Chapter 1 Flashcards
What was the Continental Congress? What dates did it operate through?
The Continental Congress was a series of legislative bodies, with some executive function, for thirteen of Britain’s colonies in North America, and the newly declared United States just before, during, and after the American Revolution. The term “Continental Congress” most specifically refers to the First and Second Congresses of 1774–1781 and may also refer to the Congress of the Confederation of 1781–1789, which operated as the first national government of the United States until being replaced under the Constitution of the United States.
This organization did not have the authority to make binding laws.
Its authority was primarily limited to raising an army and conducting diplomacy.
What is a Constitution?
It is an expression of a nation’s most fundamental laws.–It sits at the top and all other forms of law are below it (statutes, regulations, executive orders).
In the United States, the Constitution:
–Provides the basic architecture of government
–Protects individual rights
–Is the foundation upon which all other laws are created
What are the two dimensions of rule law?
- Social order which is concerned with the extent to which law is used to provide individuals with personal security and order in their personal, workplace, and business relationships
- Prevention of tyranny which is the protection of civil liberties and the accountability of government
What is the social contract or social compact?
An implied agreement between members of a society that they will relinquish some freedom in exchange for security.
What were the first 13 colonies?
How were their governments set up?
By the late 1600’s, Virginia, Massachusetts, New Hampshire, Maryland, Conneticut, Rhode Island, Delaware, North Carolina, South Carolina, New York, New Jersey, and Pennsylvania were the first 12.
In 1732, Georgia was founded.
They were largely independent and self-governing, however they ultimately were still ultimately governed by England. Each colonies structure and relationship with England differed, and they all shared common grievances with their mother country that led to the war of independence.
The early colonies largely had their own independent forms of laws and governance. They mostly focused on the structure of the government and relations between the colonies
However, the Massachusetts Body of Liberties had protections of individual rights. What were some of these early examples of protections of individual rights?
What about The Frame of Government of Pennsylvania of 1682?
What were these laws heavily influenced by?
Equality between resident and foreigner
Rights to be free from cruel punishments
Right to notice that an act is a crime before it could be punished (later to be called the principle of legality, and today due process)
Rights to bail and speedy trial
Right to be free of torture to elicit a confession (unless there was co-conspirators are suspected, and even then barbarous and inhumane treatment was forbidden)
Capital punishment convictions must be supported by two or more witnesses or the equivalent.
Rights to free speech
____________
The Frame of Government of Pennsylvania of 1682 provided for indictment by a grand jury, public trial by jury of one’s peers, bail, and proportional “moderate” fines.
____________
These laws were heavily influenced by European laws, and particularly British common law.
When was the Declaration of Independence issued and when was independence won?
Who wrote most of it?
Issued in 1776
Won in 1781
Thomas Jefferson
Even before independence, what body did the colonies establish to meet and address issues of national concern?
From what dates did it operate?
Did it make laws? What was its primary focus?
The Continental Congress
It first met in Philadelphia in September 1774
It operated from this date until 1781
It did not have the authority to make binding laws.
Its authority mainly focused on raising an army and diplomacy.
There were discussions in the Continental Congress concerning the adoption of a Constitution to formally recognize the confederacy of the 13 colonies. What took place that ultimately led to the Declaration of Independence on July 2, 1776 and formally adopted on July 4, 1776?
On June 7, 1776, Richard Henry Lee, a delegate to the Congress from Virginia, introduced a resolution that declared the “United Colonies” to be “free and independent states, that they are absolved from an allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be totally dissolved.” Additionally, the resolution called for the development of a plan of confederation to be submitted to be submitted to the states. The resolution was adopted on July 2, 1772, and incorporated into the Declaration of Independence on July 4, 1776.
When was the first Constitution adopted and what was it called?
What were some of its main features?
1781
Articles of Confederation and Perpetual Union
It disbanded the Continental Congress and replaced by the Confederation Congress. This new Congress had more authority than it’s predecessor, but the states remained the most powerful entities. It was proclaimed in the Articles that, “[e]ach state retains its sovereignty and freedom and independence, and every power, jurisdiction, and right, which is not expressly delegated to the United States, in Congress assembled.” Basically the Untied States was a loose union of independent and sovereign states, and members of Congress were little more than ambassadors representing their respective states. As expressly stated in the Articles, the states entered into a “firm league of friendship.”
Did the Articles of Confederation prove to be effective?
It could enlist state militia’s, but states could refuse. And even more troubling was that war funding came from the states.
Not many years passed before the league proved unworkable. The states were geographically distant from one another. In an age without modern travel and technological means to disseminate information, this was problematic. Compounding the problem was that the states were distant in more ways than miles. They differed in history, culture, and politics. The result was parochialism, localism, and an interest in empowering the states rather than the national government. In the end, the states proved to be too independent and powerful, and the national government too dependent and too weak.
Some examples: The national government was granted the authority to negotiate treaties however, that was thwarted by the states ability to tax imports and exports, regardless of any treaties negotiated by the national government. The national government could declare war, however it could not assemble army. It could enlist volunteers, but lacked the power of conscription.
What was Shay’s rebellion?
What did it lead to?
**It’s important to note that even before Shay’s rebellion, members of Congress had called for an increase of national authority to help with the many national ills. James Madison fought for a constitutional convention. George Washington complained of the impotent national government, but the states were reluctant to give up power. But the Shay’s rebellion occurred, and an opportunity presented itself.
It was a rebellion by radical farmers in Massachuttes, led by Daniel Shays, against the local government. It was due to poor economic conditions and the imprisonment of poor farmers who could not pay their debts, and court ordered land forfeitures. They basically took control of local courts and prevented them from operating. The problem was that there was no national authority to defeat the rebellion and many local leaders were reluctant to get involved. Eventually, a privately financed (merchants and creditors) state-legislator approved militia quelled the rebellion. Many insurgents were charged and convicted and 2 were hung. Daniel Shays and others went into hiding but were eventually granted amnesty.
Many feel that it was the spark that ignited the decision to revise the Articles of Confederation.
Who were the Federalists and what did they believe?
They believed in a strong national government. They were George Washington, Alexander Hamilton, James Madison, John Hancock
Who were the anti-Federalists?
They learned hard lessons under British rule and they remembered them all too well. They opposed the creation of a strong national government, in favor of local control. They were Thomas Jefferson, Luther Martin, George Mason, and Patrick Henry.
In 1786, who submitted a recommendation to the Continental Congress that a convention be held that examined the problems of the nation and its constitution? The Continental Congress consented.
Alexander Hamilton
When and where did this convention take place?
Philadelphia
It was scheduled to open on May 14, 1787 but due to an absence of a quorum, the proceedings did not take place until May 25. They then worked with until September 17, with only two breaks, one for independence day and a work-related 10-day, recess.
Explain the issues that were hotly debated and contested at the convention. (card #1)
Fun facts:
-Of the 13 states, all were represented except one. Rhode Island refused to send delegates.
-George Washington was elected to chair the convention.-All agreed to keep the discussions secret until the final document was completed, but there were small leaks.
-Because they were so secretive there were rumors going around that they were plotting a monarchy, so a statement was released on the contrary on August 15(although a few delegates did support the establishment of some form of monarchy)
.-We learn about what transcribed in the hall mostly from the notes of James Madison, who never left the convention for more than 1 hour. He took such good notes that they fill 3 volumes. Personal notes and correspondence between the delegates also tell us what was discussed and debated.
Of great importance was:
1Congress-were delegates to be based on number of free people or each states contribution to the treasury?Small states opposed this because they were used to being treated as equals under the current Articles of Confederation.The larger states objected to equal representation.Led to the Great Compromise(GC).
2.Slaves-Were slaves to be counted in deciding representation?(see GC)
3.How were representatives to be selected? by direct election of the people or by appointment? (see GC)
4.Separation of powers-the branches should check each other to maintain a balance of power
5.Issue of who was qualified to vote? Only land owners or all free men?
Explain the issues that were hotly debated and contested at the convention. (card #2)
- Did Congress had the authority to override state laws?7.Executive branch- Was it to be one person or more? Were they to be elected or appointed? Electoral College was created
- Judiciary branch-interestingly, the delegates did not give the judiciary branch power to declare acts of the other branches and states unconstitutional, however the Supreme Court has since determined that power to be implicit.
- The role of a national judiciary-state courts vs national courts. Would national courts nullify state courts? The compromise created a system of inferior courts under the Supreme Court because without a lower system of national courts, there were concerns national laws would go unenforced.
What was the “Great Compromise?”
- Representation in the lower house, the House of Representatives, would be based on population (the number of free persons, excluding Indians who were not taxed, and three-fifth’s of others);
- Representation in the upper house, the Senate, was to be equal. It was originally set at one representative per state, but it was later changed to two, with no debate.
- It also resolved the issue of slaves. Slaves were to be counted as 3/5th of slaves to be counted in issues of both taxation and representation. They were careful not to use the term “slave” but used the term “other persons.”
- How were representatives to be selected? The members of the House were to be elected directly and members of the Senate were to be appointed (This was changed in 1913, when the 17th amendment provided for direct election).
What powers were granted to Congress?
The authority to regulate interstate commerce and to make all laws “necessary and proper” for enforcing its other enumerated powers.
The issue of whether the national Congress had the authority to override state laws was hotly contested. The issue was eventually killed, but the judiciary was given the authority to protect the national government from the excesses of the states
What powers were given to the executive branch?
The president should be commander-in-chief of the military, negotiate and make treaties, and nominate the cabinet members, members of the national judiciary, and other government officials, with the advice and consent of the Senate.
Power of veto legislation, but checked that power by giving Congress the ability to override a presidential veto with a two-thirds majority.
To many people, there are two glaring problems with the Constitution. What were they?
First, it did not explicitly set out individual rights. Second, it did not address slavery.
However, it must be pointed out that delegates did not completely ignore individual liberty. It does contain a number of provisions intended to protect civil rights such as writs of Habeas corpus(right to be brought before a judge and lawful grounds established for detention), prohibits Congress from passing any bills of attainder(a legislative act declaring a person or group of persons guilty of a crime, often without a trial), or ex post facto laws(a person cannot be convicted of a crime if the act wasn’t a crime when it was committed). Also, no person shall be convicted of treason, except upon the testimony of two witnesses to the same act or an open confession in court.
Why did some of the delegates, including Alexander Hamilton, argue against having a bill of rights in the original document?
They saw no need to include because the government had no authority to encroach upon an individual’s liberty. Hamilton said, “Why declare that things shall not be done, when there is no power to do?”
They voted ten to zero not to include a bill of rights. But this was troubling to the nation. They did not forsee the huge changes that would occur, or the population growth and specialization of functions that would take place. More human contact leads to more conflict and people look to the government to regulate conduct.
3 years later the Bill of Rights was ratified to the Constitution.
How was the issue of slavery handled by the delegates?
Slavery was a divisive issue. The issue of slavery arouse around the context of taxation and representation. It was at this juncture that many of the delegates voiced their opposition to slavery, however many of the objecters were slave owners themselves. George Washington referred to slavery as repugnant.
However, the Southern states relied upon for economic reasons. In the interest of preserving the union, the objectors backed away from abolition.
Additionally, the importation of slaves was a hotly contested issue. Under the new constitution, the national government would have jurisdiction over the importation of slaves, but the Southern states did not want the national government to interfere.
They reached a compromise (GC). First, three-fifths of slaves were included in the initial determination of taxation and representation. As to the importation of slaves, they agreed that Congress could not prohibit the importation of slaves until 1808 and would cap the tax at $10 per slave.
On January 1, 1808, Congress prohibited the importation of slaves. This, however, did not end slavery. It took a Civil War to make that happen. After the Civil War, the 13th, 14th, and 15th amendments and federal legislation were enacted to extend legal protections to all persons regardless of color, race, or ethnicity.
How were women treated by the delegates?
There is no evidence that women were discussed at all at the Constitutional Convention. They were not extended the right to vote in the new Constitution. But it is important to note that the New Jersey Constitution of 1776, extended the right to vote to women who owned property (African Americans were also allowed to vote). This changed in 1807 when it was changed to allow suffrage to “men.”
Who brought many of the ideas to the convention that were eventually adopted and who wrote the actual text of the constitution?
James Madison brought many of the idea and Gouverneur Morris actually wrote most of the text, including the entire preamble.
A local clerk was hired to actually pen the document. It took him 40 hours to write the 4,400 words on 4 page document made of calf or lamb skin.
When did the actual signing occur? This day later became known as Constitution day.
What 3 delegates refused to sign? and why?
September 17, 1787
George Mason, Edmund Randolf, Elbridge Gerry
George Mason and Edmund Randolf felt it gave too much power to the national government, however Randolf later supported it in order to prevent dividing the nation. Mason and Gerry continued their opposition against it in their own state legislatures.
After being signed by the delegated, what new battles did Constitution face?
Explain the process.
It had to be ratified by the 13 states.
The delegates agreed that it had to be ratified by at least 9 of the states and would only apply to those who ratified it. The states were only allowed to ratify it or reject it. No conditional ratifications or comments were allowed (even though many states sent it back with proposed amendments, including Virginia’s proposal for a Bill of Rights). Even though this was the case, so many concerns were raised to the absence of a bill of rights, that the Framers promised to add one once it was ratified.
How long did it take and how many states ratified the document?
It took 2 and a half years, but eventually all 13 states ratified the document.
During this time, many articles were written in newspapers, journals, etc to argue the pro’s and con’s of the new constitution. Who were the most influential writers?
James Madison, Alexander Hamilton, and John Jay- their writings are known as the Federalist Papers. These men gave forceful support for the new constitution.
The anti-federalists had their outlet as well. Their writings were known as the Federalist Farmer.
There are only two ways to amend the Constitution. What are they? Where are they found?
The first is initiated by Congress. With a two-thirds vote in both houses, Congress may propose an amendment to the states.
The second is that two-thirds of the state legislators may call for a convention to make proposals to amend the constitution.
The proposals are then ratified by the legislatures of three-fourth of the states or by conventions in three-fourths of the states. Congress designates the ratification method.
Congress initiation has only been used to date
Article V
In order to satisfy the serious concerns of many that a Bill of Rights was not included (many states had sent back their ratification and proposed amendments identified in their state legislatures), a Bill of Rights was worked on. What process did it go through and when was it ratified?
James Madison composed an amendment of 17 amendments (many of which had come from the 39 rights identified by the delegates in the state conventions), with multiple rights in each amendment. After revision, they were down to twelve. Then ten of the twelve were ratified on November 3, 1791. They became known as the Bill of Rights. They included protections of individual rights and liberties and a provision intended to preserve the integrity of state sovereignty.
The two provisions that were not ratified concerned the number of representatives in the House and compensation for members of Congress.
Where is the original constitution and the original Virginia Plan and ratification documents many other documents currently on display?
In the Rotunda at the National Archives in Washington D.C.
Once the constitution with the original twelve amendments, 13 copies were sent to the states for ratification. What happened to those copies?
Most of the states retain their original copies, however 4 are lost.
What is judicial review?
It is a process under which executive or legislative actions are subject to review by the judiciary. An unconstitutional act is declared void. This power is not expressly stated in the Constitution but the power extends from the judiciary’s authority to interpret and declare meaning of the law. Through judicial review, the courts act to control the government and protect individual rights.
With the exception of a few local courts, all courts both federal and state, possess the power of judicial review.
Less than 1% of all statutes are invalidated by the Supreme Court.
What is the historical basis for judicial review?
In the early years of British monarchy, the Crown was sovereign and virtually unchecked. However, theories of natural law or natural rights eventually led the Crown to acknowledge that certain laws and rights are fundamental and superior to the monarch’s imperative. This happened in 1215, when the feudal nobles of England coerced King John into signing the Magna Carta, a document that recognized particular natural rights. Although a landmark in law, the Magna Carta did not declare rights for all Englishmen and was hardly what contemporary Western societies would consider a compressive declaration of human rights.
What is natural law?
A term referring to the concept that there exists, independent of manmade law, a law laid down (depending on one’s belief’s) by God or by nature.
The philosophers, John Locke and Charles Montesquiesu, were inspired by natural law to advance what type theories…
Representative government, separation of powers, and use of the judiciary to protect individuals from government abuse. They advanced the theory that sovereignty rests not with the monarch, but with the people.
Give a brief overview of the British law.
England, from which the United States got it’s common law, does not have a unified written constitution. Nor is there an independent judiciary. Parliament is the highest body (except for the symbolic role the Crown continues to play) in the nation. Parliament law is supreme. However, many British insist that they have a constitution- that is a body of fundamental law. They do have a number of laws, that taken together, make up the British constitution. First, certain common law principles and customs are so sacred that they are considered part of England’s fundamental law. Second, several acts of Parliament are considered fundamental. For example, the Bill of Rights of 1689 establish;ished that the monarch must be Protestant, that the Crown could not raise an army without parliamentary approval, the Parliament was the supreme lawmaker, and that Protestant subjects possessed a right to petition the Crown and bear arms. It also prohibited excessive fines and cruel and unusual punishment. The Act of Settlement of 1701 is also considered part of England’s fundamental law. Through this act, the proposition that the Crown ruled through Parliament was furthered. For example, it provides, in part, that the Crown must have the consent of Parliament to remove judges.
There is no judicial review but this is in part because of Parliament restraint. Parliament, in recent times, has not attempted to abrogate upon any fundamental freedoms.
True or False
The Framers of the US Constitution were heavily influenced by natural law.
True.
They believed that certain things were beyond the control of government and that certain rights were inalienable. Further, they believed the courts were the guardians of freedom.
Explain Marbury vs Madison
(1803)This case set the precedent for judicial review. The case was centered around Marbury, who was nominated to be a Supreme court justice by the outgoing President Adams and confirmed by the Senate. However, the incoming president, President Thomas Jefferson, instructed his Secretary of State, Madison, not to deliver Marbury’s appointment and went further by nominating his own Supreme Court justice to fill the vacancy. It was Jefferson’s own nominee who heard the case, and ultimately wrote the opinion (in our day, this judge should have recused himself for blatant conflict of interest). The court found that Marbury was indeed wrongfully denied his appointment, and that Thomas Jefferson had acted unlawfully. It simultaneously declared that it was the courts duty to be the final say on such actions, but found that the courts did not have the jurisdiction to issue a writ of mandamus, which would have compelled a government official. (this is no doubt due to the extreme uncomfortableness of having to be in direct conflict with the president of the United States) Ultimately, the case said that Marbury was right, President Jefferson’s actions were illegal, and that it was the courts job to review the actions and determine whether they were constitutional, however they lacked jurisdiction???(not sure about this last part)???
What were the Alien and Sedition Acts? (1789)
They were passed in part due to growing concern of a possible war with France. They required registration and increased tracking of aliens, empowered the President to deport aliens deemed dangerous, and most controversially, enabled the persecution of any person who spoke or wrote maliciously, scandalously, or falsely about the federal government.
The laws were used to prosecute those who opposed Federalists and Federalists policies.
Explain United States vs Nixon.
(1974) This case was due to an attempt by President Nixon to avoid a subpoena in a criminal investigation, on the basis of Presidential privilege. The court ultimately recognized that while the conversations of the President were appropriately confidential to guard and protect the decision making process, and that it was an interest of national security. They also found that the judicial branch did indeed have the authority act on the affairs of the executive branch in such a case because it was their duty to uphold the rule of law. Rule of law superseded executive confidentiality.
Explain Martin vs Hunter’s Lessee.
(1816). This case centers around judicial review of unconstitutional state laws and actions. Martin, a citizen and resident of England, inherited a 300,000 acre piece of land in Virginia from his uncle upon his passing. However, Virginia had a law that forbade any “enemy” from inheriting property. Thus, the state of Virginia seized the property and began selling it off. The state sold some of the land to Hunter. This case was battled through Virginia state courts and all the way to the Supreme Court with Martin prevailing, but the state of Virginia refused to comply stating that it was not inferior to the Supreme Court and that they had the power to interpret the Constitution independently. The Supreme Court ultimately upheld it’s authority to review state actions. This is a common and well established practice today.
Judicial Eras 1.8
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