendment also contains a provision protecting private property from being taken forpublic use without compensation.

Seventh amendment: preserves jury trial rights and civil lawsuits in federal courts.The 9th and 10th amendment: provides that the enumeration of rights in the Bill ofRights should not

be construed to deny or disparage other rights retained by the people.

10th amendment reaffirms the powers not delegated to the national government are reservedto the states respectively, or to the people. In some ways similar to the ninth amendment the

10th amendment appears designed to guard against any inference that adopting a Bill of Rights

meant that the federal government now has general legislative powers except where specificright limited them and improper inference that would have reserved the principle that the

national government is one of the limited, specifically enumerated powers.

The 11th amendment: remove the category of jurisdiction from the federal courts suits brought by

citizens of one state against a different state.

The 12th amendment: designed to fix an unforeseen problem with presidential elections, exposed by

the development of political parties in the election of 1800 in which Thomas Jefferson and Aaron Burr,

running in the ticket, received the same number of the Torah votes a tie even though Jefferson had

been the intended presidential candidate.

The 12th amendment provides that the president and vice president are voted for separately.The 13, 14 and 15 amendments:

13th

: abolish slavery

14th

: prohibited states from discriminating against classes of citizens like the newly freed

slaves.Also prohibited states from denying any person the privileges or immunities of US

citizenship.


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Makes the individual rate's provision of the Bill ofRights applicable as limitations on whatstate governments, as well as the national government, may do.

Created individual rights only against the new national government created by theConstitution.

15th

: prevent denial of the right to vote based on race or previous condition of servitude.

16th

: the power of Congress to tax individual incomes directly.

17th

: provides for direct election of the US senators, replacing a lecture by state legislators.

18th

: created prohibition, until the 21st amendment repealed in 1933.

19th

: gave women the right to vote in every state and federal election.

20th

: advanced the start of a president's term by two months.

22nd

: limits presidents to two terms only FranklinRoosevelt had been elected to more than

two.

23rd

: gave the District of Columbia three electoral votes.

24th

: forbids imposing a tax on voting.

25th

: provides an elaborate scheme addressing the problem of temporary presidential

disability.

26th: gave 18-year-olds the constitutional right to vote

27th

: forbids alterations in Congressional pay from taking effect without an intervening

election for the House ofRepresentatives.

Pg. 51 Notes and Questions ( see assignment doc)

C. The addition of the Bill of rightsFederalist: championed the new Constitution and denied that a Bill of Rights was necessary

or even desirable.

Bascially said there are no rules that prohibit our freedoms so we dont need a bill of rights.

i. Madison, Hamilton, Wilson argued that the federal government was of limited,specified, delegated powers. To include a Bill of Rights, they maintained, was

contrary to the entire theory of this type of Constitution for limited government.

ii. Federalist gave us the ConstitutionAnti-Federalist: opponents of the Constitution, such as Mason and Richard Henry

Lee, replied that the powers of the federal government, might be construed or

applied in a sweeping fashion. They argue that a written Bill of Rights was absolutely

essential if liberty was to be preserved.I. The anti-Federalist called the necessary and proper clause the sweeping

clause. And it would sweep away all the people's liberties, not preserve

them.

II. Federalist agreed to propose amendments in the first Congress, afterratification of the Constitution.

III. Anti-Federalist gave us the Bill of Rights


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The Federalist number.84

he fights against the Bill ofRights. Saying that it's not necessary because

the Bill ofRights are rights which the Constitution does not restrict. For

Ensign's freedom of the press, there is no rent restriction on the freedom

of the press so why should we make the Bill ofRights stating that the

freedom of the press should not be restricted. Furthermore, he believes

that the Constitution itself is a Bill ofRights and is complete.

What the anti-Federalist were for

i. three kinds of rights were stressed:ii. common-law procedural rights in criminal prosecutionsiii. liberty of conscience, and liberty of the press

y Favored governmental encouragement of religion and liberty of individual conscience.Did the Bill ofRights originally bind the states?

I. Applied originally only to actions taken by the federal government. Because theanti-Federalist had concerns about the powers of the new national governmentbeing applied in such a way as to violate individual rights.

II. Not until adoption of the 14th amendment's after the Civil War, the provision ofthe Bill of Rights were made applicable to states laws. However, some argue

that the provisions of the Bill of Rights apply to state governments to before the

adoption of the 14th amendment

Baron V. Baltimore

( provides a good occasion to consider systematically the question of how to

interpret and apply the Constitution what counts in constitutional

interpretation).

Note: Pltf got nothing after being awarded 4500 from trial court bc at the time14th amendment did not exist which meant that fifth amend. Only applied to fed

govmt taking your land but not the state.

Chief Justice Marshall delivered the opinion of the court:

Can you sue the city without suing the state?

Yes.

In this case he sues both.

The city is not covered by the consttituiton but the state is.

So cover yourself by suing both of them.

Plaintiff: john Barron

Def: city f Baltimore

Procedural history:

Files at trial court. And Barron wins at this level. It then goes to appeal. It goes

to an appellate court. It goes to the state court of appeals. The city of Baltimore

appeals at court of appeals and then it is reverses mean Baltimore wins. It then

goes to the supreme court. Because Barron appeals it.

Why does it jump from court of appeals to federal?

Because it becomes a federal question.


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Sometimes goes from the state to federal what precipitates that?

Consitituional- federal question.

Whats the issue?

He owns a wharf in order for it to work you need water. The city took the ability

to operate his wharf because lowered water. 5th amendment says that the

amendment pertains to the federal gov not state. Only applicable if fed gov

takes your land for public use.

Facts: plaintiff appeals after he won 4500 and the trial court believe that

judgment was reversed on appeal. So he appealed. Plane of originally sued

because the city of Baltimore rendered the water near the wharf to shallow for

motion ups. He claimed that the state had taken his property without just

compensation in violation of the Fifth Amendment to the Constitution which

provides nor shall private property be taken for public use without just

compensation.

Court said: that the Fifth Amendment must be understood as root straining the

power of the general government, not as applicable to the states. Because the

states have constitutions which they impose such restrictions on theirrespective governments as their own wisdom suggests such as they deem

proper for themselves.

Court argues.The amendments contain no expression indicating intention to

apply them to the state governments. Therefore the court cannot apply them.

Furthermore the provision the Fifth Amendment to the Constitution, declaring

the private property shall not be taken for public use without just

compensation, is intended solely as a limitation on the exercise of power by the

government of the United States, and is not applicable to the legislation of the

states.

Holding: judgment reversed. Gets nothing.

Issue: Does fifth amendment apply to the state or only government?

Only on exercise of federal govt not applicable to the state.

Ex: eminent domain.

Ex: national monument.

No state shall do the following below:

Ex: coin money

Ex: letters of mark authorizing in enageg in hostile acts towards foreign nations.

Note:

14th

: amendment made the constitutional law apply to states. Didnt apply until

after this case until 1868.

Has to be the state or someone who works before the state, if before 14th

amm then only applies to fed law. Its important to look at the time in which

the issue occurder.

Rule: the fifth amm is only applicable to the federal gov before the 14th

amendment.

Hypo:

Another boat rammed into the wharf and tore it apart:

You would sue under tort law.


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When state takes property person brining claim does so under 5th

amen:

taking property must be compensated by the state. 14th amm basically says that

cons applied to state law to.

Could he have sued the state under tort law?

Conversion.

Why did he sue the govt under the constitution?

Sues the city bc a lot of states have sovereign immunity.

Govt has soverign immunity(articles 9, 10) the state has immunity from being

sued except when it tells you. You can sue them.

Questions PG. 57 ( see assign. doc)

Page 61

1. How should one go about the task of interpreting the Constitution?

What method should the various branches of government, including

the courts, use in construing and carrying out its provisions?

y Based on texty structure or interim no logicy original intent or historyy intentions or purpose, using the Federalist or the records of the debates of the photo

via Constitutional convention

y precedent or practicey policy, natural law or pragmatic considerations.

The judicial branch would determine what is the best way to interpret the

Constitution. In my opinion, I would use the precedent or practice combined with

policy considerations. I would not look so much to structure or original intent since

202 years have gone by and the original intent may not be suited for today's times or

cover topics that were not foreseen by the forefathers.

2. What was Chief Justice Marshall's interpretive method in Barron v.

Baltimore?

The fifth the amendment states nor shall private property be taken for

public use, without just compensation. He began to interpret the

principles of the Constitution as he understands them.T

he Constitutionwas established by the people of the United States for the government

of the United States as a whole, and not for the government of the

individual states.

3. Which of the above modalities does he use?

Structure

Textual argument: Barron said in the Constitution sometimes does limit

state governments and pointed to article 1 section 10. Marshall


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responds by pointing out the difference between article 1 section 9 in

article 1 section 10. Section 9 limits the powers of the national

government. Marshall Points out that some of the same limitations are

repeated in section 10, as limitations on the power of the states. But

whenever the limitations are meant to apply to the states, the

Constitution says so specifically, by using the no state shall language of

article 1 section 10.

Note: Basically if the Constitution want to refer to the states it will say

so in the Constitution

Pg. 66

constitutional controversies:

A. First Bank of the United States:

i. concerned the power of Congress to incorporate you think of the

United States for carrying into effect the financial system of the

US. Fight went on from 1791 until 1831 it was abolished by Pres.

Andrew Jackson.

ii. Federally charted with flight directors appointed by the presidentand the vast majority of the directors a select.

iii. What did the bank have the power to do?

a. Received deposits

b. provide an account and manage trusts

c. issues notes paper notes supported by deposits on reserve at

the bank. The reserve notes function as a formal paper printing

prior to the printing of the dollar bill, which did not beginning of

this country until the Civil War Main paper money indispensable.

What was the fight about?

Hamilton was inspired in creating the bank by the huge best

enjoyed by the Bank of England. He had an ambitious economicplan to transform the United States nation of farmers into a global

commercial economy.

Vs.

Thomas Jefferson James Madison and other leaders of the

Democratic and Republican Party did not want America to seems

to be a nation of farmers and were suspicious of commerce.

Jefferson and Madison thought land ownership in farming

promoted civic virtue. It was a fight over what kind of nation

America would become.

Who was present at the time of the controversy?

George Washington

How did washington decide whether the bank was constitutional

y he asked for opinions ofHamilton, Jefferson andRandolph. He ultimately decided with Hamilton.

Jefferson's opinion on the constitutionality of the bank

believe the Corporation bank, and the powers assumed by

this bill, and I delegated to the United States, by the


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Constitution. Believe that they are not along the powers

specially enumerative the Congress. Which are:

i. power to lay taxes for the purpose of paying the

debts of the US

ii. to borrow money.

iii. To regulate commerce with foreign nations, and

along the states, and with the Indian tribes.

y To erect a bank and to regulate commerce, are verydifferent acts.

Argued: it would reduce the whole issue into a

single phrase, that of instituting a Congress the

power to do whatever would be for the good of the

United States, and as they, would be the sole judges

for the good or evil, it would be also power to do

whatever evil they please.

Argued: to make all laws necessary and proper for

carrying into execution the enumerated powers,

but they can all be carried into execution without abank. A bank therefore is not necessary, and

consequently not authorized by this phrase.

Hamilton's opinion on the constitutionality of the

bank

Argues: to deny that the government of the United

States has sovereign power, as to its declared

purposes and trust, because it's powers does not

extend to all cases would be equally to deny that

the state governments have sovereign power in any

case, because their power does not extend to everycase.

He points out that even though some propositions

of the Constitution may not be clear, the

Constitution and the law of the United States made

a pursuant of and all treaties made or which shall

be made under their authority shall be the supreme

law of the land. The power which can create the

supreme law land in any case is doubtless sovereign

as to such case.

Therefore, United States have the power to wreck

the Corporation

In regards to the necessary argument by secretary

of state who agreed w/ jefferson: He provides a

different definition for necessary. He says that

necessary often means no more the needful

requisite were conducted to. It is a common mode

of expression to say, that it is necessary for

government or a person to do this or that thing. He

argues that it was the intent of the convention, by


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the necessary and proper clause to give a liberal

latitude to the exercise of the specified powers.

Definition of word necessary by Hamilton

y To understand the word necessaryof the Secretary ofState does, would be to depart from its obvious and popular

sense.

y The restrictive interpretation of the word necessary is alsocontrary to the sound maxim of construction, namely, that

the powers contained in a constitutional government,

especially those which concern the general administration

of the affairs of the country, its finances trade defenses are

to be construed liberally in advancement of the public good.

Argues: a bank has a natural relation to the power of collecting taxes to that of regulating trade to

that of providing for the common defense and that, as the bill under consideration contemplates the

government in the light of a joint proprietor of the stock of the bank, it brings the case with the

permission of the club the Constitution which immediately respects the property of the United States.

The Bank of the United States, 1791 to 183

Pres. Washington sided with Hamilton.

1816-1836 Congress voted to re-create the bank for another 20 years because of economic problems

going out of the war of 1812 and maddison present at the time passed the bill.

Constitutional interpretation. Does the passage of an act by Congress word is constitutionally vague Uris

we debated and resolved in favor of the act's constitutionality settle constitutional issues for future

Congress?

No. State of Maryland imposes special tax on the bank of the US which do not apply to any other banks

doing business in Maryland.

McCulloch case: held that Congress had power under the necessary and proper clause to create the

bank and second that Marilyn types up on only the bank and on other Marilyn tanks was preempted by

the Constitution itself, that is, that Marilyd state tax on a national bank was unconstitutional

interference with the operation of a lawful national power.

President declares the bank unconstitutional

1832 injured Jackson becomes president and vetoes the bank bill on the ground that the bank was

unconstitutional.

Was Pres. Jackson obligated to accept the constitutionality of the bank because Pres. Washington had?

Because Pres. Madison had?

Explain that you cannot use presidents in declaring the bank constitutional because it's not well settled.

Uses the past to show this:


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1. 1791 congress decided in favor of the bank2. 1815 decided against the bank3. 1816 decided in favor of the bank

Claims: each public officer who takes an oath to

support the Constitution swear that he was

supported as he understands it, and not as it is

understood by others..

o Claims that he is the president ofindependent of other decisions made

by Congress or judges.

y Main Argument against: says the bank authorizes and encourages transfers of its stocks toforeigners and grant some exception from Allstate and national tax taxation this is far from

being necessary and proper that the bank should possess this power to make it safe and

efficient agent of the government in its fiscal operations it is calculated to convert the bank of

the US into a foreign bank to impoverish our people in time of peace to disseminate foreign

influence through every section of the Republic and award to endanger our independence

The death of the Bank of the United StatesImmediately once in power Jackson had the secretary who he appointed Tany withdraw the fed

govt deposit.

y Jackson one the first 40 year ban war, and he killed the bank for a period of more than70 years.

Congress tried to sensor Jackson but failed.

y Around 1861 Pres. Woodrow Wilson got approval for the creation of the FederalReserve Board in his first term. Which somewhat resembled the Bank of the US.

Congress did twice passed bills re-creating the bank in the 1840s, but Pres. Tyler vetoed

them on the same grounds cited by Jackson.

Had those bills been signed by Tyler, the Supreme Court the membership of which have been

completely transformed by Jackson and Van Byrne might well have overruled McCulloch versusMaryland.

Best case for the constitutionality of the bank

y McCulloch versus Maryland.Constitutional interpretation in the bank controversy:

structural arguments from the text of the Constitution:

1. the necessary and proper clause must enhance the powers of Congress because it appears withthe list of congressional powers in article 1, section 8 is set up with the restraints on

Congregational powers in article 1, section 9.

2. 10th amendment limited the national government of the powers expressly delegated. Butduring the bank times people like Hamilton and Madison also sought to enforce things weren'tsure Warren expressly implied in the Constitution

3. some presidents defined necessary in the necessary and proper clause to mean union areuseful. But this was just one way of looking at it.

4. Today the concept of necessity can be viewed best in terms of the Hamiltanian view.Departmental ism: who interprets the Constitution


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1. the president takes a constitutional old that he will preserve protect and defend theConstitution of the United States under article 2, section 1, clause 8.

2. Article 3 says the judicial power shall be vested in the Supreme Court and in such inferiorcourts as Congress chooses to ordain and establish. And that judicial power shall extend to

all cases arising under the Constitution. Today, we understand that power as including the

power of constitutional interpretation

3. the power of judicial review is nowhere specifically enumerated in our Constitution.y Departmentalism defined: the theory of constitutional interpretation.Previously the framers thought the Constitution would be enforced by the action of all three

branches of the federal government operating through the Madisonian system.

4. Basically back then whether or not a particular law is necessary and proper as the judge, thequestion arrives on your doorstep only if Congress on the president have already said that

the law in their constitutional judgment is necessary and proper. If as a judge, you are John

Marshall and you believe the word necessary means convenient it would be up to your

analysis of constitution to decide whether this was the case or not.

Pg. 83-98

B. Slaverythe Quakers began challenging slavery in the 1750s and 1760s.

in 1774, the Quakers met with the first Continental Congress which made an agreement to ban the

importation of slaves from Britain.

1787 and the Continental Congress was persuaded to ban slavery in the North West territory which

eventually would become the free states of Ohio, Indiana, Illinois, Michigan, and Wisconsin.

The fall of 1787 Moses persuaded Rhode Island legislator government to outlaw the slave slave trade.

The penalty for violating and bringing slave was a 100 pound fine for each slave imported in a 1000

pound fine for each ship engaged in the trade.

What the Constitution said about slaves around for the 1787

the 3/5 clause in article 1 counted slaves as three fifths of a person for apportioning representatives in

the house of representatives.

Article 1 section 9 for beta Congress from banning the international slave trade until 1808

article 4 included a fugitive slave clause that impose a duty on the federal and state governments to

arrest fugitive slaves and Masters even in the north.

The South is listed on these provisions as a condition of agreeing to a government that gave the nation

powers over commerce that New Englands delegates desired.

So there I also wanted the larger representation in the House of Representatives and thus also in the

electoral college that came from counting slaves, who could not vote, as 3/5 of a person. This system


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led to white Southerners voting their slaves and gave the South a huge advantage of Congress and

presidential elections.

The Quaker anti-slavery petitions of 1790

the decision of 1790 leader came to be treated as a precedent by Congress, establishing the impropriety

of any congressional action to abolish slavery states.

The text of the Quaker petitions

claimant rights of man are elusive and fallacious

the quoted the Bible a lot and said that you should treat others as you would like to be treated.

The truly temporal rule interest of nations, and external well-being of individuals, dependent doing

justly, loving mercy, and walk humbly before God, the Creator, the preserver and benefactor of men,

that is to attempt to excite your attention to the affecting subject.

The text of Franklin's anti-slavery petition on behalf of Pennsylvania Society for promoting the

abolition of slavery

mankind are all formed by the same Almighty being, like objects of his care, and equally design team of

happiness, the Christian religion teaches us to believe, and the political creed of Americans fully die

position. Franklin argued that the people of Philadelphia and many more powers which are vested for

promoting the welfare and securing the blessing of liberty to the people of the United States and as we

can see that these blessings ought rightfully to be administered, without distinction of color all

descriptions of people, so they indulge themselves in the pleasing expectation, that nothing which can

be done for the relief of the unhappy objects of their care will be either omitted or delayed.

Equal liberty is the birthright of all man influenced by the strong ties of humanity and the principles oftheir institution.

Are you for the restoration of liberty to those happy man, who alone, in the land of freedom are

integrated into perpetual bondage, and who I missed the general joy of surrounding freemen are

groaning and serval's objections that you would devise means for removing this inconsistency from the

character of the American people that you will promote mercy and justice towards this distressed race

and that you will step to the very verge of the power vested in me for discouraging and green species of

traffic and the persons of or fellow -men.

Slave trade debate

in Chinese men expected general emancipation of slaves by law? This would never be submitted to thesouthern states without a civil war. Aiming to purchase their freedom? He believed their money would

fall short of the price.

Mr. Jackson to postmaster had a qualified property in a slave. It will go to the destruction of every

species of personal service. He did not stand in need of religion to induce him to read probate slavery,

but if he is guided by that evidence upon which the Christian system is founded, he will find that religion


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is not against it. He will see, from Genesis to revelations, the current setting strong that way. There

never was a gorilla face of the earth, but were permitted slavery.

Mr. Sylvester: had always been in the habit of respecting the society called Quakers he respected them

for their exertions in the cause of humanity, but he thought the president was not a time to enter into a

consideration of the subject, especially as he conceived it to be a business with the province of the state

legislatures.

Mr .Smith, of South Carolina insisted that it was not in the power of the house to grant the prayer of the

petition, which went to the total abolish the slave trade, and it was therefore necessary to commit it.

States would have never entered into the Confederation, lesser property had been guaranteed to them,

for such is the state of agriculture in that country, that without slaves it must be abandoned.

Mr. Madison admitted that Congress is restricted by the Constitution from taking measures to abolish

the slave trade get to her variety of ways by which it could countenance abolition, and regulations might

be made in relation to the introduction than the new states to be formed out of the Western territory.

He thought the object well worthy of consideration.

Conclusion: it was clear that many people had mixed sediments about the introduction of having

Congress abolished slavery.

Report of the special committee

the Quakers are clearly of opinion of:

1) but the general government is restrained from prohibiting the importation of such persons2) fanfare construction of the Constitution, are equally restrained from interfering in the

emancipation of slaves

3) Congress have no authority to interfere in principles of morality and religion4)

Congress has authority, if they shall think it necessary to lay had any, tax or duty not exceeding$10 for each person of any description

report of the committee of the whole house

what the memorials of the people called Quakers and Pennsylvania Society for promoting abolition of

slavery want:

y strike out the first clause of the migration or importation of such persons as any of thestates now existing shall think proper to admit, cannot be prohibited by Congress, prior

to the year 1808.

y Strike out 3 and 4 clause and assert that Congress has no authority to interfere in theemancipation of slaves, or the treatment of them within any of the states.

y Strike out the seven clauseFranklin satire

Sidi Ibrahim wrote a letter written against the abolition of slavery as being unjust.


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what is to be done with them, plant them in the wilderness, where there is plenty of land for them to

subsist on the beer too eager to establish a good government. While serving, we take care to provide

them with everything, and their treated with humanity. They are well informed Fed and lodged. The

condition of most of them is therefore already amended, and requires no further improvement. Here

their lives and safety.

Argues that the only reason why Christians want to release slaves because they are guilty of their own

sins.

In 1794, the Senate approved a House passed bill entitled an act to prohibit the carrying on of slave

trade the United States to any foreign place or country.

This bill was constitutional because it did not restrict the importation of slaves into the United States.

The next chance to stop slavery was not to come until the election of Lincoln in 1860 the Civil War.

Notes and questions on the Constitution's treatment of slavery, the Quaker anti-slavery petitions, and

the decision of 1790.

1. Did the Constitution abolish slavery? Protect slavery? Leave the question to the states? Enablenational power but not committed to any specific end? Does the fugitive slave clause empower

Congress to enact a fugitive slave law to force it or does it only impose a duty on federal and

state officials to return fugitive slaves?

2. What, if anything, could Congress have done about slavery in the 1790s? Could Congress havefor bid in interstate commerce in slaves? Could it have justified such a law as necessary and

proper for executing an enumerated power such as the commerce clause power?

Could Congress have prohibited slavery in the federal territory or in District of Columbia the way

that Continental Congress forbade slavery in the Northwest? Could anyone believe that

Congress have less power to prohibit slavery in the territories under the Constitution than it had

under the articles? Were freed slaves citizens of the United States under the Constitution or

were they not a part of the political community that formed the United States?

3. In 1820, Congress did not address the question of slavery in the territories which was called theMissouri compromise under this accord, an imaginary line was drawn across the north American

continent. Slavery would be excluded from territories north of the line.

4. Consider whether the original Constitution was a proslavery document. Garrison abolitionistssaid the Constitution is a covenant with death and an agreement with how. Was he right? The

Constitution contains compromises with the slave states that ignored the existence of slavery,

but does it truly condone and protect slavery smart or is the moral failing its failure to destroyand eliminate slavery? Is it painful to see the framers failure to do almost any of the main things

they could have done in the 1790s to more firmly put slavery on the road toward extinction?

c. The neutrality of Controversy

Where does the Constitution vests the power over foreign affairs?

y This is the separation of powers question, not a federalismquestion. The national government possessed the foreign relations


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power, which was managed by the executive power, which article 2

puts in the president.

History of how foreign affair came to be a matter dealt by

president

y Thinking about separation of powers was heavily shaped by JohnLocke: wrote about the separation of powers he listened, describe

three powers of government the legislative, executive and

federated powers. The federative power also known as the

executive power was what we today call the foreign affairs power,

and it belong to the King.

y French theorist Charles de Secondat modifies what describe thethree powers of government as the latest latest executive and

judicial a life tenured judiciary having by then become a true third

branch of the English constitutional system, along with the King and

Parliament. He also located the power of forces there in the

executive branch. Thus America considered that the foreign affairsPowell was part of the executive power which article 2 opening

words say the president.

y Under the articles of Confederation Congress exercise power aforeign affair, but its inability to effectively manage foreign affairs

and the lack of an independent executive branch were among the

leading reasoning identified by the framers for abandoning the

articles.

y Article II, section 2 and 3, mention specific presidential foreignrelations powers, the power to make treaties, the military power as

Commander-in-Chief of the nation's armed forces, and the duty to

receive ambassadors and other public ministers.y In article 1 appears to confirm specific powers with respect to

foreign relations on Congress, in the nature of exceptions to the

general executive power over foreign affairs.

y Article 1 vests important powers related to foreign affairs andCongress, which is given the powers to declare war to define and

punish piracies and offenses against the law of nations to regulate

commerce with foreign nations and to establish and uniform rule of

natural light station.

The rule of the senate in treaty making

two thirds of the members present must consent before treaty

made by the president with a foreign nation can become law. Butno specific article 1 provision governs or terminates treaties, the

making of non-treaty agreements, or the general conduct of foreign

relations.

As the remainder of the foreign affairs power that are not

specified in the Constitution?

Executive branch,


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as seen in the case of Washington and have an alliance with France,

Washington decided that it was not in the best interest of the

United States to join the French revolutionary and declare their

alliance inapplicable.

Washington claimed that given the foreign affairs power, including

the power to interpret or abrogate a treaty and the power in effect

to declare peace.

The proclamation of neutrality

basically a letter by George Washington stating that the citizens of

the US shall render himself liable to punishment or forfeiture under

the law of nations, by committing, aiding, or abetting hostilities

against any of the said Powers, or by caring for any of them those

articles which are deemed contraband by the modern usage of the

nations, will not receive the protection of the US, against such

punishment or forfeiture and instructs officers to cause

prosecutions to be instituted against all persons who shall violatethe law of the nations with respect to the powers that war or any

of them.

Pacificus no. 1

Objections to neutrality fall under these heads

1. That the proclomaion was without authority

2. and it was contrary to our treaties with France

3. that is contrary to the gratitude, which is due from this to that

country, for the succours rendered us in our own revolution.

4. That it was out of time and necessary.

What is the nature and design of the neutrality act:

to make it known to the powers at war and to the citizens of the

country, whose government does the act that such countries

and the condition of a nation at peace with the belligerent

parties, and under no obligations of treaty, to become an

associate in the war with either of them at this being at

situation it's intention is to observe a conduct conformable with

it and to perform towards each the duties of neutrality.

The management of the affairs of this country with foreign

nations is confined to the government of the United States.

What's the purpose of being neutral

y to prevent the nation being immediately responsible foracts done by its citizens, without the privy or

connivance of the government, in contravention of the

principles of neutrality.

y The issuing of a proclamation of neutrality is anexecutive act.


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But what about the fact that the legislature has the

right to create war?

That may be true that the executive has the power to

preserve peace towards the clear and in fulfilling that

duty it must necessarily possess a right of judging what

is the nature of the obligation which the treaties of the

country impose on the government and when in

pursuance of this right it has concluded that there is

nothing in an inconsistent with a state of neutrality.

What is the executive charged with?

y The execution of all laws, the laws of nations aswell as the municipal laws, which recognizes

and adopts those laws.

y Avoid giving a cause of war with foreignnations.

What this proclamation of neutrality is all about?Proclaims the fact with regard to the existing state of the nation, and forms a citizen of what the laws

previously established require of them in that state and warns them that these laws will be put in

execution against the factors of them.

QUESTION2) Does the power of neutrality only used to prevent war by the president????

Letters ofHelvisius nos. 1 and 2

Question what doctrine in Madison talking about????? Is it the proclamation of neutrality????

James Madison wrote the powers of making war, entries, and in their nature executive, therefore

comprehended in the general grant of executive power, were not specially in strictly expected out of

the grant.

Two exceptions to the executive power:

The participation of the senate in the appointment of officers, and the making of treaties. If there

remains to be mentioned the right of the legislature to declare war, and grant letters of marquee and

reprisal.

A treaty is not an execution of laws it does not presuppose the existence of walls. It is on the contrary

to have itself the force of a law it to be carried into execution like all other laws, by the executive

magistrate. To say that the powers of making treaties, which are confessedly lawful blanc naturally to

the department which is to execute laws is to say, that the executive department naturally includes a

legislative power. This would be a practice of tyranny.


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The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not

an execution of laws it does not suppose pre-existing laws to be executed is not, in any respect, and

act merely executive. It is, on the contrary, one of the most deliberate acts that can be performed,

and when performed, has the effect of repealing all the laws operating in a state of peace, so far as

they are inconsistent with the state of war in heaven acting in as a role for the executive, a new code

adapted to the relation between the society and its foreign enemy.

Executive has a preliminary communication with foreign governments, on the subject of trivial or war

in the proper agent for carrying into execution the final determinations of the competent authority,

the Congress decides whether there is war or not.

The Constitution vests the power of declaring war is in Congress. The powers of treaty investor

joining the president and in the Senate which is a branch of the legislature. The sum is joined with the

president another power, that is appointing top offices yet on the other hand, there are sufficient

indication that the power of treaties is recorded by the Constitution as materially different from mere

executive power, and is having more to do with the legislative then the executive branch.

Why the president doesn't have the power to declare war?

It is true that the president is commander-in-chief of the Army of the United States that those who are

to conduct a war cannot in the nature of things, the proper or safe judges, whether a war ought to be

commence continued or concluded. They are barred from the latter functions like great principle in free

government which separates the sword from the purse or the power of executing from the power of

enacting laws.

No. II

The declaring of war it is a legislative function. And no other department can be in the execution of its

proper function.

NeutralityAct of 1794

An act in addition to the acts for the punishment of certain crimes against the United States.

Sec 1; any system within the US that serves the form prints or state in war by land or sea person shall

be fined 200,000. And shall be imprisoned not exceeding three years.

Sec, 3

If a US ship help another foreign country commit hostilities against US citizens person shall be

convicted and shall be fined and imprisoned.

Sec. 8

shall be lawful for the president to employ such part of the land or naval forces of the United States to

compel any foreign ship or vessel to depart the US.


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Questions and answers pg. 111

See assignement word doc

The correspondence of the justices

i. The neutrality controversy gave rise to another question:

Whether the president may call upon the justices of the Supreme

Court for advisory opinions on legal questions on which the

executive branch desired guidance.

ii. Secretary of State Thomas Jeffersonwrote to justice J at Supreme

Court regarding some legal questions arising out of America's

relationship with France. The Supreme Court responded that judicial

powers was constitutionally limited to deciding cases andcontroversies between actual parties.

The judicial power can write the letter to the president at the time

George Washington.

Chief Justice Jay and the associate justice to president Washington

This letter basically tells the president that there is a system of

checks and balances that the question that he needs an answer to

should be received from the executive departments.

Notes and questionspage 114 ( see assignement word doc)

The alien and sedition act controversies

Problems with France and England. In Chief Justice John Jay resolved many

lingering dispute reprint, but further strain relations with France. France

was interfering with America's right to neutral shipping.

Congress narrowly controlled by a Federalist party enacted a series of

measures popularly known as the alien and sedition acts.

Designed to put the nation on a war footing with France and to guard

against suspected internal subversion by aliens and those opposed to the

administration of Pres. Adams.

The alien friends act

Sec. 1 president has the right to depart any one from US territory who he suspects is dangerous or is

committing treason. Also any aliens who does have licensed the states and big and the prison for three

years after the and never come back to the US

Sec. 2


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refers more to the alien. That the anti-will be removed to the territory or will be put in prison where

there is a question of public safety it will require speedy removal. And in regards to save the president

may in prison the aliens so long as public safety may require.

The Alien Enemies Act

y Any male of the age of 14 years or older who shall be within the United States and not actuallynaturalized shall be liable to be apprehended secured and removed as alien enemies if at the

time a declared war between the US and any foreign nation or government or any invasion be

perpetrated attempted or threatened against the territory of the US by any foreign nation or

government.

y After passing the alien act, Congress enacted the sedition act, which provided criminal penaltiesfor conspiracy to oppose the government and the writing or saying false or scandalous matters

about the president and Congress.

The Sedition Act

any person shall all lawful and combine or conspire together with intent to oppose any measure

measures of the government of the US which are or shall be directed by proper authority or tointimidate or permit any person holding a placer office in or under the government of the US from

undertaking performing or hang his trust or to the punch exceeding $5000 and imprisonment during the

term not less than six months nor exceeding five years.

Sec 2

if any person shall) letter published knowing and willing to assist or aid in full scandalous and malicious

writing the government of the US or either house of Congress with intent to defame such person is

convicted by the court shall be punished by a fine not exceeding $2000 and by imprisonment not

exceeding two years.

Sec3

any person shall be prosecuted under this act, for writing or publishing any liable on the trial because

the jury shall have a right to determine the law and facts whether to charge the person or not

Notes and questions page 117

Judicial enforcement of the sedition act

y The US government brought a number of criminal proceeding under the sedition act 14 in all.Five of the six most influential Republican papers were ultimately prosecuted under the new

laws by a Federalist dominated judiciary.

United States v. Lyon

Mathew lyon was the def and was a part of the fed legislature

The prosecution of a Republican congressman from Vermont


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1798 3 counts

1) Stir up sedition

2) Bring the president and govt of the U.S. into contempt

Laid the following libelous matter:

As to the executive when I shall see the effort of the power bent on the promotion of the

comfort the happiness in accommodation of the people they will have my support

furthermore he explains that he sees the executive wants only power that selfish. Goes on to

say when he's out the men of firmness merits and experience disregarded in their applications

for office for fear they possess that independence. When I shall see the sacred name of

religion employed as a state engine to make mankind hate and persecute one another, I shall

not be there humble advocate.

Basically is pointing out things that he sees wrong with the executive branch that they are

thirst for power, the applications for office or not taken by several because there is fever that

that person will possess independence, says the government uses religion to hate and

persecute another.

Second count consists of having malicious intent published a letter: said to be a letter from a

diplomatic character in France.

basically states the president's speech was bullying and the Senate had stupid answers at the

opening of Congress. Blame that when the president borrowed the language of Edmund Burke

and telling the world that although he should succeed in treating with the French there was

no dependents to be placed on any of their engagements that their religion and morality were

at the end although the French were at peace he questions why Congress did not send it to

the madhouse. Instead the Senate echoed the speech with more servility.

Third count assisting counseling aiding and abetting the publication of the same

The father was arrested on a bench warns immediately after the funding bill. He pleaded not

guilty.

Evidenve presented at trial

Dist. Atty. produced a letter from the same defendant dated July 7, 1790 .The authorship of the

letter and the fact of the publication admitted by the defendant. There was further proof that

the defendant had several times read at public meetings and for months the letter from which

the libellous matter in the second count was taken.

Several witnesses and in and in red below both public and private newsletter for political

purpose.

The defendant defense:

1) court had no jurisdiction of the offense; act of Congress being unconstitutional and void, if notso generally, at least, after writings composed before its passage

2) the publication was innocent3) contents were true


33/33

On the first two points he offered no testimony, but on the third and he proposed to call

Judge Patterson, the presiding judge in judge Israel Smith.

The def asks jude Paterson two questions:

The defendant that asked the judge whether or not he had witnessed the president's

ridiculous pomp and parade. The judge said no on the contrary there was a great deal of

plainness and simplicity.

The defendant that asked whether the judge had not seen at the president's more pomp and

servants there than at the tavern at ruthland?

the judge gave no response.

No other witness was called.

The defendant represented himself because his counsel (then judge smith)was told at the last

minute and failed to decline to reply.

Judge Patterson charged jury as follows:you have nothing whatsoever to do with the constitutionality or unconstitutionality of the

sedition law. Congress has said that the author and publisher of the dishes my goals is to be

punished and until this law declared null and void by a tribunal competent for the purpose its

validity cannot be disputed. The only question you are to determine is that which the record

submits to you. Did Mr. lion published the writing given in the indictment? Did he do so

seditiously?

1) On the first point the evidence is undisputed he himself concedes the fact the publication asto a large portion of libelous matter.

2) As to the second point, you will have to consider whether language such as that herecomplained of could have been uttered with any other intent than that of making odious orcontemptible the president and govt and bring them both into disrepute.

Note: After about an hour the jury returned with a verdict of guilty.

Holding:The judge of the court is, that you stand in prison for months, pay the cost of

prosecution, and a fine of $1000, and stand committed until the sentence be complied with.

Pg. 122 ( see assignment doc)