Introduction of U.S. Constitution
**Principal Goal of the U.S. Constitution: To create govt power, but at the same time, to limit the scope of the govt’s power.**
Reasons for having a Constitution:
· Establishes a set of rules – puts people on notice.
· Control – continuity and stability despite whoever is in office.
· Organizational/Structural Function – Organizes and allocates duties
o Division of power
· Legitimacy – The person in charge must follow to the rules to provide legitimacy for the new govt.
· Stability BUT flexibility – Allows for adaptation to times by two ways: (1) Amendment (add or repeal propositions); (2) Interpretation or application (the Supreme Court’s duty)
· Limits government – prevents opportunity for tyranny.
· Where do we draw the line to prevent govt from abusing the Constitution?
1st Major Function/Theme of the Constitution: Making a government – Structural aspects
Article I: Establishes legislature
· Makes the law
· Quite a bit longer than the other two Articles establishing branches of govt.
o Has more responsibilities
o Most representative branch of govt
o Anticipated this to be the more powerful branch, and may have also feared it.
§ Wanted to give less wiggle room.
Article II: Establishes executive
· Enforcer of law.
· A “necessary evil”
o Needed someone to carry out uniform decisions but not deemed as important by the Framers of the Constitution.
Article III: Establishes judiciary
· Interprets the law.
We have three branches of govt for:
· Specialization
o Efficiency (need one head, not 500)
o Expertise (wants Congress to know policy and lawmaking – not enforcing)
· Division of power
o Usually need two branches to enact and enforce law.
o Prevents factional control of one branch.
o Very few instances where one branch can do something itself – exception is the U.S. Supreme Ct that may issue a decision that would change the meaning of the Const (but these are not elected officials).
2nd Major Function/Theme of the Constitution: Establishment of vertical power between state and federal govt (federalism). Relationship with state and local govts.
· Allows states to focus on more local issues w/ fed govt on national issues
o More efficient and responsive
o Different localities have different concerns
· Divides the workload
· Fearful of giving up state powers to national govt. Saw a monarchy.
*Anything not given to the federal govt lies with the state govt.
*First time there was a dually governing structure in the world – may have been more cumbersome and less efficient (dictatorship is always the most efficient), but the benefits of guarding against tyranny outweighed the cost of a more cumbersome and less efficient govt.
Constitution was a reaction to two things:
· Pre-American Revolution view of despotic monarchies.
· Experience with the failed Articles of Confederation.
o Toothless national legislature and executive, and a very weak judicial system.
o States were completely ruling themselves with disregard for the national government
§ Imposed tariffs on each other – Economy is already devastated from the Revolutionary War but the economic hardships imposed on other states through protectionism was hurting the national economy even more.
o No national Army – just state militas.
The Constitution may be considered “illegal” – masses did not vote, just the “great minds.”
Federalist No. 10 – Discusses division of power.
· Guard against factionalism (olden day “special interest groups”)
o Sought to prevent people wielding disproportionate power based on their money, influence, background.
o Inherently afraid of true democracy – afraid of factions.
§ Divided power because if a faction has one branch, the other two are still in moderate control.
§ Against classical republicanism – true democracy
3rd Major Function/Theme of the Constitution: Protection of individual rights/freedoms.
· Economic, Religious, Political
· To separate individual rights from federal power is a false dichotomy – the two are inherently intertwined.
o More governmental power may mean infringing on individual rights. More individuals rights may mean less governmental power.
“Trifecta of Lawlessness” – (1) Revolution, (2) Throwing out Article of Confederation, (3) Establishing judicial review (Marbury v. Madison)
I. The Federal Judicial Power
Article III – Source (and ceiling of jurisdiction)
*Anti-majoritarian theme: SCt is the only branch of the federal govt that is unelected.
· Afraid of pure, real democracy, so left one branch unelected to guard against factionalism.
· Judicial review and democracy have a continuing tension, because it is inherently anti-majoritarian.
o Going against the will of the people when SCt deems something unconstitutional that the legislative and executive enacted and enforced.
Judicial unelected power may be necessary – too cumbersome to check and balance through elected process (some element of efficiency)
Source of federal judicial power: Article III, Section 1 –
“judicial power of the United States shall be vested in one Supreme Court and in
such inferior courts as the Congress may from time to time ordain and establish.”
Scope of the Power:
1. Cases, in law and equity, arising under the Constitution
2. Cases affecting ambassadors, public ministers and consuls
3. Cases of admiralty and maritime jurisdiction
4. Controversies where U.S. is a party
5. Controversies between two or more states
6. Cases between a state and citizens of another state
7. Cases between citizens of different states (diversity jurisdiction)
Structural Constraints on Judiciary:
· Can only hear cases brought to them.
· No enforcement authority.
· President appoints justices
· Judges may be impeached
· Congre
gitimacy in light of the fact that judicial review is an inherently undemocratic act.
Justifying judicial review by showing there is a process – and objective way that provides legitimacy.
Process ct’s use to determine the meaning of the Constitution (very similar to Common Law):
· Text
· Evidence about the intent of the drafters of the Constitution – “Original intent”
· Policy (some have problems with this with the Constitution)
· Precedent (previous SCt holdings)
i. Originalism (WWMD)
· Judges must subscribe to the original meaning of the text.
o True originalists don’t even look at federalist papers, history, etc – just text.
o Most originalists look at text, historical document, framer’s intent.
o Allegedly a way to reel in “activist judges” from straying too far from the Constitution. Constrains judges.
o Pros:
§ Provides constancy of core values – stability so they don’t morph over time.
· This in turns provides legitimacy for the Ct.
· Arguably makes judicial review more consistent.
o Keep in mind – is true originalism even possible?
o Cons:
§ Inflexible/adaptable to fundmental changes in American society.
§ Can still change Constitution through Amendments – maybe it was intended to be changed and is not as “stable” as originalists think.
§ Anti-democratic – unelected judges overruling laws made by 20th/21st century Congress.
§ There is no single identity of “the Framers”- the Federalist Papers were written by three of the Framers, not all.
§ You can never determine the intent of a collective group of people.
· What if they intended not to abide by the original intent?
ii. Non-Originalism
· Judges are not bound to the text UNLESS it is explicit.
o Look at text, original intent, AND modern issues that the framers originally did not intent.
§ Social policy
§ Changes within society
o Believe that the Constitution is a living and evolving document.
o Pros:
§ Really strict reading is too inflexible.
§ Adaptable to changing society.
o Cons:
§ Anti-democratic – non-elected officials using their discretion on policy.
§ Too flexible – may be erratic with decisions.
o Can we actually accomplish non-originalism?
iii. Modified Originalism
· For the originalist who wants to get around strict originalism (Justice Saclia)
o “He” does not literally mean “he” today – could also mean “she”
