Creating A Constitution: Outlining Law Basics

When writing constitution law outlines, it is important to begin with a strong understanding of the subject. A good place to start is by familiarizing yourself with the Constitutional Law Index, which lists all CALI lessons covering Constitutional Law. From there, you can refer to casebooks such as Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law by Professor Ruthann Robson, which covers topics like the Marbury v. Madison case, which established judicial review and created the authority for judicial review of executive actions and legislative acts. When outlining, be sure to cover key topics such as the legislative branch, including the House of Representatives and the Senate, and their roles in passing bills and the veto process.

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Legislative Branch

Article I of the US Constitution outlines the design of the legislative branch of the US government, which consists of the Congress. The legislative branch is responsible for making laws and is subject to a system of checks and balances to limit its power.

Sections of Article I

Article I, Section 1 outlines the makeup and powers of the House of Representatives. Members of the House of Representatives are chosen every two years by the people of the states, with each state having at least one representative. Representatives must be at least 25 years old, have been citizens of the US for at least seven years, and be inhabitants of the state they are chosen in.

Article I, Section 2 outlines the makeup and powers of the Senate. Senators are also chosen by the people of the states and receive compensation for their services, paid out of the US Treasury. They are privileged from arrest in most cases and are exempt from being appointed to civil offices during their term.

Article I, Section 7 outlines the procedures for enacting legislation. For a bill to become law, it must pass both houses of Congress and be presented to the President for signature. Any bill dealing with revenue or taxes must originate in the House of Representatives, while other types of bills can originate in either house. The President has the power to veto a bill, which can be overridden by a two-thirds majority in both houses.

Article I, Section 8 enumerates the specific legislative powers of Congress, including the power to tax and spend, borrow money, regulate interstate commerce, establish courts, declare war, and raise and support armies.

Limitations on Congress's Power

Article I also includes sections that deny certain powers to Congress and the states. Section 9 restricts Congress's power by prohibiting the slave trade, suspending the writ of habeas corpus, and restricting direct taxes and appropriations, among other limitations. Section 10 denies certain powers to the states, such as entering into treaties, issuing bills of credit, and imposing duties on imports or exports.

The legislative branch, as outlined in Article I of the US Constitution, plays a crucial role in lawmaking and governing. It is structured to maintain a balance of powers and ensure that the interests of the states and the nation as a whole are represented.

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Approval/Veto of Bills

The process of approving or vetoing bills is a significant aspect of law-making and involves several steps. Firstly, a bill must be passed by both the House of Representatives and the Senate before being presented to the President of the United States for approval or veto. This is known as the Presentment Clause, as mentioned in Article I, Section 7, Clause 2 of the US Constitution.

If the President approves the bill, they sign it, and it becomes law. However, if the President does not approve, they must return the bill, along with their objections, to the House in which it originated within ten days (Sundays excepted). This is an important safeguard, ensuring the President has a suitable opportunity to consider the bill. If the President fails to return the bill within the allotted time, it automatically becomes law, provided Congress has not adjourned, preventing its return.

Upon receiving the President's objections, the originating House must enter them into their journal and reconsider the bill. If, after reconsideration, two-thirds of that House still agree to pass the bill, it is sent to the other House for similar reconsideration. If two-thirds of both Houses approve the bill, it becomes a law, overriding the President's veto. The votes in both Houses must be determined by yeas and nays, and the names of those voting for and against the bill must be recorded.

However, if the President vetoes a bill and Congress adjourns before the ten days elapse, the President can prevent the bill from becoming law by simply not signing it, known as a pocket veto. In this case, Congress cannot override the veto but must reintroduce the bill in the next session if they wish to pursue its enactment.

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Presidential Inability

The Twenty-Fifth Amendment to the United States Constitution addresses presidential vacancy, disability, and inability. In the event that a president is unable to discharge the powers and duties of their office, the vice president, along with a majority of either the principal officers of the executive departments or another body as provided by law, can transmit a written declaration of the president's inability to the President pro tempore of the Senate and the Speaker of the House of Representatives. This declaration triggers the vice president to assume the role of acting president, as outlined in Sections 3 and 4 of the amendment.

Section 3 of the amendment allows the president to voluntarily transfer their powers to the vice president, as President George W. Bush did before undergoing a medical procedure. However, Section 4 addresses situations where a president is unable to discharge their duties and also fails to execute the voluntary declaration. In such cases, the vice president and a majority of executive officers can still issue a written declaration of the president's inability, allowing the vice president to become acting president while the president remains in office but is temporarily divested of authority.

The terms "unable" and "inability" are left deliberately undefined in the amendment to accommodate various scenarios that may not fit a rigid definition. Once the president transmits a written declaration of their inability to the President pro tempore of the Senate and the Speaker of the House of Representatives, they can resume their powers unless, within four days, the vice president and a majority of executive officers transmit a contrary declaration. In such a case, Congress decides the issue, assembling within forty-eight hours if not already in session.

The Twenty-Fifth Amendment provides a framework for addressing presidential inability, succession, and the temporary transfer of powers. It ensures that the vice president can act as president when necessary, either through voluntary declaration by the president or in cases where the president is unable to make such a declaration.

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Judicial Review

The Marbury v. Madison case in 1803 established the authority for judicial review of executive actions and legislative acts. Madison won, as Marbury had the right to receive a commission and sue in court, but the Supreme Court did not have the authority to order the delivery of commissions. This case also set the precedent that where the Constitution, as interpreted by the Court, conflicts with laws enacted by Congress, the Court may declare the law unconstitutional and invalid.

The decision in Marbury v. Madison was never overturned, although it has faced criticism and opposition. The case established the power of judicial review in state courts, and by 1850, it was securely established in all states. The Judiciary Act of 1789 also explicitly provided for the exercise of judicial review. Early Supreme Court Justices, such as Chief Justice Jay, also assumed the existence of judicial review, as seen in cases like Hayburn's Case and Hylton v. United States.

The Framers of the Constitution, including Madison and Hamilton, generally assumed and welcomed the existence of judicial review, with the exception of Mercer and Dickinson, who disapproved of judges having the authority to declare a law void. The expansion of judicial review was influenced by the idea of constitutional checks and balances, which gained prominence after World War II, leading many countries to adopt this concept in their legal systems.

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Equality and Due Process

When writing about equality and due process in constitutional law, a good place to start is with the Fourteenth Amendment, which guarantees privileges and immunities of citizenship, due process, and equal protection. The Fourteenth Amendment states that no person shall be "deprived of life, liberty, or property without due process of law." This part of the amendment has been used by the Supreme Court to prohibit certain practices outright, such as in Roe v. Wade (1973), where the Court ruled that the right to privacy included a woman's decision to have an abortion.

The Equal Protection Clause of the Fourteenth Amendment requires that a state has a good reason or a "rational basis" for its laws. For example, in Plyler v. Doe (1982), the Supreme Court struck down a Texas law that prohibited children who were not legal residents from attending free public schools, as it imposed a lifetime hardship on a class of children who were not accountable for their status. In another case, Brown v. Board of Education, the Supreme Court overturned Plessy v. Ferguson (1896), which had upheld the doctrine of "separate but equal" in racially segregated public facilities.

Substantive due process is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. It has dealt with specific subject areas, such as liberty of contract or privacy, and has alternately emphasized economic and noneconomic matters. While procedural and substantive due process are closely related in theory, substantive due process has had greater political importance, as it can restrict significant portions of a state legislature's substantive jurisdiction.

Due process also applies to corporations, which are considered 'persons' within the meaning of the equal protection and due process clauses. For example, in Grosjean v. Am. Press Co. (1936), a newspaper corporation successfully argued that a state law deprived it of liberty of the press.

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