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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

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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):