This course offers an introduction to the U.S. Constitution and landmark Supreme Court cases interpreting it. It explores the Constitution’s origins, its amendment over the years, and methods of constitutional interpretation. Topics include the nature and structure of the federal government, the powers of the federal government, and individual rights.
Class 2: Creating the Constitution
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來自 University of Pennsylvania 的課程
Introduction to Key Constitutional Concepts and Supreme Court Cases
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The Constitution and Three Branches of Government
Classes 1, 2, and 3 discuss why we need a Constitution and the history that preceded its drafting. You will learn about the two conflicting lessons the founders learned from the Revolution and the failure of the Articles of Confederation: the national government can become a tyrant if it is too strong, but the nation will fall apart if it is too weak. These lectures explore how the drafters sought to balance these concerns in the original Constitution and the many compromises it contains. You will also learn about two approaches to interpreting the Constitution: Originalism and Living Constitutionalism. Classes 4, 5, and 6 explore the powers of the legislative, executive, and judicial branches of government and the separation of powers between those branches. The Framers gave the federal government limited powers, and divided those powers among the three branches in order to protect individual liberty and state authority.
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Professor Kermit Roosevelt, IIIProfessor
Law
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We left off last time with the Constitutional Convention.
The revolution succeeded, but
the Articles of Confederation have failed, and the states have sent delegates to
a convention in Philadelphia to propose changes.
The delegates represent states with lots of different views, and above all,
there's a tension between the first two lessons of American history.
The Revolution teaches that a general government can become tyrannical,
and that the states can stand up to defend the liberty of their citizens.
But the failure of the articles teaches that the states can't be
relied on to cooperate and do the right thing.
They can be selfish.
They can be competitive.
They can fight a war over oysters.
So someone has to keep them in line.
The Constitution accommodates these competing ideas in a very novel way.
It's what we call Federalism.
There's going to be a division of power between the states and
the federal government.
The federal government is going to handle somethings,
international relations for instance.
Commerce among the states, and in the areas where it has power,
its power is supreme.
It will be superior to the states.
But there are also areas of authority that will be left to the states, and
in those areas the states will be supreme.
It's a compromise, between state power and national power.
In fact, just about everything in the Constitution is a compromise.
So what does the Constitution do?
The original Constitution, the Constitution the framers wrote,
is pretty short.
The first thing it does is create the Federal Government.
Article one creates the federal legislature.
That's Congress, the body that makes federal laws.
Congress has two houses, the House of Representatives and the Senate.
The senate is suppose to be a little more deliberative, and its members serve for
longer, six year terms compared to two years for Representatives.
But the main difference between the two.
Is that representatives are chosen by the people, and they represent the people.
Senators are chosen by state legislatures.
This gets changed by the 17th Amendment, and we'll talk about that later.
But right now we're looking at the Founders Constitution.
Senators are chosen by state legislatures.
And they're supposed to represent the states.
So that's a compromise between two ideas of who the federal government is
supposed to be responsible to, the people or the states.
How do we decide how many senators and representatives there are?
There's another compromise here.
Each state gets two senators.
States are equal in the Senate.
The number of representatives is determined by population.
Add the number of free persons, excluding Indians not taxed, and
three fifths of the number of all other Persons.
It's the famous, or infamous, three fifths compromise.
It's about slavery.
The framers were embarrassed about slavery, as well they should have been.
And the Constitution never uses the word, slave.
But what it's doing here is compromising, between the wishes of the free states and
the slave states.
So the slave states say,
we want representatives based on population, including slaves.
Count slaves as one, equal to free persons.
The free states say, you don't represent your slaves.
You shouldn't get an extra voice in the federal government for
people you hold in bondage and deny every right.
Both sides care about this, because they can see that
the federal government might have the power to protect or to end slavery.
The states are split on the issue, but
the federal government may go one way or the other.
And it could give one side a nationwide victory.
So they compromise.
Three fifths the number of slaves.
That's how we decide who gets into congress.
Now lets see what Congress can do.
Basically it can pass laws.
Not just any law it feels like, but
laws on particular topics, which are set out in article one section eight.
We'll talk about those more later.
The key basic point is that federal power is limited.
It's limited to what's set out in the constitution.
So, Article I creates congress and congress makes laws.
Who's going to enforce those laws?
No one did, remember?
Under the Articles of Confederation.
There was no executive branch.
But, Article II of the constitution gives us the federal executive,
the president and other executive officers.
The president has a four-year term.
He's elected through a very complicated process that soon gets changed.
But, it's worth knowing that the three-fifths compromise is working
here too.
Because the voice that states have in presidential elections is determined by
adding up their number of representatives and senators.
So there's a small state bias, because you have two senators for
every state, no matter their size.
And there's also a pro-slavery bias, because the three
fifths compromise is used to determine the number of representatives.
And this matters of our first five presidents,
four are from the slave state, Virginia.
And one of those Thomas Jefferson would have lost the election in 1800
to John Adams from the free state of Massachusetts.
If not for the three fifths compromise.
What would the President do?
He will enforce the laws.
He will also command the armed forces.
He's generally suppose to follow the policy that Congress sets out.
Enforce the laws they make, fight the wars they declare.
He can appoint some people, Executive officers and Federal Judges.
But the Judicial appointments require Senate approval.
So does some executive conduct of foreign affairs.
The President can make treaties, but they require Senate approval.
The executive is probably not considered the most important branch at the founding.
But over time, we'll see power shift away from Congress and towards the President.
What's left of the federal government?
Judges.
Article III creates the supreme court of the United States.
It doesn't create any other federal courts.
That's left up to Congress.
It gives the supreme court the power to hear certain kinds of cases.
Basically the cases where there's a federal interest at stake.
So, cases involving federal laws, or the constitution and
also cases where you might not trust the state court to be unbiased.
Suits between states.
Suits between states and other states citizens.
Suits between citizens of different states.
That sort of thing.
There are actually four more articles of the constitution.
But they're relatively brief.
Article IV is about interstate relations.
It tells states not to discriminate against the laws and
the citizens of other states.
It also contains the most shameful provision of the original Constitution,
the Fugitive Slave Clause.
Before the Constitution, remember?
The states related to each other, like independent nations.
So if a slave escaped from a slave state and made his way to a free state,
that free state could decide if he became free as soon as its feet touched its soil.
As soon as he breathe its air.
That was the English rule, but the Fugitive Slave Clause says, no.
An escaped slave remains a slave.
And must be returned.
Article V, explains how to amend the Constitution.
The details are not very interesting.
The main point to take away is that it's hard.
You need a two thirds majority in each house of Congress, and
then ratification by three quarters of the state.
The more interesting point is that the constitution itself
recognizes it's not perfect.
It's not the last word.
It might need to be changed.
Not everyone realizes that, in America, we have no official religion.
But we have something similar, a sort of Civic Religion.
Its based on the constitution, that's our holy word.
And some people think it's infallible, but it's not.
There was some stupid provisions in the original constitution.
There is an evil ones like the fugitive slave clause and
suggesting that some part of the constitution is defective or
poorly designed and even that it should be changed.
It's not unpatriotic.
It's doing what the Constitution itself expects.
We all love the Constitution, of course.
That's a given. But
what does it mean to love the Constitution?
Well it's something different from worshipping the Constitution, I would say.
If you worship the Constitution, you think, it's the last word.
It has all the answers.
It's infallible.
It should never change.
If you love the constitution maybe you look at Article V and you say,
the constitution itself understands.
It's supposed to be changed.
And here's an interesting point about the constitution and you.
Almost all of the rights that you have,
the rights you think about on a day-to-day basis,.
Are not in this original constitution.
They don't come from the document that the founders wrote in Philadelphia.
They come from the amendments.
Some of those amendments were adopted right after the constitution was ratified.
Some of them were adopted much later.
And most of the cases we're going to talk about,
most of the cases that people think about when they think about constitutional law,.
The great supreme court decisions.
Most of those are based on amendments that came much, much later.
Article VI sets up the principle that federal law, and
the federal constitution, are supreme over state law.
If the federal government has the power to act,
and that's an important qualification.
Because federal power is limited in its scope.
But if the federal government has the power to act, states must obey.
In article VII is the one that violates the articles of confederation.
They had a Unanimity Requirement.
And Article VII in defiance of that says that the Constitution shall be
effective upon the ratification of just nine states.
Rhode Island can reject the constitution.
In fact, it did.
But, it doesn't matter.
The new nation will go forward even without them.
And, yielding to the inevitable,
Rhode Island later changed its mind and ratified.
So, that's what the constitution says, the Framers Constitution.
But, we're reading it today, hundreds of years later.
How do we know what it means?
Can the meaning change as years go by and the world changes?
That's what we're going to talk about next time.
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