Session 1 Constitutional Law US

Salient Features
• Initially, the country was made up of a loose
group of British colonies that had developed
along the eastern shore of present day USA
• The original thirteen colonies were New
Hampshire, Massachusetts, Rhode Island,
Connecticut, New York, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina,
South Carolina, and Georgia
• British rule within the colonies increased
following the end of a six year war between
Britain and the French in the northern territories
• Relations between the colonies and Britain soon
soured over lack of representation within the
British Parliament and the increased taxation to
pay for the war
• The American Revolutionary War began in 1775.
On July 4, 1776 the colonists adopted
a Declaration of Independence from Britain
• The short document had many innovations, such
as the declaration that all men are created equal
and that the people have the right to choose
their governments
• Needing a framework for a federal government to
govern the thirteen independent states, the Second
Continental Congress appointed a thirteen member
committee to prepare a draft constitution
• After a year of debates, the Articles of
Confederation were completed on November 15,
1777, with the last state signing on November 20, 1778
• However, because they vested almost all power in the
states and gave very little authority to the federal
government, the Articles soon led to confusion and
infighting among the states, especially once the
Revolutionary War ended in 1783
• Recognizing the need for a new system, a
constitutional convention was organized to
revise the Articles in May 1787
• It was attended by delegates from the
different states, drawn from all sectors of
society
• Despite its limited mandate to only revise the
Articles of the Confederation, delegates
decided to adopt a completely new
instrument of government
• Following further debates, the instrument was
finally submitted to the states for ratification
as a new Constitution in September 1787. One
year later, in September 1788, the
new constitution came into effect
 Brief Introduction
• It is the oldest written constitution in the world
• The Declaration of Independence of 4th July 1776
was the first formal State Paper – it is here that
the term United States was for the first time
officially used
• The constitution was drafted by the Philadelphia
Convention on Sept. 17, 1787
• It was finally put in to effect in 4th March, 1789
 A written Constitution:
• It is the oldest, briefest written constitution in the
world
• It consist of a Preamble & 7 Articles running into 4000
words
• For example, there is not even a word about banks,
education, insurance, labour, agriculture, civil service,
political parties, budget making, the powers of the
chairman of the House of Representatives, etc
• For these omissions the framer of the constitution
cannot be blamed as they could not forecast the social
and economic problems of the 20th century for which
they clearly provided for constitutional amendments
• It has also unwritten elements like conventions
eg ……….the first president of US George Washington
established a convention that President should not
continue for more than two terms. This convention was
adhered to till 1940 when Roosevelt offered himself for
a third time and even fourth in 1944 but latter on the
constitution was amended as per Washington’s
practice
• Cabinet officials and other major executive officers
resign and are replaced when a new President takes
office, unless explicitly asked to stay on by the new
President
• Statutes of the Congress, judicial decisions and
executive decrees also enlarged the constitution
 Popular Sovereignty & Limited
Government
• It recognizes popular sovereignty wherein supreme
power belongs to people……It means the right of the
people to control the government
• Preamble of the constitution affirms this – the
government derives their just powers from the consent
of the governed individuals
(Preamble)
• We the People of the United States, in Order to form a
more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence,
promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of
America
• People are the source of all powers
• When a government fails in its duty people can remove
that government
• A constitutional government means a limited government
– there are specific limits on the powers of the government
• Limited governments are necessary for safeguarding the
rights of the citizens from autocratic rule of the
government
• The constitution granted limited powers to the national
government and left the remaining powers to the state
• Even the state governments do not have unlimited powers,
their powers are only remaining
 Separation of powers & Checks and
Balances
• It was the first constitution to implement this
theory
• This theory aims at the prevention of
concentration of powers so as to ensure the
liberty of the individual
• All powers of the government should not be
concentrated in a person or assembly of persons
• In the US, the three functions of the government
are entrusted to the 3 distinct branches of the
government – Congress, President & Supreme
Court
• The 3 branches of the government are
independent of one another & not allowed to
interfere with others affairs
• For example, President is elected independently
of the Congress & enjoys an uninterrupted term
of 4 years, the President cannot dissolve the
Congress nor participates in the debates & the
judges cannot be removed by the president
• The idea of checks and balances are provided so
as to promote unity and equilibrium in its
functions
• It enables each branch to act as a break so as to avoid
accidents or frictions
• No branch of the government can abuse powers and
act despotically beyond certain limits – so power must
be checked by power
• For example, the Congress may impeach the president
and judges, or without the Senate’s approval the
appointments made by the president cannot put into
effect, president can veto the bills passed by the
Congress, likewise, the Supreme Court can declare a
law passed by the Congress invalid, organization of
judiciary is determined by the Congress and the judges
of the SC are appointed by the President with the
approval of the Senate
 Presidential form of Government
• It provides for a presidential form of government
• There is only one executive – the president
• The president is neither elected by the Congress nor
responsible to it……. President’s secretariat or Cabinet
do not belongs to the congress
• There is no close relationship between the congress
and the president and he does not attend the sessions,
neither initiates the legislation, nor answers questions
• President cannot dissolve the congress
• President is the head of the nation & all executive
powers are vested in his name…..he is indirectly
elected by people
• he enjoys a fixed tenure of 4 years
 Federal system of government
• It is the first constitution which adopted a federal
system of government
• It is a system of government that divides power
between a central government having authority over
the entire country and a series of local governments
collectively covering the entire territory
• In a true federal system the two levels of government
must be more or less independent of the other
• The constitution of USA is a indestructible union with
indestructible states
• National government is given charge of matters of
national importance & the subjects of local importance
are taken care of by the state governments
• Both the governments derive their powers
straight from the constitution…….Constitution
enumerates the powers of the centre and
leaves the residue of powers to be exercised
by the States……
• US is a federation of 50 states
• It is the most perfect of the federal
constitutions. (C.F.Strong)
 Bill of Rights
• The original constitution did not contain a bill of rights But
the first 10 amendments passed within the first 2 years of
its inauguration, provided for a Bill of Rights
• It contained the following rights, -
• 1. Freedom of religion,
• 2. Freedom of speech & expression,
• 3. Freedom of assembly and petition,
• 4. Right to keep & bear arms for security,
• 5. Freedom of profession,
• 6. Right to private property,
• 7. Right to legal equality,
• 8. Right of voting irrespective of their color, race or gender,
• 9. No person can be compelled to be a witness
against himself,
• 10. No person can be deprived of his life, liberty
or property without the due process of law, 11.
Slavery should be abolished,
• 12. No property can be taken for public use
without just compensation,
• 13. The right to speedy & public trial by an
impartial judiciary,
• 14. No state shall make or enforce laws which
abridges the privileges and immunities of the
citizens of USA
• These rights & liberties are not absolute, it
can be modified only with an amendment to
the constitution, and these rights are
enforceable in the courts of law
• These rights cannot be suspended except by a
constitutional amendment
 Dual Citizenship
• Citizens are those who possess full membership
of the state & those who enjoy political rights in a
state are its citizens
• The concept of citizenship was not defined in the
original constitution
• The 14th Amendment Act, clearly provided for
double citizenship
• Citizenship of the USA and the citizenship of
respective state in which one resides are the
double citizenship an individual enjoys in USA
 Supremacy of the Constitution
• It is the supreme law of the country
• Judges are the guardians of the constitution
• Through the judicial review the supreme court
safeguards the constitution and its supremacy
 Judicial Review
• SC is the guardian of the constitution & final arbiter of
the constitutional disputes – it uphold the supremacy
of the constitution
• It is one of the original contribution to the modern
governmental and constitutional practices
• It has the power to declare any Act of the legislature or
executive orders as invalid, if it finds contrary to the
spirit of the constitution
• It has the power to interpret the constitution so as to
adapt the constitution to the changing requirements of
the society
• Critics consider the judicial review as a judicial veto
which tends to delay the passing of progressive policies
of the government
 Rigid Constitutional Amendments
• It is the most rigid constitution in the world
• It is the fundamental law of the land & superior
to the ordinary laws passed by the congress
• Since it is a federation, the amending procedure
is difficult
• Art. V of the constitution deals with the
procedure of amending the constitution
• The process of amending the constitution
requires the participation of both the federal and
state governments
 A Secular State
• It establishes a secular state based on equality
of all religion
• It grants religious freedom to its citizens
• State makes no discrimination among its
citizens on the grounds of religion
• There is no state religion of USA
 Bicameral Legislature
• The constitution provides for a bicameral
legislature
• The US legislature is constituted of two houses
• The lower house is known as the House of
Representative & the upper house is the Senate
• The lower house represents the American people
while the Senate is representing the federating
units namely the states
• The Senate is the strongest second chamber in
the world
 A Democratic Government
• It is a representative democracy
• Congress is a representative body of the
American people
• President is also elected by the people
• It establishes a republican state where the
head of the state is elected by the people
 Session 2

Development of the US Constitution

 Amendments
• Though the constitutional amendment process has
been very slow , yet the amendments taken place up
till now have led to the growth of the US constitution
• The first 10 amendments incorporated the Bill of Rights
for the American People
• Eleventh and twelfth, removed some ambiguities in the
constitution
• Thirteenth abolished slavery in America
• Fourteenth regulated citizenship
• Fifteenth amendment established equal rights for all
beyond skin color
• Sixteenth amendment authorized the Federal
Government to tax incomes without apportionment
among several states
• Seventeenth amendment determined the mode of
electing the Senate
• Eighteenth amendment prohibited the manufacture,
sale and transportation of intoxicating liquors
• Nineteenth amendment granted suffrage to women
• Twentieth amendment changed the dates for the
beginning of the session of the Congress
• Twenty-first amendment repealed the eighteenth one
but kept the transportation of liquor as prohibited
intact
• Twenty second amendment regulated re-eligibility of
president
• Twenty third amendment gave the residents of
Columbia right to vote for President and Vice President
• Twenty Fourth amendment prohibited the imposition
of Poll tax
• Twenty fifth amendment prescribed for the office of
the vice president and his status as acting president
• Twenty sixth amendment gave right of citizens of the
United States, who are 18 years of age or older, to vote
• Twenty seventh amendment secured the right of public
representatives in Congress to get compensation for
their work
 Laws
• Along with constitutional amendments laws passed by
the Congress have also added up to the original
framework of the US Constitution
• Constitution for example made provision for
establishment of SC, but its organization, term and
salaries of judges were left to be determined by the
Congress
• Constitution prescribed for the composition of the two
houses but the method of election were left to be
determined by the States Legislatures……..Electoral Act
of 1887 regulates the election disputes
 Judicial Interpretation
• SC has always been an important tool in enlarging
the scope and filing in the gaps of the US
constitution
• Marbury vs Madison is a leading example
• SC while interpreting the provisions and words of
the constitution has empowered the Centre at
the cost of the states as per the necessity of the
time
• Powers of the national gov to regulate inter state
commerce, railways , telegraph, and radio, all
owe their origin to SC
 Executive
• President Washington created a cabinet and
began consulting it…..since than cabinet has
become a regular organ of the US
• Some Presidents had successfully maintained that
Congress has no authority to restrict their power
to remove executive officials or to send armed
forces to any part of the world to save American
lives
• Though such orders are subject to judicial review
yet they often go unchallenged and become a
regular part of the Constitution
 Conventions
• The fathers of the Constitution provided for an indirect
election for the President but by convention it has
become more or less direct…..electors are pledged
before hand to vote for candidates nominated by their
respective parties ……they basically act as Human
robots
• Speaker of the House of Rep should be selected by the
House itself…..actually he is the nominee of the
majority party
• President informing the majority party leader in the
Senate about the treaty negotiations is also a
convention
 Session 3

USA- Federation
 Federalism
• Federalism divides the powers of the United
States government between the National
Government and the States
• Under federalism, each level of government
has sovereignty in some areas and shares
powers in other areas
• The government structure in the US is not centralized…….The
country is divided into independent federal, state and local
governments.
• There are fifty states in the US all of have different
constitutions, separate laws and state flags…..Several laws,
including those pertaining to death penalty, same gender
marriages or age of eligibility to use alcoholic drinks, differ
from one state to the other…… For example, death penalty is
legal in New York but it is illegal in Florida. In the same way,
punishment for one offense could also be different from one
state to the next state.
 Constitutional Division of powers…..
Constitutional Division of powers…..
• A list of what the Congress can do
• A list of what the Congress cannot do
• A list of what the States cannot do
• A list of what both federal and state gov can
do
 Federal Guarantees
• In order to maintain the principle of equality
and place a check on the powers of the federal
gov, constitution has provided for some
guarantees
• Federal gov cannot carve out new territorial
boundaries from the existing state boundaries
without that state’s consent
• Federal gov is to guarantee a Republican form
of gov to every State
• Federal gov has to protect each state from
invasion and on application of legislature or
executive against domestic violence
• QUESTION????/ What are the obligations of
the States towards the Federal gov
• Why do we find the Federal gov more
powerful than the states especially when
federal gov has not been given strong
constitutional position?????
 Delegated Powers
• The Constitution provides the National
Government with delegated powers

• Most of these powers are exclusive, meaning

they are only given to the National
Government
 Delegated Powers (Cont’d…)

• Three types of delegated powers

– Expressed Powers
– Implied Powers
– Inherent Powers
 Expressed Powers

• Expressed powers are delegated to the National

Government spelled out, expressly, in the
Constitution……… Article I, Section 8
– Lay and collect taxes
– Coin money
– Regulate foreign and interstate commerce
– Raise/maintain armed forces
– Declare war
– Grant patents/copyrights
– Fix standards for weight s and measures
 Implied Powers
• Implied Powers are not expressly stated in the
Constitution, but are reasonably suggested or
implied…….. Article I, Section 8
– Regulation of labor
– Building of highways and dams
– Determination of federal crimes
– Prohibition racial discrimination
 Inherent Powers
• Inherent powers are those that come along with
being a sovereign state in a world community
– Regulate Immigration
– Acquire territory
– Grant diplomatic recognition
– Protect nation
 Powers Denied to the National
Government
• Expressly denies powers via the Bill of Rights
• Denies powers to regulate education,
marriage, divorce or local government
• Denies powers to tax State Government
 The States: Reserved Powers
• States have reserved powers which are not
granted to the National Government nor
denied to the States
– Regulate marriage/divorce
– Decide drinking age
– Regulate trade and business
within the state
– Establish local governments
– Establish public schools
– Conduct elections
 Powers Denied to the States
• States cannot:
– Enter into any treaty, alliance, or confederation
– Print or coin money
– Deprive any person of life, liberty, or property
without due process of law
– Tax the federal government
“The Federal Government did not create
the States; the States created the
Federal Government” –Ronald Reagan
 Concurrent Powers
• Concurrent powers are those that the National
Government and State governments share
– Levy and collect taxes
– Define crimes and set
punishments
– Take private property for
public use
– Establish courts
– Borrow money
Session 1 Constitutional Law US

Salient Features
 Session 4

Separation of Powers and Checks and

Balances
• In 1748 the French jurist, Montesquieu, put
forward his theory that ‘there can be no
liberty' and also said that “everything would
come to an end if the legislative, executive
and judicial powers of government were to be
exercised by the same person or authority”
(L'Esprit des Louis 1748)
 What is Separation of Powers???
• A clear and specified division of different
powers among three branches of government
to prevent the majority from achieving
absolute rule or to prevent accumulation of
authority in either of these branches
• Constitutionally if one branch is empowered
to undertake any decision, its power is subject
to a check or a limitation exercised by some
other body or branch thereon
• The US Legislative Branch is made up of
Congress: the Senate and House of
Representatives which is responsible for
legislation
• The Executive Branch includes the President,
Vice President, and Executive Departments
• The Judicial Branch is composed of the federal
courts and the Supreme Court
 Specific powers of each Branch
LEGISLATURE CAN…….pass all federal laws,
establish all lower federal courts,
override presidential veto,
approves presidential appointments,
Approves treaties
impeach the president
EXECUTIVE CHECK
can veto any bill,
call Congress into session,
JUDICIAL CHECK
Can declare laws unconstitutional
EXECUTIVE CAN
veto laws ,
Appoint judges,
make treaties,
pardon power
ensure all laws are carried out
Commander and Chief of Military
LEGISLATIVE CHECK
can override vetoes,
refuse to confirm appointments,
reject treaties,
declare war,
impeach the president
JUDICIAL CHECK
can declare executive acts unconstitutional
JUDICIAL BRANCH CAN
try federal cases,
interpret laws,
declare executive actions and laws
unconstitutional

LEGISLATIVE CHECK
can impeach judges,
approves presidential appointments,
can amend constitution to overturn judicial
decisions

EXECUTIVE CHECK
appoint judges