Transcript Document

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
Rather than having direct democracy, public
elects representatives ……
• 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)
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 sixyear 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 9th 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 9th
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?