ConLaw Class 1 - The Founding

good morning good morning welcome back welcome to con la hope you had a good summer break today will be an unusual class I will be lecturing the entire class I won't be calling anyone so you're not on call today but you will be on Thursday a few things preliminary first please set the iclicker you can check your attendance there I'll leave this off the entire class in case you haven't download the app yet second I'd like you all to Philippe's name card so just take one of these out you rip in half first name I don't need last thing you can call me Josh is fine whatever you want me to call you nickname I don't care just write this on here and I will use that name it's a lot easier than using a seating chart and please bring this class every day just pass it around number two this is a class the Constitution so I have a free present for all of you a pocket Constitution bring it to class every day I promise I will ask you to read it so please take one of these and just pass them it's a little heavy but just just you know spread around okay last last freebie this is actually my eighth oh god my eighth year at South Texas my very first day teaching was my birthday yeah eight years ago older now I brought cookies the first day and as a thing and then people said hey where are the cookies and nectar so I have cookies for everyone from Costco they're very good please enjoy them and just pass these around all right no more free stuff you're done that's that's all the free stuff you get this semester after this you're on your own one last point mr. 9:00 a.m. class I will start exactly at 9:00 don't be late I know parking sucks I know traffic sucks get here on time okay alright alright so you got the name card so you got the Constitution's you got the cookies you're done my goal today it's a bit ambitious but I will do it my goal today's walk you through the entirety of our three founding documents the Declaration of Independence the Articles of Confederation and the United States Constitution I doubt any of you had read all these before maybe you have good for you most students haven't read them in college indeed most law students will never read all of these documents you will and you have most of constitutional law is based on a very small number of parts of the Constitution there are entire portions that we will never come back to so my goal today is teach you the entire document so you know it and they come back to it later now please do take notes in this very first day everything here might be an example even the first day of class so don't pretend it's like not not useful all right ready ready let's go our story begins shooting on July 4th 1776 now we all know this day we eat hot dogs and we shoot fireworks but why is this day significant this was a day of the signing of a Declaration of Independence now I will presume that you know nothing about American history for most students the safe assumption because we don't learn that anymore in primary education so I'll assume you know nothing everything you need to know I will teach you if I teaches you you have to know it that's the rub you can't pretend oh I don't like history it doesn't matter constitutional law is unlike other classes it's very much grounded in American history what was declaration independence I'd like to think of it as a divorce document right you had two parties that work together things went bad things went sour and they split up the Declaration of penance is a legal document that explains why things went bad between the United States and Great Britain and then what the remedy is for those bad things which is the break the Declaration isn't justice you know poetry it's actually a legal document it begins hopewell you can all see this that's also on the screen over there if you want to read along it's in your love pocket constitutions right in your eye always keep it close to my heart right over here keep it with you that's true keep one in every suit jacket you never lose it that way dry cleaners always they confused though it begins when in the course of human events it becomes necessary for one people to dissolve the political bands right the the so called marriage which connect them with one another and to assume among the powers the earth the separate and equal station to which the laws of nature and of nature's God entitle them I think it's like a legal memo right what's your rule right what's your law here they're appealing to a higher law right there's no Restatement second for independence right that's not a document that exists they're appealing something higher which is a law of nature of nature's God and these laws impel them require them to separate the next paragraph is perhaps the most famous with good reason right Thomas Jefferson was the lead wrasse from the Declaration our our third president he wrote we hold these truths to be self-evident think that's like race it's a locket er tortes right it's so obvious we don't have to say it we're gonna say it anyway and what are these self-evident truths that all men are created equal and from the very second periphery at the first difficulty right because in fact we're all people equal men women black white slave free that there's this tension it's a very beginning but by writing it down and saying it this created a goal to achieve right an object that we pursued and for decades after the declarations written abolitionist those who opposed slavery those who favor women's suffrage look to this languishing hey wait a minute we're free that's right there we're created equal and equal people are endowed by the creator God with certain rights that cannot be taken away and alienable what are these rights life liberty and the pursuit of happiness the next paragraph explains why does government even exist you probably never considered this question before why do you even have government according to the founders government exists to secure these rights and government doesn't exist because it's government they exist because they have consent of those who are governed that is the people but government doesn't exist forever if government becomes destructive of these rights the people then have the right to alter or abolish it and create new forms of government to affect their happiness right governments only exist for the limited purpose of securing rights and when they fail to secure those rights they can be abolished this was the introduction of why the framers of the Declaration sought independence all right we don't abolish govern for light and transient you know little tikki things right we all get annoyed about government you know potholes and parking tickets right you're not going to serve revolution or potholes but when you have a long train of abuse despotism the people of the right to throw off the government now today we can criticize a government I'm a tree wan right it's it's fun we love Twitter we can dunk whatever party we want right but back then criticising the King of England was a big deal we would call it treason you're a traitor what was the penalty was a penalty for treason death the people who sign this declaration we're not merely declaring that they oppose the government they were signing their death warrants right by publicly putting their name on this document which called a king a tyrant and a despot they were acknowledging that they might be executed when they had the Revolutionary War went the other way all these people are their names front and center would have been taken to the gallows and hung executed so there was an act of some bravery here to actually put these positions public it continues such has been the patient suffering we didn't suffering patiently but the king the present king has engaged repeated injuries and had absolute Tyranny over the states okay so you have your issue right we're unhappy you have your rule when the government doesn't secure our rights we can abolish it now what is your proof right what's your ate what's your analysis the bulk of the document is what you might call the facts section right here are the facts that support independence I won't read all the middle read a bunch of them the reason I read some of them is a lot of these grievances form the basis of parts of our Constitution in other words things that we hated in the king were limitations that we put on our own government right we didn't want the government doing things that the king was able to do okay we begin the very first paragraph the King has refused to sent to laws the most basic freedom right it's not speed sure you know religion whatever it's the right to govern yourself the right to pass your own laws because if you can pass your own laws you can protect whatever rights you want but in England unless the king put his assent that has put his blessing so to speak on the law it had no effect he's forbidden his governor's to pass law and suspended those laws he shut down legislative bodies and he's made it impossible for the representatives in the United States to meet he's made impossible for representatives to be elected and made the United States vulnerable to invasion right the first few grievances all concerned the basic right of representation you may have heard the phrase no taxation without representation they've heard this right what did that mean the colonies were being taxed lots of taxes but they weren't able to represent themselves they weren't able to enact the laws that they saw fit all right one of the reasons why we pay taxes is we have a say how government functions but here one only one way they took their money from taxes but gave them the representation okay the next few concerned the courts right in England the judges served at the Kings pleasure all right the judges served at the Kings pleasure what does that mean the judge made a decision that the king didn't like the judge might lose his salary right the king could fire judges who didn't care for the framers were very much concerned by this concept and they favored a judge who's not dependent on the Kings will but a judge was independence who has security in his office the salary is tenure right who serves during good behavior in fact under our Constitution judges do not serve the president's will judges serve so long as they behave all right as they don't get in trouble the next few paragraphs talk about ways in which the King has used executive power and I call it the military to harass the people he set out tax collectors to ensure that people are paying their taxes he's kept a standing army what's a standing army well today we have you know the United States Army the United States Navy the Marines right these are sophisticated forces who are always ready to fight the next war and they're always trained for it but back at the time of the founding it was different we didn't have a full-time military you'd only call up a military when there's a war right you get the people together you have them organized you have them collect and they fight their war and when the war's over they go home but the King established basically a full-time standing army to always be there to harass and keep them indeed he required the troops to be quartered that has to live with the people you may have heard of the third amendment we'll get there later which prohibits quartering of troops you can't make a soldier live in your home but this was a way not only to keep the soldiers around but to keep tabs on people right that people would know that there's a soldier in their home to me made us to behave indeed if any of the soldiers engaged in misbehavior they might be tried far away okay the next paragraph it cut off our trade and post tax without consent suspend a trial by jury impose an arbitrary government altered our government to spend our legislators plundered our seas ravaged our coasts burnt our towns it's very dramatic and at every juncture you have these grievances right what do we do we keep petitioning we keep asking for a redress for some sort of you know response but all we get in response are more injuries as a result we say that a prince whose character is thus marked by every act which may define a tyrant a tyrant is unfit to be the ruler of a free people again they're calling their own king or monarch their sovereign pirate this is a very risky move next paragraph is worth studying right we always think all you have the Americans and the Brits before 1776 Americans were British right they were one the same they were brothers they were cousins they were husband and wife sister and brother right they were the same nation so they're seeing look to our british brethren our British brothers so long as we're in peace we're friends right we're cool but if it comes to war war enemies right let's try and work this out but if we cannot work this out it's on we're we're not we're not friends anymore right we're gonna fight you even think of the American Civil War yet people on both sides of fight who were related who fought against each other that the American Revolution was a civil war in every sense we called a revolution because we won but otherwise that we call the civil war an insurrection and many civil wars were not victorious they've resulted in the insurrection we put down and that's how the king viewed us as a bunch of traitors right who were not being loyal to the crown but after he was defeated in the war he couldn't hold that position anymore maybe they stole that position I don't know what we'll see okay so now we get down to the bottom right this is like the Iraq right there's like the conclusion of the of the thesis he says we therefore the representatives of the United States of America think about that phrase from he probably said it a million times I've thought about it what does me the United States of America right America is generally like this region right this continent and then there were these 13 colonies right these United colonies ought to be free and independent states look at this sentence right it's my favorite sentences in the entire Declaration these colonies ought to be states in one sentence a colony right which is a part of the crown becomes a free independent states and these states reunited so there's not one United States of America there were thirteen United States of America there were thirteen colonies in 13 States right United States we say today is singular right the United States is a country but back then you say no no the United States are a grouping of states right there they're they're their collective so these colonies become States and any connection with Great Britain is totally dissolved now what as free and independent states these states have powers they can leave you war make war important they're about to go to war right make peace make alliances establish Commerce that is trade and do the other things that States ought to do right this was our this low paragraph here was the first government of the United States with the first idea of what are these government's going to do at the very end this is like the the adios hope this works thing right it says and for the support of this declaration with a firm reliance on the protection of divine providence as godlike please help us write a hashtag blessed right this is like please yeah well hey pans emoji it's like please please please we mutually pledge to each other our lives indie babe we're praying their lives at risk our fortunes they would all be broke on our honor and it follows 56 names most famous which was John Hancock of Massachusetts and prominently but each of these people was putting their name on a death warrant had the war turned out the other way they've all been executed they knew this and they want to put their lives in the line for it which i think is a an important moment that we ought to recognize okay that is a declaration okay what happens next this was July 4th of 76 over the next seven years or so the United States the colonies depending how you call it we're engaged in a bloody civil war a bloody civil war with England and against all odds the colonies prevailed and eventually a treaty was reached with United Kingdom to end the hostilities great okay so you won the war now what governing is much harder as they say during the American Revolution a document was prepared to form a sort of centralized government now it wasn't ratified till always forget the years at 83 yeah I'm sorry 81 I'm sorry this document the Articles Confederation was not ratified until 1781 it was drafted in 77 but it took a number of years before was actually approved okay the Articles of Confederation was an early effort to establish a government for this new nation now preview no surprises didn't work right it did not work the articles government lasted barely you know five or six years but why are we still studying it a lot of the reasons why we have our Constitution reflects the fact the articles failed in other words the articles had certain flaws by the Articles of Confederation had certain flaws the Constitution we ratified remedied those flaws so in order to understand why our Constitution is structure the way it is we have to understand the failings of the Articles of Confederation okay so let's start with the name why is it called the Articles of Confederation well the word articles just mean parts right you have article one article to article three that part's easy what's Confederation today usually when people say the words Confederation you think of ah the Confederacy right the American South right the word Confederacy is much older than the American Civil War right a Confederacy refers to a loosely connected group of states right right a group of countries a group of cities a group of states they have some common interest each state repaint retains its independence but they share certain responsibilities perhaps making war of regulating trade etc but all the power remains within the individual states it is not within the collective they're wonderful sure I do how the way he works that's possibly there are lots of old ones in in Greece and otherwise in other countries but the Confederacy is a loose collection of states okay and again I'll give you a preview this loose confederation of states did not work there were not enough bonds holding them together but let's start in the very first paragraph it's a very weird one students always kind of chuckle right to all to whom these president shall come right in other words hey guys you're right whoever's reading this here's what's going on we the undersigned delegates of the states sing greetings hi write it it's basically a document to be sent around the world saying hey here we are recognized that's right we're real country now you know we won the war we're real country and begins article Confederation and perpetual Union what's his perpetual mean forever right they were really hopeful that this union would last forever and they kept saying perpetual guess what lasts like six years okay and this is a union between not the people not it's not we the people no no not we the people but a union between the states of Hampshire Massachusetts Rhode Island Pennsylvania Connecticut New Jersey blah blah blah blah right there thirteen states right this was a loose connection between these thirteen states okay then we get to the actual articles right you have article one article to article three article one is the name the style of the Confederacy will be the United States of America right here we are you know this is our name that's we should call us okay article two is important on July 3rd 1776 the King had all the power right the king had all the sovereignty the authority right they king and everything on July 4th 1776 independence was declared what happened to all that power all that sovereignty it transferred from the King to each state that's whatever power the king had over New York now the New York government obtained that sovereignty makes sense right powers gotta go somewhere it can't just vanish so whatever power existed under the king let's transfer to the states what happened when the states then ratified this new government this article's confederation right what happens then well the states keep most of their power unless they gave it to the central government right they retain their sovereignty they retain their power unless it's expressly delegated expressly given to the central government we understand so generally the state you know think of like a pizza pie right the state retains seven slices and they have one slice the central government right unless they specifically retained it all right this is important because even to this day under our Constitution whatever power the federal government has came from the states and the federal government only has the power given to it by the states now the flip side is what happens if power is given to the central government did the state still have that power the answer is no right if you have eight slices and pizza pie you give up one slice you have seven slices you don't have that eight slide the eighth one belongs to the central government okay all right let's go on the states enter into a firm league of friendship is a very weird phrase like a league of friendship right and why they formed this league of friendship provide for the common defense secure liberties and for the general welfare okay article four explains how do we secure this friendship well we have to deal with some situations right we can't just be purely independent what happens if a criminal in New York runs New Jersey does New Jersey have to return that criminal yeah right we want the seeds to have a connection so people can't just obey the laws now this language might get you start thinking a little bit right hmm free inhabitants of the states but not few years from justice hmm one of the earliest tensions you see over and over again is the issue of slavery but they don't use the word slavery they use other words to represent slavery so they reference for example free inhabitants as opposed to fugitives from justice what are you talking about here runaway slaves even at the time the Articles you had free states the Nora fine he had slave states in the south and you had slaves who fled who escaped from one state to the other and they were provisions put in early on to ensure that the slaves would be returned now why they add this provision right the northern states like Massachusetts or Pennsylvania were abolitionists Dayla they abolish slavery they made a compromise that they needed to tolerate and accept slavery to form a union and that the failure to do so would probably prevented any sort of government from being formed this will come into play later this would eventually be addressed in a famous case called Dred Scott will cited the halfway point of semester but the government says that if you are a citizen if you are free citizen you get these privileges and immunities what tell is a privilege and immunity the certain rights I'm certain the rights where people have but you only get these rights if you're a free citizen okay the people also can ingress and egress is come and go between this dates right states have freedom of Commerce right you can't erect a trade barrier you know em New Jersey can erect a tariff against New York Goods right they can't block a Commerce and create okay Full Faith and Credit shall be given so if I make a contract in New York it's enforceable New Jersey for example if a person guilty of a crime flees from justice they'll be delivered removed so Matt slavery - yeah okay that's article four article 5 describes this new government um today we have three branches of government right it's basic stuff we have the president we have the judiciary the courts we have Congress Congress has two branches right there is a house representatives and there's a Senate in all of this the Articles Confederation was different it was only in one house alright only one house in the Articles okay and each state had one vote this is a huge problem big state like Virginia one vote little state like Delaware one vote you can imagine this create a lot hostility at the bigger states with no work with with more people had less representation right this is in part why we have a house based on population right to a lot of the states that are bigger to have more authority in the government yeah okay article 6 of the concepts are not the Constitution Article six of the Articles of Confederation will give a tongue twister describes things the states cannot do right remember on July third the candle the power July fourth the states got all this power but now all the Constitution puts limits on what the states can do its taking power away right the Articles take powers away from the states for example the states cannot engage in Foreign Relations they can't send ambassadors right the states cannot enter into treaty is that his arrangements or agreements with foreign states states cannot impose tariffs right they can't impose costs on the importation of goods states cannot keep their own navies very good idea states cannot go to war without the consent of the central government it would be up to the central government to decide matters of war and peace okay now so far we've skipped over an important element which is taxes right one of the central complaints during the American Revolution was taxation now we all hate taxes right they paying them but I think we have to recognize that without taxes our government would not function we couldn't have a government how was the central government to receive money well the central government could not tax people right instead taxes were assessed upon the states and the states were responsible for collecting that money they only say more time Congress told the states here's so much money you owe us and then the state's responsible for collecting it from their people now how effect you think that was not at all virtually every state ignored will call these requisitions requests for money I think about it your representative in leo new york and your people already struggling TFI and now you have to go ask them to pay more money for this other government and by the way you have to collect it you have to go to the door and knock on their door no way during the articles government there's always shortages even President George Washington who is fighting for independence would always complain saying you guys I need money for troops I need money for food I need money for equipment for supplies for weapons and there was none to be had so one of the key provisions is under the our Constitution Congress can directly tax they don't go through the states get permission but this was a huge failure yeah all right a little bit now I've mentioned so far our legislature what about the courts under the Articles government there's no court system right there was no federal court there was no Supreme Court as we would call it today generally the state court you resolve things that's certain processes to resolve disputes between states you know the two states fought over whether a boundary was but generally you would have to go to a state court resolve any sorts of matters okay okay the document also says here things government can do we can set the value of coins weights and measures establish post offices now that may seem stupid like why do you need a post office being a big nation right if you want to send a document from Massachusetts down to Georgia it's gonna take some time the post office actually allowed the government to grow and flourish to actually have a cohesive Network okay all right so we've talked about the legislature we've talked about the judiciary what about the executive now here's a fun fact who was the first president of the United States his name is not George Washington his name is John Hanson Hanson never heard the guy write under the Articles government the states could appoint someone to the office of President this is basically a figurehead he had no actual power right he was basically like a thing like a speaker of the house right it wasn't an executive branch indeed our central government under the Articles had no chief executive officer there was no commander-in-chief that wasn't that wasn't a position that was elected of any sort right it was such an insignificant thing he gets basically once you know one sentence that's it describes entire presidents that's that's all you get right Congress calls to make requisitions he sort of requests for money ah in proportions number of white inhabitants so here again we see the issue of slavery popping up the amount of money that was assessed was based on every person but not every person person white inhabitants which was to exclude slaves right yeah they don't use worth slavery but they talk about it okay we go down we go down okay all right uh ah my favorite yeah any Canadians here no so we have one there was some hope that Canada would become a state they were part of Great Britain they never took us up in the office of their loss next paragraph it tooks a desk contracted okay article 13 is basically saying we really mean it we're we're perpetual or forever and says any question that's aside about Congress of states we bound by it yeah right the state's base ignored this document they ignore this Congress had no wait the oracle shall be observed in every state no way it didn't happen union shall be perpetual no it wasn't here's the key any alteration any change must be agreed upon by how many states all all thirteen what they're saying is if you want to change this document you can't do by majority vote you need unanimous consent now here's the here's the here's the riddle right our constitution which came afterwards was not ratified by every state was ratified by three-fourths the very document says you've every States so is our Constitution unconstitutional hmm we'll get there first you bring a little bit okay we get to the conclusion we appeals to the great governor of the world that is the Almighty right for these perpetual union whose art of those Confederation again perpetual perpetual they were really big that's perpetual ting they were really hoping think less for ever approved March 1980 I'm sorry Marshall 1781 didn't last till 1787 barely made six years okay that's the articles in the aftermath of this document again we had problems people ignored the central government the central government couldn't raise money it was broke states began to erect trade barriers so that they would you know block commerce from one state to the next it was a rough go and by 1786 1787 the American said okay this this is not working for us and in 1787 a meeting was scheduled in Philadelphia and the purpose of this meeting was to propose amendments changes to the Articles of Confederation the goal is let's make some changes like let's make this document better let's improve upon it that did not happen very quickly the people who met in the summer of 1787 took a different path rather than merely proposing amendments to the Constitution they developed an entire new system of government from scratch right from the beginning they started with a blank slate basically we're not going to modify the articles were a start from scratch okay what does that mean well they didn't get all the states along some states didn't agree so I'm sixteen who send delegates to the convention but over the course of about three or four months in the summer of 1787 the Constitution was drafted it's short if it's fits in your pocket you can read it in about 30 minutes hope you'll read if you didn't make sure you do our Constitution is the longest serving Constitution in the world no other countries has a constitution that's hold it also only has 27 amendments right most constitutions have thousands of amendments ours does not will study this semester certain provisions of the Constitution right we'll spend you know maybe six or seven classes on the Commerce Clause well spend maybe 10 or 14 classes on the 14th Amendment right certain really important provisions we spent a lot of time on but most provisions of the constitution you'll never mention again so in the remaining Oh about 45 minutes or so all right our twenty minutes I'm sorry my goal is to run through everything entire to document every Clause so you're at least familiar with it I may not come back this ever again maybe I will but you need to know the entire document it's fear I'm good you take an oath to support it when you go to the bar you need to know it all right let's roll it begins the first three words probably most famous in the entire Constitution a We the People and again you have this tension right who is the people it didn't say we the white males we the free inhabitants that we the people and by using this phrase we the people it sets a a goal right it's a broader sense of something that might be achieved later but was not achieved at that time and it's not we the people of New York New Jersey and Pennsylvania it's we the people of the United States right that now we're not just this sort of group of friends were people that's combined and what are we doing we're establishing the constitution for the United States of America why right why are we doing this here's some goals to form a more perfect union and that's a phrase law students always pick on right it's not we're not perfect now it's we're trying to get more perfect and I think it's a very accurate description the American project that making things more perfect we're establishing justice ensuring domestic tranquility providing for the common defense promote the general welfare and securing the blessings of liberty to ourselves and our posterity our children our generations to come this first paragraph is known as the preamble and it's it's very beautifully written it's a very nice thing to read students are always disappointed up because it plays no role in constitutional law the courts have basically said that the preamble is irrelevant so you can take it as a lovely introduction but it doesn't have any sort of teeth in American constitutional maybe it should I I don't know if those cases are right by the way I will very often say I think courts are wrong it's you don't like it get used to it but but just cuz it just assessing does mean it's right lots of judge that do you're wrong but well we'll get there okay now the Constitution has a structure to it right there are seven articles article one two three four five six seven let me start the beginning to explain what those articles are article 1 which will start over here concerns the power of the legislature right article 1 is the power of the legislature article 2 describes the power of the executive branch article 2 is the power of the executive branch article 3 is the power between the courts article 3 is the power of Courts ok article 4 describes the relationship between the states right at the scrub this discusses how the states interact article 5 is the amendment process ok article 5 is how amendments were added to the constitution article 6 discusses why the federal law of supreme supreme law of the land article 6 is describing that the federal law supreme and the last article article 7 explains how the Constitution goes into effect right when is a constituent actually in effect okay there were also our twenty seven amendments the Constitution will do this later today but the original Constitution was written in 1787 and ratified that is approved in 1789 right so let's just get our date straight declaration independence 1776 Articles of Confederation 1781 the Constitution was drafted in 1787 and the Constitution was ratified in 1789 you'll need to know these dates ok or at least the years the dates aren't as important by the way Constitution Day September 17th why that was a the Constitution was signed so you all know declaration independence a July 4th no one knows Constitution Day I will not be here that day do some other Constitution stuff but it's a holiday so you have off class that day ok and with me all right so let's start the article 1 right the in article 1 describes the powers of the courts I'm sorry the power of the legislature the Congress and it begins article 1 section 1 all legislative powers herein granted we've ested in the Congress the United States let's return again to 1773 at 1776 on July 3rd King it all the power on July 4th the states absorb that power when the Constitution was ratified the states gave up some of their legislative powers to Congress right the states granted Congress some legislative powers what does that mean Congress only has the legislative powers that the states gave them Congress only had the powers that are listed in the Constitution if a power is not listed in the Constitution Congress lacks that power again Congress only has the powers listed all over all the legislative powers belong to the states so again pizza pie right the states have seven slices Congress has one Congress only has that one slicing on the other seven now we'll discuss how the Supreme Court has sort of mangled that approach for that's the general theory so under the original design the states had all this power and the federal government was fairly narrow in the scope of what they could accomplish okay so all the powers here and granted are vested or deposited in a Congress of the United States okay what is this Congress there were two branches you have the Senate and the House representatives the court defines a house representatives first okay the house representatives is composed by members chosen every year so every second year by the people the people the United States vote directly for members of Congress and they serve two years okay where the qualifications serve in the house yeah 325 and if you turn 25 soon that's a constitutional birthday you have to be seven years of citizen of the United States and you have to live in that state okay make sense right you want to know kids being members of Congress the next paragraph is very significant in a lot of different regards someone walks at one step at a time one of the greatest failings of the Articles Confederation was that Congress could not tax the people or a Congress can make requisitions to the States they never paid up the Constitution change that approach now Congress could impose what are called direct taxes on the people right the state has more people more taxes are being paid right now Congress have the means to fund itself but there's a tension here right if a state has more people for purposes of Taxation then let's say would also have more people for purposes of representation right if you have a big state lots of people you pay more taxes but you also get more members of Congress right so a big state like Virginia my have like 10 members of Congress and a little state like Delaware like one member of Congress what's the tension here what are you about slaves how do you count slaves now you've probably heard of three-fifths clause you've almost certainly learned it wrong and I it's okay most people to understand it the southern states knew that their slaves would never vote right so it didn't matter what they thought the southern states want to count all their slaves of purposes of population sure they'd pay more taxes but they get more votes in Congress and if the southern states have more votes in Congress they have more power right the southern states said yeah Council of our slaves 100% countable for representation even though they won't vote the northern states weren't happy with this the northern states didn't want to count any of the slaves they said look if these people aren't voting it's in our part of your country they can't count why well wasn't to dehumanize them both to deny the south representation keep in mind that when you're electing the president a state with more population has more votes in electoral college a president there's reason why almost every president in the other republic was a southerner who favored slavery because there are more southern votes all right so here was the compromise that was struct for both representation and Taxation the government would only count three fifths of all other persons for white I'm sorry for I said Ron for the whole number of persons free persons they count everyone but the other persons they count three-fifths now what's his phrase other persons that obviously meant slaves rights the opposite of free but again they did not use the word slave they didn't want to put that word in the docket they were there different counts but by some accounts they were embarrassed they didn't want to say they didn't want to acknowledge what they were doing they realized was it was a bad thing what they were doing they use these other euphemisms like other persons yeah we'll get to Indians in a bit right yeah but but but generally he'll go yeah Indians right he needs were excluded yeah was that yeah yeah it's next sentence yeah Indians were considered not part of the country either they basically have their own nations and even to this day natives have their own laws other than sovereignty and in many regards we'll get the Indians a little bit later but for now it's enough to say that they reach this compromise which most people think is the opposite it was this was designed to benefit the northern states right how the southern states had for presentation for their slaves slavery might have endured far long in this country than it did okay all right next paragraph each state gets least rumpert one representative and a big state like Virginia gets ten and then low I keep again Delaware it's a small state Delaware had only one alright let's move on aha the South has the power of impeachment what's impeachment well we haven't even gotten to the executive branch yet but Congress has the means to remove both executive and judicial branch officials and misbehave and the house can impeach them okay come back to that later so that's article one section two article 1 section 3 describes the Senate article 1 section 3 describes the Senate now the people vote for the members of Congress the Senate operates differently the Senators are chosen by the state legislatures for the New York State Assembly votes who is a senator from New York not the people and the senator served terms of six years not two it was the biggest difference though is that senators are not based on population each state has two senators Virginia two senators and bitty Delaware had two senators right even today California Texas each of two senators you know Wyoming has two senators right while people think this is unfair that these huge states have such low representation this compromise was the reason why we have a constitution it was a way to give something to both the big states and the small states both yeah senators have a different qualification that be 30 years of age instead of 25 and non-user Sisson rather than seven okay next paragraph the vice-president who tells the vice president right we we barely had a president the other government now we have a vice president but the vice president had really has very little work one thing he does is he sits in the Senate as the president of the Senate and if there's a tie in the Senate the Vice President breaks the tie yep the Senate tries impeachment does that mean I hope you've never involved in the criminal justice system if you have it's easier to step process first you're charged right my big grand jury says AHA we think that bill over there committed a crime right do you have an actual trial right it's a two-step process first you're charged and second you have a trial Congress works the same way the house charges for example the president with the violating the law and the Senate functions as a court the tribe impeachments and indeed if the President of the United States has been tried the Chief Justice presides all right so something very significant we've only had a two presidential impeachment trials before for Andrew Johnson and President Clinton to remove the president you need a two-thirds vote simple majority will not cut it you need two-thirds okay article 1 section 4 generally the states regular elections but Congress can intervene this is a somewhat controversial issue now voting ID law isn't alike ok article 1 section 5 the house judges who is elected let's say you know two people show up to Congress say I am the member of this district now I'm the representative this district Congress gets to decide who the correct member is Congress can expel its members of the two-thirds vote if they misbehave that happens I didn't do very rarely okay okay article 1 section 6 this is significant members of Congress receive their salary from the United States Treasury under the old articles government it was the opposite the states pay their salary and as you know whoever pays your salary calls the shots so now the central government paid for their salary not the state's okay all right now we get to actually what Congress does Congress can enact laws to raise revenue that means raise taxes and those bills must begin in the house wait Oh how does a bill become a law I'm sure many of you many of you have seen the schoolhouse rock song right I'm just a bill you remember that one right has the bill become a law described right here in article in section 7 so you start off in one house give the house through the Senate doesn't really matter right you concern the house or the Senate and the most people giardi vote in each house so if you have 51% in the house and 51% in the Senate then the law is presented to the President President has a choice he can sign it besides it becomes law if not he can veto it he can reject it but there's a wrinkle if two-thirds of both houses disagree they can override the veto this was novel in England if the king did not give his assent to the law that was it but here the legislature can override the presidential veto which is a novel innovation in the world okay they're with me so far okay we will spend probably the first 40% of the semester an article on section 8 we will spend so much time right so I will always ask you a question where does Congress get the power to do X and the answer almost always be article on section 8 maybe you're like if you just say article 1 section 8 that you make 90% the answer to that question I'll ask a follow-up to be sure police will get you'll get the first one right right article 1 section 8 gives Congress has certain powers again these were powers that were surrendered by the states and then delegate to the central government ok here's the rub if a power is listed in section 8 Congress can do it if a power is not listed in section 8 Congress can't do it so almost everything you'll be finding the first quarter of the semester is is there a powerless in article 1 section 8 even with me okay the very first one is very significant Congress has the power to link like taxes again the old articles government could not do this now Congress could and they could raise money and then pay the debts for I pay things in other words when you raise money what do you do you spend it so they can raise money and then they can spend it what can they spend money on this would be a early controversy for what Congress can spend money and we'll do it later right can they spend money on anything that promote the general welfare or can they only spend money on whatever is an article 1 section 8 the shorter answer is general welfare there's some limits article 1 section 8 Clause 2 Congress can borrow money establish credit article 1 section 8 Clause 3 we will spend oh boy about 4 weeks on this clause looks simple doesn't it right Congress has the power to regulate commerce with foreign nations and among the several states and with the Indian tribes simple right well what is the meaning of the word Commerce does include trade manufacturing Travel growing crops growing marijuana not buying healthcare right what is the meaning the word Commerce what is the meaning of the word among does that mean literally traveling from state a to state B or does that include some sort of activity in state a that might have an effect on state B what does it mean to regulate does regulate mean tell you how to do something does regulate mean force you to do something does regulate mean prevent you from doing something we will spend so much time you'll be sick of the Commerce Clause I promise but we will answer all those questions early so I'll give you some answers I want to answer that article 1 section 8 Clause number 4 Congress the power to promote a uniform rule of naturalization that that describes the laws of getting citizenship and laws of bankruptcy Josh why is this in the Constitution I'll tell you why lots of states would enact laws to favorite debtors people in debt they would just wipe out debt oh they love that right we just wipe out all loans and more imagine your student loans just wipe that right pipedream sutton there's nothing new my friends Congress regulates laws of bankruptcy not the States Congress can coin money punish counterfeiting again post office right sounds stupid but back then it was important Congress can promote the progress of science and useful arts this is like patents and copyrights which we learn about in property law uh-huh we have courts right Hebei most quartum right the we have the power to constitute tribunals inferior to the Supreme Court under the old articles government there were no courts but now there are courts Congress can punch piracy Zinn felonies piracy was actually a very big deal back then there's a lot of reference to the Pirates and you're reading the very weird about Pirates Congress and declare war on my favorites what the hell's a letter of marque and reprisal it's basically a license you give to someone to be a pirate right you say I give you the power to go conquer and to take over this ship right I can go capture the ship at sea right it's obviously a private license we have pirate a couple years ago students actually got me a letter of marque I put in my wall it's very cute it's my name on everything not effective but it'll see maybe we'll be one day okay Congress can raise and support armies right again one of the fears the declaration was having a standing army that just sits around forever but any appropriation for money only lasts for how long two years which ensure that you wouldn't have this sort of permanent army that have an army serve this purpose after two years it comes back home Congress provides for a Navy calls forth the militia Congress also exercise power over what we now call the District of Columbia that's the the nation's capital right why why is our nation's capital in this thing called the District of Columbia it's not in any state it was not designed to be a state right it was designed to be there's an independent region that was not subject to the laws of any other state because imagine we had our capital in some other state that they could punish the capital shut it down if they wanted to put you know police around or something so we have the independent region which is why he should not be a state to wanna be a state go to Maryland or DC or Virginia you don't need to make DC estate the last Clause is the most significant by far right this is probably the most important provision in all of article and section 8 it is called my friends the Necessary and Proper Clause it reads that Congress shall the power to make all laws which would be necessary and proper for carrying into execution the foregoing powers that is the previous 16 clauses alright foregoing means what came before let me give you an easy example we know that Congress has the power to establish postal roads right post office as opposed to rolls easy okay they can make post offices and they can make post roads how do you get mail from one post office to another we need a wagon get a horse great need a mailman I mean you need to actually buy stuff is there a clause in the Constitution that says Congress has the power to hire mail men and wagons and horses no there's no clause that says you can go buy horses and wagons but is it necessary to have wagons in north have a postal system I think so back then without a horse you couldn't it wouldn't work you can't do it by foot right is it a proper means to have a horse and a wagon to carry mail yeah I think it's proper that's how the final clause works right Congress can make laws that are necessary and proper to carry into execution other powers right Congress can pass a law to approve the hiring of wagons and horses in order to execute its authority over postal roads right the Necessary and Proper Clause is often called the sweeping clause right or the elastic clause what does that mean it gives Congress additional authorities right it's a supplement right it's an additional power to do stuff to make government work in the very first not the first but in one of the first major Supreme Court cases we'll study because McCulloch v Maryland it's reading for Thursday we did it already right what is the meaning of necessary right how necessary does it really have to be do you need horses have opposed to this postal system yeah you need horses right you know do you need wagons yeah you're gonna need wagons you know do you need to sponsor the you know us cycling team as it means promote the Postal Service not really right so how far does a you know necessary stretch okay all right that's if article 1 section 8 we'll spend a lot of time on this clause yeah next article 1 section 9 again we see a reference to slavery both at the name at the time there was a practice known as a fugitive slave trade we're effectively slaves were taken from Africa to the United States it was a cross Atlantic transport it was a awful humanitarian disaster if you want to read up on it I encourage you to but this was a practice which even those who supported it recognized it was pretty awful so they put a limit on it so to speak it says the migration or importation of such persons shall not be prohibited until 1808 in fact we're saying let's leave this in place for 20 years and let's hope we figure it out later right again it was one of these compromises we can't deal with this now let's deal with it later and indeed in 1808 it was abolished right so they said let's just leave this in place for 20 years next the privilege of the writ of habeas corpus not be suspended what is habeas corpus it's a Latin phrase which basically means bring me the body or show me the body or but you know bring the body right if you're in prison and you're being held you have the right to have a judge determine whether your captivity is lawful right you can have a judge oh yeah you can hold Josh whatever right but a judge can decide this and we'll discuss when and how that Rick can be suspended no bill of attainder I'm ex post facto law should be passed what's a bill of attainder a bill of attainder is a law that punishes one person right let's say that I pass a law and Congress says we are sentencing you know Josh to jail in one year right okay well courts can hand out sentences of punishment but Congress can sir no bills of attainder what's the next post facto law the next post facto law criminalizes something after it happened so let's say today I'm driving on the road at 65 miles an hour I'm fine the limit 65 tomorrow they drop the limit to 55 aha they say you broke the law it was legal the time no no no we're retro actively making illegal so you cannot have ex post facto laws okay okay that's article 1 section 9 puts limits on Congress article 1 section 10 puts limits on the states again the King of England had all this power that power went to the States but by ratifying the Constitution article 1 section 10 imposes limitations on state power in other words the states were agreeing to limit their own Authority which was significant the states could not enter into agreements treaties alliances the states could not pass bills of attainder or ex post facto laws the states can impair the obligation of contracts very important provision not anymore but it was a very important provision say it's cannot grant titles of nobility right no nobility we don't have that you know no no Prince's in America okay keep going all right wait done with Article one all right article one by far is the longest and most complicated provision of the Constitution there's just the most stuff in it article two has less stuff and to find the power of the executive infusion Article two begins article two section one the executive power shall be vested in a president of the United States a couple things jump out at you right what is the executive power what does that include president of the United States where there's not three presents there are five presence there's one president so whatever power exists belongs to one person now let's contrast article one section one I'm going to scroll quickly that's article one section one we've said it before right it says all legislative powers herein granted which means only the powers listed are granted here and granted remember that phrase here and granted does the phrase here in grant it appear in article two the answer is no it doesn't say the legislative powers here and granted it says the executor shall be vested what that seemed to suggest and there's debate about this well that seems to suggest is that the executive power is broader than what is listed in the Constitution or I'll use a fancy word enumerated enumerated just means listed if I say enumerated that just means listed right article two suggests that the executive power whatever it is is broader than those listed or enumerated in the Constitution that leads to an immediate crisis if a power is not listed how do you know what it is we'll get there but whatever the executive power is and wherever it belongs it goes to single president the president is elected by process knows electoral college right when you all vote you're not actually voting for the president you're voting for votes in the electoral college in fact the states are not obligate to even have presidential elections they're not in the early years through public state legislatures picked the electors people even vote for presidents no requirement today all the states do but there's no requirement to have it and how do you know the number of electors each state has you add up the number of Senators and Representatives so every seat has at least one Senate I'm sorry at least one representative and two senators so every state has at least three votes in the electoral college some states have like I think Texas has like 60 something or 70 some lose track but some big states have a lot okay alright let's scroll down today when a person wants our present they have a vice-president a ticket they run together everything's great back then it was a little different whoever got the most votes was president and the runner-up became vice president just imagine for a second having a present Trump and a vice president clinton now they'll be fun right but you actually had enemies people who hate each other they were campaigning against each other right the vice president and president they just hated each other and that happened if it specifically with Thomas Jefferson was a president and vice president Aaron Burr he's in the Hamilton musical or at least listen the soundtrack you look at the reference ah we have qualifications for the president be a natural Mort citizen check since the United States not check and 35 years of age I am now old a few president broke there was last week so now Lord help all of you yes thank you Mike my last presidential birthday you have I think let's see 18 21 25 30 35 yeah so you have six presidential birthday's and then you get to present at 35 now you're now I'm done no more presidential birthday's I'm done if the president becomes disabled the office of all on the vice president the president draws a salary from Congress and the president that salary cannot be increased or decreased it is Congress can't force the President to do stuff by blackmailing zio passed our bill or else we'll drop your salary that doesn't work right so the salaries fixed during his time in office the president salary is not free I think it's like a four hundred grand a year so I mean it's not low but you know it's it's it's has not it's not gone with inflation okay here's the oath of office you will faith execute the Office of the President article 2 section 2 is quite long and without much structure it lists it lists the powers that the present has some of them not all of them perhaps for example the present shall be the commander-in-chief of the Armed Forces the president can pardon certain offenses the president can make treaties of an order for a treaty to be approved he must need the advice and consent of the Senate right in other words that the Senate gives a 2/3 vote to approve any sort of treaty the president can also nominate ambassadors ministers other judges the Supreme Court right but he needs a stands permission in order for the President to appoint someone to the Supreme Court they need a majority vote in Congress I'm sorry in the Senate right the house has no role in nomination it's only a function for the Senate ok the press can also fill vacancies during recesses the president can give the saving Union you ever wonder where that phrase came from it come from the Constitution he can adjourn both houses as well as convene both houses the president the president has a duty to take it take care that the laws are faithfully executed this is now somewhat popular provision but I think its most basic level means yes I actually execute the laws he cannot fail to execute them you cannot suspend the laws article 2 section 4 explains the king said the president is not a king the president and all officers of the United States can be removed from office by impeachment right again back in 1776 to get rid of the king would have to assassinate him right that's something to get rid of him in our government you can remove him by a legal process we've had two presents who were impeached but no one removed from office okay moving right along that's article - that's article - Ryan schedule we move on to article three article three defines the federal judiciary the federal courts okay and we've seen from the very beginning article three section one the judicial power of the United States not the judicial power here and granted but the judicial power in general right what is this judicial power doesn't really define it does the Constitution say that Thrun Court can declare laws unconstitutional not exactly but I think it's it's a logical inference but it leaves this issue largely open okay so it begins the Supreme Court has these usual powers and only there's only one Supreme Court and the Constitution creates the Supreme Court so Congress can't abolish the Supreme Court by statute right you have to amend the Constitution so you have one Supreme Court but Congress can ordain and establish they can create other federal courts the inferior courts now inferior doesn't mean that they're stupid right they're weak just means your lower courts so today we have you know the federal courts of appeals the federal district courts right these are the inferior courts that Congress ordained and established here is the biggie judges do not serve at the present pleasure they serve during good behavior as long as they don't screw up they keep their salary for life and that was a central feature to ensure judicial independence now back in the 1700s in the 1800s people didn't live very long all right the average age was much lower than this today so now judges concerts all 90s and they can't get rid of them I'm sure it's so how clear it's all a good idea but that's the health system we have now okay you uh you probably study this next provision and you didn't even realize in cipro when you discuss oh god I'll make you wince subject matter jurisdiction they'll give you cold flashes yeah subject matter jurisdiction our favorite you have federal question jurisdiction right and you have diversity jurisdiction remember that yeah bring you back last semester that stuff comes from the Constitution right Congress didn't just make up that crap right 1331 and 1332 that they didn't just make that up the Constitution says the power of the courts the judicial power extends to cases arising under this constitution the laws of the United States what is federal question jurisdiction arising under sound familiar right you're welcome right cipro school but comma came first right this is this is the og as where came from right the the basis of all of your federal question jurisdiction is article three section two what about diversity jurisdiction right well I got you there right controversies between citizens of different states right so if a citizen of New York's who's a citizen of New Jersey you go to federal court they pause for a second who was a citizen what define citizenship was it defined by state law was it defined by federal law was a slave a citizen could a slave use diversity jurisdiction to get into federal court this was the controversy in Dred Scott now the Constitution says nothing about citizenship of the state or the United States but the holding of Dred Scott was that a slave could not be a citizen even if his state made him a citizen therefore they could not go to federal court so evening diversity say he just boring stuff it was really significant because the earliest cases about who is a citizen slavery turn on who got to at a federal court because if you were a citizen you go to federal court but if you're not a citizen you're stuck in state courts very significant okay now that the first paragraph describes the general jurisdiction the lower courts the next paragraph describes the Supreme Court's original jurisdiction now what is original jurisdiction usually if you have accomplished art off in a trial court right you know you know this much from sifter oh but there's some things that are really important and you go straight to scho to strengthen Supreme Court the United States what cases cases affecting ambassadors public ministers and in which a state shall be a party right if you have one of those conditions there's original jurisdiction today you generally only have a handful of original jurisdiction cases they involve states like one one state the Sue's another may be over them a dispute of where a boundary is but in all other cases the court sprint when I say the court I mean the Supreme Court well you'll get used to it in all other cases the Supreme Court shall have only appellate jurisdiction only appellate jurisdiction all right your second case for tomorrow Marbury vs. Madison will turn on this entire paragraphs make sure you read this paragraph very carefully for Thursday that's why I throw Sam sorry I don't see you tomorrow trial by jury okay very good all right that's it the courts there's not much it's pretty open-ended so that's article three we move on article four article fourth with a hodgepodge it describes the relationship between the states okay so article four section one says Full Faith and Credit are given to records from one state to another so if you have a you know a judgment in New York and you moved to New Jersey New Jersey won't force that judgment you might recall the phrase Full Faith and Credit was in the Articles in Federation so similar language article four section two we have this phrase again privileges and immunities we discussed this a few moments ago that phrase refer to certain kinds of rights may be right a free speech may be right to bear arms whatever they were right and it says the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states what does that mean I live in New York and I go to visit South Carolina whatever rights South Carolina gives to its own citizens they have to give to me a visitor right if I'm visiting a South Carolina I get whatever rights that South Carolina citizens have now again who is a citizen for purposes of this Clause is a slave a citizen is a free black person a citizen this happened imagine you were a sailor in Boston which was a free state and you're a black person you moved each of sorry you traveled down south you went to South Carolina if you were a citizen of Massachusetts you should get the same rights as a citizen of South Carolina the South Carolina said no no you're not assistant at all because we can't give you these rights could you give you these rights our own people would get to get up to release around slaves this is a huge contrast with with black sailors it was a huge it happened all the time we're basically they will be captured in the southern ports even though they were free citizens and Dred Scott again turned in large part on who was a citizen right the Constitution's failure to define citizenship created significant legal controversies of whether you go to federal court and diversity and whether you got these privileges and immunities you Prentiss ought about this but it's it was a huge deal about who was a citizen okay and then we come to what's called the Fugitive Slave Clause you have the fugitive trade clause right the fugitive trade clause in article 1 section 9 and they have Fugitive Slave clause in article 4 section 2 don't confuse them alright fugitive trade we just lay people confuse them all the time well study this I think next week in a case called pretty versus Pennsylvania but let's read it it says no person held to service or labor what does that mean slave again they did not use the word slave but they sure as heck we're talking about it so if you were a slave in one sailor to say Maryland Maryland was a slave state and you escaped into another let's say Pennsylvania right so a slave escapes in Maryland Pennsylvania what happens Pennsylvania is obligated to deliver the slave back to the owner in Maryland right this issued a command to the states they were obligated to return the runaway slaves now this text if you just look at it only describes a relationship between two states does this text give Congress the power to enact laws protecting slave catchers Congress enacted such a law and in case go Pennsylvania the court held that that law was valid that this law gives Congress of power and I'm not so sure it does but we'll get there later okay article 4 section 3 about new states being admitted right they recognize we've all this land out west new states would be admitted sorry Canada you lost your shot you don't get a freebie anymore okay the new states will be admitted with the consent of Congress okay article 4 section 4 guarantees every state a Republican or you might see representative form of government this Clause doesn't have much use today at least alright moving right along 1030 Ryan scheduled article 5 whether that clocks that three minutes slow someone's messing with me that's usually people put it fast not slow that's all fix that one after class Article five Article five describes how to change the Constitution you'll recall that under the Articles of Confederation any amendment required unanimous consent it's hard to get everyone to agree in anything so the Constitution is a different process it's two steps first two-thirds of both houses of Congress a two-thirds of the house and two-thirds of the Senate agree to an amendment or two-thirds of the state's call Convention right either way we need 2/3 to start to propose the language at that point three-quarters of the state legislatures must ratify so you need 75% three-quarters of the states to agree to an amendment to the Constitution right you need three quarters to agree to an amendment to the Constitution and with me we've only had 27 amendments ever now this last parts kind of funky okay this last parts kind of funky right there certain limits and what amendments you can pass the first one says you can't effect the first and fourth clauses in the ninth section of the first article what the hell is that that's article 1 section 9 the future of trade clause I'm sorry the slave trade clause right article 1 section 9 is a slave trade clause what does this mean that the slave trade cannot be abolished 1808 and you can't even pass an amendment about the abolition of the slave trade until 1808 they were basically locking that slave trade in for 20 years no matter what these are question can an amendment be unconstitutional right can you limit what kind of amendment could be ratified the next one's a little bit more relevant that each state has two senators the number cannot be reduced right you cannot reduce senators even by amendment so we're stuck with this right even if you know California said we want to amend the Constitution to give Rs 800 senators that amendment would perhaps be unconstitutional rolling wrong article six is again a bit of a hodgepodge there's lots of things that don't really fit with each other but article six begins about any debts that were taken to account before the Revolution or ballot in other words we're not going to forget our debts this next paragraph is probably the most important clause in the Constitution probably maybe one or two but it's definitely top three it's called the Supremacy Clause the Supremacy Clause it provides the Constitution and the laws the United States which shall be made in pursuance thereof and all treaties made shall be the supreme law of the land and the judges in every state shall be bound thereby anything in the Constitution or laws of any state to the contrary notwithstanding what does that mean if there is a state law that's in conflict with the Constitution or state long conflict with a law of Congress or a state law in conflict with the treaty what happened to them with such a conflict you apply the higher law the more supreme law and what is the more supreme law federal law in any complicated state and federal law the federal law prevails the states cannot take actions they cannot pass laws that conflict that are contrary to federal law we'll get there later a federal law will trump a state law and the judges are bound even the state judges by that supreme law of the land this allows our country to work if states could pass laws that conflict with federal law our country would end very quickly will senior when you're first reading smart McCulloch V Maryland can a state impose a tax on a federal bank it's actually a very difficult question but the court ultimately rejects that argument why because the power to tax the court says is the power to destroy and the ability of a state to tax a federal institution means a state could destroy the federal institution if we didn't have this clause or our government wouldn't work it would end very quickly very quickly okay again Supremacy Clause will come back to over and over again additionally the Senators take an oath support the Constitution right members the state executive and judicial branches take an oath of the Constitution you notice they don't take an oath to federal law right just just just look at the different language right the Constitution laws United States and treaties right judges are bound by all the above state execu officials only bound by the Constitution we'll come back to that point little bit later we're almost not the Constitution all right last one that's an article that is article seven the ratification of this cut of the conventions of this constitution of nine states so if nine of the 13 states approve we have a constitution wait a minute Josh didn't you tell me like an hour ago that to amend the Articles Confederation you need all the states yeah I did so you have this tension right from the very GetGo right the very first damn thing you need a it saying we're just going to ignore that thing before all right we're just gonna like pretend that doesn't happen and what we will be will be happy with not i'm sorry not not eight well yack with nine now eventually all thirteen have to ratify but our country actually began with eleven states in congress eventually the other two O's north carolina and oh god I always get done was it Wow thank you there was a sort of like outliers right they eventually came along and eventually they have a sudah right screw we can't we can't be our own countries right it wasn't gonna work but the very first act was like yeah I'm just gonna ignore this unanimity requirement okay so the Constitution was written in 1787 ratified in 1789 okay what happened during those two years each state had a convention where they agreed do we approve this Constitution or not and eventually they got to nine and then it got to eleven and eventually got to thirteen but a number of states had objections they said wait a minute we need some changes right we want some alterations they said we will approve it we will ratify it now on the condition that we make some changes later and these changes became the first ten amendments the Constitution when the very first Congress met in 1789 Congress proposed 12 minutes not 10 they proposed 12 amendments the Constitution only ten of them got the requisite votes two of them didn't get into votes right away at least so what we now call the first amendment which of their free speech and free religion blah blah right was actually the third proposed amendment I blew your minds right what we call the first amendment was actually the third proposed amendments number one number two were not ratified right right away at least right people say oh the first amendments first was most important nah that's not exactly right right it was a third is the other two weren't popular enough okay we now call the first ten amendments the Bill of Rights that name didn't take hold till much later depending who you ask of the 20th century 19th century but it wasn't called the Bill of Rights okay now the amendments operate in a specific function let's just start with the very first forward of five words Congress shall make no law the Bill of Rights was seen as limitation on federal power I don't like the phrase Bill of Rights but think it conveys wrong image the Bill of Rights the ten amendments they don't convey rights the limit government so for example Congress shall make no law prohibiting the free exercise of religion Congress make no law abridging the freedom of speech does the Constitution give you the freedom of speech no the freedom of speech comes before the Constitution it already exists all this says is that Congress can't a Bridget right these are rights that pre-exists our government maybe the rights from common law maybe the rights from natural law wherever you want to come from I don't really care right but these rights come from before our Constitution was ratified so the Bill of Rights be viewed as a limitation on federal power what about state power right to the Bill of Rights limit the states the answer was no you'll read a case for tomorrow or Wednesday barenbi city of baltimore about whether the takings clause v mmm limits stay power the answer the court found was no that will be changed by the 14th amendment let's go one step at a time so the the first amendment has he one two three four five six six different clauses that are relevant I can't count them right in my head Congress make no law respecting an establishment of religion now you probably are the phrase separation of church and state and that's a phrase that animates modern Establishment Clause case law although it's not clear that was the original meaning I think there's good evidence that states were allowed to have states were allowed to have established churches this meant that Congress couldn't mess up with state churches okay you are now required to take First Amendment as part of your curriculum I will not teach it to anymore I used to teach First Amendment in common law and I don't have to give an entire class and so a little bit more time to spread things out so this be the last time probably mentioned these provisions Congress make no law respecting ribbiting the free exercise of religion that refers to freedom of conscience does also refer to practice right well if you're a polygamist right that's probably religion does your religion give the right to engage in polygamy Congress making law abridging the freedom of speech what does it mean to abridge speech what does it mean to have freedom of speech you say whatever you want can you burn a draft car can make a violent video game all tough questions the treatment of the press the right of people to assemble as to make a scene either write the petition the government that is complained right I guess now you tweet to the government this actually does come into play the Second Amendment which again I will not have time to cover has two components the first parts called the preparatory clause which says a well-regulated militia being necessary to the security of a free State the second parts will the operative clause the right of the people to keep their arms shall not be infringed the Supreme Court has ruled on this somewhat recently about 15 years ago or actually about a decade ago now and held that this right protects a right not connected to militia service the third amendment is from the least controversial parts of the Constitution it almost never comes up Congress cannot force you to keep a soldier in your home quarter troops unless it's in time of war in which case Congress can so it's actually not even a prohibition on quartering you will study the Fourth Amendment when you take Criminal Procedure you're taking that now or next Mester next yeah it has a couple big things you can't have unreasonable searches and seizures and the government wants to search your stuff they need a warrant with probable cause the Fifth Amendment is a hodgepodge there's a lot you know you always have I plead the fifth right funny last year I got coal to jury duty and you know you write your occupation on the little form and I wrote law professor and then sue knows I was going through the jury selection process and the journey goes prints are black money oh crap I'm not gonna call now right professor Blackman what's in the fifth amendment I'm like the due process clause he's like no self-incrimination like I'm sorry but there's a lot of stuff in the Fifth Amendment and I didn't get picked there was there's no way you want me in the jury cuz I start lecturing it'd be really bad it will be I I realized that once why professors should not be on juries because they can just control the Jersey okay here's the law let me tell you how things work and I'll say oh that Lord somebody's talking about so I'll like get me the hell off this chair this is not a good thing for me to be on people are asking so what's going on there and like I can't tell you I got a you know pretend to be a normal citizen generally lawyers get bounced maggiore Duty not always but they you all be lawyers one day God willing and if you have a jury in the pool you strike him get rid of him because you don't want him because he knows too much he knows enough to say that you're wrong and you don't want that on your jury people I'm serious it's you don't want someone in the jury box saying that your tongue in the wrong stuff right you don't like you know you don't want that you know you always have the judge of show for jury do their excused right away okay ma'am a Fifth Amendment lots of hodgepodge stuff and there's no double jeopardy that means you can't be tried twice for the same crime you can't be a coincidence yourself that's a self-incrimination the government cannot deprive you of life liberty or property that due process of law you'll do a lot in this provision what is Liberty what is property what process is due to you under the law are there some deprivation of Liberty that are so severe that no process no trial can justify them that's a concept will call substantive due process substantive due process finally private property cannot be taken without compensation but they gonna use it for public use let's call the takings Clause which will studying property - taking property - the semester probably want okay I'm teaching property - this one right after this class in fact okay all right 60-member rolling wrong we have right in time this is a bunch of Criminal Procedure rights you get speedy and public trial with a jury you confront any witnesses accuse you of crimes and you have a right to assistance of counsel that's where all of you come in to be good counsel for for for people need trials the seventh amendment in a civil matter not a criminal but in a civil matter you have the right of trial by jury so long as the amount in controversy is twenty dollars no not adjusted for inflation it actually says twenty dollars by the way a dollar is not a piece of paper we think of today it was actually a Spanish coin it was a piece of silver was a Spanish dollar coin that's what a dollar was at the time the founding okay eighth amendment we will not talk about this again but it's important for people to death penalty no cruel and unusual punishment is a death penalty Cronin usual are different methods Chrome unusual lots of litigation over that issue all right the ninth and 10th amendments let's do back to back the ninth amendment addresses a problem right we have this great bill rights you have right of free speech you have the right to bear arms you have the right to a search and seizure right you've all these great rights is that it are those all the rights that you have in other words are our rights limited to what's written down the short answer is no the framers understood rights be very broad right my colleague Randy Barnett who caught the book with me uses a metaphor I like you know you have these islands of government in this big sea of Liberty rights you have this huge body of rights these little dots of government is it possible to enumerate or list all the rights we have it's impossible but someone might think wait a minute but you listen these ten that's all the rights you got the 9th amendment reverses that presumption it says the numeration the listing of the constitution of certain rights does not mean that other rights are disparaged in other words just because we list these 10 or so doesn't mean other rights are invisible they still exist now what are the other rights retained by the people it's really easy to say what a right is because it's listed in towns enumerated but what about unenumerated rights on enumerated rights we will have so much fun with this topic in the second half right what are the rights not written down rights of privacy rights of abortion rights of sodomy rights the same sex marriage will down the list right what are the rights people have they're not enumerated the Tenth Amendment operates in a similar fashion recall we discussed July 3rd of 76 King it all the power next day July 4th the people have the power but then in 1789 the Constitution was ratified the states gave up that power amendment says the powers that are not delegated to the United States that is the powers that are not for the federal government where they belong to the states and to the people right the people retain all the powers not given to the federal government that's important a principle 10 minutes left we're right on time okay the 11th amendment will actually discuss in the very first case tomorrow Chism against Georgia it basically says that a person can't sue another state right so I cannot sue Oklahoma can I sue Texas we'll get there it's a complicated issue the 12th amendment changed the way the presidents elected right instead of having the runoff become the vice president now you have the president the veep you've run on the same ticket which is how we have it today it makes heck of a lot more sense the 13th 14th and 15th amendments 13 14 15 are known as the Reconstruction Amendments why they called the Reconstruction Amendments they were enacted after the Civil War concluded in the period known as reconstruction what is reconstruction it literally means rebuilding the entire nation after the Civil War right the 13th and 14th the moment 13th 14th and 15th amendments radically change our entire government the 13th amendment abolished slavery the 14th amendment granted equality and rights of the freedmen and a lot more than that and the 15th amendment said the right to vote cannot be denied in the basis of race right before the Civil War all these matters reserved to the states the States give rights remember they wanted they can give the right to vote whoever they wanted and they can maintain slavery if they so chose the Reconstruction Amendments got rid of that assumed one at a time 13th amendment neither slavery nor involuntary servitude shall exist this is not just a limitation on government this says private individuals cannot own slaves it's not just slavery it's a slavery or involuntary servitude aren't they the same thing right or slavery something more than mere servitude we'll get there 14th amendment a lot of stuff here first if you are born in the United States you are a citizen of the United States bye-bye Dred Scott Dred Scott so ruled in one sentence right it doesn't matter where you're born you're a citizen and guess what you get to go to federal court right you get diversity you get to fit right you get to go to federal court and you also get privileges and immunities right these rights which were denied to the to the free slaves now you get them because you're a citizen and the states can't deprive you of life liberty or property nor deny you the equal protection of laws this was a limitation on state power to protect at a minimum the freedmen the freed slaves but doesn't just say freed slaves this person's no say men and women's as persons again we have this thing where broad language is used and it takes some time to fill in to it okay section 2 of the Fourteenth Amendment over rules of three hits clause right now when you count representation it's based on the whole number of persons not three-fifths whole so this abolish is the three-fifths compromise okay and Section five we'll talk about as well I previously said that all of Congress has powers an article in Section eight this changes that right Congress now has a new power to enforce the 14th amendment if a state is depriving as citizens of rights Congress can intervene to create legislation and the Fifteenth Amendment guarantees a right to vote without regard to race or color or previous condition of servitude slavery okay all right now now we're coasting till the end okay sixteenth Amendment twenty-four I don't very like very much allows Congress to collect income taxes before the 16th amendment all taxes were assessed based on population how many people were in a state now it's based on how much money you're earning the 17th amendment changed the way senators were elected originally senators would pick based pick by the state legislatures but now the senators were picked by the people people could not vote for senators yeah the 18th amendment is not a popular one prohibition right we needed a constitutional amendment to ban the importation sale transportation of booze I'll give you the preview it was repealed a couple years later with the twenty-first amendment in fact in Washington DC there's a bar called the twenty-first amendments which repealed prohibition the 19th amendment gave the right to vote give women suffrage the 20th amendment basics of the present takes the oath in January not on March so it shrinks the lame-duck period okay almost there the 21st amendment again repealed prohibition good the 22nd amendment imposes term moments you can only be president twice you can't be present three times the 23rd amendment gave electoral votes to the District of Columbia which again is not a state the twenty-fourth amendment privets poll taxes which are various fees that you can charge person to vote the 25th amendment is like the amendment if something happens to the president if you become sick or incapacitated it's very complicated and most people don't actually understand it but the short answer is the vice-president takes over something really bad happens the 26th amendment lowered the right to vote 218 of the voting age 18 you should be 21 or over the state would choose and finally the 27th amendment my favorite one you actually turn in your constitutions I want you to see a footnote here it's on the very page 89 right very end you didn't get them oh my goodness you guys are failing your classmates all right well pass that around please same for those of you have it you get you tamp cookies Oh it's embarrassing okay the 27th amendment provides no law varying the compensation with the services of the senators shall take effect until election that representational interview was that means Congress can't raise its own peg right any increase in salary takes effect after next election meaning if a Congress votes raise her on pay you can throw the bums out but once you the footnotes you footnote 30 Congress submit the text of the 27th amendment as part of the Bill of Rights in 1789 it was not ratified the first 10 amendments which were effective in 1791 it was ratified in 1992 so it took 200 years to ratify this amendment you weren't born 92 who are you most of you are a couple you were yeah I'm gonna get to I always say you will not be alive for another constitutional amendment and then you actually were maybe a couple others but most people are you weren't but the last amendment that was ratify was first introduced in 1992 I'm done all right thank you so much I will see you on Thursday

Channel: Josh Blackman

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Id: P0Kzx9hZALw

Length: 119min 40sec (7180 seconds)

Published: Tue Aug 20 2019