Let’s Talk Sources of American Law: U.S. Constitution

 I took a breather, stepped back, and realized that if I was going to understand Constitutional law, federal, state, or any other law I needed to remain calm, cool, and in control.  I focused on what I believed was most important but also took notes of what might seem trivial because from past experience I have learned sometimes what is the least amongst the pool of information is exactly the key to unlocking it all. 

Sources of American Law were our focus along with statutory and common law.  Congress’ chief function is the making of laws. Enumerated powers are listed in Article 1, Section 8 of the U.S. Constitution and provide a specific list of issues that Congress has the power to control by law.  These issues define “Enumerated Powers.” They are specifically enumerated or listed, in the Constitution.  In addition to the latter, Article 1, Section 8, Clause 18, is known as the “Necessary and Proper Clause,” which gives Congress the power to enact laws that are necessary and proper to carry out its function.

Some of the Amendments to the original Constitution grant Congress additional powers to enforce the terms of the amendments.  An example of this would be as follows: 

  • The 13th Amendment out laws slavery
  • The 19th Amendment gives women the right to vote

Congress has the right to enact laws as needed to ensure that these Amendments are complied with properly.

Regarding the Senate, the 17th Amendment of the Constitution is elected by the accordance of the people.  The Senate has two (2) members from each state.  The total number of Senatorial members is one-hundred (100).  Each senator must be at least 30 years old. He/she must be a citizen for at least nine (9) years and must be an inhabitant of the state from which the senator is elected (or chosen). Each senator has one (1) vote.

Commonly the House of Representatives is called the Congress, but in reality, the House of Representatives includes both the Senate and the Congress.  As to the Congress, there are 435 members elected into their positions by their constituents in their home districts.  Congressmen/women are elected in each state according to districts so in other words, if you look at the districts of Texas and California, they will have many more representatives in Congress than perhaps Illinois or Virginia because the latter two states are much smaller by comparison thus having fewer districts. These representatives are elected every two (2) years and (according to their population). It was decided that there would be no more than 435 representatives in congress following the “Thirteenth Decennial Census” back in 1910 in accordance with Article 1, Section 2, of the Constitution.  Last, representatives can be no less than 25 years old, must be a citizen for seven (7) years, and when elected, be an inhabitant of the state in which they were elected in or chosen from. Each representative carries only one (1) vote.

The 10th Amendment of the Constitution provides that powers not given to the federal government be reserved to the states. What this translates to is that the states may regulate what the federal law does not. This leads to different laws between the states.

Now to the Commerce Clause of the Constitution – gives powers to congress to make laws regarding interstate commerce. The Supreme Court imposed limits on Congress and struck down laws as not being related enough to interstate commerce to be authorized by the commerce clause, or as violating other constitutionally protected rights, such as the right to free speech. After the 1930’s commerce was broadly defined.  The commerce clause became a justification for all sorts of federal laws, which, at first glance, may appear to have nothing to do with commerce whatsoever. It should be noted here that that the power to regulate commerce is given to the “Judicial Branch” of the federal government in the Constitution.

Dual Constitution is the relationship between federal and constitutional rights and state constitutional rights. Every state has its own Constitution, but state Constitutional law is not permitted to decrease or limit federally protected rights.  However, a state may extend civil rights beyond the requirements of the federal Constitution.

Important to remember is “Comity” – related to the Privileges and Immunities Clause of the U.S. Constitution.  Federal Authority – 1) Supremacy Clause, and 2) Necessary and Proper Clauses.  Article 1, Necessary and Proper Clause. Article 6 – Supreme laws of the land and judges are bound by this.

There was and is so much more that I could mention but it would fill pages.  I will close with some of the other issues mentioned in our lecture such as State laws that burden interstate comers cannot stay on the books.  Typically, these state laws are federally struck down. 

It is interesting to note here that the Pyramid Scheme is illegal.  “An illegal investment scam based on a hierarchical setup. New recruits make up the base of the pyramid and provide the funding, or so-called returns, given to the earlier investors/recruits above them.” (Investopedia. 2011)

We also touched on Discriminatory State Laws involving the invalid exercise of police power, favoring local interests over out-of-state interests, and intentions to reduce competitive advantage – finally, state participants may have over local laws.  This can involve discriminatory out-of-state interests that do not pertain to race.

Skipping over more information it must be noted that Police Powers are of grave importance. These powers are to protect the public welfare, security, health, and safety of the public at large. It is important to understand that abuse of the above will lead to judicial court (Judicial Branch of Law).

The rights in the state constitution that are not provided for in the U.S. Constitution, which was very interesting – especially if one does not know this beforehand. Those rights include education, victims’ rights, right of revolution, water rights, care of the needy, freedom from private discrimination based upon Gender, Race, Ethnicity, Culture, Political beliefs, and Religion.

One more important fact is that interstate means dealing with other states outside of one’s own state.  Intrastate involves dealings within one’s own state.  With the advent of the Internet, we are hard-pressed to enact laws that govern what is intrastate because most of the Internet spreads widely via interstate and around the world for that matter.

Reference

Investopedia. (2011). Pyramid Scheme. Retrieved on August 10, 2011 from, http://www.investopedia.com/terms/p/pyramidscheme.asp

4 thoughts on “Let’s Talk Sources of American Law: U.S. Constitution

  1. I want to argue that our Constitutional Republic has always been a fragile arrangement, but given how we’ve managed to survive several disasters, I’m not sure I could support such a statement. I will say that while I completely support the context of the Civil War amendments, how they were attained was an exercise in a corrupt government. Now, in 2022, looking back upon the Fourteenth Amendment, I think we need to take another look at the way it is written and do some fine-tuning.

    I’m also not a fan of the Seventeenth Amendment (authored by a Republican), which changed the relationship between several states and the federal government. Today, the U.S. Senate is less a body of wise and thoughtful Americans than it is a beauty contest. Moreover, (again in my opinion) federalism doesn’t look anything like what the Founding Fathers originally crafted, and I think that’s a shame. I believe the strength of our Constitutional Republic resides within our several states more than it does in the Federal government.

    Yet, despite all the bugaboos, our country survives. I’m just not sure how long we can continue down the road we’ve taken since the 1990s. Thank you for your work on this post!

    Liked by 1 person

    1. I can see your point on several issues and I do not disagree. I do not see our nation heading down a good path with Biden or Harris at the helm. The next three years if either lasts that long because I believe they cannot remain in office, will be quite telling. They are slowly destroying our nation. It does not matter how strong or fragile our Constitution is if the people in the congress and senate work for themselves, not the people. Just look at the response of AOC when confronted about her hypocritical stance on Covid then ending up in Florida. She said that “They just act like that and say those things about me because they want me (paraphrased).” It is beyond a beauty contest. To me, it seems more like a brothel!

      Liked by 1 person

  2. So in your opinion, was it the Founders intention that the House would represent and guard the rights of the people and the Senate those of the states? And didn’t the Civil War pretty much destroy that arrangement, stripping states of many of their rights (ala “armies”) and leaving the Senate more of a protector of “corporate” interests (via trade/ treaty).

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