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Introduction to Constitutions and Constitutionalism

The Constitution both empowers and limits government by creating a framework and limiting the exercise governing authority by protecting individual rights. The Constitution must be understood as a reaction to the events that preceded it. Things outside of the Constitution are essential to interpretation such as the practice of political entities, etc.


Walter Murphy
1. The Democratic Theory – based on notion of human dignity. This theory emphasizes autonomy and the ability to share in government processes through the delegation of the individual’s authority to chosen representations. (this is why government is morally binding). Characteristics include: popular election of representatives; institutions that allow these people to govern; free entry of citizens to candidacy for electoral office.
a. The chief check against tyranny is that the people will not tyrannize themselves; they will try to choose officials who will not enact oppressive laws and will vote out of office those who do.
b. Second check is the way democratic politics operate in large nations. Most people have small concern for political issues which allows coalitions of minorities to form temporary alliances, trading support among themselves on different issues.
c. Overall, such checks push public officials to mediate among interests b/c they are wary of oppressing any group, for fear it will become part of tomorrow’s winning coalition.
1. Constitutionalism – respect for human worth and dignity, right to political participation, and government must be limited in what it can do. Often want institutional restraints on substantive matters to prevent lapses into an authoritarian or even totalitarian system.
2. Constitutional Democracy – wide measure of popular political participation and simultaneous restriction of the government by a variety of institutional means. By prescribing institutional structures and fracturing power among different offices a document can push officials to link their own interests with those of their office and jealously guard those interests against putative incursions by other officials. (note US diffuses power further through federalism)
What is the Constitution? At one extreme are shams and at the other should be those whose provisions are fully operative; but no constitutional text operates with complete authority. Officials may ignore or skew express commands and prohibitions – US legislators have never taken seriously their document’s requirement that a regular statement and Account of the Receipts and Expenditures of all public money shall be published from time to time.”
What are the functions?
• As sham, cosmetic, or reality: function of sham is to deceive and reasonable authoritative texts play a cosmetic role, allowing a nation to hid its failures behind idealistic rhetoric
• As a charter: must sketch the fundamental modes of legitimate governmental operations
• As guardian of fundamental rights: either relies on or incorporates democratic and/or constitutionalist theories
• As covenant, symbol, and aspiration: may function for the founding generation like a marriage consummated. For later generations, may operate more as an arranged marriage in which consent is passive and deeply reaching reform within a constitutional framework tends to become progressively more difficult. The notion of constitution as a covenant must mean it formalizes or solidifies rather than invents an entity: it solemnizes a previous alliance into a more perfect union.
How does a Constitution validly change over time? Language evolves; interpretation of the document. But, there are limits to valid Constitution change – If the text is very clear and authoritative or has unchangeable elements and when the text represents an agreement among people for how government will work b/c the nature of the agreement may prohibit substantial change
Who are the authoritative interpreters? Interpretation by the people themselves (Democratic theorists would lodge such authority with elected officials, while constitutionalists would put it in the hands of officials more insulated from the public).


1. The Declaration of Independence = Although it has no binding legal authority, its ringing rhetoric often is invoked by courts and its complaints about British rule foreshadowed the protections that were placed in the Constitution and its Bill of Rights.

2. Articles of Confederation = They created a weak national government and embodied a strong commitment that state governments retain sovereignty. There was no judiciary and no executive. Serious problems developed under the Articles and most states adopted laws that discriminated against goods and services from other states and attempted to erect barriers to help their own economic interests.
• Problems: Congress was powerless and there was no national executive or judiciary so no way to ensure that states would comply with laws adopted by Congress.
• Two fundamental powers missing: the power to tax and the power to regulate commerce
• Insufficient b/c they would not guarantee that international commitments could be honored, unable to protect the nation’s military from threats both domestically and internationally, or to establish a framework by which stable economic growth would proceed.
• With these goals in mind, political figures met and to amend the Articles, but ended up replacing them b/c of the numerous defects.

3. Constitutional Convention = their original mandate was to propose changes to the Articles. The Articles required unanimous consent for revisions, but Article VII of the Constitution specified that the ratification of the conventions of 9 states shall be sufficient for the establishment of this Constitution b/c the states. The framers immediately agreed on abandoning, rather than amending, the Articles, and on creating a new constitution (after first adopting a resolution that a national government ought to be established consisting of a supreme legislative, judiciary, and executive).
• Framer’s wanted to (1) expand national power, but at the same time preserve a strong degree of state sovereignty; and (2) protect individual rights from the increased power of the government.
o Thus, they responded to these concerns by not giving the government broad powers, but specifying their grant of powers in the Constitution

3. The Federalist Papers = numerous cites by the SC as to the framer’s intent.
• Constitution embodies a set of structural provisions designed to bring about public-spirited representation, to provide safeguards in the event that it is absent, and to ensure an important measure of popular control. Various systems of representation were designed to promote deliberation in government and to control possible abuses.
o Recognizing that sovereignty lay in the people, the framers designed a system in which no branch could speak authoritatively for the people themselves.
• Structural provisions can be seen as a bill of rights, designed to protect against tyranny
o Bicameralism was intended to ensure that some representatives would be relatively isolated from the people and that others would be relatively close
• Combine political accountability (House) with a degree of independence (Senate).
o System of checks and balances were designed with the recognition that even national representatives may be prone to the influence of interests that is inconsistent with public welfare

US v. Curtiss-Wright: Appellees conspired to sell 15 machine guns to Bolivia, in violation of the Joint Resolution of Congress and proclamation by the President. The joint resolution authorized the President to prohibit the sale of arms if he found that such a prohibition would contribute to establishment of peace in the region. Resolution is Constitutional – principals which justify such legislation find overwhelming support in the unbroken legislative practice which has prevailed from the inception of the national government. The President has the exclusive right/authority in external/foreign affairs as explicitly granted by the Constitution.
• J. Sutherland – the broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution is categorically true only in respect to foreign affairs. He argued that power to conduct foreign policy does not stem from the Constitution, but instead is intrinsic to nationality.
o “The President is the sole organ of the Nation in its external relations and its sole representative with foreign nations


1) If no Constitution existed in the US, there likely would have been some initial informal agreement creating the institutions of government, and those institutions would have determined both the procedures of government and its substantive enactments. The framers could have served as the initial legislature, and devised a structure of government embodied in a statute that could have been altered by subsequent legislatures.

2) A written Constitution is unique b/c it is difficult to Change
• Whereas legislative enactments can be modified by another statute, the Constitution can be amended only by a much more elaborate and difficult procedure, which is contained in Article V.

Framer’s Intent = chose to create their government in a Constitution deliberately made difficult to change as a way of preventing tyranny of the majority, of protecting the rights of the minority from oppression by social majorities. If the structure of government was placed in a statue, there might be an overwhelming tendency to create dictatorial powers in times of crises and/or easy to overrule the rights granted by them.

Functional Approach = an enormous benefit of the Constitution is that it is written in terms sufficiently general and abstract that almost everyone can agree to the. Serves as a unifying device, increasing the legitimacy of government and government actions.

3) A convenient mechanism for getting a government “up and running,”

4) Without a textual constitution, constitutionalism would seem to require a substantial amount of gradual development of conventions and bind the people thereafter.
• CA: Textual Constitution can stand in the way of the self-governing choices of contemporary majorities in a way that seems in tension with the idea of democratic self-governance. Can also stand in the way of seemingly sensible policy choices, in circumstances where obstructing those choices might pose serious threats to the nation itself.
• Response: methods to avoid the problems of the textual Constitution poses, such as the amendment process, interpretation, and minimizing the consequences.

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