Constitutional Analysis, The Federalist Papers, The Articles of Confederation
Why Have a Constitution?
A Constitution is Unique Because it is Difficult to Change. Whereas legislative enactments can be modified by another statue, the Constitution can be amended only by a much more elaborate and difficult procedure (Article V). This helps to prevent tyranny by the majority. It protects against the creation of dictatorial power in times of crisis.
·Public Information Function
· Predictability
· Fairness
· Transparency
How Should the Constitution Be Interpreted?
Problems arise that the Constitution does not expressly consider:
· When may the President remove executive officers?
· When, if at all, do federal laws impermissibly infringe upon state sovereignty?
· May states adopt laws that place a substantial burden on interstate commerce?
Chief Justice John Marshall – the Constitution was not meant to have the “prolixity of a legal code,” but instead, “[i]ts nature… requires, that only its great outlines should be marked, its important objects designated.
Who Should be the Authoritative Interpreter of the Constitution?
All government officials and institutions are required to engage in constitutional interpretation. All elected officeholders take an oath to uphold the Constitution. Therefore legislators-federal, state, and local- are obliged to consider the constitutionality of bills before ratifying them. The executive must consider constitutionality in deciding what laws to propose, which bills passed by the legislature to veto, and what executive policies to implement. Ever since Marbury v. Madison, the judiciary has had the authority to review the constitutionality of laws and of executive acts.
· Approach 1 – No Authoritative Interpreter – Each branch of the government would have equal authority to determine the meaning of constitutional provisions, and conflicts would be resolved through political power and compromise. If Congress and the president believe that a law is constitutional, they could disregard a judicial ruling of unconstitutionality.
· Approach 2 – Each Branch is Authoritative in Certain Areas – The judiciary has declared that certain parts of the Constitution pose political questions and are matters to be decided by branches of government other than the courts. The courts frequently have held that challenges to the President’s conduct of foreign policy pose a political question not to be resolved by the judiciary.
· Approach 3 – The Judiciary is the Authoritative Interpreter – Assigning to the judiciary final authority for all constitutional interpretation. Its views are final until reversed by constitutional amendment. This approach is endorsed by Marbury v. Madison in Chief Justice Marshall’s declaration “It is emphatically the province and duty of the judicial department to say what the law is.”
FIVE METHODS OF INTERPRETATION STUDIED THIS TERM
1. Historical Approach. Examine the Articles of Confederation, Ratification documents and other writings of the Framers to discern their intent about what the Constitution attempts to do.
Articles of Confederation
The Articles of Confederation were the first constitution of the United States. It created a very weak national government and embodied a strong commitment that state governments retain sovereignty. There was no federal judiciary and no executive created. There was a Confederation Congress, but its powers were greatly circumscribed (it had no power to tax and no power to regulate commerce among the states). States began to adopt laws that discriminated against goods and services from other states.
Articles of Confederation:
· States are sovereign under the articles of confederation.
· Union should be perpetual, so it doesn’t provide for any sort of secession.
· Created by the delegates of the states
· New colonies may be permitted under a super-majority. Canada may join without such approval.
· The Articles of Confederation creates a Congress, and a committee of the states. There is some executive function, but nothing like in the Constitution.
· The Continental Congress had judicial function on appeal.
· There are only courts that deal with piracy, crimes committed on the high seas. What’s the ultimate judicial tribunal under the Articles of Confederation? The Congress. Ultimate appeals fall under the legislature. There isn’t a system of checks and balances within this system.
· Very difficult to amend or revise – requires the legislatures of every state. Requires unanimous consent.
n give subject matter jurisdiction.
Publius (Hamilton) – In favor of ratification of the Constitution
· Agreement that there’s going to be judiciary review of acts of Congress and state legislature.
· Thinks that the judicial review will operate
· Says that the judiciary is the “least dangerous branch.” No power to tax and spend that the legislature has, no power of military like the executive branch has.
· When the judiciary is engaged in judicial review, they’re not going to interpret things by “spirit,”
· Judges are going to read the preamble and understand that they are required to interpret the Constitution in order to advance those ends.
· They will look to the manifest tenor of the Constitution, not the “spirit.”
· Is there some way to construe this statute within the Constitution? If so, then they will not strike down this statute.
· Not everything can get to federal court.
· We can look at the history of the English court system, but it is more pertinent to look at the history of the state’s court systems and the expansion of jurisdiction is not happening there.
· He suggests that based on how courts operate that serves to limit their power. The court has to recognize precedent when making decisions. The Supreme Court has never overruled itself
· The Constitution should permit the judiciary to have subject matter jurisdiction over the states.
· Judicial review is necessary to protect the people.
· The Constitution should be the ultimate authority.
· The Court will only strike legislation that is irreconcilable with the Constitution, and they don’t have the power to enforce.
· Precedent and stare decisis will limit the Court.
· Article III creates jurisdiction it does not strip away state sovereignty.
