chapter 1 - an historical overview

© 2015 Cengage Learning

Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 1An Historical

Overview


Law is a body of rules promulgated (established) to support the norms of that society, enforced through legal means, that is, punishment.

A constitution is a system of basic laws and principles that establish the nature, functions and limits of a government or other institution.

The American Constitution is youthful, which makes it all the more impressive for its enduring nature and flexibility.


Refers to a society in which numerous distinct ethnic, religious or cultural groups coexist within one nation, each contributing to society as a whole

Living in a Pluralistic society creates a challenge to exercise tolerance and respect for the opinions, customs, traditions and lifestyles of others.

Representatives from every culture that has come to America share in the historical development of our country and legal system.

It is the common thread that binds all who have come here that makes American law so unique in serving the pluralistic society that created it.


o Town meetings were restricted to once a year.

o The king was required to appoint people to the governmental court rather than have them elected.

o Quartering Act expanded, requiring soldiers to be housed in private homes and buildings.

o British officials accused of crimes in the colonies could only be tried in England.

Colonists resisted increased taxes because they felt it was taxation without representation.

1773 Boston Tea Party- colonists boarded 3 British ships and dumped cargos of tea overboard.

Parliament passed several laws in retaliation for this open act of defiance.


In 1774, 55 delegates from 12 colonies met in Philadelphia. The 1st Continental Congress resulted in the first written agreement among the colonies to stand together in resistance against Britain.

Congress agreed on three important actions:o Adopted a set of resolutions that defined the

rights, liberties and immunities of the colonists. o Addressed King George III and citizens of Britain

calling for a restoration of American rights.o Established a boycott to prevent the buying of

British goods until Congress’ demands were met.


Established the Continental Army and named George Washington its commander.

Congress raised money and bought supplies for the new army. They sought out support from other countries by opening diplomatic relations.

The colonists were prepared for an all out war with Britain.

Many great battles showed that America’s people were committed to fight for their independence: Ticonderoga, Bunker Hill, Trenton and Saratoga.


In May, Congress instructed each of the states to form its own government and assuming powers of independent states.

July 4, 1776-the Congress unanimously voted in favor of American Independence.

There were six important sections.


1. First paragraph explains why the Declaration was issued.

2. Declares all men to be equal and to have equal claims to life, liberty and the pursuit of happiness. Stated the government’s right to rule is based on the consent of the governed.

3. Charges made against British king and described how they denied the American colonists their rights.

4. Describes the colonists attempts to obtain justice and the British lack of response.

5. Proclaimed independence.6. Lists the actions the new

United States of America could take as a country.


Formally pledged the states to a “firm league of friendship,” and “a perpetual union” created for “their common defense, the security of their liberties” and their “mutual and general welfare”.

Established a Congress to conduct necessary tasks of a central government, including waging war and making peace, controlling trade with the Indians, organizing a mail service and borrowing money.


Considered the most important instrument of English government.o Established the supremacy of the law over the

ruler.

King John was forced to sign the original document on June 12, 1215.o Showed that no one was above the law.


The Magna Carta provided a stable framework from which to start.o It was a step away from total rule by a single

individual.o Long history of success.o Provided some security and that not

everything needed to start from scratch.


Articles of Confederation were inadequate for effective government due to the lack of balance of power between the states and the central government.

1787-Congress called for a convention to revise the Articles.

George Washington was elected to preside over the meetings.


Was to establish a central government authorized to deal directly with individuals rather than states and

To incorporate a system of checks and balances that would preserve the fundamental concepts contained in the Magna Carta, that is, to limit the power of government.

To prevent one individual from having complete power.


Structure and powers of legislative, executive and judicial branches.

The checks and balance would allow the system to work, while achieving the primary goal of limiting power to any individual or section of the government.

The first three articles established the legislative, executive and judicial branches of the government and the country’s system of checks and balances.


Legislature may pass laws, but cannot enforce or interpret them.

Contains the Great Compromise. Congress has 2 chambers

o Senate• Each state has 2

senators.• Each senator has 1

vote.• Sole power to try all

impeachments.

o House of Representatives• Membership based on

state populations.• Power of impeachment.• 1st to consider bills for

raising taxes.


Issues: Does Congress have the power to incorporate a bank and does the State of Maryland have the power to tax it?

Holding: Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8).

The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution.


Section 8 of Article 1 grants specific powers to Congress:o Coining money.o Establishing post offices.o Lay and collect taxes.o Borrow money on the credit of the United States.o Regulate international and interstate commerce.o Naturalize foreign-born citizens.o Raise and govern the military forces.o Declare war.

Elastic clauseo Reserve of power to do what was “necessary and

proper” to pass laws for the nation. Enact laws that directly affected the people.


Created to carry out the law. Provide a Commander in Chief of the

military forces. Carry out nation’s foreign policy.

o Entering into treaties with other nations To appoint ambassadors, judges and

officials needed for the government to function.

Chosen by electors.


Issue: Is a serving President entitled to absolute immunity from civil litigation?

Holding: In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. o While the independence of the government's

branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another.


The president’s most significant actions must be approved by the Senate.

Treaties require 2/3 vote. Judges and appointed executive officials need a

majority vote to be confirmed. Must report periodically to Congress on the state

of the Union. May recommend laws Congress should enact. MOST IMPROTANT DUTY-”shall take care that the

laws be faithfully executed”.


Vesting Judicial power in the U.S. Supreme Court.

Federal court judges are appointed by the President and hold office for life.

Congress is authorized to regulate the court’s dockets by deciding what kinds of cases the Supreme court can hear on appeal.

Congress regulates the courts’ jurisdiction. Courts interpret the laws.


Issue: Can peacetime court-martials try civilian persons?

Holding: "Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the 'land and naval Forces'. . . ." o Therefore the Court held that Mrs. Dial (a civilian wife) is

protected by the specific provisions of Article III and the Fifth and Sixth Amendments, and that her prosecution and conviction by court-martial are not constitutionally permissible.


The President has veto power.o Congress can override with 2/3 majority vote.

President nominates Supreme Court justices.o Legislative branch confirms or denies the

nomination. President is the Commander in Chief.

o Legislative branch declares war and pays for it.


Supremacy clause- federal law will reign when there is conflicting state law.

The Article permitted the Supreme Court to become the ultimate decision maker in whether laws and actions of the government circumvent the Constitution and to invalidate them if they do so.

Requires the allegiance of every federal and state official to the Constitution.


Ben Franklin moved that the Constitution be approved unanimously and signed by those states present.

September 17, 1787, the U.S. Constitution was signed in Philadelphia.

42 of the 55 delegates were present to sign the Constitution.

3 members refused to sign.o George Mason-because of the lack of a bill of

rights.


Federalists- favored a strong central government.

Anti-Federalists- favored a weaker central government.o Didn’t not want to ratify without a bill of rights

guaranteeing individual liberties. Amendments- changes to the Constitution or

bylaws.o December 15, 1791- states had ratified 10 of 12

proposed amendments to ensure that the national government would not interfere with individual liberties.


Aimed at balancing the rights of the states and of individual citizens against the powers of the central government.

The Constitution was general, and the Amendments were specific.

The Declaration of Independence, the U.S. Constitution and the Bill of Rights are housed in the Rotunda for the Charters of Freedom at the National Archives in Washington, D.C.


1st Amendment - Freedom of speech, Freedom of religion, Freedom of press, Right to assemble, Right to petition.

2nd Amendment – “to keep and bear arms.” 3rd Amendment – prohibition from housing soldiers. 4th Amendment – privacy and security. 5th Amendment – restrictions as to how

government can treat people suspected of crimes. 6th Amendment - Informed of nature and cause of

accusation, Confront adverse witnesses, Obtaining favorable witnesses, Assistance of Counsel for defense.


7th Amendment - Right to trial by jury in common law cases where the value exceeds $20.

8th Amendment – cruel and unusual punishment. Excessive bail and fines.

9th Amendment – answered objections to those who thought that naming some rights but not all might result in government claiming more power than intended.

10th Amendment - Powers not delegated to the United States by the Constitution are reserved to the States respectively or to the people.

chapter 1 - an historical overview

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