CONSTITUTIONAL LAW
KAPLIN
SPRING 2012
I. The Foundations of Constitutional Law (ACL Chaps. 1-3)
The Constitution is the foundation of the US legal system and government.
Our nation is held together by ideas rather than ethnicity
A. Purposes and Functions of Constitutional Law (ACL Chap. 1, Sec. A)
1. Relationship between U.S. Constitution and American constitutional law: constitutional law provides a process for constitutional interpretation and constitutional decision making. The constitution (1) establishes a frame of government, (2) states first principles and core values, and (3) embodies the original consent of the governed.
2. Role of courts in developing constitutional law: Two types of issues: power issues and rights issues.
Power issues address the allocation and scope of the federal government’s powers; and rights issues concern individual rights that limit the reach of federal and state government’s power.
The court’s opinion provides an interpretation of the Constitution, normally some particular power and rights clause.
C. Overview of Constitutional History and Theory (ACL Chap. 2, Sec. A)
3. The U.S. Constitution
Two Basic Points
1. The constitution was adopted by the people, not by the states or any other pre-existing government
2. The constitution was created for “ourselves and our posterity.”
Three Central Functions (pg 30)
1. It establishes the structures and mechanisms through which the federal government operates and by which it interfaces with the separate governments of the states.
2. It delineates the powers of the federal government or, more particularly, of its three branches, as juxtaposed against the powers of the states.
3. It imposes limits upon the powers of the federal government as well as upon the powers of the states.
Three Defining Characteristics (pg 30-32). Constitution as:
a. Fundamental Law: the constitution is fundamental law because it is the original act of sovereign power. A repository for the aspirations and core values that define the US as a nation.
b. Supreme Law: the constitution is the expressed will of the supreme sovereign, the people. The highest and most authoritative law in the nation’s legal system.
c. Hard Law: the constitution is a legal and not merely a political instrument, and it may be invoked in court and used by judges in actual cases. Also, hard law in the sense that is it not easily altered.
Basic Constitutional Concepts (pg 32)
1. The “People” as the original source of the constitution
2. Sovereignity, as lodged both
D. The Constitutional Structure of Government (ACL Chap. 2, Secs. A – D)
1. Overview of structure (ACL Chap. 2, Sec. B) a systematic view of the big picture of how the government operates. Two key types of divisions of power created in the constitutional structure of government:
(1) Vertical distribution of power: distribution of power between the federal government and the states (Federalism)
(2) Horizontal distribution of power: Separation of powers. Distribution of power at the national level between the three branches of government.
2. The distinction between constitutional powers and constitutional rights (ACL Chap. 2, Sec. C)
The constitution is composed of three types of clauses:
1. Housekeeping/Operational Clauses: govern the internal operations of the respective branches of government and establishes mechanisms through which the government operates.
2. Empowerment/Power Clauses: A power refers to the power of the government, not a power of private individuals or corporations.
3. Clauses of Limitation/Rights Clauses: A right means a right of private individuals or corporations. Governments do not have rights. Individuals may assert their rights against the government in order to protect themselves against invasive exercises of government power. But individuals may not assert constitutional rights against other private individuals or corporations. Constitutional rights limit only government actions and not the actions of private actors.
3. Exercise No. 1: power clauses and limitations clauses (ACL Chap. 2, Sec. D)
1. Article 1, Section 8, Clause 3: A power clause, “the congress shall have power” The power is granted to congress. There are three grants of power because congress is given the power to regulate commerce with (1) foreign nations, (2) among the several states, and (3) Indian tribes. We can infer from the text that the possibility is left open that some other unit of government can regulate commerce. The three grants of power do not cover all possible commerce; therefore, there must be some pieces left over for someone else to regulate. Can the president regulate commerce? Must examine the text of article 2 that governs the executive branch, which does not seem to state anything that would give the president power to regulate commerce. Can the states regulate commerce? We can infer that a state may have power because the clause states that congress can only regulate interstate commerce. Additionally, the tenth amendment states that if a power is not granted to the federal government then the power is given to the states. The powers granted to congress under section 8 can be split into exclusive powers and concurrent powers. Suppose a power is concurrent, and suppose the regulations conflict, what happens then. The Supremacy clause states that if a federal law and state law conflict then the federal law will prevail under the theory of supremacy.
2. Article 1, Section 10, Paragraph 1: “No state shall” This is a clause of limitation. Is this limitation done through the creation of rights or is it done in some other manner. It would seem at first that it is done in some other manner because it does not seem to create a right. Different from a rights clause because it limits the states by stating limits. The implication is that only the federal government can do those things. “Pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts” the courts have interpreted this part as establishing rights.
3. Article 3, Section 1, Sentence 1: A power clause, “the judicial power shall” The clause grants judicial power to the Supreme Court and the courts established by congress. First, the section grants power to the Supreme Court, but then there are issues about the rest of the judicial system. There
1. The challenge of interpreting the Constitution
1. Constitution applies to an expanse of circumstances and all of life is somehow touched by the constitution.
2. The Constitution is a document of sparse wording.
3. The issues that are confronted in constitutional law are usually controversial issues.
4. The text is often silent as to some specific problem. The text can be ambiguous. The text as applied to a particular problem can be read in alternative ways, and there is no way to tell which interpretation is correct. The text can also be vague. Vagueness means that the particular text has a range of possible meanings and there is no way to ascertain which meaning or meanings to apply to this particular problem.
Two Major Issues as to Interpretation:
1. How is the constitution interpreted when the text does not provide an answer? Over time there have been developed various understandings about sources to consult when one interprets the constitution. Always begin with the text. Then you may examine (1) original history/meaning, (2) structure or structural inference, and (3) constitutional values.
2. Who interprets the constitution?
2. Sources of, and approaches to, constitutional interpretation
a. Sources
1. Primary
i. The constitutional text
ii. Original Constitutional History
iii. The overall structure of the Constitution and inferences that may be drawn from this structure
iv. The values that are embedded in or reflected in the Constitution.
2. Secondary
i. Precedent
1. Stare Decisis: developed by courts on a day-to-day basis
2. Developed by Congress or the President
3. May also be created when Congress or the Executive have, over a long period of time implemented or applied a constitutional clause in a particular way
b. Approaches
1. The textual approach
2. The historic approach
3. The structural approach
4. The values approach
