Villanova University School of Law
Constitutional Law I
I. Introduction to the Constitution of the United States
o The Articles of Confederation provided for a weak Federal government and powerful individual state governments to retain their sovereignty.
o States acted in their own self-interest; issues arose.
o Prompted Constitutional Convention in Philadelphia; many compromises were made during the several month long Convention.
o Drafters returned to their states for ratification:
§ Federalists – Defended the Constitution:
· Wrote the Federalist Papers.
· Famous Federalists:
o Alexander Hamilton
o James Madison
§ Antifederalists – Opposed the Constitution (e.g. Brutus):
o Saw proposed power of federal government as too strong, especially the Judicial Branch.
o Stressed lack of enumerated individual rights as worrisome.
o Bill of Rights ratified after Constitution per state push.
a. The Formation and Purposes of the Constitution: pp. 19-42
i. The Federalist No. 1
· Hamilton’s introductory essay.
· Opposed Articles of Confederation and supported the new Constitution.
ii. The Federalist No. 40
· Madison’s argument that drafters did not abuse their powers by creating a new Constitution, which was necessary, versus amending the Articles of Confederation.
iii. The Federalist No. 43
· Madison defends the notion that the Constitution will come into effect once nine states ratify it.
· Asserts that it would be unfair and unwise to let the objections of a few states hold hostage the interests of the great majority.
iv. The Federalist No. 39
· Madison’s declaration that the government will be both national and federal.
· Defends the formation of a republic – completely new idea.
v. Six Broad Themes of the Constitution:
1. A Written Constitution
· Difficult to change:
o Anti-majoritarian document.
o Protects long-term values from short-term passions.
· Supreme law of the land.
· Prevails over any contrary law or action by a state or federal government.
a. Modes of Interpretation:
· The meaning the words would have had, in context, to speakers and readers of the English language when the text was enacted or adopted.
ii. Structure/Internal Logic
· Draw inferences from the relationships of provisions to each other, their locations within the Constitution, and the structures of government necessarily framed by the text as a whole.
iii. Historical Purpose
· Draws on the provision’s historical background, emphasizing not the particular words of the text but the intentions underlying them, as evidenced by statements of its drafters or ratifiers.
· Often found in The Federalist or the records of the debates at the Constitutional Convention.
· Often resorted to when the linguistic meaning of a constitutional provision remains ambiguous.
iv. Precedent and Practice
· Focus on previous interpretations, whether by the judiciary or by other branches of government, that have become sufficiently settled to “fix” or “liquidate” the meaning of an ambiguous constitutional provision.
· Looks to the consequences and asks which interpretation produces the best results according to a specific notion of what is best.
· Which interpretation would maximize egalitarian justice, individual autonomy, or economic efficiency?
vi. Note – Theories:
o Look at the text and original understanding regardless of results.
o Evaluate policy’s intended function; determine whether it remedies that function without danger of tyranny/violation of separation of powers.
o Looks at how the Branches have been functioning, rather than their strict textual powers.
o Ask: is anyone getting hurt?
2. Republicanism and Popular Sovereignty
· Government is party national and partly federal; the people, not the stat
f more limited national government powers.
· Constitutional interpretation:
§ Dictionary at time – necessary meant “indispensable.”
§ Hamilton – Necessary and Proper Clause enhances the powers of Congress because it appears within the list of congressional powers in Article I, Section 8 and not within the restraints in Article I, Section 9.
§ Jefferson – The Clause cannot be read as a catch-all power that would justify most of what the national government does, because otherwise there would be no point in enumerating the national government’s other powers.
§ Jefferson – Article I, Section 10, Paragraph 3 at one point uses the phrase “absolutely necessary.”
§ But if necessary means “indispensable, isn’t that redundant? Does that mean necessary means “convenient” or “useful?”
§ Jefferson – Text in Tenth Amendment reserves all powers not delegated to the federal government to the states.
§ But the word “expressly” is not included. Does this mean Congress has implicit powers, including the power to create a Bank?
o Historical Purpose:
§ Jefferson – the Convention considered giving Congress the power to charter a Bank and denied it.
§ But what purpose was the Necessary and Proper Clause supposed to have?
o Practice and Precedent:
§ Madison – Because “necessary” was construed in a liberal way, did future generations simply have to accept it?
§ Thayerism – Courts defer to their judgment unless other branches have made a “clear mistake.”
§ Should the courts have deferred to the judgment of other branches about what was “necessary and proper?”