Hamilton - Fall 2003 Con Law II -

Hamilton - Fall 2003 Con Law II - - CONSTITUTIONAL LAW II...

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CONSTITUTIONAL LAW II OUTLINE I. Historical Framework 1787-1789 Constitutional Convention: Develop system of checks and balances because anybody who holds power is likely to abuse it. Constitution based on the idea that people will abuse power and that a structure had to be created to deter such abuses Before the Convention: State power: Before Convention, states had all power to create laws. Rights of the people: Held some rights against the states. E.g. free exercise of religion, some elementary notions o f right free speech but all states had anti-blasphemy, heresy, and anti-sedition laws. After the Convention: Federal power: takes some power away from the states but only certain enumerated powers: reg commerce, military, enter into treaties. Separated powers—3 branches and share power with states. States retained all power not given to anybody else. First Amendment and Bill of Rights: added to constitution as deal to get it ratified. Anti-federalists: wanted protection against what they thought was the federalist notion of a expansive federal gov’t over the states. Fear of a central gov’t that would abuse such power if given too much. Wanted a Bill of Rights added to limit fed gov’t reach over the people, not enough to leave powers to states and people by implication. Federalists: Madison drafted Bill of Rights b/c knew they had to pass the Constitution, but he felt that it would be impossible to enumerate all the rights people should have so that by doing so, they were in effect limiting those rights in the years to come. First Amendment: against Congress: “Congress shall make not law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” Ninth Amendment (rights not enumerated go to the people) : “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” Tenth Amendment (rights not enumerated go to the states) : “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Issue of slavery: South not ratify Constitution unless leave slavery untouched so the issue was avoided at the convention. Wilson predicted Constitution not work til resolve the issue which would lead to a war b Civil War 90 years later.
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1789 Constitution Ratified. Post Civil War Amendments—13-15th —limits on state gov’t exercise of power; 14th amend = Equal Protection --Incorporate Bill of Rights to States as jurisprudence develops. 1950’s:
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Hamilton - Fall 2003 Con Law II - - CONSTITUTIONAL LAW II...

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