2. Tom W. Bell Writing, Reading, and Respecting a Constitution IHS Liberty & Society Seminar, Chapman University, June 27, 2011 Introduction I. Legal Models II. Legal Threats III. Legal Solutions Conclusion

3. I. Writing the Constitution 1.The U.S. Founders wrote a constitution creating a government of delegated, enumerated, and limited powers. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 2, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 a.The "People" of the preamble willingly cede some portion of their alienable rights in order to "insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.... ” b.The federal government can properly exercise only those powers specifically enumerated in the constitution. c.Even delegated and enumerated powers cannot be exercised to their utmost; the federal government has only limited powers.

4. I. Writing the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 3, IHS Liberty & Society Seminar, Chapman U., June 27, 2011

5. I. Writing the Constitution 2.How the Constitution reflects these ideals. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 4, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 a.The very notion of a written constitution, one that federal officials must, per Art. VI, cl. 3, swear to support. b.Structural restraints such as separation of powers, checks and balances, and respect for federalism. c.The “ general welfare ” limitation in the Preamble and in Art. I, § 8, cl. 1. d.The enumerated powers of Congress in Art. I, § 8. e.The necessary and proper clause, Art. I, § 8, cl. 18. f.Express limits on Congress in Art. II, § 9. g.The Bill of Rights.

6. II. Reading the Constitution 1.How should we interpret the Constitution? Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 5, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 a.However proves expedient? b.According to the S.Ct. and its precedents—i.e., “living” constitutionalism? c.Original Meaning—i.e., what it meant to those who ratified it? (Compare original intent.) d.According to the consent of the governed—i.e., what those now allegedly bound by the Constitution interpret it to mean?

7. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 6, IHS Liberty & Society Seminar, Chapman U., June 27, 2011

8. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 7, IHS Liberty & Society Seminar, Chapman U., June 27, 2011

9. II. Reading the Constitution 2.The Constitution as Contract: Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 8, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 a.Look for the plain, present, public meaning; b.A non-waivable default rule of "good faith and fair dealing ” applies; c.Objective meaning—not subjective intent; d.The plain meaning of text trumps "course of performance" (i.e., precedent); e.Vague terms construed against drafter; and f.Disputes settled by disinterested parties.

10. III. Respecting the Constitution 1.The Presumption of Liberty Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 9, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 a.Barnett argues from the 9th Amendment and other proofs that the Constitution's protects unenumerated natural rights, putting “ the burden on government to show that any interference with the exercise of the rights retained by the people is justified. ” b.This presumption of liberty, because it helps to safeguard individual rights, helps (or would, if implemented, help) to make laws promulgated under the Constitution more legitimate. c.That approach relies solely on hypothetical consent. What about implied and express consent? Can we use them to evaluate the justifiability of a constitution?

11. III. Respecting the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 10, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010)

12. III. Respecting the Constitution 2.A consensualist theory of justification. Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 11, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 a.Arguments for consent: 1)transcendental; 2)deontological; 3)consequentialist; 4)aretaic (virtue-based). b.Ask of a justification, “ With regard to whom? ” c.Ask of of a justification, “ Compared to what? ”

13. III. Respecting the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 12, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 d.In sum the Constitution can be justified only relative to: 1)the parties to whom the Constitution ’ s justification would apply, and... 2)alternative social compacts that come closer to, or fall farther from, winning their express consent.

14. III. Respecting the Constitution Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 13, IHS Liberty & Society Seminar, Chapman U., June 27, 2011 e.Upgrading the U.S. Pledge of Allegiance v. 1954v. 2008 I pledge allegiance to the flagto the laws of the United States of America, and to the Republicon condition that for which it stands,it respect my rights, one Nationnatural, under God,constitutional, indivisible,and statutory, with liberty and justice for all.

15. Conclusion A.Writing the Constitution: What did the Founders mean when they wrote the Constitution? B.Reading the Constitution: How should we interpret it? C.Respecting the Constitution: Does it bind us and, if so, why and to what extent? Introduction I. Writing II. Reading III. Respecting Conclusion Tom W. Bell, Writing, Reading, and Respecting a Constitution, slide 14, IHS Liberty & Society Seminar, Chapman U., June 27, 2011