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Cooper, Brandon

Con Law 101

The Constitution

A summary of the Constitution of the United States of America

The U.S. Constitution, written in 1787 and ratified in 1788, outlines the structure of America’s federal government. It also guarantees the states and people certain rights. The text of the Constitution is contained within seven Articles and twenty­seven Amendments. For more background information on the Constitution, click here.

I. The Constitution (1789)

  • A) Articles 1­-3: Branches, Checks, and Balances

The first three articles of the Constitution establish three branches of government with specific powers: Executive (headed by the President), Legislative (Congress) and Judicial (Supreme Court). Power is separated and shared. Each branch can check other branches’ actions or balancethe actions of other branches with their own actions. There are two forms of powers: express and implied. Express powers are granted in the Constitution. Implied powers are derived from those express powers or the branch’s role.

The table below outlines several powers of the federal government, who exercise them, and who exercises them.

 

Executive (Article 1)

Legislative (Article 2)

Judicial (Article 3)

Create Laws

The president may sign or veto a law (subject to a 2/3rds vote in congress).

The courts may find laws unconstitutional.

Execute Laws

Congress oversees the executive bureaucracy.

The courts may find executive actions unauthorized.

Interpret Laws

The president nominates federal judges.

The senate confirms judicial appointments.

Nominate Officials

The senate reviews many appointments.

 

Impeach Officials

 

 

Create Treaties

The senate must ratify treaties.

 

Budget

The president must sign a budget, like other laws.

 
  • B) Articles 4,6, and 7: Relationships Between the State and Federal Government

Article IV

  • Full Faith and Credit: each state must recognize certain privileges of other states’ citizens (like drivers licenses)
  • Extradition
  • Formation of new states

Article VI

The “supremacy” clause: the Constitution and federal laws take priority over state laws

Article VII

How the states ratify the Constitution

II. How to Change the Constitution

Under Article V, there are two ways to propose amendments to the Constitution and two ways to ratify them.

  1. To propose an amendment
    • a. Two­-thirds of both houses of Congress vote to propose an amendment, or
    • b. Two­-thirds of the state legislatures ask Congress to call a national convention to propose amendments.
  2. To ratify (vote for and adopt) an amendment
    • a. Three­-fourths of the state legislatures approve it, or
    • b. Ratifying conventions in three­fourths of the states approve it.
    • Other Information
      • Only the first method of proposing an amendment has been used.
      • The second method of ratification has been used only once, to ratify the Twenty-first Amendment (repealing Prohibition).
      • Congress may limit the time within which a proposed amendment must be ratified. The usual limitation has been seven years.
      • Thousands of proposals have been made, but only thirty­three have obtained the necessary two­thirds vote in Congress.
      • Twenty seven amendments have been ratified.

III) Important Changes to the Constitution

Amendments 1­-10 are known collectively as the Bill of Rights. They were ratified on December 15, 1791, as additional rights protections

Protections

 

Amendment 1

Freedom of religion, speech, press, and assembly; the right to petition the government.

Amendment 2

Right to bear arms

Amendment 3

Troops may not be quartered in homes in peacetime

PROTECTIONS AGAINST ARBITRARY POLICE AND COURT ACTION

Amendment 4

No unreasonable searches or seizures.

Amendment 5

Procedures for criminal prosecutions:

  • Grand Jury indictment required for felony charges in federal court
  • Double jeopardy clause prevents a person from being tried twice for the same crime
  • A defendant cannot be forced to testify. “Plead the fifth”

Amendment 6

Right to speedy, public, impartial trial by jury with defense counsel and right to cross­-examine witnesses.

Amendment 7

Civil jury trials in federal cases

Amendment 8

No excessive bail or fines, no cruel and unusual punishment

PROTECTIONS OF STATES' RIGHTS AND UNNAMED RIGHTS OF PEOPLE

Amendment 9

Unlisted rights are not necessarily denied

Amendment 10

Powers not delegated to the United States or denied to the states are reserved to the states

See additional amendments information at The Amendments to the Constitution (from Project Vote Smart).

Constitutional Vocabulary

Bill of Attainder

- A legislative act that declares the guilt of an individual and doles out punishment without a judicial trial. The state legislatures and Congress are forbidden by Article 1, sections 9 and 10 of the Constitution to pass such acts. This is an important ingredient of the separation of powers.

Executive Privilege

- The claimed right of executive officials to refuse to appear before, or to withhold information from, the legislature or courts on the grounds that the information is confidential and would damage the national interest. For example, President Nixon refused, unsuccessfully, to surrender his subpoenaed White House tapes by claiming executive privilege.

Executive Order

This critical instrument of active presidential power is nowhere defined in the Constitution but generally is construed as a presidential directive that becomes law without prior congressional approval. The power for the executive order is implied in Article II of the Constitution when it allots "executive power" to the president:

"The executive power shall be vested in a president of the United States of America." - Article II, section 1

"[The President] shall take care that the laws be faithfully executed..." - Article II, section 3

Double Jeopardy

- The guarantee in the Fifth Amendment to the Constitution that one may not be tried twice for the same crime. For example, an individual declared not guilty of murdering a neighbor cannot be tried again for that murder. The person is not, however, exempt from being tried for the murder of another individual.

Habeus Corpus

- A court order directing a police officer, sheriff, or warden who has a person in custody to bring the prisoner before a judge and show sufficient cause for his or her detention. Designed to prevent illegal arrests and unlawful imprisonment. A Latin term meaning "you shall have the body".

Impeachment

- A formal accusation against a public official by the lower house of a legislative body. Impeachment is merely an accusation and not a conviction. Two presidents have been impeached, Andrew Johnson in 1868 and Bill Clinton in 1998. Neither was convicted. In the case of Johnson, the Senate failed by one vote to obtain the necessary two-thirds vote required for conviction. In the case of Clinton, fifty senators voted for conviction, again missing the two-thirds requirement.

Ex Post Facto Law

- A law that makes criminal an act that was legal when it was committed, or that increases the penalty for a crime after it has been committed, or that changes the rules of evidence to make conviction easier; a retroactive criminal law. A Latin term meaning "after the fact." The state legislatures and Congress are forbidden to pass such laws by Article I, section 9 and 10 of the Constitution.

Other Sources of Information:

The Constitution of the United States Site contains the actual text of the Constitution as well as links to information on the Founding Fathers, the 39 Delegates who signed the Constitution, an in-depth look at the Constitutional Convention and the ratification process, and questions and answers pertaining to the Constitution. Online from the National Archives and Records Administration (NARA).

About the Constitution History and background on the Constitution, as well as the Articles of Confederation. Online from the Library of Congress.

First Amendment

First Amendment: An Overview

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. See U.S. Const. amend. I. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. See U.S. Const. amend. XIV.

Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state." Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a person's practice of their religion.

The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal actionfighting words,commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message.  The level of protection speech receives also depends on the forum in which it takes place.   

Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.

The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First, Fifth, and Fourteenth Amendments. This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual's current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.

The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts (litigation) or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.

 

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