Introduction / Foundations Flashcards
Was the Constitution legally adopted? It is flatly inconsistent with the Articles of Confederation.
Madison
- AoC is basically a treaty between 13 states. ANd the way treaties work is that if one of the parties violates the teaty, it is void.
- Here, all 13 states have violated it. So it’s null and void. (RS likes this arg)
- Also, people have the right to abolish their government if they don’t think it’s working.
- Kinda a scary line of logic, but I guess that’s what the 13 colonies did.
Dead hand problem & Jefferson’s proposal.
Dead hand problem = why should we allow a document ratified in 1789 to bind us today?
Jefferson’s: the C should expire every 19 years and each generation should start over.
Major Features & Themes of the Constitution
- Written.
- Wanted people to vote on it (and read it).
- Wanted it to endure (fixed limits that wouldn’t change)
- Established a government of laws. Not people. - Popular Socereignty
- The people are sovereign form the very beginning (preamble) - Expanded National Power
- New substantive powers (regulate commerce, taxes, etc.) that fed gov didn’t have under AoC.
- New operation of powers: fed gov can directly regulate people. (under AoC only states could enforce, and fed could only go after states). - Divided Power
- Separation of powers
- Checks & balances
- Federalism - Individual Rights
- Created to protect liberty (primarily through structure_ - Compromise
- Imperfection
- A risk in thinking the Constitution is perfect is that I will then make my constitutional interpretation align with whatever I happen to think perfection is
The primary rule of Constitutional interpretation
Read the Constitution, read the Constitution, read the Constitution
Interpretation tools:
The Text
Description
Evidence used
Why Care?
Problems
Description: looks at the meaning of the words, in context, to informed readers (assume the reader has some legal knowledge)
Evidence used: Usage in Constitution, usage in other legal docs, dictionaries
Why care?: “We the People” ratified the text. The text is what is supreme.
Problems:
- Written a long time ago. Language changes and can be hard to apply to modern circumstances
- Ambiguity. What do you do if there are words with multiple meanings?
- Vagueness.
- Silence. What do you do if the text doesn’t say anything?
Interpretation Tools:
Structure
Description
Evidence
Why Care?
Description: looks at how the Constitution is put together and how the government is put together.
Evidence: Constitution as a whole.
Why care?: Consitution was written as a coherent whole. its overall structure, therefore, can help us understand specific provisions.
Interpretation Tools:
Purpose
Description
Evidence
Why Care?
Problems
Description: looks at the problems the framers were trying to solve and how they wanted to solve them.
Evidence: Statements made from drafters and ratifiers (historical background of C)
Why care?: People use language to achieve certain goals, so understanding those goals can help us understand the text.
Problems:
- Can a large group (constitutional convention of 1787) have a collective purpose that all of them shared?
- What if there were several purposes and compromises?
- Is our evidence reliable? (they were trying to sell the Constitution to the People. Were they just pushing the most palatable purposes?)
Interpretation Tools:
Precedent & Practice
Description
Why Care?
Description: Interpretations by courts and other branches AFTER C was ratified.
Why care?: It can help you figure out what the Constitution means. It’s how we’ve been doing things (don’t rock the boat)
Interpretive Tools:
Consequences
Discription
Evidence
Problems
Description: What interpretation produces the best results?
Evidence: Real world data
Problems:
- May fluctuate more form judge to judge or time to time
- Is this democratic?
- How do we know what the consequences will be?
Originalism
What is it and what are the primary arguments in favor of it?
Constitution means today what it meant at the time of adoption by the general public.
- Looks for the original public meaning of the Constitution.
- Focuses very heavily on text. Looks to the other tools only if the text is unclear. (and pretty much only to structure & history)
- Somewhat skeptical about purpose, precedent & practice. Very skeptical about consequences.
Arguments for:
- this is the natural way of interpreting text
- Point of the Constitution is to establish fixed limits on government. Allowing the C to change / adapt makes that much harder to do.
- Evolution is unnecessary in a democratic society (if laws need to change, Congress will pass new laws. Evolution is actually very anti-democratic)
Non-Originalism
What is it and what are the primary arguments in favor of it?
Allows the meaning of the Consituttion to evolve over time to reflect social views or respond to the needs of the government.
- Looks at text first, but takes more of a common law approach (it’s not dispositive – courts can elaborate on text and evolve meaning of text).
- Relies more heavily on consequences.
Arguments for Non-originalism:
- Originalism gives too much power to the dead hand.
- The Consitution should be flexible.
- The amendment process is far too difficult. (Unrealistic to just think we can update it.)
- Judges are doing this anyways, no matter what they say. So we should just be honest about it.
