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Constitutional Law I
Rutgers University, Newark School of Law
Pope, James Gray

Constitutional Law
Spring 2013
Professor Pope

I.        Historical Background:
A.      Six major constitutional themes:
i.      Popular sovereignty – sovereignty rests in “we the people” – a major revolutionary idea – govs closest to US were monarchies – popular NOT parliamentary sovereignty was radical
ii.      Federalism – thoroughly thought out and most balanced Federation up to that point – a group of states that should act together on some issues but retain their own individual authority – BOTH state and federal govt. get power from the people – agents, not sovereigns, of the people
iii.      Separation of Powers – three branches of government with specialized duties and duty to check abuses of the other departments – groups 2 diff. concepts together – literal separation of three distinct branches – but also, the checks on power
iv.      Slavery – the US was created as a slave nation – never appears in the Constitution, but many provisions shaped by concerns about slavery – major impact on history
v.      Bill of Rights – added later – a set of affirmative rights – individual rights? – debate over which of these rights might have group/collective elements as well
vi.      Civic Virtue – US constitution not seen as embodying public virtue – separation of powers, representation, checks, etc. – but could view it opposite – senate was supposed to be repository of civic virtue
B.      Three major constituional moments:
i.      The Founding – era that produces the constitution and bill of rights – sets up the original constitutional scheme
ii.      Civil War and Reconstruction – gives Federal govt. more power through the 13th, 14th and 15th Amendment – give power to enforce via proper legislation – slavery “shall not” exist – 13th Amend. wipes out one of the four original aspects of the Const. – Congress emerges as a very powerful branch for 1st time in history
iii.      New Deal as Consolidated During WWII – no major constitutional change but massive change in constitutional law – more power to president and rise of administrative govt. – how to the agencies exist and who runs them? – knocks out one set of individual rights away from property/contract rights and toward political rights and free speech rights
II.    Classic Constitutional Interpretation
A.      Major interpretive modalities:
i.      Text
ii.      OM (History)
iii.      Structure (Ely)
iv.      Precedent
v.      Traditions
vi.      Consensus
vii.      Consequences
B.      Original Meaning has three objectives:
i.      Fidelity to the social contract – ppl came together to form the constitution, the moment of consent – trace back to that, and honor and enforce
ii.      Written constitution and the rule of law – principle justification for originalist – if you’re gonna treat a written constitution as law, must look at the original meaning – look at what it’s trying to communicate from the authors – need a stable base for the amendment process
iii.      Constraining judges – keep judges from going outside their bounds
C.      Transition from textual to OM means incorporating historical evidence from outside the text of the Constitution – historical factors:
i.      Debates
ii.      Practices/ideas at the time
a.       Pre-ratification – common sense – if looking at a rule, try and see how/why you enacted and what you wanted to change
b.      Post-ratification – little more controversial – an arbitrary source? – the ppl who want amendment passed always deny the scope of its effects then go crazy later
iii.      Conceptual Framework – natural law arguments (higher principles embedded in the universe) – any constraint OM imposes on judges no longer applies
D.     Several recurring arguments in OM analysis:
i.      Level of generalization or abstraction
ii.      Synthesis
iii.      Change and the dead hand

ii.      Black ppl subject to extreme prejudice so even if they could vote, would have trouble exercising will in political process
I.        Bickel’s Theory – the passive virtue approach – SCOTUS should be cagey (politically) – shouldn’t make aggressive rulings and shouldn’t extend substantive rights too much – spread impact of one strong decision out over time (gradual change) – a prudential theory that focuses on consequences modality – premised on SCOTUS being the weakest branch of govt.
J.        Common Law Constitutionalism – tradition an important source of Const. interpretation – OR, traditions that develop under ConLaw interpretation reveal what the constitution was about – actual practices and customs reveal constitutional interpretation – problem of negative tradition eliminates the constraints of this theory (becomes a value judgment)
K.      Progressive Constitutionalism – abandons the state action requirement –private actors pose the greatest threat to liberty and equality (Example: post-Reconstruction, govt. was enforcer of equality, but KKK was the greatest threat) – Govt. powers should be interpreted broadly to allow the govt. to meet the threat to constitutional liberties posed by private parties – also, support affirmative rights
L.      Polycentric Constitutionalism – As opposed to unicentric aka court rule – polycentric means that other governmental bodies/people/social movements have other interpretations and should have weight in determining whether a law is constitutional – Ackerman’s constitutional moment theory – illegitimate alteration of the Constitution and regime shifts (total changes to the constitutional apparatus) – Example
i.      Articles of Confederation into a Constitution
ii.      14th Amendment pushed through and probs not legit under Article V
iii.      The New Deal – constitution amended without change to the text, which is hard to swallow (only SCOTUS opiniosn):