The document provides an overview of the historical development of American law, including the establishment of the U.S. Constitution and Bill of Rights. It discusses how the Constitution created a system of checks and balances between the three branches of government to limit any one branch from having too much power. It also summarizes key Supreme Court cases that helped define the powers of each branch.

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© 2015 Cengage Learning
Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver
Chapter 1
A Historical
Overview

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 Law is a body of rules promulgated
(established) to support the norms of that
society, enforced through legal means, that is,
punishment.
 A constitution is a system of basic laws and
principles that establish the nature, functions
and limits of a government or other institution.
 The American Constitution is youthful, which
makes it all the more impressive for its enduring
nature and flexibility.

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 Refers to a society in which numerous distinct ethnic,
religious or cultural groups coexist within one nation,
each contributing to society as a whole
 Living in a Pluralistic society creates a challenge to
exercise tolerance and respect for the opinions,
customs, traditions and lifestyles of others.
 Representatives from every culture that has come to
America share in the historical development of our
country and legal system.
 It is the common thread that binds all who have come
here that makes American law so unique in serving the
pluralistic society that created it.

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o Town meetings were
restricted to once a year.
o The king was required to
appoint people to the
governmental court rather
than have them elected.
o Quartering Act expanded,
requiring soldiers to be
housed in private homes
and buildings.
o British officials accused of
crimes in the colonies
could only be tried in
England.
 Colonists resisted increased taxes because they felt it
was taxation without representation.
 1773 Boston Tea Party- colonists boarded 3 British
ships and dumped cargos of tea overboard.
 Parliament passed several laws in retaliation for this
open act of defiance.

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 In 1774, 55 delegates from 12 colonies met in
Philadelphia. The 1st Continental Congress resulted in
the first written agreement among the colonies to stand
together in resistance against Britain.
 Congress agreed on three important actions:
o Adopted a set of resolutions that defined the rights,
liberties and immunities of the colonists.
o Addressed King George III and citizens of Britain calling
for a restoration of American rights.
o Established a boycott to prevent the buying of British
goods until Congress’ demands were met.

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 Established the Continental Army and named George
Washington its commander.
 Congress raised money and bought supplies for the
new army. They sought out support from other countries
by opening diplomatic relations.
 The colonists were prepared for an all out war with
Britain.
 Many great battles showed that America’s people were
committed to fight for their independence: Ticonderoga,
Bunker Hill, Trenton and Saratoga.

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 In May, Congress instructed each of the states
to form its own government and assuming
powers of independent states.
 July 4, 1776-the Congress unanimously voted
in favor of American Independence.
 There were six important sections.

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1. First paragraph explains
why the Declaration was
issued.
2. Declares all men to be
equal and to have equal
claims to life, liberty and
the pursuit of happiness.
Stated the government’s
right to rule is based on the
consent of the governed.
3. Charges made against British
king and described how they
denied the American colonists
their rights.
4. Describes the colonists
attempts to obtain justice and
the British lack of response.
5. Proclaimed independence.
6. Lists the actions the new
United States of America
could take as a country.

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 Formally pledged the states to a “firm league of
friendship,” and “a perpetual union” created for
“their common defense, the security of their
liberties” and their “mutual and general welfare”.
 Established a Congress to conduct necessary
tasks of a central government, including waging
war and making peace, controlling trade with
the Indians, organizing a mail service and
borrowing money.

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 Considered the most important instrument of
English government.
o Established the supremacy of the law over the ruler.
 King John was forced to sign the original
document on June 12, 1215.
o Showed that no one was above the law.

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 The Magna Carta provided a stable framework
from which to start.
o It was a step away from total rule by a single
individual.
o Long history of success.
o Provided some security and that not everything
needed to start from scratch.

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 Articles of Confederation were inadequate for
effective government due to the lack of balance
of power between the states and the central
government.
 1787-Congress called for a convention to revise
the Articles.
 George Washington was elected to preside
over the meetings.

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 Was to establish a central government
authorized to deal directly with individuals rather
than states and
 To incorporate a system of checks and
balances that would preserve the fundamental
concepts contained in the Magna Carta, that is,
to limit the power of government.
 To prevent one individual from having complete
power.

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 Structure and powers of legislative, executive
and judicial branches.
 The checks and balance would allow the
system to work, while achieving the primary
goal of limiting power to any individual or
section of the government.
 The first three articles established the
legislative, executive and judicial branches of
the government and the country’s system of
checks and balances.

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 Legislature may pass laws, but cannot enforce
or interpret them.
 Contains the Great Compromise.
 Congress has 2 chambers
o Senate
• Each state has 2
senators.
• Each senator has 1
vote.
• Sole power to try all
impeachments.
o House of
Representatives
• Membership based on
state populations.
• Power of impeachment.
• 1st to consider bills for
raising taxes.

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 Issues: Does Congress have the power to incorporate
a bank and does the State of Maryland have the power
to tax it?
 Holding: Congress has power under the Constitution to
incorporate a bank pursuant to the Necessary and
Proper clause (Article I, section 8).
 The State of Maryland does not have the power to tax
an institution created by Congress pursuant to its
powers under the Constitution.

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 Section 8 of Article 1 grants specific powers to
Congress:
o Coining money.
o Establishing post offices.
o Lay and collect taxes.
o Borrow money on the credit of the United States.
o Regulate international and interstate commerce.
o Naturalize foreign-born citizens.
o Raise and govern the military forces.
o Declare war.
 Elastic clause
o Reserve of power to do what was “necessary and proper”
to pass laws for the nation. Enact laws that directly
affected the people.

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 Created to carry out the law.
 Provide a Commander in Chief of the military
forces.
 Carry out nation’s foreign policy.
o Entering into treaties with other nations
 To appoint ambassadors, judges and officials
needed for the government to function.
 Chosen by electors.

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 Issue: Is a serving President entitled to absolute
immunity from civil litigation?
 Holding: In a unanimous opinion, the Court held that
the Constitution does not grant a sitting President
immunity from civil litigation except under highly unusual
circumstances.
o While the independence of the government's
branches must be protected under the doctrine of
separation of powers, the Constitution does not
prohibit these branches from exercising any control
over one another.

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 The president’s most significant actions must be
approved by the Senate.
 Treaties require 2/3 vote.
 Judges and appointed executive officials need a
majority vote to be confirmed.
 Must report periodically to Congress on the state of the
Union.
 May recommend laws Congress should enact.
 MOST IMPROTANT DUTY-”shall take care that the laws
be faithfully executed”.

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 Vesting Judicial power in the U.S. Supreme
Court.
 Federal court judges are appointed by the
President and hold office for life.
 Congress is authorized to regulate the court’s
dockets by deciding what kinds of cases the
Supreme court can hear on appeal.
 Congress regulates the courts’ jurisdiction.
 Courts interpret the laws.

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 Issue: Can peacetime court-martials try civilian
persons?
 Holding: "Trial by court-martial is constitutionally
permissible only for persons who can, on a fair
appraisal, be regarded as falling within the authority
given to Congress under Article I to regulate the 'land
and naval Forces'. . . ."
o Therefore the Court held that Mrs. Dial (a civilian wife) is
protected by the specific provisions of Article III and the Fifth
and Sixth Amendments, and that her prosecution and conviction
by court-martial are not constitutionally permissible.

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 The President has veto power.
o Congress can override with 2/3 majority vote.
 President nominates Supreme Court justices.
o Legislative branch confirms or denies the
nomination.
 President is the Commander in Chief.
o Legislative branch declares war and pays for it.

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 Supremacy clause- federal law will reign when
there is conflicting state law.
 The Article permitted the Supreme Court to
become the ultimate decision maker in whether
laws and actions of the government circumvent
the Constitution and to invalidate them if they
do so.
 Requires the allegiance of every federal and
state official to the Constitution.

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 Ben Franklin moved that the Constitution be
approved unanimously and signed by those
states present.
 September 17, 1787, the U.S. Constitution was
signed in Philadelphia.
 42 of the 55 delegates were present to sign the
Constitution.
 3 members refused to sign.
o George Mason-because of the lack of a bill of rights.

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 Federalists- favored a strong central
government.
 Anti-Federalists- favored a weaker central
government.
o Didn’t not want to ratify without a bill of rights
guaranteeing individual liberties.
 Amendments- changes to the Constitution or
bylaws.
o December 15, 1791- states had ratified 10 of 12
proposed amendments to ensure that the national
government would not interfere with individual

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 Aimed at balancing the rights of the states and
of individual citizens against the powers of the
central government.
 The Constitution was general, and the
Amendments were specific.
 The Declaration of Independence, the U.S.
Constitution and the Bill of Rights are housed in
the Rotunda for the Charters of Freedom at the
National Archives in Washington, D.C.

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 1st Amendment - Freedom of speech, Freedom of
religion, Freedom of press, Right to assemble, Right to
petition.
 2nd Amendment – “to keep and bear arms.”
 3rd Amendment – prohibition from housing soldiers.
 4th Amendment – privacy and security.
 5th Amendment – restrictions as to how government can
treat people suspected of crimes.
 6th Amendment - Informed of nature and cause of
accusation, Confront adverse witnesses, Obtaining
favorable witnesses, Assistance of Counsel for defense.

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 7th Amendment - Right to trial by jury in common
law cases where the value exceeds $20.
 8th Amendment – cruel and unusual punishment.
Excessive bail and fines.
 9th Amendment – answered objections to those who
thought that naming some rights but not all might
result in government claiming more power than
intended.
 10th Amendment - Powers not delegated to the
United States by the Constitution are reserved to
the States respectively or to the people.