GOVT 200 Exam 3 Study Guide - English Origins of the American Constitution: -

GOVT 200 Exam 3 Study Guide -

English Origins of the American Cons4tu4on:

  • - Be familiar with the documents that contain the Rights of Englishmen and how those themes are first located in America

    • The first citizens of established America were English; hence they believed in their rights as Englishmen from the English Constitution. These were illustrated in the colonial charters and the state’s first constitutions. 

  • - Know how English Common Law was originally established

    • “Law Common to All”

    • Precedents developed by way of judicial decisions apart from Parliamentary Statutes.

    • Common Law pre-dates the existence of Parliament

    • Going to those held in reverence for decision when is beyond our understanding in the presence of others 

  • - Understand the difference between Divine Law, the Law of Nature, and Natural Law and how these are integrated into American jurisprudence.

    • Divine Law - God’s ordained law; Special Revelation

    • Law of Nature – Moral and inherent law within created order (General Revelation)

    • Natural Law – Rationalistic, based on reason apart from revelation; Human Senses

    • American Jurisprudence – these are the pre-existing laws that became the basis of American Laws

  • - Be familiar with the context surrounding the drawing of each of these documents. Know the specific rights that are associated with each English document and their common themes, how they restricted the King, and where they are reflected in the American

Constitution:

  • o Magna Carta (1215)

    • Barons are outraged when the king starts to overstep what was generally accepted as their rights within the English Feudal system

    • The 63 original clauses articulated this infringement of feudal customs, as well as defined and limited king John’s authority to prevent monarchal violation of these rights

    • Contract stating the king’s limitations and the Vassals?Barons rights under the king

    • Right of the Writ of Habeas Corpus

    • No Taxation Without Representation

    • Protection Against Unlawful Seizures 

    • Due Process of Law

    • Trial by Jury

  • o Petion of Right (1628)

    • Provoked initially by rather devious methods of forced taxation - Five Knights Case

    • Similar to the Declaration of Independence, when it was accepted it was added to the founding documents of England 

    • It was an Appeal to the king instead of a declaration; it appealed to the king to remain with the bounds of established law

    • Quartering of troops in Private homes - Protection of private property

    • Civilians tried in Military tribunals or courts martial - Fifth amendment

    • Taxation without Parliamentary consent

    • Writ of Habeas Corpus protecting against capricious and unlawful imprisonment

  • o English Bill of Rights (1689)

    • Formally known as “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.” 

    • Amed the loss of liberty under the last Stuarts

    • As a condition for the rule of the Dutch Protestants of Orange 

    • As an instrument for “a clarification of many points of law”

    • No armies should be raised in peacetime

    • No taxes could be levied, without the authority of Parliament/Congress

    • Laws should not be dispensed with, or suspended without the consent of parliament/congress

    • No excessive fines should be imposed, nor cruel and unusual punishments inflicted 

    • The petition to the government

    • The right to bear arms 

  • - Be familiar with Common Law, the writ of Habeas Corpus, and the significance of writs within the Common Law tradition

    • English Common Law Assumed pre-existing Law

    • At the heart of Anglo-American jurisprudence was God’s special and general revelation which is the basis of Common Law

    • Writ of Habeas Corpus, The right to your own body; you have the right to know why you are being detained, you cannot be held against your will

  • - IdenJfy the similarities and differences between the English Parliament and the US Congress

    • U.S. has checks and balances, The English Parliament rules under law

    • Varying levels of power for the political parties of each nation

    • Both are bicameral and contain a lower and upper house

  • - Understand how the English “Model Parliament” influenced Congress’ power of the purse

    • The model parliament created by King Edward the 16th, created the lower and upper model of a legislature. One of their larger features for the overall governance of the Country was its use for imposing taxes

    • Congress also does this but takes it a step further and gives the “lower” house, the House of Representatives, the financial power of the Country. This is written out in Article 1, Section 8 of the US Constitution

  • - Identify the differences and implications between Lex Scripta and Lex non-Scripta

    • Codified and uncodified law

  • - Understand what the definition of property entails and how it was first referenced in Article IV of the U.S. Constitution

    • “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” -Article 4, Section 3 

  • - Be familiar with the impact of William Blackstone and Hugo GraJus on law

    • William Blackstone is the English Lawyer that whom the farmer pulled the common law aspect, Hugo Gratius is the same but for civil law. 

  • - Be familiar with the Five Knights Case, the events surrounding the case, the impact the case had on challenging an unlawful use of the King’s power, and what the case then required the Crown to demonstrate in cases of imprisonment

    • The king issued a commission to compel the collection of a forced loan or “compulsory grant” commensurate with the subject’s financial means. He also promised to refund the loan without Parliament’s consent. Five Knights were arrested for refusing to pay a loan that the King had unjustly acquired. A triggering mechanism for the Petition of Right was the Five Knights Case challenging the King’s discretionary power to imprison subjects without a just cause.

    • This caused the requirement of just and legal causation for detention - or that bail be set

  • - Understand how the law is impacted when the prerogative of power or discretion is practiced apart from the law

    • The law is weakened, and eventually becomes nothing more than good advice; law starts to lose its consequences

  • - Be familiar with Sir Edward Coke and his interpretation of the King’s behavior during the Five Knights’ Case in Terms of Lex Rex and Rex Lex

    • Sir Coke claimed the King had no authority to practice that right of power. The term LEx Rex is Latin for “rule of law”. Sir Coke argued that eh King’s behavior exemplified Rex Lex (King over Law) rather than Lex Rex (Law over King) and that the release of the Knights occurred within the King’s own prerogative of power as opposed to the law of the land - Magna Carta 

  • - Be familiar with the events of the Glorious RevoluJon and the specific acts of tyranny that King James II committed

    • The execution of laws and exercising of power without Parliament’s success

    • The levying of money for and to the use of the Crown by pretense of prerogative power

    • Keeping and standing an army within the kingdom in times of peace

    • Requiring excessive bail for persons committed of criminal violations 


English Legal Tradition's Impact on the Constitutional Convention:

  • - Understand why the Framers of the US ConsJtuJon did not originally include a Bill of Rights

    • They believed a listed-out Bill of Rights would limit the rights of the people They conceded to included them that the rights of the people would not be encroached upon

  • - Identify how the English legal traditions manifested legally and spiritually in the Massachusetts State Constitution

    • Amendment Process: Internal Transformation of a person after Salvation

  • - Be able to identify the flaws of the ArJcles of ConfederaJon which made the Constitutional Convention necessary

    • Lack of coordinated order for the executive and judicial branch.

    • Under the Articles of Confederation only one vote for each state in the legislature 

    • Needed almost a 70% majority to pass anything

    • Could not be united defend themselves due to the separated nature of the Articles

  • - Be familiar with the Virginia Plan, New Jersey Plan, and Connecticut Compromise in the framing of the Constitution

    • Virginia Plan: Strong national government with the larger states having great representation

    • New Jersey plan: One house legislature with greater equal representation

    • Connecticut Compromise: It provided the small states equal representation in the Senate having only two delegates from each state and the large states representation in the House of Representatives, delegating seats based on population 

  • - Understand the impact that slavery had on the discussion surrounding the Constitutional Convention and what was inscribed into the Constitution surrounding the issue of slavery

    • Agreed not to bring up the conversion of slavery within the constitution till later in 1808. 

  • - Identify how Article 39 of the Magna Carta and the 6th Amendment of the U.S. Constitution are related

    • Correlation: Protection against unlawful seizure of one’s person

  • - Be familiar with the critical issues that were raised at the ConvenJon, particularly regarding the organization of the national government

    • Federalism: How much power and what level of jurisdiction should everyone have

    • A constitutional arrangement which lodges civil authority at various levels of civil government while recognizing the place of self-government; in this regard, authority is divided and diffused

  • - Know the events around the raJficaJon of the US Constitution

    • The thirteen State Ratification Convention Delegates ratified the U.S. Constitution

  • - Be familiar with the philosophical nature of the US ConsJtuJon and its outlined system of civil government

    • A system of limited civil government for purposes of ensuring ordered liberty

  • - Be able to identify the Articles of the Constitution that correlate to the allocation of power to the LegislaJve, ExecuJve, and Judicial branches

    • Articles 1: Legislative 

    • Article 2: Executive 

    • Article 3: Judicial 

  • - Identify what the Convention delegates desired from the LegislaJve, ExecuJve, and Judicial Branches

    • A strong chief Executive who was independent and not chosen by or subservient to the legislative (very different then England’s parliamentary system)

    • They were happy with the legislation but desired for a greater check and more appropriate representation

    • A judiciary independent of the executive, but subject to some control by the legislature 

  • - Be able to define federalism and identify how a system of checks and balances was

    • Divided and diffusion of powers for self-government

    • Prohibiting for maintaining Liberty

    • “Absolute power corrupts absolutely”

    • Protects the branches from each other