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Chapter 1
History, Structure, and Content
of the United States Constitution
Objectives
This chapter covers the events that led to the adoption of the U.S. Constitution, the structure and
content of the Constitution, the limitations imposed by the Bill of Rights and the Fourteenth
Amendment, an overview of our judicial system, how cases reach the Supreme Court, and the
remedies our legal system provides for police violations of constitutional rights. It is designed as
an introductory chapter. The objectives of this chapter are to provide a working knowledge of:
1. The events that led to the adoption of the Constitution and Bill of Rights.
2. Major structural features of the Constitution, including the separation of the powers between
the three branches of the federal government, the powers granted to the federal government,
Discussion Outline
§§1.1 – 1.5 History of the United States Constitution
We recommend against spending significant class time on these introductory sections. While
§1.6 Structure and Content of the Constitution
The
is as follows:
Article 1. Establishes the legislative branch.
§ 8 enumerates the powers delegated to the federal government.
§ 10 imposes five limitations on the powers of state governments.
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Article 2. Establishes the executive branch of government and outlines the powers of the
President.
Article 5. Establishes procedures for amending the Constitution.
To get into the nitty-gritty of the amendment process, you might want to pose the following
hypothetical: A number of years ago in Roe v. Wade, the Supreme Court ruled that the
Constitution prohibits states from interfering with the right of a woman to terminate an unwanted
pregnancy. A substantial number of Americans are religiously and morally offended by this
§1.7 Separation of the Powers of the National Government
Our Constitution divides powers horizontally among the three branches of the national
government and vertically between the national government and the states. The horizontal
division is accomplished in Articles I, II, and III, which divide the powers of the national
government among the Legislative, the Executive, and the Judicial branches. Article I vests the
A. Encroachment
1. Congress cannot override the Supreme Cou
because the power to interpret the Constitution belongs to the Judiciary. Unless the
Supreme Court later decides to overrule a decision, a constitutional amendment is the
only action that can get rid of it. Constitutional amendments must go through the
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.
B. Delegation
The separation of powers principle prohibits one branch of the national government from
turning its powers over to a different branch. This issue generally comes up in the context of
agency entrusted with rule-making authority is required to conform.
§1.8 Division of Power Between the National Government and the States
The Constitution also divides power vertically between the federal government and the states.
The vertical division is accomplished through a combination of the following three sections.
A. Article I, Section 8 delegates a broad range of powers to the federal government.
B. Article I, Section 10 prohibits the states from exercising certain powers.
C. The Tenth Amendment declares that all powers that have not been delegated to the federal
government and that the states are not forbidden to exercise, remain in the states from
§1.9 Powers Granted to the Federal Government
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The Constitution establishes a federal government of expressly defined and enumerated powers.
All laws enacted by Congress must be based on one or more of these powers because the federal
government can exercise only the powers that have been delegated to it.
A. Expressly enumerated powers Article I, Section 8 mentions and expressly delegates the
following powers to the federal government:
The power to levy taxes and make expenditures for the national defense and general welfare.
United States v. Lopez (Part II) The issue was whether a federal statute making it a crime to
possess a gun in a school zone could be sustained as a valid commerce clause regulation
under the third category. The Court
reaches only commercial activity. The first two categories are not so limited. The Gun-Free
School Zones Act, for example, would have been constitutional if it had required proof that
the gun possessed in a school zone had traveled in interstate commerce in the past, see, e.g.,
United States v. Pritchett, 327 F.3d 1183 (11th Cir. 2003), because this statute would have
been sustainable under the second category.
The power to establish national rules regarding immigration, naturalization, and bankruptcy.
The power to coin money, regulate currency, and punish counterfeiting.
The power to establish post offices and post roads.
declaring war, raising an army) or that no single state could effectively deal with on its own.
B. Implied powers. The powers granted to Congress are not confined to those that are expressly
necessary and proper for carrying into e This is the source of
-called implied powers.
United States v. Comstock (Part II). The question presented was whether the Necessary and
Proper Clause empowered Congress to provide for civil commitment of sexually dangerous
federal prisoners after their prison terms were served. The argued that
laws enacted under the Necessary and Proper Clause must be directly related to
constitutionally enumerated power.
C. One way to spice up coverage of the enumerated powers is to ask students whether Congress
has the power to enact legislation concerning particular subjects and, if so, under which
enumerated power. When Congress enacts a law that oversteps the boundaries of its
delegated powers, the law invades the powers reserved to the states and violates the Tenth
Amendment. The above equation shows this; all powers not delegated to the federal
government and that the states are not forbidden to exercise belong to the states.
Does Congress have the power to enact a law that:
1. Prohibits same-sex marriages? No. The power to regulate local noncommercial activity
like domestic relations is reserved to the states.
5. Makes it a crime to bring alcoholic beverages into a national park? Yes. Under the
power to govern all federal property and installations.
6. Points to emphasize about the commerce clause include the following. The commerce
clause permits Congress to regulate three broad categories of activities: (1) the channels
and instrumentalities involved in interstate commerce, such as interstate highways,
railroads, airlines, and telephone and telegraph companies; (2) the movement of people
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§1.10 Powers the States are Forbidden to Exercise
Article I, Section 10 forbids the states from exercising the following powers:
Enter into treaties, alliances, or confederations.
§1.11 Sovereign Powers Retained by the States
A. The powers retained by the states, called police powers, are ascertained by Constitutional
mathematics. Before the adoption of the Constitution, sovereignty resided in the states. The
states yielded some of their sovereignty by delegating specifically enumerated powers to the
B. Because the states hold the residual of power (i.e., all powers that are not expressly delegated
to the federal government and that the states are not forbidden to exercise), the powers
C. United States v. Lopez (Part II) Lopez is an excellent teaching case for two reasons. First, it
contains a clear and understandable discussion of the reach of federal power under the
commerce clause. Second, it shows the relationship between the delegated powers and the
D. While the federal government has vast regulatory power, its powers are mainly over the
American people, not the states. Principles of federalism prohibit the federal government
from using its Article I powers to regulate the actions of state governments in ways that
1. Printz v. United States (Part II). The Supreme Court invalidated a provision of the
Brady Handgun Violence Prevention Act requiring the chief law enforcement officer of
E. The federal government, nevertheless, does have powers that can be brought to bear directly
on state governments. These powers are found primarily in the Fourteenth Amendment,
§1.12 The Bill of Rights
A. Reasons for adopting the Bill of Rights
B. Content of the Bill of Rights & Chapters in Which They Are Covered
AMENDMENT CHAPTER
I.
Freedom of speech 2
Freedom of the press
Right to assemble
IV.
Protection against 3, 4, 5, 6, 10
unreasonable searches and seizures
V.
Right to be indicted by a grand jury
than once for the same offense)
Protection against compulsory 6, 7
self-incrimination
VI.
Right to a speedy criminal trial 9
Right to a public criminal trial 9
Right to a jury trial in criminal cases 9
Right to be informed of the nature
VII.
Right to a jury trial in civil suits in which
the amount in controversy exceeds $20.
VIII.
Protection against excessive bail
Protection against excessive fines 9
C. District of Columbia v. Heller (Part II). The District of Columbia enacted an ordinance that
made it a crime to keep a loaded handgun in the home. The question before the Supreme
Court was whether the Second Amendment established a personal right to bear arms
unconnected with service in the militia or merely an institutional right. The Supreme Court
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§1.13 Applying the Bill of Rights to the States through the Fourteenth Amendment
A. The Bill of Rights was initially binding only on the federal government.
B.
person of life, liberty or property without due process of law
C. Incorporation into the due process clause means that states must provide at least as much
§ 1.14 The Fourteenth Amendment as a Limitation on State Power
A. The Fourteenth Amendment regulates only the conduct of states and those who act under
state authority; it does not regulate the conduct of the federal government or private citizens.
C. The Fourteenth Amendment is phrased as a limitation on the power of states to act. It forbids
states to deprive individuals of life, liberty, or property without due process, but does not
§1.15 Due Process of Law
A.
person
source of three different constitutional protections. The due process clause:
1. Makes most of the Bill of Rights applicable to the states (§ 1.13).
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3. Requires state governments to have an adequate justification or, in other words, a
substantive due process (§
1.15(B)).
a. The Supreme Court has decided that some rights are so fundamental to the liberty of
free citizens that states cannot abridge them without a compelling reason. The label
Lawrence v. Texas (Part II). Houston police officers, responding to a hoax call
b. Substantive due process also provides a theory for holding public officials
accountable for egregious misconduct that is not otherwise covered by the
§1.16 Equal Protection of the Laws
A.
within its jurisdiction the equal protection of the
B. In Plessy v. Ferguson, the Supreme Court interpreted the equal protection clause to permit
state-mandated racial segregation as long as equal facilities were provided for members of
C. Whether laws that distinguish between classes of citizens violate the equal protection clause
other than race, color, religion, national origin, or gender).
D. The equal protection clause applies to enforcement of laws, as well as their enactment.
Selective enforcement of the law based on race violates the equal protection clause.
1. Maryland State Conference of NAACP Branches v. Maryland State Police (Part II).
Williams, a black man, sued Trooper White, alleging that: (1) White stopped his vehicle,
frisked him, and searched his car for drugs, all without grounds; and that (2) White
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§1.17 Adjudication of Constitutional Questions
A. The Supreme Court of the United States has discretion regarding whether to hear a particular
appeal. Requests to the Supreme Court for discretionary review are instituted by filing a
petition for a writ of certiorari. Petitions for writs of certiorari brought by state prisoners
reach the Supreme Court primarily through one of two routes direct review and habeas
corpus review.
1. Direct review. A defendant seeking direct review must appeal his or her conviction up
2. Habeas corpus review. Federal law affords state prisoners a post-conviction remedy
called habeas corpus. A state prisoner commences this action by filing a petition in
§1.18 Federal Remedies for Constitutional Abuses
Constitutional violations carry serious consequences for the person whose rights are violated,
the criminal justice system, and the officer personally. Such misconduct can lead to:
A. Exclusion of evidence procured in violation of the Constitution.
Review Questions