The Constitution Flashcards
What is the the Constitution?
The Constitution of the United States is the national charter. It is a document, that creates and empowers the federal government. The Constitution is the highest source of legal authority in the nation and the source of all federal law.
Describe the historical antecedents regarding the Constitution
Following the American Revolution, the Articles of Confederation were made, which described themselves as “league of friendship”, as the charter entailed a promise by each member state to respect the sovereignty and autonomy of the other member states.
The Articles of Confederation did not provide any effective national government or national powers, which raised a number of concerns about the charter and its efficiency.
Because of the many other concerns about the Articles of Confederation, delegates from the respective states were called for a meeting in Philadelphia to amend the Articles.
During this time, the delegates soon realized, that a new governmental charter would have to be created, and the created the Constitution of the United States in secret.
What are the Articles of Confederation?
The Articles of Confederation followed the American Revolution as the first national charter, referring to itself as a “league of friendship”, as the charter entailed a promise by each member state to respect the sovereignty and autonomy of the other member states. The Articles of Confederation were later substituted by the Constitution of the United States, as the United States’ national charter.
What are some of the historical underpinnings regarding the Constitution?
A main historical underpinning regarding the Constitution was a fear of a distant centralized government, as the British Crown.
It was also a fear, that states had all the power and would be asked to relinquish some of their authority.
Describe some essential attributes regarding the Constitution.
- Short.
- enduring (varig)
- has a preamble (not important text),
- 7 articles,
- 27 amendments
- Old; More than 200 years old
- It is to be filled out by the courts, which reflects the fundamental role of common law system
-> “living” document rather than static of time of ratification - reflects fundamental mistrust of governmental powers
–> Separation of powers between national government
and state government (federalism)
–> Separation of powers and checks and balances
within national government
–> Protection of individual rights and liberties
Can the 27 Amendments be divided into broad categories?
Yes, they can be divided into two broad categories:
- The amendments, that refine or add structual feature to the Constitution.
- The amendments, that provide for personal rights and liberties.
What four essential things do the articles of the Constitution do?
The seven articles of the Constitution does four essential things:
- Establish a national, or federal, government, and define the powers of each of the three branches of the national government and the relationship between and among the three branches.
- Define the relationship between the national government and the states and among the states.
- Provide for a process by which the Constitution would be formally amended.
- Provide for a process by which the Constitution would be ratified.
Describe the seperation of powers and checks and balances.
The seven articles in the Constitution establish and empowers a national, (or federal), government based on seperation of powers consisting of three branches;
- The legislative branch (Art. I) –> Congress (Consisting of: the Senate and the House of Representatives)
- The executive branch (Art. II) –> President, Vice President and others.
- The judicial branch (Art. III). –> Supreme Court
The Articles define the relationship between and among the three branches.
Event hough the federal government has its own functions, the system of checks and balances are designed, to make sure, that each branch can “check” over each of the other branches, in order to avoid abusement of power.
What is Federalism?
Federalism is a system based on shared powers, where powers are divided between a national (federal) government and state governments. The Constitution of the United States gives certain powers to the federal government, other powers to the state governments and yet other powers to both.
What does supremacy provide?
The Constitution holds several provisions, that characterize the relationship between national or federal government and the states. (Federalism, Supremacy, Full Faith and Credit Clause)
Supremacy provides, that valid federal trumps inconsistent state law and allows federal law to preempt state law on the topic.
What is the Full Faith and Credit Clause?
the Full Faith and Credit Clause ensures that states are required to recognize and enforce judgements, public acts and records of other states.
Example: Recognition of marriages or; enforce judgement (D has to pay P $1 in NY, but moves to Cali before doing so)
What is interstate commerce clause?
The interstate commerce clause is a clause in the Constitution, that provides the Congress power to regulate commerce among states (interstate commerce).
(federal legislative power).
(In order to understand the courts commerce clause jurisprudence –> read Gonzales v. Raich and United States v. Morrision)
What is the necessary proper clause?
It is a section in the Constitution, that enables Congress to make the laws required for the exercise of its other powers established by the Constitution.
Name some limits on the powers of the state.
- Supremacy and Preemption
- Dormant/Negative Commerce Clause
- Full Faith Credit Clause
(+ Limits imposed by Amendments)
What is supremacy and preemption?
Supremacy: Federal law trumps state law when inconsistent (assuming the federal law is constitutional)
Preemption: The doctrine of preemption permits the Congress to preempt or preclude any state action in a field subject to federal government –> even if the state action is not inconsistent with federal law.
(the field is “occupied”)
–> Preemption can be expressed (clear) or implied
