Lectures Week of Sept 18
1. Bill of Rights and Early Civil Liberties
2. Evolution of Federalism”

Agenda

• Announcements
• Review *
• Part 1: The Bill of Rights and Early Civil Liberties until about 1810
• Review federalism including 10th Amendment from Bill of Rights *
• Part 2: The evolution of federalism after the passage of the Bill of Rights

*Two day class only. One day class will still have the review slides available in Canvas.

Announcements

• Lowest Inquizitive grade will be dropped for everyone. This is in addition to the GOOJF Card

• New Canvas Module: Space for Sharing notes, Study questions, and Answers from me.

• Explanation of Inquizitive grading in the third discussion area above.

Basically, you can stop when you reach the required number of questions, but you get graded on percent correct at that point. You can keep going and eventually reach 100%. (The scoring has a mechanism to throw out wrong answers after you master the material you missed.) Bottom line: keep going until you are happy with your score.

Review

• American philosophy: government exists for protection of individual rights from violence
• Modern terms: Empowerment of the individual
• Government power: coercive armed violence (cav)
• Strong central government has huge power
• Separation of Powers, Checks and Balances, Federalism created to restrain federal government power (cav)
• The Anti-federalists wanted more protection…

Part 1: Bill of Rights

• Restraint on federal government

            - the demand was for a restraint on the federal government, not state governments
            - Most state constitutions had a bill or declaration of rights
            - Barron v. Baltimore (1833), Chief Justice John Marshall, United States Supreme Court

• First 10 amendments to Constitution

• Not an exclusive list of the rights of the people

• 10th Amendment - Powers of the states, rights of the people - federalism

First Amendment: Protecting expression and conscience

Constitution of the United States: First Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment: Religion

“no law respecting an establishment of religion”

1. No official national church

            - No automatic church membership on birth
            - No tax support for churches
            - No government payment of preacher's salaries

First Amendment: Religion

“no law respecting an establishment of religion”

1. No official national church

            - No automatic church membership on birth
            - No tax support for churches
            - No government payment of preacher's salaries

2. No interference with the state established churches

            - 1776 all 13 states had established churches
            - 1786 Virginia disestablished Church of Englan
            - New Hampshire 1817
            - Massachusetts (Congregationalist) 1833

Kidd, Colin. “Civil Theology and Church Establishments in Revolutionary America.” The Historical Journal. Vol. 42, No. 4 (Dec., 1999). pp. 1007-1022

First Amendment: Religion

“no law respecting an establishment of religion”

1. No official national church

            - No automatic church membership on birth
            - No tax support for churches
            - No government payment of preacher's salaries

2. No interference with the state established churches

            - 1776 all 13 states had established churches
            - 1786 Virginia disestablished Church of Englan
            - New Hampshire 1817
            - Massachusetts (Congregationalist) 1833

3. #2 will change in 1940

Kidd, Colin. “Civil Theology and Church Establishments in Revolutionary America.” The Historical Journal. Vol. 42, No. 4 (Dec., 1999). pp. 1007-1022

First Amendment: Free exercise

• Free exercise of religion

• Citizens practice faith according to their conscience

• Engage in religious rituals

• Adopt a faith of their choosing ¹

1 - In this respect, the No Establishment Clause doesn’t conflict, it reinforces.

First Amendment: Not present

Not present in the Constitution or First Amendment:

• The phrase “Separation of Church and State”
• The phrase “Wall of separation between church and state”

Important questions:

• Should either phrase be added?
• What relations between church and state should be allowed?

Second Amendment: Right to bear arms, independent state militias

Constitution of the United States: Second Amendment

• “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Second Amendment: A power and a right

• There are two clauses (with unneeded commas)
• Clause 1 implies a state power - the power to have an independent militia to secure the state’s freedom
• Clause 1 explains one reason the second is desirable
• Clause 2 grants a right - the right to bear arms
• Clause 2 specifies the people hold the right
• Does disagreement about the explanation negate the right?
• What does well regulated mean?¹

1 - Judges have argued about the last two since at least the 1920s: We can disagree. These are points for thought.

Third Amendment: Quartering of Soldiers

Constitution of the United States: Third Amendment

• “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
• This hasn’t come up in a long time
• Still important: why?

Third Amendment: Quartering of Soldiers

Constitution of the United States: Third Amendment

• “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
• This hasn’t come up in a long time
• Still important: why?

It is one of the places that the Bill of Rights emphasizes the sanctity of the home.

Fourth Amendment: Search and seizure

Constitution of the United States: Fourth Amendment

• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Fourth Amendment: Two parts

• No unreasonable search and seizure
• Requirements for warrants

Fourth Amendment: Two parts

• No unreasonable search and seizure
• Right of the people

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Right of the people

• Establishes the sanctity of four things:

            - The person or individual 

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Right of the people

• Establishes the sanctity of four things:

            - The person or individual 
            - The home or dwelling place               

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Right of the people

• Establishes the sanctity of four things:

            - The person or individual 
            - The home or dwelling place
            - The papers regardless of location

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Right of the people

• Establishes the sanctity of four things:

            - The person or individual 
            - The home or dwelling place
            - The papers regardless of location
            - The personal possessions regardless of location

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Right of the people

• Establishes the sanctity of four things:

            - The person or individual 
            - The home or dwelling place
            - The papers regardless of location
            - The personal possessions regardless of location

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Right of the people

• Establishes the sanctity of four things:

            - The person or individual 
            - The home or dwelling place
            - The papers regardless of location
            - The personal possessions regardless of location

Another place in the Bill of Rights which establishes the sanctity of the home.

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Requirements for warrants

            - probable cause
            - Oath or affirmation
            - description of place to be search
            - description of person or things to be seized

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Requirements for warrants

• Unreasonable is not defined

            - Confusion because of 2nd part: Are warrants always required for a search to be reasonable?
            - Are all searches with warrants reasonable?

Fourth Amendment: Two parts

• No unreasonable search and seizure

• Requirements for warrants

• Unreasonable is not defined

            - Confusion because of 2nd part: Are warrants always required for a search to be reasonable? Not according to the courts
            - Are all searches with warrants reasonable? Not necessarily<sup>1</>

Cornell University Legal Information Institute

Fifth Amendment: Due Process and Property Rights

Constitution of the United States: Fifth Amendment

“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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, 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.”

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury

            - does not apply to minor crimes (initially)
            - exception for active military - courts martial
            - exception for militia when called into active service - courts martial

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury
• Double Jeopardy!

Double Jeopardy!

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury

• May not be tried again for the same crime after being acquitted

            - Does not apply to second trial after appeal
            - May apply if a trial reaches a certain point and ends in a mistrial
            - Does not apply if the jury fails to reach a verdict

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury

• May not be tried again for the same crime after being acquitted

• Protection against self-incrimination

            - Defendant not required to testify against him or herself in a criminal trial
            - Does not apply to civil trials
            - Has been extended considerably to assure that involuntary statements are not used and that statements are not coerced

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury

• May not be tried again for the same crime after being acquitted

• Protection against self-incrimination

• Due Process of Law

            - government must follow proper procedures
            - protects life
            - protects liberty 
            - protects property

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury

• May not be tried again for the same crime after being acquitted

• Protection against self-incrimination

• Due Process of Law

            - government must follow Due Process = proper procedures
            - protects life
            - protects liberty 
            - protects property

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury
• May not be tried again for the same crime after being acquitted
• Protection against self-incrimination
• Due Process of Law
• Takings Clause

What if a new city dump causes the value of property next door to drop?

Fifth Amendment: Due Process and Property Rights

• Major civilian crimes require an indictment by a grand jury
• May not be tried again for the same crime after being acquitted
• Protection against self-incrimination
• Due Process of Law
• Takings Clause

What if a new federal regulation causes the value of property to drop or causes someone to lose income?

Sixth Amendment: Rights of defendants in trials

Constitution of the United States: 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 wherein 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.”

Sixth Amendment: Rights of defendants in trials

• Speedy trial
• Public trial

Sixth Amendment: Rights of defendants in trials

• Speedy trial

• Public trial

• Jury trial

            - the State and district where the crime was committed
            - District previously ascertained by law - who does this?

Sixth Amendment: Rights of defendants in trials

• Speedy trial

• Public trial

• Jury trial

            - the State and district where the crime was committed
            - District previously ascertained by a judge
            - Does not specify jury requirements

Sixth Amendment: Rights of defendants in trials

• Speedy trial
• Public trial
• Jury trial
• Right to know the charges

Sixth Amendment: Rights of defendants in trials

• Speedy trial
• Public trial
• Jury trial
• Right to know the charges
• Right to confront witnesses against him

Sixth Amendment: Rights of defendants in trials

• Speedy trial
• Public trial
• Jury trial
• Right to know the charges
• Right to confront witnesses against him
• Right to subpoena witnesses for the defense
• Right to an attorney

Seventh Amendment: Civil trials

Constitution of the United States: Seventh Amendment

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Seventh Amendment: Federal Civil trials

• Trial by jury in cases with large values
• Re-examination Clause: Judges may not overturn jury verdicts except in accordance with the rules

Eight Amendment: Bail, Fines, Punishment

Constitution of the United States: Eighth Amendment

• “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Eight Amendment: Bail, Fines, Punishment

• No excessive bail
• No excessive fines
• No cruel and unusual punishment

None of these are defined. Do we follow the standard of 1791 or the standard of 2023?

Ninth Amendment: Other rights

Constitution of the United States: Ninth Amendment

• “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Ninth Amendment: Other rights

• Federalists were worried that listing rights would encourage the abuse of other rights
• Some rights were already listed in the Constitution like the writ of habeas corpus, the Bill of Rights did not amend them out
• Much debate about the meaning
• Rarely referenced by the Courts
• Seems to be reinforcing the idea that federal government not do anything unless explicitly permitted by the Constitution

Tenth Amendment: State powers

Constitution of the United States: Amendment Ten

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Tenth Amendment: State powers

• Powers not expressly given to the federal government

            - Article I Powers of Congress
            - Article II Powers of President
            - Article III Powers of the Courts

Tenth Amendment: State powers

• Powers not expressly given to the federal government
• Powers not prohibited to the States

Article I, Section 10

Examples:

            - entering treaties
            - coining money
            - creating legal tender
            - granting titles of nobility
            - taxing imports or exports
            - impairing the obligation of contract
            - engage in War
            

Tenth Amendment: State powers

• Powers not expressly given to the federal government
• Powers not prohibited to the States
• remain with the individual States or the people

The Constitution doesn’t specify which powers remain with the States and which with the people.

Review of federalism.

• Sovereignty: Supreme power
• Unitary systems: Single, national government is sovereign
• Confederacy: state governments are sovereing, national government is dependent
• Federalism: Sovereignty is shared as defined by the Constitution
• Most of this is accomplished in Article I of the US Constitution
• Federalism is an additional part of Separation of Powers and a Check on federal power

Evolution of Federalism

Powers prohibited to Congress

Article 1, Section 9

Examples:

            - No direct taxes unless in proportion to the census
            - No tax on exports
            - No preference to any State's ports
            - No titles of nobility

10th Amendment: Reserved Powers

• Powers not expressly given to the federal government
• Powers not prohibited to the States
• remain with the individual States or the people

Article I, Section 10

States Rights: Bad phrasing

• Individuals have rights.
• States have powers.
• States rights have become associated with pro-slavery and anti-civil rights positions
• Despite Northern states opposition to the Fugitive Slave Act

First central banks

• First Bank of the United States - 1791

            - Opposed by Jefferson and Madison
            - Claims it was unconstitutional
            - Enriched merchants and bankers at the expense of the majority
            - Expanded federal power
            - 20 year charter, lapsed in 1811

• Second Bank of the United States - 1816

            - Allowed to have branches in multiple states
            - Similar arguments to first Bank
            - Supported by Madison
            - Lacked many modern central bank powers
            - New charter vetoed by Andrew Jackson
            - 20 year charter lapsed in 1836
            - Became a Pennsylvania state bank

States Asserted Their Power: Early 1800s

• Debate over Power Balance
  • States asserting their rights vs. federal government’s authority
  • Key figures like Thomas Jefferson, Alexander Hamilton, Henry Clay, and John C. Calhoun
• Key Events
  • Kentucky and Virginia Resolutions
  • Hartford Convention

John C. Calhoun: the Arch Nullifier

• Key Positions:

            - Vice President under Presidents John Quincy Adams and Andrew Jackson
            - U.S. Senator from South Carolina
            - Secretary of War and Secretary of State

• Nullification and States Rights:

            - Strongly supported the doctrine of nullification
            - Central role in the Nullification Crisis of 1832 (tariffs)
            - Supported Second Bank of the United States

• Legacy:

            - Remembered as a proponent of states' rights, but controversial due to his support for slavery 

Henry Clay: The Great Compromiser

• Key Positions:

             - U.S. Senator from Kentucky
             - House Speaker and House of Representatives member
             - Secretary of State

• Advocate for the American System:

             - Protective tariffs, national bank, and internal improvements 
             - Promoted economic development and national unity

• Compromises:

             - Played a key role in the Missouri Compromise, the Compromise of 1833, and the Compromise of 1850, attempting to ease sectional tensions over slavery

• Legacy:

              - Remembered for his efforts to preserve the Union through compromise and economic policies

Kentucky Resolutions (1798)

• Authorship:

            - Authored by Thomas Jefferson, then Vice President of the United States

• Principles:

            - Doctrinese of states' rights and nullification
            - Right to declare federal laws unconstitutional within their borders

• Key Arguments:

            - Criticized the Alien and Sedition Acts as unconstitutional infringements on free speech
            - Argued that the states created the federal government and could judge its constitutionality

Virginia Resolutions (1798)

• Authorship:

            - Authored by James Madison, who later became the fourth President of the United States

• Principles:

            - Echoed the Kentucky Resolutions' support for states' rights and opposition to the Alien and Sedition Acts

• Key Arguments:

            - Duty of state legislatures to protect citizens' constitutional rights
            - States could interpose themselves between their citizens and federal abuses of power

Legacy and Impact

• Impact:

            - Kentucky Resolution: Inspired the concept of nullification, which later resurfaced in debates over states' rights
            - Virginia Resolution: Clarified concept of state as protector of citizen's rights
            - Demonstrated early divisions over the extent of federal authority
            - Laid the groundwork for debates over balance of power

• Nullification Crisis of 1832

            - South Carolina attempted to nullify federal tariff laws

• Constitutional Legacy

            - Important in discussions about the scope of states and federal powers
            - Laid the groundwork for the Personal Liberty Laws
            - Strengthened opposition to Fugitive Slave Act

Personal Liberty Laws and the Fugitive Slave Act: Background

• Mid-19th Century

• Context: Heightened tensions over slavery and states’ rights.

• Fugitive Slave Act of 1850

            - Enforced return of escaped slaves, even in free states.
            - Required Free State Governments to Assist in the return of escaped slaves

Northern Response: Personal Liberty Laws

• Purpose: Protect rights of free African Americans in free states.
• Provisions: Ensured trial by jury, restricted state officials’ assistance.
• Supporters: Abolitionists and sympathetic Northerners.

Impact and Legacy

• Resistance to Federal Authority: Asserted states’ rights and resisted federal authority.
• Contributed to Sectional Conflict: Escalated tensions and contributed to the Civil War.
• Symbol of Opposition: Signified Northern resistance to slavery and federal enforcement.

Important Point

Multiple impacts and unintended consequences

• Calhoun supported nullification but…
• That nullification had nothing to do with slavery and…
• Nullification inspired the Personal Liberty Laws
• We can be fairly sure this is not what John C. Calhoun would have wanted

Civil War: Established Federal Supremacy

• Turning Point in question of state and federal power

• First Republican President: Abraham Lincoln

            - Lincoln's power: imposed martial law, imprisoned protesters, suspended habeas corpus
            - Lincoln's leadership: preserved the Union, Emancipation Proclamation

• Outcomes

            - 13th, 14th, and 15th Amendments
            - Federal government's authority solidified
            - Railroads, tariffs, industrial development, westward expansion

Westward Expansion: Increased Federal Power

• Territorial Expansion

            - Acquisition of new territories
            - Federal government's role in managing the West

• Land Policies (1862)

            - Homestead Act - free land to individuals who would develop it
            - Morrill Act - free land to states for land grant colleges
            - Texas A&M University, Oklahoma State University, Colorado State University, many others...

1913 Federal Reserve Bank and Income Tax

• Federal Reserve Bank

  • Established to stabilize the economy
  • Central banking system
  • Print legal tender paper currency

• Income Tax

  • 16th Amendment
  • Revenue source for federal government
  • First direct tax not apportioned according to census

New Deal: Further Expansion of Federal Power

• Great Depression

            - Economic crisis of the 1930s
            - President Franklin Delano Roosevelt (FDR)
            - FDR's response with New Deal programs

• New Deal Programs

            - Social Security Act
            - Public works programs
            - Works Progress Administration (WPA)
            - National Recovery Administration (NRA)
            - Other "alphabet agencies"
            - Great expansion of federal power in the economy

Great Society 1960s

• Lyndon B. Johnson’s Vision

            - Addressing social issues and inequality

• Medicare and Medicaid (1965)

            - massive expansion of federal role in healthcare
            - end of free market in health care
            - 58 years ago

• Civil Rights

            - Voting Rights Act of 1965
            - Push for racial equality

New Federalism: 1970s

• Devolution of Power

            - Concept of returning power to the states
            - Nixon and Reagan administrations

• Revenue Sharing

            - Sharing federal revenue with states
            - State control over spending

Did the New Federalism reduce federal power?

• **Example:*National Minimum Drinking Age Act (1984):**

            - Passed by Congress
            - Response to public opinion on drunk driving accidents
            - Mandate: states set minimum drinking age of 21 
            - Penalty: Loss of federal highway funds
            - Drinking age policy strictly a state power under federalism

• Federal Influence:

            - All states complied
            - Significantly increased federal power in dictating state-level policies

• Impact on State Autonomy:

            - New Federalism aimed to devolve power
            - Drinking Age Act showcased how federal incentives centralize decision making

Conclusion

• Dynamic Evolution

  • Federalism shaped by historical events
  • Ongoing debates about the balance of power
  • Not settled yet

Authorship and License

• Author: Tom Hanna

• Website: tomhanna.me

• License: This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.</>