Constitutional Law 1
Stephen M. Feldman
University of Wyoming Law School
Spring 2015
CONSTITUTIONAL LAW I
Two main objectives in course
Understand the Constitutional structure
Free expression: Because it is a part of structure and order of a pluralist society
Constitutional law is the intersection of: History, Philosophy, and Politics (Constitutional law is political)
Preface to the constitution
Articles of Confederation, a treaty amidst individual nations (compact). Ratified in 1781
The States would remain sovereign with minimal centralized power
Weak national government with no executive:would regulate
War and peacetime operations
Resolve disputes between the states
Resolve disputes with the states and Indian tribes
Gaps in national powers
No ability to tax the states and raise revenue (could only ask states to do voluntarily)
No ability to regulate commerce effectively between the states
-When one state would limit trade on one, the other would respond in kind
Structural gaps
No executive branch to regulate effectively
No national judiciary
Problems that arose under the articles of confederation in the 1780’s (most power in the states)
Government had war debts but couldn’t pay because it could not tax
Dealing with foreign nations, no executive to lead negotiations
Commerce between states and retaliatory measures: the individual state legislatures would enact laws that were hostile toward other states
States governments were not working.Expectation that most virtuous people will be elected and would pursue the common good.It became increasingly clear that what mattered was the ability to get votes not be virtuous
State constitutions were laborites for national constitution and were the influence to create a national one
1786: Some agreement that AOC had to be amended (limited change)
Led to Constitutional convention: delegates ignored the limited shared, instead started from scratch (those who only wanted to amend went home).
When the process started it began within a specific political context.As the constitution was being written, they thought about the concrete problems such as lack of a national executive and judiciary.
Three theories/Ideologies of the New America
Classic/Civic Republicanism (Anti-Federalists): Belief in the common good (Aristotle/Plato) and limited national government.They were not advocates of the Constitution
Pluralism/Factionalism : Belief that the common good was a myth
Madisonian Republicanism (Federalists): (Mix of 1 and 2) accepted realties of factions, also wanted to pursue the common good.Advocates of the Constitution.
Classical/Civic Republicanism
Predominant theory during the revolution when states adopted constitution and wanted to maintain this form of government
Opponents to the Constitution and believed the Federalists were betraying the revolutionary principles
Underlying philosophy:
People and elected officials are to be virtuous, display civic virtue
Virtue demonstrated by willingness to pursue the common good rather than self or segmented interests
Achieved by people gathering in a limited forum (town hall) and deliberating about what the common good was.
Government was good by participating in government and with participation virtue was cultivated and people would be more willing to pursue the common good. (Crux is civic virtue)
Problems with government were that people were not virtuous or electing virtuous people who would pursue the common good.Aristotle: Politics is a partnership in virtue, cannot elect some to be virtuous for you.
The solution to this was to cultivate virtue through:
More and better education
Need to retain de-centralized government by active and direct participation (wanted to retain the importance of the State and Local governments not increase the centralized government, face to face style could not work at national level)
Minimize wealth disparities: Creates division within society and creates self-interest.Did not want to see a nationalized market place because it would introduce wealth disparity.
Strong exclusionary components in Civic virtue: Individuals need a certain amount of wealth in order to have a stake in society (need to have an interest in the common good).Need to exclude the polity from participation.WASP with a certain amount of wealth to have a stake, but not too much either.
Opposed the Constitution because
Centralizes government power and discourages civic participation
Constitution is intended in part to promote commerce by creating a national market place
Pluralism/Factionalism
Attempted to describe the realities of state governments (cynical philosophy)
During the 1780’s people not being virtuous (pursuing the common good) and they were split into factions seeking the interest of the faction above the common good.One interest seeks its advantage and disadvantage to others
Madison called it a necessary struggle by something groups
Stood for one person one vote and free expression.All viewpoints must be heard and protected.
Up until 1930’s the court limited free expression to pursue the common good but a switch to free expression because it was the Constitutional LODESTAR
No principles, virtues, common good.Only pursue own self-interests (believed leaders duped people into following the leaders self interest in the name of the common good).
Madisonian Republicanism
Synthesis of ideas of civic republicanism with the realities of factionalism
Madison and fellow federalists supported the Constitution and believed in the ideals of civic republicanism.
Believed that experience teaches us that too often people and leaders will not follow common good (more cynical version of #1 but not at the level of #2)
Believed that the problems with the system were not necessarily the people but structural problems that could be remedied through a Constitution
Federalist Papers (Federalist #10 specifically)
Written by Madison, Hamilton, and John Jay.
Advocate for ratification of the constitution in the public debate
Articulate political and constitutional theory of the constitution. Published anonymously as Publius
Believed that liberty/freedom naturally leads people to pursue their own self-interest and leads to factionalism and interest groups
Leads to government corruption and oppression of non-faction members
The size of the Republic was a key feature in the success of this type of system
The dilemma of scale: large republic could better defend against foreign threats. However, a small republic was better for cultivating virtue and pursuing the common good.
Madison believed that the dilemma of scale is wrong, the mistake is that a small republic best cultivates virtue and pursue the common good
Small republics are more likely to suffer from factionalism and would be too easy for a demagogue to come to power (able to fool a large part of the electorate)
Small republic likely that people will be homogenous (ideologically).A republic will likely get into factions and always some who are being left out (90% farmers and 10% merchants)
Faction is majority or minority not necessarily that majority would pursue the common good
The problem is that factionalism is magnified by a small republic.
Solution to the Small Republic tendency for factionalism
Increase the size of the republic: prevents factionalism (shifts power from the states and fives it to national centralized government which covers more geographically and demographically
Advantages to a large centralized government
Likely to be many diverse interests fighting for governmental power (multitude of groups all fighting).By fighting each other they cancel each other out.
More difficult for a demagogue to come to power, more difficult to convince a large number of people across the republic
Representation becomes more important (good thing).Anti-=federalists saw representation only as necessary evil
Representation allows for a filtering of interests and values of the common people
SEPERATION OF POWERS with the government would discourage factionalism because power dispersed among different powers.In the parliamentary system it was too easy for a single group to seize power in one branch.
Federalism: power between the states and the federal government was a form of separation of powers that would allow for one region to come under possible control of one faction but not the nation as a whole.
Bicameral legislature: form of separation of powers
If mechanisms built in (separation of powers) when the shift of power goes national, it would render it difficult for the national government to exercise power.
Would provide a dual layer of protection
Structure so virtuous will lead
But, if not elected would limited a demagogue who would otherwise have unlimited power
The attitude of the framers towards the electorate in a representative democracy
Elitists: There is a virtuous elite, no aristocracy of monarch, but those most virtuous are the ones who should lead, and those people would get elected and represent the common good
Democracy at the time of the framing
Definition of democracy at the time of the framing is not clear
Some participation by people, but limited rights to only some (not to minorities, women, non-property owners)
The new system was not purely democratic or civic republicanism: Was republican democracy
Supposed to be some protection of minority groups: The constitution is an anti-majority document.
Bill of rights (proposed and supported by the Anti-federalists) helps protect liberties by specifically limiting what the government could do.Used as bargaining chip to have Anti-Federalists ratify
During the ratification: Only 4% participation in voting due to exclusions or apathy
The bill of rights was proposed after the ratification of the Constitution.
If Madisonian Republicanism is the theory of the Constitution, how does that work today? (Changes in technology, because of technology the nation becomes “smaller”)
Freedom of press was a check on corruption, part of government, watchdog of virtue for government officials and part of a free government. (Freedom of speech not necessarily important)
Now the freedom of press is not a check but a way to promote an image.
Shift from Republican democracy to Pluralism in the 1930’s due to industrialization.
Industrialization changed the economy drastically from the common good of an agrarian society to the individualized nature of the industrial society
Mass consumer culture changes the shift the most (Radio).Many different groups start to become involved and encompasses outsiders
Differing views on the framers intentions for the constitutions
The founding fathers were a virtuous elite and did pursue the common good alone
The founding fathers did pursue the common good AND what was consistent with their own interests
Over-riding concern of the framers (Charles Bear) was with the economic interests within the constitution.The framers were attempting to protect their property interests by moving the power to the federal government then crippling it.Allows the wealthy to gather more wealth without government power interfering. (Dominant theory for many years)
Justified by federalist #10: property rights are cause of factionalism but it is crucial that government protect property rights and the constitution will protect from evil (re-distribution of property)
Shays rebellion, abolish debts, led small militia to seize government but the insurrection was put down.After the suppression the new legislature voted in and enacted everything Shays wanted.Cleary the protection of property mattered a lot.
Judicial review: the mechanics
Ability for the Supreme Court to review the constitutionality of any enactment by the executive or legislative branch of the federal government (Marbury v. Madison)CONCERNS SEPERATION OF POWERS
Ability to be the FINAL word on constitutional interpretation, i.e. the ability to review questions of law arising under the Constitution that a state court decides (Martin v. Hunter’s lessee) CONCERNS FEDERALISM
Establishing judicial review: Marbury v. Madison: opinion on separation of powers (1803) the historical context
Judicial review created the power for the Supreme Court to review the constitutionality of actions by governmental organizations (Federal and State Executive/ Federal and State Legislatures)
Dilemma: the legislature’s actions manifest the majoritarian will (COUNTER-MAJORITARIAN DIFICULTY)
Problems with Judicial review:
Not in the constitution: Not an enumerated power
Not enabling what people want: Allo
s and pursue the common good).Therefore the courts should interpret the Constitution
Increasing power of Federal government.Consistent with the view of the Federalists by expanding national power.
Didn’t invalidate another Statute for 50 yrs. (didn’t go wild)
Brilliance of opinion: Avoids a direct political confrontation with Jefferson (which would have lost) by not giving Marbury his commission, but expands the power of the Federal government (a key tenant of the Federalists)
This case demonstrates the falsity of the claim that the law is simply applied mechanically without political influence
Never talked about the framers’ intentions for judicial review (perhaps he believed it was irrelevant)
Refining Judicial review: Martin v. Hunter’s lessee (1816) 13 years later. CONCERNS FEDERALISM
Allows for Supreme court appellate review of State court decisions
(McCulloch v. Maryland) Established 3 crucial aspects of Constitutional law
Rejected “Compact federalism”: States retain ultimate sovereignty because they ratified the Constitution.
Expansively defines the scope of Congress’s powers
Limits the ability of the States to interfere with federal activities
Historical background
Judicial review of state courts/governments
Case had already been in the Supreme Court before, but the Virginia court of appeals refused the judgment because it believed it had a semi- sovereign status.
Conflict over large tract of land in northern Virginia
Original owner Lord Fairfax left land to Martin who is in England during the revolutionary war
Virginia laws allowed for confiscation of lands of Englishmen
Two decades pass and the two countries reach a compromise.
During the initial negotiations John Marshall represents the British citizens and also purchases some of the land.
Dispute arises between a treaty with U.S. and England and the laws of Virginia detailing confiscation
Procedural history
holds that the treaty gives secure title to Martin (Remands)
Argues: State courts have the ability to interpret the Constitution on its own, concept of sovereign government cannot be subordinate to courts of another sovereign (Compact federalism)
Direct challenge to supreme courts power/authority
Justice Marshall recuses himself and Justice Story writes the opinion
HOLDING: Federal courts have authority to review the constitutionality of state court decisions (Judicial review over state court decisions)
Article III, Section 1:“Arising under” provision.“Judicial power shall extend to all cases of law and equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”
State courts must follow constitution implicitly recognize the authority of the Federal courts
Establishes that the Federal courts will have jurisdiction over particular cases : Federal question cases (Treaty)
Article VI, Section 2: “Supremacy clause”
Federal question may arise in a state court, but ultimately for the federal courts to decide the question
Article I section 10: No state shall enter into any Treaty …. (express limits in State power)
Need for Uniform Federal Law: if Supreme Court doesn’t have appellate review, all states have different interpretation in different states.
Potential for State judges to be hostile to Federal rights and Federal law (or at least unsympathetic)
Federal judges are better suited to objectively (and for the “common good”) decide Constitutional decision because they are insulated from election and salary diminishment.
Argument against: would break state sovereignty
Comparison of Marbury and Hunter’s lessee
Marbury: Holes in all arguments
Hunter’s lessee: better arguments
Oliver Wendell Holmes: Judicial review is unimportant from Marbury, but for the union to survive uniformity amidst the union must exist (Hunter’s lessee)
1790’s: Framers worried a lot about factionalism in States
Judicial review exercise from 1803-1937
Decided under the Republican Democratic regime: Belief in the common good (citizens and officials should be virtuous)
Decided under the “Law of the land” provision: all actions must be in pursuit to a the law of the land
Due process in states had substantive component (pursuit of the common good)
Two cases help describe
Commonwealth v. Rice 1845 (State case)
Lochner v. New York 1905 (federal case)
Rice: enforced republican Democratic principles at the State level
City (by ordinance) required seller to who products to be from close proximity (cannot bring produce from outside city unless produce yourself)
Seller challenges: contrary to common right, contrary to common good
Chief Justice Shaw: City had accommodate sale without agents or middle men
The regulation controls for the common good
Demonstrates that judicial review will be construed in favor of the public interest over a factional interest
Done through “boundary picking” establishes boundaries of individual rights and liberties
Government could act for the common good and limit individual rights
