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Con Law outline Pg. 18-36 Introduction to the Constitution of the United States I.

The formation of the Constitution of the United States A. A short history of the adoption of the United States Constitution: Below are a list of things Incorporated into the U.S. Constitution. y U.S. Constitution is the supreme law of the land. The U.S. Constitution limits and enumerates all of the powers of Congress, the president, and the federal courts. Constitutional government in the United States is by definition limited government, and the limits are prescribed by the sovereign people.

a. Separation of powers: three independent, co- equal branches of government i. ii. iii. iv. Legislative Executive Judicial Each branch has the power to check and balance the actions of the others

b. Federalism: In this sense of a division of government power between a central government and governments for the several states c. Bill of Rights in other provisions like the 14th amendment that protects fundamental liberties d. Popular sovereignty and representative, Republican government e. What the Constitution grew out of: 1) The long English historical background and unwritten constitutional tradition 2) Out of colonial experience of charter governments that were the prototypes of the first ring constitutions 3) American Revolution 1776-83.

Very Important dates (discussed in class on 1.10.12) y 1776 : Constitution is written. 1791 : Bill of rights isn t ratified until then, Before then we had articles of confederation.

4) The lessons of a failed Federated government under the articles of Confederation our nation s first constitution proposed by the Continental Congress in 1777 but not ratified until 1781 (pg. 19) y Defects of articles led to a constitutional convention held in Philadelphia. The convention propose an entirely new constitution the document we have today but now with 27 amendments added to it (pg. 19) y Bill of Rights was adopted in 1791, two years after the new national government. B. English and American constitutionalism C. Canada is a part of the U.S. under the articles.

a. Before 1776, most Americans consider themselves Englishmen heirs to a largely unwritten constitutional tradition. b. Documents that helped inspire the U.S. Constitution: 1)charter of liberties of King Henry I 2) magna Carter in 1215 declaring the settlement that the king had no real power to deprive freeholders of life liberty or property except by the law of the land. 3) The petition of rights of 1628, holding that there is no royal power of taxation without action by Parliament, and new royal power to imprison subjects without trial by jury. 4) the habeas corpus act of 1679 ( no royal power to imprison without trial by jury. 5) The English Bill of Rights of 1689 ( providing that there is no royal power to suspend the laws, and further protecting individual rights from infringement by the King.

6) the act of settlement of 1701, providing for life tenure for English judges. C. Differences pg. 21 Written documents of English Constitution These documents were all agreements by the King to limit, or to restrain, what initially remained the sovereignty of the King.and English documents do not limit the power of the English Parliament. y Parliament arose out of the idea that the King, the house of the Lord s, and the House of Commons together represented all three of the great estates of the realm the monarchy, the aristocrats see, and the common people and that together they were sovereign and could alter even though it was Constitution. U.S. Constitution Sovereignty rise in we the people of the United States Federal government and its officers including Congress president justices have limited anonymity and enumerated powers. Congress cannot make constitutional changes bypassing ordinary legislation the Constitution belongs to the people. The president Supreme Court House of Representatives acting together as the three great estate cannot change the Constitution itself.

Subject had to prove the existence of a right against the king and had no remedy at all against an act of Parliament. Burden of proof was, in theory at least, placed on the federal government and its officers to show that they have authority to act. Can be changed by ordinary acts of Parliament.

The ability to change the Constitution rests with we the people of the US

c. American Constitution cannot be altered or suspended(entrenched) even by an act of Congress or by the president much less by an act of the state legislature. i. Why can t the Constitution be altered a. Protect fundamental rights and freedoms from the passion of the moment in of mobs. b. Creates a framework within which it turned generational lawmaking and private ordering can take place.

c. Function of the kind of dad role, taking certain topics off the agenda of ordinary politics. For example, there is no debate in the United States over what our national religion or church should be because the Constitution for bids and the establishment of religion d. Constitution actually constitutes or set up the institutions of government and divide and allocate power amongst them e. limits the power of the government f. can be aspirational. It aspires: 1) to form a more perfect union 2) to establish justice 3) to ensure domestic tranquility 4) to provide for the common defense 5) to promote the general welfare 6) to secure the blessings of liberty, not only for the farmers generation but also for generations in the future D. English historical background (pg. 23-24) a. The glorious Revolution of 1688: i. English manner Rosen outrage to overthrow the Stuart dynasty of King James II and establish parliamentary supremacy over the English monarchy. Parliament enacted by statute the English Bill of Rights of 1689, recognizing a series of individual rights against the King. ii. 1) The revolution restored fundamental individual rights against executive authority 2) establish the supremacy of representative government

Establish the principle that legitimate government ultimately must depend on the consent of the governed, which implied the constitutional right of the people to alter or abolish their form of government created new social contract. iii. Rights secured by the glorious revolution: 1) Individual rights to be governed by law, to trial by jury, to habeas corpus; limitations on the power of government, the right to be represented in any legislative body that possessed the power to enact taxes, the right to independent judges. iv. Lockean theories of the social contract on the consent of the governed animated the American Declaration of Independence in 1776. E. The American innovation of written constitutionalism a. Colonial charters divided power horizontally between royal governors on the popularly elected lower house of colonial legislator and vertically between the imperial government in London and the colonial government and the 13 original colonies. i. This paved the way for the written Constitution United States. Colonial charters did not, however, recognize popular sovereignty since they work grants from the King. Thus, written constitutionalism, but not popular sovereignty, had its origins in colonial arrangements. ii. Tensions between England and American colonies began with the French and Indian war. Inc. in Concord French Canada adding the province of Qubec the Empire, but defending the American colonists in the war had been costly. iii. King George III then sought to tax the American colonies, which were not represented in Parliament, in part to pay for the cost of defending them. The colonists were outraged by these efforts and by other moves to strengthen Royal executive power. iv. The American colonists all evil and as abusive in tyrannical power which led to the revolution. v. The declaration of independence reads a lot like a brief in opposition to the King: The declaration is a public assertion by representatives of the American people of what they saw as an ancient but dreadful and dangerous popular power. The representatives of the United States of America were undertaking to solemnly publish and declare, that these United colonies are, and of right ought to be free and independent states vi. Independence was not recognize formally until the Treaty of Paris was signed in 1783 and ratified by the U.S. Congress in 1784. F. Articles of Confederation

Before the Constitution was enacted there were the Articles of Confederation, and no Supreme Court. It is due to the failure of the Articles that the Constitution was enacted  Constitution is a gov t relationship with its citizens. If have something against govt need to use constitution as support. If complaint between you and neighbor it s a tort.

Notes in class 1.10.12: ALEC: writes legislation  Every state gets two senators: 100 in senate  How many house representatives do we Have: 435 In total: 535 Article I  Congress shall pass the law (discussed in class) Legislative powers - 8 Congress cannot act without invoking an enumerated power directly out of the USC Kryptonite of the legislative powers is the states 10th amendment right  When congress is out of session ( recess) president can pass appointments. Article II Presidential powers Implied power from tradition and codified in US v. Nixon, Steel Mills, etc. Article III Supreme Court was created by Article III, 1 The USSC gets its power from Marbury v. Madison o John Marshall created the power of the USSC as the final arbiter Article IV  Travel and trade between states Article V  Establish a framework for government a general government, consisting of a unicameral Congress in which each of the 13 states received one vote. Article VI, VII, and VIII  Regulated trees and duties and war expenses Article IX  The powers of the United States in Congress assembled Article XIII  No changes in the articles could be made without approval by Congress and approval of every state legislator. Limitations President Congress, impeachment, privileges within his official acts, terms of office Judicial no advisory opinions, cases and controversies, justiciability doctrine, cannot create laws, impeachment, Congress Misc. The original constitution had no bill of rights because there were no individual rights as slavery was the status quo and no one wanted to give rights to slaves The BOR applies to the federal government and was incorporated into the states by the

incorporation doctrine State action doctrine to sue the federal government o Public function exception when acting like a federal government you can sue o Entanglement exception when the state facilitates, encourages, or authorizes discrimination by a public actor, the public actor must comply USC or the government must cease involvement with the private actor G. Problems with the articles of Confederation i. 9 out of the 13 states had to agree on most significant matters, this meant that the Congress could be at the mercy of a small minority and often could not act. ii. Even though Congress can request money from the 13 states, it could not tax them or the American people directly. iii. Congress under the articles lacked power to regulate trade between either the 13 states or between the states and foreign powers such as England or France. As a result, the wealth creating free trade zone that the colonies had been a part of when they were members of the British Empire disappeared. This led to economic disaster and Congress had to print money which led to inflation. iv. v. Inflation led to Shays rebellion . Congress then called a special convention of representatives from each of the state to consider revising the articles of Confederation in Philadelphia. H. The Philadelphia convention of May 1787 ended in Sept.


Are you drafted by a distinguished convention of 55 citizens assembled in Philadelphia it was chaired by George Washington.


Originally was what started as a convention for revisions ended up in producing an entirely new constitution of the United States.


proposed five major changes: 1) regulate commerce power to tax and spend to promote the general welfare, power to adopt all laws necessary and proper, members of Congress would have fixed terms of salaries paid by the national treasury, Congress has the power to legislate upon indirectly taxed citizens, give the new government all

the powers of the old one as was the power to act in all cases in which the states were separately incompetent or unable to act. 2) The great compromise: Agreed to have a bicameral legislature with the states having equal representation in the Senate and with representation in the House of Representatives being based on population. It was more geared toward states like Virginia which wanted representation based on population and the smaller less populous ones like New Jersey, which wanted a rule of one state, one vote as had existed under the articles of Confederation. 3) Created separate executive and judicial branches of the national government. 4) Slavery: slaves were counted as three fifths of a person. 5) Constitution would be amendable by a two thirds vote of both houses of Congress coupled with ratification by three quarters of the states.

IV. The Federalist papers The federalism is a series of 85 newspaper articles written by Alexander Hamilton, James Madison, and John J, under the pen name Publius. i. Fed. No. 1 Written to the state state-of- New York. Hamilton s famous call for careful and honest deliberation over that affects the articles of Confederation and the need for this new Constitution. ( pg. 31-32) ii. Federalist number.40 ( pg. 32) y addresses one question whether the Convention were authorized to frame and
propose this mixed Constitution or was the authorization merely to amend the Articles. Madison argues that to establish the republican form of government desired it was necessary to essentially start anew and scrap the Articles even if this was not exactly their assigned task. He summarizes the work of the convention as follows; further if they had exceeded their powers they were not only warranted but required as the confidential servants of their country by the circumstances in which they were placed to exercise the liberty which they assumed . And finally if they violated the powers and obligations with which they were entrusted, the Constitution should still be approved given it is for the benefit of the American people.

iii.Federalist number.43 i. Express authority of the people alone could give due validity to the Constitution. Required the unanimous ratification of the 13 states, would have subjected the essential interests of the whole to the caprice or corruption of a single number. a. On what principle the Confederation, which stand in the solemn form of a compact among the states have been superseded without the unanimous consent of the parties of it? Answer: the safety and happiness of society the objects at which all political institutions and, into which all such institutions must be sacrificed. b. What relation is to subsist between the nine or more states ratifying the Constitution, and the remaining few who do not become parties to it? Answer: there is no answer must be left to provide for itself.

 Note: both number.40 and number.43 are Madisons defense of the prop priority of the convention s actions in proposing a document that went considerably beyond the assigned task proposing revisions to the articles in that department from articles rules of unanimity for any changes. The federalist No. 39 In this document, Madison argues in the course of defending the strictly Republican character the government under the Constitution. The government power proceeds from the great body of the people, acting either through their national institution or through Thursday institutions. But the government is partly national and partly federal. The Constitution was adopted by the collective decision of the people United States, acting through the separate decisions of the people in three fourths of the states. Six Broad themes of the Constitution 1. Written constitutionalism: y Constitution is written. y Constitution, article 6, section 2 the supremacy clause: a rule of law contained in the Constitution prevails over any act, policy, or practice of government inconsistent with that constitutional rule. The Constitution prevails over contrary enactments of Congress, contrary actions of the president, and contrary decisions of the judiciary. y Five type of constitutional arguments: 1) based on text meaning the words would have had, in context, to speakers and readers of the English language at the time they were enacted or adopt it 2) based on structure or internal logic of the document a sophisticated form of textual argument that attempts to draw sound inferences from the relationship of provisions to each other, their location contacts within the constitutional text, and the structure of government necessarily framed by the document as a whole. 3) arguments from intent or purpose or he provisions historical background this concept focuses less on the words this type of argument looks for evidence of specific or general intentions of the drafters for example, the federalist or the records of the debates of the constitutional convention 4) Arguments based on precedent that is, past judicial interpretations, where those interpretations have become sufficiently settled to essentially fixed the meaning of constitutional provisions that otherwise might be thought ambiguous or unclear.

5) Arguments based on policy or pragmatic considerations one interpretation produces the better or best result from the standpoint of social policy or specific notions of justice

2. Republicanism and popular sovereignty: the consitution begins with we the people the United States. Thus, the states are not sovereign. Nor is the national government sovereign rather we the people the United States are sovereign. y Sovereignty of the people United States under the Constitution is often exercised by the people acting through the representative institutions, including states. 3. Separation of powers and checks and balances there are three branches: Legislative executive and judicial each branch is to a substantial degree, independent of the others and each possesses power which to check or balance the exercise of powers by the others. Congress: exercise only the legislative power. President: executive power Federal courts: judicial power. y The checks and balance system is often called the Madisonian system of checks and balances because Madisonsonian defended it in the phili convention. y Madison explains that under the Constitution each branch is given different responsibilities. y The president, the Senate, and the House of Representatives are all picked in different ways by different I look towards. y Six year electoral cycle is set up for all the elected officers of the government can be replaced and three staggered elections that must be how precisely 2 years apart. y Political movements must usually sleep at least two national elections in a row, held two years apart, before they could do much. y No branch owns the other branch. None is bound by the other. President: elected for fixed term of four years and can be removed sooner only by impeachment. Vice president: cannot be fired by president because it is an elected position not an appointed position, if it's appointed that that person could be fired. Example head of security. 4. Federalism Constitution is supreme law, and constitutionally valid actions of the national government prevail over actions of the states, under the supremacy clause of article 6. Sovereignty: rest nine the people as a whole but with the majority of the people in three quarters of the states. National government power: has the power to act directly on individuals, not merely a power to make request of state governments. It is a government of limited enumerated powers, with the states and the people retaining all powers not delegated to the national government. Constitutional federalism allows the central government to address situations such as 1) races to the bottom, 2) an inability to realize economies of scale 3) a problem of regulating sub state actions that generate negative externalities 4) situations worse the states cannot recoup the value of positive externalities they generate 5) situations worse the states majorities violate the civil rights of so state minorities

5. Individual rights: the Constitution structure separation of powers, federalism is designed in part to promote individual liberty, as well as effective, limited government. y Has increasingly become a theme of increasing importance to protect individual rights. The Civil War: produced three more Reconstruction amendments 13th 14th and 15th, which greatly expanded the rights of individuals and groups protected them from abridgments by the state governments. The Bill of Rights and the Reconstruction amendments give rise to: 1) freedom of religion 2) speech 3) and of the press: the prohibitions against unreasonable searches and seizures, multiple punishments, denial of life, liberty, or property without due process, and denials of the equal protection of the laws, the privileges against self recrimination and double jeopardy along with the right to counsel. 14th amendment: has created many of the most intense constitutional controversies of the modern era, concerning everything from voting rights to sexual freedom to abortion to assisted suicide. 16th amendment: allows the taxation of income which gave the federal government an enormous increase in revenue which it could use itself or give back to the states with lots of federal strings attached. 17th amendment: provided for the direct election of US senators who had previously been elected by the state legislators. 15th amendment: preventing discrimination and voting on the basis of race. 19th amendment preventing discrimination and voting on the basis of sex. 23rd amendment: giving Washington DC representation in the electoral college 24th amendment outlawing poll taxes 26th amendment: giving 18-year-olds the right to vote. The original Constitution The preamble: Sets forth the purpose of the Constitution, and the authorities from which it claims to emanates the collective, deliberate action of we the people of the United States. Article I (pg 47-48)  Congress shall pass the law (discussed in class) 1.10.12 Legislative powers of congress- 8 Congress cannot act without invoking an enumerated power directly out of the USC Kryptonite of the legislative powers is the states 10th amendment right  When congress is out of session ( recess) president can pass appointments. Article II Presidential (executive) powers

Implied power from tradition and codified in US v. Nixon, Steel Mills, etc. Article III Judicial powers Supreme Court was created by Article III, 1  Judge has a lifetime appointment made by the president with the Senate's consent. The USSC gets its power from Marbury v. Madison o John Marshall created the power of the USSC as the final arbiter Article IV  Travel and trade between states  requires that fugitive and originally fugitive slaves escaping from one state to another be delivered up and returned.  States must recognize and of forced each other's judgments and judicial decrees.  But also court citizens of other states the same fundamental privileges and immunities of citizenship that they give to their own citizens. Article V  sets forth the procedures for amending the ring Constitution, the only way the Constitution itself authorizes constitutional change. Requiring proposal either by two thirds vote of both houses or by a special constitutional convention requested by calls from two thirds of the states plus ratification of any proposal by three fourths of the states.  Establish a framework for government a general government, consisting of a unicameral Congress in which each of the 13 states received one vote. Article VI,  specifies the authority of the Constitution. The Constitution shall be the supreme law of the land and bind the judges of every state, trumping anything to the contrary in state law. Article VII  declared that the Constitution would become operative upon ratification by nine of the 13 original states a rule of recognition departing from the articles requirement of unanimity. Article IX (not in book)  The powers of the United States in Congress assembled Article XIII (not in book)  No changes in the articles could be made without approval by Congress and approval of every state legislator. Limitations President Congress, impeachment, privileges within his official acts, terms of office Judicial no advisory opinions, cases and controversies, justiciability doctrine, cannot create laws, impeachment, Congress Misc. The original constitution had no bill of rights because there were no individual rights as slavery was the status quo and no one wanted to give rights to slaves The BOR applies to the federal government and was incorporated into the states by the incorporation doctrine State action doctrine to sue the federal government o Public function exception when acting like a federal government you can sue o Entanglement exception when the state facilitates, encourages, or authorizes discrimination by a public actor, the public actor must comply USC or the government must cease involvement with the private actor

The amendments pg. 49 First Amendment: protects freedom of speech, freedom of the press, freedom of religion, and the right to petition for dress of grievances. It also prohibits Congress from making any law respecting an establishment of religion. Second Amendment: protects the right of citizens to keep and bear arms in order to provide for a well regulated militia Third amendment: prohibits government from ordering soldiers in private homes, except in times of war and in the manner prescribed by law. Fourth fifth sixth and eighth amendments: concerning the rights of criminal suspects and defendants, including the right to be free from unreasonable searches and seizures and from double prosecution or punishment for the same crime known as double jeopardy, the right to trial by jury and indictment by grand jury, the privilege against self incrimination, the guarantee of due process of law, the right of a speedy trial and public trial etc.  the Fifth Amendment also contains a provision protecting private property from being taken for public use without compensation.  Seventh amendment: preserves jury trial rights and civil lawsuits in federal courts. The 9th and 10th amendment: provides that the enumeration of rights in the Bill of Rights should not be construed to deny or disparage other rights retained by the people.  10th amendment reaffirms the powers not delegated to the national government are reserved to the states respectively, or to the people. In some ways similar to the ninth amendment the 10th amendment appears designed to guard against any inference that adopting a Bill of Rights meant that the federal government now has general legislative powers except where specific right limited them and improper inference that would have reserved the principle that the national government is one of the limited, specifically enumerated powers.

The 11th amendment: remove the category of jurisdiction from the federal courts suits brought by citizens of one state against a different state. The 12th amendment: designed to fix an unforeseen problem with presidential elections, exposed by the development of political parties in the election of 1800 in which Thomas Jefferson and Aaron Burr, running in the ticket, received the same number of the Torah votes a tie even though Jefferson had been the intended presidential candidate.  The 12th amendment provides that the president and vice president are voted for separately. The 13, 14 and 15 amendments: 13th: abolish slavery 14th: prohibited states from discriminating against classes of citizens like the newly freed slaves. Also prohibited states from denying any person the privileges or immunities of US citizenship.

 Makes the individual rate's provision of the Bill of Rights applicable as limitations on what state governments, as well as the national government, may do.  Created individual rights only against the new national government created by the Constitution. 15th: prevent denial of the right to vote based on race or previous condition of servitude. 16th : the power of Congress to tax individual incomes directly. 17th: provides for direct election of the US senators, replacing a lecture by state legislators. 18th: created prohibition, until the 21st amendment repealed in 1933. 19th: gave women the right to vote in every state and federal election. 20th: advanced the start of a president's term by two months. 22nd: limits presidents to two terms only Franklin Roosevelt had been elected to more than two. 23rd: gave the District of Columbia three electoral votes. 24th: forbids imposing a tax on voting. 25th: provides an elaborate scheme addressing the problem of temporary presidential disability. 26th: gave 18-year-olds the constitutional right to vote

27th: forbids alterations in Congressional pay from taking effect without an intervening election for the House of Representatives.

Pg. 51 Notes and Questions ( see assignment doc)

C. The addition of the Bill of rights Federalist: championed the new Constitution and denied that a Bill of Rights was necessary or even desirable. Bascially said there are no rules that prohibit our freedoms so we don t need a bill of rights. i. Madison, Hamilton, Wilson argued that the federal government was of limited, specified, delegated powers. To include a Bill of Rights, they maintained, was contrary to the entire theory of this type of Constitution for limited government. ii. Federalist gave us the Constitution Anti-Federalist: opponents of the Constitution, such as Mason and Richard Henry Lee, replied that the powers of the federal government, might be construed or applied in a sweeping fashion. They argue that a written Bill of Rights was absolutely essential if liberty was to be preserved. I. The anti-Federalist called the necessary and proper clause the sweeping clause. And it would sweep away all the people's liberties, not preserve them. II. Federalist agreed to propose amendments in the first Congress, after ratification of the Constitution. III. Anti-Federalist gave us the Bill of Rights

The Federalist number.84 he fights against the Bill of Rights. Saying that it's not necessary because the Bill of Rights are rights which the Constitution does not restrict. For Ensign's freedom of the press, there is no rent restriction on the freedom of the press so why should we make the Bill of Rights stating that the freedom of the press should not be restricted. Furthermore, he believes that the Constitution itself is a Bill of Rights and is complete.

What the anti-Federalist were for i. three kinds of rights were stressed: ii. common-law procedural rights in criminal prosecutions iii. liberty of conscience, and liberty of the press Favored governmental encouragement of religion and liberty of individual conscience. Did the Bill of Rights originally bind the states? I. Applied originally only to actions taken by the federal government. Because the anti-Federalist had concerns about the powers of the new national government being applied in such a way as to violate individual rights. II. Not until adoption of the 14th amendment's after the Civil War, the provision of the Bill of Rights were made applicable to states laws. However, some argue that the provisions of the Bill of Rights apply to state governments to before the adoption of the 14th amendment Baron V. Baltimore ( provides a good occasion to consider systematically the question of how to interpret and apply the Constitution what counts in constitutional interpretation). Note: Pltf got nothing after being awarded 4500 from trial court bc at the time 14th amendment did not exist which meant that fifth amend. Only applied to fed govmt taking your land but not the state. Chief Justice Marshall delivered the opinion of the court: Can you sue the city without suing the state? Yes. In this case he sues both. The city is not covered by the consttituiton but the state is. So cover yourself by suing both of them. Plaintiff: john Barron Def: city f Baltimore Procedural history: Files at trial court. And Barron wins at this level. It then goes to appeal. It goes to an appellate court. It goes to the state court of appeals. The city of Baltimore appeals at court of appeals and then it is reverses mean Baltimore wins. It then goes to the supreme court. Because Barron appeals it. Why does it jump from court of appeals to federal? Because it becomes a federal question.

Sometimes goes from the state to federal what precipitates that? Consitituional- federal question. What s the issue? He owns a wharf in order for it to work you need water. The city took the ability to operate his wharf because lowered water. 5th amendment says that the amendment pertains to the federal gov not state. Only applicable if fed gov takes your land for public use. Facts: plaintiff appeals after he won 4500 and the trial court believe that judgment was reversed on appeal. So he appealed. Plane of originally sued because the city of Baltimore rendered the water near the wharf to shallow for motion ups. He claimed that the state had taken his property without just compensation in violation of the Fifth Amendment to the Constitution which provides nor shall private property be taken for public use without just compensation. Court said: that the Fifth Amendment must be understood as root straining the power of the general government, not as applicable to the states. Because the states have constitutions which they impose such restrictions on their respective governments as their own wisdom suggests such as they deem proper for themselves. Court argues. The amendments contain no expression indicating intention to apply them to the state governments. Therefore the court cannot apply them. Furthermore the provision the Fifth Amendment to the Constitution, declaring the private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. Holding: judgment reversed. Gets nothing. Issue: Does fifth amendment apply to the state or only government? Only on exercise of federal govt not applicable to the state. Ex: eminent domain. Ex: national monument. No state shall do the following below: Ex: coin money Ex: letters of mark authorizing in enageg in hostile acts towards foreign nations. Note: 14th: amendment made the constitutional law apply to states. Didn t apply until after this case until 1868. Has to be the state or someone who works before the state, if before 14th amm then only applies to fed law. Its important to look at the time in which the issue occurder. Rule: the fifth amm is only applicable to the federal gov before the 14th amendment. Hypo: Another boat rammed into the wharf and tore it apart: You would sue under tort law.

When state takes property person brining claim does so under 5th amen: taking property must be compensated by the state. 14th amm basically says that cons applied to state law to. Could he have sued the state under tort law? Conversion. Why did he sue the govt under the constitution? Sues the city bc a lot of states have sovereign immunity. Govt has soverign immunity(articles 9, 10) the state has immunity from being sued except when it tells you. You can sue them.

Questions PG. 57 ( see assign. doc)

y y y y y y

Page 61 1. How should one go about the task of interpreting the Constitution? What method should the various branches of government, including the courts, use in construing and carrying out its provisions? Based on text structure or interim no logic original intent or history intentions or purpose, using the Federalist or the records of the debates of the photo via Constitutional convention precedent or practice policy, natural law or pragmatic considerations. The judicial branch would determine what is the best way to interpret the Constitution. In my opinion, I would use the precedent or practice combined with policy considerations. I would not look so much to structure or original intent since 202 years have gone by and the original intent may not be suited for today's times or cover topics that were not foreseen by the forefathers. 2. What was Chief Justice Marshall's interpretive method in Barron v. Baltimore? The fifth the amendment states nor shall private property be taken for public use, without just compensation. He began to interpret the principles of the Constitution as he understands them. The Constitution was established by the people of the United States for the government of the United States as a whole, and not for the government of the individual states. 3. Which of the above modalities does he use? Structure Textual argument: Barron said in the Constitution sometimes does limit state governments and pointed to article 1 section 10. Marshall

responds by pointing out the difference between article 1 section 9 in article 1 section 10. Section 9 limits the powers of the national government. Marshall Points out that some of the same limitations are repeated in section 10, as limitations on the power of the states. But whenever the limitations are meant to apply to the states, the Constitution says so specifically, by using the no state shall language of article 1 section 10. Note: Basically if the Constitution want to refer to the states it will say so in the Constitution Pg. 66 constitutional controversies: A. First Bank of the United States: i. concerned the power of Congress to incorporate you think of the United States for carrying into effect the financial system of the US. Fight went on from 1791 until 1831 it was abolished by Pres. Andrew Jackson. ii. Federally charted with flight directors appointed by the president and the vast majority of the directors a select. iii. What did the bank have the power to do? a. Received deposits b. provide an account and manage trusts c. issues notes paper notes supported by deposits on reserve at the bank. The reserve notes function as a formal paper printing prior to the printing of the dollar bill, which did not beginning of this country until the Civil War Main paper money indispensable. What was the fight about? Hamilton was inspired in creating the bank by the huge best enjoyed by the Bank of England. He had an ambitious economic plan to transform the United States nation of farmers into a global commercial economy. Vs. Thomas Jefferson James Madison and other leaders of the Democratic and Republican Party did not want America to seems to be a nation of farmers and were suspicious of commerce. Jefferson and Madison thought land ownership in farming promoted civic virtue. It was a fight over what kind of nation America would become. Who was present at the time of the controversy? George Washington How did washington decide whether the bank was constitutional y he asked for opinions of Hamilton, Jefferson and Randolph. He ultimately decided with Hamilton. Jefferson's opinion on the constitutionality of the bank believe the Corporation bank, and the powers assumed by this bill, and I delegated to the United States, by the

Constitution. Believe that they are not along the powers specially enumerative the Congress. Which are: i. power to lay taxes for the purpose of paying the debts of the US ii. to borrow money. iii. To regulate commerce with foreign nations, and along the states, and with the Indian tribes. To erect a bank and to regulate commerce, are very different acts. Argued: it would reduce the whole issue into a single phrase, that of instituting a Congress the power to do whatever would be for the good of the United States, and as they, would be the sole judges for the good or evil, it would be also power to do whatever evil they please. Argued: to make all laws necessary and proper for carrying into execution the enumerated powers, but they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. Hamilton's opinion on the constitutionality of the bank Argues: to deny that the government of the United States has sovereign power, as to its declared purposes and trust, because it's powers does not extend to all cases would be equally to deny that the state governments have sovereign power in any case, because their power does not extend to every case. He points out that even though some propositions of the Constitution may not be clear, the Constitution and the law of the United States made a pursuant of and all treaties made or which shall be made under their authority shall be the supreme law of the land. The power which can create the supreme law land in any case is doubtless sovereign as to such case. Therefore, United States have the power to wreck the Corporation In regards to the necessary argument by secretary of state who agreed w/ jefferson: He provides a different definition for necessary. He says that necessary often means no more the needful requisite were conducted to. It is a common mode of expression to say, that it is necessary for government or a person to do this or that thing. He argues that it was the intent of the convention, by

the necessary and proper clause to give a liberal latitude to the exercise of the specified powers. Definition of word necessary by Hamilton To understand the word necessary of the Secretary of State does, would be to depart from its obvious and popular sense. The restrictive interpretation of the word necessary is also contrary to the sound maxim of construction, namely, that the powers contained in a constitutional government, especially those which concern the general administration of the affairs of the country, its finances trade defenses are to be construed liberally in advancement of the public good.

Argues: a bank has a natural relation to the power of collecting taxes to that of regulating trade to that of providing for the common defense and that, as the bill under consideration contemplates the government in the light of a joint proprietor of the stock of the bank, it brings the case with the permission of the club the Constitution which immediately respects the property of the United States.

The Bank of the United States, 1791 to 183 Pres. Washington sided with Hamilton. 1816-1836 Congress voted to re-create the bank for another 20 years because of economic problems going out of the war of 1812 and maddison present at the time passed the bill. Constitutional interpretation. Does the passage of an act by Congress word is constitutionally vague Uris we debated and resolved in favor of the act's constitutionality settle constitutional issues for future Congress? No. State of Maryland imposes special tax on the bank of the US which do not apply to any other banks doing business in Maryland. McCulloch case: held that Congress had power under the necessary and proper clause to create the bank and second that Marilyn types up on only the bank and on other Marilyn tanks was preempted by the Constitution itself, that is, that Marilyd state tax on a national bank was unconstitutional interference with the operation of a lawful national power. President declares the bank unconstitutional 1832 injured Jackson becomes president and vetoes the bank bill on the ground that the bank was unconstitutional. Was Pres. Jackson obligated to accept the constitutionality of the bank because Pres. Washington had? Because Pres. Madison had? Explain that you cannot use presidents in declaring the bank constitutional because it's not well settled. Uses the past to show this:

1. 1791 congress decided in favor of the bank 2. 1815 decided against the bank 3. 1816 decided in favor of the bank Claims: each public officer who takes an oath to support the Constitution swear that he was supported as he understands it, and not as it is understood by others.. o Claims that he is the president of independent of other decisions made by Congress or judges. Main Argument against: says the bank authorizes and encourages transfers of its stocks to foreigners and grant some exception from Allstate and national tax taxation this is far from being necessary and proper that the bank should possess this power to make it safe and efficient agent of the government in its fiscal operations it is calculated to convert the bank of the US into a foreign bank to impoverish our people in time of peace to disseminate foreign influence through every section of the Republic and award to endanger our independence The death of the Bank of the United States Immediately once in power Jackson had the secretary who he appointed Tany withdraw the fed govt deposit. y Jackson one the first 40 year ban war, and he killed the bank for a period of more than 70 years. Congress tried to sensor Jackson but failed. y Around 1861 Pres. Woodrow Wilson got approval for the creation of the Federal Reserve Board in his first term. Which somewhat resembled the Bank of the US. Congress did twice passed bills re-creating the bank in the 1840s, but Pres. Tyler vetoed them on the same grounds cited by Jackson. Had those bills been signed by Tyler, the Supreme Court the membership of which have been completely transformed by Jackson and Van Byrne might well have overruled McCulloch versus Maryland. Best case for the constitutionality of the bank y McCulloch versus Maryland.

Constitutional interpretation in the bank controversy: structural arguments from the text of the Constitution: 1. the necessary and proper clause must enhance the powers of Congress because it appears with the list of congressional powers in article 1, section 8 is set up with the restraints on Congregational powers in article 1, section 9. 2. 10th amendment limited the national government of the powers expressly delegated. But during the bank times people like Hamilton and Madison also sought to enforce things weren't sure Warren expressly implied in the Constitution 3. some presidents defined necessary in the necessary and proper clause to mean union are useful. But this was just one way of looking at it. 4. Today the concept of necessity can be viewed best in terms of the Hamiltanian view. Departmental ism: who interprets the Constitution

1. the president takes a constitutional old that he will preserve protect and defend the Constitution of the United States under article 2, section 1, clause 8. 2. Article 3 says the judicial power shall be vested in the Supreme Court and in such inferior courts as Congress chooses to ordain and establish. And that judicial power shall extend to all cases arising under the Constitution. Today, we understand that power as including the power of constitutional interpretation 3. the power of judicial review is nowhere specifically enumerated in our Constitution. y Departmentalism defined: the theory of constitutional interpretation. Previously the framers thought the Constitution would be enforced by the action of all three branches of the federal government operating through the Madisonian system. 4. Basically back then whether or not a particular law is necessary and proper as the judge, the question arrives on your doorstep only if Congress on the president have already said that the law in their constitutional judgment is necessary and proper. If as a judge, you are John Marshall and you believe the word necessary means convenient it would be up to your analysis of constitution to decide whether this was the case or not.

Pg. 83-98 B. Slavery the Quakers began challenging slavery in the 1750s and 1760s. in 1774, the Quakers met with the first Continental Congress which made an agreement to ban the importation of slaves from Britain. 1787 and the Continental Congress was persuaded to ban slavery in the North West territory which eventually would become the free states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. The fall of 1787 Moses persuaded Rhode Island legislator government to outlaw the slave slave trade. The penalty for violating and bringing slave was a 100 pound fine for each slave imported in a 1000 pound fine for each ship engaged in the trade. What the Constitution said about slaves around for the 1787 the 3/5 clause in article 1 counted slaves as three fifths of a person for apportioning representatives in the house of representatives. Article 1 section 9 for beta Congress from banning the international slave trade until 1808 article 4 included a fugitive slave clause that impose a duty on the federal and state governments to arrest fugitive slaves and Masters even in the north. The South is listed on these provisions as a condition of agreeing to a government that gave the nation powers over commerce that New England s delegates desired. So there I also wanted the larger representation in the House of Representatives and thus also in the electoral college that came from counting slaves, who could not vote, as 3/5 of a person. This system

led to white Southerners voting their slaves and gave the South a huge advantage of Congress and presidential elections. The Quaker anti-slavery petitions of 1790 the decision of 1790 leader came to be treated as a precedent by Congress, establishing the impropriety of any congressional action to abolish slavery states. The text of the Quaker petitions claimant rights of man are elusive and fallacious the quoted the Bible a lot and said that you should treat others as you would like to be treated. The truly temporal rule interest of nations, and external well-being of individuals, dependent doing justly, loving mercy, and walk humbly before God, the Creator, the preserver and benefactor of men, that is to attempt to excite your attention to the affecting subject.

The text of Franklin's anti-slavery petition on behalf of Pennsylvania Society for promoting the abolition of slavery mankind are all formed by the same Almighty being, like objects of his care, and equally design team of happiness, the Christian religion teaches us to believe, and the political creed of Americans fully die position. Franklin argued that the people of Philadelphia and many more powers which are vested for promoting the welfare and securing the blessing of liberty to the people of the United States and as we can see that these blessings ought rightfully to be administered, without distinction of color all descriptions of people, so they indulge themselves in the pleasing expectation, that nothing which can be done for the relief of the unhappy objects of their care will be either omitted or delayed. Equal liberty is the birthright of all man influenced by the strong ties of humanity and the principles of their institution. Are you for the restoration of liberty to those happy man, who alone, in the land of freedom are integrated into perpetual bondage, and who I missed the general joy of surrounding freemen are groaning and serval's objections that you would devise means for removing this inconsistency from the character of the American people that you will promote mercy and justice towards this distressed race and that you will step to the very verge of the power vested in me for discouraging and green species of traffic and the persons of or fellow -men. Slave trade debate in Chinese men expected general emancipation of slaves by law? This would never be submitted to the southern states without a civil war. Aiming to purchase their freedom? He believed their money would fall short of the price. Mr. Jackson to postmaster had a qualified property in a slave. It will go to the destruction of every species of personal service. He did not stand in need of religion to induce him to read probate slavery, but if he is guided by that evidence upon which the Christian system is founded, he will find that religion

is not against it. He will see, from Genesis to revelations, the current setting strong that way. There never was a gorilla face of the earth, but were permitted slavery. Mr. Sylvester: had always been in the habit of respecting the society called Quakers he respected them for their exertions in the cause of humanity, but he thought the president was not a time to enter into a consideration of the subject, especially as he conceived it to be a business with the province of the state legislatures. Mr .Smith, of South Carolina insisted that it was not in the power of the house to grant the prayer of the petition, which went to the total abolish the slave trade, and it was therefore necessary to commit it. States would have never entered into the Confederation, lesser property had been guaranteed to them, for such is the state of agriculture in that country, that without slaves it must be abandoned. Mr. Madison admitted that Congress is restricted by the Constitution from taking measures to abolish the slave trade get to her variety of ways by which it could countenance abolition, and regulations might be made in relation to the introduction than the new states to be formed out of the Western territory. He thought the object well worthy of consideration. Conclusion: it was clear that many people had mixed sediments about the introduction of having Congress abolished slavery. Report of the special committee the Quakers are clearly of opinion of: 1) but the general government is restrained from prohibiting the importation of such persons 2) fanfare construction of the Constitution, are equally restrained from interfering in the emancipation of slaves 3) Congress have no authority to interfere in principles of morality and religion 4) Congress has authority, if they shall think it necessary to lay had any, tax or duty not exceeding $10 for each person of any description report of the committee of the whole house what the memorials of the people called Quakers and Pennsylvania Society for promoting abolition of slavery want: y strike out the first clause of the migration or importation of such persons as any of the states now existing shall think proper to admit, cannot be prohibited by Congress, prior to the year 1808. Strike out 3 and 4 clause and assert that Congress has no authority to interfere in the emancipation of slaves, or the treatment of them within any of the states. Strike out the seven clause

y y Franklin satire

Sidi Ibrahim wrote a letter written against the abolition of slavery as being unjust.

what is to be done with them, plant them in the wilderness, where there is plenty of land for them to subsist on the beer too eager to establish a good government. While serving, we take care to provide them with everything, and their treated with humanity. They are well informed Fed and lodged. The condition of most of them is therefore already amended, and requires no further improvement. Here their lives and safety. Argues that the only reason why Christians want to release slaves because they are guilty of their own sins.

In 1794, the Senate approved a House passed bill entitled an act to prohibit the carrying on of slave trade the United States to any foreign place or country. This bill was constitutional because it did not restrict the importation of slaves into the United States. The next chance to stop slavery was not to come until the election of Lincoln in 1860 the Civil War. Notes and questions on the Constitution's treatment of slavery, the Quaker anti-slavery petitions, and the decision of 1790.

1. Did the Constitution abolish slavery? Protect slavery? Leave the question to the states? Enable national power but not committed to any specific end? Does the fugitive slave clause empower Congress to enact a fugitive slave law to force it or does it only impose a duty on federal and state officials to return fugitive slaves? 2. What, if anything, could Congress have done about slavery in the 1790s? Could Congress have for bid in interstate commerce in slaves? Could it have justified such a law as necessary and proper for executing an enumerated power such as the commerce clause power? Could Congress have prohibited slavery in the federal territory or in District of Columbia the way that Continental Congress forbade slavery in the Northwest? Could anyone believe that Congress have less power to prohibit slavery in the territories under the Constitution than it had under the articles? Were freed slaves citizens of the United States under the Constitution or were they not a part of the political community that formed the United States? 3. In 1820, Congress did not address the question of slavery in the territories which was called the Missouri compromise under this accord, an imaginary line was drawn across the north American continent. Slavery would be excluded from territories north of the line. 4. Consider whether the original Constitution was a proslavery document. Garrison abolitionists said the Constitution is a covenant with death and an agreement with how. Was he right? The Constitution contains compromises with the slave states that ignored the existence of slavery, but does it truly condone and protect slavery smart or is the moral failing its failure to destroy and eliminate slavery? Is it painful to see the framers failure to do almost any of the main things they could have done in the 1790s to more firmly put slavery on the road toward extinction? c. The neutrality of Controversy Where does the Constitution vests the power over foreign affairs? y This is the separation of powers question, not a federalism question. The national government possessed the foreign relations

power, which was managed by the executive power, which article 2 puts in the president. History of how foreign affair came to be a matter dealt by president y Thinking about separation of powers was heavily shaped by John Locke: wrote about the separation of powers he listened, describe three powers of government the legislative, executive and federated powers. The federative power also known as the executive power was what we today call the foreign affairs power, and it belong to the King. French theorist Charles de Secondat modifies what describe the three powers of government as the latest latest executive and judicial a life tenured judiciary having by then become a true third branch of the English constitutional system, along with the King and Parliament. He also located the power of forces there in the executive branch. Thus America considered that the foreign affairs Powell was part of the executive power which article 2 opening words say the president. Under the articles of Confederation Congress exercise power a foreign affair, but its inability to effectively manage foreign affairs and the lack of an independent executive branch were among the leading reasoning identified by the framers for abandoning the articles. Article II, section 2 and 3, mention specific presidential foreign relations powers, the power to make treaties, the military power as Commander-in-Chief of the nation's armed forces, and the duty to receive ambassadors and other public ministers. In article 1 appears to confirm specific powers with respect to foreign relations on Congress, in the nature of exceptions to the general executive power over foreign affairs. Article 1 vests important powers related to foreign affairs and Congress, which is given the powers to declare war to define and punish piracies and offenses against the law of nations to regulate commerce with foreign nations and to establish and uniform rule of natural light station. The rule of the senate in treaty making two thirds of the members present must consent before treaty made by the president with a foreign nation can become law. But no specific article 1 provision governs or terminates treaties, the making of non-treaty agreements, or the general conduct of foreign relations. As the remainder of the foreign affairs power that are not specified in the Constitution? Executive branch,

as seen in the case of Washington and have an alliance with France, Washington decided that it was not in the best interest of the United States to join the French revolutionary and declare their alliance inapplicable. Washington claimed that given the foreign affairs power, including the power to interpret or abrogate a treaty and the power in effect to declare peace. The proclamation of neutrality basically a letter by George Washington stating that the citizens of the US shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said Powers, or by caring for any of them those articles which are deemed contraband by the modern usage of the nations, will not receive the protection of the US, against such punishment or forfeiture and instructs officers to cause prosecutions to be instituted against all persons who shall violate the law of the nations with respect to the powers that war or any of them. Pacificus no. 1 Objections to neutrality fall under these heads 1. That the proclomaion was without authority 2. and it was contrary to our treaties with France 3. that is contrary to the gratitude, which is due from this to that country, for the succours rendered us in our own revolution. 4. That it was out of time and necessary. What is the nature and design of the neutrality act: to make it known to the powers at war and to the citizens of the country, whose government does the act that such countries and the condition of a nation at peace with the belligerent parties, and under no obligations of treaty, to become an associate in the war with either of them at this being at situation it's intention is to observe a conduct conformable with it and to perform towards each the duties of neutrality. The management of the affairs of this country with foreign nations is confined to the government of the United States. What's the purpose of being neutral y to prevent the nation being immediately responsible for acts done by its citizens, without the privy or connivance of the government, in contravention of the principles of neutrality. y The issuing of a proclamation of neutrality is an executive act.

But what about the fact that the legislature has the right to create war? That may be true that the executive has the power to preserve peace towards the clear and in fulfilling that duty it must necessarily possess a right of judging what is the nature of the obligation which the treaties of the country impose on the government and when in pursuance of this right it has concluded that there is nothing in an inconsistent with a state of neutrality. What is the executive charged with? y The execution of all laws, the laws of nations as well as the municipal laws, which recognizes and adopts those laws. y Avoid giving a cause of war with foreign nations. What this proclamation of neutrality is all about? Proclaims the fact with regard to the existing state of the nation, and forms a citizen of what the laws previously established require of them in that state and warns them that these laws will be put in execution against the factors of them.

2) Does the power of neutrality only used to prevent war by the president???? Letters of Helvisius nos. 1 and 2 Question what doctrine in Madison talking about????? Is it the proclamation of neutrality???? James Madison wrote the powers of making war, entries, and in their nature executive, therefore comprehended in the general grant of executive power, were not specially in strictly expected out of the grant. Two exceptions to the executive power: The participation of the senate in the appointment of officers, and the making of treaties. If there remains to be mentioned the right of the legislature to declare war, and grant letters of marquee and reprisal. A treaty is not an execution of laws it does not presuppose the existence of walls. It is on the contrary to have itself the force of a law it to be carried into execution like all other laws, by the executive magistrate. To say that the powers of making treaties, which are confessedly lawful blanc naturally to the department which is to execute laws is to say, that the executive department naturally includes a legislative power. This would be a practice of tyranny.

The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws it does not suppose pre-existing laws to be executed is not, in any respect, and act merely executive. It is, on the contrary, one of the most deliberate acts that can be performed, and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with the state of war in heaven acting in as a role for the executive, a new code adapted to the relation between the society and its foreign enemy. Executive has a preliminary communication with foreign governments, on the subject of trivial or war in the proper agent for carrying into execution the final determinations of the competent authority, the Congress decides whether there is war or not.

The Constitution vests the power of declaring war is in Congress. The powers of treaty investor joining the president and in the Senate which is a branch of the legislature. The sum is joined with the president another power, that is appointing top offices yet on the other hand, there are sufficient indication that the power of treaties is recorded by the Constitution as materially different from mere executive power, and is having more to do with the legislative then the executive branch.

Why the president doesn't have the power to declare war? It is true that the president is commander-in-chief of the Army of the United States that those who are to conduct a war cannot in the nature of things, the proper or safe judges, whether a war ought to be commence continued or concluded. They are barred from the latter functions like great principle in free government which separates the sword from the purse or the power of executing from the power of enacting laws.

No. II The declaring of war it is a legislative function. And no other department can be in the execution of its proper function. Neutrality Act of 1794 An act in addition to the acts for the punishment of certain crimes against the United States. Sec 1; any system within the US that serves the form prints or state in war by land or sea person shall be fined 200,000. And shall be imprisoned not exceeding three years. Sec, 3 If a US ship help another foreign country commit hostilities against US citizens person shall be convicted and shall be fined and imprisoned. Sec. 8 shall be lawful for the president to employ such part of the land or naval forces of the United States to compel any foreign ship or vessel to depart the US.

Questions and answers pg. 111 See assignement word doc

The correspondence of the justices i. The neutrality controversy gave rise to another question: Whether the president may call upon the justices of the Supreme Court for advisory opinions on legal questions on which the executive branch desired guidance. ii. Secretary of State Thomas Jefferson wrote to justice J at Supreme Court regarding some legal questions arising out of America's relationship with France. The Supreme Court responded that judicial powers was constitutionally limited to deciding cases and controversies between actual parties. The judicial power can write the letter to the president at the time George Washington. Chief Justice Jay and the associate justice to president Washington This letter basically tells the president that there is a system of checks and balances that the question that he needs an answer to should be received from the executive departments. Notes and questions page 114 ( see assignement word doc) The alien and sedition act controversies Problems with France and England. In Chief Justice John Jay resolved many lingering dispute reprint, but further strain relations with France. France was interfering with America's right to neutral shipping. Congress narrowly controlled by a Federalist party enacted a series of measures popularly known as the alien and sedition acts. Designed to put the nation on a war footing with France and to guard against suspected internal subversion by aliens and those opposed to the administration of Pres. Adams. The alien friends act Sec. 1 president has the right to depart any one from US territory who he suspects is dangerous or is committing treason. Also any aliens who does have licensed the states and big and the prison for three years after the and never come back to the US Sec. 2

refers more to the alien. That the anti-will be removed to the territory or will be put in prison where there is a question of public safety it will require speedy removal. And in regards to save the president may in prison the aliens so long as public safety may require. The Alien Enemies Act y Any male of the age of 14 years or older who shall be within the United States and not actually naturalized shall be liable to be apprehended secured and removed as alien enemies if at the time a declared war between the US and any foreign nation or government or any invasion be perpetrated attempted or threatened against the territory of the US by any foreign nation or government. After passing the alien act, Congress enacted the sedition act, which provided criminal penalties for conspiracy to oppose the government and the writing or saying false or scandalous matters about the president and Congress.

The Sedition Act any person shall all lawful and combine or conspire together with intent to oppose any measure measures of the government of the US which are or shall be directed by proper authority or to intimidate or permit any person holding a placer office in or under the government of the US from undertaking performing or hang his trust or to the punch exceeding $5000 and imprisonment during the term not less than six months nor exceeding five years. Sec 2 if any person shall) letter published knowing and willing to assist or aid in full scandalous and malicious writing the government of the US or either house of Congress with intent to defame such person is convicted by the court shall be punished by a fine not exceeding $2000 and by imprisonment not exceeding two years. Sec3 any person shall be prosecuted under this act, for writing or publishing any liable on the trial because the jury shall have a right to determine the law and facts whether to charge the person or not

Notes and questions page 117

Judicial enforcement of the sedition act y The US government brought a number of criminal proceeding under the sedition act 14 in all. Five of the six most influential Republican papers were ultimately prosecuted under the new laws by a Federalist dominated judiciary.

United States v. Lyon Mathew lyon was the def and was a part of the fed legislature The prosecution of a Republican congressman from Vermont

1798 3 counts 1) Stir up sedition 2) Bring the president and govt of the U.S. into contempt Laid the following libelous matter: As to the executive when I shall see the effort of the power bent on the promotion of the comfort the happiness in accommodation of the people they will have my support furthermore he explains that he sees the executive wants only power that selfish. Goes on to say when he's out the men of firmness merits and experience disregarded in their applications for office for fear they possess that independence. When I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be there humble advocate. Basically is pointing out things that he sees wrong with the executive branch that they are thirst for power, the applications for office or not taken by several because there is fever that that person will possess independence, says the government uses religion to hate and persecute another. Second count consists of having malicious intent published a letter: said to be a letter from a diplomatic character in France. basically states the president's speech was bullying and the Senate had stupid answers at the opening of Congress. Blame that when the president borrowed the language of Edmund Burke and telling the world that although he should succeed in treating with the French there was no dependents to be placed on any of their engagements that their religion and morality were at the end although the French were at peace he questions why Congress did not send it to the madhouse. Instead the Senate echoed the speech with more servility. Third count assisting counseling aiding and abetting the publication of the same The father was arrested on a bench warns immediately after the funding bill. He pleaded not guilty. Evidenve presented at trial Dist. Atty. produced a letter from the same defendant dated July 7, 1790 .The authorship of the letter and the fact of the publication admitted by the defendant. There was further proof that the defendant had several times read at public meetings and for months the letter from which the libellous matter in the second count was taken. Several witnesses and in and in red below both public and private newsletter for political purpose. The defendant defense: 1) court had no jurisdiction of the offense; act of Congress being unconstitutional and void, if not so generally, at least, after writings composed before its passage 2) the publication was innocent 3) contents were true

On the first two points he offered no testimony, but on the third and he proposed to call Judge Patterson, the presiding judge in judge Israel Smith. The def asks jude Paterson two questions: The defendant that asked the judge whether or not he had witnessed the president's ridiculous pomp and parade. The judge said no on the contrary there was a great deal of plainness and simplicity. The defendant that asked whether the judge had not seen at the president's more pomp and servants there than at the tavern at ruthland? the judge gave no response. No other witness was called. The defendant represented himself because his counsel (then judge smith)was told at the last minute and failed to decline to reply. Judge Patterson charged jury as follows: you have nothing whatsoever to do with the constitutionality or unconstitutionality of the sedition law. Congress has said that the author and publisher of the dishes my goals is to be punished and until this law declared null and void by a tribunal competent for the purpose its validity cannot be disputed. The only question you are to determine is that which the record submits to you. Did Mr. lion published the writing given in the indictment? Did he do so seditiously? 1) On the first point the evidence is undisputed he himself concedes the fact the publication as to a large portion of libelous matter. 2) As to the second point, you will have to consider whether language such as that here complained of could have been uttered with any other intent than that of making odious or contemptible the president and govt and bring them both into disrepute. Note: After about an hour the jury returned with a verdict of guilty. Holding: The judge of the court is, that you stand in prison for months, pay the cost of prosecution, and a fine of $1000, and stand committed until the sentence be complied with. Pg. 122 ( see assignment doc)