The Constitution Power to the people!

Is popular government dangerous? Socrates convicted based upon unpopularity Plato and Aristotle say the public does not have the discipline or patience to abide by the process of law Public will decide based upon passion, not reason

Constitution tries to make popular government compatible with rule of law James Madison thought that diversity of interests and regions would help ensure that no one group dominated Assumption – any majority would have to be a coalition of minorities How to do?

Ways to disperse power…. 1. Separation of powers into three branches: Executive, Legislative, Judicial 2. Federalism: State Governments AND a Federal Government 3. Limit government power: A. Only exercise powers granted in Constitution B. Specific limits on the exercise of power (Bill of Rights – an amendment required by many states before they would vote to approve.

4. Checks and balances – each branch subject to checks E.g. President’s power to veto legislation Legislature’s power to impeach those in the executive and judicial branches Both senate and house must adopt legislation President negotiates treaties, Congress approves them President wages war, Congress declares it

5. Representative government Allows people to participate in government but avoids government by public passion…. (checks the people) Elections allows people to remove those who flaunt the constitution (checks the elected representatives) Rather than having direct democracy, public elects representatives ……

Additional limitations on public passion…… A. elections are staggered – only some seats in Congress up for election in any given year B. House gets two year term, senate gets six- year term C. electoral college – people do not directly elect the president – this allows “electors” to choose not to follow the popular vote

More ……. People adopt the constitution….. Constitution can only be amended by a supermajority (a check on the passions of the people)

Are we a democracy? Technically, democracy is rule by the majority without checks or limitations Can be direct or representative democracy, but the majority is all powerful James Madison, Federalist Paper No. 10: In a pure democracy, "there is nothing to check the inducement to sacrifice the weaker party or the obnoxious individual." Republic has limitations on power and checks and balances John Adams: "You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe." Nothing in our Constitution suggests that government is a grantor of rights. Instead, government is a protector of rights.

Constitution has broad but vague concepts For example……. Due process Equal protection of the laws Freedom of speech This raises two questions: Who should decide what the constitution means? What approach should be used to interpret the constitution?

Who decides? Thomas Jefferson – each branch of government has the right to interpret the constitution as it sees fit. Marbury v. Madison – the judicial branch has the right of judicial review Most people believe that the Supreme Court is the branch that has the final say on what constitution means

Arguments con and pro re judicial review Judicial review is undemocratic because federal judges not elected. Several times in history Supreme Court has been out of step with popular views on issues E.g. striking down laws after civil war intended to promote equality; striking laws protecting workers Some say judicial review antidemocratic but okay if judges exercise self-restraint Alexander Hamilton says judiciary best to serve as “policeman” checking unconstitutional acts of other branches because judiciary is weakest, least capable of tyranny (e.g. Congress can tax, Executive has an army) Judicial also depends upon the other branches to function (Congress to appropriate funds, Executive to enforce its orders)

Judiciary as expert interpreter Judges are trained and experienced in law! Constitution is law! John Hart Ely argues that judiciary, being isolated from public pressure (not elected) is freer to be fair, not partisan, and protect individual rights (e.g. gerrymandering cases), thereby making system MORE democratic (provided they stick to applying the law rather than making political decisions)

Bruce Ackerman’s theory responding to “anti-democratic” judicial review Ackerman says when people repeatedly vote in legislators that attempt to do something the Court found unconstitutional, they are in effect attempting to “amend” the constitution and ultimately the court tends to follow Examples: 1930s legislation struck as beyond the powers of federal government, then ultimately accepted by Supreme Court Other decisions? Segregation? Gender discrimination?

Objections to Ackerman… This violates the rule of law!!!

Interpretation issues Are there implicit rights in the constitution, e.g., the right of privacy? The 9 th Amendment states” the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Or maybe implied by other stated rights (e.g., “liberty” in due process clause may include privacy) Pierce v. Society of sisters – parent has constitutional right to send children to private school Griswold v. Connecticut – constitutional right of privacy (contraception case)

Should we interpret using Framers’ intent? 1. Difficult to determine intent 2. If we go with intent, did the Framers’ intend to be bound by specifics at the time when general language was used (e.g. “cruel and unusual”) 3. The people adopted the constitution – should we go with THEIR intent rather than framers’ intent?

Robert Bork’s approach 1. Interpret as it would have been interpreted at the time adopted, e.g. death penalty not cruel and unusual because it was in use back then Equal protection doesn’t give equal protection to women – intended to protect freed black males Can’t be a right of privacy because it’s not in the constitution (ignores the 9 th amendment issue) Bork is concerned re tyranny of judges (who can’t be voted out of office) applying their own moral philosophy to interpret – remedy= stick to original intent

Ronald Dworkin’s theory The constitution should be interpreted to promote the “underlying philosophy of the government” E.g. Right of privacy is implied by the philosophy underlying the explicit provisions of the constitution How determine the underlying philosophy of government? Morality must be used. What moral principles are implied by the explicit protections in the Constitution? For Dworkin, specific intent of framers or understanding at the time adopted is not relevant, the morality controls and our understanding evolves over time. E.g., segregation

Criticisms of Dworkin….. Who determines the moral principles and underlying philosophy of government? Why use moral principles based upon underlying philosophy? What about what the general public thinks is moral at the time rather than what judges think? Dworkin assumptions (according to your author) 1.Best moral conceptions arrived out by relying upon one’s individual conscience (but why?) 2.Government will function well if you do this (but people relying on conscience disagree over moral conceptions)

The end – what do you think? Does the constitution “evolve” or remain the same? Is it possible for a theory of constitutional interpretation to prevent subjective considerations (values, politics, bias) from affecting interpretation?