[SOUND] Under the question of what does the Constitution do? The first is to create the national government and divide the power among branches. The second is to allocate power between the national government and state governments. This is often overlooked, but throughout American history some of the most important battles have been fought in the name of what's called Federalism, the allocation of power to the national government and the states. So I said it has to be remembered that the Framers of the Constitution thought a national government was a necessary evil. They wanted most governing to be done at the state level. There's many reasons for that. It was after all the state governments that were creating the United States Constitution. Also was thought that states were closer to the people than the national government. They would be more responsive to the people. More democratic than the national government. And so it was that the Constitution created a national government of limited powers to give the states general powers. Here's what it means. For congress to act, it always has to point to express or imply authority. For a federal court to hear a case, there always has to be a constitutional provision and a federal statute authorizing it. But state governments have general authority. They can do anything except that which is prohibited by the Constitution. State courts can hear any matter, unless there's a federal law that says it can only be heard in the federal courts. This basic principle of governance was true in 1787. And it's just as important as we look today and into the future. In fact it's reflected in one of the amendments to the Constitution, the Tenth Amendment, which is part of the Bill of Rights. It says all powers not granted to the United States, nor prohibited to the States, are reserved to the States and to the people respectively. In plain English, that means just what I said a moment ago. The federal government can do only that which is authorized by the Constitution. State and local governments can do anything except that which is prohibited by the Constitution. But this isn't the only thing in the Constitution that defines the relationship of the national government and the states. A very important provision is found in Article VI of the Constitution. And it's called The Supremacy Clause. It says the Constitution, and laws and treaties made personal to it, are the supreme law of the land. This means if there's a conflict between federal law on the one hand, and state local law on the other, it's federal law that wins out. It's state or local law that must yield. And this has been important in recent years in so many contexts. When can states adopt environmental laws that are stricter than federal law? When can states on their own take action to restrict immigration? Like Arizona's controversial SB1070. When can a state try to regulate advertising for cigarettes or tobacco products, in light of a federal statute on the subject? I'll come back to all of these examples later in the lecture. But they all gotta have a Constitution. Does create a hierarchy between the federal government and state and local governments. And the United States government is the top of that hierarchy. As I alluded to throughout American history, so many political and actual battles have been fought over the issue of federalism. In the early 19th century, the most important issue in the country was that of slavery. Those who opposed abolition of slavery did so not by defending the morality of slavery, not even by defending economics of slavery. But instead they did so in the name of state's rights. They argue that states are sovereign and states should be able to decide for themselves whether there's slaves or be free states. John Calhoun as senator argued that because states are sovereign, they could interpose their sovereignty between the national government and the states. And thus states could continue to have slaves even if the national government tried to prohibited. And of course the Civil War was ultimately fought over the issue of slavery. It was the combination of the Civil War that led to the ratification of the 13th Amendment that prohibits slavery and involuntary servitude. And after the Civil War, the North imposed reconstruction on the South. Reconstruction involved military rule over the former rebel states. Literally the rebel states were divided into five regions, and a general was put in charge of each. Reconstruction was bitterly opposed by the South as a violation of state's rights. From the 1890s through 1936, the Supreme Court declared unconstitutional over 200 federal, state and local laws. During this time the Supreme Court declared the federal laws unconstitutional based on state's rights. The Supreme Court said the Constitution reserves a zone of power to the states. The national government's powers must be interpreted in a limited way, so as to protect this. To give an example, and one I'll talk about later in these lectures, when congress passed the first law prohibiting child labor, it was declared unconstitutional by the Supreme Court in the name of state's rights. The law congress passed said that it was a crime to ship in interstate commerce goods that were made by child labor if the children were under 14 years old, or if it was children between 14 and 16 who were working more than 60 hours a week. It wasn't even that protective of child labor. But the Supreme Court declared it unconstitutional as congress infringing the rights of the states. The act of Congress to try to adapt laws such as a minimum wage or maximum hours or protecting consumers. They were all declared unconstitutional on the ground of infringing state's rights. This all changed, I'll talk about, in 1937. And then, during this period of time, the federal government was very active. It was commonly referred to as the New Deal, the series of programs that were adopted by Franklin Roosevelt and a Democratic Congress to get the country out of the Depression. Initially, in the period of 1933 to 1936, the Supreme Court struck the New Deal programs down on federalism grounds. Then the court, after 1937 upheld them. And I'll talk about what happened in 1937 in some detail. The New Deal programs were opposed on federalism grounds. Is infringing state's rights. During the 1950s and the 1960s, the nation was divided by a battle over civil rights. Those who favored segregation did not do so by defending the morality of segregation, but they did so in the name of state's rights. Like those who wanted segregation to continue in the South echoed the words of John Cawthon and others who would opposed abolition. The opposition to desegregation, the opposition to the advancement of civil rights was very much a battle over states' rights. When Ronald Reagan gave his first inaugural address in January of 1981, he proclaimed that the United States is just a compact among the states. And he proclaimed a new federalism to return power to state governments. In the years that followed, the Supreme Court declared unconstitutional many important federal laws in the name of state's rights. So I'll talk about in a later lecture in this series. The Supreme Court struck down a federal law that prohibited guns near schools. A federal law the Violence Against Women Act that allowed victims of gender motivated violence sued in federal court, in the name of state's rights. And so I give these examples to show that the battle over the allocation of power between the national government and the states has been crucial throughout American history, remains just as important today. The third major function of the Constitution is to protect individual liberties. My guess is, if I went out on the street and I asked people what foes the Constitution do? This is the first thing that would come to mind. The Constitution protects individual rights. And yet, if you look at the Constitution itself, before considering the amendments, there's very little in it about individual liberties. There's some. Article I Section 9 of the Constitution in addition to keeping congress on banning the importation of slaves, it says that congress cannot adopt an ex post facto law or a bill of attainder. Article I Section 10 imposes some limits on states. And it says that they can't adopt ex post facto laws or bills of attainder. What's an ex post facto law? An ex post facto law is a law that punishes conduct that was lawful when it was done with the increases to punish for crime after it was committed. Imagine that tomorrow the California Legislature pass a law prohibiting the recording of lectures like this and attaches criminal penalties. What I'm doing here is legal. To punish me under a law adopted tomorrow is the essence of an ex post facto law. Ex post facto laws obviously seem tremendously unfair and unjust. One of the grievances against the king in England was how laws would be adopted after the behavior occurred that made that conduct criminal. And so the Constitution says that the government cannot make it a crime to engage in conduct that was lawful when it was done, or increase the punishment for crime after it was committed. What's a bill of attainder? A bill of attainder is a law that punishes a person or people without the opportunity for trial. So if the California legislature were to pass a statute saying,Erwin Chemerinsky shall be imprisoned. That would be an obviously unconstitutional bill of attainder. It's not the legislature that can decide to punish a person. The legislature can pass a law and then where the person violates a law, is the courts to determine. Article I Section 10 eliminating states power also say that states cannot impair the obligation of contracts. But a state can't pass a law interfering with already existing contractual relations. Here the Framers were very concerned that in times of recession or depression, congress and the states might adopt dead or relief laws. They might adopt laws that would excuse people from having to pay their debts. And so it says specifically, no state can pair the obligation of contracts. The Framers didn't want states to be able to adopt laws that would excuse people who haven't paid their debts at the expense of their creditors. Article III of the Constitution assures the right to trial by jury. It also makes it very difficult to convict somebody of treason, but that's virtually all the Constitution and its seven articles says about individual liberties. A puzzle always is, why does the Constitution say so little about individual liberties? Well, some of it is I think that the Framers of the constitution thought that the structure of government they created we add it to protect individual rights. They believe that the checks and balances, the separation of powers that I talked about would keep the government from adopting tyrannical laws and violating rights. Some of why they don't enumerate individual rights was they were afraid that they never could lift all of the individual rights, and they list some would imply that the others didn't exist. The Framers of the Constitution knew that even if they try at best they could list just some rights, they would forget, they wouldn't realize to list others. And then others would interpret that saying, since those rights weren't listed, they're not protected. And they thought, better not to list hardly any, than to try to list just some. The 9th Amendment to the Constitution, one of ten parts to the Bill of Rights, was specifically to address that. It says the enumeration of some rights in the Constitution should not be taken to deny or disparage the existence of other rights in the Constitution. It was meant to say just this. Even though just some are listed that doesn't mean it's exhausted. Doesn't mean that others are not there. Some believe that there's no enumeration of rights in the Constitution. Because the Framers in Philadelphia in 1787 were just tired. It had been a long, hot summer. They couldn't fly home over the weekend, they couldn't even take a train over the weekend. They couldn't call or send a text message to their loved ones and they didn't want to go through the divisive process of trying to draft a Bill of Rights. Many states in redefine the Constitution insisted that a Bill of Rights be drafted. Hundreds of suggested rights were opposed in the first house of a representative. James Madison then a representative from the State of Virginia collased these puzzles, 16 of them were ultimately passed by the House of Representatives, 12 passed through congress, ten passed through the states, and they became the Bill of Rights to the Constitution. I want to take brief pause, and then I want to come back and talk about what's in the Bill of Rights. But also what's not to be found in the Bill of Rights.
