Villanova University School of Law
Constitutional Law I
Professor Brennan
Spring 2014
I. Introduction to the Constitution of the United States
· History:
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:
i. Text
· 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.
v. Policy
· 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:
· Formalism:
o Look at the text and original understanding regardless of results.
· Functionalism:
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:
o Text:
§ Dictionary at time – necessary meant “indispensable.”
o Structure:
§ 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?
o Policy:
§ 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?”
