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Comparative Law

Comparative Law. Class 2: U.S. Constitution Origins and Structure. 6 Constitutions Compared. We will compare: HISTORY STRUCTURE AMENDMENT. Constitutional Convention, Philadelphia, Summer 1787. Constitutional Convention: Summer 1787. The oldest delegate was this man (aged 81).

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Comparative Law

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  1. Comparative Law Class 2: U.S. Constitution Origins and Structure

  2. 6 Constitutions Compared • We will compare: • HISTORY • STRUCTURE • AMENDMENT

  3. Constitutional Convention, Philadelphia, Summer 1787

  4. Constitutional Convention: Summer 1787 • The oldest delegate was this man (aged 81).

  5. 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

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

  7. 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%

  8. 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%

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

  10. Basis of Constitution • Popular or State sovereignty?

  11. 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."

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

  13. 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)

  14. LEGISLATIVE BRANCH • What limits are there on federal legislative power?

  15. EXECUTIVE BRANCH? • Powerful unitary president • The imperial presidency? • O’Connor: 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.”

  16. JUDICIAL BRANCH • What limits on judicial power?

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

  18. JUDICIAL BRANCH • What safeguards are there for judicial independence?

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

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