The document provides an overview of the historical development of American law and the US Constitution. It discusses the establishment of English common law traditions that influenced the American legal system. The American colonies resisted increasing control and taxation by Britain, leading to the Revolutionary War and the establishment of an independent nation. The Articles of Confederation proved inadequate, leading to the drafting of the US Constitution in 1787 to create a stronger central government with checks and balances between the three branches of power. Key cases by the Supreme Court helped define the scope and limitations of powers between the federal and state governments.

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© 2015 Cengage Learning
Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver
Chapter 1
An 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 liberties.

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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.