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Constitutional Law I
University of California, Hastings School of Law
Short, Jodi L.

Constitutional Law Short Spring 2017

Constitutional Law – Class 1 – Tuesday 1/10/17 – Constitution Un-amended Creates and Separates Governmental Powers

Politics surrounding the construction of the constitution

What are the problems the constitution identifies?
What solutions does it offer?
How successful are the solutions?

Created to replace an existing government and response to those governance problems

Articles of confederation of sovereign states:

Asserted primacy of state sovereignty – primary sovereigns are the states and the US is not sovereign but a “league of friendship”

No sovereign powers conferred upon United States of America

Established a Congress of the Confederation

Members appointed by states
Each state had one vote
Legislation passed by a supermajority (9)

President presided over congress

Figurehead with no independent powers

Very limited powers in central government

Defense and foreign policy
No power to tax or regulate commerce

Problems with the articles : could not do anything effectively as a governmental body

Congress could not raise $$ to pay revolutionary war debts
Very difficult to pass legislation – raising quorum difficult
Trade wars among states – no cohesion within the states for trading with foreigners

Constitutional Convention

Highly variable to pin down a state’s position on an issue- depended on who was in the room on that particular day
Threaten the central concern of the articles of confederation to preserve sovereignty for the states;

Delegates agreed that more federal power was necessary, but disputed how far to go
Heart of the question of representation
Permeated everything, but focus on how to structure the national Legislature

Disputes at Constitutional Convention:

Balance of state and federal power

Source of federal government’s authority?

“Great Compromise”

People represented in the House of Representatives
States represented in the Senate

Regulation of commerce and trade

Congress got the power to regulate interstate and international trade [Art I, Sec 8, Cl 3] In exchange, two limitations on this power

Slave Trade Clause [Art. I, Sec 9, Cl 1] Export duties prohibited


articles of confederation derived power from unanimous consent and the Constitution needed only 9 states

one way of asserting that the national government does not derive its power from the states, but the people

Politics of ratification (class/cultural conflict as well as ideological)


Favored strong federal government : means of more effective and stable government
Protect trade and national defense
Separation of powers : protection of tyranny from consolidated national power


Infringed individual liberty
No bill of rights
Convention anti-democratic
Abrogated state and local prerogatives
Favored wealthy and powerful interests

Class 2 on hard copy

Federalist Papers & Factions Federalist papers number 10 and 51

Factions: Group (subset of a whole), with:

United and motivated by a common interest,
whose interests are potentially adverse to the rights of others, or to the “permanent and aggregate interests of the community”
and can be minority or minority

Why Factions? Causes:

Wealth, primarily Differently distributed resources/property

The amount and type of property people have will influence their sentiments
This creates a “division of society into different interests and parties”

Differences in interests and opinion
Differences in religion
“Natural consequence of liberty”

Examples From Federalist 10: By Geography, Class, & “Majority”

Geographic factions

rural and urban factions

Class factions

Merchants, farmers, laborers
Property owners vs. those with no property

Also concerned about what he called the “majority faction”

Democracy facilitates mob rule
What the majority want may not always be in the long-term best interests of the country

(1) Debt relief & (2) Tax distribution

Madison’s problem with factions Subvert the general interest in favor of parochial special interests
Madison says that a major justification for drafting the Constitution the way the founders did was to control the ill effects of faction:

Representative government

Delegation of governance responsibilities to a small number of citizens, elected by the rest

Representatives are to serve as “proper guardians of the public weal”
They are citizens “whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations”

Antifederalists disagreed – feared that representative democracy would result in rule by remote national leaders who would sap the virtue of the people and fail to serve the people’s interests

Large republic

Federalist argument The larger the numbers, the harder to form factions that can drive the bus off course
Antifederalists, by contrast, argued that democracy requires face-to-face interaction and debate to achieve consensus (town-hall meeting)

Madison sets up the problem of faction as a mortal threat to the republic in order to argue that we need the Constitution to control the pernicious effects of factions

Constitution provisions that control faction in these ways:

Document, taken together, establishes a government that is national in scope and empowered by the people (large numbers) rather than the states (small numbers)
Art. 1, Section 2,Cl. 1: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”
Art. 1, Sec. 8: Explicitly gives Congress lots of powers it did not have under the Articles
Art. 1, Sec. 10: Explicitly prohibits states from engaging in what are core national functions:

Coining money
Entering treaties or alliances with foreign governments
Imposing import or export duties
Keep its own army

Art. II: Establishes a separate presidency and gives president a sphere of power

Federalist 51 discusses another set of problems raised by the prospect of a national government presiding over such a large territory

Major Problems of national government with large territory:

Government getting too powerful
Impinging liberty

Madison say the Constitution addresses these problems with a “double layer” of protection: Separation of Powers + Federalism

Double layer of protection: “The different governments will control each other, at the same time that each will be controlled by itself.”

Separation Of Powers: Through the “internal structure” of the federal government: constituent parts “keeping each other in their proper places”

In these ways, it give those who administer departments “constitutional means and personal motives to resist encroachment of the others”

Gives each department a “will of its own”
Limits ability to appoint members of another branch
Members of one department should not be dependent on the others for their compensation


“In America, the power surrendered by the people is … divided between two distinct governments”

protections are oper

se of provision Stevens
Contemporary understanding of the provision Scalia
Longstanding practice over time Scalia’s analysis of state constitutions


Discussions of Miller

o Policy arguments


o Values/moral considerations

But how do you know which tools to use and when?
Interpretive theories : normative principles about how judges should use these tools (1) Originalism, (2) Modified Originalism, (3) Original Meaning, (4) Tradition, (5) Process-Based Theory, (6) Aspirationalism

(1) Originalism: Judges should only protect values that are clearly stated in the text of the Constitution or clearly implied from the framers’ intent

By contrast, non-originalists believe that judges may protect values that are not explicitly stated or implied in the text of the Constitution or intended by its framers
Core debate in Constitutional law: whether the Constitution should be limited to its language and original intent or whether the Court can protect values that are nowhere clearly stated or implied

Goes to which branch of government gets to determine which values govern society

Arguments in favor of originalism

Limits judicial discretion: what courts can review and what issues courts can rule on This is desirable because courts are not democratically accountable institutions
Limits when the Constitution is relevant at all Other branches’ actions are limited only where clear Constitutional language or framers’ intent control; otherwise, they are free to make policy

Similarly, desirable because pro-democratic

Notice the syllogism that these arguments rest on:

Democracy = majority rule
Non-originalist judicial review is inconsistent with majority rule
Therefore, non-originalist judicial review is illegitimate

Non-originalist Responses to this argument:

Misunderstands the nature of our democracy (1) Democracy is not the same as majority rule (see Federalist 10) & (2) Democracy in the US is based on upholding certain substantive values, including the rights of the minority and the promotion of the public interest
Even if originalists are right about democracy, they do not follow the logic of their own premise If we are truly committed to majority rule, why should we have judicial review at all?

Why is it any more legitimate to strike down policies enacted by the majority on originalist grounds than on non-originalist grounds?

What if framers intended that interpretation be non-originalist? Strong indications that this was the case:

Drafted the document in broad vague language to accommodate unanticipated exigencies that occurred over time
Did not leave future interpreters much evidence of their intent
Should originalists abandon originalism if this is the case?

Arguments against originalism

Impossible to apply Text often vague, ambiguous, and ignorant of current realities