1.1 BACKGROUND AND THEMES

The Constitution divides power vertically between the federal and state governments.

"Federalism" is the term often used to refer to this vertical division of authority.

Professor Laurence Tribe puts the question succinctly:

"[W]hy would a nation that rests legality on the consent of the governed choose to constitute its political life in terms of commitments to an original agreement—made by the people, binding on their children, and deliberately structured so as to be difficult to change?"

Long ago, Chief Justice John Marshall expressed this when he explained that the Constitution was not meant to have the "prolixity of a legal code," but instead

"[i]ts nature ... requires, that only its great outlines should be marked, its important objects designated... .... [W]e must never forget that it is a constitution we are expounding... ....

The main point of a republic, to him, is that it stands in opposition to monarchy.

'The Quartet,' by Joseph Ellis, Details the Constitution's Gang of Four

Thus, a constitution represents an attempt by society to limit itself to protect the values it most cherishes.

A powerful analogy can be drawn to the famous story from mythology of Ulysses and the Sirens.

In general, in order for the government to act, at least two branches must agree.

Adopting a law requires passage by Congress and the signature of the president (unless it is adopted over his or her veto).

Early in the last century, the Court aggressively used the Tenth Amendment as a limit on Congress's power.

After 1937, the Court rejected this view and did not see the Tenth Amendment as a basis for declaring federal laws unconstitutional.

Then a Committee on Style was formed to reorder and renumber the provisions and revise the language where appropriate.

After the Committee on Style presented its revised draft, there was a week of relatively hurried debate.

One is for both houses of Congress, by two-thirds vote, to propose an amendment that becomes effective when ratified by three-fourths of the states.

All 27 amendments to the Constitution were adopted through this procedure.

To retaliate, these states then enacted taxes on commerce with New York. Many states tried to erect trade barriers to help their own economic interests. Congress, under the Articles of Confederation, was powerless to stop this.

Also, problems developed because of the lack of national executive or judicial authority.

The Twelfth Amendment eliminated the practice of making the runner-up in the presidential election the vice president, and established the procedure for the House of Representatives to choose the president when no candidate receives a majority in the electoral college.

Also, the Twenty-second Amendment provides that no person can be elected president more than twice. Article II also specifies that the president be at least 35 years old, a natural-born citizen, and a resident of the United States for at least 14 years.

The Declaration of Independence, authored by Thomas Jefferson, was signed in 1776.

Although it has no binding legal authority, its ringing rhetoric often is invoked by courts and its complaints about British rule foreshadowed the protections that were placed in the Constitution and its Bill of Rights.

Once it is recognized that there can be laws preventing perjury or, to use a classic example, forbidding falsely shouting "fire" in a crowded theater, the issue becomes how to draw a line as to when the government can regulate speech.

Although these issues of interpretation arise in every area of constitutional law, there has been an especially heated scholarly and public debate over the question of whether it is appropriate for the Court to interpret the Constitution to protect rights that are not expressly stated in the text.

The Constitutional Convention met in Philadelphia from May 25 until September 17, 1787.

An interesting question is whether the Convention acted unlawfully in proposing a new constitution, rather than in amending the Articles of Confederation.

There were heated debates in many states over whether to ratify the Constitution.

Antifederalists, who opposed the ratification, emphasized the powers of the new national government and its ability to relegate state governments to a secondary and relatively unimportant role. T

The Seventeenth Amendment changed this and provided for popular election of senators.

Article I also provides that each member of the House shall be at least 25 years old, a citizen of the United States for at least seven years, and an inhabitant of the state from which he or she is elected.

The federalist structure of the government is much less apparent from the text of the Constitution than is the separation of powers.

Article I begins by saying that "[a]ll legislative Powers herein granted shall be vested in a Congress."

The Constitution specifies the term of each office among the three branches, the qualifications necessary to hold office, and the manner by which the office is to be filled.

Article I, for example, provides for popular election of members of the House of Representatives to two-year terms and for selection of senators by state legislators for six-year terms.

A senator must be 30 years old, a citizen for at least nine years, and an inhabitant of the state from which he or she is elected.

Article II outlines the method of choosing the president and vice president to a four-year term through the electoral college, a process that was modified by the Twelfth Amendment.

Article I creates the legislative power and vests it in Congress.

Article II places the executive power in the the president of the United States.

Whereas legislative enactments can be modified by another statute, the Constitution can be amended only by a much more elaborate and difficult procedure.

Article V of the Constitution prescribes two alternative ways of amending the Constitution.

After the Revolutionary War ended in 1781 (although the formal peace treaty was not signed until 1783), the 13 colonies ratified the Articles of Confederation.

Articles of Confederation

§1.2 WHY A CONSTITUTION?

As described above, the Constitution both empowers and limits government; it creates a framework for American government, but also limits the exercise of governing authority by protecting individual rights.

Indeed, it was probably this lack of clarity that inspired the Tenth Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As discussed in detail in Chapter 3, there has been great debate throughout American history as to whether the Tenth Amendment reserves a zone of authority exclusively to the states and whether the judiciary should invalidate laws that infringe that zone.

[A]constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

Because the Constitution is just an outline, a blueprint for government, it does not address myriad questions that courts must face.

There is no doubt that this open-textured language is what has allowed the Constitution to survive for over 200 years and to govern a world radically different from the one that existed when it was drafted.

But it is this very nature of the Constitution that requires that courts interpret it and decide its meaning.

The implication is that Congress can act only if there is clear authority, with all other governance left to the states. But this is not made explicit in the text of the seven articles of the Constitution.

But this is not made explicit in the text of the seven articles of the Constitution.

For instance, there was no way to ensure that states would comply with laws adopted by Congress.

Constitutional Convention

Federal judges have life tenure so as to enhance the likelihood that their decisions will be based on the merits of the case and not on political pressure.

Divides Power Between the Federal and State Governments

Third, inevitably in constitutional law, courts must face the question of what, if any, government justifications are sufficient to permit the government to interfere with a fundamental right or to discriminate.

Even though the First Amendment says that Congress shall make "no law" abridging freedom of speech, that provision never has been regarded as an absolute.

Practically, the effect of the supremacy clause is that state and local laws are deemed preempted if they conflict with federal law.

Finally, federalism limits the ability of states to impose burdens on each other.

Three factors make constitutional interpretation uniquely complicated and produce a great many of the interpretive questions before the Supreme Court.

First, countless problems arise that the Constitution does not expressly consider. process of law," "liberty," "taking," "equal

Indeed, one enormous benefit of the Constitution is that it is written in terms sufficiently general and abstract that almost everyone in society can agree to them.

For example, although people disagree about what speech should be protected and under what circumstances, there is almost universal agreement that there should be freedom of speech.

If no constitution existed in the United States, there likely would have been some initial informal agreement creating the institutions of government, and those institutions would have determined both the procedures of government and its substantive enactments.

For example, the framers at the Constitutional Convention in Philadelphia in 1787 could have served as the initial legislature and, in that capacity, devised a structure of government embodied in a statute that could have been altered by subsequent legislatures.

There was a Confederation Congress, but its powers were greatly circumscribed.

For example, under the Articles of Confederation, Congress had the authority to wage war, coin money, establish post offices, and deal with Indian tribes. However, the Congress had no power to tax and no authority to regulate commerce among the states.

Most notably, states adopted laws that discriminated against goods and services from other states.

For instance, New York, as a state with a port, imposed duties on goods destined for other states.

The underlying question is why accomplish this through a Constitution?

Great Britain, for example, has no written constitution.

As Mr. Ellis sees it, the elite quartet of Washington, Hamilton, Madison and Jay not only understood the limitations of the Articles of Confederation (which provided no coherent means of defining foreign policy or settling western land disputes) but also exercised extraordinary leadership in bringing to fruition their alternate vision, or something close to it.

He writes that they deftly "manipulated the political process to force a calling of the Constitutional Convention"; collaborated on setting the agenda in Philadelphia; and helped orchestrate the debates in the state ratifying conventions (creating an up or down vote, which took the option of revising the Articles off the table).

Despite Ulysses's pleas for release, his sailors followed his earlier instructions and kept him bound and unable to heed the Sirens' song.

His life was saved because he recognized his weakness and protected himself from it.

A constitution is society's attempt to tie its own hands, to limit its ability to fall prey to weaknesses that might harm or undermine cherished values.

History teaches that the passions of the moment can cause people to sacrifice even the most basic principles of liberty and justice.

Second, even where there are constitutional provisions, much of the Constitution is written in open-textured language using phrases such as "commerce among the states," "necessary and proper," "freedom of speech," "due protection," and "cruel and unusual punishment."

How should the Court decide the content and meaning of these and other similar clauses that are found throughout the Constitution?

If protections of individual liberties were placed in statutes only, a tyrannical government could overrule them.

If terms of office were specified in a statute rather than in the Constitution, those in power could alter the rules to remain in power.

It is hardly original or profound to answer this question by observing that the framers chose to create their government in a Constitution deliberately made difficult to change as a way of preventing tyranny of the majority, of protecting the rights of the minority from oppression by social majorities.

If the structure of government was placed in a statute, there might be an overwhelming tendency to create dictatorial powers in times of crisis.

A constant theme throughout this book and throughout all of constitutional law concerns how the document should be interpreted.

In applying any law—be it a statute, regulation, or Constitution—judges must decide what it means.

Therefore, a defining characteristic of the American Constitution is that it is very difficult to alter.

In focusing on the question, why have a Constitution, then, the real issue is: Why should a society generally committed to majority rule choose to be governed by a document that is very difficult to change?

Article III provides that federal judges shall have life tenure, and Article II specifies that they will be selected by the president with the "advice and consent of the Senate."

Interestingly, the Constitution specifies no other qualifications for being a federal judge.

The Constitutional Convention's mandate was to propose changes to the Articles of Confederation.

Moreover, the Articles of Confederation required unanimous consent for revisions, but Article VII of the Constitution specified that "[t]he Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States."

Many of its provisions—such as the Third Amendment, which prohibits quartering of soldiers in people's homes—only make sense in the context of history.

Much of what is in the Constitution is the product of compromises made at the Constitutional Convention.

As Robert Clinton remarked, "Basically, the powers granted to Congress under the Articles represented the noncontroversial powers theretofore exercised by the Parliament and the Crown under the colonial system."

Not surprisingly, serious problems developed under the Articles of Confederation.

Since the 1990s, however, the Tenth Amendment has been used by the Supreme Court to invalidate federal statutes that are deemed to "commandeer" or coerce the states into enacting laws or adopting regulations.

One other provision that expressly relates to federalism is the supremacy clause found in Article VI of the Constitution.

The Constitution thus serves as a unifying device, increasing the legitimacy of government and government actions.

Professor Thomas Grey observed that the Constitution "has been, virtually from the moment of its ratification, a sacred symbol, the potent emblem ... of the nation itself."

The Best Form of Government THE END OF KINGS: A History of Republics and Republicans. By William R. Everdell

Republicanism does have a long, complex and often heroic history, which William Everdell sets himself to trace.

First, the Constitution needs to be understood as an intentionally anti-majoritarian document.

Simple claims that American democracy is based on majority rule—such as in criticizing the judiciary for being anti-majoritarian—should be viewed suspiciously.

A "historically informed prophet" of the day, he writes, would have predicted North America becoming "a western version of Europe, a constellation of rival political camps and countries, all jockeying for primacy."

So how was this averted?

These are known as the Federalist Papers and are regularly cited by the Supreme Court as evidencing the framers' intent.

The Addition of the Bill of Rights

The Articles of Confederation were the first constitution of the United States.

The Articles of Confederation created a very weak national government and embodied a strong commitment that state governments retained sovereignty.

After passing resolutions concerning the major aspects of the new government, the Convention formed a Committee on Detail to place the resolutions into a coherent document.

The Committee on Detail, for example, drafted the list of the specific powers of Congress that are found in Article I of the Constitution.

The Constitution is society's attempt to protect itself from itself.

The Constitution enumerates basic values—regular elections, separation of powers, individual rights, equality—and makes change or departure very difficult.

1.3 A BRIEF HISTORY OF THE CREATION AND RATIFICATION OF THE CONSTITUTION AND ITS AMENDMENTS

The Constitution of the United States must be understood as a reaction to the events that preceded it.

The paradigm issue concerning this debate has been whether the Court should have recognized a constitutional right of women to terminate their pregnancies in the absence of an explicit textual provision or framers' intent supporting such a right.

The Debate Between Originalism and Nonoriginalism

§1.4 HOW SHOULD THE CONSTITUTION BE INTERPRETED?

The Inevitable Need for Interpretation

On September 17, 1787, the members of the Convention approved the document, signed it, and returned home to fight for its ratification.

The Ratification Process

Enforcing a law generally requires that the executive initiate a prosecution and that the judiciary convict.

The conflicts and tensions among the branches is a constant them.

Article III provides that the judicial power of the United States shall be in the Supreme Court and such inferior courts as Congress creates.

The division of powers among the branches was designed to create a system of checks and balances and lessen the possibility of tyrannical rule.

As Mr. Ellis makes abundantly clear, the deck initially seemed stacked against the nationalists

The driving force for national unity had been the war, and afterward, Mr. Ellis observes, the dominant historical forces "were centrifugal rather than centripetal, meaning that the vast majority of citizens had no interest in American nationhood, indeed, they regarded the very idea of a national government as irrelevant to their local lives and ominously reminiscent of the British leviathan they had recently vanquished."

The length of office terms and the manner of selecting officeholders are crucial in defining the character of American government.

The framers intentionally chose a scheme whereby one body of Congress, the House of Representatives, was popularly elected and all citizens were represented equally; the other body, the Senate, was selected by state legislatures, and every state had two senators.

A Constitution Is Unique Because It Is Difficult to Change

The key difference between this approach and the Constitution is that the latter is far more difficult to change.

Mr. Ellis points out, the multiple compromises — between state-based sovereignty and a national government — reached in the Constitutional Convention resulted in a text whose very ambiguities made it "an inherently 'living' document," creating "a political platform wide enough" to give future generations latitude in making decisions.

The leadership exerted by the "quartet" of Washington, Hamilton, Madison and John Jay in forging this document and overseeing the birth of a United States, Mr. Ellis argues, was "the most creative and consequential act of political leadership in American history."

As part of the ratification debates, the Constitution was thoroughly analyzed and discussed.

The most detailed and famous defense of the Constitution was a series of 85 essays written by Alexander Hamilton, James Madison, and John Jay to help persuade the New York Convention to ratify the Constitution.

The antifederalists also stressed the absence of an enumeration of individual rights in the Constitution.

The opposition was strong in several states. The opposition was strong in several states.It is estimated that a majority of the delegates initially opposed ratification in Massachusetts, New Hampshire, New York, and Virginia.

The Seventeenth Amendment, adopted in 1913, provided that senators would be directly elected by the voters.

The president is chosen by the electoral college, not by majority vote, and the result has been that four times in history a president has been selected who received fewer popular votes than an opponent, most recently in November 2000.

Although the analogy between the Constitution and Ulysses is appealing, there is a problem: Ulysses tied his own hands; a Constitution binds future generations.

The survival of the Constitution likely is a reflection of the widespread belief, throughout American history, that it is desirable to be governed under it.

The other mechanism outlined in Article V, though never used, is for two-thirds of the states to call for Congress to convene a constitutional convention that would propose amendments for the states to consider.

These amendments, too, would require approval of three-fourths of the states in order to be ratified.

May states adopt laws that place a substantial burden on interstate commerce?

These problems are less a matter of deciding the meaning of a particular phrase in the Constitution and more a reflection of the reality that countless issues of governance are not dealt with in any of the language of the Constitution.

Second, the Constitution should be appraised from the perspective of whether it has succeeded in restraining the majority, especially in times of crisis, and successfully protecting minorities' rights.

Third, viewing the Constitution as a way of protecting long-term values from short-term passions poses a basic problem in constitutional interpretation.

Conclusion

This discussion of constitutional interpretation, of course, is not a comprehensive presentation of the arguments on either side of the debate but rather a summary of some of the most frequently advanced points.

It declares that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

This provision sets up a clearly hierarchical relationship between the federal government and the states.

For example, since the country's earliest days, the Supreme Court has held that the grant of power to Congress to regulate commerce among the states limits the ability of states to regulate or tax commerce in a manner that places an undue burden on interstate commerce.

This topic, sometimes called the dormant commerce clause, and the related issue of state taxation of interstate commerce.

As described above, the antifederalists opposed the Constitution, in part, because it failed to enumerate individual rights.

To prevent another constitutional convention from occurring, James Madison, then in the House of Representatives, undertook to coalesce the various amendment proposals.

Ulysses, fearing the Sirens' song, which seduced sailors to their death, had himself bound to the ship's mast to protect himself from temptation.

Ulysses's sailors plugged their ears with wax to be immune from the Sirens' call, whereas Ulysses, tied to the mast, heard the Sirens' song but was not harmed by it.

Indeed, the Articles of Confederation declared that "each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

Under the Articles of Confederation there was no federal judiciary and no executive.

Implications

Viewing the Constitution in this manner has important implications that underlie the discussion throughout this book.

When may the president remove executive officers?

When, if at all, do federal laws impermissibly infringe upon state sovereignty?

Interpretation is crucial to allow a document written for an eighteenth-century agrarian slave society to govern in the technological world of the twenty-first century.

Yet if each generation has broad license to interpret the Constitution, can it still serve as a constraint?

The debate over how the Constitution should be interpreted will continue as long as there is a Constitution.

Yet the issue of how the Constitution should be interpreted is crucial and manifests itself expressly or implicitly in all areas of constitutional law and all of the topics discussed in this book.

§1.1 THE CONSTITUTION'S FUNCTIONS

§1.1 THE CONSTITUTION'S FUNCTIONS