Constitutional Law (Law 540) – Larsen – Fall 2011
SECTION I – Introduction to the Constitution
Relevance of story of Odysseus and the sirens
– C as a pre-commitment device à concern about decision making in times of crisis.
– Text of command gives one message, but should also think of the purpose of command (within context) and what makes sense (prudence).
o General purpose – protect from danger
o Specific purpose – protect from death by sirens
Constitution vs. ordinary legislation
– C is much harder to change (2/3 of both houses and ¾ of states must ratify amendments)
– C deals with bedrock principles, establishes basic framework for making rules and certain substantive standards, enshrines certain enduring values (especially in times of crisis)
– Note: If courts can’t read two ordinary laws to be in conformity with each other, they take the more recent one (the one later in time).
“Dead Hand” Problem
è This seems to violate some of the principles of democracy, since there are some things we might want but can’t have due to the C.
è Why should we be bound by a C we didn’t assent to?
– We inherit the benefits, so should be subject to the burdens.
– We can theoretically amend it, so failure to do so is like assent to it in its present form.
– People can choose to leave the country, so staying is like consent.
– Wording can be reinterpreted to some extent to fit the times.
– It has worked pretty well over the years.
– We aren’t really bound by it, the government and states are bound by it – we are only given liberty by it for the most part (although you can’t own slaves, etc.)
– It’s kind of the centerpiece of our national identity – it unites us / constitutes us. Acting unconstitutionally is like being un-American.
Role of the Supreme Court – Origins of the U.S. Constitution (8-29)
Origins of U.S. Constitution
– View of the C and Framers:
o Framers as intellectual giants who created timeless or enduring principles.
o C as a series of ad hoc compromises to resolve specific issues.
o C as a product of aristocratic conservatives who wanted to protect private property and the wealthy.
– C replaced the Articles of Confederation which were adopted shortly after the Revolution.
o Articles of Confederation were intended to ensure some unification of the states, but states would remain sovereigns. (10th amend. is a pale echo of this concept.)
o The govt did not have the power to tax or regulate commerce, had no executive authority or national judicial authority, etc.
o In some sense the C is unlawful in the sense that it was created with disregard for the amendment procedures of the Articles of Confederation.
– Madison’s list of issues that arose under Articles of Confederation:
o Failure of states to comply with constitutional requirements.
o Encroachments by states on federal authority.
o Violations of the law of nations and treaties.
o Trespasses of the states on each other’s rights.
o Lack of cooperation in matters of common interest.
o Lack of guaranty to the states of their constitution and laws against violence.
o Lack of ratification by the people of the Articles of Confederation.
o Multiplicity of laws in the states.
o Injustice of the laws of the states.
Arguments over New Constitution
– Republican theory was one of the foundations of political thought of C.
o Relied on civic virtue, willingness of citizens to subordinate private interests to general good, self-rule as selecting values to control public and private life.
o Political participation should be active and frequent – e.g. town meeting.
o First task of govt was to foster public spiritedness. Some believed decentralization and small communities were necessary to achieve this.
o But by 1787, a consensus emerged that representation was necessary at both the state and national levels, since the size of both govts made the town meeting model impossible.
– Antifederalists were hostile to a dramatic expansion of powers of national govt.
o Thought a decentralized society could achieve the homogeneity and dedication to the public good to prevent tyranny from the center or a clash of private interests.
o Feared representation would undermine the system of decentralization on which liberty depended and that people would be effectively excluded from public affairs and national leaders would have too much discretion.
o Thought growing interest in commerce was a threat to Revolutionary principles and communal bonds.
è Antifederalists attacked the proposed C on the ground that it was inconsistent with the underlying principles of republicanism.
– The antifederalist objections led to a reformulation of republicanism which attempted to synthesize traditional republicanism with a theory that welcomed heterogeneity.
o Much of the reformulation is found in The Federalist Papers, essays written by James Madison, Alexander Hamilton, and John Jay to the people of New York which attempted to defend the proposed C against antifederalist attack.
The Federalist No. 10 (Madison, 1787) – large republic as solution to factionalism
– Measures are too often decided by the superior force of an interested majority, but a well-constructed union has a tendency to break and control the violence of faction.
o A faction is a number of citizens united and actuated by a common interest adverse to the rights of others or to the long term interests of the community.
o Factions stem from the nature of man and the unequal distribution of property.
o The regulation of the different interests of the various classes is the main task of modern legislation and involves the spirit of faction in the operations of govt.
o The different classes of legislators are but advocates of the causes they determine.
– Since the causes of faction cannot be removed, the thing to do is to control its effects.
o If a faction is a minority, relief is supplied by the republican principle. If it is a majority, this is more problematic and moral motives are not an adequate control.
o A pure democracy has no cure for the problems of faction, but a republican government with a representative scheme holds the cure.
o Key features of a republic are delegation of govt to a small number of elected citizens, greater number of citizens, and larger area then in a democracy.
o The smaller the society, the fewer the distinct parties and the more frequently a majority will be found. If the sphere is enlarged, it is less likely that a majority of the whole will have a common motive.
è The size and extent of the Union gives it the most palpable advantage and provides a republican remedy for the problems of faction.
Madisonian Republicanism
– For Madison the main problem of govt was the control of factions.
o Antifederalists thought civic virtues would safeguard against factional tyranny.
o Madison and many other federalists thought factions were inevitable and that the civic virtue or public education could not overcome factional tyranny.
– Madison rejected Jefferson’s proposal of frequent Constitutional amendments since it would produce violent struggle between parties.
o Jefferson thought turbulence was productive of good.
o Madison though ongoing processes of self-govt produced not the promise of genuine self-determination but the danger of factional warfare.
– Madison believed the problem of factions was especially acute in a direct democracy, but there were safeguards in a large republic.
o In a large republic, the diversity of interests would reduce the risk that a common interest would be shared by enough people to oppress minorities.
o The principle of representation in a large republic would also help. Madison saw representation not as a necessary evil but as an opportunity for achieving governance by officials devoted to the public good instead of private interests.
§ The representatives would engage in discussion and debate from which the common good would emerge.
§ Note: the first Congress rejected giving constituents a right to give binding instructions to representatives.
Constitutional Safeguards
– The C embodies structural provisions designed to bring about public-spirited representation, to provide safeguards if that is absent, and to ensure some popular control.
– The various systems of representation in the different branches of the national govt were designed to promote deliberation and control possible abuses.
o No branch can speak authoritatively for the people themselves.
o Bicameralism (division of Congress into the House and Senate, with different term lengths) was intended to ensure that some representatives would be relatively isolated from the people and others would be fairly close to them.
o The system of checks and balances was designed to minimized the impact of representatives unduly influences by interests inconsistent with the public good.
The Federalist No. 51 (Madison, 1788) – checks & balances on self-interested representation
– Each govt department should have a will of its own and its members should have as little power as possible in the appointment of the members of other departments.
o Ideally, all appointments should be drawn from the authority of the people.
o Some deviations from this principle are necessary, particularly for the judiciary, since special qualifications need to be considered and since the permanent tenure of judges soon destroys all sense of dependence on the authority conferring them.
– The great security against concentration of power in one department is in giving those administering each department the means and motives to resist encroachment.
o If men were angels, no govt would be necessary. Govt must be enabled to control the govt and to control itself. Extra precautions are necessary beyond a dependence on the people
o The aim is to divide the offices so that each may be a check on the other.
o In republican govt, the legislature predominates, so the remedy is to divide it into different branches and to render them as little connected as possible.
o The executive power may need to be fortified, such as through veto power.
– Value of the compound republic:
o The fact that power is divided between two distinct govts and then the power allocated to each is subdivided among distinct and separate departments provides a double security to the rights of the people.
o The different govts will control each other and each will be controlled by itself.
– The republic should guard society against the oppression of its rulers and also protect minorities from oppression by the majority.
o One method is to create a will in the community independent of the majority.
o The preferable is for society to be broken into so many parts, interests, and classes that the rights of individuals or a minority will be in little danger from interested combinations of the majority.
The smaller the community, the more oppressive combinations of majority will be facilitated. The larger the society, the more capable it will be of self-govt.
o In the extended republic of the U.S., a coalition of a majority of the whole society could seldom take place except on principles of justice and the general good.
Madisonian Republicanism and Checks & Balances
– The systems of checks and balances within the federal structure was intended to prevent both factionalism and self-interested representation.
o The distribution of national powers can be seen as a way of maximizing the power of the public by fragmenting the power of the governors.
o Some argue that this fragmentation helps uphold the status quo and insulates existing practices and the distribution of wealth from democratic control.
– The federal system was intended to allow flexibility, experimentation, and accountability.
o State govts and local interests would prevent the expansion of national power.
o Power of citizens to move between states (right of exit) would be a check on govt tyranny and would deter local oppression.
o National representation, bicameralism, indirect election, distribution of powers, and the federal-state relationship would help counteract the effects of faction.
o The C itself would prevent groups from usurping power in their favor.
– A chief concern of the famers was to protect property and contractual liberty.
o The federalists favorable view of lengthy deliberation and government action may be associated with a desire to protect property rights, since inaction preserves the existing distribution of wealth.
– There was a hybrid conception of re
d judicial branches at same time.
– This isn’t explicitly prohibited by the C (see Art. 1, Sec. 6 regarding dual offices), but it’s unconstitutional in the sense that it’s not how we constitute ourselves due to concern for separation of powers. It is not judicially enforceable, but it is politically enforceable.
è Much of constitutional “law” consists of informal accommodations and historical practices among parts of the national govt and between federal and state govts.
The Federalist No. 78 (Hamilton):
– The doctrine of judicial review does not have to imply the superiority of the judiciary to the legislature or be seen as undemocratic.
– Instead, it can be seen as demonstrating that the power of the people is superior to both – where the will of the legislature stands in opposition to that of the people (as declared in the C), the judges should uphold the will of the people.
Role of the Supreme Court – Basic Framework (58-61)
Judicial Exclusivity in Constitutional Interpretation
– Marbury v. Madison established that when deciding cases, courts must look to the C as an enforceable source of law and the C must prevail over statutes.
o But this could mean only that each branch of govt is authorized to interpret the C, and not the judiciary exclusively.
– Cooper v. Aaron (S. Ct. 1958) said that Marbury declared the principal that the federal judiciary is supreme in interpreting the C.
o This suggests that other govt officials must not interpret the C for themselves but must view courts’ interpretation as authoritative.
– But the C imposes a duty to comply with the C on all govt branches, which implies that the President and members of Congress have a duty to make constitutional judgments and to ignore statutes that seem unconstitutional even if the Court would uphold them.
o If the courts’ duty is exclusive, political becomes drained of morality and decisions will be based on expediency alone.
o Some see the decisions of the S. Ct. as binding upon the parties to the suit and to the executive branch for the necessary enforcement, but not beyond.
o Under this view, the C may invalidate laws even if the S. Ct. doesn’t hold that.
§ S. Ct. might decide a measure does not violate the C out of deference to other branches or considerations of judicial competence, but other officials have a duty to interpret the C and weigh the measure themselves.
Thayer, Origins and Scope of the American Doctrine of Constitutional Law (1893) [Ctools]
– Probably the most influential law review article ever written.
– Thayer thinks judicial review should be rare, only in clear cases, and that legislature has duty to consider constitutionality of legislation.
o Unless it’s clear that a law is unconstitutional beyond a reasonable doubt (e.g. an ex post facto law), judges should allow democratic choice to flourish.
o Why? The interpreter is truly the law giver – courts should not be above the law giver, should not become the law giver. If reasonable minds could differ, shouldn’t give decision to courts.
o Also, this encourages Congress to do its job thoughtfully rather than relying on courts (and encourages people to care more) – encourage Congress and people to care about the Constitution.
o This is important because:
§ There are some kinds of laws that cannot make it to court.
§ There is always a delay before judicial review.
§ It would look bad for Congress if its laws kept getting overturned.
– Problems with Thayer’s idea:
o We can’t always trust that Congress and the people will pay attention to C.
o The incentives to live in the moment or get reelected mean we can’t trust people to put constitutionalism above short term interests.
Easterbrook, Presidential Review (1990) [Ctools]
– Executive power to interpret law is well established, but what about power to interpret C?
– Easterbrook believes President has this power because judicial review depends on the view the C is law, so unconstitutional enactments are not law and do not bind anyone.
– Presidential review is important because:
o This constraints govt power.
o Many disputes never reach courts.
o Courts can take a long time to decide disputes.
o Once court makes a decision, power of presidential review ensures quick compliance (don’t have to wait for specific injunctions, but even if executive branch drags heels, it is no slower than it would have been otherwise).
o Facilitates changes to judicial decisions (if executive branch resists) and serves as counterweight to judicial review.
How aggressively should courts engage in judicial review?
– Should they decide cases de novo, based on their view of the law, or with some deference to other branches? à Modern courts have not settled on a standard of review.
– Courts always say that statutes come to them with a presumption of constitutionality, but how much they mean that depends on the case. Sometimes courts say that in a close case we should put a heavy thumb on the scale for constitutionality (a la Thayer).
