Comparative Law

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Comparative Law

• Class 2
• U.S. Constitution
• Origins and Structure

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6 Constitutions Compared

• We will compare
• HISTORY
• STRUCTURE
• AMENDMENT

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Constitutional Convention, Philadelphia, Summer
1787
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Constitutional Convention Summer 1787

• The oldest delegate was this man (aged 81).

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Benjamin Franklin Speech 9/1787

• I confess that there are several parts of this
  constitution which I do not at present approve,
  but I am not sure I shall never approve them.
• I agree to this Constitution with all its faults,
  if they are such because I think a general
  Government necessary for us . . .
• It therefore astonishes me, Sir, to find this
  system approaching so near to perfection as it
  does and I think it will astonish our enemies

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Constitution as compromise

• In what sense is the U.S. Constitution a
  compromise?

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Ratification

• 1. DE Dec. 7 1797 100
• 2. PA Dec. 12 1797 67
• 3. NJ Dec. 18 1797 100
• 4. GA Jan. 2, 1788 100
• 5. CT Jan. 9, 1788 76
• 6. MA Feb. 6, 1788 53
• 7. MD Apr. 28 1788 85
• 8. SC May 23, 1788 55
• 9. NH June 21, 1788 55

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Ratification

• 10. VA June 25, 2788 53
• 11. NY July 26, 2788 53
• 12 NC Nov. 21, 789 72
• 13. RI May 29, 1790 52

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Revolutionary

• In what sense can the U.S. Constitution be
  described as revolutionary?

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Basis of Constitution

• Popular or State sovereignty?

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Kentucky Resolutions

• Resolved, that the several States composing the
  United States of America, are not united on the
  principle of unlimited submission to their
  general government but that by compact under the
  style and title of a Constitution for the United
  States and of amendments thereto, they
  constituted a general government for special
  purposes, delegated to that government certain
  definite powers, reserving each State to itself,
  the residuary mass of right to their own
  self-government and that whensoever the general
  government assumes undelegated powers, its acts
  are unauthoritative, void, and of no force That
  to this compact each State acceded as a State,
  and is an integral party, its co-States forming,
  as to itself, the other party....each party has
  an equal right to judge for itself, as well of
  infractions as of the mode and measure of
  redress."

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Tenth Amendment

• "the powers not delegated to the United States by
  the Constitution...are reserved to the states."

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Rehnquist

• New doctrine based on the "policy" of the Tenth
  Amendment, which he said authorized the courts to
  prohibit the federal government from regulating
  the states' "traditional functions" if doing so
  "impaired their sovereignty" and "their ability
  to function effectively in a federal system."
  National League of Cities v. Usery (1976)

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LEGISLATIVE BRANCH

• What limits are there on federal legislative
  power?

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EXECUTIVE BRANCH?

• Powerful unitary president
• The imperial presidency?
• OConnor the Court has made clear that a state
  of war is not a blank check for the president
  when it comes to the rights of the nation's
  citizens.

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JUDICIAL BRANCH

• What limits on judicial power?

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Justiciability

• Art. III 2 judicial power shall extend to
  certain enumerated categories of cases and
  controversies
• Standing
• Ripeness
• Mootness
• Political Question doctrine

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JUDICIAL BRANCH

• What safeguards are there for judicial
  independence?

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AMENDMENT

• How difficult is it to amend the Constitution?
• How many times has it been amended?