1 Lecture #1: The ConstitutionPOLI 102: July 10, 2017 Lecture #1: The Constitution
2 Our Class 2 Papers Midterm Final Exam Attendance requiredCourse website: allenbolar.com Go the to the “teaching” menu and find our class Powerpoints, review guides, etc… go there.
3 Would you pull over if a police officer flashed his lights behind you?Why?
4 Would you pull over if a police officer flashed his lights behind you?Fear of power But also sense of duty, perhaps? Why? Police officer has weapons Police officer has authority
5 Would you pull over if your instructor flashed his lights behind you?Why or why not?
6 Would you pull over if your instructor flashed his lights behind you?Maybe you are worried about your grade Maybe you think I’m crazy Why or why not? Instructor not as scary Instructor does not have authority
7 What is authority Authority is legitimate powerTyranny is illegitimate power What makes something legitimate?
8 What is authority Authority is legitimate powerTyranny is illegitimate power What makes something legitimate? In the United States, authority is derived from the law – it must be lawful A police officer pulling you over for speeding is lawful, legitimate – pulling you over because you talked w/ his girlfriend is illegitimate, unlawful.
9 The Law our Master “They are free – yes – but not entirely free; for they have a master, and that master is Law, which they fear much more than your subjects fear you.” -Demaratus describes the Spartans to Xerxes, King of Persia For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. -Thomas Paine, Common Sense
10 In the United States the law rules, but how do we know when a law is just? Are there any bad laws? Must you follow them?
11 In the United States the law rules, but how do we know when a law is just?guided by reason? accords with morality? is supported by the majority of the population?
12 The Ideal Summarized In the founders’ ideal America: authority is vested in the law, which is guided by reason and bound by the “natural law”, it protects traditional liberties, and derives from the consent of “the people”, who stand equal under the law. How to protect and ensure this? According to founders a constitution was necessary.
13 Constitutions Why ConstitutionsA number of reasons, primarily because you want to establish a set of ground rules about which everyone must agree going forward. This allows to you to fight over other issues, rather than fighting over basic rules of political engagement Prevents certain laws from being enacted even when future majorities desire them. Minority protections Civil liberty protections Meant to guarantee your rights against the government. Preventing “mob” mistakes
14 The Ulysses Pact
15 Founding of the United StatesThe Road to Nationhood Colonization from England Settlement of the 13 colonies on the East Coast Growing “American” identity The Declaration of Independence: The Idea of Consent Between 1763 and 1776, British attempts at direct control clashed with colonial self-interest and identity. The Declaration of Independence stated colonists’ grievances against British rule.
16 13 Colonies
17 Founding of the United StatesThe Road to Nationhood Colonization from England Settlement of the 13 colonies on the East Coast Growing “American” identity The Declaration of Independence: The Idea of Consent Between 1763 and 1776, British attempts at direct control clashed with colonial self-interest and identity. The Declaration of Independence stated colonists’ grievances against British rule.
18 Declaration of IndependenceThe Declaration also expressed the political ideas and values of the day, including themes endorsed by John Locke Humanity shares an equality (!?!) Government is the creation and servant of the people The rights that all people intrinsically possess bind the government – Law of Nature Governments are bound by their own laws.
19 John Locke English Political Philosopher Born 1632 Died 1704Glorious Revolution (1688) Two Treatises of Government published in 1689
20 Property and Natural LawNatural law exists prior to the creation of civil society We have a conscience that allows us to “read” the natural law. The natural law tells us that we own ourselves, our consciences, and our labor. Through our labor we acquire property rights. Civil Society exists to secure our natural rights of “life, liberty, and property”.
21 Property and Labor
22 Property and Labor
23 Property and Natural LawNatural law exists prior to the creation of civil society We have a conscience that allows us to “read” the natural law. The natural law tells us that we own ourselves, our consciences, and our labor. Through our labor we acquire property rights. Civil Society exists to secure our natural rights of “life, liberty, and property”.
24 When the Sovereign Fails?
25 The Destruction of the Leviathan
26 The Declaration of Independence“WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”
27 The Declaration of Independence“When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.”
28 The Articles of ConfederationState autonomy was preserved Equal representation in the law-making body for the states Central government granted only a few powers No separate executive or national courts Relied on state courts to enforce Amendments nearly impossible Needed unanimous state support to change
29 Making the ConstitutionMajor problem with the Articles was a weak central government Shay’s rebellion https://youtu.be/3ImIEcsTEVo Fears of foreign invasion Difficulties raising money
30 Issues they worried aboutBalance the need for central action with the desire to protect local authority raise taxes maintain a military Balance of states – North/South and Big/Small Governmental tyranny Too much democracy? Protect property Inequality slavery Grow economy Agrarian vs. commercial society Public virtue
31 Key Outcomes Divided Government Two houses of CongressStatus Quo bias and gridlock Prevent ill-advised democracy/mob rule Combat ambition against ambition “checks and balances” Two houses of Congress Popular branch – House of Representatives State-based branch – Senate Independent Executive National court system
32 Key Outcomes Product of Compromise Sought to force compromiseMeasure of “elite” control Still powerful states What to do if states violated liberty? Bill of Rights First ten Amendments Rights that limit the ability of the law-making institution Rights as anti-democracy? Need for interpretation Purposeful brevity
33 Interpretation It is not at all a simple matter of writing down a set of common sense rules. Dangers from constitutions: Binds future generations to historic ideas Decreases flexibility Depends upon interpretation Even “clear” words can be interpreted multiple ways, or may need new interpretations in unexpected scenarios. Also, the meanings of words changes. Depends upon enforcement Words are nothing without power
34 Marbury v. Madison Establishes precedent of judicial review in the United States https://www.youtube.com/watch?v=KwciUVLdSPk The United States Supreme Court gets to interpret and rule on the legality of laws passed by Congress and signed by the President, as well as laws in the states. Not elected Serve for life Very anti-majoritarian
35 The United States Supreme Court
36 Preamble We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
37 Article 1: Section 1 All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives
38 Section 2: Clause 1 The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
39 Clause 2 No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
40 Clause 3 Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; ….
41 Clause 5 The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
42 Section 8: Clause 3 To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; Civil Rights act of 1964 was declared constitutional under the commerce clause Heart of Atlanta Motel Inc. v. United States (1964)
43 Section 9: Clauses 1, 2 The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
44 Section 9: Clauses 4-6 No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
45 Section 9: Clauses 7, 8 No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
46 Miranda Rights What are your Miranda Rights?And where did they come from?
47 Miranda Rights “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” Why do police officers say this? Let’s talk about the amendments and see if we can find where.
48 Bill of Rights Ten Amendments passed to add rights not originally in the US Constitution. Can you name them? First Amendment?
49 First Amendment 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 grievances. Second Amendment?
50 Second Amendment A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
51 Third Amendment No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
52 Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. s? Cell phones? Are they papers or effects? The courts are now interpreting this amendment in light of the new digital age. Riley v. California (2014) Did not apply to the states until Mapp v. Ohio (1961)
53 Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
54 Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
55 Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
56 Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Kelo v. City of New London (2005)
57 Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
58 Seventh Amendment In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
59 Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Brown v. Plata (2011) declared California’s prisons in violation of the Eighth amendment. Commanded California to reduce the overcrowding of its prison. Prop 47 was, in part, meant to help address this
60 Ninth and Tenth AmendmentThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 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.
61 Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
62 Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
63 Miranda Rights So, where do they come from?A combination of the 5th, 6th, and 14th Amendments along with a whole host of Supreme Court opinions, such as: Gideon v. Wainwright (1963) Miranda v. Arizona (1966)
64 The Law is up for interpretationCivil Rights - video Gideon v. Wainwright Miranda v. Arizona Racial segregation Plessy v. Ferguson Brown v. Board of Education Loving v. Virginia “one man, one vote” Reynolds v. Sims Baker v. Carr
65 The End.