Constitutionalism:
Why a constitution?
– Difficult to change: prevents tyranny of the majority – protects the rights of minorities.
– Limits government authority by protecting individual rights.
– Binds future generations.
What is constitutionalism?
– Limits government power and protects individual liberties.
– Structurally separate legislative, executive, and judicial power.
– Protects minorities
– Hard to change
– Limits and creates government
– Pros and Cons:
o Not flexible
o Constant/stable
o Federalism
o Broad enough for everyone to agree on its basic tenants but leaves a lot of room for interpretation.
Supremacy Clause à state and local government actions are preempted by federal action if the two conflict.
Constitutional Interpretation:
(1) Textual Argument: 2 kinds:
a. Originalist Terms: the constitution means what it meant at the time of ratification; protects the spirit of the laws and enforces constitutional limits.
b. Evolving Textualist Approach: constitutional meaning evolves to comport with the way language is understood today.
(2) Ongoing Practice: constitutional meaning evolves to embrace the changing realities of our nation.
a. Non-Originalists: argue that it is important to have Constitution evolve by interpretation and not only by amendment. This ensures that the constitution does not remain static, and can evolve to meet the needs of a society that is advancing/changing technologically, morally, and socially.
(3) Precedent (Stare Decisis): most doctrine is with some precedent. Doctrine is basically a set of ideas.
(4) Structural Argument: inferences made from structure and relationships of constitution; indentify concepts implicit in constitution’s architecture.
a. Federalism
b. Separation of Powers
c. Checks & Balances
(5) Historical Argument: looks to either:
a. Original intent of the framers; or
b. The vectors of history.
(6) Prudential/Consequential Arguments: Constitutional interpretation should take account of outcomes. Often balances competing constitutional principles. Arguable legislative in nature.
(7) Ethical Argument: Vindicate what is deemed moral, just, or desirable. Seem invited by open-ended language like “due process” or “equal protection.” Some see as an effort to incorporate personal sentiments into constitutional law.
(8) Sociological Evidence: courts sometimes use social facts as a basis for deciding constitutional cases.
(9) Comparative Constitutional Argument: argument that the practices and experiments of other countries furnish a basis for decision making in US constitutional law.
7 Elements of Constitutional Law:
(1) Defines the organs of government.
(2) Provides the government with stability
a. The ordinary law must give way to the power of the constitution.
(3) Written
(4) Constitution is the superior law of the land.
(5) Justiciable
a. The judiciary plays a central role in constitutional law.
(6) Entrenched – can only be amended by special procedure.
a. More procedural than mechanical
(7) Embedded in procedural or mechanical context that makes constitutional law much harder to change.
(8) Express the common ideology/identity of a people.
**NOTE: These 7 elements represent the very different role that constitutional law plays in American society than other kinds of law.
Judicial Review:
Art. III: Supreme Court has jurisdiction over “cases and controversies” arising under the constitution, laws, or treatise of the US.
Marbury v. Madison (1803):
– Judiciary Act of 1789 gave the SCOTUS original jurisdiction over writs of mandamus under § 13.
– Justice Marshall à Constitution is the supreme law of the land.
o It is the province and duty of the judiciary to declare what the law is à Judicial Review
– HOLDING: Marbury entitle to commission and deserves recourse but SCOTUS has no jurisdiction to hear this case under the constitution.
o Articulates this holding with 4 main ideas:
§ Basic structural idea that our government is based upon rule of law: government of US is a government of laws not of men.
§ Constitution is paramount law such that an inconsistent statute is invalid.
§ Outs is a system of limited government à the federal government is a government of ENUMERATED powers.
§ Judiciary has the power of judicial review.
– Consequences of this holding:
o Places limits on the power of the SCOTUS – the jurisdiction of the SCOTUS is limited by the constitution.
o Places limits on congress and the executive branch.
§ States that when branches exercise power that is not delegated to them by the constitution, the SCOTUS has the power to strike their actions by judicial review.
o It gives the SCOTUS tremendous power through judicial review that isn’t articulated in Art. III.
– Is there a remedy? 2 kings of executive acts:
o Political/Executive: acts are any powers given explicitly to the executive by the constitution and these are not reviewable by the SCOTUS because the acts are discretionary. The power that enables them is checked by the legislature and the people.
o Non-Political/Non-Executive: action taken that involves rights of individuals/institutions and powers given by the legislature. These are reviewable by the SCOTUS.
– The Judiciary is responsible for interpreting that laws and so it is for the court to tell the legislature what is necessary and proper use of power. Why does the judiciary have to be an interpreter?
o “It is emphatically the province and duty of the judicial department to say what the law is.”
o Judiciary is the branch charged with solving problems.
§ To deprive the judiciary of the power to achieve this goal would be illogical. Therefore, the judiciary must have the power to decide the meaning of the constitution.
o Judiciary is removed from political envir
are likely invalid.
Executive Privilege: Ability of the president to keep his communications with advisors secret. The Constitution does not mention this authority, but Presidents have claimed it because it is necessary to receive candid advice and of the utmost importance for national security.
– US v. Nixon: Inherent Presidential Privilege is NOT absolute.
o Neither separation of powers nor need for confidential communications can sustain an absolute executive privilege from judicial process under all circumstances.
o Countervailing constitutional concerns associated with criminal prosecutions including due process and the right to confront.
Presidential War Power:
– Traditionally à President enjoys the strongest power when making wartime decisions and commander-in-chief of the military.
– War Powers Resolution: passed in response to the President’s strong use of this power during Vietnam war.
o This congressional resolution attempted to answer the question of how to divide “war making” authority between the President and Congress. No president has ever abided by this resolution. This act has been very controversial during the War on Terror.
§ Art. I, § 8 à Congress has the power to declare war, raise armies, provide for a navy, make rules for armed forces, also organize, arm, and discipline militia.
o The War Powers Resolution allows the president to:
§ Send troops when there is a:
· Declaration of war
· Specific statutory authorization
· A national emergency created by an attack on the US, its territories, possessions, or its armed forces.
§ Absent a declaration of war, the President must:
· Report to Congress within 48 hours of introducing armed forces into a new area.
o Presidents often fail to report to report to congress within 48 hours – delaying the clock.
· Operation must end within 60 days from the required report unless Congress declares war or specifically authorizes the use of force.
§ The 60 day period may be extended no more than 30 days if the president certifies to congress that unavoidable military necessity respecting the safety of the armed forces requires their continued use in connection with their prompt removal.
§ Congress may refuse to support the president during the initial 60-90 day period or may thereafter terminate the action by concurrent resolution.
