HISTORY

Constitution is the Second Government of the United States

Articles of Confederation was the original governing document of the United States.
 
Articles of Confederation:
 Relation among the states under the articles of confederation?
 League of friendship - allies
The Articles of Confederation is more of a treaty between the states.
 Alliance of states for mutual protection
Due to numerous problems the treaty need to be replaced.
There were a large number of models for the constitution, state charters and constitutions
 Some included bills of rights, etc.
 
 
Pennsylvania and Massachusetts Constitutions, had first declarations of rights (of individuals), then a
structure of the government.
Compare:
Articles of Confederation
Article IV - has the protection of some rights
 Rights of various people to privileges and immunities of free citizens
 Free ingress and regress
 
It was possible to have a rights protective provision without a two part constitutional scheme.
Pennsylvania constitution has a unicameral legislature
 Legislature is largely in charge
 Members of the legislature has term limits (as did the articles of confederation)
 
Massachusetts constitutions has a bicameral legislature
 Fear of tyranny of the majority/lack of trust of the people
 Has separate independent Governor
 No term limits
 
U.S. Constitution
 Originally the state legislatures elected the Senate
 Electoral college votes the president
 
Mass.
Wanted the Virtuous elite to run the country/states.
 The rich and educated are responsible and make good decisions (that is how they attained their status)
 Need checks because power corrupts
 If we let the corrupt rule, we lose life, liberty, and property [Rights]
 Turns into Bicameral Legislature
Penn.
Don’t trust the elites who run the government
 Farmers are in the legislature, are virtuous
 Power corrupts
 If we let the corrupt rule, we lose life, liberty, and property [Rights]
 Turns in to unicameral with term limits

Structure Government to protect rights.

 If the point of the structure of government is to protect rights, what is the difference between a declaration
of rights and a structure of government?
Part I - Penn. - Declarations are guiding principals
 We declare that ….

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  By declaring rights, we claim that they already existed
Part II - is about being concrete on issues

Second Proposed amendment

 Congressional Salary Amendment
 Is a right of the collective people to faithful
First Proposed Amendment
 Apportionment Amendment
 
Theory of collective rights of the people, not the rights of individuals
Mass - section 3 - establish and require attendance in churches to create virtuous society
 
Why didn’t he Philadelphia convention create a declaration of right?
 It would be unnecessary to stipulate a bill of rights, because congress had no power to act
 It would give implied rights to the government
 Listing a few rights would be a expressio unus (exhaustive list)
 
Why was the bill of rights ratified after the convention instead of at it?
 New York and Virginia (anti-federalists) were circulating calls for a new convention
 Rhode Island and N. Carolina did not ratify the constitution
 
Madison's purpose was to kill the opposition everywhere.
 
Is part of the reason why we find so little evidence of what people thought because the general consensus is
well know, or because no one gave a damn because it was a cynical hatchet job used to stop opposition?

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 First Amendment Religion Clauses
1. No religious test for politicians
2. Concerns about the un-amended constitution, which ultimately led to 1st amend (religion)
 Pay for the building and maintenance of churches
 Manner in which government could compel religious behavior
 Negative control of religious practices - taxes
 Fear of Establishment
Catholics were the most despised religious group at the time
 They are loyal to the Pope above all others
 The Pope could absolve people of their duties to the country - you could not trust a catholic
 Oath argument
[a Muslim president is less terrifying than a Catholic president]
Why are religious tests a good thing for governmental office?
People of other religions are less moral
 States allowed some to live in there, but not to run in government
 Others didn’t allow people to live there
What makes it an Establishment or an established church in the traditional sense?
 Make a law to create church
1. Compulsory financial support
2. Compulsory Worship
 Compulsory attendance;
 Regulated content of services
 Use official languages, official prayer book, and official dogma
 Use official mode of worship (i.e. how to pray)
 Occasion of prayer (Sabbath)
3. Testing/Oaths :: political exclusion
4. Behavior outside of the worship
 Blasphemy/Swearing (legal restraints on speech)
 Rituals/Sacraments (Marriage, Funerals, Births)
5. Churches become incorporated
 Let the church acquire property
 Allows it to sue or be sued
(required an affirmative act of the legislature)
 Incorporation allows for perpetual existence
 Downside: they would monopolize (Jeffersonian Concern)
Why would it be a bad thing to establish a church?
1. Localism/Federalism - we don’t want feds. telling us something different than we want to do
2. Practical Problems - throw out/get rid of non-followers
3. Religion is a duty owed to God, not the government
James Madison was elected to the Virginia legislature as a Constitutional writing body:
George Mason wrote - all men should enjoy the fullest toleration
Madison wanted equality - toleration v. right
 Toleration implies superiority and inferiority
 God is the only judge of which religion is right one
Why is it a good idea to have no religious tests for politicians?
 Virtuous people may be excluded from the government
Why is it a good idea to have an established religion?
 Create a moral/virtuous community
 People will have peace and get along - everyone thinks theirs is best = social conflict
If the state doesn’t have the responsibility to ensure virtuous citizenry, then who will?
 Virtue is in the eye of the beholder
 Social contracts
What was the federalist response to the criticism (by the anti-federalists) that the government could establish
a religion?

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  There was no express grant of power to Congress regarding religion 
Where could religious power come from?
1. Necessary and Proper Clause
 Tax power
 Would give the ability to destroy other churches by taxation/drive out competition
2. Spending Power (none listed in the Constitution)
3. Congress had plenary (absolute) powers over DC and all U.S. Territories (west)
 Problem is that can become a trend - all the important people are in DC
4. Treaty Power (on its face it is an unlimited power)
 Treaty's are supreme law of the land
 Make religious treaties
 Federalist argue it will never happen because we can't agree
 Anti-Federalists argued it is not by any device of the constiution

Proposed Religion Amendments:

(NC and VA did not ratify originally)
Establishment:
 There shall be no national religion established by law (MD)
 No religious sect or society ought to be favored or established by law (VA)
 VA got its from it's own state constitution
 No religious sect or society ought to be favored or established by law (RI)
 RI copied VA, did so after everyone else ratified Constiution
 No religious sect or society out to be favored or established - NY
Free Exercise:
 Congress shall make no law Touching Religion - N.H.
 Equal entitled . . . protection in religious activity - MD
 People religiously scrupulous about fighting do not have to bear arms - NC
 Pay or have someone take their place
 Peaceably, freely, to exercise their religion according to the dictates of conscious - NY
 Don’t construe the constitution to allow any branch to alter, abrogate or infringe on the constitutions
of the several states when it comes to liberty or religion (PA)
 Can't get rid of Declarations of rights out of the State Constitutions
 Can't get rid of Oaths within the State Constitutions
 Don’t construe the constitution to infringe the rights of Conscious - MA
 Free exercise of religion according to dictates of conscious - NC
 A copy of Virginia's
 The rights of conscious shall be inviolable - PA
Madison decided to propose amendments, that were not controversial, nor strip the government of power (likely for
his own political gain)

If you were to try to satisfy some of the factions, where would you look for language to use?
 Look at their suggestions
 Look at the State Constitutions
 VA - because JM is from VA
What did Madison Propose?
 Insert the language into the constitution
 Article I Sec. 9 - seems like a good place to insert additional rights, there are already some there
 Madison proposed
1. Civil rights of none shall be abridged on account of their religious belief
2. Nor shall any national religion be established
3. Nor shall the full and equal rights of conscious be in any manner or on any pretext infringed
4. No person religiously scrupulous about fighting do not have to render military service in
person
 Where does the language he is proposing come from?

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 1. Jefferson's Draft for VA Const/PA actual Constitution- civil rights of no one
2. MD - no national religion shall be established by law
3. NH/MA - rights of conscious to be infringed
 NC - religiously scrupulous about fighting
 Took out provision regarding payment and substitute
PA Constitution:
 None can have civil rights abridged due to religion
 Has religious oath of office
Jefferson's Draft VA Const:
 None can have civil rights abridged due to religion
 Ministers cannot be elected
Therefore Civil Rights:
 Does not have to do with holding office
 Perhaps it is a political
Madison disagreed with Jefferson:
 There is an inconsistency in his draft Constitution
 Madison may have believed holding office was a civil right
 
We end up with Two Clauses
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" - 1st
Amendment
 
Would this rule violate the original understanding of the establishment clause?
 Congress did not make this law.
 Under the federal Constitution only congress has the power to make laws
Where does the "Congress shall make no law" come from?
 Congressman Livermore from NH, proposes make no law touching religion (from NH
Constitution)
What prompted change?
 Was: no religion shall be established by law
 Sylvester (Anti-Federalist NY) and Huntington (Federalist CT) objected to this language
1. Sylvester says it may establish atheism, may abolish religion all together
2. Huntington is fearful that members of a church were forced to pay, the church would sue
the federal government. The problem is the court couldn’t find for the church because it
may be establishment
 Madison inserted "National"
 Gerry objected
 Livermore inserted "Congress" (he is from NH)
 Affirmative statement
 Not aimed at the Judiciary's resolution of lawsuits
Question 1
What did rep. Huntington think might be taken to be the establishment of religion in his hypothetical scenario?
 A court order might be taken to be an establishment of religion
 The evil here is that federal courts wouldn’t be able to award ministers their contract money in breach
of contract suits against parishioners in CT
Question 2
How would someone familiar with Art. III respond to Huntington's fears?
 You wouldn’t be in federal court anyway
 There would be diversity jurisdiction
 Huntington's complaint seems to be a little hysterical
Question 3
Livermore thought adopting NH's language didn’t substantively change the non-misconstrued form of the proposal
that was before the house.
 Proposal was to be inserted in Art. I sec. 9

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Lets say they hadn't put language Congress and placed it in sec. 9; would it be ok
If prohibitions were meant to be across the board, why were they in Art. I?
 Assumedly, founding fathers thought the Legislature would be the most powerful branch, hence the
branch to do these things.
If they were in their own article, they could be applied globally to every branch.
Hypothetical 2
Lets say that instead, our court decides no one has to be there, no one who is there must say or do anything,
when the session opens, it will open with a prayer, by a religious officer, not paid from taxes.
Washington did it
 He is one of the people
 He is not some no-one, he is the guy who was picked unanimously to be the president
Madison would not agree, it is a sprout from the same root
 He did it
Jefferson did not agree either
 He did it
John Jay - 1st Sup. Ct. Just.
 Thinks prayer in court should be observed and continued
 Was president of the Continental Congress 1775
 Wrote the NY constitution in 1778
 Co-authored the federalist papers
 Purpose of the federalist papers was to encourage people of NY to adopt the Constitution
 He was a big shot and was friends with the other big shots
The American people thought:
 Didn’t agree about anything
 Agree about the general principle that Fed. Govt. is limited in it interaction with religion, but not
about their application
 They believe in a general principle, but have not thought about it enough to see how it applies to
what they are doing.
This causes a theoretical problem with belief in jurisprudence of original intent:
Original understanding of general principles
The original understanding of the concrete application
 Hypothetical 3
Federal tax money will be taken and used to fund the payment so that religious officials may lead congress in
prayer. The first congress, who hired chaplains, drafted and recommended to the states the first amendment.
Madison believed it was unconstitutional
How could Madison's colleagues think this was not an establishment of religion.
Hypothetical 4
Hire a Methodist chaplain for each town, paid by tax money.
 Not an establishment because:
 Hypo 3 congress is voting for themselves, minor expense
 Hypo 4 is for other people, major expense
 
House Rep Returned Bill - 1811
 House passes a bill establishing Protestant Church in DC
 Madison objects
 House votes and does not pass bill
Problem:
 Govt. regulation of the church
Madison to Adams - 1832
 Papal system are the worst govt
Madison, Huntington thought that funding of ministers was an establishment
Act of 1776
 People weren't forced to pay to church of England

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Bill Concerning Religion
 Tax dollars go to church of your choice
 Drafted by Patrick Henry
Position of Bill for Religious Freedom (Cogan)
 Madison thought that the law should not force a person to pay taxes to a church
Journal from VA Senate 1789
 Funding of itself is not establishment
 Odd because in Virginia's legislature wanted to pass a similar law
 The first amendment shouldn’t be passed, an attempt to kill the most popular
 VA wanted to call a second convention
House Proposal: 1789
No law establishing article of faith or a mode of worship, or prohibiting the free exercise of Religion
Senate (Mostly Federalist)
 Saw no harm in financing religions
 Narrower than the houses amendment
 Financing does not establish a faith a mode of worship
Federalist Position during Ratification
 Government should not touch religion
Language originally came from VA's original bill of rights (Madison)
Possibility:
1. By paying for a church you are establishing faith and mode of worship
2. The free exercise means according to the dictates of conscience

"According to the Dictates of conscience" - Madison's Proposal 1776

Religious Minorities
Complained because paying for a church not their own was a violation of conscience.
Madison's First Proposal
"No man or class, on account of religion be invested with privileges or penalties"
No person should benefit because of their religion, live by the dictates of conscience
Free exercise of religion (according to the dictates of conscience), therefore you cannot be forced to pay for
churches outside of your conscience.
 
According to Madison free exercise encompasses the rights of conscience
 
What if the Govt. Opts to say that taxpayer money will go to fund minister's of every faith?
 The plain language says no law respecting the establishment . . .
 Concern of the State
 Favoured or established by law in preference to others
 Fear that religious minorities will be throw to the wayside
 Fear/Contempt of Atheism
 Oaths of office
 Equal protection to christians, jews . . . Not atheists
 Atheists would not have repercussions for unsolved crimes, they don’t care if they aren't
caught, no divine punishment
 Baptists didn’t like to identify themselves
 Quakers didn’t pay taxes to their own churches
1776 Bill
Was suspension of taxe
Patrick Henry proposed pay taxes and pay all religions
Memorial in-remonstous
He won, and got jefferson's law for religious freedom passed
How do you explain his response to Hunington, that the people are just scared of the funding of one or a few
religions?
Anti-Federal Argument (religion and govt) - there should be any religion in the federal govt
 Huntington v. Madison

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  Huntington is from Ct
 There was an established religion, Congregational Church of Puritans, there were also Anglicans
 Thought the provision would make them like RI
 Madison
 Countered that the people did not want the Federal Govt to be like CT
 
Congress Passes a law saying that school days federally funded, will begin with a moment in which students may
take a moment to pray, but they don’t need to?
 Is Constitutional
 It's ok, there is no compulsion
 There is no forced way to worship
 Is not Constitutional
 Fed's should have nothing to do with religion, should not touch.
 Is designating a time to set up
 
What does "respecting the establishment of religion" mean?
 Madison's Objections Returned Bill 21 - Feb 23, 1811 - Page 4-15
 "Congress shall make no law respecting a religious establishment
 Bill establishes rules relative to the organization and policy of the church incorporated
 Bill vests authority to provide for the support and education of poor children
 Would be a precedent for religious societies public and civic duty.
 like a legal agency?
Respecting Establishment of Religion
 Maybe:
 Congress shall make no law doing anything that anyone might think is establishing religion
 Can't do anything to the States which have already established a religion
 Anti-federalists - feds. Should not stick their nose in state business
 
There are two religious clauses
 Anti-establishment clause
 Free exercise clause
Establishment includes articles of faith or modes of worship
 
Why do we need a free exercise clause??
Law that all prayers in English.
 Establishes a mode of worship
No house of worship may be built anywhere near ground zero
 Establishes or "touches" mode of worship
Cant do business on the Sabbath/Sunday?
 Some states had in their constitutions prohibition on establishment, but also had a recognized
Sabbath.
 NY had a blue law
 NY had no establishment clause
 NY had a free exercise clause (Const. 1777)
 Jews had a problem and were at a disadvantage/taxed on for observing a Saturday Sabbath
 Denied them equality with respect to Christians
 The law was passed
 Mr. Benson says another problem is that historically: this law had been found unconstitutional
in 1781 by the legislature.
 Dewitt - govt must respect the sanctity of confessional
 If you can tax the jews, you can tax catholics
 
Textual difference between NY free exercise and ours:
 Blue law and the textual difference

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  Confessional and textual difference
Is NY Sunday Closing Law compatible with the 1st Amendment
 Does not prohibit free exercise, makes it more expensive
 Jews have sabbath on Saturday, mandatory closing on Sunday sabbath
1s. Amend:
 No law . . . respecting the establishment religion
 No law . . . prohibiting the free exercise thereof
NY Const. Provision: 1777
 Free exercise and enjoyment of religious profession and worship, without discrimination or preference
 Liberty of Conscience shall not be construed to excuse practices inconsistent with the Peace and Safety
of the State
Differences
1. NY gives free exercise of religious profession and worship
2. NY has an Escape clause
 
Hypos:
Human Sacrifice/Communion
 Religious exercise that is part of the ceremony
Prohibition:
 No liquor in churches
 Designed to protect the peace and safety of the state
Peyote:
 Consumption is banned
No person may be simultaneously married to more than one person
 Is bigomy consistent with the peace and safety of the state
Religion: Women cannot show their faces, be educated, drive, speak publically, vote
 Law banning burqas, requiring education
 
Would it follow that because these are prohibitions, that these laws might be able to pass muster in NY, but the Fed.
couldn’t do them.
 Could law banning, sacrifice, polygamy, drinking of liquor be ok giving that it prohibits religious
"worship"
A. NY
 Escape clause
B. 1st Amend.
 Argue that the escape clause is implicit in the 1st amend.
 Can pass bigomy law
A. NY
 Marriage is not profession or worship
 It is an action not constituting worship, but you are doing for religious reasons
B. 1st Amend
 
Religiously motivated action which is not prayer; Quakers refused to fight
House Discussion of 2nd Amend. 1789
… no person, religiously scrupulous, shall be compelled to bear arms.
Senate strikes the language from the 2nd amend.
 
If free exercise says congress cannot stop you from doing religious things, why is this even a discussion.
 Why did Madison attempt to add the scrupulous language?
 Free exercise allows people to do things their religion commanded
 Free exercise may not allow religiously motivated secular act
There is an implicit peace and safety clause in the 1st amend.
 This is not a case to use the peace and safety to trump religion
 Way to CYA in case the first amendment wasn’t passed

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  States get to decide who is in a Militia, this may be a protection with respect to the states
 If we interpret "religion" in the 1st amend. narrowly (like NY) this wouldn’t be covered
 
Why did the senate delete "scruples" language?
 Didn’t need it
 Peace and safety
 We don’t want it covered
 
Religious people are entitled to exemptions for civil laws (i.e. drinking wine).
 Why wouldn’t that violate the establishment clause?
 Would lead to fraudulent religious practices (means to an ends)
 Is there a difference between preventing someone to do something and mandating someone do
something
 
Conscious Clause:
 Madison included no language on free exercise, but included language on conscience
 When the amendment goes to the Senate there are 3 clauses
 Establishment
 Free exercise
 Conscious
 NO state violate right of conscience
 Senate gets rid of both conscious clauses
What is the difference between free exercise and rights of conscious?
 Sounds like conscious speaks more to forcing people to do things
Do we have less Federal rights because of deletion of conscious clause?
 Depends on how you view the establishment clause
 Taxation for religious purpose
Madison thought that freedom of conscious would eliminate the taxing for religious purposes
 Would dis-establish the established religions in States (CT, MA, Etc)
 
Is the Conscious clause deleted because it is redundant or because it has a bite the reps. did not want it to have.
 No one says it is redundant
 Why is free exercise the solution?
VA senate did not like the amendment because it does not protect the right of conscious
 
Conundrums:
1. If the free exercise clause is really broad and if it includes the rights of conscious. How could the
House approved no state shall.
2. If the conscious clause is broad, then why do they need a free exercise clause.
3. If the establishment clause is broad, then how can a free exercise exemption be granted without
violating establishment.
 

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 Free Speech
Anti-federalist
What was the anti-federalist complaint that ultimately gave rise to the speech and press provisions of the 1st
amendment?
 Feds would suppress free speech and press
 Parliament Criminalized
 Writings criticizing the government, religion
 If you attack the church you are attacking the govt/king
 Monarchs are in a divine line, that is why god put them in power.
 It is the king's role to decide what virtue is
 If a person says something different is undermining virtue
 Includes scientific, political, etc. which is contrary to the church dogma
 No claim of divine right of kings; goal of government is protecting the virtue of the people
Federalist
How do the federalist respond?
 The Constitution did not grant power to the feds to do that.
Anti-fed Counter
 govt. could tax people out of existence
 Treaty - obligating the US to prevent nasty things from being said about a figurehead
 Fed counter- even if possible wouldn’t happen due to Congress is states
 Power to define crimes in DC and the territories
 
Anti-federalist - the States could protect virtue
 
Congress has the patent/copyright power
 Relates to press, cannot copy for profit
 
Monday: Finish Speech and Press
 What did freedom of press mean
 As colonies
 Afterwards
 What did various events tell us about what it was thought to mean
 
 
 Free Speech and Press Clauses
"Congress shall make no law abridging the freedom of speech and freedom of the press"
 
What did freedom of the press mean?
Prior to the revolution:
 No prior restraint on publication
 risk of libel, obscene libel, seditious libel, heresy/blasphemy, treason
 Treasonous in early English Common Law
US. Const.
Treason - levying war, giving aid and comfort to enemies, overt act
 This language comes from - English Statute
 Just writing, absent publishing cannot be deemed an overt act
What is treason against the US?
 Treason is a federal crime
Art. 3 Sec. 3 - envisions the federal government to define and punish treason even though there is no
enumerated right listed elsewhere in the const.
 
We get this view of English common law from
Blackstone Commentaries 1769
 

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What kind of prior restraint is there?
 Licensing/Censorship, and printed books needed to be approved
 
Why is no prior restraint a big deal?
 Jury must decide:
 Whether the material was printed by accused
 Judge decided
 Whether it was a criminal Matter
 
Why is the censor worse than the prospect of criminal liability
 The censor may be more narrow minded than the 12 judges who would hear the criminal matter
 1 tyrant is worse than multiple tyrants
 
You could not plead truth
 Jury would find you did not publish it because what you said was true
 Jurist belief in what is printed or political loyalty could determine the verdict
 
British common law, which did not recognize truth as a defense and jurors only decided facts of publication,
absence of prior restraint, subject to subsequent liability.
Was this the same in the colonies??
 Zenger trial
 Conducted before colonial courts and the legislature for breach of privilege
 
Is there any reason to think that the American understanding of freedom of the press changed or did not
change after the revolution?
 State trials?
 Jefferson believe that truth should be a defense - 1783
 Madison responded that it was an innovation, but needed thought - 1788
 Sees this as a change to American law, but was not ready to support it
 
When Madison introduces bill of rights
 He is not trying to pick innovative ideas
 He is trying to pick uncontroversial rights, so that there could be a ratification
 
Who else expressed an opinion on what freedom of the press meant prior to 1791
Ben Franklin
 Was not willing to trade freedom of saying true but slanderous against his right to have a good
reputation
John Adams to William Cushing (Chief Justice of Mass./1st Associate judge on Sup. Court/President of Mass
Convention) 1789
 Under the Const. is truth a defense?
 John Adams was the principle drafter of the BoR
 Replied it would be safest to introduce evidence of the truth and let a jury acquit
 Shows u that it is unclear what was proposed, and what was accepted
(A judge at the time would present Blackstone's law)
Respublica v. Oswald
 C.J. M'kean: Under the Penn. Const. the freedom of press is freedom from prior restraint,
subject to subsequent punishment
 Was #2 guy in Penn. Convention arguing for ratification
Penn. Convention: James Wilson
 There should be no antecdent restraint up on the liberty of the press, but that every authori si
responsibvle when he attackes the security or welfar of the govet. Or the safety, character, and
property of the individual
 

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1798 - The Sedition Act
 Truth is a defense
 Jury renders a general verdict (is it seditious?)
 Restricted the punishment
Did any Judges before Sedition Act cases
 Irdell said its ok with the constitution
 Chase
 State:
 Addison
 Danu
 
How could anyone in the US think that the Sedition Act was Unconstitutional?
Jefferson
Madison
 Congress did not have the power to make such a law
 1st amend does not grant any power
Marshal:
 There is an implied power to protect the country
 Article III has a grant of power to protect the country, an implied power to protect the
national existence.
1798 - The Sedition Act
 Truth is a defense
 Jury renders a general verdict (is it seditious?)
 Restricted the punishment
 
Federalist: Sedition Act is Constitutional
 Congress has inherent power because of inherent necessity of self-preservation
 
Why can't the states pass the legislation?
 Some states might support the seditious libelers
 See Marshall and others
 One cannot assume that individual stats will be on the same side of an idea as the Federal govt.
 
It is necessary for the Feds to regulate seditious libel because we cant trust the states to do it. If Congress did
not pass the statute, could Congress still prosecute seditious libel?
 Look to the common/case law of England
 The Fed. Supreme Court. would decide which case law to incorporate
 
Where would a federal court get jurisdiction to hear a seditious libel case?
 Look to article III
 Cases arising under the Constitution
 Implicit in the treason power - implicit power for the fed. govt. to protect itself
 Controversies to which the US shall be a party
 
In early years there was enormous controversy about whether Federal Courts had the authority to enforce
any aspect of common law crime.
 Common Law touches on almost everything
 If Fed. Courts can apply common law then either Congress could not change common law and we are
stuck with common/foreign law Or Congress could change common law and have unlimited power
 
Anti-Federalist/Madisonian response: If it is not in the enumerated power then congress can not pass any law
about the press except copyright. What about the common law prosecutions?
 Federal Govt. cannot prosecute seditious libel
 Case does not arise out of Constitution, there is no mention of seditious libel under the Const.

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  Legislature does not have power to prosecute/punish
 
Madison proposed an amendment that no State shall violate the freedom of press
 States could not punish seditious libel
 THEN: no one could
 
Why would anyone think that it is a good thing that no one can punish seditious libel?
 Subjective statements are not provable and are therefore not true or false
 Speculation of why the leaders are doing what they are doing
 If you cant say things that might make government officials look bad, then you cant run against them.
 How could you if you couldn’t say they were doing something wrong
 It allows us to tell govt. officials what we want (sometimes it is different from what they are doing)
 Freedom of the press as a structural check and balance on govt.
 Need to have in order to keep the govt honest
 Cornerstone of the democratic process and keep it functional
What about heresy and blasphemy?
 Get rid of it
 Who determines what is true or false about religion?
What about laws restraining publication of scientific material?
 Get rid of it
 Want a free exchange of information
 
Govt. Structure view is that we want the government to be in check
Utilitarian view is that we want a free exchange of information for cultural progress
Libertarian view people should be allowed to say these things because people have a right to express themselves,
and if they don’t like it they should take steps to avoid such things in their own life (don’t buy the book, turn off the
tv, etc.)
 
State Free Press Amendment passed in the House
 They likely did not have the same interpretation we have
 They weren't texttualists and mean different things by the same language
 
Madison 1800 - Free press in England does not mean the same thing in America
 The 1st amend is the whole about free press and speech
 Look to common experience of the voters to find the meaning of the phrase
 If you aspersing the private lives of people, then punishment is possible
 
What would have lead and American between, 1789 and 1791, to think that freedom of the press is freedom
from prior and subsequent restraint when the state and federal courts held that it was free press under
English common law?
 They were looking to the newspapers and other publications
 People were publishing without regard to consequences
 Look to the idea of liberty of the press not the particular applications
 
 
 
 

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 Assembly and Petition
No one in the ratification debates mentioned petition:
 
Why would anyone want the people to be allowed to assemble and petition the redress of grievances?
 Voters should be able to petition their elected officials
 So the elected officials represent the voters
 Petition is a structural position that in order for our representative democracy to function is for the
voters to tell elected officials what to do
 Suggests that non-voters have no right to petition
 Majoritarian Protection - petition replaces lack of information
 Minoritarian Protection - petition illuminates issues that the majority may not be opposed to
  
Republicanism
 Deference - respect and esteem
Representative Democratism
 Functional Structural
Lbiertarianism
 
MD proposed an amendment that everyman should have the right to petition
Madison proposed an amendment that the people should have the right to petition
Is "the people" a group or individuals?
 
Why is this clause necessary if Congress can abridge speech or press? What rights did petition add?
 Free speech and press allow us to say and print things
 But if we were to petition then we may get punished - Tyrants
 
Libel of the 7 bishops - lead to a special caveat of the English BoR
 immunity
 
 
Why wouldn’t free press/speech protect petition?
 English Common Law: Free press = free prior restraint
 
Absent the 1st amend how could congress feel it had the right to punish people for petitioning?
 Congress has Plenary powers over D.C. (at the time Congress was in NYC)
 Congress has the power to establish Post Offices and post roads
 Coupled with Necessary and Proper clause
 Petitions may be very volumous
 
Parliament could try individuals at the bar of parliament for seditious libel
 Petitions had to be respectful
Adams (Mass Proposed) - petitions had to be decent
Could congress punish someone for an indecent petition?
 
Things petitions needed to have:
Should it say in addition to petitioning that they should be able to instruct legislature
Objectors felt that the instructions were binding upon the legislature
 
If neither instructions or petitions are binding, then why the debate?
 Instructions gives orders
 Petition is a request
 Remonstrance is a display of dislike
 
The Right of Petition

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What does right of petition grant, beyond what is contained in speech and press?
 Right of petition grants immunity, you cannot be punished for what you write in your petition.
(suggests common law understanding of free press/speech)
 
Hypo:
Document submitted to congress: You had no authority constitutionally to pass Obamacare, and even if you did, it is
a stupid idea as a matter of policy. Could the authors be punished for its submission?
 This is not a formal petition
 Petitions have formatting requirements (Seven Bishops Case)
1. To whom its addressed
2.  
3. Why it should be done
4. Is the request
 This is a remonstrance
 
Does the petition clause, assuming it includes immunity, include remonstrance?
 No - a remonstrance is not a petition
 Yes
 We should consider it a petition
 People should be allowed to tell the legislature what they think because the legislature should be
responsive to the people
 Madison's Proposal
 Originally proposed right to petition and remonstrate; suggesting there is a difference
 Changed to
 To apply to the government for redress of grievances
 Final
 To petition the Government for a redress
Did they intend to Narrow it to only petition?
 No
 Instruction language was misleading to the people
 Madison - instruction means to bind the representative or a way to express your views.
The idea of petition includes instruction and presumably remonstrance
Why did they change apply to petition if they meant petition to include remonstrance and instructions? If they
didn’t mean to narrow, why did they shift from apply to petition?
 Apply did not put any propriety on application
 Presumably a person should be punished/ignored for abusive/disrespectful application
 
English BoR - Limited the Crown, not the Parliament
 
What about a disrespectful petition?
 Should be allowed, because Legislatures are subservient to the people
 As a matter of policy an abusive petition should not be punishable
 
What did the framers think about abusive petitions?
 Madison believed petitions should be respectful
 John Q. Adams would not read disrespectful/abusive petitions
 
Virginia Senate, when refusing to ratify, said it does not protect the right of instruction, only right of petition.
 A real concern or an attempt to call a second constitutional convention?
 
If someone files a proper petition, does Congress have to accept it or can they just disregard it.
 Presumptive duty to entertain the petition (that was the practice in the states and congress)
 Part of the electoral system
 Why would colonial legislatures read petitions when they may not have come from voters?

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  Republicanism/Corporate community - part of the legislature's moral duty is to take care of
everyone
Why shouldn’t we require that the govt. the read and consider every petition?
 Too onerous
 We do not want to micro-manage the legislature
 
Where would congress get the legal authority to not read a petition?
 Article I Sec. 5 - each house may determine the Rules of its Proceedings
 Rules under each house are not binding laws
 Is a rule, not a law and thus does not violate the 1st amendment
 If the right to petition includes a right to be considered, then the rule would be unconstitutional
 
Hypothetical Rule:
Part I
 We are not going to read them
Part II
 You cant send them
Part III
 We will punish people who send them
 
 

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Right of Assembly
Conceptually, what does assembly have to do with petition, why are they linked in the clause?
 Petitioners have the right to assemble to write the petition
Why would people think that the right to assemble to write a petition would be restricted?
 Mass. Govt. Act - 1774
 Restricted Town Meetings from assembling to for petitions
 Town meetings were petitioning and setting up committees of correspondence (John Adam's Brain
Child)
 (Continental Congress set up boycott of British Goods)
 British Coersive Acts
 Stopped local government from functioning; prohibited petition and remonstrancing
 Right of Petition lied with the Town Meeting
 Town Meeting were representative
 Individuals may have had their separate ideas
 
After the Revolution: was there anything to suggest that anyone in America thought that the right to assemble and
petition meant the right of the local elective bodies to meet and to petition the higher elected bodies? (Petition and
Assembly were the right of local government and not the people)
 Cushing: Regarding Shay's Rebellion 1786
 There are ad hoc county conventions petitioning the local representatives in the State Legislature
 The mob was picking the representatives to the county conventions to represent the town
 The county convention would petition to the general assembly
 Cushing claims the Assembly is local government. Local Govt. has the right to petition. Regards
this as a right of the political entity.
 
The 1st amendment give the right to the People
 
Are the rights to petition/assemble private or govt. rights?
From Monday:
Number of things to support proposition that the right to assemble and petition was only lodged in
governmental bodies, in which case that right would be part of the structure of government.
 
Was there anyone who thought that the right was not confined to governmental bodies, but was the
right to assemble and petition?
Anti Federalists
 Cushing: Regarding Shay's Rebellion 1786
 There are ad hoc county conventions petitioning the local representatives in the State
Legislature
 The mob was picking the representatives to the county conventions to represent the town
 The county convention would petition to the general assembly
 Cushing claims the Assembly is local government. Local Govt. has the right to petition.
Regards this as a right of the political entity.
 Continental Congress was an extra legal body (Declaration of Independence)
Mass Govt. Act - enacted to restrict the Mass Govt.;
Continental Assoc. - ban on British goods, was an extra-legal body
Why was it that the Continental Congress was ok, but Shay's Rebellion was not ok?
Cushing:
 The continental congress was ok, because there was no legal body to petition
 
Under the royal government extra-legal bodies might have been necessary, but not now when we have
representative Govts. The reason we don’t want meetings like `'s is fear of insurrection and treason.
 Shay thought that they had the right to assemble and petition, post revolution
If only legislative bodies had the right to assemble, then it follows that only the legislature had the right to
petition. What evidence is there that the right to petition is an individual right.

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  Militia's and other groups of people, individuals petitioned
 Madison
 Free speech is an individual right and it follows that free assembly/petition are individual
 Sedgwick
 Free speech and free assembly go hand in hand
If the right to speak and assembly are individual rights, then why did they reject MD language that
every man has the right to petition, and instead say "the people"?
 "the people" may refer to voters/land owners
 To avoid the slavery issue/language
What does "the people" mean?
 Before it was the political collective
 Here it means a collection of individuals
 

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 Second Amendment
What was the Problem that the anti-federalists saw with the un-amended constitution?
 Fear of a standing Army; the tool of a tyrant
 Militia traditionally protected the state from a tyrannical government, foreign invaders, internal
rebellions
 Without the second amendment Congress could disarm the militia
 Bad because the militia would be replaced by standing army
 
Libertarian - Protects Individuals/Civil Liberties
Federalism - Protect States
Structural - Protects "the People"
Republicanism - subordinate liberty to the common good/Civic Virtue
 
Historical Arguments:
Philadelphia Convention:
Mr. Gerry - Fed. power to negative state laws may enslave the states
VA State Convention
Mason:
 If you take away the Militia the people will have no defense
 The collective people
Penn Minority Proposal
 No law shall be passed disarming the people or any of them
NH Proposal
 Congress shall never disarm any citizen
What was the Federalist response?
 Congress' power to regulate and arm the Militia, there is no provision that the States could not. It is
not an exclusive power.
 States had power to choose officer's
 Danger's Of Congressional Power
 Congress has plenary authority in DC and Territories
 Could disarm people there
 Congress could disarm people through the Commerce Clause; stopping shipments
 Treaty Clause
 Taxing Clause
 Federal response it that it would never happen as the state elect the federal representatives
 
What would lead people believe that someone would disarm them?
 Charles II and James II attempted to disarm
 British attempted to disarm militias (Lexington and Concord)
 English government had disarmed the Irish Militias (1760's)
 
First Congress' initial response was our second amendment. There are roughly 6 or seven problems we must
think about in this amendment:
1. Several clauses: what is the relationship between the clauses?
2. What is a militia?
3. Who are "the people"?
4. What is "bearing arms"?
5. What is keeping "arms"?
i. What are "arms"?
6. What is "infringe" as opposed to violated, abridged, prohibiting, or respecting?
 
1. Clauses
a. A well regulated Militia, being necessary to the security of the free state
b. The right of the people to keep and bear arms, shall not be infringed
 What is the relationship:

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  First clause states the Purpose, the second clause states the Substance/Why
 Suggests that civil liberties is not important
 First states the Right, Second states an ancillary right
 First is the purpose of the right, the second is the right
 Clause 1 states "a" purpose (may be multiple, only stating one), 2nd states right
 Pick one because it is most significant
 Textual Argument: The only right that is mentioned in the amendment is the right to keep and bear
arms
 Penn Minority Proposal - Support of "a purpose" (multiple purposes)
 The people have right to defend themselves (individual or group)
 Right to kill game (individual, non militia)
 Rejection of Penn. and NH proposals
 Suggests that there was a single purpose (the militia)
2. Militia
3. The People
4. Bearing Arms
5. Keeping Arms
6. Infringe

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 Right to Bear Arms
 
Concern over what standing armies could do, remember Cromwell's army
 
1. Clauses
a. A well regulated Militia, being necessary to the security of the free state
b. The right of the people to keep and bear arms, shall not be infringed
 What is the relationship:
 First clause states the Purpose, the second clause states the Substance/Why
 Suggests that civil liberties is not important
 First states the Right, Second states an ancillary right
 First is the purpose of the right, the second is the right
 Clause 1 states "a" purpose (may be multiple, only stating one), 2nd states right
 Pick one because it is most significant
 Textual Argument: The only right that is mentioned in the amendment is the right to keep and bear
arms
 Penn Minority Proposal - Support of "a purpose" (multiple purposes)
 The people have right to defend themselves (individual or group)
 Right to kill game (individual, non militia)
 Rejection of Penn. and NH proposals
 Suggests that there was a single purpose (the militia)
2. Militia
3. The People
4. Bearing Arms
5. Keeping Arms
6. Infringe
 
Advantage of army during foreign invasions?
 Group of practiced/professional soldiers
Does it follow that we didn’t need any soldiers after the peace treaty with England?
 No, to quash/protect from Native Americans
 Militia members did not enjoy being far from home
 Why don’t settler's protect themselves?
 Settler's were farmers, they did not have the time to be both farmer and soldier
 
Federalist View: A standing army made us a "real" country militarily
 
Alternative to standing army is the militia
 What is a militia?
 State run group of armed citizens
 Special Militia v. Common/General Militia
 General - everyone (able bodied free man, except legislative exceptions) who is in the
age group
 Special - Volunteers, specially trained
 Wanted Young Men
 Rootless
 They are healthy/fit
 Spirited individuals
 What is the danger of the state taking young men to make up the militia
 They could be trained to go back and attack their own people
 
Who gets to decide whether the Militia is a General or Special Militia?
 Art I Sec. 8 - Organizing the Militia
Did anyone think congress had the power to organize the militia?

Page 22 of 61
House of Rep., Militia, Dec. 16,21 1790 - 7-121
 Discussion of creating an exemption from the militia for congress members
 Burke - It was contrary to the interest of the Militia to establish so many exemptions as had been
provided
By what right could congress not exclude "able-bodied"?
 2nd Amend - well regulated militia
 It would not be well regulated if it was full of people who shouldn't be serving
What if there was no Militia, the states on their own said: we no longer feel like organizing or
maintaining militias, so no more?
 2nd amendment was written to constrain the federal government
 Why would we want to disarm people?
 Lawless troublemakers
 Stop political opponents
 During Shay's Rebellion - political troublemakers were put down
 Supply our army
 During the Revolution - private guns were taken and given to the army
If we don’t have a militia, what kind of republican state are we?
 Un-virtuous State
 Tyrannical state leaders
 Non-republican state
In the Constitution: there is a guarantee to republican governance
 
Do we have a militia today?
 The National Guard
 What we have in practice is a special militia
 One could ask a number of questions about the anti-federalist complaints
 What would stop the National Guard from taking over?
 An army
 
The Right of the People:
Who are the People?
A. America Collectively
 Congress controls what happens with weapons
B. Militias
 General Militia
 The people are the militia
 Special Militia
 If the federal government disarms the people, then it makes it impossible/difficult
to raise a functional militia
C. Individual State Citizens
 So the states will be able to draw upon an experienced group of weapon users in the
creation of a militia
 Militia is example; bear arms the right
 Didn’t mention others because we didn’t have to
 Didn’t mention others because they are natural rights (defense and eating)
 9th amendment states that enumerative rights are not exhaustive
 You do not necessarily need the 2nd amendment to overcome gun
control
What is bearing arms?
 To use arms to protect the state (military context)
 Exceptions from Militia for Quakers who were scrupulous about bearing arms (not using arms)
What is keeping arms?
 The right of the individual person to
 Militia right to stockpile arms

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  The individual right to possess/be in physical custody arms
 
Remaining Questions
1. What are arms?
2. With respect to who's right is this; what do we make of colonial laws that allowed confiscation by local
governments?

Page 24 of 61
 Second Amendment:
Bellesiles Article - Pg. 7-146:
In theory why might colonial law be of interest to us?
 Would inform us about the meaning of the phrase to keep and bear arms
 Would show us the kinds of rights that the states recognized
Why is it relevant to the construction of the Federal Constitutional?
 States VA and CT had similar language to the Federal Constitution
Why is this a problem with choice of VA and CT as the most closely to examine?
 CT did not have a clause in its constitution (operated under a colonial charter, as did RI)
 VA did not have a "keep and bear arms" clause
How is CT and VA relevant to 2nd Amendment Discussion?
 Not everyone thought there was an inviolable individual right to keep and bear arms
 These represent ideas of what the federal government shouldn’t be able to do
 Bellesiles: took evidence and looked to all the possible significance it might have; an objective
analysis
 
We need militia to protect us as a preliminary manner, the states from federal oppression or from external enemies.
What are arms?
 Guns, Cannons, Missiles, Nuclear Weapons?
  
Blackstone: Right of the subject of having arms for their defense, suitable to their condition and degree, and such as
are allowed by law
 

Page 25 of 61
 Third Amendment:
Thinking about its relation to the 2nd, how does the thirds fit in and relate to the second?
 Limits the size of the standing army to what the federal government can support
 Civil government should be in control of the military
 Fear that a standing army, quartered, should lead to military control of the civilian
Third amendment is linked to the 4th?
 No one in the house to infringe on persons, papers, houses, effects
 

Page 26 of 61
 Fourth Amendment:
Why where the founders concerned with searches and seizures?
 They had been subject to Writs of Assistance and General Warrants
Writs of Assistance
 Used mostly in custom/tax cases
 Continuous license and authority to search for un-customed goods to collect import taxes
 Issued by Court of Exchequer
 Also by colonial courts
 Good for the life of the sovereign
 Expired 6 months after the death of a sovereign, for news to spread
 Authorized to search at will for un-customed goods and break open anything suspect and seize un-
customed goods
 Actionable recourse:
 Liability in civil court (1769)
 OTIS: No liability in civil court
Where were they controversial? Why?
 In the Colonies:
 The writs being issued were issued by colonial courts, not issued by Court of Exchequer
and therefore unauthorized to do so by Parliament
 The colonists had no representation in tax matters
 Why not in England:
  
General Warrants
 Used in many cases (seditious libel)
 Issued by the secretary of state
 Find suspected seditious libelers and all their papers and bring them to the Secretary of State
 Gives authority until arrest
 Wilkes Case:
 England
 Why is there a controversy to use general warrants in seditious libel cases?
 There was no act of parliament
 
 
 
 
Lets say congress passed a law authorizing customs agents to enter homes in search of uncustomed goods
whenever they have Probable Cause to believe that uncustomed goods are present.
 This is no good; it is an unreasonable search
 William Rawle, First US Attorney in Penn. 1825 (Page 9-57)
 The fourth amendment means that before a search and seizure can be made a warrant must be
obtained
 Phili was a port city, there were a lot of custom related crimes that were prosecuted
 St. George Tucker, 1791 (Page 9-55a)
 No warrant shall issue, but first, upon probable cause -
 All other searches or seizures, except as are thus authorized, are therefore unreasonable and
unconstitutional.
 Common Law (See Blackstone, 1769, 1768 - 242)
 Home is a castle of defense and asylum
 Requires a magistrate to issue a warrant to enter a home
 the person who requested the warrant (alleged the suspicion) would be liable if nothing was found
 Reasonableness is found in the common law.
 
 
Proposal was originally 1 Clause:

Page 27 of 61
  Proposal by Madison in House, June 8, 1789 - 223
 This proposal is banning General Warrants
 Need PC, oath or affirmation, and particulars
 
 
Why was there a concern about general warrants if the bottom line scenario is that he person who applied for
the warrant is liable if nothing is found?
 We don’t want the invasion in the first place
 Tyrannical Oppression
 General Warrants
 The magistrate does not give specific directions
 The accuser is the person executing the warrant (under order, which involves no judgment)
 
Why doesn’t any contemporary constitution say you need a warrant?
 They assumed they needed a warrant
 Common Law in addition to the warrant provisions (describing what does a warrant need)
In this light the warrant is the friend of the accused/home owner and not the friend of authority/searcher
 
 
Something Something Law passed by Congress:
When ships came into harbor, immediately upon entry into harbor, the customs officers could examine them
to determine what goods were on them.
 Boat is not a house
 Boat may be an effect
Why don’t/shouldn’t boats get the same protection as your house (even if you live on it)?
 A boat is not your castle
 At common law doesn’t govern boats; admiralty law governs boats
 It is international law (the seas belong to everyone)
 Its actually Roman law
 The boat crossed the border?
 It is more reasonable to search things coming into the country
 We have a sovereign right to preclude people from coming into our country
If your boat is on purely domestic water, not navigable by ocean going vessels; should you need a warrant?
 yes
 
There are three different way that one could process the boat cases:
1. Boarder cases
2. Boats are governed by admiralty law
3. A boat can leave by the time a warrant is issued
 
The Excise Act of 1791
 People engaged in commerce (import trade), designated area where they keep their imported goods;
customs agents could search without a warrant for uncustomed goods. How do we explain/distinguish?
 Commercial Portion of Premise v. Non-Commercial Portion of Premise
 Commercial premises are more open to the public
 Non-commercial premise are not readily open to the public
 
Rawle and Tucker have said you need a warrant period. Are they wrong?
 No:
 Tucker (9-55a)
 The clause does not repeal the common law principle that sometimes you don’t need a warrant
Hypo:
Law passed saying that It is ok for a constable in DC to arrest someone without a warrant when that person has just
committed a murder in front of that constable. Is this Constitutional/OK

Page 28 of 61
  Tucker (9-55a)
 At common law anyone has the authority to arrest any felon if they were present when the felony
was committed
 
Hypo:
We hereby empower constables in DC to arrest anyone without a warrant if they have probable cause to believe that
that person has committed a murder.
 Would violate the fourth amendment
 Thomas Davies - Page 9-159 (see page 9-171)
 At common law the only time a warrantless arrest could take place are:
 Any crime committed in presence
 If the person who was arrested actually committed a felony
 A felony was actually committed and the officer has reasonable cause to believe the person
arrested committed it. (different than probable cause)
 
Airport Security?
 Not using reasonable as defined in the common law
1. Reasonableness is whatever we think is reasonable
2. It doesn’t say that reasonableness is the common law
 Non-lawyers do not equate reasonableness to the common law
3. There were no police when the amendment was passed
 The founding fathers didn’t think about it
 The police are like a standing army
 Law enforcement was done by the people/like the militia
 
The exclusionary rule:
 Was not sanctioned at common law
 Wilkes attempted to exclude evidence, due to the way it was obtained, before the House
 Frisbee Case
 Attacks conviction on the grounds that the evidence was obtained by a general warrant
 Court did not dismiss the argument as invalid, simply stated that they did not need to decide on it
because . . .
 The fact that exclusion wasn’t done then doesn’t mean it cant be done now.
 Civil Liability for Unreasonable Searches
 Then (hierarchical system)
 Juries would sympathize with the victim of an unreasonable search
 Today
 Juries would unlikely to sympathize with the accused

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Grand Juries:
 
Anti-Federalist Complaint: There was not protection for grand jury indictment in criminal cases.
 
18th Century - a prosecutor was the private person who brought the initial complaint
 Who was also a witness
 
Grand Jury Indictment - filed by the grand jury
Information - Filed by the prosecuting attorney by the court
Presentment - filed by a grand jury on its own initiative
 
Where does the fear of information come from?
The Inquisition, the Star Chamber, and Admiralty Courts
1. Admiralty Courts
 Hearing forfeiture claims under tax laws
 Adjudicating prize claims
 Where piracy trials occurred
2. Star Chamber
 Became unpopular around 1640
3. Inquisition
 Used criminal prosecutions as a weapon against political rivals
 
Federalist Response:
1. Would not happen because they would get voted out.
 Mass constitution did not have a provision
2. No, that is not true (foreign spectator)
 Article 3 Sec. 2 - Mandates Trial by Jury
 Includes mandate of grand jury and petit jury
 
In which cases do you get a right to being protected a government initiated prosecution?
 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; . . .
 
Madison proposed:
Criminal Trial - impartial Juror - goes to 5th
 Military exception moved to grand jury clause
Grand Jury - essential preliminary - goes to 6th
Civil Juries - goes to 7th
"Crimes punishable by loss of life or member" does not make it
"Capital or otherwise infamous crime"
 Implies capital crimes are infamous
 Look to the punishment to determine if crimes are infamous
 Infamous means public punishment/shame
 See page CH. 19 page 12
 Whipping
 Hard labor
 Dunking stool
 Slitting the nostrils
 Branding
 CH 11 Page 20-21
 Pilary
 Suggests that there is a monetary line between infamous and non-infamous crimes/punishments
 

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In light of the Foreign Spectator's view it seems that this provision mandates less grand juries than then Article III
allowed
 
There are some cases where you have a right to a grand jury
What is their Job?
 To investigate and charge individuals of a crime
How does the grand jury do that job?
 Have to hear the evidence
 Weigh the evidence
What evidence are they supposed to hear?
 Witness testimony
 Prosecutor (private person) would initiate criminal charges by going to a magistrate and applying for
an arrest and search warrant
 Would have presented witnesses before the magistrate to secure his warrants and said witnesses
were bound to be heard before the grand jury
 Prosecuting attorney or the Magistrate's clerk would give indictments (with witnesses) to the grand
jury
 Only hears the prosecutors side
Possibility of Being Framed:
What safeguard is that?
 They can ask questions
 There is legal ramifications for lying to the grand jury
Why not let them hear both sides?
 Is this different from a trial?
 Defendant is not there, there is no public
 
Possible Rules:
1. Hear only prosecutor
2. Hear both
3. Hear what they want to hear
 Including who they do not want to hear
 
There is disagreement among the judges of the time as to which rule was correct
Respublica v. Shaffer, 1788 - 294
 Chief justice of Penn. (McKean) holds that the grand jury cannot hear the accused witnesses
Wilson, Lectures on Law
 Member of US Supreme Court
 Was also a trial judge who gave instructions to grand juries
 Felt it was too restrictive
 
How convinced does the weigher have to be to issue an indictment?
There is a conflict as to how persuaded the grand jury needs to be to indict
 Blackstone:
 Thoroughly persuaded (beyond a reasonable doubt?)
 If you only hear one side and it is still questionable, then what is the point of having a trial?
 Why charge if you cannot convict
 Wilson:
 Need probable cause
a. It is not a conviction, it is an accusation
b. If you use conviction standard, then trial jury will believe job is already done
 
Hypothetical:
Following are true:

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  The printer who is charge with seditious libel that that person printed an article saying nasty things
about the pres.
 Does the grand jury have to Indict if the facts on the information?
No: During the revolution we were under the oppression of tyranny
 Not true today; we can vote our leaders out and are not under tyrannical control
 
Although the prosecuting atty. for Kentucky (Davies), said he had been in the grand jury room during questioning.
Judges all said they have never heard of this happening.
 
What was anti-federalist the fear?
 That there could be more than one trial/punishment for the same offense
Why is that bad?
 Initially Acquitted; Which trial is more correct?
 Accuracy?
 new trials, and wrongful convictions
 Bad faith behavior?
 Inconvenience of the charges
 after retrial, witnesses may die
 Previous testimony was inadmissible as hearsay (no transcript)
 Initially Convicted
 Multiple punishments for the same act
Goals:
1. Prevent Wrongful conviction
2. Prevent Costs and Hazards associated with trial
3. Separation of Powers:
 Legislature delegation to Judiciary/Executive Punishments
 Multiple Punishments
 
Amendment should ban multiple punishments and multiple trials
 This is what Madison's proposal purported to do
Problem:
 If it when up on appeal, it couldn't be retried
 Government response would be to not give appeals
 Only legal redress for wrongful conviction would be to request a pardon
 
Madison's "more than one trial or more than one" is replaced in the Senate:
 And substitute "be twice put in jeopardy of life or limb by any public prosecution"
 Language from Blackstone:
 Common law maxim: that no man is to be brought in jeopardy of his life more than once for the
same offence
 
Hypo:
Smith is charged with manslaughter, acquitted, would Blackstone, agree that he could be indicted for murder
 No, it was his example that he could not. (also see 1591 King's Bench)
What is the relation between the principle and the language it expressed
 The principle is broader than the language
The 5th Amendment has the same principle as the Common law
 Benson
 thinks the 5th amendment is about the common law
 Livermore (during 1st Congress)
 that the clause is proper in conjunction with the common law principle
Why did they include the "or limb" language?
 If the principle was not defined by the language, why add "or limb"?
 Excludes imprisonment

Page 32 of 61
  
You cant be put in jeopardy of life or limb for the same offence. When are two prosecutions actually for the
same offence?
 
Hypo:
Trial 1: Tried and acquitted of murder
Trial 2: Tried for manslaughter
Are murder and manslaughter the same offense?
 Under the common law they are the same offence
 1591 King's Bench
 If a man commits murder, and is indicted and convicted or acquitted of manslaughter, he shall
never answer to any indictment of the same death, even though murder requires different
 Yes, they are the same criminal "act" - death of a person
 
If the two offenses include the same act (killing/assault) then they are the same offense
 If there is a unique element to each offense that the other does not, are they not the same?
Blackstone tells us that manslaughter and murder are the same offence, but he does not tell us why.
 They did not have the number of crimes (or breakdown of crimes) that we have today
 
Hypo:
Someone in CT shoots another in NY. He is indicted and acquitted in CT. He is then indicted in NY. Moves
to strike second indictment because of double jeopardy.
 Assume each state used the double jeopardy restriction
 NY would argue, that he has been prosecuted not in NY, not by NY law.
 Look to the common law:
 Cassell, "The Rodney King Trials and the Double Jeopardy Clause"
 Foreign determinations are binding upon others
 Benson: The same simple act cannot be an offence against the United States, and also an offence
against the State, so as to be punishable by both.
 This should be logically impossible
 Is unsure what principle would divide the federal and state offenses
 
MODERN COMMON LAW: Different Jurisdiction, Double Jeopardy does not apply
 
Mistrial is neither an acquittal or conviction
 Look to British Common Law
 That you may sometimes retry after a mistrial
 When it is necessary for public justice
 Decided by the Judge
At what point does jeopardy Begin?
 Generally it does not attach until the trial starts
5th Amendment: Right against compelled self-incrimination
 
Anti-Federalist Fear:
 Fear of torture/Tyrannical government
 Done before, during the Inquisition
 
Spanish Inquisition:
Church and State were the same
 
How the Inquisition Worked:
 Accusation
 Person had to swear an Oath Ex Officio
 Had to swear to tell the truth

Page 33 of 61
 
The inquisitors were trying to discover heresy.
 Made people swear an oath
 Oaths made before god
 Heretics were the only people who know
 
Blasphemy is using the lords name in vain
Heresy is belief in something
 
What problem does the oath create?
 Violate oath and punishment in hell
 Tell truth and be killed
 Lie
(in US, until after 1800's, if you did no believe in God or After Life you were forbidden to take an oath or be a
witness)
 
What is the problem for the heretic?
 Both choices are bad
 Hell is bad
 Being killed is bad
 
The only safe out is to refuse to take the oath, on the ground that you shouldn’t be forced to betray yourself
 
If you didn’t take an oath, then the default rule was that if you said nothing, it was an admission.
 
The oath itself is a form of torture.
 
Why would anyone use physical torture?
 To get information about other people
 To get other information
 
The First Amendment basically, cant establish religion/have an inquisition, why would anyone think that any
further protection of this sort is needed
 Inquisitions were not always about religion
 Star Chamber
 Other prerogative courts
 Where the courts derived their procedure (inquisitional instead of adversarial) from?
 Roman Law
 Used in admiralty law
For what purpose might the federal government use inquisitorial methods?
 Treason, Sedition,
 
Dawes (Mass Ratification):
There was nothing to prevent Congress from presuming accused are guilty
 
What is wrong with forcing people to take an oath and answer questions honestly if the questions concern
themselves? Why shouldn’t normal subpoena apply to a suspect?
 Its unfair
 Highest Moral Principle is Self Preservation - Life
 
Case of Aaron Burr
 Witness is subpoenaed
 Want to ask if he understands the code
 How do you determine if he has a valid 5th amendment claim

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  Marshal says we cannot just ask him what his truthful answer would be before a 5th amendment
determination
 It would violate the privacy of thought
 
What was the response of the Federalists?
 Right to jury includes ancillary rights
 Following British Common Law procedures
 
Self-Preservation: What about loss of money? Fines?
 You are still being "slimed"
 Logic is that self-inflicted wounds may be monetary
 Some courts held that witnesses/parties shouldn’t have to answer questions that would expose them to
disgrace
 

Page 35 of 61
 5th Amendment:
"nor shall be compelled in any criminal case to be a witness against himself"
What is a witness?
 A person who testifies
 Testimony is a statement under oath
 A person who "gives evidence"
 Tucker says this is the meaning
 Mason - VA bill of rights
 Most state constitutions
 Asked for this language
Lawrence Aug 17, 1789 (330)
 Clause is a general declaration
 Refers to the clause as having "giving evidence" meaning
 
Preliminary Hearing:
 Accused is brought before magistrate to determine PC
 Setting Bail if applicable
 
Why did we not use the language "give evidence"?
 To give Congruency to the meaning of Witness
 6th amendment Rights
 Confront witnesses
 Compulsory Process of Witness
 Real evidence is not a person, nor is it testimony
 US v. Burr
 Subpoena on Pres. Jefferson's papers
 Marshall held that to construe witness as meaning testimony would be inconsistent with
the constitution
 
A magistrate in a preliminary hearing could not force the accused to answer an incriminating question, but allows
the accused to answer.
 Silence could be used against you at Trial
 Is this another form of compulsion
 Tell the jury and the accused that there can be no inferences made about silence at trial
 
5th Amendment Due Process
"nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken
for public use, without just compensation."
 
Anti-Federalist Complaint
 Impartial Examiner
 They were fearful of arbitrary government injury to life, liberty, and property of citizens contrary
to the law of the land
 Law of the land and due process were interchangeable in the Magna Carta
 Cant take life livery or property except judgment of peers or law of the land
 The Federal Farmer, No 16
 Inestimable rights of the people of the United States are entitled to, even in judicial proceedings,
by the course of the common law
 No person shall be exiled or molested in his person or effects, otherwise than by the judgment of
his peers, or according to the laws of the land
 Fear that Congress would be the bad guy
What does it mean?
 Federal farmer thinks it is the whole point of political society
 

Page 36 of 61
 Federalist Response
 Acts of congress are included the law of the land
 
Complaint
Loss of life, liberty, and property outside the law of the land is not fair
 Democratic process - laws making power given to the legislature
 Rules outside of legislature undermines Democracy/electoral process
 Desire to live under a government of law
Government Protects - life, liberty, and property (LLP)
 We enter society to preserve LLP
 
What is Law of the Land?
 Coke ("Cook") - 1641
 Common Law, Statue, or Custom of England
What is Due Process?
 Coke ("Cook") - 1641
 Indictment or presentment or writ original to common law
 A writ is an order
 Writ Original - outlined the form of action
 Writ to commence a case
 Civil cases
 Attachment: initiate trial, allowed for arrest
 Writ of Assistance
 Issued by exchequer
 Criminal process
Process of Law
 What a process server serves
 Suit by X regarding Y matter
 Initial steps taken to initiate proceding
Course of Law
 The procedure
 Process of law is two fold
1. King's Writ
 Civil
2. Due proceeding, and warrant, either in deed or in law without writ
 Criminal
 Search Warrant
 Warrant to Seize
 Warrantless seizure
 Writs Original seem to include
 Warrants
 Legitimate warrantless
 Under the common law
 
Coke - Dr. Bohnam's Case
 Government is restricted by the laws of nature and reason
 
 Highest Court of England is the House of Lords
 In England parliament is sovereign (conversely in US the people are)
Blackstone
 Insisted that Parliament could command anything without limits
 
 
17th century view

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  We cant take your LLP without jury trial and/or without indictment, presentment, or Writ Original
 
Anyone (other than Coke) who thought people should be protected from arbitrary taking of LLP
outside the law? Substantive Law:
 John Jay - 1800 (13-31)
 Feared NY legislature would pass private bills
 They may be coming close to violating principle that we are supposed to be governed by a
generally applicable law
 Believes "law of the land" has a substantive meaning
 Fear of Bills of Attainder
 Statute crafted specifically to an individual
 State/Colonial Laws and Const
 Many included language amounting to the (actual/express) laws of the state/province
 
Why doesn’t Madison use the language of the law of the land?
 Congress cannot change procedural law
Hamilton
 Says Due process is about procedure
Due process covers
 Warrantless arrests
 Civil proceedings (attachment)
 And warranted seizures
 
 
If they wanted to use a broad meaning (greater than process) why didn’t they say "by the laws of the
land"? Why did they choose the narrower word's due process?
 The Constitution is the Law of the Land
 Law of the land means you have to use the common processes used in Common Law of England
 With exceptions - Admiralty Law
 May restrict the legislature from applying different laws to different people
That data points in different directions
 Cases end up speaking to judicial procedure
 Exception - Candle-making case
Hamilton and Jay are in disagreement

Page 38 of 61
 Takings Clause:
"nor shall private property be taken for public use, without just compensation."
Anti-Federalist:
 The government would take property for public use without compensation
 Federal Farmer
Federalist:
 Jay and Tucker complained about war time takings
 
Why were there complaints about property taking without compensation?
 Federalist: Wartime takings
 Section 8, Clause 17: Authority over places purchased or ceded
 Legislature can create Forts, magazines, arsenals, dock-yards and other needful buildings
 Section 8, Clause 8: Post offices and Post Roads
 Congress can create post roads
 
Why would anyone think that a non-tyrannical government would take land for roads without
compensation?
 Most had provision that undeveloped land could be take to create roads
 The people as a whole are sovereign
 Land and self are subordinate to the common good
 republicanism - you owe your property and self to the greater good
What does the fact that Madison proposed this provision tell us about him?
 He was not a true republican
 That he was a libertarian (18th century liberal)
Is there anyway that a economically trained republican (who believe more in the common good) might make
that takings should be compensated?
 The danger of being able to take property without compensating
 We might become wasteful by taking things we do not need if we don’t compensate for what we take
 
What is property?
 State law determines who owns what
What other function does the provision actually serve?
 Leaves power to the states
 Constitution does not give power to Congress to change the law of property in the states
 Federalism provision, designed to protect the states rights to regulate property
 
Hypo:
Congressional provision: No one has a right to own anything on the moon, even if it is the product of their own
works?
 Would be Unconstitutional
 Look to Natural Law
 If there is a natural law right to your property, and it is somehow cognizable as superior to statutory
enactment, that would be the only place to look because there is no state law.
 
Provision may be based:
 Natural laws
 Liberal views
 Economically minded republican view
 
 

Page 39 of 61
 Speedy Trial, Public Trial, and Information Clauses of the Sixth Amendment
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district where in the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence."
 
Why was a speedy trial clause requested?
 Fear that a trial would be delayed as not to give a defendant a chance to clear his name
Was this a concern a response to some pre-revolutionary controversy? Which?
 No, not a response to any pre-revolutionary war controversy
 
Writ of Habeas Corpus (existed in England)
 If you were not tried at the first available court you were to be released unless the crown could show
that they were waiting for a witness
Article I of the Constitution says that Writ of Habeas Corpus could not be suspended . .. why would anyone
have thought that we need a speedy trial clause?
 The clause does not tell you when to issue the writ of habeas corpus
 When you don’t get a speedy trial
Why are we concerned about whether someone gets a speedy trial?
 They could hold you indefinitely
 Hold you without trial, side steps the right to jury
 Secret Indictments could be gotten against everyone
 To preserve the state statue of limitations (pre-charge delay)
 Habeas Corpus act did not refer to pre-indictment delay
 Right occur when you have been legally accused of something
Provision does not seem to be about the accuracy of judicial outcomes
 
Public Trial

Star Chamber
 Trial itself was not in camera, it was in public
Spanish Inquisition
 Had secret trial
Why are private trials bad?
It may be unreliable
 Torture does not lead to reliable results
It may seem/be unfair
 They might try to screw someone over
Individuals may be willing to say something in private that they wouldn't in public
 Preservation of character
 Preservation of life (against the mob)
Federalist Response
 Public trial is included in trial by jury
 Foreign Spectator
 Continental Congress in letter to Quebec
 
Information Clause
What the concern underlying this clause?
 Want to be able to prepare a defense
Theory was that a surprise trial would create accurate testimony/outcome
Under the Common law when did the Defendant learn of the accusation?
 After a person identifies as the accused
 Then is read the indictment

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Why do you need to hear the indictment?
 You were at the preliminary hearing
 This is what you may have been charged with
 Indictment is what you are now being charged with
Does the Information Clause on its face change the common law practices (you don’t get a copy of your
indictment/you don’t get to hear the indictment until trial)?
 no
 Mass. State Const.
 No person shall be held to answer until the charge is fully . . . described to him
Even thought the 6th doesn’t say so, is that what it means?
 Logically in order to effectuate the speedy trial clause and subpoena witnesses in a timely way, it
necessary to be informed of the charge in a timely way
 Based on the 6th amendment as a whole
What does the Punishment of Crimes Act of 1790 say about the 6th amendment?
 British common law is unchanged, and this provision applies to non-capital cases
 Look to see what the courts did in non-capital cases
 Sixth amendment abandons the common law, but does not clarify how soon things need to be turned
over
 Look to see what state courts did
 If the state courts rejected the British Common law, then the founders may have been looking to
domestic law instead of foreign law
 If the 6th amendment would change, it had not been/may never be ratified
 
 
You are supposed to be told the Nature and the Cause of the allegation
Habeas Corpus requires the disclosure of the cause
 Has to state the crime for which you are held
What is the Nature of the charge?
 The names of the witnesses?
 The names of the jurors?

Page 41 of 61
 Confrontation, Compel Witnesses, Counsel Clauses
As a whole:
 
"In all criminal prosecutions, the accused shall enjoy the right to a . . . to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence. "
 
They all allow the presentation of the a Defendant's case.
Gives the defendant equal footing.
Prosecuting attorney could call witnesses and cross examine defense witnesses
 
Who would think that defendant's could not think defendant's could not have a lawyer of their own, not call
witnesses, etc.?
 English Common Law
 No right to attorney in felony cases
 
These clauses could be a rejection of the British Common Law
These clauses could be an acceptance of State Laws
These clauses could be a leveling of the playing field
 
Did the British Common Law apply in America prior to the Revolution?
 No
 As early as the 17-teens many colonies statutorily authorized lawyers
 
Motivations of:
1. Accuracy
 Finding the truth
2. Fairness
 Liberty to defend one's self
3. Adversarial
 As opposed to Inquisitorial Trials
 
Confrontation Clause:
What was the concern behind the confrontation clause?
 Depositions
 Hearsay
 Accuracy
 
Confrontation:
1. Meet face-to-face
 Belief that it is harder to make a false accusation to someone's face
 Cannot do this with depositions
2. Other Witnesses
 NC 1776 - to confront accusers "with other testimony"
3. Cross Examine
 
Who would have thought to use depositions, as opposed to live testimony, in criminal trials?
 In England
 Walter Rawley Trial 1603
Why do a trial by deposition?
 May be more accurate
 Don’t need to wait for witnesses
Why not?
 Confrontation - truth

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  demeanor
If we give the defendant the power to subpoena (witnesses deposed)?
 Did not have the right to subpoena witnesses
 The witness could die
 Was the affidavit/deposition admissible?
 No, no chance to confront
 
Lets say, there is no other evidence, just a deposition/affidavit left by dead witness. The witness to the event
believed in afterlife.
 If we exclude
 No trial
 If we allow
 Trial, more conducive to finding the truth
 
Trial by Deposition was no longer allowed in England before the Revolution.
 
Hearsay:
Dying Declarations:
 Admissible because the person has the fear of hell
 
Have a right to confront witnesses against you
Witness
 Someone who provides testimony
Testimony
 Sworn statement
 
You can confront the witness who is giving hearsay.
Declarant would be an accuser, not a witness
 NC 1776
 In every criminal prosecutions . . . everyman has right to confront accusers and witnesses
 VA DoR
 In every criminal prosecutions . . . everyman has right to be confronted with accusers and
witnesses
 
As stated above witness does not include accuser and hearsay is includable
 
If witness is someone who gives evidence
 Hearsay 2 witnesses
1. Witness is Declarant
2. Witness is giver of hearsay
Excluding hearsay was not evidentiary, but constitutional
 No one complained that there was no accuser language
 John Marshal: Aaron Burr's Case
 what's the point of confrontation if hearsay is admissible
 Confrontation clause bans hearsay
 Exception for dying declarations in murder cases
 
 
Compulsion of Process of Witness
 What if the defendant subpoenaed himself?
 Under common law a defendant could not take an oath
 The government could not call the defendant either
 
Counsel:

Page 43 of 61
Rejects British Common law
Where would congress get the authority to say that defendant's cant be represented by lawyers?
 Congress has rights to set up courts and has power to make laws necessary and proper to the powers
vested in the Judicial Branch
If it is a poor defendant
 The court has a duty to appoint
 Defendant gets 2 lawyers of his choice
 
 
 
Anti-Federalist
A. A Countryman, No. 2 - 454
1. There is authority enough lodged in the proposed federal congress , if abused to do the greatest
injury
2. Or to propose to add to it a provision that a trial by jury shall in no case be omitted
B. Article I, Section 8
1. Clause 9: Inferior Tribunals
 To constitute tribunals inferior to the Supreme Court
C. Article II, Section 2
1. Clause 2: Jurisdiction of the SC
 … the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with
such Exceptions, and under such Regulations as the Congress shall make
2. Clause 3: Trial by Jury
 The trial of all Crimes . . . Shall be by Jury
 Such trial shall be held in the state where said crimes shall have been committed

Page 44 of 61
 Criminal Juries:
Federal Prosecutions - the US or whole state is the victim
 
Anti-Federalist Complaints:
1. Could be tried away from the vicinage of the crime, at the other end of the state
a. Prosecutorial Forum Shopping
 Far from home
 Lack of character witnesses
 Have to travel - time and cost
 Have to stay somewhere away from home (monetary cost)
 Before strangers
 Far from your witnesses
 Witnesses may not be able to get there
 Could get deposition with agreement with prosecutor
 Live witnesses are more compelling than a depo
 Prosecute in front of jury not where the crime was committed
 Jurors may have intimate knowledge of crime/crime scene
 Conversely: If the jurors are witnesses they may be biased
b. Costly and inconvenient for the Defendant and his witnesses
c. Possibility of inaccurate verdicts
 
Vicinage Rule:
 Tells where does the jury pool come from
Venue Rule
 Tells where does the trial get held
Article III specifically addressed the Venue
Assumption that the venue and the vicinage were the same
Jury and trial were taken from/at the same place
 
VA - did not assume that they were the same
 Major crimes were tried in Richmond
 Juries brought in from where the crime occurred
 
Blackstone:
Judges of Azzie were roaming judges who heard cases before local juries
 
Virginia included Kentucky and W. Virginia, it was a huge state. It was not practicable to bring judges to localities.
 
If trial is to occur in the vicinity of the crime.
 Pendleton reply to Patrick Henry in VA convention:
 Does not solve the far from home complaint
 
Federal Response to claim of shipping criminals for trials:
 Congress wouldn’t allow it
 Legislatures were accountable to the people and if the people didn’t like it they would vote out
inactive legislatures
Madison In first Congress
 Proposes to strikes out venue of Art III and replace with vicinage
 Creates no venue requirement - could have trial anywhere
 Livermore wanted to make the venue the state
 Was adopted? But not included - see newspaper reports on 389
 Madison's proposal to change Art III was not accepted
 
What happened to request that juries be drawn from Vicinage?

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  Did not make it "the vicinage"
 6th amendment Jury must come from the State and District where the crime occurred
 Biggest vicinage was the state
 Many of the states had their own rules regarding the vicinage
 None of the senators wanted to sacrifice their state's rule
 
If the vicinage is the X district, could you put venue in the Y district?
 Could you ship the jury to another district?
 Like VA did
 
 
You have a right to a jury trial, what is a Jury?
 12 people
 Argue textually that Jury meant 12
 Letter to Quebec
 Foreign Spectator
 Common Law
 Congress has power to create inferior tribunals and pass laws necessary and proper
 
What do juries do?
 Decide questions of fact
Would it be ok for congress to statutorily require that juries return special verdicts? (stipulating the facts
they found and only those facts)
 No
 James Wilson
 Juries should be able to give general verdicts
1. This is what juries do
 
Why forbid the legislature from limiting juries to returning special verdicts?
 Zenger Case
 Judge told lawyer he could not argue that the libel was true
 The jury can only decide if the accused published the piece
 If the client printed the jury had to convict
 Legislature could reclassify fact questions into law questions and circumvent the jury
 Homicide
 Requires Mens Rea
 Common Law
 It is a common law crime
 Judges decide what the crime is
 
Why would we want a jury to decide law questions?
 We want the people to have input in the Common Law
 Judicial Representation
 Problem of consistency
 Different juries may not share common sense/ideals/culture, etc.
 Check on legislature
 Jury nullification
 
Why other than simple corruption would an unpopular law get passed?
 Legislators may have more information than the voters
 Point of a legislature is to discuss/debate
 
Tea Party Case:

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Chase
 juries can interpret the law
 They cannot decide a law is not a law
Monarchies are different from a legislative government
 
In which criminal cases do juries get to do their thing?
 
6th Amendment: Criminal Jury
In which cases does it give you a right to trial by jury
Harvard Law Review Article by Justice Frankfurter
 It was not in all criminal prosecutions
 It was in felony/serious offenses
 No right in petty/misdemeanor offenses
 Does not believe this is an easy line to draw
 
Summary Jurisdiction (Justice of the Peace) - Bench Trial in States/Colonies
1. Some states had similar language in their const. - Parallel language
2. Attempt to constitutionalize what was in practice - Traditions/Practice
3. Blackstone said crimes means serious- Language
i. Common use of crimes:
 Offences greater than misdemeanors (a/k/a felonies)
ii. Technically (to lawyers) - crime is any offence
 If we look at usage:
 More serious bad behavior
 Less serious bad behavior
 Impeachment Clause
 High Crimes and Misdemeanors
 Separates felonies and misdemeanors
 If crime mean all bad behavior it would not have needed the use of High Crimes
 Article III
 "All crimes"
 5th amendment
 "Infamous crime"
 Denoted by punishment (whipping)
 In summary judgment cases, the punishment was whipping
 There appears to be a number of technical problems reading the language this way
 This was the practice in many state courts
 
How could anyone think that the drafters used state constitution language with a different meaning?
 in the 1st amendment: free press
 State const: free press = no prior restraint
 Federal Const: Free press = no restraint whatsoever
Why would anyone who lived in a state in which they were content with summary jurisdiction, would want
the federal government to ban summary judgment?
 They may have trusted the state government with authority, but not the federal government
 See Establishment Clause
 States like having establishment
 But did not want Feds to have it
 
Crimes/Judiciary Act of 1789
 All offense (federal) were to be tried by Jury
Seems to imply the 6th amendment meant all crimes
 
5th Amend Double Jeopardy

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  Same offence (Common Law Language) - not same crime
 
 

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 Civil Juries:
Anti-Federalist Complaint
1. No provision protecting trial by jury in civil matters
 Necessary and Proper + Article III + Inferior Tribunal
 Congress could staff courts with judges and not mention juries
 Congress could ban civil juries
 Congress might not want juries in Tax Cases
 In England - Intolerable Acts
 American debtors wanted juries
 English merchants/creditors did not want juries
 They were getting screwed in state courts in debt recovery
 Debts which were contracted before the revolution
 Debts weren't paid because we were at war with the British
 After the war, interest has accrued increasing the debt
 Americans didn’t think they owed the interest because war
 Merchants argue that they weren't at war and interest is due
 Amounts due was a question of fact decided by the jury
 A lot of the debtors were from Virginia, the hotbed of anti-federalism
2. Fear of dilution of the criminal jury trial - Appellate Jurisdiction of Law and Fact
 Fear that the SC would overrule jury trials on appeal
 State and federal cases
 2x Jeopardy stops this in criminal cases
 
Federalist Response
1. Madison Proposed
 In suits of common law between man and man the trial by jury is one of the best securities to the
rights of men ought to remain inviolate
 First and only proposal Madison used ought
 State language
 Is a recommendation/statement of a moral principal
 As opposed to a legal command (shall, must)
 Influenced by VA Const
 Controversies in Property
 In Rem
 Suits between Man and Man
 In personum
iii. Maryland Minority Request for Amendment
 Debts and contract and other property
 Suites between man and man
 Is left ambiguous
Why didn’t Madison use the property language?
 He did not want to touch on the Admiralty Law
 Smuggling - violation of tax law
 Creates an in rem proceeding
 
 
For next time:
How do we know if something is a suit at common law?
What does it mean to preserve something?
 
Remember we were asked to stop at page 83
Think on your own before you read Krauss's article on page 84
 Why is he wrong

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Anti-Federalist Concern:
 Federal Government might not use trial by jury
Federalist Response
 The people vote in the government, we will not be tyrannical
 
Madison Proposed
 In suits of common law between man and man the trial by jury is one of the best securities to the rights
of men ought to remain inviolate
i. First and only proposal Madison used ought
 State language
 Is a recommendation/statement of a moral principal
 As opposed to a legal command (shall, must)
ii. Influenced by VA Const
 Controversies in Property
 In Re
 Suits between Man and Man
 In personum
iii. Maryland Minority Request for Amendment
 Debts and contract and other property
 Suits between man and man
 Is left ambiguous
 
Why would a non-tyrant not want to use a jury in Federal Court?
 Economical
 Less efficient
 Diversity Jurisdiction
 Juries may be biased against out of Stater
 Judges/Juries may be sympathizers with the defendant
 Foreigners
 Jury might be biased against Foreigners
 
Change of Language
VA Const
 Controversies in Property and Suits between Man and Man
Madison's Original Proposed
 In suits of common law between man and man the trial by jury is one of the best securities to the rights
of men ought to remain inviolate
VII Amendment
 In suits at common law . . . The right to trial by jury shall be preserved
Why were there changes?
 Madison's change to exclude Property?
 Excludes juris from cases of in rem jurisdiction
 Admiralty - in rem forfeiture
 Tax
 Land
 Competing claims to land (when states were not what they are today) by two
different states which claimed authority
 Congress's exclusion of between man and man?
 VA did not complain when neither was deleted, applicable to common law
 Common law does not include Admiralty
 

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 1. Some federalists think there are cases that you just shouldn't have juries sitting
2.  
 
What does Suits at Common Law mean?
i. Not:
1. Admiralty/Maritime
2. Equity
3. Statutory
 
What does Preserved mean?
If you wish to preserve it must exist
1. No right existed in Federal court under the Articles of Confederation
i. There were Federal Appeals courts in Admiralty Cases
a. Did not use juries
ii. States tried cases
i. Conformity with state court practices
 There may have not been this type of case in state court
 Would there have been a state right to trial but for the creation of federal courts?
Happy: This was the reason for the amendment proposed by Mass. and Penn.
Minority

Not Happy: Foreign Spectator

   thought jury trial guarantee should be the same every where
   Federal courts would allow juries and some states, but not in others
  Hamilton
   Dangerous in states which have trials by jury for everything (Mass.
in Admiralty cases)
 Madison thought this was bad, if a jury makes a bad
decision, then other countries may be provoked and declare
war
 Bad in Equity Cases
 It should be a legislative decision, as the law/people change over
time
 Judgments about where to draw the line may not be
historically stable
 Flexibility is necessary, because there is trouble drawing
the line now(then) that the past has changed
ii. Civil Juries aren't banned/Right to jury trial in suits of Common Law
iii. Traditional scope of CL in England
 Trials at common law were by jury
 In a court of law, the Chancelor/Admiralty judge would not be presiding
 In admiralty there were defense attorneys, in common law courts there were no defense attorney
 The courts of common law follow common law procedure
 Include juries
 Exclude defense attorneys
 New York wanted to preserve the common law of England
 That is what NY did as a state
 Other colonies would support this because it is appealing to the overall cultural heritage
Opposition:
 We oppose England now
 We want what our state has now
iv.  
 
No one asked for a jury in Admiralty/Maritime, Equity

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Assume that suits at common law are suits that are not Admiralty/Equity
How do we know which is a suit at common law?
1. Look to the forum State
 Hamilton and Spectator opposition
2. Look to the English Common Law
 Hamilton and Spectator opposition
 1st Congress defined equity jurisdiction
 In doing so they rejected English Common Law
3. Look to Federal Standard
 Could outlaw common law cases
 
There is an integration of Common Law and Preserved

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 8th Amendment
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
 
Why does the 8th Amendment group excessive fine/Bail with cruel and unusual punishment?
 This is how it was written in the English Bill of Rights
 "That excessive baile ought not to be required nor excessive fines imposed nor cruell and unusuall
punishments inflicted"
 Changed to shall
Why did the drafters of the English Bill of Rights group them together?
 They were all ways royal judges screwed the people
 In response to the Stuarts
 James I
 Charles
 James II
 Charles' oldest legitimate son
 Catholic
 Has a legitimate sibling Mary (Protestant)
 Has a child
 Common Theme
 They were all excessive things/too much
 English Bill of Rights was aimed at the Judges
 
Excessive Bail Clause:
 Fear was that you would be held indefinitely, so you would not go to trial
 Judges would do it to punish people without trial
 The goal of Bail was to ensure that the person would come back and show up for trial
 
What if the judge said "no bail" you must wait in prison for a minor offence?
 Parliament said that individuals has rights to bail
 Listed non-bailable offences
 Capital Crime - no amount is a surety for one's life
 If judges say no bail or excessive bail
 They affront parliament
 Under the common law:
 If you set bail low and you got away
Habeaus Corpus Act
 Provides remedy Judges ordering excessive/no bail
 Cannot avoid this act by taking prisoner to a place where court has no jurisdiction
 You would be liable for a lot of money
 You would lose right to government job
 
Why does this apply to Legislature in US?
 Was intended to go in Art. 1 Sec. 9
 People voiced their fears of Congressional Power Grab
 Why would a Ratifier assume that congress is covered even though it is no longer in Art. I
 It applies across the board to all branches
 In the Crimes Act - Dissection of Killers
 Argument was constitutional
 1st Congress and Rawle tells us this limits congress' power
 
The amendment is silent on "no bail"
 There is no constitutional right to bail
 Many State Constitutions had rights to bail
 CT, Mass, etc.

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  We could infer that congress has discretion to determine what offences have bail, but the judiciary
cannot set excessive bail
 This doesn’t make sense if this was supposed to go in Art I
 
 
Indigent people who could not pay bail
 No bondsmen
 People would serve as sureties
 If no surety, then you were stuck in jail
 
Who decides how much bail is excessive?
 Ultimately Supreme Court
 
This appears to be an equal protection clause
 Similar bail amounts in similar circumstances
 
Rawle says that this is binding on the legislature, but it is not judicially enforceable
 
Excessive Fines Clause
Many problems are redundant with the Bail Clause
 Concern that using excessive fines as a way to screw someone
Why have excessive fines and cruel and unusual punishment clause?
 Originally a Fine was money you paid to end your imprisonment
 
Excessive fines in Penn. bans all excessive punishments
 
Should we read this to apply to Punitive Damages?
 When written (in English BoR) there were no punitive damages (we know of)
 Linguistic differences - fines and damages
Wilkes Cases (Libel Cases)
 No one cites excessive fines clause
 
Cruel and Unusual Punishments Clause
 Proportionality
 Concerned with not just excessive punishments, but forms of punishment
 Fear of torture
 MASON
 Wrote the 1st draft of VA Const
 Commented at the Ratification Convention
 Bill of Rights prohibits torture
 No one else says that is all that it protects
 Torture is in the eye of the beholder
Bloody Assize
 Hanging, Drawing and Quartering
 Continued after the English BoR
Titus Oates Case
 The punishments were unprecedented and therefore excessive
 
Unusual punishment may be one that is not the norm.
 
INTERPRETIVE: Is this about Barbarism or Excess? In what timeframe?
 If we are looking to the 18th C to look for reasonableness
 Why not look to the 18th C for excessiveness
 Should we look to their principles or to their application of them?

Page 54 of 61
 
 
 

Page 55 of 61
  9th Amendment:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people"
 
What was the complaint the Anti-Federalists complained that ultimately leads to the 9th amendment?
 We need a bill of rights or declaration of rights
 
Federalist Response:
1. Bill of rights is unnecessary
i. Enumerated powers don’t threaten rights
 1st amendment rights, (press, religion)
 2nd amendment right (to bear arms)
ii. Structural Protection
 Search and seizures
 Procedural
2. It would be improper/impossible and dangerous
i. Omission of rights (expressio unis = list is inclusive)
ii. Suggests implied powers
 Undermines the enumerated power scheme
 Takes all of the power away from the people
 
Anti-Federals Response:
1. The Constitution actually lists some rights
i. Art. 1 Sec. 8
 Habeaus Corpus
ii. Art. III Sec. 2
 Jury Trial in criminal cases
iii. Limitations on Congress
 Congress cannot make people nobles
 Under the treaty power
2. Could say that powers not expressly given to the Feds are reserved for the states (10th Amend.)
i. Would limit the Federal power to the enumerated powders
 
Why is the 10th amendment language not enough?
1. Problem might be in part that we already have an enumerated power which gives them authority to do
something we don’t want them to do.
 James Madison concedes that Congress actually has the authority to issue writs of assistance and
general warrants to exercise the tax power
 Madison undercut his own arguments
 The ratification campaign was politically motivated
 Federalists never made the claim that there was no authority to exercise power over rights that
had procedural safeguards
2. Question of what powers did we give to the Federal Government?
 Necessary and Proper Clause - is a sweeping grant of power
 We don’t know how far this authorizes Congress to go, we don’t know where federal power ends
and state power begins
What else would we want to do?
1. Make a list of the really important rights
i. What good does this do if the Feds. didn't have the power to begin with
 Secures them for posterity
 For educational purposes of future generations
ii. Gives a backing for arguments that rights were violated
 Makes rulers less likely to violate rights
 
How can we guard against the inference of implied powers because rights were listed?

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  Proposal
 Clauses shall not imply that Congress is entitled to any Powers not given by said Constitution
 Clauses are
 Exceptions to enumerated powers; or
 inserted for greater Caution (to eliminate doubt)
 
Still leaves a question of un-enumerated Rights:
 We still have/retain any right that the Feds had no authority to abridge in the first place
 
Madison adds in his proposal:
Shall not be construed so as to diminish the importance of other rights retained by the people
What does this add to the 9th Amendment?
 Could be designed to serve a substantive purpose
 Eliminates expressio unis
 Clarity
 Could be a lead in
When Madison Speaks before Congress on June 8, what does he suggest the purpose is?
 To meet concerns of the argument
 That the disparaging other rights would expand the government's powers
Madison's Notes
 "disparage other rights - or constructively enlarge"
 "the first goes vs. State BoR"
 "both guarded vs. by amendt"
 
 States Bills of rights limit the federal government
 How could state cosnt. Trump federal authority
 People are the Principal
 Feds are the Agent (separate from the State agent)
Construction Argument:
 If we preserved rights in our state govts, it wouldn’t make sense to give them up in the federal
government
 Purpose of Feds was to achieve a more perfect union
 The people did not intend to give up their rights they had protected in the state
 
There was no right to lawyer in a civil case in state constitutions, where did it come from?
 
Other rights retained:
 Those not enumerated
 State BoR
 Common Law rights
 The distillation of reason/natural law
 
1. There are limitations to implied powers
2. There are rights which are not enumerated which trump the state/federal law
 
Which meaning do the people mean?
  
Tench Coxe
 Argued by many that ommission of one right would . . .
 
Randolph:
 Where do the rights come from
Madison to GW
 Randolph is a moron

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Randolph in VA Ratification:
 VA ratification - no one asked for this amendment
Centinal:
 The problem is that there are other retained rights, where do we find them
Madison:
 
9th Amendment:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people"
 
Based on Correspondence
Randolph:
 Where do the rights come from
 Doent like it as a line between rights retained and rights given
 Preferred VA as powers given
Madison
 Felt it didn’t matter how you described it, it was the same thing
 
Supports the idea that it was a structural piece emphasizing the limitation of the federal government to enumerated
powers
 
Looking to Madison's notes to his June 8 Speech:
1. If part of the way rights were reserved was that the states had not meant to give up anything they had
declared in their owned DoR
i. If this is true, then those kind of rights (like 4th) are trumping rights. Even though there is an
enumerated power, the right is a carve out
ii. The un-enumerated rights could include many natural rights
2. The Response of the VA senate (9th amend and of Centinal) was the opposite of Randolph
i. Said that it something they never asked for
ii. Said how will they know what rights are reserved? Where to look for un-enumerated rights?
 

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 10th Amendment:
"The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively or to the people."
 
What was the Anti-Federalist Complaint?
 The Necessary and Proper Clause would give rise to broad Congressional Power.
 Congress determines what is necessary and proper
 This is a problem because it takes power away from the States
 Congress could potentially eliminate the States
What was the Solution the Anti-Federalists Proposed?
 Articles of Confederation:
i. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and
Right, which is not by this confederation expressly delegated to the US
ii. Key word is expressly, no implied powers
Response
 (Not Stated by Anyone) Necessary and Proper Clause is an express delegation of Authority
 Madison believed that the Necessary and Proper Clauses were implied powers
 Thought if we added expressly we would have to define powers to minutia
 Tucker believed expressly meant that as part of a general power it includes lesser logical rights
 Necessary and proper clause as an express power
 
Changes to the Clause from Articles of Confederation
 loss expressly
 loss sovereignty
 Added to the people
 Popular sovereignty
VA
 If the residual sovereignty rests with the American People as a whole then the States are not sovereign
in any respect
 American People could change or eliminate the State Constitutions
 
What does the Adoption of the 10th Amendment; if it means that the Federal Government has the
enumerated powers, then what does that tell us about the 9th Amendment?
 If we accept that Powers and Rights are the flip side of the same coin we may want to cover both
bases rhetorically
 
Hypo:
Law:
 Congress has Commerce Clause, if Congress passes a law which sets Minimum Wage for all food
product workers which is marketed across state lines
 NY has spaghetti factory, says that Feds. can't impose Min. Wage because they are State Employees
Resolution:
 Congress has Commerce Clause and Necessary and Proper
Law:
 Congress passes law setting min. wage for teachers
 State says you should not be able to apply to state employees
Resolution:
 State Sovereignty limits federal sovereignty
Law:
 Every state must within 1 year build a new state capital, with materials/workers from other states.
 Purpose of law is to dramatically increase industries related to construction.
Resolution:
  
 

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11th Amendments Relevance to the 10th?
 Idea of the 11th was within the 10th
 Chizm says this is not true
 Right of an individual to sue a state
 Possibility it was a wrong decision
 
State Sovereignty was implicit in the Constitution and the 11th amendment was an explicit statement of state
sovereignty
 
State retaining rights is an implicit idea of the state retaining sovereignty?
Retained by the people is an implicit idea of popular sovereignty?
 
James Madison's proposals were all intended to be placed within the body of the Constitution.
That is how the Committee of 11 put to House.
That is what the House agreed to.
 
Same arguments were presented as before:
 Sherman says that if they want the votes they will adopt their form
 It was a numbers/procedural game/hostage taking
House sitting as Committee of the whole:
Sitting as committee they only needed majority
August 19, 1789: House sitting as the House:
To pass the amendment the house needed 2/3 vote
 
 
Why have an the Bill of Rights as an Appendix?
a. Misrepresentation
i. If we put them in the Constitution it would make it seem the Signers signed a document they
didn’t sign (specifically George Washington)
a. Signatures appear only on the original and are not part of the actual document
ii. We want people to associate this Constitution with George Washington and like the Constitution
a. 2 states have asked for reconsideration
a. Anti-federalists
i. Taxing/commerce
ii. Militia/standing army
b. 2 states have not ratified it yet
iii. Things George Washington signed became sacred
a. This is the only time the word sacred is used to describe the Constitution
b. Changing Meaning
i. The amendments as a supplement change the meaning anyway
c. Mixing, Iron, Clay
i. The original constitution was the work of the People
ii. Bill of rights was the work of the Congress
iii. In Art. V.
a. The people designated the Congress to be a Constitutional Convention
d. Putting it in the document was not the way it was done
i. Writing the Constitution was not the way things were done
ii. The bill of rights limiting legislature was not the way it was done
iii. Articles of Confederation was amendable by unanimous vote of the states
a. They just threw it out the window
 
Having a supplement makes it appear that there is something defective about the "sacred" document.
 
The bill of rights killed the opposition, the two outlying states.
 

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Could have repealed the supplement after the political goals had been attained.
 Massachusetts Centinel (22-24)
 
Problem:
As a supplement it become less clear what branch of government is binded and if it applies to the state.
 See 8th Amendment:
 In the English BoR it was only limited the Executive
 See 1st Amendment
 Specifically spoke to the Congress
 Makes it seem like these Amendments do not bind Congress
 Ratifiers knew otherwise
 Saw proposals
 Saw discussions
 Amendments only Binded Congress
 People did not think about it
 Idea that the legislature is the most likely threat, that is where the most power lies
 If the Bill of rights had been included in the body of the Constitution
 Habeaus Corpus would be likely included/studied in the Bill of Rights
 Once you sever them from the Text of the Constitution they may limit the power of the States
 Except the 1st amendment because it begins with Congress
 The others
 Rawle endorses that proposition
 
 
Why might it makes sense to say that some amendments limits the States as well as the Feds.?
 The people are declaring their rights that already exist
 Most are rights they have previously declared in States
 If they exist they must be respected by all judges (state and federal)
 Speakers have said that they are not creating rights (right to wear a hat, right is there if
adopted or not)
 Structurally
 It is about federalism
 
By making the Bill of Rights an appendix we have applied most of the Rights to the States
 Madison proposed
 That no state shall violate:
 Jury trial
 Press
 Or Conscience
 Was thrown out by the senate
 
What's wrong with the argument that there is no textual limitations that it binds the states?
 Barron v. Baltimore
 Marshall
 If they intended it to apply to the states they would have said so explicitly
 They have used the language "no state shall" as used in Art. I Sec. 9

 
 

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