Introduction to The Constitution of the United States
The Formation of The Constitution of The United States
I. A Short History of The Adoption of the U.S. Constitution
A. Articles of Confederation v. Constitution
B. Overview
1. Core concepts:
a. Separation of powers
• Among three independent co-equal branches of government (legislative, judicial, executive)
b. Federalism
• Division of power between federal and state governments
c. Written Bill of rights and other provisions like 14th amendment that protect certain fundamental liberties from government interference
• Protects individual liberties
d. Popular sovereignty and representative republican government
2. Most important innovations:
a. Written constitutionalism
• Function: Says if you want to amend the constitution there a certain process
• Recognizes popular sovereignty – transparency (out there for everyone to see). It is short therefore everyone can read/understand it
• Both empowers and controls government
– At the time the idea of entrenched, can not be superseded by the passage of an ordinary law
• Congressional Sphere because each had distinct power (judicial, legislative, executive), and others recognize the interpretation and follow it. It puts the constitution above any one member of government.
– But this could be abused the danger is the judges can possibly abuse their power because they have last word in what the constitution says.
• One benefit, inherent in idea congress can not just change the constitution. Protects individuals and minority groups in situation where public passion becomes inflamed against them
– Example: Sex offenders
b. Popular sovereignty – “we the people”
c. Constitutions status as supreme entrenched law
3. Remains imperfect (example accommodated slavery)
C. English & American Constitutionalism
1. Premise of American conn. Is exact opposite of the English conn bc the American one is based on popular sovereignty and we the people rather than a king
D. English Historical Background
1. The constitution makes our country, it was turns the united states of America into a nation
2. Constitution is a foundational basis for society
3. Where did our constitution come from?
a. England (but no written document, arose out of traditions)
b. The most direct came from the glorious revolution, during reign Charles the first there was a civil war
• There was an agreement of bill of rights the English ppl wanted (jury trial, parliament, habeas corpus, ect.) They wanted to be king and queen so they signed on.
c. American’s thought the glorious revolution was the model to follow
E. The American Innovation of Written Constitutionalism
1. Benefits:
a. Allows a society to protect fundamental rights and freedoms from the passions of the moment and of mobs
b. Creates a framework within which intergenerational lawmaking and private ordering can take place
c. Functions as a type of gag rule taking certain topics off the agenda for ordinary politics (example religion)
d. Make it easier to know what is says & requires
e. Limits the power of the government
f. Can be aspirational
• To form more perfect union, provide for common defense, ensure domestic tranquility, promote general welfare, secure blessings of liberty
2. Originally there were corporate charters from the king, however these charters did not recognize popular sovereignty because they were merely grants
3. The declaration of independence abolished the old system and declared a new one
a. Is it the right of the people to abolish government?
• Under the new approach the people are the soveirgn not the government or king, therefore if the people are the soverign they can get rid of the government, and that is the underlying principle in the declaration of independence
b. There are both pro’s and cons
• Pro: it is not the peoples job to obey the gov’t when oppressive
• Cons: It’s a scary idea that the gov’t can be overthrown
F. Philadelphia Convention of 1787, the campaign for Ratification, and The Federalist
1. After the revolutionary war set up the articles of confederation (he analogized to the European Union) – because they are individual states that aren’t held obligated to something greater
a. State legislatures (were closer to the people) but they lacked a idea of financial responsibility, which led us to a depression
2. In 1787 sent to Philadelphia to amend articles of confederation
a. Each state brought together a ratifying convention and each state had elected, this is the people of the states agreeing to the change of the rules (again based on popular soveirgnty
3. Philadelphia Convention and Five Major Decisions:
a. Expand national power by proposing power to regulate commerce, power to tax and spend to promote general welfare, and power to adopt all laws necessary and proper for carrying into execution all the other powers granted by the constitution
b. Great compromise: equal representation in the senate but proportionate representation in the house of representatives
c. Separate executive and judicial branches
d. Slaves counted as 3/5 person for representatives
e. Constitution would be amendable by 2/3 vote of both houses of congress couples w/ratification by three quarters of the states
G. The Federalist No. 1 : gives an overview, reason for the papers, and sets forth their purpose of promoting adoption of the constitution
H. The Federalist No. 40: debate over whether they exceeded the scope of their power in creating this new constitution when they were only sent to the convention to modify
1. Federalists argue – still doing what they set out to do bc they are only expanding, this is what needed to be done for the good of the country
2. Opponents – completely changed one form of government, going beyond their scope
I. The Federalist No. 43: dealt w/ratification
II. Nature of the constitution: Purposes, Features, & Themes
A. The Federalist No. 39 – addresses how government will be partly national and partly federal
B. Six Broad Themes of the Constitution
1. Written Constitution
2. Republicanism and popular sovereignty
a. We the people
b. Achieved through representative republican institutions
3. Separation of powers and “Checks and Balances”
4. Federalism
5. Individual rights
6. Imperfect Congruence of the constitution with justice
C. The Original Constitution
1. Article 1 (10 sections) – the legislative powers of congress, the house & senate
2. Article 2 – vests the executive power in the president of the united states
3. Article 3 – vests the judicial power in one supreme court
4. Article 4 – “privileges and immunities” & guarantees every state a republican gov’t
5. Article 5 – procedures for amending the constitution
6. Article 6 – Constitution the supreme
indicate so
c. There must be a strong reason to depart from precedent (precedent)
d. If the framers intended them to me limited they would have said so (history & intent)
e. The constitution can be amended to include this
7. Counter Argument: Could make a purpovist argument in opposition, that bill of rights purpose was to protect ppl therefore it should apply to the states
IV. Interpreting the constitution
A. The Need for Interpretation
1. Problems arise that the constitution does not consider
2. Ambiguous language (ex: necessary and proper)
3. What government justifications are sufficient to permit the government to interfere with a fundamental right or discriminate
B. Debate b/w Originalism & Non-Originalism (pg. 17 Erwin)
Originalism
DEF: The theory that the US Con should be interpreted according to the intent of those who drafted and adopted it
Non-originalism
Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in written Con
Enforce norms that cannot be discovered within 4 corners of doc
If Con is silent, it is for legislature, unconstrained by courts, to decide law
It is permissible for Court to interpret Con to protect rights that are NOT expressly stated or clearly intended
Con should evolve solely by amendment
Con's meaning can evolve by amendment && by interpretation
Strict– literal
Moderate– general purpose
Very nature of interpreting doc requires that its meaning be limited to its specific text && its framers' intentions
It is desirable to have Con evolve by interpretation
This approach desirable to contain the power of unelected judges in a democratic society
Meet needs of changing society
Court is justified in invalidating govt decisions ONLY when it is following values clearly stated in text or intended by framers
Process of determining framers' intent invariably is a process of interpretation affected by contemporary values
Judicial review is consistent with majority rule so long as Congress retains power to restrict J of SC
Many and conflicting reasons for adopting a particular constitutional provision
Judicial review is democratic b/c people consented to adoption of Con
Approach intended by framers– framers probably did NOT intend that their intent would govern later interpretations of Con
Nonoriginalism improperly empowers unelected judges to displace decisions of popularly elected officials && that historically, it has produced undesirable decisions
C. Who should be the interpreter?
Early Controversies Under The Constitution
I. Overview
A. Do not have a specific provision of the conn that authorizes charters so the banks must be created through the necessary and proper clause
