The Constitution of the Founding Fathers
The Constitution of the Founding Fathers

Table of Contents
Introduction

Part 1
Part 2
Part 3
Part 4

Appendix 1
Appendix 2
Appendix 3

Part II. Constitution

  1. PREAMBLE—INTRODUCTORY STATEMENT OF PURPOSE
    1. We the people
      1. Source of proper government authority (Declaration of Independence)
      2. States did not set up federal government—people established Constitution giving both different spheres of authority
    2. More perfect union—correct deficiencies of Articles of Confederation
    3. Establish justice
      1. Rights of all protected equally—no respecter of persons (Declaration of Independence)
      2. Not a just government that violates people’s property rights by taking from some to give to others (James Madison, Elders p. 86)
    4. Domestic tranquility
      1. Domestic refers to within country
      2. Tranquility flows from justice—no need for turbulence and disorder when government function is to protect equally the rights of all
      3. But-if government becomes provider instead of protector, leads to contention as each group agitates for more of what belongs to others
    5. Common defense
      1. Revolutionary War showed need for central authority
      2. Not all states had adequately supported war effort
    6. General welfare
      1. Statement of purpose—not grant of power
      2. Similar expression in taxing power in Article I, Section 8, Clause 1 [p. 14]
      3. How promote general welfare
        1. Protect individual rights to life, liberty property (freedom)
        2. Adam Smith economic freedom would provide prosperity (Elders p. 117)
        3. Wise and frugal government that does not try to regulate people’s lives (Thomas Jefferson’s “First Inaugural Address”, Elders p. 81)
    7. Liberty
      1. The Lord’s purpose in establishing the Constitution-freedom of choice and accountability for own actions (D&C 101:77-80)
      2. Protection of freedom against human nature tendency to seek power over others the great underlying purpose of the Constitution
      3. Much of Constitution consists of carefully worked out methods of using human nature itself to preserve freedom by opposing the human nature tendencies of others (James Madison, Federalist No. 51; Elders p. 11)
      4. Not outmoded—keyed to human nature rather than agrarian economy
    8. Ordain—enact with special solemnity
    9. Establish—set up with stability and permanence

      Article I, Legislative Branch

  2. LEGISLATIVE POWERS IN GENERAL
    1. Approximately half of Constitution (Article I)
    2. Necessity for separation of legislative, executive and judicial powers (James Madison in Federalist No. 47; Elders p. 41)
    3. Executive orders
      1. Proper if only for operation of executive branch [p. 15]
      2. Unconstitutional usurpation of legislative power if use executive orders to make laws for country
    4. Judicial review (See Elders, Chapter 8)
      1. Proper for courts to judge whether legislature has exceeded constitutional authority
      2. Unconstitutional usurpation to make new laws or change Constitution under guise of so judging
  3. ARTICLE I, SECTION 1—CONGRESS TO HAVE LEGISLATIVE POWER (Federalist No. 39)
    1. Herein granted
      1. Government of limited, delegated power (James Madison, Federalist No. 45; Elders p. 13-14)
      2. Tenth Amendment
    2. Bicameral (two houses)
      1. Prevent undue control to large or small states
        1. House of Representatives by population
        2. Equal vote in Senate
      2. Checks and balances—state representation in Senate protects against federal encroachment (Federalist No. 62; Elders p. 14)
      3. Double approval reduces likelihood of hasty action
  4. ARTICLE I, SECTION 2, CLAUSE 1—COMPOSITION OF HOUSE OF REPRESENTATIVES (Federalist No. 52 to 58)
    1. Chosen by people every second year
      1. The only government officials chosen directly by the people to limit the democratic element of the system to avoid excess of democracy (Federalist No. 10, 49, 50, 51; Elders p. 43-48) [p. 16]
      2. Felt term should be short to protect against human nature tendency to abuse power when don’t have to account frequently—and that annual elections too frequent
    2. Qualifications of electors
      1. Electors are voters
      2. States determine voting qualifications (But see notes under Article I, Section 4, Clause 1)
    3. Most numerous branch of state legislature-many action that would apply to federal elections would also apply to own—human nature
  5. ARTICLE I, SECTION 2, CLAUSE 2—QUALIFICATIONS OF REPRESENTATIVES
    1. Intended higher qualifications than voters—supposed to be medium through which public views would be refined and enlarged (Federalist No. 10; Elders p. 46)
    2. Citizenship—time to learn constitutional freedom system and stronger attachment to it
    3. Inhabitant—be familiar with State represented—but no rigid residence requirement
  6. ARTICLE I, SECTION 2, CLAUSE 3—REPRESENTATIVES AND DIRECT TAXES
    1. “No taxation without representation”—direct taxation and representation are on same basis
    2. Direct taxes (Federalist No. 21)
      1. Meaning not stated—apparently taxes that can’t be avoided by choosing not to consume—real property tax and poll (head) tax are examples of direct taxes
      2. Must be apportioned among states according to population—can’t apportion equally so that burden would fall more heavily on people in less populous state—where have fewer representatives [p. 17]
  7. ARTICLE I, SECTION 2, CLAUSE 3—THREE-FIFTHS COMPROMISE (Federalist No. 54)
    1. Often criticized but really a strength
    2. Working with states and citizens as then were
      1. Looking to long range future freedom for all
      2. If had been rigid and unwilling to work with existing circumstances would have been no Constitution
      3. A good lesson for us to keep eye on goal but consider most practical ways to reach it—not destroy long range potential for good by being so rigid on theory that not able to function with existing circumstances
  8. ARTICLE I, SECTION 2, CLAUSE 3—CENSUS
    1. Purpose was to count people for number of representatives—not ask personal questions
  9. ARTICLE I, SECTION 2, CLAUSE 3—ONE FOR EVERY THIRTY THOUSAND (Federalist No. 55, 56, 58)
    1. Enough to know local problems—not so many as to be too cumbersome
    2. Not exceed 1/30,000—may be smaller representation
    3. Number of representatives now fixed at 435—amounts to one to over 500,000
  10. ARTICLE I, SECTION 2, CLAUSE 4—VACANCIES IN HOUSE OF REPRESENTATIVES
    1. House is people’s representative assembly—vacancies can only be filled by election not by temporary appointment by state or federal authority
    2. Executive authority is governor—writ of election is proclamation to hold election
  11. ARTICLE I, SECTION 2, CLAUSE 5—HOUSE CHOOSE OWN OFFICERS
    1. Speaker is presiding officer
    2. Part of separation of powers independence from other parts of government [p. 18]
  12. ARTICLE I, SECTION 2, CLAUSE 5—IMPEACHMENT
    1. Impeachment is accusation, not finding of guilt
    2. Trial is held in Senate (See comments under Article I, Section 3, Clause 6)
  13. ARTICLE I, SECTION 3, CLAUSE 1—COMPOSITION OF SENATE (Federalist No. 62, 63, 64, 65)
    1. Intended to exercise stabilizing influence on democratic house
      1. Longer terms—check on excess of democracy
      2. Chosen by state legislatures rather than people
    2. Part of vertical checks and balances-state representation enabled states to prevent federal encroachment—states disarmed by 17th Amendment (Federalist No. 62; Elders p. 14)
    3. Individual voting by Senators
      1. Voted by states under Articles of Confederation
      2. Make each Senator responsible for own vote-easier to know whether to send him back
  14. ARTICLE I, SECTION 3, CLAUSE 2—STAGGERED TERMS
    1. Provide stability—only 1/3 can be changed in one election
    2. Unlike democratic House where can change all at once
  15. ARTICLE I, SECTION 3, CLAUSE 2—VACANCIES IN SENATE
    1. Governor can make temporary appointment until next meeting of legislature unlike Representative who can only be elected
    2. Under 17th Amendment hold election unless state legislature authorizes governor to make temporary appointment
  16. ARTICLE I, SECTION 3, CLAUSE 3—QUALIFICATIONS OF SENATORS
    1. Similar to House but with greater age and citizenship requirements [p. 19]
    2. More stable house needs greater maturity, experience and wisdom
  17. ARTICLE I, SECTION 3, CLAUSE 4—VICE PRESIDENT TO PRESIDE OVER SENATE
    1. Only constitutional duty of Vice President
    2. Some overlap of separation of powers—felt not significant and he should have some responsibility and that president of Senate was appropriately dignified position for person who might be President
    3. Separation of powers not meant to be absolute—still part of interrelated unity (Federalist No. 47, 48)
  18. ARTICLE I, SECTION 3, CLAUSE 5—SENATE CHOOSE OWN OFFICERS
    1. Part of maintain own separation of powers independence
    2. Pro TEMpore—for the time—temporarily—often shortened to pro tem
  19. ARTICLE I, SECTION 3, CLAUSE 6—TRIAL OF IMPEACHMENTS (Federalist No. 65 and 66)
    1. Impeachment (accusation) is in House—trial is in Senate
    2. Why judicial proceeding in Senate rather than Supreme Court
      1. Misconduct trial of public official (removal from office) involves political overtones and pressures—not judicial proceeding in usual sense
      2. Still subject to regular court trial that may come before Supreme Court-tendency to confirm own prior decision in spite of new evidence
      3. Separation of powers is working principle—not rigid absolute theory (Federalist No. 47, 48)
    3. Chief Justice presides when President is tried
      1. Greater dignity and gravity
      2. Greater likelihood that proceedings will be more judicial and less political [p. 20]
    4. Need majority for quorum (Article I, Section 5, Clause 1) and two-thirds of those present to convict
  20. ARTICLE I, SECTION 3, CLAUSE 7—PUNISHMENT FOR IMPEACHMENT
    1. Only removal and disqualification to hold office
    2. But still liable to regular legal processes
  21. ARTICLE I, SECTION 4, CLAUSE 1—FEDERAL ELECTIONS (Federalist No. 59, 60, 61; Elders p. 56-71)
    1. Control of federal election procedures a very sensitive area
      1. Concerned that whoever given control (federal or state) might abuse the power
      2. Gave control to states in first instance
      3. But gave federal government power to protect itself by changing state provisions—except to require state legislature to meet in unusual place to select Senators
    2. Federal authority over election of Senators and Representatives given to Congress—not federal courts—a political not a judicial question (Elders p. 69)
    3. Federal authority over state election procedures intended to protect federal government—not empower it to control election of state officials
      1. Federal power extends only to federal Senators Representatives
      2. Alexander Hamilton comment that federal control of state elections would be “premeditated engine for the destruction of the State governments” (Federalist No. 59; Elders p. 58)
  22. ARTICLE I, SECTION 4, CLAUSE 2—WHEN CONGRESS ASSEMBLE
    1. Too much power in executive if can determine when legislature to meet
    2. Avoided problem by specifying time
    3. Changed to January 3 by Section 2 of Amendment 20 [p. 21]
  23. ARTICLE I, SECTION 5, CLAUSES 1 AND 2—INDEPENDENT CONGRESSIONAL HOUSEKEEPING
    1. Part of separation of powers independence of each house
    2. Control own membership
      1. Determine whether to seat a newly elected member
      2. Compel attendance, punish for disorderly behavior, expel by two- thirds vote—Congressmen are removed from office by this method, not by impeachment
    3. But cannot do business with less than a majority present—few can’t get together and claim are acting as house of legislature
  24. ARTICLE I, SECTION 5, CLAUSE 3—CONGRESSIONAL RECORD
    1. Journal is Congressional Record
    2. Roll call vote—problem of Congressman talking one way and voting another
  25. ARTICLE I, SECTION 5, CLAUSE 4—ADJOURNMENT
    1. Houses work together—one house can’t frustrate legislative process by adjourning or moving to different location
  26. ARTICLE I, SECTION 6, CLAUSE 1—SALARIES OF CONGRESSMEN
    1. Fixed by federal law and paid from federal treasury—states might impair federal government by not paying Congressmen—improper increase remembered at election time
    2. Problem of inappropriate influence by big government bureaucracy—allegiance to source of compensation
      1. Would it be better if salaries fixed and paid by states they represent with protective provision if states don’t assume responsibility—perhaps with triggering mechanism such as if salary is less than half average of other Congressmen
      2. But would this cause problem of some states increasing influence with high salaries and large staff like major lobbying operation [p. 22]
  27. ARTICLE I, SECTION 6, CLAUSE 1—PRIVILEGE FROM ARREST
    1. In England legislators have been prevented from attending session by arrest for alleged crimes
    2. Can still be arrested, but not when would impair attendance at session of legislature
  28. ARTICLE I, SECTION 6, CLAUSE 1—STATEMENTS NOT SLANDER
    1. Performance of duties as legislator requires being able to speak without fear of slander suit
    2. Goes both ways—public can speak negatively about politicians
    3. Purpose is better government, not special privilege
  29. ARTICLE I, SECTION 6, CLAUSE 2—CONFLICT OF INTEREST
    1. Conflict of interest might color judgment as legislator
    2. While serving as a Congressman can’t be appointed to any civil office created or salary for which increased during term in office as member of Congress
    3. Can’t hold any federal office and be a Congressman at same time
    4. Similar to Amendment 27 that salary increase not effective until Representatives face voters
  30. ARTICLE I, SECTION 7, CLAUSE 1—REVENUE BILLS ORIGINATE IN HOUSE
    1. No taxation without representation—people represented in House, not Senate
    2. More revenue probably come from more populous states which had more representatives in House
  31. ARTICLE I, SECTION 7, CLAUSE 2—VETO POWER
    1. Checks and Balances—how keep legislature in check
    2. Judiciary not appropriate because could be in position of later having to pass judgment on laws they helped form [p. 23]
    3. President has three options
      1. Approve and sign
      2. Send back with veto message
      3. Take no action for ten days
        1. Becomes a law as if signed
        2. But not if Congress adjourns within ten day period
    4. Note reciprocal human nature checks and balances
      1. Inappropriate action by Congress can be checked by President’s veto
      2. Inappropriate veto can be overridden by 2/3 vote of both houses of Congress
      3. President can’t block law by inaction
      4. Congress can’t force approval by adjourning
  32. ARTICLE I, SECTION 7, CLAUSE 3—CAN’T EVADE VETO POWER
    1. Veto power still applies if call congressional enactment something other than a bill
  33. ARTICLE I, SECTION 8—ENUMERATED POWERS OF CONGRESS
    1. Under separation of powers federal government does not have general residue of power but only limited enumerated powers (Federalist No 45; Elders p. 13-14; Tenth Amendment)
    2. Bird’s eye view of enumerated powers
      1. First two clauses—taxing and borrowing—money for federal government to operate
      2. Next seven clauses (3 through 9)—federal matters—those involving more than one state or otherwise requiring uniform treatment throughout all states (except military) [p. 24]
      3. Next seven clauses (10 through 16)—protection function—military powers
      4. Final two clauses (17 and 18)—miscellaneous items
    3. Congress has other powers such as the power to impeach and try impeachments, to limit the jurisdiction of the Supreme Court, to admit new states, to propose amendments to the Constitution, the Senate’s power to approve treaties, etc., but those are general powers pertaining to operation of the federal government and are not intended to enlarge the lawmaking power of the federal government found in this section
  34. ARTICLE I, SECTION 8, CLAUSE 1—TAXING POWER (Federalist No. 30, 31, 32, 34, 35, 36)
    1. Imposts are taxes on imports—excises are taxes on goods produced within the country
    2. Article I, Section 9, Clause 5 prohibits Congress from taxing exports
    3. Welfare clause not a grant of power to engage in welfare programs
      1. Not included in original taxing power—added words “to pay the Debts and provide for the common Defense and general Welfare of the United States” to avoid question of authority to pay state war debts which they felt were for the defense and welfare of the country in general
      2. No intention to change from a government of narrow limited powers to a government of broad general powers (Federalist No. 41; Tenth Amendment; Rexford G. Tugwell, Elders p. 90-91; James Madison in First Congress, Elders p.
  35. ARTICLE I, SECTION 8, CLAUSE 2—BORROWING POWER
    1. Borrowing authorized although frugal government intended
  36. ARTICLE I, SECTION 8, CLAUSE 3—REGULATE COMMERCE
    1. Foreign nations—related to treaty power—act as unit as to foreign nations
    2. Central authority appropriate as to commerce among the several states (Federalist No. 41 and 42) [p. 25]
      1. Promote harmony among states by preventing improper commercial restrictions by states against each other
      2. Do so by providing for uniform central authority over flow of commerce from one state to another
      3. Regulate did not mean control business activities, but was more like regulating highway traffic by uniform rules of road that facilitated orderly rapid flow of traffic (Elders p. 114-118)
    3. With Indian tribes—under Articles of Confederation had been confusion as to when federal government had authority over commerce with Indians
  37. ARTICLE I, SECTION 8, CLAUSE 4—NATURALIZATION AND BANKRUPTCIES
    1. Naturalization relates to foreigners—separate as to local matters, but one as to foreign matters—similar to treaties being negotiated by federal government (Federalist No. 42)
    2. Bankruptcies related to commerce—prevent problems resulting from parties in more than one state (Federalist 42)
  38. ARTICLE I, SECTION 8, CLAUSE 5—MONEY AND WEIGHTS AND MEASURES (Federalist No. 42)
    1. Money meant gold and silver coin (specie) (Federalist No .44)
      1. Power is to COIN money—not print it
      2. Power to print paper currency (emit bills) was deleted after debate (Madison’s Notes for August 16, 1787)
        1. Intent was to remove possibility of a paper currency
        2. The principal argument against removal of the power to issue paper money was not that paper money was desirable—rather it was concern about completely removing the power in view of human inability to foresee all future circumstances
        3. Removed power anyhow because felt that power to issue paper money was too dangerous a power for government to have [p. 26]
      3. Compare with Article I, Section 10, Clause 1 where states are prohibited from making anything but gold and silver coin a tender in payment of debt (requiting creditor to accept it)
      4. See notes in this outline under paragraph 14 of Part I.
    2. Regulate value—facilitate commerce by standard known values for coins
    3. Weights and measures—central standardization desirable among states—easier commerce will result in increased unity and prosperity
  39. ARTICLE I, SECTION 8, CLAUSE 6—PUNISH COUNTERFEITING
    1. Protect both securities and coin issued by federal government—does not include state or private securities
    2. Preserve integrity of own borrowing power and own coin
  40. ARTICLE I, SECTION 8, CLAUSE 7—POST OFFICES AND POST ROADS (Federalist No. 42)
    1. Good communications across state lines important for stable, prosperous, united society
    2. Intent was to empower federal government to supply a possible need—no mention of monopoly or excluding private carriers
  41. ARTICLE I, SECTION 8, CLAUSE 8—PATENTS AND COPYRIGHTS
    1. Separate action by individual states would be inadequate (Federalist No. 43)
    2. Related to interstate commerce
  42. ARTICLE I, SECTION 8, CLAUSE 9—ESTABLISH LOWER FEDERAL COURTS
    1. Supreme Court is only required federal court
    2. Determination of what additional courts may be needed and what jurisdiction they should have is a political question to be decided by the legislative branch (Federalist No. 81; Elders p. 69) [p. 27]
  43. ARTICLE I, SECTION 8, CLAUSE 10—PIRACIES AND OFFENCES AGAINST LAW OF NATIONS (Federalist No. 42)
    1. Foreign affairs type area as to which the United States is to act as a unity
    2. Law of nations deals largely with law of war including espionage and sabotage
  44. ARTICLE I, SECTION 8, CLAUSE 11—DECLARE WAR, ETC.
    1. War requires united effort of entire country
    2. Letters of Marque and Reprisal are official appointment of ship as privateer so can attack enemy shipping and not be treated as pirate
  45. ARTICLE I, SECTION 8, CLAUSE 12—RAISE AND SUPPORT ARMIES (Federalist No. 41)
    1. President is Commander in Chief (Article II, Section 2, Clause 1)
    2. Two year limitation is part of checks and balance so Congress can refuse additional funding if he misuses military power
  46. ARTICLE I, SECTION 8, CLAUSE 13—PROVIDE AND MAINTAIN NAVY (Federalist No. 41)
    1. Still general protection under command of President
    2. Protect shores against pirates and protect commerce
    3. No two year limit on appropriations—not regarded as danger to liberty that army on own soil might be
    4. Separation of powers—President is Commander in Chief, but legislature supplies military and naval forces
  47. ARTICLE I, SECTION 8, CLAUSE 14—MILITARY RULES
    1. Part of authority over military forces
    2. Separation of powers—President is Commander in Chief, but legislature makes rules [p. 28]
  48. ARTICLE I, SECTION 8, CLAUSES 15 AND 16—MILITIA (Federalist No. 29)
    1. May be used for both internal disorder and to repel invasions
    2. Militia is not limited to National Guard which is sometimes called organized militia—also includes unorganized militia which is all able bodied men
      1. Utah Constitution, Article XV, Section 1—“The militia shall consist of all able-bodied male inhabitants of the State, between the ages of 18 and 45 years, except such as are exempted by law.”
      2. Militia is similar to posse comitatus (kom i TAY tus) mentioned in Federalist No. 29, which is the entire body of inhabitants liable to be summoned by the sheriff to help preserve public peace
    3. Uniformity of organization and discipline are important to military effectiveness
    4. State officers and training are part of checks and balances to prevent use of organized militia to take away freedom
  49. ARTICLE I, SECTION 8, CLAUSE 17—SEAT OF GOVERNMENT—FORTS, ETC. (Federalist No. 43)
    1. Federal seat of government and forts, etc. should be under federal control and not subject to possible interruption of services, etc. from state within which located
    2. Note limited purposes for which federal government can purchase and control land within states
    3. Federal authority over territories is in Article IV, Section 3, Clause 2
  50. ARTICLE I, SECTION 8, CLAUSE 18—NECESSARY AND PROPER CLAUSE (Federalist No. 33 and 44)
    1. Intended to avoid overly strict interpretation of delegated powers
    2. Not intended to authorize powers not within limited scope of delegated powers
    3. Important to understand spirit of constitution—otherwise can push tenuous logic until tail wags dog [p. 29]
  51. ARTICLE I, SECTION 9—RESTRICTIONS ON POWERS OF CONGRESS
    1. Exceptions carved out of delegated powers
    2. Bill of Rights provisions in text of Constitution—Framers did not intend a separate Bill of Rights
  52. ARTICLE I, SECTION 9, CLAUSE 1—IMPORTATION OF SLAVES
    1. Delegated powers include power to regulate interstate and foreign commerce
    2. But that power cannot be used to prohibit migration or importation of slaves for 20 years
  53. ARTICLE I, SECTION 9, CLAUSE 2—HABEAS CORPUS
    1. “Have the body”—produce the prisoner
    2. Judicial examination of propriety of imprisonment
  54. ARTICLE I, SECTION 9, CLAUSE 3—BILL OF ATTAINDER AND EX POST FACTO LAW
    1. Bill of attainder is punishment by legislature without trial
    2. Ex post facto law is law making something a crime or increasing the penalty after the act has been committed
  55. ARTICLE I, SECTION 9, CLAUSE 4—DIRECT TAXATION
    1. Limitation on taxing power
    2. Confirms Article I, Section 2, Clause 3 that direct taxes must be apportioned according to population
  56. ARTICLE I, SECTION 9, CLAUSE 5—NO TAX ON EXPORTS
    1. Limitation on taxing power
    2. Limitation on power to regulate commerce
    3. Exports different from different states—could result in disproportionate burden [p. 30]
  57. ARTICLE I, SECTION 9, CLAUSE 6—NO COMMERCE PREFERENCE
    1. Delegated powers include power over interstate and foreign commerce
    2. That power cannot be used to favor one state over another
  58. ARTICLE I, SECTION 9, CLAUSE 7—PUBLIC MONEY
    1. Age old problem of misuse of public money
    2. Can only spend public money by appropriation made by law
    3. Accounts must be published
  59. ARTICLE I, SECTION 9, CLAUSE 8—NOBILITY AND FOREIGN GIFTS
    1. No division into aristocracy and commoners in United States
    2. Conflict of interest—foreign government cannot give gift or title to United States official without consent of Congress
  60. ARTICLE I, SECTION 10—RESTRICTIONS ON STATES
    1. States are separate governments having sovereign powers except as limited by Constitution (Federalist No. 45; Tenth Amendment; Elders p. 14-15)
    2. Limitations on state powers are largely mirror image of powers delegated to federal government—with additional Bill of Rights and other appropriate limitations
  61. ARTICLE I, SECTION 10, CLAUSE 1—TREATIES
    1. Country to be as one and therefore federal as to foreign matters
  62. ARTICLE I, SECTION 10, CLAUSE 1—LETTERS OF MARQUE AND REPRISAL
    1. Documents designating a ship as a privateer authorized to attack enemy shipping without being engaged in piracy
    2. Part of war power and therefore federal [p. 31]
  63. ARTICLE I, SECTION 10, CLAUSE 1—MONEY AND LEGAL TENDER
    1. States prohibited from both coining money and issuing paper money—uniform United States coinage would help unite country and facilitate commerce—states as well as federal government prevented from issuing paper money
    2. Legal tender—could not require acceptance of paper money in payment of debts—would be existing or foreign paper money since federal government not given power to issue paper money
  64. ARTICLE I, SECTION 10, CLAUSE 1—BILL OF RIGHTS PROVISIONS
    1. Bill of attainder is punishment by legislature without trial
    2. Ex post facto law is law making something a crime or increasing the penalty after the act has been committed
  65. ARTICLE I, SECTION 10, CLAUSE 1—OBLIGATION OF CONTRACTS
    1. Applies to both contracts among private persons and with government
    2. Contract rights are property rights a person cannot be deprived of by legislative enactment
  66. ARTICLE I, SECTION 10, CLAUSE
    1. No titles of nobility in United States
  67. ARTICLE I, SECTION 10, CLAUSE 2—STATE TAX ON IMPORTS AND EXPORTS
    1. Power over interstate and foreign commerce given federal government
    2. States not completely excluded from power
      1. States can exercise power with consent of Congress—even—tax on exports since from own state—but Congress cannot tax exports
      2. Does not need consent of Congress where tax is absolutely necessary for executing state inspection laws
      3. All net proceeds go to federal treasury [p. 32]
  68. ARTICLE I, SECTION 10, CLAUSE 3—MISCELLANEOUS MATTERS REQUIRING CONSENT OF CONGRESS
    1. Tax on shipping is related to interstate and foreign commerce
    2. Troops and ships of war are related to war powers
    3. Agreements with other states or foreign governments involve more than one state or are localized sort of treaty
    4. Engage in war involves war power—but exception for imminent danger

      Article II, Executive Branch

  69. ARTICLE II, SECTION 1, CLAUSE 1—EXECUTIVE POWER VESTED IN PRESIDENT
    1. Always basic concern was to prevent loss of freedom by binding down with “chains of Constitution” government officials who might otherwise use office to expand own authority and become master instead of servant (Federalist No. 69)
    2. Basic approach was separation of powers (including limitation of power conferred) together with checks and balances to prevent future concentration of separated powers
    3. Great concern about concentration of executive power—
      1. Considered establishing weak executive, but experience had shown that approach to be unsatisfactory in operation—also would not be strong enough to check and balance the legislative and judicial branches
      2. Considered having a three man executive so the executive power would not be concentrated in one man, but decided that would be impractical—three men could be as tyrannical as one and a “plurality tends to conceal faults and destroy responsibility.” (Federalist No. 70)
      3. Decided to have a single strong executive, but to bind him down by other methods (Federalist No. 70) [p. 33]
    4. The basic safeguard against presidential tyranny is that his principal area of constitutional authority is that of executing the laws not making them or exercising judicial power (Federalist No. 47)
      1. Executive orders that make rules for the country rather than just the executive department are an unconstitutional usurpation of legislative power
      2. Most regulations issued by executive agencies are an unconstitutional usurpation of legislative authority—and many executive agencies also exercise judicial powers

              J. Reuben Clark:

              “There is a growing tendency for our Congress to turn over to administrative commissions the power to make laws. This plan carries the innocent description of making regulations for enforcing the laws. But lawyers know that under the guise of issuing regulations, these administrative bodies really legislate . . . . Again, these same administrative bodies that so legislate, also act as judges of their own legislation . . . . Finally, I am told that in certain matters, these administrative bodies exercise executive powers to enforce their decisions . . . . We the people have accepted all this. The courts have not condemned it. As to the matters affected, we are now a despotism. If it is established and accepted in one field, it is easily extended over others. It is only a matter of time and our complacency. It is not possible to condemn too strongly this growing perversion of our constitutional principles.” (Stand Fast by Our Constitution, p. 151-152; Elders p. 15, 54, 55)

      3. The existence of so many administrative agencies issuing regulations is itself an indication of how far we have departed from the constitutional system of the Framers
        1. If the federal government were confined to the limited powers delegated to it in the Constitution all federal laws could be made by Congress
        2. When the federal government departs from its proper constitutional authority and usurps power to regulate and control the multitudinous activities of our lives it becomes physically impossible for Congress to make all the laws involved [p. 34]
  70. ARTICLE II, SECTION 1, CLAUSE 1—FOUR YEAR TERM (Federalist No. 71)
    1. Seriously considered a single 7 year term with President ineligible for reelection
      1. Term long enough for stability but short enough to avoid permanence
      2. Wanted President to devote attention to office and not be involved with seeking reelection
    2. Went to 4 year term with thought that if wrong man were elected should not have to wait 7 years to make change
    3. Left out prohibition against reelection (Federalist No. 72)
      1. President would be reelected only if does well
      2. George Washington started two term tradition—no president served more than two terms until Franklin D. Roosevelt—after his death the 22nd Amendment was adopted limiting a president to two terms
  71. ARTICLE II, SECTION 2, CLAUSES 2, 3 AND 4—SELECTION OF PRESIDENT (Federalist No. 64, 68; Elders p. 15-18)
    1. Human nature considerations to preserve freedom
      1. He should not be elected directly by the people—excess of democracy—would invite tumult and disorder—people would not have facts to make sound decision—too likely to result in election of a demagogue—too important a decision to be left to a popularity contest or mass emotional selection
      2. He should not be selected by the governors of the states or by the Congress—too dangerous to separation of powers and checks and balances—tendency to feel beholden to those who selected him—human nature motivation to want to stay on good terms with those who can reelect him
      3. A group of highly responsible, well-informed men specially chosen for the sole purpose of selecting the president who would then disband would be an ideal solution—they would use sound judgment free of the empty slogans and promises and emotionalism of a popular election—their selection would be based on a man’s real qualities rather than the often fictional image sold to the populace—and then by disbanding after making the selection there [p. 35] would be no official group for the president to be beholden to or to be concerned about staying on good terms with to be reelected
    2. The electoral college
      1. The third paragraph of Article II, Section 1 is sometimes not numbered in which case the rest of the clause numbers for that section are all one less
      2. Term “electoral college” is not in Constitution—college refers to group of colleagues having a particular function like college of cardinals to select Pope
      3. Number of electors to equal number of Senators and Representatives-modified population approach—satisfactory arrangement without complexity of different formula
      4. Legislature of each state decide how electors from that state to be chosen—similar to right of states to decide qualifications of regular voters
      5. No Congressman or other federal official can be an elector—might have personal human nature motivation influencing his choice—President might feel obligated to federal official for his job
    3. Time for choosing electors and day on which they vote—checks and balances—may be needed to prevent states blocking election of President and Vice President by inaction
    4. The selection process (before changed by 12th Amendment)
      1. Electors meet in own state—each elector votes for two candidates at least one of whom must live in another state
      2. List of all persons voted for and votes for each is sent sealed to President of Senate—the more stable part of Congress where the states are represented—note how states have input in selection of chief executive to preside over central government
      3. Lists received from all states are opened by President of Senate—in presence of both Senate and House of Representatives—and votes are counted [p. 36]
      4. Choice made by representatives of people, but limited to few best men chosen by specially selected electors
      5. If one person receives a majority of whole number of electors appointed and has the most votes, he becomes the President—because each elector has two votes there can be more than one person with a majority
      6. If no one person has majority and the most votes the House of Representatives makes the selection
        1. From among those with majority if more than one has majority and no one person has the most votes
        2. From five highest if no person has majority
      7. Special voting requirements in House of Representatives when voting on President
        1. Quorum consists of representatives from 2/3 of states
        2. Voting is by states with each state having one vote
        3. Selection is by majority of all states—not just those voting
        4. Selection is by people’s representatives, but with strong provisions for limiting excess of democracy
      8. Selection of Vice President
        1. Person with next higher number of votes is Vice President—does not have to be majority
        2. If two or more have equal votes, Senate makes selection—no need to vote by states because all states represented equally in Senate
    5. Changes made by 12th Amendment
      1. Separate lists for President and Vice President—clear which to be President in case of tie—avoid problem of President and Vice President with different points of view [p. 37]
      2. Make selection of Vice President more similar to President—candidate must have vote of majority of electors to be Vice President without Senate selection—2/3 quorum required in Senate—majority of all Senators required for choice
    6. Note similarity to selection of individuals for Church positions (Elders p. 16-17)
      1. Selection made by small group who carefully consider the needs of the position and the qualifies of those considered to fill it
      2. Selection is approved by people
        1. In Church situation by presenting for sustaining vote after selection made
        2. In electoral system selecting electors and empowering them to make selection
  72. ARTICLE II, SECTION 1, CLAUSE 5—QUALIFICATIONS FOR PRESIDENT (Federalist No. 64)
    1. Natural born citizen (or citizen when Constitution adopted)—our freedom system to be a basic part of his thinking—residence requirement related—not enough to be a natural born citizen if haven’t lived here 14 years
    2. Age 35—greater maturity and experience
  73. ARTICLE II, SECTION 1, CLAUSE 6—PRESIDENTIAL SUCCESSION
    1. President out of office or disabled—Vice President functions as President
    2. Both out of office or disabled—succession determined by law passed by Congress
      1. Recall that Congress represents both states and people
      2. Law provides that Vice President succeeded by Speaker of House, then President pro tempore of Senate, then cabinet members in order of establishment of their departments [p. 38]
    3. Modified by 25th Amendment
      1. If Vice President out of office or disabled, President nominates successor Vice President—confirmed by majority vote of both houses of Congress
      2. Requirements are easier than under electoral system—no 2/3 quorum—no voting by states—majority of those voting rather than absolute majority
      3. Detailed provisions for determining President’s disability
  74. ARTICLE II, SECTION 1, CLAUSE 7—PRESIDENT’S COMPENSATION (Federalist No. 73)
    1. Note protection of checks and balances independence by eliminating potential areas where self interest might conflict with duty
    2. Congress can’t reward him or punish him (by salary reduction) for going along or not going along with what they want
    3. Cannot take emolument (economic benefit) from any state—human nature tendency to favor benefactor—did not want president’s judgment influenced in favor of any state
  75. ARTICLE II, SECTION 1, CLAUSE 8—PRESIDENT’S OATH
    1. Regarded as very important—compare with Nephi and his brothers when Zoram took oath (1 Nephi 4:35-37)
    2. Religious citizenry indispensable—President be example—Washington’s Farewell Address comments on religious citizenry and oaths
    3. An affirmation is a solemn declaration made under penalties of perjury by a person who conscientiously declines taking an oath—legally equivalent to an oath
    4. Under Article VI, Clause 3 all legislative, executive and judicial officers of both federal and state governments take similar oath [p. 39]
  76. ARTICLE II, SECTION 2, CLAUSE 1—COMMANDER IN CHIEF (Federalist No. 69, 74)
    1. Avoid political turmoil over who is in charge of military operations in time of war—that authority goes with the office of the President
    2. Commands only such part of the militia as Congress first calls into actual service of the United States (Article I, Section 8, Clause 15; Federalist No. 69, 74)
    3. Comments by J. Reuben Clark on unconstitutional actions taken on authority of so-called war powers of the President:

            “One of the most relied upon shibboleths of those augmenting the executive power, is the war powers of the President. When, during a war, all else fails to justify some proposed unconstitutional course, (they) fall back upon the war powers of the President . . . (T)here are almost no Presidential war powers in the sense . . . (of) a source of power inherent in the President as President and awakened by the fact of war. A short explanation will make this clear.

            “As a matter of fact and of law the President of the United States is a dual personality. He is the Chief Executive charged with executing the laws of the country, and he is Commander in Chief of the Army and Navy of the United States. The problem is simplified if you think of the presidential powers as lodged in two persons—one the Chief Executive, and the other the Commander in Chief.

                  (Continues after listing war powers in Article I, Section 8)

            “These are the war powers prescribed by the Constitution and they are all in Congress. But when that body passes laws to implement these powers, then the execution of these laws becomes the duty and responsibility of the Chief Executive . . . .

            “As to the duties of the President as Commander in Chief . . . it may be observed that a commander in chief is appointed (as history irrefutably shows) for the conduct of belligerent operations of armies in the field; and to this end the commanders in chief have been given by their sovereigns very large executive, judicial, and legislative powers over occupied enemy territory. But to assume from the existence of these powers in occupied enemy territory that a commander’s commission also endows him with like powers in the matter of the local government of his own country . . . is to adopt a politically unsound theory and to ignore elemental historical facts of all civilized [p. 40] governments . . . . When the Commander in Chief assumes these latter powers, he becomes a usurper.” (Stand Fast by Our Constitution p. 155-157)

  77. ARTICLE II, SECTION 2, CLAUSE 1—REQUIRE OPINION OF DEPARTMENT HEADS (Federalist No. 74)
    1. Human nature tendency of persons in high positions to feel important and seek to exercise independent authority
    2. Reemphasizes that subordinate to President
    3. No provision in Constitution for a cabinet or council to meet with President—in practice heads of departments serve as such
  78. ARTICLE II, SECTION 2, CLAUSE 1—REPRIEVES AND PARDONS (Federalist No. 74)
    1. A reprieve is a postponement of the execution of a sentence—a pardon is a mercy or forgiveness that relieves a person of the sentence itself
    2. Sometimes there may be circumstances where it would be desirable that a particular legal punishment be delayed or forgiven
    3. Why should the President have this authority
      1. Dealing with specific accused—executive department able to most efficiently investigate and decide
      2. If authority were given to Congress would be like a new trial before an enormous jury in the political arena
      3. Giving this authority to judiciary would be inappropriate because this is a check on the judiciary
      4. Not apply to impeachment so president can’t reappoint person the legislature has removed for malfeasance in office
  79. ARTICLE II, SECTION 2, CLAUSE 2—TREATIES (Federalist No. 75)
    1. As to foreign nations we act as a single country so a treaty is a federal matter
    2. Thomas Jefferson characterized the federal government as the foreign agency of the states [p. 41]
      1. Treaties are not made by the President alone—he is the agent to negotiate them with the advice and consent of the states through their representatives in the Senate
      2. Concurrence of 2/3 of Senators present indicates substantial agreement of states
      3. Checks and balances between Chief Executive and states through Senate
    3. Cannot evade constitutional restrictions by labeling something a treaty that is really something else
      1. A treaty is an agreement between nations pertaining to such things as commercial and fishing rights, settling boundary disputes, and peace agreements
      2. Cannot be used as an indirect way of amending the Constitution, or giving up sovereignty, or giving away property, or giving away or paying money (James Madison, Thomas Jefferson, J. Reuben Clark, Elders p. 135-136; Article I, Section 9, Clause 7; Article IV, Section 3, Clause 2)
  80. ARTICLE II, SECTION 2, CLAUSES 2 AND 3—APPOINTING FEDERAL OFFICERS (Federalist No. 67, 76, 77)
    1. Checks and balances—all important federal officials are subject to approval of the states through their representation in the Senate—President can’t undermine freedom system by filling positions with own team—includes Supreme Court Justices
    2. Safeguard greatly weakened by political party system
    3. Congress can make other arrangements for appointment of subordinate officers—not just Senate
    4. Checks and balances—what if President tries to evade Senate approval by filling vacancies when Senate not in session—call them temporary and just let them go on—Clause 3 automatically terminates them
  81. ARTICLE II, SECTION 3—STATE OF UNION MESSAGE (Federalist No. 77)
    1. State of Union is general report on how things are going [p. 42]
    2. Recommends legislation because the executive who carries out the laws is most likely to know what changes are needed
    3. Recommends to their consideration recognizes that legislative power is in Congress
    4. Improper for President to determine specifically what should be done and then use political pressure to force Congress to adopt his program—indirect usurpation of legislative function—violation of separation of powers
  82. ARTICLE II, SECTION 3—CALLING SPECIAL SESSIONS AND ADJOURNMENT (Federalist No. 77)
    1. Special sessions—regular sessions automatic (Article I, Section 4, Clause 2)- executive department is always in operation—can call special session if urgent legislative action needed
    2. Adjournment power applies only in case of disagreement—departments separated but interrelated—here executive makes for more efficient functioning of legislature—but does not have legislative power
  83. ARTICLE II, SECTION 3—RECEIVE AMBASSADORS (Federalist No. 42, 69)
    1. Apparently intended as largely ceremonial power
    2. Has become very important—power to receive is power not to receive—amounts to power to determine which of competing parties is legitimate government of foreign country
    3. Framers contemplated that relations with other countries would be largely commercial—our foreign influence would be mainly by example—not major involvement in internal affairs of other countries
  84. ARTICLE II, SECTION 3—FAITHFULLY EXECUTE LAWS (Federalist No. 77; Elders p. 15, 54-55)
    1. Executing laws is President’s most important peacetime duty
    2. Does not include power to make laws—does not include power to indirectly make laws under guise of executive orders or regulations
    3. Continuing separation of powers is essential to freedom [p. 43]
  85. ARTICLE II, SECTION 3—COMMISSION ALL OFFICERS
    1. A ministerial act after they have been properly appointed (Federalist No. 77)
  86. ARTICLE II, SECTION 4—GROUNDS FOR IMPEACHMENT (Federalist No. 39, 69)
    1. Executive and judicial officers are removed by impeachment—Congressmen are expelled by 2/3 vote of their own house
    2. Meaning of “high crimes and misdemeanors” not clarified—legislative history indicates that intended something similar to maladministration rather than conviction of specific crime

      Article III, Judicial Branch

  87. ARTICLE III, SECTION 1—JUDICIAL POWER (Federalist No. 78 to 82)
    1. Judicial power is the power to hear and judge a case—under separation of powers it is vested in the judicial department—not the executive or legislative departments
    2. Giving administrative bodies the power to hear and judge cases is a violation of separation of powers—this is one of the changes included in what J. Reuben Clark referred to as a “perversion of our constitutional principles” which he said “it is not possible to condemn too strongly.” (Stand Fast by Our Constitution p. 151-152)
    3. Supreme Court is only court set up by Constitution
    4. Checks and balances—Supreme Court can’t expand court system—additional courts set up by Congress
  88. ARTICLE III, SECTION 1—GOOD BEHAVIOR AND COMPENSATION (Federalist No. 78, 79)
    1. Judge free to decide cases without concern about removal for unpopular decision—good behavior apparently means can only be removed by impeachment
    2. Also can’t punish judge for unpopular decision by reducing salary—power to raise salary needed because serve for long terms [p. 44]
  89. ARTICLE III, SECTION 2, CLAUSE 1—CASES AND CONTROVERSIES IN LAW AND EQUITY (Federalist No. 80)
    1. Cases and controversies—must be a real dispute such as should be decided by a court—no advisory opinions
    2. Law refers to the common law and statute law—equity refers to a special branch of law intended to achieve fairness where regular law might be too harsh—somewhat like justice and mercy—must qualify for equity by being fair yourself
  90. ARTICLE III, SECTION 2, CLAUSE 1—LIMITED FEDERAL COURT JURISDICTION (Federalist No. 80)
    1. Separation of powers—federal government is not superimposed on states and superior to them—rather is co-equal with them each having separate spheres of authority
    2. Jurisdiction of federal courts is limited to federal sphere of authority—only jurisdiction of federal courts is set forth in this clause
    3. Two general categories of federal court jurisdiction
      1. Certain types of cases may always be heard in the federal courts regardless of who the parties may be
      2. Certain parties may always have their cases heard in the federal courts regardless of the type of case

              Chief Justice John Marshall, Cohens v. VA. 6 Wheat. 264, 378

              “The second section of the third article of the constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. . . . In the second class, the jurisdiction depends entirely on the character of the parties . . . . If these be the parties, it is entirely unimportant what may be the subject of the controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.”

    4. List of grounds for jurisdiction of federal courts indicating whether based on type of case or who parties are [p. 45]
      1. ARISING UNDER CONSTITUTION—type of case—federal jurisdiction obviously proper—involves fundamental law of federal system
      2. LAWS OF THE UNITED STATES—type of case—similar to (1) except that refers to federal statutes instead of Constitution
      3. TREATIES—type of case—federal since involve whole country as a unit
      4. AMBASSADORS, ETC.—who parties are—official representatives of foreign nations
      5. ADMIRALTY AND MARITIME CASES—type of case—pertaining to shipping—interstate and foreign commerce
      6. UNITED STATES IS A PARTY—who parties are—United States not have to be subjected to courts of a particular state
      7. CONTROVERSIES BETWEEN TWO OR MORE STATES—who parties are—federal type matter because beyond border of one state—appropriate to have disinterested court
      8. BETWEEN A STATE AND CITIZENS OF ANOTHER STATE—who parties are—similar to (7)
      9. BETWEEN CITIZENS OF DIFFERENT STATES—who parties are—similar to (7)
      10. BETWEEN CITIZENS OF THE SAME STATE CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES—type of case-boundary disputes among states—not have to use courts of state on one side of boundary dispute
      11. BETWEEN A STATE, OR THE CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS OR SUBJECTS—who parties are—one nation as to foreigners—similar to treaty area
  91. ARTICLE III, SECTION 2, CLAUSE 2—ORIGINAL AND APPELLATE JURISDICTION (Federalist No. 81, 82)
    1. Original jurisdiction refers to heating the original trial—appellate jurisdiction refers to an appeal from a decision of a lower court [p. 46]
    2. Two categories of original jurisdiction
      1. Official representatives of foreign nations
      2. A state is a party
    3. Checks and balances—Supreme Court’s appellate jurisdiction is subject to control of Congress—impeachment is not only weapon (Federalist No. 51, 81; Elders p. 75)
  92. SUPREME COURT’S AUTHORITY TO DECLARE ACT OF CONGRESS UNCONSTITUTIONAL
    1. Part of checks and balances check on Congress (Federalist No. 78, Elders p. 20)
    2. Properly recognized by Supreme Court in Marbury v. Madison (Elders p. 52-53)
    3. Daniel Webster’s explanation in reply to Robert Y. Hayne
      1. The supremacy clause (Article VI, Clause 2)—Constitution is supreme
      2. Federal judicial power extends to all cases arising under the Constitution and laws of the United States (Article III, Section 2, Clause 1)
      3. “In pursuance of these clear and express provisions Congress established, at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the Supreme Court.” (Daniel Webster replying to Hayne)
  93. PROBLEM OF JUDICIAL USURPATION
    1. Thomas Jefferson’s concern (Elders p. 74)
    2. Political matters are outside scope of judicial power (Judge Woodbury, Elders p. 69)
    3. Perversion of concept of judicial review—similar to rejecting scriptures by calling them allegory (Elders Chapter 8, p. 49-78) [p. 47]
    4. Can only be reversed by people who are not only righteous, but who understand what is happening (David O. McKay, (Elders p. 76)
    5. Three methods of checking judicial usurpation
      1. Righteous indignation and insistence that Constitution be followed according to original intent and specific words of Constitution and Tenth Amendment
      2. Limiting appellate jurisdiction of Supreme Court (Article III, Section 2, Clause 21; Elders p. 20-21)
      3. Impeachment (Article II, Section 4, Federalist No. 81)
  94. ARTICLE III, SECTION 2, CLAUSE 3 AND SECTION 3, CLAUSES 1 AND 2—BILL OF RIGHTS TYPE SAFEGUARDS (Federalist No. 83, 84)
    1. No separate Bill of Rights intended
    2. Trial by jury
    3. Place of trial
    4. Definition of treason—can’t use “treason’ to get rid of political opponents
    5. Evidence required to convict for treason
    6. Limitation of punishment for treason

      Article IV, Matters Concerning States

  95. STATES TO BE PARTS OF UNITED GOVERNMENT WITHOUT DESTROYING STATUS AS INDEPENDENT STATES
    1. States are partners with different functions not just political subdivisions of federal government
  96. ARTICLE IV, SECTION 1—FULL FAITH AND CREDIT (Federalist No. 42)
    1. Major step in unifying country—without it states could make own rules as to recognition of official proceedings of other states [p. 48]
    2. Proper for Congress to provide manner of proof so single system throughout country
    3. But states not required to ignore own laws—main usefulness is enforcing judgments obtained in other states
  97. ARTICLE IV, SECTION 2, CLAUSE 1—PRIVILEGES AND IMMUNITIES (Federalist No. 80)
    1. Can’t discriminate against citizens of other states
    2. But can treat differently where justified by different circumstances—tuition to colleges paid for by local citizens
  98. ARTICLE IV, SECTION 2, CLAUSES 2 AND 3—EXTRADITION
    1. Clause 2 applies to any sort of crime
    2. Originally governor of asylum state bound to comply with federal law and return fugitive—more recently governor has been regarded as having discretion to comply or not
    3. Clause 3 pertains to runaway slaves—don’t gain freedom by reaching free state
  99. ARTICLE IV, SECTION 3, CLAUSE 1—ADMISSION OF NEW STATE (Federalist No. 43)
    1. A political question to be decided by Congress
    2. Where involves existing state or states must also have consent of their legislatures
      1. Lose control of part of prior area
      2. Where states consolidated lose representation in Senate
      3. May result in shift of voting power—like gerrymandering
  100. ARTICLE IV, SECTION 3, CLAUSE 2—TERRITORY AND PROPERTY (Federalist No. 43)
    1. Congress appoints governor and judges—people elect territorial legislature [p. 49]
    2. Territorial government continues until Congress decides has become sufficiently populated and has a satisfactory form of government to become a state
    3. Disposition of United States property requires act of Congress—can’t be done by Senate alone calling it a treaty
    4. Claims refers to conflicting claims among the states and with the national government—not be jeopardized by adoption of Constitution
  101. ARTICLE IV, SECTION 4—REPUBLICAN FORM OF GOVERNMENT (Federalist No. 39 and 43)
    1. Refers to a government that is not a monarchy—not to particular government form
    2. Felt would be dangerous to entire union if one of states were to change its government into a monarchy
  102. ARTICLE IV, SECTION 4—INVASION AND DOMESTIC VIOLENCE (Federalist No. 43)
    1. Includes possible invasion by neighboring states
    2. Domestic violence contemplated sort of insurrection against existing state government
      1. Required application by existing state government to assure state that federal force would not come in and take over on own initiative
      2. In Missouri lawless element controlled existing government—might have taken position that indirect monarchy and federal government come in to reinstate republican (freedom) form of government

        Article V, Amendments (Federalist No. 43, 85)

  103. HUMAN NATURE—NEITHER FEDERAL NOR STATE GOVERNMENTS CAN PREVENT INITIATION OF AMENDMENTS DESIRED BY OTHER
    1. Federal—2/3 of both houses propose amendments directly [p. 50]
    2. States—at request of 2/3 of legislatures Congress calls convention to propose amendments—convention needed for representatives to agree on wording, etc.
  104. RATIFICATION BY 3/4 OF STATES INDICATES SUBSTANTIAL AGREEMENT THROUGHOUT COUNTRY
  105. LIMITATIONS ON AMENDMENTS
    1. Slavery compromise binding for 20 years
    2. State can’t be deprived of equal representation in Senate without its consent

      Article VI, Debts, Supremacy Clause, Oath

  106. ARTICLE VI, CLAUSE 1—EXISTING DEBTS (Federalist No. 43, 44)
    1. Assumed debts of United States under Articles of Confederation—showing of good faith and stability
    2. Applied only to federal debts—not individual state war debts—those were later assumed by law
  107. ARTICLE VI, CLAUSE 2—SUPREMACY CLAUSE (Federalist No. 27)
    1. People took some of prior power of state governments and delegated it to federal government—this clause requires state judges to recognize that delegation regardless of any contrary provisions in state constitutions or state laws
    2. This does not make the federal government generally supreme over state governments—in areas not delegated to the federal government the states are supreme in the powers the people have given them (Tenth Amendment)
    3. Treaties must be in harmony with the Constitution—can’t evade Constitution by adoption of a treaty (Elders p. 134-136)
  108. ARTICLE VI, CLAUSE 3—OATH (Federalist No. 27, 44)
    1. Affirmation is solemn commitment equivalent to oath
    2. Recall religious citizenry to whom oath would have significance [p. 51]
    3. Deemed important that all public officials be committed to support Constitution rather than feel free to undermine it
    4. Part of enforcement of supremacy clause to require state officials to bind themselves individually to support federal Constitution

      Article VII, Ratification

  109. CONVENTIONS DEEMED ESSENTIAL (Federalist No. 43)
    1. Could not be done by state legislatures because fundamentally changing the nature of the federal system, including the constitutions of all the states
    2. Had to be done by supreme authority of people (Declaration of Independence)
    3. Vote by states necessary because changing individual state constitutions [p. 52]

Previous pageNext Page
Contact us