I. Origins of American Constitutionalism Flashcards
Ancient Rights, Political Obedience, and the Right of Revolution
Significance of Magna Carta, John Lackland, & Edward I
Written agreement that establishes rights for nobles (substantive due process and rule of law), monarchs are not above the law, and establishes the council of barons
John: increased taxes without consultation, banned catholic church services, took church property, launched military campaign and taxed again, barons rebel and force the signing of the Magna Carta
King Edward I reissued Magna Carta and the Charter of the Forest in 1297 by an act known as the Confirmation of the Characters. The 1297 issue was especially important because it was the first time Magna Carta was recorded in the Statute Rolls, the official registry of the statutes of England. First time its written
Ancient Rights, Political Obedience, and the Right of Revolution
Significance of House of Tudors
War of Roses: house plantagenet splits → York v. Lancaster (Tudors) = Henry Tudor (later Henry VII) victorious
Henry 8th: demonstrates how to use** legal formalism ie parliament to pass laws for what the sovereign wanted**
1. Used laws to determine the line of succession
2. Treason Act of 1547 → two witnesses are needed to prove a charge of treason
3. Use of a legal Will through parliment
Edward 6th → subverted parliament and unilaterally issue letters patent
Ancient Rights, Political Obedience, and the Right of Revolution
Significance of the Grand Remonstrance, 19 Propositions, and the End of Divine Rule
Grand Remon. → was a list of grievances presented to King Charles I of England by the English Parliament on 1 December 1641, influenced by the Civil War.
19 Props. → parliament is sovereign, including demands that no ministers should be appointed without parliamentary approval, that the army should be put under parliamentary control, and that Parliament should decide about the future of the church.
Charles 1st → disregards the MC → get 2nd A, States’ ability to incorporate, the need for an independent judiciary, no standing army, and Congress having control of taxes and military
* Called/dissolved Parliament 3xs/5 yrs
* Increased Taxes
* Built up the Army and Navy (expensive) → Const. No army for more than 2 years (renew)
* Created Special Courts (Star Chamber)
* England emove almost all of the power given to the monarchy and transfer it to the parliament
End of Divine Rule → Charles 1st execution during English Civil war marked the end of diving kings
Historical Timeline/Influence
Significance of Glorious Revolution
Glorious Revolution: Rule of law, taxation, petitioning the gov, standing armies, taking of arms, Parliament protection, Excessive bails and fines, juries
Ancient Rights, Political Obedience, and the Right of Revolution
Importance of the Magna Carta
- It was a written covenant (the first document to put into writing the principle that the king and his government was not above the law)
- Binding the powers of the sovereign (It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself)
- Declared rights of people (Barons)
- Created because of King John Lackland
- Broke off from tradition and taxed the barons w/o their consent upsetting them and resulting in a rebellion that led to the drafting and signing of the Magna Carta
- The magna carta exists as a contract between the monarch and the barons
Ancient Rights, Political Obedience, and the Right of Revolution
Importance of the English Bill of Rights
- Establishes consent of the governed, no taxation w/o representation, Parliamentary supremacy and protections (speech and debate clause and free elections), life tenure for judges, checks and balances (King need Parliament authorization, can’t suspend Parliament, right to bear arms), no imprisonment w/o jury trial
- Important b/c colonists claim denied rights guaranteed under English Bill of Rights as the justification for revolution
- The english bill of rights exists as a criminal complaint against the monarch
Ancient Rights, Political Obedience, and the Right of Revolution
Significance of John Locke, Second Treatise
- Natural Rights (inalienable rights of the people) & Consent (consent to be governed)
- Natural Laws - human inalienable (cannot be given away, even if consent to) rights.
1. Direct challenge to divine right of Kings
2. People have the Supreme power (even when Parliament is sitting) + power to change Parliament is inalienable - Exec violates when hinder meeting of Parliament/Legislative or executing laws in a way that violates rights of the people
- Legis violates when acting against interest of the people
Ancient Rights, Political Obedience, and the Right of Revolution
Significance of John Locke Legislative, Executive, Federative Powers
- Legislative = Parliament - Not always needed to be sitting (as a way to limit them) and not above the law
- Executive = King - Should always be executing the laws
- Federative = foreign affairs power → power of war and peace, leagues and alliances, and all the transactions:
Ancient Rights, Political Obedience, and the Right of Revolution
What was Locke’s view on peoples revolution?
right of revolution, gov. dissolved, determination made by
Locke grounds the right of revolution in natural law
1. People enter into society to preserve property and for safety and security [§220]
2. Cannot give others the power to destroy the self [§168]
3. Precepts of natural law: “God and Nature never allow a Man to abandon himself, as to neglect his own preservation: And since he cannot take away his own Life, neither can he give another power to take it.
The government is (de facto) dissolved when:
1. “The Legislative acts against the Trust reposed in them, when they endeavor to invade the Property of the Subject, and to make themselves, or any part of the community, Masters, or Arbitrary Disposers of the Lives, Liberties, or Fortunes of the People.
2. Minor infractions are insufficient.
3. Must be a significant, lengthy, train of abuse.
Don’t have to wait to do it as a last resort [§220]
How the determination is made:
1. The People determine whether the Exec or Legislative have acted contrary to their trust. [§240]
2. They do not have to vote as one; instead, “every Man is Judge for himself, as in all other Cases, so in this, whether another hath put himself into a State of War with him…” [§241]
3. If a majority seek to rebel, “and they are persuaded in their Consciences, that their Laws, and with them their Estates, Liberties, and Lives are in danger, and perhaps their Religion too,” then the circumstances for rebellion present themselves. [§209]
What was William Blackstones view on governance
- Who has supreme power → So long therefore as the English constitution lasts, we may venture to affirm that the power of parliament is absolute and without control → the legislative power
- power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds, sovereign and uncontrollable authority
- The legislature (parliament) will perish, whenever the legislative power shall become more corrupt than the executive.
Early Constitutional Structure
Significance of William Penn’s Colonial Experience
- Democratic ideals: Equality for all people, voting rights to landowners, free servants, tax payers, open exchange of ideas
- Emphasis on Change: Mechanisms for change are a necessity to reduce the pressures that threaten peace: religious freedom, separation of church and state, constant dialogue and free expression, amenable constitution
- Importance of Consent: Annual elections and a bicameral legislature
- Absence of Coercion: No need for a standing government; curtail the power to ensure the focus of governance is on the softer necessities
- Federation of American Colonies: Federalism is important for debate and the resolution of matters of common interest across the states
Early Constitutional Structure
Significance of Virginia Declaration of Rights
Similarities to the EoB → tax without rep, no standing arming, suspending law without consent, excessive bail
Vigina motto → sic sempre tyrannis: “thus always to tyrants”. It suggests that bad, but justified outcomes should, or eventually will, befall tyrants.
Early Constitutional Structure
Significance of the Dec of Independence
- Criminal complaint
- Leading up to: B/c of “7 Year War”, Britain had gone broke and turned to colonies for revenue via excess taxing
- Lee’s Resolution during 2nd Continental Congress - absolves ties w/ Britain
- Locke: Minor things can’t establish right to revolt + public solemn declaration + inalienable rights + consent + right to revolt + due diligence to seek redress and subsequent failure
- Locke especially important b/c many of abuses came from Parliament, which could still give right to revolt under Locke
- Principles of equality and inalienable rights are put into the front, like the Virginia Declaration of Independence
Early Constitutional Structure
Problems with AoC
- No enforcement mechanism
- No guarantee of state governments
- Insufficient resources
- No Commerce Powers
- No foreign affair powers
- Poor representation
- No judicial power
- Ratification issue (all states)
Early Constitutional Structure
Fed No. 21 → AOC (government state & fed)
- No enforcement mechanism
- No guarantee of state gov - States are too insecure against domestic/international threats and too much state power undermines the national government
- Insufficient resources - quotas will not work, federal government needs control of revenue, and indirect/direct taxes are fair game
