Welcome Gov Team!

Date: 09/01/09, Topic: Constitutional Law

Think of items to discuss.

Announcements:

Gov Team Agenda1) How to Write Your Speeches2) Constitutional Law Discussion3) Moot Court Prep4) Moot Court Orals on Thursday (no lapt)

Unit To Dos1) Write Speech 1

Reminder1) 1st Question Due Monday 9/14

Speech ProcessA-Assign Sections:-Open up discussion of big Q (1 ppl)-Bullet 1 (1-2 ppl)-Bullet 2 (1-2 ppl)-Close discussion of big Q (1-2 ppl)

S-Sign Post: “Be verbally obvious which part of Q you are addressingA - Authenticate: Is it true to you?P - Proof: Verify you prove what you say(Whole speech target: 3:30-3:45min)

Followup ProcessA - Answer: Quick answer to their questionS - Story: Background on the issueA - Analysis: Detailed answer to their questionP - Proposal: Recommendation on what should be done(All responses need to be short and spoken slowly. Try to get 3 people on a question, but never all 5)..

Review1) Federalism in the Constitution: FEDERAL gov can ONLY do what

the Constitution says. Make laws on very specific list of things.

STATE government can do (make laws on) ANYTHING except when forbidden by the US Constitution.

Parenting Analogy: USA: You can only go to the library.STATE: You can go anywhere

except the bar.

Review2) Enumerated Powers: Each branches (1: cong,

2: pres, 3: courts) powers are enumerated (listed) in the Constitution. Congress being most powerful, their enumerated powers are the most important.

The two most powerful enumerated power of Congress are its power to make laws to:

1) Tax and Spend and 3) Regulate Interstate Commerce

6) Preemption: IF the Constitution permits the Federal gov to make a law, fed law overrides any conflicting state law.

Notes #6a, Title: “Constitution Notes” 1) Constitutional Gov: US one of few societies

with strong belief in rule of law. 2) US Constitution (1788): Social contract ratified

by ppl conventions (representative vote), 9/13.

China: Article 35. Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

US: Congress shall make no 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 grievanc

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.“

From Article 2 of the US Constitution

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States” -US Code

Notes #6a, Title: “Constitution Notes” 3) US Constitution Characteristics: a) Rule of Law (no one above the law)b) Republican demo (representative)c) Separation of Powers (legis, exec, jud)d) Federalism (national/state share power)

Secret Sauce (not written but expected)e) Common Good/Virtue: We have no king

to keep us together, so we must have the character to make experiment work.

Constitutional Structure and Amendment:Article 1: Congress/Legislature (House + Senate)Article 2: President/Executive (President +

Implied Bureaucracy)Article 3: Federal Courts/Judiciary (US Courts)Article 4: State LimitsArticle 5: Amendment Process: 2/3 of Congress > 3/4 States 2/3 of States > 3/4 States (never used)Article 6: National Supremacy (when granted)Article 7: Ratification ProcessAmendments: First 10 (Bill of Rights) 27 Amendments Total So Far

Notes #6a, Title: “Constitution Notes” 4)

Constitution

1: Legislature

(S + H)

2: Executive (President)

3: Judicial(SC, CC,

DC)

Bureaucracy

CONSTITUTIONAL CHECKS AND BALANCES:Article 1: Congress/Legislature (House + Senate)Makes the laws

Article 2: President/Executive (President + Implied Bureaucracy)

Executes the laws

Article 3: Federal Courts/Judiciary (US Courts)Interprets the laws

Notes #6a, Title: “Con Law Notes” 5) Constitutional Law: Rules set in the

Constitution for all of US (harder to amend).6) Congressional Law or Act: Rules created by

Congress for all of US, same power as Constitution (easier to amend, Jud. can kill).

7) US Code (U.S.C.): The numbering of congress’ laws for organizational purposes.

8) Code Federal Regulations (C.F.R.): Additional rules the bureaucracy adds to flush out laws.

Notes #6a, Title: “Con Law Notes” 5) Constitutional Law: Rules set in the

Constitution for all of US (harder to amend).

Notes #6a, Title: “Con Law Notes” 6) Congressional Law or Act: Rules created by

Congress for all of US, same power as Constitution (easier to amend, Jud. can kill).

Constitutional Law: Real Tattoo

Congressional Law or Act: Temporary Tattoo

All look the same, serve the same purpose, just one is more reversible.

Federal Court-Laws: Can judicially review: interpret/kill laws.

Federal Courts-Const: Can judicially interpret const, but must follow const (unless Cong amends)

Constitution can never contradict itself (most recent amend trumps)

Notes #6a, Title: “Con

Law Notes” 7) US Code (U.S.C.):

The numbering of congress’ laws for organizational purposes.

Notes #6a, Title: “Con

Law Notes” 8) Code Federal

Regulations (C.F.R.): Additional rules the bureaucracy adds to flush out laws.

Notes #6a, Title: “Con Law Notes” 5) Constitutional Law: Rules set in the

Constitution for all of US (harder to amend).6) Congressional Law or Act: Rules created by

Congress for all of US, same power as Constitution (easier to amend, Jud. can kill).

7) US Code (U.S.C.): The numbering of congress’ laws for organizational purposes.

8) Code Federal Regulations (C.F.R.): Additional rules the bureaucracy adds to flush out laws.

Notes #6a, Title: “Con Law Notes” 9) Enumerated Powers: Listed powers 1) The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.3) To regulate commerce with foreign nations, and among the several states; (Interstate Commerce Clause)

10) Enforcement (Future Action) Clause: Language that allows Congress to make news laws based off enumerated power or amendment.

11) Article 1’s Enforcement Clause: Necessary and Proper Clause (NPC): Also known as the elastic clause (McCulloch v. Maryland: US Bank-Tax/Spend)

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

Power of Taxing and Spending: Article 1, Section 8, Clause 1. It gives the Congress the power to tax and spend. NPC lets Congress make new laws to do raise money to pay for something it wants.

Mandates Review: If when the Fed demands the state to do something. If the state refuses, the Fed will deny it money. (States can refuse to obey and lose the money).

Interstate Commerce Clause (ICC): Article 1, Section 8, Clause 3. It gives the Congress the power to regulate interstate commerce (commerce between states). NPC lets Congress make new laws to raise money to pay for something it wants. ICC is Fed’s most useful tool!

NPC Review: NPC by itself has NO power. Congress has to prove the new law is connected to 1-17 like 3 (ICC), then the NPC lets them make it.

NPC (18) is the car.

Enumerate power 1-17 is the driver. NPC (18) is the car, they need each other to work.

Enumeratepower 1-17 is the driver.

Work #6a, “Enumerated Power”Page: XWith a partner, look at the enumerated powers

1-17, and see which one can be the justification for a federal law (with the action clause of the NPC, 18).

1) Law to pay for and build a new bridge.2) Law to ban SPAM. 3) Law to update the $100 bill.4) Law to declare war against Iran5) Law to sell bonds to pay the national debt Be prepared to present.

15th Amendment’s Enforcement Clause: Section 2

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Civil Rights Act of 1964 = Interstate Commerce

Voting Rights Act of 1965 = 15th Amendment

No Child Left Behind = Mandate

REMEMBER, ALL BECAUSE THE FED GOV CAN’T DO IT, DOESN’T MEAN IT WON’T HAPPEN, IT MEANS IT’S LEFT

TO THE COURT TO STOP.

Notes #6b, Title: “Moot Court Notes” 12) Judicial Review: Cases brought to it, judiciary’s power to interpret what laws mean (Marbury v Madison: killed part of Jud Act 1789)13) Loose Interpretation: Interpret Constitution loosely to evolve with changing times. 14) Strict Interpretation : Stick to literal word meaning of the Constitution15) Originalism: Stick to intent of the framers/law writers.

Work #6b, “Con Interpretation Debate”1) Read the 2 sides, choose 1 side, and write

which you choose and explain why.2) Then write down what your partner thinks

(include their name at the end).1 2 3 4 5

CON: Strict1) More predictable2) If times change, then let Congress amend the Constitution.3) Federal judges are nominated for life, its too much power to let decide what laws are.

PRO: Loose1) Strict can lead to unpractical outcomes2) Times change, laws need to reflect change.3) The courts are the most qualified to determine the meaning of laws (laws will always need interpreter)

Mock Trial: Simulated Trial with a Jury (discovery and disputing of facts/evidence)

Moot Court: Simulated Appeals and Supreme Court hearing (NO questioning of the facts, so no jury, just a fight over what the interpretation of the law)

Example:Trial: John Doe did not murder his fish.Appeals: Killing a fish does not constitute

cruel and punishment of animals.

Notes #6b, Title: “Moot Court Notes” 3) Plaintiff (P pi): Victim harmed, suing4) Defendant (D or triangle):Accused of harming,

being sued5) Appellant (A): Lost lower case, bring appeal to

“reverse” the lower court.6) Respondent (R): Winner of lower case,

wanting the court to “affirm” the lower court

Work #6c, Title “Moot Court”Appellant v. RespondentWrite these in your workbook:1) Greeting Statement2) Issue Statement3) Facts of the Case4) Legal Arguments SKIP: Possible Rebuttals 5) Closing Statement

Article 1, Section 8, Clause 3 (ICC): “Congress shall have Power to… regulate Commerce…

among the several States…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

Work #6c, Title “Moot Court”Oral Argument Structure1) Greeting Statements (both sides come up)2) Issue Statements (both sides come up)3) Facts(both sides come up)4) Initial Arguments (appellant first, respondent second)5) Rebuttals (appellant first, respondent second)6) Closing Statements (both sides come up)

Article 1, Section 8, Clause 3 (ICC): “Congress shall have Power to… regulate Commerce…

among the several States…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

Case Summaries:1) Hammer v. Dagenhart (1918)Child labor is a state issue, and not interstate

commerce. In 1941, court reversed itself.2) Heart of Atlanta Motel v. US (1964)Racism can have a substantial effect of interstate

commerce. 3) US v. Lopez (1995) and US v. Morrison (2000)Local acts of violence has NO substantial effect

on interstate commerce.4) US v. Lopez (1995) and US v. Morrison (2000)Local acts of violence has NO substantial effect

on interstate commerce.

Critical Point: Why couldn’t the Civil Rights Act be passed under the 14th Amendment's enforcement clause?

14th Amendment, Section 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

President’s Listed Powers, Article 21) The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States2) Power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.3) He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.

Federal Court’s Listed Powers, Article 3The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States…to controversies between two or more states… the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

(Judicial Review: Most vague of the listed powers for the branches, courts interpreted themselves to have the power of review)

Amendments, Article 5The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourth

Framers thought amendments would happen more often that it does (US: 27 CA: 500)

Past Amendments Proposed but Failed

1876: Abolish the Senate1878: Replace the President with a

Council of 31893: Abolish the Military1914: Make divorce illegal1916: Declare war through voting,

and have those who vote yes to register for military service

1933: Limit personal wealth to $1 million

1971: To declare citizens have a right to a clean environment

ERA: Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

35 states which ratified the ERA rescinded their

Future Amendments Being Discussed1) Flag Burning Amendment: Ban flag burning

(Fed Courts say we have a 1st Amendment right to burn flags)

2) Marriage Amendment: Define marriage as between a man and a woman. (Fed courts have refused to decide yet)

3) Arnold Amendment: Let non US born citizens run for president.

4) End the Electoral College Amendment: Let voters directly choose the president.

Wrap Up1) Check in with your unit about Speech 1

Unit To Dos1) Write Speech 1

Reminder1) 1st Question Due Monday 9/14