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- Herausgeber: John Wiley & Sons
- Kategorie: Fachliteratur
- Sprache: Englisch
Discover the ins and outs of Constitutional law
Are you a student looking for trusted, plain-English guidance on the ins and outs of Constitutional law? Look no further!
Constitutional Law For Dummies provides a detailed study guide tracking to this commonly required law course. It breaks down complicated material and gives you a through outline of the parameters and applications of the U.S. Constitution in modern, easy-to-understand language.
- Critical information on the Constitution's foundations, powers, and limitations
- A modern analysis of the Constitution's amendments
- Detailed information on the Supreme Court and federalism
Explaining outdated governmental jargon in current, up-to-date terms, Constitutional Law For Dummies is just what you need for quick learning and complete understanding. Students studying government will also find this to be a useful supplement to a variety of courses.
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Veröffentlichungsjahr: 2011
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Table of Contents
Constitutional Law For Dummies®
by Glenn C. Smith, JD, LLM, and Patricia Fusco, JD
Constitutional Law For Dummies®
Published byJohn Wiley & Sons, Inc.111 River St.Hoboken, NJ 07030-5774
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Copyright © 2012 by John Wiley & Sons, Inc., Hoboken, New Jersey
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Library of Congress Control Number: 2011942767
ISBN 978-1-118-02378-5 (pbk); ISBN 978-1-118-21413-8 (ebk); ISBN 978-1-118-21367-4 (ebk); ISBN 978-1-118-21376-6 (ebk)
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About the Authors
Glenn Smith, JD, LLM, is a full-time constitutional law professor at California Western School of Law in San Diego, California. He also regularly teaches as a visiting professor of political science at the University of California, San Diego (where in 1996 he was named as a Professor of the Year by graduates of the university’s Marshall College). At California Western School of Law since 1985, Professor Smith teaches a nationally recognized course in which students reenact Supreme Court cases, taking on the roles of justices and attorneys arguing and deciding constitutional issues. He regularly teaches other constitutional law courses and has published numerous articles on constitutional law for scholarly journals and for publications aimed at more general audiences. Professor Smith regularly speaks about constitutional controversies in media interviews and speeches.
A Root-Tilden scholar at New York University School of Law, Professor Smith received his juris doctorate in 1978. He earned a master of laws degree from Georgetown University Law Center. From 1979 to 1983, he served as a legal counsel to the United States Senate Governmental Affairs Committee.
When Professor Smith isn’t teaching or writing, he enjoys the company of friends and family — especially when travelling, wining, and dining are involved. He is mad for strong espresso and cappuccino!
Patricia Fusco, JD, Deputy Attorney General, California Department of Justice, currently prosecutes complex white-collar felony crimes in Southern California and has been a practicing attorney in San Diego for 13 years. She has extensive experience as a criminal prosecutor and civil litigator, including prosecuting domestic violence, code enforcement, and other criminal cases, and handling construction litigation and personal-injury defense. A graduate of Southern Connecticut State University (with a bachelor of science in journalism) and California Western School of Law, Attorney Fusco was a paralegal and a legal secretary prior to entering law school in 1995. She enjoys cooking, entertaining, wine tasting, playing tennis, and spending time with friends and family, including her two pups, Rudy and Auggie.
Dedication
Glenn Smith dedicates this book to his wonderful wife, Diane. Without her constant inspiration and expert editing, the book would not have been written.
Patricia Fusco dedicates this book to Mom and Dad. Wish you were here to see this. I miss you both!
Authors’ Acknowledgments
We would like to thank Colleen Monaco and Margot Hutchison for opening up the opportunity for us to write this book. Also, many thanks go out to our editors at John Wiley & Sons, Inc., in New Jersey and Indiana, for their encouragement and expert guidance throughout the writing process.
Publisher’s Acknowledgments
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Introduction
Few subjects affect your everyday life more than constitutional law. From how your government is organized to whether you have a right to speak freely or when police can search your house, what the Constitution says and means has a big impact on you. Constitutional law, with all its complexity and range, may at times be maddening, but it’s a fascinating subject to delve into.
We think that after exploring the topics in this book, you’ll find constitutional law as interesting as we do. And whatever your purpose in getting this book, you will find it a useful reference in the future. It will give you the foundation to better understand hot topics discussed in the news — and even give you ammunition to win those debates at the water cooler!
About This Book
We wrote this book with a focus on undergraduate students taking classes on constitutional law. This book is a good supplement that will ease students’ understanding of course material. But the book is also a good reference guide that will prove useful to law students, journalists, and eve just plain interested citizens. We wrote the book with an eye toward explaining complex concepts so that everyone can understand them. You don’t necessarily even need to read the entire book — you can easily reference different sections on an as-needed or as-interested basis.
Constitutional Law For Dummies helps you realize like never before the importance of the Constitution and the ways it is interpreted. In this book you see how the courts analyze whether you have a right to have a gun in your house or to yell obscenities in a public place, for instance. You find out how the United States government is structured (and why) and just what the Supreme Court’s role and importance are. It has been said that Supreme Court justices are some of the most powerful people in the world. When you read this book, you will see why.
In this book, you find that we regularly reference legal tests and doctrines. (For example, in Chapter 11’s discussion of freedom of speech, we partly organize the discussion around the key distinctions between unprotected and protected speech and the different levels of scrutiny for content-based versus content-neutral regulation.) We’re not trying to make a constitutional lawyer out of you (although it’s fine with us if you become one). Instead, our emphasis on legal tests and doctrines reflects both an educational and practical strategy.
Educationally speaking, being familiar with the applicable legal rules is critical because these rules are the lenses courts and other Constitution interpreters use to see their way to the essence of the Constitution and its meaning in the 21st century. If you want to understand modern constitutional law, you need to understand the legal tests and doctrines critical to shaping it. Plus, legal tests and doctrines are a great way to organize a series of case results that could seem confusing and arbitrary without presenting the organizing principle underlying them.
Practically, we give legal tests and doctrines their due so that we can be sure this book serves the needs of as many readers as possible. You may be a law student, or be thinking about becoming one. If so, you absolutely will want to soak up the rules and doctrines explained in this book. If you’re an undergraduate constitutional-law student, we want to make sure that our book helps you prepare for class. Even if your professor doesn’t emphasize legal tests and doctrines, our doing so will help you deeply understand the materials — and maybe even ace the exam!
Conventions Used in This Book
We generally abandon the technical ways lawyers write about cases in briefs for courts or legal publications. When we talk about a case decided by the Supreme Court or a lower court, we give you the official case name and the citation to where it can be found in the hard-bound volumes of published cases. We’re not expecting you to immediately run out to your nearest law library! But if you want to read more from the case, you can usually find info online by entering the case name and/or citation in a search engine.
Following is the explanation of what the parts in a Supreme Court case citation mean. We use Jones v. Adams, 222 U.S. 11 (1999), which we made up, as a sample.
Jones: The first party is almost always called the petitioner, the person who lost in the lower court immediately below the Supreme Court in the judicial pecking order. Generally, as cases wend their way through state or federal courts, the party named first is referred to as the plaintiff (the person bringing the suit). But in U.S. Supreme Court cases, this first-named party is petitioning the Court to review and reverse a matter decided in a lower court, in which he may or may not have been the instigator of the case.
Adams:The second name (the one after the v.) usually signifies the respondent, who had the more favorable ruling in the immediately lower court. When a case first starts out, the second named party is the defendant, the person being sued. But in U.S. Supreme Court cases, this second person may or may not have been the defendant in the lower case. (Very much liking the opinion immediately below, the respondent is countering, or responding to, the petitioner’s request that the Court hear and possibly reverse the case.)
222: This number refers to the volume of collected cases from the court (in this case, the U.S. Supreme Court) in which the opinion in this case is found.
U.S.: These letters refer to the court deciding the case — here, the U.S. Supreme Court. Generally, these letters reference a series of books that report cases from different courts. You can tell from the abbreviation which series of books, and which court, the case comes from. Different courts have different abbreviations that would appear in this place in a case cite, which signals where the case was heard.
11: This number refers to the page number on which the reported decision in the case begins in that volume (in this example, 222).
(1999): The year listed is when the case was decided. Because the wheels of justice sometimes turn slowly, it may be years after the case was initiated.
When discussing cases and theory, we use the words precedent, rule, decision, and doctrine interchangeably. These words have technically distinct nuances. But they (and other similar terms we use, like governing law) basically mean the same thing in this book. They all signify the current “rules of the road” used by courts and other Constitution interpreters in implementing the letter and spirit of the document.
We periodically use other words or concepts that may be unfamiliar to you. Where this occurs, we italicize the word or phrase to point out its importance, along with providing an easily understandable definition to help your reading. We don’t assume specialized knowledge or experience on your part.
What You’re Not to Read
We’d love for you to read every single word we wrote, but we’re realistic people. If you just want the bare-bones info, you can skip certain elements that enhance the text but aren’t essential for understanding.
Sidebars, which are the gray boxes, contain material that provides an interesting aside to a given topic. We may present an especially intriguing or cutting-edge case that helps illustrate a concept discussed in that chapter. Or we may comment on the practical importance of a legal rule under study.
Paragraphs marked with the Technical Stuff icon contain more-detailed information that will only fascinate the true constitutional-law geek. (If you find it interesting, we promise not to tell anyone.)
Foolish Assumptions
We wrote this book with the assumption that most readers are enrolled in an undergrad-level Constitutional Law course. Therefore, we cover essential topics that we think a college student (and even a law student) needs to grasp. However, you may also like this book if any of the following statements apply to you:
You are considering becoming a lawyer and want to get a taste of one of the critical topics that will be covered in law school.
You are a journalist covering stories about high-profile cases, and you need a better understanding of what the Supreme Court is all about and how to evaluate cases based on precedent.
You are an interested citizen who wants to better understand the pivotal role constitutional law plays in how this country runs (or doesn’t!).
You are considering going into politics and would like a better grasp on governmental structure and divisions of power.
You are just a geek who loves to read about complicated subjects because you have a lot of brain power left after getting home from work and taking care of your house, your family, and your dogs.
We also assume that you know the following about the U.S. legal system:
The U.S. Supreme Court is the highest court in the land, has the last word on cases appealed to it, and is the ongoing interpreter of the U.S. Constitution — though other courts, officials, and citizens get into the act a lot!
A majority of justices (usually five or more) is needed to create a binding precedent (a decision that must be honored by lower courts and others). Even when a majority of justices agrees on who wins a lawsuit, however, no true majority opinion may be formed if the justices use different rules (doctrines) or theories in coming to a common result.
A plurality opinion is the leading view of legal issues shared by fewer than a majority of justices.
Whether or not a given constitutional challenge results in a binding majority opinion, one or more justices often writes concurring opinions elaborating on their reasoning.
Justices disagreeing with the majority result or reasoning usually write dissenting opinions pointing out why they disagree and what conclusion they wanted. Dissenting opinions often help point to what the majority means. One era’s dissent can become tomorrow’s majority.
How This Book Is Organized
This book is logically organized by types of issues. It concentrates mostly on civil (noncriminal) constitutional issues, although the last part covers constitutional law as it relates to certain rights in the criminal arena. And sometimes topics overlap. Following are the general categories and a bit about what you find in each part of the book.
Part I: Studying Constitutional Law: The Foundations
Before really being able to master any subject, you need a foundation. You can better understand constitutional law if you first have an understanding of the document itself. So in this part we start with a brief history surrounding the Constitution. We then break down the document into five major facets. We also discuss some key aspects of constitutional law, including the different Constitution-interpreting theories and how constitutional issues differ from nonconstitutional ones.
Part II: Allocating Governmental Roles
The most important feature of the original Constitution adopted in 1791 is how it defines the parameters of the new government. It forms the federal government, allocates its powers among three branches, and establishes checks and balances on each branch. In this part, we explain modern understandings about the powers and limits of the federal government. We chart the resulting limitations on state power and we also explain current realities and uncertainties in the relationships among Congress, the president, and the federal courts.
Part III: Protecting Property Rights and Avoiding Arbitrary Action
Important to the framers of both the original Constitution, the Bill of Rights, and later constitutional amendments was making sure that property rights were adequately protected under the new government. You see in this part how the courts have interpreted the several constitutional clauses dealing directly with property rights over the years. A related framer focus was protecting liberty from arbitrary deprivation and people from discriminatory action; in this part we also examine how the framers’ efforts have fared for different rights and groups.
Part IV: Rights to Self-Expression and Political Participation
In these chapters, we discuss the controversial topics of freedom of speech and religion. We bring you up-to-date on these issues and explain how courts have determined what laws government can and cannot adopt, and the way Americans exercise these rights. When is speech protected, and how much? How separate must church and state really be? And how does the Constitution shape the rules of engagement in the political arena — on a variety of matters ranging from voting and running for office to establishing electoral districts? The answers to these questions are the subjects of Part IV.
Part V: Understanding Privacy Rights
The Constitution’s framers had major problems with how British and colonial governments invaded privacy rights, especially in the criminal process. This part explores the strong “privacy” protections modern courts have found to be an integral part of the way the Constitution’s due-process provisions protect “liberty.” We also devote two chapters to the constitutional rights of Americans not to incriminate themselves and not to have their homes or other property searched arbitrarily.
Part VI: The Part of Tens
In keeping with how all For Dummies books are written, here we give you our top ten lists. Hundreds of constitutional-law cases are important, but we have done our best to narrow them down to ten of the most important cases involving government power and individual rights. We give you some of the details of the cases and explain how they came out. These are cases you may often hear mentioned as laying the groundwork for certain rights or concepts discussed in the news or magazines or periodicals.
Icons Used in This Book
We use the following icons in this book to point out certain information.
This information brings certain topics to life for you. We discuss real case examples so that you can see how a concept plays out in real legal, political, or social forums. Understanding actual examples helps you remember the concepts.
This icon is a reminder of some important information that you should keep in mind when dealing with constitutional law. Reading the information accompanying these icons helps you understand the surrounding text and larger aspects of constitutional law.
Paragraphs marked with this icon give you shortcuts for understanding Court decisions or predicting what the Court will do in the future.
At times, we make technical distinctions of interest to sticklers, but these paragraphs go beyond the basics and aren’t necessary for you to read if you don’t want to.
Where to Go from Here
Where you go from here really depends on what your purpose was in getting this book. If you are a student, you may want to consult it on a subject-by-subject basis, reading certain chapters or parts before you delve into textbook reading assignments so you can understand the material more easily. If you’re new to this subject, very curious about all sides of constitutional law, or an overachiever, then you may just want to read the whole book from start to finish. But otherwise, a subject-by-subject approach should work for just about anyone, so check out the table of contents and see what interests you most. Either way, adjust your seat belt as we take you on a flight through the most important aspects of a fascinating subject.
Part I
Studying Constitutional Law: The Foundations
In this part . . .
The basis for constitutional law is the U.S. Constitution, and it has multiple facets. So before you approach learning about constitutional law, you need a foundation — you need to know what the Constitution aims to do. This part gives you that foundation, starting with a history of the document itself. Several chapters address its main aspects, and then we give you some details on key overall features so you can gain a better general understanding of the Constitution and related law. We also discuss where many people go astray in analyzing the Constitution so you won’t fall prey to common mistakes.
Chapter 1
Understanding the Constitution
In This Chapter
Summarizing the Constitution’s historical background
Taking a look at distinguishing characteristics of the Constitution
Appreciating the five components that make up the Constitution as a whole
Constitutional law is the study of how courts and other interpreters have given life and meaning to the United States Constitution. The Constitution and related law define the powers and limits of the national government — including how its three branches interact with each other and relate to state and local governmental authorities. Constitutional law also limits in many significant ways how governments at all levels interact with the people living within their boundaries. It protects key civil and criminal rights, including rights to avoid arbitrary and discriminatory treatment, protection for freedom of speech and religion, and guarantees of personal privacy.
In this book we explain the key details of constitutional law through summaries that make complicated legalese and technical details easily understandable and get right to the core of how the Constitution affects people in meaningful, practical ways. But before you delve into the specific topics in the following chapters, we give you an overview of that all-important document itself, the U.S. Constitution.
A country’s (or a state’s) constitution provides a framework for how governmental institutions will operate and how they will treat people. In a country like the United States, where the national constitution is the supreme legal authority, the U.S. Constitution becomes the yardstick against which to measure the validity of all other governmental actions — be they laws passed by Congress, the policies of local school boards, or the actions of an individual police officer.
Knowing a bit about the U.S. Constitution’s history and why and how certain clauses were put in the document in the first place will help you make sense of the ways it has been interpreted. For instance, you can better understand search-warrant requirements or checks and balances if you know why the framers thought to include them.
This chapter begins with a brief summary of the historical background leading up to the proposal in 1787 of the constitutional plan we still use today. This brief bit of context makes clear that the Constitution’s framers did not write on a clean slate — they started with what was already familiar, and they had specific ideas in mind as to what was needed. We then summarize nine key features making the U.S. Constitution distinct from the constitutions of other governments and even many other democracies. The last and most extensive section provides a tour of the five basic topics addressed by the various articles and amendments known collectively as theConstitution.
Looking at the Constitution’s Creation
Many volumes of history and political commentary address the historical background leading up to the proposal of a new governing arrangement in 1787. Scholars fiercely debate whether the framers of the U.S. Constitution were uniquely learned and inspired visionaries, reactionary elites bent on looking out for themselves rather than protecting the masses, or something in between. Lucky for you, you don’t need to know all the ins and outs of these ongoing discussions (though you may, like us, find them interesting if you look them up sometime).
Rather, to give you the essential historical perspective for understanding where the framers were coming from (which is an important factor in many areas of constitutional law), we present you with the following turbo- summary of the conventional account of the Constitution’s historical background — in 373 words:
During and after the American Revolution (whose hostilities ended in 1781), American leaders recognized that they needed some kind of overarching national authority to undertake key activities. For six years, the states functioned in a loose confederation under a document called the Articles of Confederation. Almost immediately, the defects of the Articles became apparent:
Each state had an equal vote in the legislative body operating under the Articles, which the states with the greater populations resented.
Laws resulting from the Articles reflected awkward political compromises, and the lack of any executive authority made effectively carrying out legislative directives difficult.
The government created by the Articles lacked taxing authority; it had to depend on voluntary financial contributions from states.
These defects couldn’t be easily remedied, because the Articles of Confederation said that all 13 states had to unanimously agree to make fundamental changes in governmental procedures.
Meanwhile, states began to act in ways that alarmed the country’s leaders. At times, inspired by popular uprisings, state legislatures interfered with the enforcement of debts and discriminated economically and legally against nonresidents. Some states engaged individually in foreign policy with England, France, and other powerful countries whose influence was feared by the leaders of the national government.
As disenchantment with the Articles of Confederation grew, states authorized delegates to meet to draft amendments. After an awkward start, the delegates at the 1787 Constitutional Convention ultimately decided to scrap the Articles of Confederation completely and instead propose a new Constitution, consisting of seven articles, for state ratification. Among other things, the new Constitution methodically responded in an almost checklist fashion to perceived defects in the Articles of Confederation. For example, the first power the framers gave to the new Congress was the power “To lay and collect Taxes.” And the new document explicitly forbade the states to “enter into any Treaty, Alliance, or Confederation.”
While they were at it, the framers also expressly forbade the new national government from engaging in many of the activities practiced by the despised English monarchy or their colonial representatives. As the following sections explain, the framers had certain specific areas of rights and governmental organization they felt needed to be addressed. They did so in pointed, though brief, fashion.
Understanding the Constitution’s Key Features
The U.S. Constitution has certain key features that distinguish it from the constitutions of other countries (or even, for some of its key features, from those of U.S. states). In general, you can split these features into three categories: characteristics of the document itself, features relating to government power, and features pertaining to rights of the people. Different observers may disagree about the number and relative importance of these features, but we think all the following aspects belong on the short list. (We discuss several of these features in detail in Chapter 4, which covers the structure of the federal government.)
Setting up the document
The way the U.S. Constitution positions itself, words its provisions, and provides for its amendment set it apart from many other constitutions around the world (and even from some state constitutions):
Constitutional supremacy: In the U.S., the provisions of the Constitution are the “supreme law of the land” and the ultimate benchmark for judging the validity of all laws adopted by Congress — and, indeed, all actions by government officials at the national, state, and local level.
Relatively few countries — and even relatively few democracies — give their constitutions that power. For example, although England and the other former commonwealth countries have deeply rooted democratic traditions and are moving toward constitutional supremacy as part of European Union membership, these countries still emphasize “parliamentary supremacy.” Under this theory, the laws passed by a country’s legislature are preeminent, and their legality or constitutionality can’t be questioned.
Relatively brief and general provisions: Compared to the more modern constitutions of other countries and most American states, the provisions of the U.S. Constitution allocating governmental power and establishing individual rights are quite brief and general. This brevity fuels the ongoing issues about constitutional interpretation that we highlight in Chapter 2 and throughout this book. For instance, as you see in Chapter 8, the Supreme Court decided a number of cases turning the brief and general constitutional language guaranteeing that “life, liberty, and property” not be deprived “without due process of law” into detailed specifications for constitutionally adequate notice and hearings and powerful protections for some liberty rights related to privacy. In so doing, the Court has triggered some of the biggest fights over the legitimacy of its rulings.
As one of many examples of its relative brevity and generality, the U.S. Constitution has three short provisions addressing taxation. In a single sentence, Article I, Section 8 gives Congress the power “To lay and collect Taxes, Duties, Imposts, and Excises.” Article I, Section 9 prohibits Congress from taxing exports from any state. And the Sixteenth Amendment clarifies that the requirement in Article I that federal taxes be “uniform” does not rule out the current method of federal income taxation. Even though thousands of pages of law govern federal taxation, these details reside in tax statutes passed by Congress, regulations and other guidance issued by the Internal Revenue Service, and judicial decisions construing those statutes and regulations.
By contrast, the 105-page California Constitution contains 32 articles, running some 18 pages, specifying a variety of details about state taxation. A California constitutional provision even provides special rules for the taxation of fruit and nut trees.
A relatively stable, but still changeable, constitution: Article V of the U.S. Constitution allows the document to be amended only when a supermajority supports constitutional change over a sustained time period. Specifically, it takes two-thirds margins either in Congress or in the states to proposean amendment, which must then be ratified by three-fourths of the states.
Requiring sustained support for constitutional change promotes the stability and supremacy of the Constitution. Constitutional values are immunized from normal majoritarian upheavals and short-term political pressures (a major reason why only 27 amendments have been created in our 220-plus years of experience with the Constitution). On the other hand, if the Constitution were not amendable (or, like the Articles of Confederation, could be amended only when the states unanimously concurred), pressures for change would eventually build up to the point where scrapping the existing Constitution in lieu of a new one would seem to be the only viable alternative. (After all, this is why the Articles of Confederation were ended, not amended, in 1789!)
The difficulty of amending the Constitution
In the 220-plus years since the framers replaced the Articles of Confederation with the Constitution, only 27 amendments have been adopted. Ten of these (the Bill of Rights) were adopted in one installment in 1791, and the remaining 17 were adopted between 1794 and 1992.
Some indication of the difficulty of adopting constitutional amendments is shown by the very low percentage of proposed amendments adopted. As many as 200 amendments are proposed in each two-year congressional term. Few, if any, of these proposals even make it out of a congressional committee — much less receive the two-thirds vote margin necessary to propose them for state ratification.
Another dimension of the difficulty of amending the Constitution is the number of high-profile and initially popular amendment proposals ending up in the dustbin of constitutional history. These scrapped proposals include a 1924 amendment that would have abolished child labor and the 1972 equal-rights amendment that would have explicitly prohibited gender discrimination. Over 300 amendments to overturn or significantly cut back on abortion rights recognized in Roe v. Wade have never made it out of Congress.
Yet the experience with the most recent constitutional amendment shows that good things come to those who wait. The Twenty-Seventh Amendment, which limits the power of members of Congress to raise their own salaries, was adopted 202 years after its initial proposal in 1790. (Most modern amendments put a time limit on ratification, but older amendments may not. It is, for example, theoretically possible that the 1924 child labor amendment could be adopted some day.)
Dividing and allocating government power
The U.S. Constitution is majorly concerned with how governmental power is allocated among competing power centers. It is not surprising, therefore, that the following key features of the Constitution relate to who exercises what governmental powers and what safeguards prevent abuse of government powers:
Popular sovereignty (power from the people): The constitutional plan proposed in 1789 assumed that the true source of political power was the American people. As any school child knows, the preamble to the Constitution begins with the phrase “We the People . . . do ordain and establish this Constitution. . . .” The manner in which Articles I, II, and III proceed to vest legislative, executive, and judicial powers in the relevant institutions also emphasizes how power originates with the American people. The vesting metaphor implies that the people are the principal power holders, temporarily loaning power to act on their behalf to legislators, the president, and federal judges.
This concept of “people power” may seem commonplace today. But it was radical in 1789, when political power was thought to originate from God, from divinely inspired kings, or from competing warlords.
Separation of national government powers: Again departing from many of the world’s democracies and other governments, the Constitution’s framers separated legislative from executive functions (and judicial functions from both, for good measure). In most parliamentary government systems, by contrast, the political party or parties in the legislative majority also run the executive branch. Changing the status quo in a parliamentary democracy is easier than in the U.S., but power is concentrated.
As you can see from our more detailed discussion on power allocation in Chapters 5 and 6, power concentration was something the U.S. Constitution’s framers feared. Their decision to separate national powers and provide multiple means for the three federal government branches to “check and balance” each other generated ongoing disputes about divvying up a wide range of domestic and foreign-affairs powers.
Federalism: Another key feature of the U.S. constitutional system is federalism — the system in which a strong national government shares powers with a competing level of strong state governments, headed by political officials chosen from different constituencies and reflecting different sets of interests. Again, federalist systems are relatively rare among the world’s political systems. More common, even in populous democracies, is a system in which a strong central government is the main authority. This system doesn’t face strong competing subnational political units; at most, one or more large cities exercise substantial powers delegated by the national government.
The framers’ decision to allocate power in a federalistic manner generated extensive disputes about the scope and limits of national-government power (as we cover in Chapter 5) and ongoing efforts to protect states’ rights (the subject of Chapter 7).
Protecting people’s rights
The entire Constitution (and the key features discussed in the preceding section) ultimately aims to protect the rights and liberties of the American people. “We the people” are the ultimate beneficiaries, for example, of assuring the Constitution’s stability over time and limiting federal-government power.
The following three other key features of the Constitution are even more directly related to the rights of individuals and groups of citizens:
The rule of law: The U.S. Constitution embodies “equal justice under law,” a concept related to (but broader than) constitutional supremacy. This ideal, certainly not always realized in practice, holds that every American should be treated the same by government officials, regardless of their race, gender, income status, religion, or party affiliation. This commitment that America be “a nation of laws and not of men” (and women) assumes that governmental authorities will apply the same neutral legal principles in all similar cases. The commitment to equality under law has influenced many areas of constitutional interpretation, including the body of case law preventing governments from acting arbitrarily (as discussed in Chapter 8) or discriminating on the basis of race or gender (as detailed in Chapter 10).
Balancing majority rule and minority protection: The governmental system established by the U.S. Constitution generally assumes that public policy should be what a majority of citizens wants. This commitment to majority rule is reflected in the commonplace constitutional provisions as to how a bill becomes a law. Ordinarily, a majority of legislators in the House and Senate (each of whom is, in turn, chosen by a majority of voters) can adopt legislation that becomes “the law of the land” with the active approval or at least grudging acquiescence of the president (also usually reflective of an electoral majority).
Still, the U.S. Constitution balances this strong commitment to majority rule in several important ways:
• Several supermajority requirements — for example, two-thirds vote margins for convicting officeholders of impeachable offenses, for overriding presidential vetoes, and for proposing constitutional amendments — give a determined minority the power to hold up significant action.
• The Constitution (and especially the post-1789 amendments) significantly departs from majority rule by enshrining constitutional protections for unpopular minorities (such as criminal defendants) and equipping an independent, life-tenured federal judiciary to declare unconstitutional actions taken in the name of a strong majority. (Chapter 6 examines the many interesting and important issues surrounding judicial review and the general interaction among the federal courts, Congress, and the president. And Parts II, III, and IV of this book are full of constitutional rules protecting minority rights — many of which would probably be opposed by a majority of Americans if put to a vote.)
Negative rights: The U.S. Constitution generally prohibits governmental officials from doing bad things rather than requiring them to do good things. Unlike most modern constitutions of other countries, the U.S. Constitution is not a source of positive benefits or rights that Americans can expect from their government. You will not find in the U.S. Constitution a requirement that governments actively promote access to healthcare, guaranteed employment or housing, or any of the many positive guarantees associated with the modern welfare state. Instead, the Constitution gives the national government the power to create positive benefits if the people demand them from their officials.
Most of the individual-rights provisions added to the Constitution after 1789 are phrased in the negative. (For example, governments may not abridge freedom of speech or deny equal protection of the laws). Even rights seemingly phrased in the positive boil down to prohibitions on governmental interference rather than an affirmative requirement that government spend money or otherwise act to assure the effective exercise of the right. (For example, for most of the time since its adoption in 1791, the Sixth-Amendment provision giving defendants “the assistance of counsel” merely meant that government could not thwart participation by counsel a defendant could afford to hire on his own. Only in the last several decades has a limited right to government-provided counsel been afforded to indigent defendants.)
The daring framers: Turning a philosopher’s dream into a constitutional cornerstone
Until the American Constitution framers used the separation of powers as the key organizing principle for the federal government, it was mainly an Enlightenment-era philosopher’s good idea. Specifically, it was a theory popularized by French social critic and political thinker Charles-Louis de Secondat, generally referred to as Montesquieu. Montesquieu’s multivolume treatise published in the 1740s proposed separation of powers as an antidote to the corrupting tendencies he found inherent in various forms of government.
That the American framers were willing to stake the success of the national government on an idea that had not been tried on a large scale or in the modern era is some indicator of their visionary thinking and risk-taking propensities.
Appreciating the Five Main Topics Addressed by the Constitution
Even though the U.S. Constitution is usually thought of and printed as one document, its various provisions really address five distinct topics. Your understanding of the Constitution and the law that has sprung up around it will benefit from the following discussion, which identifies and elaborates a bit on these five main topics:
The seven articles: Proposed in 1789 and ratified by the states in 1789, the articles establish a powerful, but also limited, national government and rules for the states.
The Bill of Rights: Proposed as a package in 1789 by the first Congress to meet under the new Constitution, these first ten amendments establish important individual rights and declare two important principles about how the Constitution works.
The great post–Civil War amendments: Ratified in 1868, the Thirteenth, Fourteenth, and Fifteenth Amendments abolish slavery and establish rights for newly freed slaves.
Voting-rights amendments: The Seventeenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments, ratified from 1913 to 1971, expand voting rights by establishing certain groups’ rights to vote.
Other amendments altering political procedures and power arrangements: The other nine amendments (ratified as long ago as 1795 and as recently as 1992) reform other electoral and political practices or “clean up” perceived problems with previous constitutional provisions and interpretations.
In later chapters you get acquainted with the details of many of these constitutional provisions and amendments. For now, we want you to get familiar with the overall lay of the constitutional land.
Although almost every school-age child memorizes the preamble to the Constitution, it isn’t considered a distinct topic. The preamble helps point to the intent of other constitutional provisions and memorably notes the framers’ intent to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” However, it isn’t an independent source of legally enforceable rights. It’s probably a good thing for some national officials that they can’t be sued for sowing disunion or detracting from our “domestic Tranquility!”
Hardly a slam-dunk: The tough and contentious fight to ratify the new Constitution
Because of its enduring power, the Constitution is sometimes mistakenly thought to be the product of an easy and obvious ratification process. Yet the fight to establish a substantially more powerful federal government was anything but easy. Shortly after the new constitutional plan was unveiled, a determined and brilliant group called the Antifederalists organized to oppose ratification. They wrote strong anonymous essays, published in colonial newspapers, comprehensively critiquing the proposed constitutional plan and warning that the new federal government would become too powerful. These criticisms were answered by leading constitutional proponents Alexander Hamilton, James Madison, and John Jay, in a series of 85 anonymous essays later collected as the Federalist Papers. (Modern Constitution interpreters often turn to these essays to determine “the intent of the framers,” as we discuss in Chapter 2.)
The debate at the ratification conventions and in pamphlets and newspaper columns was heated. And the vote margins in some key states were very close. For example, a switch of 2 votes among New York’s 57 delegates would’ve defeated that key state’s ratification drive. Had 6 out of 168 delegates voted differently in the largest state, Virginia, the constitutional adoption drive would’ve been mortally wounded.
Even more interesting is that New York’s close vote was achieved only by a promise that the first Congress meeting under the new Constitution would immediately set to work to adopt a bill of rights to limit the new government’s potential to abuse individual liberties. In a very real sense, the promised amendments saved the day in a very fractious period.
The original seven articles: Establishing a new national government
The Constitution of 1789 consisted only of seven articles, with a variety of provisions. The first three articles establish a new national government composed of the familiar three branches (legislative, executive, and judicial). The fourth article sets forth how the states are to function with respect to each other and to the new national government in the new constitutional order. The remaining three articles establish the supremacy and legitimacy of the new Constitution.
Planting a strong federal oak with three branches (Articles I–III)
The framers proposing their bold constitutional experiment in 1787 intended to create a substantially more powerful, but nevertheless meaningfully limited, national governing entity. Both of these goals can be seen in the first three constitutional articles, which establish and empower governmental structures to exercise legislative, executive, and judicial powers sufficient to carry out the new duties entrusted to the federal government. But the very division of the federal government into three separate and competing branches (and further splits of authority within the legislative and judicial branches) shows how the framers wanted to prevent governmental authority from becoming too concentrated (and, hence, too powerful).
The first three articles of the Constitution share significant things in common. They each begin with an initial section placing a portion of national-government power (legislative, executive, and judicial) in a different branch (the House and Senate, the president, and the federal courts). They then grant specific powers to the established branch, while imposing limitations on those powers.
Each of the three articles also protects the independence of the branch it establishes in two ways:
First, each of the articles protects the branch it creates from retaliation by the others. For example, members of Congress can’t be put in jail or required to pay damages for slanderous official statements, and Congress is disabled from reducing presidential or federal-judge salaries.
