Week 1 - Constitution

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1. What are the functions of a constitution? How does an "unwritten" constitution differ from a written constitution? What are the characteristics and content of the British Constitution? What is a constitutional system? What is constitutionalism? What is its central purpose? 350 word response 

2.The Magna Carta focused on the relationship between the Crown and the aristocracy (there was little, if any, attention paid to the "public" for many years). The prime importance of the Magna Carta is that everyone, including the King, is subject to law (under the Divine Right of Kings precept, Kings considered themselves to be above the law).

Which elements of our Constitution can you trace to the Magna Carta?

Likewise, what elements of the 1689 English Bill of Rights are found in our Constitution? 350 word response 

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LECTURE 2: HISTORICAL CONTEXT OF ENGLISH CIVIL RIGHTS Introduction -- John Adams has called the Constitution "the greatest act of national deliberation ever seen." George Washington describes the Constitution as "little short of a miracle." The Constitution is in fact the oldest written Constitution in the world (most of the others were adopted after World War II). The second oldest Constitution in effect in the world is Argentina's, which was drafted and ratified in 1853. God’s Providence is seen in the timing of the Constitution. Five years earlier the states were not yet ready for a more powerful central government. Five years later and the French Revolution may have altered the parameters of the Constitution. The United States began, of course, as an English colony, and English law became American law after the Revolution when the states adopted English common law as their own (an exception is Louisiana, which started as a French colony and France has no common law). The U.S. Constitution is different from Great Britain’s in two important ways: (1) the U.S. Constitution is written while the English Constitution is unwritten; and (2) More importantly, the Parliament is supreme over the unwritten constitution and the powers of Parliament are not well defined (at least not in writing). In the United States, Congress is subject to the Constitution and each branch has specific limited power. The Constitution is very important to the Rule of Law. Under this very important Rule, law is fixed and meant to be applied impartially to all. As you'll see, the Constitution was intended to have the federal government governing its authorized area with a very light hand, that the Constitution is more procedural and substantive, and that the Constitution left rights to the states and the people themselves. 1. 1215 -- Magna Carta King John was faced with a depleted royal treasury because of the Crusades and the ransom demands for Richard I. For their willingness to pay taxes, the English aristocracy forced the Crown to make the following concessions (page 657 of Cogan book): a. b. c. d. Crown cannot take property without paying for it No free man can be imprisoned unless found guilty at trial by his peers Established a competent judicial system Stirrings of representative government -- Barons may elect 25 barons to petition the King for grievances 2. 1450 -- Guttenberg Bible -- very significant technological advancement that profoundly affected the dissemination of information 3. 1485 -- The Lancastrians route the House of York, thereby ending the War of the Roses which had lasted for decades and had cast a cloud over the claims to the English throne. Henry VII, who won the Battle of Bosworth in 1485, took the throne and a year later married Elizabeth of York, thereby uniting both the House of Lancaster and the House of York. Henry and Elizabeth had four children: Arthur, Henry, Margaret (married James IV 1 of Scotland) and Mary. Henry reigned for 24 years, and during his reign he created the Privy Council (a forerunner of the modern cabinet) and the Court of the Star Chamber. As an alternative to taxes, Henry imposed upon the nobility forced loans and grants. His skill at bypassing Parliament (and thus the will of the nobility) played a crucial role in his success and formed the model for future Kings. Henry obtained the help of Spain in his constant fights with France by arranging the marriage of his eldest son, Arthur, to Catherine of Aragon, the daughter of Ferdinand and Isabella. Within months, Arthur died and rather than returning the dowry to the Spaniards, Henry VII arranged the marriage of Catherine to Arthur's younger brother, the future Henry VIII. 4. 1492 -- Columbus discovers the New World for Spain, and Spain becomes rich by confiscating the gold and other valuables of the indigenous people. 5. 1509 – Henry VIII takes the throne and reigns until 1547. Children: Mary (mother Catherine), Elizabeth (mother Ann Boleyn), Edward (mother Jane Seymour). Much has been written about the many wives of Henry VIII, and this will only scratch the surface. It is, however, important to understand the marital intrigue, since it very much affected England and its future colonies. a. As noted previously, Catherine of Aragon married Prince Arthur, who died before taking the throne. When Henry VII died, Henry VIII asked Catherine to marry him. Subsequently, Catherine had many failed pregnancies, and a son died after birth. She did have one daughter, Mary, who lived through childhood and, as we will see later, became Queen. b. Henry VIII for many years like his wife was committed to the Roman Catholic Church. After Luther started an uproar in Germany in 1517, Henry VIII wrote a pamphlet denouncing Luther and his ideas. For this pamphlet, the Pope in 1521 awarded Henry the title "Defender of the Faith," which would be short-lived. c. Henry was not a faithful husband and had many mistresses. Henry was driven by having a successor which, given the fragility of the English throne, was in the best interest of England. d. Henry became interested in Anne Boleyn, a woman in his court. Anne, however, did not want to become simply another mistress of Henry like her sister Mary before her. She wanted to be Queen or nothing else. During this time, Henry read a passage in the Bible saying that if a man marries his sister-in-law, he will be childless. He therefore sought a divorce from Catherine so that he could marry Anne. Catherine contended that she remained a virgin when married to sickly Prince Arthur, and that on this basis the Pope had originally given Henry dispensation to marry Catherine. Henry appealed his case to the Pope, seeking an annulment from Catherine. The Pope, who was politically tied to Catherine's nephew, Emperor Charles V, decided in favor of Catherine. Catherine thereafter became estranged from her husband and remained secluded for the rest of her life. e. Anne Boleyn, meanwhile, finally gave in to Henry's advances and became pregnant. This, of course, became quite problematic, since Henry was still married to Catherine. 2 Since the Roman Catholic Church was an obstacle to the divorce, Henry decided to take ecclesiastical matters in his own hands and appointed as Archbishop Thomas Cranmer. f. Henry and Anne married in January, 1533. Four months later, Cranmer declared Henry and Catherine's marriage null and void; five days later, he declared Henry and Anne's marriage to be good and valid. Shortly afterwards, the Pope excommunicated both Henry and Cranmer. In 1534, Parliament passed the Act of Supremacy, which established Henry and his heirs as the leaders of the Church of England. g. Anne was crowned Queen of England on June 1, 1533. Three months later, she gave birth to the future Elizabeth I of England. To Henry's displeasure, however, she failed to produce a male heir. Three miscarriages followed and by March 1536, Henry was courting Jane Seymour. Before marrying Jane Seymour, Henry had to get rid of Anne, which he did by trumping up charges of adultery and incest against her. Anne was found guilty of these charges and was beheaded. h. Jane Seymour became Queen in 1536 and gave Henry a son, Edward, and then Jane died shortly thereafter. After Jane's death, Henry promised to marry Anne of Cleves from Germany sight unseen. When Anne of Cleves arrived from Germany, Henry was disappointed and the marriage was never consummated. The next wife was Katherine Howard, who was Queen for 18 months. Katherine was a teenager when she married Henry, but she had two lovers before marriage and several during her marriage. She too was beheaded. Henry's last wife was Katherine Parr, who did not want to marry Henry, but he insisted, and so they did. Katherine was married to Henry for four years when he died at the age of 55. 6. 1517—Martin Luther nailed the 95 Theses (debating points) to the door of the Catholic Church at Wittenberg, Germany. Luther and Calvin, similar to previous theologians in the Church, wanted to reform the church. Unlike previous reformers, however, Luther's reforms focused on doctrines, such as sole fide, sola scriptura, and consubstantiation rather than transubstantiation. As a reaction to Luther, the Catholic Church convened a series of councils at Trent (1536-1545), and although the Council of Trent reformed practices like indulgences, they reaffirmed the doctrine of transubstantiation, the continued vitality of church tradition, and the practice of works with faith. These doctrinal differences resulted in religious wars in Europe that lasted a century, finally ending in the Peace of Westphalia in 1648. Under this Treaty, the religious faith of the leader of a political subdivision became the faith of the people in the subdivision. This resulted in northern Europe being Protestant and southern Europe being Catholic. 7. 1530s-1540s – John Calvin, the Institutes of the Christian Religion and the School at Geneva 8. 1547-53 -- King Edward VI -- Edward became king at the age of nine, and reigned for six years. Because he had not reached maturity, his uncles served as regents for him. Especially influential during this time was Archbishop Cranmer, who helped Edward turn England Protestant by publishing the Bible in English, eliminating the Mass and celibacy of priests, and adopting the Book of Common Prayers. 9. 155 3-58 – Mary I – Edward VI was succeeded by his Catholic half-sister, Mary Tudor, who was the daughter of Henry and Catherine. Mary tried to reverse the direction Edward pushed the nation and tried to re-Catholicize England. The Book of Common Prayer 3 instituted by King Edward was abandoned, Protestant bishops were replaced by Catholic bishops, and the doctrine of transubstantiation returned. Mary married Philip II, King of Spain (more on him momentarily). During Mary's five-year reign, many Protestants were killed, giving her the nickname of Bloody Mary. 10. 1558-1603 – Elizabeth I – Mary was succeeded by her half-sister Elizabeth, the daughter of Henry and Anne Boleyn. Elizabeth tried to find a middle ground between Catholicism and Calvinism. To please the Protestants, Elizabeth confirmed the break with Rome and reintroduced the Book of Common Prayer. She also, however, tolerated worship by Catholics. Because Elizabeth returned England to a form of Protestantism, her brother-inlaw, Philip II of Spain, unleashed the Spanish Armada. Because Elizabeth allowed elements of Catholicism to remain in the Church of England, there arose a group of Protestants who wanted to purify the church of remaining popish influences. These Protestants were called Puritans. The Virgin Queen died childless, so Parliament on Elizabeth’s death asked James VI, a cousin of Elizabeth (the grandmother of James was a sister of Henry VIII), to take the English Crown as James I. 11. 1603-25 – James VI/I – James may be best known as the king who authorized the publication of the Bible (1605). James loved at least two things: (1) the doctrine of the Divine Right of Kings; and (2) spending money. The love of these two things resulted in conflict, since the only way the King could collect taxes is by calling Parliament, and Parliament trampled upon what James believed was his divine right to rule. Therefore, James started raising money without parliamentary authority. This included selling monopoly licenses (the Virginia Company – Jamestown in 1607), raising import and export duties, and selling titles (earls, barons and knights). Because of this revenue creativity, James did not call Parliament into session for 10 years. When Parliament finally met because James needed even more money than he could raise through his creativity, Parliament criticized James's foreign policy and raising money without its consent. In reaction, James dissolved Parliament and arrested some dissident MPs. During this time, the Puritans continued to be upset at the Church of England's mix of Protestantism and Catholicism, and they continued to grow in numbers. During the reign of James I, the Pilgrims came to America in 1621, and the Puritans began their big migration to Massachusetts in the 1620s and 1630s. 12. 1625-49 – Charles I – Like his father, Charles I was a proponent of the Divine Right of Kings. Charles made the mistake of marrying a Catholic princess, which resulted in continuing suspicions concerning his theological leanings. In 1628, Parliament presented Charles I with the Petition of Rights (Cogan at 666-67). The Petition of Rights reminded the king of past concessions (e.g., The Magna Carta), and the Kings’ offenses against these provisions. Article X reiterates no taxation without representation, that no free man can be imprisoned without due process, and requires the removal of quartering of soldiers. Charles tried to impose the Book of Common Prayer on the Scottish Presbyterians. They rebelled, Charles attacked and failed to conquer Scotland. He knew he needed money for an army, so he called for the first Parliament in 11 years. This session, called the Short Parliament, lasted only three weeks. When the Scots attacked again, Charles lost again, and he then called another Parliament into session which met in 1640 (the “Long Parliament”) and refused to give Charles command of the army. What Parliament gave 4 Charles I instead was the Grand Remonstrance, which in 210 numbered paragraphs outlined Charles’s religious and political abuses over the previous 10 years. This resulted in Charles trying to arrest five MPs, and Charles and Parliament began asserting conflicting authority over the militia and the Navy, with both sides beginning preparation for a Civil War. England divided essentially into two camps as result of this feud between the Crown and Parliament. The northern and western counties of England sided with the King, and the southern and eastern portions of England sided with Parliament. Rising above all on the Parliament side (called “Roundheads" because of their haircuts) was a MP who was also a brilliant cavalry leader. Oliver Cromwell rose to lead the Army to a series of military victories over the Cavalier/Royalists, while the Scottish “Covenanters” were defeating the Royalists in Scotland. Facing defeat, Charles I surrendered to the Scots (remember his family ties to Scotland). Seeing England in turmoil, the Irish revolted. For fear of a Catholic revival, the Scots handed Charles over to Parliament for a bounty of 400,000 pounds. Before peace could be concluded between the King and Parliament, the Army took King Charles prisoner. Like in many other places, however, there was dissension in the Army, and a segment of the Army allowed King Charles to escape to Scotland. In Scotland, Charles I crafted a deal whereby the Scots would give him an army for Charles's promise to introduce Presbyterianism in England for three years. When Charles I marched into England with the Scottish army, Cromwell defeated him. The question then arose as to what to do with the King. The army took control of the situation and on December 6, 1648, Col. Thomas Pride stood at the door of Parliament and arrested 40 MPs considered sympathetic to the King. In all, Pride and his colleagues excluded a total of 140 MPs from Parliament. The Rump Parliament then proceeded with only 56 members to consider charges of treason against the King. King Charles I did not respond to the charges of treason against him because he thought the parliamentary court illegitimate. After the conclusion of the case, the MPs present rendered a verdict of guilty against the King, and Charles I was beheaded three days later. 13. 1649-58 – Oliver Cromwell, Lord Protector -- There was no succession plan after the Regicide, and Parliament splintered as to who was to take control. In April, Cromwell entered Parliament with a detachment of soldiers and dispersed Parliament. Cromwell prepared an Instrument of Government and presented it to Parliament. In this Instrument, a Lord Protector with the aid of a Council of State would have the executive power in England. Parliament was to meet at least once every three years, could not be dissolved without its consent, and it would consist of representatives from all four nations of Great Britain (a Republic). The Lord Protector could delay bills for 20 days, but could not prevent their passage. The Lord Protector would have control of the Army, and there would be freedom of worship for all except Catholics and Quakers. Cromwell ruled by decree for year, and when Parliament met, it considered and then rejected the Instrument of Government. Cromwell then dissolved Parliament. 5 Cromwell recalled Parliament in 1657, and it proposed to Cromwell The Humble Petition and Advice by which: (1) Parliament would become bicameral; (2) nobody elected to the House of Commons could be excluded; (3) Parliament would approve appointments to the Council of State; and (4) the Lord Protector could name his successor. Cromwell considered this, but did not sign it. The next Parliament then criticized and rejected the Humble Petition and Cromwell, so he dissolved Parliament again. 14. 1658-59 – Richard Cromwell, Lord Protector – Oliver Cromwell died, and his son became his successor. These were very tough times in England, however, since the government was broke and the entire country was going into anarchy. The Army then called on the one person who could command widespread support, Charles II, the son of Charles I. 15. 1660-85 – Charles II -- The "Merry Monarch" was a shrewd man who preferred not to take too great an interest in affairs of state. As long as he enough time and money to pursue his real interests (gossip, philandering, sports), he was not inclined to push great matters of state. During his time, Parliament was determined to punish and marginalize the religious malcontents on both sides. It therefore prohibited from holding office all those who did not conform to the Church of England. Parliament did perform one very worthy act during the reign of Charles II, this being the Habeus Corpus Act of 1679 (Cogan at 679). Although Charles had 14 illegitimate children with mistresses, he and his wife were childless. When he died, Charles’s brother James II ascended to the throne. On his deathbed, Charles II converted to Catholicism and therefore joined the faith of his brother. 16. 1685-88 -- James II – The prospect of a Catholic monarch filled the British Protestants with dread. They remembered the bloody persecutions of Mary and the attempted invasion of the Spanish Armada. The early actions of James confirmed their fear when he formed a permanent standing army and promoted Catholic officers to senior posts in both the Army and Navy. The turning point was the birth of a male heir in 1868. While James and his wife lacked a male heir, his Protestant daughter Mary was next in line to the throne, and she had married the continent’s foremost Protestant soldier, William of Orange. But the birth of a son had now opened up the path to a permanent Catholic succession. In July, 1688, a group of leading Protestant nobles and clergy invited William to invade England and save the country. After a short hesitation, William accepted and landed with 15,000 men. Almost immediately, James's support disintegrated. Several counties and towns declared for William, as did James's leading general, Churchill. After marching south to confront William shortly after his landing, James lost his nerve and retreated to London at the head of a much larger army. James went into exile in France and tried to raise an army to support his restoration. When James tried to invade, William defeated him and James went into permanent exile. 17. 1688-1702 – William III & Mary II – The Glorious Revolution – when William and Mary ascended to the throne, Parliament with their consent established a limited monarchy. The most important document was the Bill of Rights in 1689 (Cogan at 689). This Bill of Rights withdrew the King’s power to suspend or implement laws without parliamentary consent, raise money without parliamentary approval, maintain a standing army without parliamentary approval, interfere with the election of MPs, and create courts to investigate ecclesiastical issues. Additional acts during the reign of William and 6 Mary included prohibiting the formation of a standing army without parliamentary consent, guaranteeing limited freedom of worship to the dissenting Protestants, and requiring the convening of Parliament at least once every three years. 18. 1702 - present – House of Hanover – William and Mary also died childless, and through the Act of Settlement, the throne of England went to the Elector of Hanover, a descendent of James I. George I ascended to the British throne in 1702, and his family has reigned ever since. Why is this relevant to the study of American history and the Constitution? 7 Dr. Almon Leroy Way, Jr., The American System of Government: Government & Politics in the U.S.A., available at http://www.proconservative.net/CUNAPolSci201PartTwoB.shtml (last visited June 7, 2020). CONSTITUTIONALISM: THE FIRST ESSENTIAL INGREDIENT OF MODERN CONSTITUTIONAL DEMOCRACY What is a constitution? What are its functions? How does an "unwritten" constitution differ from a written constitution? What are the characteristics and content of the British Constitution? What is a constitutional system? What is constitutionalism? What is its central purpose? What are the different ways in which a constitution may limit political authority? How can a government be constitutional without being democratic? 1. Constitution--Nature and Functions Constitution--A Definition. A constitution is the body of law that is the basic, or fundamental, law of a politically organized society. The Constitution is the supreme law of the political society; it is higher than and takes precedence over all other laws of the society. All the other laws, to be valid and enforceable, must be in accord with the higher and superior law of the Constitution. An official decision of any governmental institution or office must be in harmony with the Constitution, the supreme law of the political community. The legislature, the executive, and the courts must follow the Constitution. In the U.S.A., every law enacted by a legislature and every decision or action of an executive office or agency must be in accord with the Constitution of the United States, the supreme law of the land. The constitutionality of any legislative statute or executive decision or action can be challenged in the courts of law. If the governmental decision or action in question is found by the courts to be contrary to the Constitution, they will uphold the Constitution and set aside the unconstitutional decision or action of the legislature or of the executive. The Functions of a Constitution. In a society with a genuinely constitutional political regime, the Constitution (1) provides the legal foundation and basic structure, or framework, of the society's government, (2) prescribes the form and procedures of the government, (3) grants certain powers to the government, (4) designates the major organs, or institutions, of government and the method by which the personnel--or top personnel--in each are to be selected, (5) assigns to each major governmental institution its particular area of authority and responsibility, (6) defines the relationship between the government and the individual citizen as well as the relationships among the principal organs of government, and (7) establishes the metes and bounds of political authority--i.e., imposes limits on governmental power. 2. Constitutions--Written and Unwritten: A constitution can be written or unwritten. Written Constitutions. A written constitution is codified. That is, a single constitutional document, titled "the Constitution," serves as the basic law of the political society and as the legal foundation of its government. The entire body of fundamental law for the society is contained in a single document, as amended. With one significant exception, every constitutional political regime in the world today operates on the basis of a written constitution. Contemporary examples of written constitutions include the Constitution of the United States of America, the Constitution of the Fifth French Republic, the Basic Law of the Federal Republic of Germany, the Constitution of the Swiss Confederation, and the constitutions of the 50 semiautonomous (partly selfgoverning) states comprising the American federal union (e.g., the Constitution of the State of South Carolina). In the U.S.A., the Federal Constitution--the Constitution of the United States of America --is the basic law of American society, governs the operation of the national government, and establishes the formal power relationships between the national government and the 50 semiautonomous states as well as the formal power relationships among the principal organs, or institutions, of the national government. The U.S. Constitution is a single document consisting of the seven original articles drafted by the Federal Constitutional Convention of 1787 and subsequently ratified by the 13 original states, plus the 27 amendments that have been added to the document during the 211 years that have elapsed since ratification and adoption of the Constitution. An Unwritten Constitution. The governmental system in present-day Great Britain is the only contemporary constitutional regime that does not operate on the basis of a written constitution. The British Constitution is an "unwritten" constitution in the sense that it is uncodified. There is no single document called "the British Constitution" or "the Constitution of the United Kingdom of Great Britain and Northern Ireland." There is no single constitutional document that contains the entire body of fundamental law governing the operation of the British government. The constitutional rules which shape and determine the formal-legal nature and functioning of government in the United Kingdom are contained in a centuries-old collection of historic documents, acts of Parliament, Common Law, constitutional customs and traditions, and long-standing political usages, or practices. Some parts of the British Constitution are written, but many more are not. Written elements of Great Britain's Constitution include several important constitutional documents which were adopted at different points in the history and development of English/British constitutionalism and which are major milestones in that long period of legal and political evolution--Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689). The written elements also include parliamentary statutes that have attained constitutional status--e.g., the Habeas Corpus Act of 1679, the Act of Settlement of 1701, the Reform Acts of 1832, 1867, 1884, 1918 and 1928, and the Parliament Acts of 1911 and 1949. In addition to the foregoing, the British Constitution contains important decisions of the courts of law, especially as regards the Common Law--the vast body of judge-made law that, beginning in the twelfth century, evolved from custom and judicial precedent. Constitutionally significant aspects of the Common Law include, among other things, the judicial precedents establishing the legal principles and rules governing protection of the individual British subject's basic rights and liberties. The constitutional principles and rules established by decisions handed down in the Common-Law courts are contained in neither historic constitutional documents nor constitutionally significant statutes and are therefore considered to be among the unwritten parts of the Constitution. However, the original statements of these principles and rules can be found in the written court records. The unwritten elements of Britain's Constitution include constitutional customs and traditions, e.g., those relating to special privileges enjoyed by Parliament and its individual members. More importantly, the unwritten elements include what are called the "conventions of the Constitution"--a series of long-established and highly significant political usages which have the same force as the provisions of a written constitution. These conventions are fundamental rules of political practice and make up a wholly unwritten but crucial part of the Constitution. Among the more important of the conventions--the unwritten basic rules of political practice--are those which dictate that (1) Parliament shall convene at least once every year, (2) the Monarch shall appoint as Prime Minister the member of Parliament who enjoys the confidence and support of a majority in the elective chamber of Parliament, the House of Commons, (3) the Crown shall appoint to the other posts, or offices, in the Cabinet the persons recommended by the Prime Minister, (4) the Monarch shall follow the advice of the Prime Minister, (5) only the Prime Minister shall have access to the Monarch and their discussions shall be kept secret, (6) the Monarch shall not attend meetings of the Cabinet, (7) the Prime Minister and other Cabinet members shall be collectively responsible (i.e., jointly accountable) to the House of Commons on matters of public policy, (8) upon losing the confidence and support of the majority in the Commons, either the Prime Minister and other Cabinet members shall resign their positions in the Cabinet or the Prime Minister shall advise the Crown to dissolve Parliament and call a national election, (9) the Monarch shall automatically assent to parliamentary legislation--i.e., the Crown shall not veto a legislative bill passed by Parliament, and (10) Parliament shall not enact any statute that would have the effect of destroying or seriously weakening the basic constitutional and democratic features of the British political regime--e.g., Parliament shall not repeal the Bill of Rights or pass an act restricting the electoral franchise to a small minority of the adult population. Violation of the conventions of the Constitution is a most infrequent (in fact, virtually nonexistent) practice in Britain. In short, the British Constitution is a body of fundamental law that has evolved over a very long period of time--a period of many centuries. Rather than consisting of a single document, Britain's Constitution contains numerous written and unwritten elements--all of which, in combination, perform essentially the same functions as does a body of written basic law contained in one document, as amended. There are five particular sources of the basic law of the United Kingdom--historic constitutional documents, parliamentary statutes that have attained constitutional status, judicial decisions of constitutional significance, constitutional customs and traditions, and the conventions of the Constitution. If a person seeks to discover the basic rule or rules determining constitutionally permissible governmental action on a given point or issue, he may have to consult all five sources of British fundamental law. In every other country with a constitutional system of government, the present-day Constitution is a single document which was drawn up and adopted at a particular time, went into effect on a specific date, and subsequently has been amended from time to time. 3. Constitutional System--Definition and Example If a society's system of government is truly constitutional in character--i.e., if the government operates under and in accord with a constitution effectively limiting and controlling the power of that government--the society has a constitutional system. Simply and briefly defined, a society's constitutional system consists of the power relationships existing among the principal organs of government and resulting from the constitutional division and distribution of political authority among them. The constitutional system includes the formal role or roles in the governing process played by each of the principal governmental institutions under the Constitution. In American society, for example, the United States Constitution (1) divides and distributes the legitimate authority of government between the central government over the whole nation and the governments of the member-states of the federal union, (2) reserves certain governmental powers to the states, while denying them certain other powers, (3) delegates certain powers to the national government and expressly prohibits it from exercising certain other powers, (4) allocates the powers delegated to the national government among the principal organs of that government (the U.S. House of Representatives, the U.S. Senate, the President of the U.S.A., and the U.S. Courts), granting each governmental organ a separate set of powers and giving it a strong incentive as well as the legal right to oppose, block, check, and restrain the other organs, and (5) imposes certain limitations on both the central government and the states by guaranteeing civil liberties, i.e., the basic rights and liberties of the individual citizen. The manner in which the U.S. Constitution grants, distributes, and limits political authority results in an established set of power relations between the national government and the states and among the major offices and institutions of the national government. These power relationships among the various levels and organs of American government result in established patterns of authoritative decision-making and action on public policy and an established role or set of roles for each level or organ of government in the legitimate processes of authoritative decision-making and action. The power relations, the processes of authoritative decision-making and action, and the formal roles of the major participants in these processes--all of which are characteristic of the American governmental system and stem from the manner in which the U.S. Constitution grants, allocates, and restricts governmental authority--make up the American constitutional system. 4. Constitutionalism--Nature and Central Purpose Constitutionalism--A Definition. Constitutionalism is government conducted in accordance with and within the limits set by the fundamental law of the Constitution. The Constitution, as a body of written or unwritten basic law, is superior to and takes precedence over all ordinary acts of the legislature and over all decisions and actions of the executive branch of the government. Under the Constitution, restrictions on the discretionary authority of public officers and institutions are clearly recognized and regularly enforced. In short, the Constitution effectively limits the power of government. Thus, constitutionalism is limited government--limited government under a constitution. A constitutional government is one whose powers are effectively limited by law--limited by the fundamental law of the Constitution. To be genuinely constitutional in character, a government must comply with two fundamental legal requirements: (1) The government must operate in accord with the provisions of the Constitution. (2) The government must not exceed the authority granted to it by the Constitution. The essential features of constitutionalism are the government's compliance with these two basic legal requirements. The Central Purpose of Constitutionalism. The central purpose of constitutionalism is to limit governmental power, to check and restrain the persons who hold public office and exercise political authority. 5. Different Ways in which a Constitution May Limit Political Authority In a constitutional system of government, the Constitution may limit the power of government in two different ways. The Constitution may limit governmental power by (1) specification of procedures and prohibitions and/or (2) provision for a system of divided and balanced political authority. a) Specification of Procedures and Prohibitions: Procedural Limitations. The Constitution prescribes certain procedures that must be followed by public officeholders and institutions in making and enforcing the authoritative decisions of government. This limits the alternative ways in which the government may exercise its formal-legal powers; and to limit the government's alternatives, is to limit its discretionary authority. The government's discretionary authority is circumscribed, or restricted, by requiring its officers, agencies, and institutions to follow constitutionally prescribed procedures in taking official action. The government cannot legally do anything it pleases in any manner it pleases. It must follow the procedures specified in the Constitution. In the U.S.A., for example, the national government, in taking official action against the individual citizen, must follow the procedures spelled out in the U.S. Constitution. Among such procedures mandated by the Federal Constitution are the requirements that (1) before a person may be made to stand trial for a federal crime, a grand jury, by indictment or presentment, must officially accuse him of having committed the crime [Fifth Amendment], (2) the government must follow due process of law in depriving a person of life, liberty, or property [Fifth Amendment], (3) just compensation must be made for private property taken for a public purpose [Fifth Amendment], and (4) in all criminal prosecutions, the accused must (a) be provided a speedy and public trial by an impartial jury, (b) be informed of the nature and cause of the accusation, (c) be confronted by witnesses against him, (d) have compulsory process for obtaining witnesses in his favor, and (e) have the assistance of counsel for his defense, provided the accused does not willingly and knowingly waive the foregoing rights to a fair trial [Sixth Amendment]. In summary, constitutional imposition of procedural limitations on the exercise of political authority means that, while the government possesses the authority to take action on a given matter, it must do so according to a constitutionally prescribed pattern or sequence. If the action taken by the government is to be legitimate, the government must, in the course of that action, observe and comply with all the constitutional requirements and do so in the constitutionally prescribed order. Substantive Limitations. In addition to restricting political authority through specification of procedures that the government must observe when making and enforcing decisions, a constitution may limit government power by enumerating certain types of decisions that the government is prohibited altogether from making and enforcing. In other words, governmental authority is circumscribed by constitutional prohibitions withholding from government particular kinds of decision-making and action taking authority. There are some things that the government cannot legally do at all, regardless of the procedure followed. The First Amendment to the U.S. Constitution, for example, denies government the authority to make any "law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances." b) Divided and Balanced Political Authority: Balanced Government and its Objective. In a political regime characterized by divided and balanced political authority, the Constitution limits governmental power by providing for a system of balanced government or checks and balances. That is, the Constitution (1) creates several principal organs, or institutions, of government that are separate from and largely independent of each other, (2) divides political authority and distributes it among the principal governmental organs, and (3) gives to each organ the motive as well as the authority to oppose and counteract the other organs. Hence, the organs of government exercise a series of checks and restraints on each other, preventing any one organ from exceeding its powers, encroaching on those of the other organs, and upsetting the equilibrium of power in the government. By opposing and blocking one another, the principal organs of government prevent any one organ from usurping the authority of the other organs and gathering enough power in its own hands to dominate the entire government. In other words, the Constitution provides for a governmental structure designed to limit political authority by maintaining a balance of political power in the government as a whole, preventing any one power center in the government from dominating the others and exercising unchecked, overriding political power. Thus, the objective of constitutionally providing for a system of divided and balanced political authority is to prevent concentration of political power in a single power center. Operation of a system of balanced government is expected to (1) prevent any one institution or office of government from dominating the entire government all and its parts and (2) thereby make it impossible or extremely difficult for any one person, group, or faction-whether supported by a majority or minority--to dominate the entire government and use that position of dominance to accumulate and exercise unlimited power over the society and its members. By maintaining a balance of power in the government and preventing domination of the entire government by a single governmental organ, the system makes it very very difficult, if not impossible, for any one political organization --even one consisting of a majority of the voters--to (1) win complete control of the government, as the result of victory in a single election, (2) take complete charge of the entire nation, or political society, (3) exercise the authority of government entirely or almost entirely in the service of a particular religious sect, political ideology, or set of narrow interests, and (4) ignore and ride roughshod over the rights and vital interests of all other segments of the population. Balanced Government--A Summary. In a political society with a functioning system of balanced government, the Constitution limits the power of government by dividing political authority and distributing it among several separate and largely independent institutions of government. Authority is distributed in such manner as to ensure that these governmental institutions will (1) check and restrain one another and (2) prevent any one of them from (a) usurping the authority of the others, (b) concentrating all governmental power in its own hands, (c) becoming the dominant power center in the government, and (d) exercising unchecked political power. In other words, governmental power is limited by operation of a constitutional system which maintains an equilibrium, or balance, of power in the government. This constitutional arrangement makes it extremely difficult for a single political organization, driven by adherence to religious dogma or political ideology or by commitment to a set of narrow interests, to obtain complete control of the government and use its position of political ascendancy to exercise unbridled political power over the society at large, governing in an overbearing and tyrannical fashion. c) Limited Government under the United States Constitution: The U.S. Constitution limits governmental authority in both ways--by specifying procedures and prohibitions that the government must observe and by providing for a system of divided and balanced political authority. The Federal Constitution requires the U.S. government to follow prescribed procedures, prohibits altogether certain governmental decisions and actions, and allocates authority among the major government offices and institutions so as to ensure maintenance of a balance of political power among them. 6. Constitutionalism and the "Rule of Law": Constitutionalism is closely related to the Anglo-American political principle called the "rule of law." The "rule of law," a concept deeply rooted in the history and development of law in England and English-speaking North America, means the "supremacy of law." In any political society operating under the rule of law, the law is supreme over officeholders in the government, as it is over the general populace. In the society, there is a single body of law applicable to all members of the society, a body of law applicable to those who govern as well as those who are governed. Government officers, like ordinary citizens, are subject to and must abide by the law; no one is above the law. Government officers, agencies, and institutions must, among other things, follow legally prescribed procedures and observe the legally guaranteed rights of individuals. The rule of law strongly implies that there are limits to political authority, that there are limits to the power of any governing elite to rule society, no matter how that elite acquired governing authority. All the organs and offices of government--the legislature, the executive, the administrative agencies, and even the courts of law--are required to observe and operate according to recognized and established rules of procedure. In short, a society's adherence to the rule of law means that the law circumscribes the discretionary authority of government officeholders, agencies, and institutions. The rule of law places particular emphasis on the protection of individual rights and liberties by and under law. The law guarantees the individual citizen certain rights and liberties and protects them from arbitrary interference or deprivation by government officeholders. The government, in proceeding against an individual, must follow due process of law. The government cannot legally deprive a person of life, liberty, or property without due process of law. That is, the government, in taking punitive action against a person, is required to act in strict accordance with legally established procedures. The government officeholders cannot, without violating the law, arbitrarily execute or imprison an individual or confiscate his property, disregarding the established rules of procedure. Under the rule of law, legal means are available for holding government officers responsible if they violate the Constitution or other laws of the political community. In the U.S.A., for example, the Federal Constitution prescribes the procedures for removing officers of the national government when they violate the law. If the President, the Vice President, a federal judge, or a department head or other civil officer in the executive branch of the national government is suspected of treason, bribery or other serious crime, he is subject to (1) impeachment by majority vote in the U.S. House of Representatives, (2) trial by the U.S. Senate, and (3) removal from office, on conviction by two-thirds vote in the Senate. A member of either chamber of Congress may be expelled from that chamber by two-thirds vote in the chamber. Moreover, all government officeholders, like ordinary citizens, are subject to civil action and criminal prosecution in the courts of law. 7. Constitutional Oligarchy--Constitutionalism without Democracy: A constitutional government is not necessarily a constitutional democracy. That is to say, a political regime can be constitutional without being democratic. An important example of a non-democratic constitutional regime in European history is the English/British system of government during the seventeenth, eighteenth, and early nineteenth centuries. From 1689 to 1832, the government of England (Great Britain, after 1707) operated under and in accord with a constitution that included a bill of rights, the English Bill of Rights. The British Constitution limited the authority of the Monarch and defined the relationships among the principal organs of government--Crown, House of Commons, and House of Lords. The British government also operated in accord with the principle of political representation (or representative government) --the principle that all new laws (and all changes in existing laws) must, in order to go into effect, have the consent of an assembly elected by the voters. Proposed legislation had to be introduced into the chambers of Parliament and could not become law without approval by majority vote in the elective chamber--the House of Commons. Despite its representative character, the political regime was far from being democratic, since only a very small proportion of the adult male population had the legal right to vote in elections to choose members of the House of Commons. The wealthy and propertied minority within British society, especially the large landholders and merchants, controlled the election of the Commons membership. With the principles of constitutionalism and political representation operating within the context of a limited electoral franchise, the governing authority of the Kingdom was in the hands of a small elite group whose political power was limited by the Constitution. The British system of government from 1689 to 1832 was a constitutional oligarchy, not a constitutional democracy. With Parliament's passage of the Reform Act of 1832, Britain began the transition from constitutional oligarchy to constitutional democracy. The Reform Acts of 1832, 1867, 1884, 1918, and 1928 extended the right to vote in parliamentary elections, progressively increasing the proportion of the adult population that was included in the electorate. Step by step, Parliament continued to increase the size of the electorate until universal adulthood suffrage had been achieved. Today, virtually all adult British subjects are legally entitled to register as voters and vote in parliamentary elections. 8. Constitutionalism--A Summary: Constitutionalism is government conducted in accordance with and within the limits set by a written or unwritten constitution--a body of law that is superior to and takes precedence over all ordinary laws, decisions, and actions of government offices, agencies, and institutions. A constitutional government, whether democratic or oligarchical, operates in accord with the provisions of a constitution and does not exceed the authority granted to it by that constitution. The purpose of constitutionalism is to limit the power of government. A constitution generally limits governmental power by requiring the government to follow prescribed procedures in making and enforcing official decisions and by prohibiting altogether the government's taking certain decisions and actions. Instead of or in addition to the foregoing method of limiting governmental authority, a constitution may accomplish the objective by structuring the government in such manner as to ensure maintenance of a balance of power among the principal organs of government. Constitutionalism is closely related to the political principle known as the "rule of law." Under the rule of law, the law is supreme over government officeholders, who, like ordinary citizens, are subject to and must abide by the law. Government institutions and officers must, among other things, follow procedures prescribed by law and observe the legally guaranteed rights and liberties of individuals. British Origins of American Constitutionalism Created by Tom Driscoll http://driscoll-class.wikispaces.com/ Modified by Crystal Barnett Objectives  Explain how rights and representative government developed in England and how this evolution influenced the Founders.  Identify the origins of some of Americans’ most important constitutional rights.  Evaluate, take, and defend positions on  The influence of the British Constitution on the development of rights.  The importance of habeas corpus and trial by jury. Vocabulary  Common Law  Precedent  Stare Decisis  Rule of Law  Writ of Habeas Corpus Plaintiff Complaint; Answer Introduction 1  John Adams: Constitution was “the greatest act of national deliberation ever seen.”  George Washington: “little short of a miracle.”  Oldest written Constitution in world  God’s Providence: Few decades after “First Great Awakening;” shortly before the French Revolution (very, very different)  Effect of Great Awakening: spread of literacy/education; break down of class barriers; new public perspective on gov’t Introduction 2  Organic laws of U.S.: Declaration of Independence, Articles of Confederation; Northwest Ordinance, and Constitution (appear in vol. I of US Code; fundamental laws)  Declaration of Independence is most overtly religious of the 4: “Nature’s God,” “Creator,” “Supreme Judge,” and “Divine Providence.”  Constitution more procedural – “nuts and bolts” Roots of English Government  After fall of the Roman Empire, England divided into tribes  1066 –William the Conquer unites tribes into a single Kingdom and establishes feudalism  English monarch  Made laws  Supervised law enforcement  Heard court cases  Defended the kingdom Development of “Common Law”  To simplify complicated web of local legal systems, William the Conqueror creates a common law for entire kingdom  Judges required to publish decisions which creates precedent to decide future cases  This system establishes law predictability and stability, and allows business to develop and flourish The “Rights of Englishmen”  Rights of Englishmen - Over time, monarchs and judges came to recognize certain personal rights (trial by jury of one’s peers)  Magna Carta (1215) –King John forced to sign a charter confirming certain traditional rights  Rule of Law - every member of society (even monarch) must obey laws; outlaws arbitrary gov’t  Basic Rights - establishes redress of grievances (compensation for loss or wrong done to those if the Crown infringes on their common law rights) Parliamentary Government Begins  1295 -Edward I summons “Model Parliament” - 2 Representative Parts (Houses) - House of Lords: Nobility & Church officials - House of Commons: Citizens & Knights (w/ wealth & status)  For monarchs, Parliament was a convenient way to negotiate with all of the country’s interests at once  English subjects found it to be an effective way to voice grievances & limit monarchs’ power Important Dates/Events in English History I  1450 – Gutenberg  1485 – End of War of the Roses  1492 – Columbus  1509 – Henry VIII ascends throne – wives ◦ Catherine, Anne, Jane, Anne, Katherine x 2 ◦ “Defender of the Faith” to excommunicant ◦ Act of Supremacy (1534) Important Dates/Events in English History II  1517 – Martin Luther – (John Calvin 1530s-40s) Reformation and Catholic Counter-Reformation  1547-53 -- King Edward VI – Prot. briefly  1553-58 – Mary I – return to Catholicism  1558-1603 – Elizabeth I – middle ground and Spanish Armada  1603-25 – James VI/I – divine right/$$  1625-49 – Charles I – Petition of Rights (Supp. pg 4), Civil War, Rump Parliament, Regicide Important Dates/Events in English History III  1649-58 – Oliver Cromwell and the Republic – an Instrument & Humble Pet.  1658-59 – Richard Cromwell – anarchy  1660-85 – Charles II – “Merry Monarch” – Habeas Corpus Act (Supp. at 4)  1685-88 – James II and return to Catholicism  1688-1702 – William & Mary and the Glorious Revolution – Bill of Rights (Supp. at 5) English Bill of Rights  Influences on Founders  Rule of Law - Restated idea in Magna Carta that rule of law is the foundation of limited government  Representative Government - Only representative government is legitimate - Americans reject representation by social classes, instead favoring the idea of social equality 1702- Present – House of Hanover Why is all of this relevant/important? Summary of British Constitution  Not a single document, instead consists of common law, important acts of Parliament, and tradition.  Important documents include Magna Carta (1215), Petition of Right (1628), English Bill of Rights (1689).  Parliament is supreme and their power is undefined  Habeas Corpus Established  Government must justify why a person is held in custody.  Limits government from jailing persons arbitrarily or indefinitely Colonial Constitutionalism 1  History – Roanoke Island (1585, 1587)  Jamestown (1607) – First Charter of Virginia and Dale’s Code  Plymouth – Mayflower Compact (1620) ◦ first social compact in colonies ◦ created by Pilgrims, subset of Puritans who had given up on reforming Church of England, that had drifted off course and outside of land covered by Charter; some thought that no law applied, thus the Mayflower Compact ◦ no religious tolerance Colonial Constitutionalism 2  Fundamental Orders of Connecticut (1639) ◦ First Colonial constitution; drafted by Daniel Ward, Puritan pastor ◦ Provided a plan for self-government and formation of the goverment  Liberties of the Massachusetts Colonie (1641) ◦ Nathaniel Ward, Puritan pastor trained as lawyer ◦ Included purpose of government; term limits; limits to the number of times you could hold office  Frame of Government of Pennsylvania (1682)  Charter of Privileges (Pennsylvania) (1701) Based on the article by Dr. Almon Way, Jr CONSTITUTIONALISM: THE FIRST ESSENTIAL INGREDIENT OF MODERN DEMOCRACY Definition of Constitution “A constitution is the body of law that is the basic, or fundamental, law of a politically organized society. The Constitution is the supreme law of the political society; it is higher than and takes precedence over all other laws of the society. All the other laws, to be valid and enforceable, must be in accord with the higher and superior law of the Constitution. “ Functions of the Constitution “In a society with a genuinely constitutional political regime, the Constitution: 1. provides the legal foundation and basic structure, . . . of the society's government, 2. prescribes the form and procedures of the government, 3. grants certain powers to the government, 4. designates the major organs, or institutions, of government and the method by which the personnel-or top personnel--in each are to be selected, Functions of the Constitution (con’t) assigns to each major governmental institution its particular area of authority and responsibility, 6. defines the relationship between the government and the individual citizen as well as the relationships among the principal organs of government, and 7. establishes the metes and bounds of political authority-i.e., imposes limits on governmental power.” 5. Definition of Constitutionalism “Constitutionalism is government conducted in accordance with and within the limits set by the fundamental law of the Constitution. . . . [C]onstitutionalism is limited government--limited government under a constitution. A constitutional government is one whose powers are effectively limited by law--limited by the fundamental law of the Constitution. Purpose of Constitutionalism The purpose of constitutionalism is to limit the power of government. A constitution generally limits governmental power by requiring the government to follow prescribed procedures in making and enforcing official decisions and by prohibiting altogether the government's taking certain decisions and actions. Instead of or in addition to the foregoing method of limiting governmental authority, a constitution may accomplish the objective by structuring the government in such manner as to ensure maintenance of a balance of power among the principal organs of government. Characteristics of Constitutionalism  To be genuinely constitutional in character, a government must comply with two fundamental legal requirements: (1) The government must operate in accord with the provisions of the Constitution. (2) The government must not exceed the authority granted to it by the Constitution. The essential features of constitutionalism are the government's compliance with these two basic legal requirements.  Constitutionalism is closely related to the political principle known as the "rule of law." Under the rule of law, the law is supreme over government officeholders, who, like ordinary citizens, are subject to and must abide by the law. Government institutions and officers must, among other things, follow procedures prescribed by law and observe the legally guaranteed rights and liberties of individuals. The Foundational Documents of the American Legal System eLangdell® Press 2014 2 Table of Contents Notices ............................................................................................................................................................ 4 Magna Carta (1215) ....................................................................................................................................... 5 Mayflower Compact (1620) .......................................................................................................................10 The Declaration of Independence (1776) ................................................................................................12 The Articles of Confederation (1777) ......................................................................................................16 The Treaty of Paris (1783) .........................................................................................................................21 The Northwest Ordinance of 1787 ..........................................................................................................24 The Consitution of the United States (1787) ..........................................................................................28 The Bill of Rights (1791) ............................................................................................................................37 3 Notices This work is licensed and published by CALI eLangdell Press under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. 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Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI. This material does not contain nor is intended to be legal advice. Users seeking legal advice should consult with a licensed attorney in their jurisdiction. The editors have endeavored to provide complete and accurate information in this book. However, CALI does not warrant that the information provided is complete and accurate. CALI disclaims all liability to any person for any loss caused by errors or omissions in this collection of information. 4 Magna Carta (1215) [Preamble] Edward by the grace of God King of England, lord of Ireland and duke of Aquitaine sends greetings to all to whom the present letters come. We have inspected the great charter of the lord Henry, late King of England, our father, concerning the liberties of England in these words: Henry by the grace of God King of England, lord of Ireland, duke of Normandy and Aquitaine and count of Anjou sends greetings to his archbishops, bishops, abbots, priors, earls, barons, sheriffs, reeves, ministers and all his bailiffs and faithful men inspecting the present charter. Know that we, at the prompting of God and for the health of our soul and the souls of our ancestors and successors, for the glory of holy Church and the improvement of our realm, freely and out of our good will have given and granted to the archbishops, bishops, abbots, priors, earls, barons and all of our realm these liberties written below to hold in our realm of England in perpetuity. [1] In the first place we grant to God and confirm by this our present charter for ourselves and our heirs in perpetuity that the English Church is to be free and to have all its rights fully and its liberties entirely. We furthermore grant and give to all the freemen of our realm for ourselves and our heirs in perpetuity the liberties written below to have and to hold to them and their heirs from us and our heirs in perpetuity. [2] If any of our earls or barons, or anyone else holding from us in chief by military service should die, and should his heir be of full age and owe relief, the heir is to have his inheritance for the ancient relief, namely the heir or heirs of an earl for a whole county £100, the heir or heirs of a baron for a whole barony 100 marks, the heir or heirs of a knight for a whole knight’s fee 100 shillings at most, and he who owes less will give less, according to the ancient custom of (knights’) fees. [3] If, however, the heir of such a person is under age, his lord is not to have custody of him and his land until he has taken homage from the heir, and after such an heir has been in custody, when he comes of age, namely at twenty-one years old, he is to have his inheritance without relief and without fine, saving that if, whilst under age, he is made a knight, his land will nonetheless remain in the custody of his lords until the aforesaid term. [4] The keeper of the land of such an heir who is under age is only to take reasonable receipts from the heir’s land and reasonable customs and reasonable services, and this without destruction or waste of men or things. And if we assign custody of any such land to a sheriff or to anyone else who should answer to us for the issues, and such a person should commit destruction or waste, we will take recompense from him and the land will be assigned to two law-worthy and discreet men of that fee who will answer to us or to the person to whom we assign such land for the land’s issues. And if we give or sell to anyone custody of any such land and that person commits destruction or waste, he is to lose custody and the land is to be assigned to two law-worthy and discreet men of that fee who similarly will answer to us as is aforesaid. [5] The keeper, for as long as he has the custody of the land of such (an heir), is to maintain the houses, parks, fishponds, ponds, mills and other things pertaining to that land from the issues of the same land, and he will restore to the heir, when the heir comes to full age, all his land stocked with ploughs and all other things in at least the same condition as when he received it. All these things are to be observed in the custodies of archbishoprics, bishoprics, abbeys, priories, churches and vacant offices which pertain to us, save that such custodies ought not to be sold. [6] Heirs are to be married without disparagement. [7] A widow, after the death of her husband, is immediately and without any difficulty to have her marriage portion and her inheritance, nor is she to pay anything for her dower or her marriage portion or for her inheritance which her husband and she held on the day of her husband’s death, and she shall remain in the chief dwelling place of her husband for forty days after her husband’s death, 5 within which time dower will be assigned her if it has not already been assigned, unless that house is a castle, and if it is a castle which she leaves, then a suitable house will immediately be provided for her in which she may properly dwell until her dower is assigned to her in accordance with what is aforesaid, and in the meantime she is to have her reasonable necessities (estoverium) from the common property. As dower she will be assigned the third part of all the lands of her husband which were his during his lifetime, save when she was dowered with less at the church door. No widow shall be distrained to marry for so long as she wishes to live without a husband, provided that she gives surety that she will not marry without our assent if she holds of us, or without the assent of her lord, if she holds of another. [8] Neither we nor our bailiffs will seize any land or rent for any debt, as long as the existing chattels of the debtor suffice for the payment of the debt and as long as the debtor is ready to pay the debt, nor will the debtor’s guarantors be distrained for so long as the principal debtor is able to pay the debt; and should the principal debtor default in his payment of the debt, not having the means to repay it, or should he refuse to pay it despite being able to do so, the guarantors will answer for the debt and, if they wish, they are to have the lands and rents of the debtor until they are repaid the debt that previously they paid on behalf of the debtor, unless the principal debtor can show that he is quit in respect to these guarantors. [9] The city of London is to have all its ancient liberties and customs. Moreover we wish and grant that all other cities and boroughs and vills and the barons of the Cinque Ports and all ports are to have all their liberties and free customs. [10] No-one is to be distrained to do more service for a knight’s fee or for any other free tenement than is due from it. [11] Common pleas are not to follow our court but are to be held in a certain fixed place. [12] Recognisances of novel disseisin and of mort d’ancestor are not to be taken save in their particular counties and in the following way. We or, should we be outside the realm, our chief justiciar, will send our justices once a year to each county, so that, together with the knights of the counties, that may take the aforesaid assizes in the counties; and those assizes which cannot be completed in that visitation of the county by our aforesaid justices assigned to take the said assizes are to be completed elsewhere by the justices in their visitation; and those which cannot be completed by them on account of the difficulty of various articles (of law) are to be referred to our justices of the Bench and completed there. [13] Assizes of darrein presentment are always to be taken before our justices of the Bench and are to be completed there. [14] A freeman is not to be amerced for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villain other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence. [15] No town or free man is to be distrained to make bridges or bank works save for those that ought to do so of old and by right. [16] No bank works of any sort are to be kept up save for those that were in defense in the time of King H(enry II) our grandfather and in the same places and on the same terms as was customary in his time. [17] No sheriff, constable, coroner or any other of our bailiffs is to hold pleas of our crown. [18] If anyone holding a lay fee from us should die, and our sheriff or bailiff shows our letters patent containing our summons for a debt that the dead man owed us, our sheriff or bailiff is 6 permitted to attach and enroll all the goods and chattels of the dead man found in lay fee, to the value of the said debt, by view of law-worthy men, so that nothing is to be removed thence until the debt that remains is paid to us, and the remainder is to be released to the executors to discharge the will of the dead man, and if nothing is owed to us from such a person, all the chattels are to pass to the (use of) the dead man, saving to the dead man’s wife and children their reasonable portion. [19] No constable or his bailiff is to take corn or other chattels from anyone who not themselves of a vill where a castle is built, unless the constable or his bailiff immediately offers money in payment of obtains a respite by the wish of the seller. If the person whose corn or chattels are taken is of such a vill, then the constable or his bailiff is to pay the purchase price within forty days. [20] No constable is to distrain any knight to give money for castle guard if the knight is willing to do such guard in person or by proxy of any other honest man, should the knight be prevented from doing so by just cause. And if we take or send such a knight into the army, he is to be quit of (castle) guard in accordance with the length of time the we have him in the army for the fee for which he has done service in the army. [21] No sheriff or bailiff of ours or of anyone else is to take anyone’s horses or carts to make carriage, unless he renders the payment customarily due, namely for a two-horse cart ten pence per day, and for a three-horse cart fourteen pence per day. No demesne cart belonging to any churchman or knight or any other lady (sic) is to be taken by our bailiffs, nor will we or our bailiffs or anyone else take someone else’s timber for a castle or any other of our business save by the will of he to whom the timber belongs. [22] We shall not hold the lands of those convicted of felony save for a year and a day, whereafter such land is to be restored to the lords of the fees. [23] All fish weirs (kidelli) on the Thames and the Medway and throughout England are to be entirely dismantled, save on the sea coast. [24] The writ called ‘praecipe’ is not to be issued to anyone in respect to any free tenement in such a way that a free man might lose his court. [25] There is to be a single measure for wine throughout our realm, and a single measure for ale, and a single measure for Corn, that is to say the London quarter, and a single breadth for dyed cloth, russets, and haberjects, that is to say two yards within the lists. And it shall be the same for weights as for measures. [26] Henceforth there is to be nothing given for a writ of inquest from the person seeking an inquest of life or member, but such a writ is to be given freely and is not to be denied. [27] If any persons hold from us at fee farm or in socage or burgage, and hold land from another by knight service, we are not, by virtue of such a fee farm or socage or burgage, to have custody of the heir or their land which pertains to another’s fee, nor are we to have custody of such a fee farm or socage or burgage unless this fee farm owes knight service. We are not to have the custody of an heir or of any land which is held from another by knight service on the pretext of some small serjeanty held from us by service of rendering us knives or arrows or suchlike things. [28] No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word, without reliable witnesses being produced for the same. [29] No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice. [30] All merchants, unless they have been previously and publicly forbidden, are to have safe and secure conduct in leaving and coming to England and in staying and going through England both by land and by water to buy and to sell, without any evil exactions, according to the ancient and right customs, save in time of war, and if they should be from a land at war against us and be found in our 7 land at the beginning of the war, they are to be attached without damage to their bodies or goods until it is established by us or our chief justiciar in what way the merchants of our land are treated who at such a time are found in the land that is at war with us, and if our merchants are safe there, the other merchants are to be safe in our land. [31] If anyone dies holding of any escheat such as the honour of Wallingford, Boulogne, Nottingham, Lancaster or of other escheats which are in our hands and which are baronies, his heir is not to give any other relief or render any other service to us that would not have been rendered to the baron if the barony were still held by a baron, and we shall hold such things in the same way as the baron held them, nor, on account of such a barony or escheat, are we to have the escheat or custody of any of our men unless the man who held the barony or the escheat held elsewhere from us in chief. [32] No free man is henceforth to give or sell any more of his land to anyone, unless the residue of his land is sufficient to render due service to the lord of the fee as pertains to that fee. [33] All patrons of abbeys which have charters of the kings of England over advowson or ancient tenure or possession are to have the custody of such abbeys when they fall vacant just as they ought to have and as is declared above. [34] No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband. [35] No county court is to be held save from month to month, and where the greater term used to be held, so will it be in future, nor will any sheriff or his bailiff make his tourn through the hundred save for twice a year and only in the place that is due and customary, namely once after Easter and again after Michaelmas, and the view of frankpledge is to be taken at the Michaelmas term without exception, in such a way that every man is to have his liberties which he had or used to have in the time of King H(enry II) my grandfather or which he has acquired since. The view of frankpledge is to be taken so that our peace be held and so that the tithing is to be held entire as it used to be, and so that the sheriff does not seek exceptions but remains content with that which the sheriff used to have in taking the view in the time of King H(enry) our grandfather. [36] Nor is it permitted to anyone to give his land to a religious house in such a way that he receives it back from such a house to hold, nor is it permitted to any religious house to accept the land of anyone in such way that the land is restored to the person from whom it was received to hold. If anyone henceforth gives his land in such a way to any religious house and is convicted of the same, the gift is to be entirely quashed and such land is to revert to the lord of that fee. [37] Scutage furthermore is to be taken as it used to be in the time of King H(enry) our grandfather, and all liberties and free customs shall be preserved to archbishops, bishops, abbots, priors, Templars, Hospitallers, earls, barons and all others, both ecclesiastical and secular persons, just as they formerly had. All these aforesaid customs and liberties which we have granted to be held in our realm in so far as pertains to us are to be observed by all of our realm, both clergy and laity, in so far as pertains to them in respect to their own men. For this gift and grant of these liberties and of others contained in our charter over the liberties of the forest, the archbishops, bishops, abbots, priors, earls, barons, knights, fee holders and all of our realm have given us a fifteenth part of all their movable goods. Moreover we grant to them for us and our heirs that neither we nor our heirs will seek anything by which the liberties contained in this charter might be infringed or damaged, and should anything be obtained from anyone against this it is to count for nothing and to be held as nothing. With these witnesses: the lord S(tephen) archbishop of Canterbury, E(ustace) bishop of London, J(ocelin) bishop of Bath, P(eter) bishop of Winchester, H(ugh) bishop of Lincoln, R(ichard) bishop of Salisbury, W. bishop of Rochester, W(illiam) bishop of Worcester, J(ohn) bishop of Ely, H(ugh) bishop of Hereford, R(anulf) bishop of Chichester, W(illiam) bishop of Exeter, the abbot of (Bury) St Edmunds, the abbot of St Albans, the abbot of Battle, the abbot of St Augustine’s Canterbury, the abbot of 8 Evesham, the abbot of Westminster, the abbot of Peterborough, the abbot of Reading, the abbot of Abingdon, the abbot of Malmesbury, the abbot of Winchcombe, the abbot of Hyde (Winchester), the abbot of Chertsey, the abbot of Sherborne, the abbot of Cerne, the abbot of Abbotsbury, the abbot of Milton (Abbas), the abbot of Selby, the abbot of Cirencester, H(ubert) de Burgh the justiciar, H. earl of Chester and Lincoln, W(illiam) earl of Salisbury, W(illiam) earl Warenne, G. de Clare earl of Gloucester and Hertford, W(illiam) de Ferrers earl of Derby, W(illiam) de Mandeville earl of Essex, H(ugh) Bigod earl of Norfolk, W(illiam) earl Aumale, H(umphrey) earl of Hereford, J(ohn) constable of Chester, R(obert) de Ros, R(obert) fitz Walter, R(obert) de Vieuxpont, W(illiam) Brewer, R(ichard) de Montfiquet, P(eter) fitz Herbert, W(illiam) de Aubigné, G. Gresley, F. de Braose, J(ohn) of Monmouth, J(ohn) fitz Alan, H(ugh) de Mortemer, W(illiam) de Beauchamp, W(illiam) de St John, P(eter) de Maulay, Brian de Lisle, Th(omas) of Moulton, R(ichard) de Argentan, G(eoffrey) de Neville, W(illiam) Mauduit, J(ohn) de Baalon and others. Given at Westminster on the eleventh day of February in the ninth year of our reign. We, holding these aforesaid gifts and grants to be right and welcome, conceed and confirm them for ourselves and our heirs and by the terms of the present (letters) renew them, wishing and granting for ourselves and our heirs that the aforesaid charter is to be firmly and inviably observed in all and each of its articles in perpetuity, including any articles contained in the same charter which by chance have not to date been observed. In testimony of which we have had made these our letters patent. Witnessed by Edward our son, at Westminster on the twelfth day of October in the twenty-fifth year of our reign. (Chancery warranty by John of) Stowe. 9 Mayflower Compact (1620) In the name of God, Amen. We whose names are under-written, the loyal subjects of our dread sovereign Lord, King James, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, etc. Having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our King and Country, a voyage to plant the first colony in the northern parts of Virginia, do by these presents solemnly and mutually, in the presence of God, and one of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience. In witness whereof we have hereunder subscribed our names at Cape Cod, the eleventh of November [New Style, November 21], in the year of the reign of our sovereign lord, King James, of England, France, and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Dom. 1620. SPECIAL_IMAGE-http://www.pilgrimhallmuseum.org/images/ftr_rc_bg.gif-REPLACE_ME John Carver William Brewster John Alden William Mullins John Craxton John Howland John Tilly Thomas Tinker John Turner Digery Priest Edmond Margeson Richard Clark Thomas English John Goodman William Bradford Isaac Allerton Samuel Fuller William White John Billington Steven Hopkins Francis Cook John Rigdale Francis Eaton Thomas Williams Peter Brown Richard Gardiner Edward Doten George Soule Edward Winslow Miles Standish Christopher Martin 10 James Chilton Richard Warren Edward Tilly Thomas Rogers Edward Fuller Moses Fletcher Gilbert Winslow Richard Bitteridge John Allerton Edward Liester 11 The Declaration of Independence (1776) IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. 12 He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For Quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the united States of America, in General Congress, 13 Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. The 56 signatures on the Declaration appear in the positions indicated: Column 1 Georgia: Button Gwinnett Lyman Hall George Walton Column 2 North Carolina: William Hooper Joseph Hewes John Penn South Carolina: Edward Rutledge Thomas Heyward, Jr. Thomas Lynch, Jr. Arthur Middleton Column 3 Massachusetts: John Hancock Maryland: Samuel Chase William Paca Thomas Stone Charles Carroll of Carrollton Virginia: George Wythe Richard Henry Lee Thomas Jefferson Benjamin Harrison Thomas Nelson, Jr. Francis Lightfoot Lee Carter Braxton Column 4 Pennsylvania: Robert Morris Benjamin Rush Benjamin Franklin John Morton George Clymer 14 James Smith George Taylor James Wilson George Ross Delaware: Caesar Rodney George Read Thomas McKean Column 5 New York: William Floyd Philip Livingston Francis Lewis Lewis Morris New Jersey: Richard Stockton John Witherspoon Francis Hopkinson John Hart Abraham Clark Column 6 New Hampshire: Josiah Bartlett William Whipple Massachusetts: Samuel Adams John Adams Robert Treat Paine Elbridge Gerry Rhode Island: Stephen Hopkins William Ellery Connecticut: Roger Sherman Samuel Huntington William Williams Oliver Wolcott New Hampshire: Matthew Thornton 15 The Articles of Confederation (1777) To all to whom these Presents shall come, we, the undersigned Delegates of the States affixed to our Names send greeting. Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America agree to certain articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia in the Words following, viz. “Articles of Confederation and perpetual Union between the States of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Article I. The Stile of this confederacy shall be, “The United States of America.” Article II. Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. Article III. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. Article IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any state, to any other State of which the Owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any state, on the property of the united states, or either of them. If any Person guilty of, or charged with, treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall upon demand of the Governor or executive power of the state from which he fled, be delivered up, and removed to the state having jurisdiction of his offence. Full faith and credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magistrates of every other state. Article V. For the more convenient management of the general interests of the united states, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year. No State shall be represented in Congress by less than two, nor by more than seven Members; and no person shall be capable of being delegate for more than three years, in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the united states, for which he, or another for his benefit receives any salary, fees or emolument of any kind. Each State shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states. 16 In determining questions in the united states, in Congress assembled, each state shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace. Article VI. No State, without the Consent of the united States, in congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conferrence, agreement, alliance, or treaty, with any King prince or state; nor shall any person holding any office of profit or trust under the united states, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state; nor shall the united states, in congress assembled, or any of them, grant any title of nobility. No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the united states, in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the united States in congress assembled, with any king, prince, or State, in pursuance of any treaties already proposed by congress, to the courts of France and Spain. No vessels of war shall be kept up in time of peace, by any state, except such number only, as ...
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AMERICAN CONSTITUTIONALISM

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American Constitutionalism

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AMERICAN CONSTITUTIONALISM

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American Constitutionalism
Question 1: Constitutionalism
Functions of a Constitution
The constitution refers to a consolidated body of laws that govern a politically organized
society. In democracies, the Constitution takes precedence over all other laws that may have
been enacted by other authorities or entities (Way, 2020). For other laws to remain valid, they
must be consistent with the provisions of the Constitution.
The functions of a constitution are many and varied. The laws establish the legal
framework through which society is governed. Every constitution described powers that can be
exercised by the government and the procedures and forms of government that are allowed. To
ensure clarity of the roles of government authorities, the constitution designates major
institutions of the government and how individuals occupying those institutions would be
selected (Way, 2020). The laws contained in the constitution assign the authority and
responsibilities to holders of various government offices and the limitation of governmental
authority and power. Finally, the constitution defines how citizens and the government shall
relate including their roles in appointing and dismissing government leaders.
Written v. Unwritten Constitution
A written constitution differs from an unwritten one in the sense that the former is
codified. All laws of the land are captured in a single document called “Constitution”. All major
systems of the world rely on written constitutions to govern society. On the other hand, the
unwritten constitution is not codified (Way, 2020). Britain is the only country in the world with
an unwritten constitution. The major content and characteristics of the British constitution are the

AMERICAN CONSTITUTIONALISM

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Common Law, acts of parliament, several historic documents, and constitutional traditions (Way,
2020). A portion of British law is written while another is not. An important basis of British law
can be traced to the Magna Carta in 1215 and the subsequent petitioning of the bill of rights in
1689. The Common Law is primarily judge-made laws borrowing from judicial precedents from
as early as the 12th century. The unwritten aspects of British law cover constitutional traditions
and customs (Way, 2020). They cover areas suc...


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