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Constitutional Law: Part 4

Course video 18 of 26

The study of constitutional law is among the most exciting parts of the law because it provides for the structure and functioning of the U.S. government. In this module, Dean Ruger will address the document itself, how it has been applied over time, the history of the document, and what makes it unique. The structure of the U.S. government as a government of limited, separated powers will be explored along with the important individual rights the Constitution provides and how the U.S. Constitution compares to others around the world.

This course will give you a glimpse into six different areas of American law: Tort Law, Contract Law, Property, Constitutional Law, Criminal Law, and Civil Procedure. You will gain insight into the complexities and dilemmas that arise from the application of law in different settings, and what is distinctive about American approaches.

Skills You'll Learn

American Law, Common Law, Law, Constitution

Taught By

Anita Allen
Henry R. Silverman Professor of Law and Professor of Philosophy
Shyam Balganesh
Professor of Law
Stephen Morse
Ferdinand Wakeman Hubbell Professor of Law; Professor of Psychology and Law in Psychiatry; Associate Director, Center for Neuroscience & Society
Theodore Ruger
Dean and Bernard G. Segal Professor of Law
Tess Wilkinson-Ryan
Assistant Professor of Law and Psychology
Tobias Barrington Wolff
Professor of Law

Transcript

[MUSIC]

Finally, I'll end this segment by talking for

a few minutes about the role of the United States Constitution in the broader world.

You'll recall, from the beginning of this segment that the U.S.

constitution is the oldest constitution in the world operating today.

It was quite unique when it was framed in 1787.

And it has been held up by commentators both in prior centuries and

very recently as a model for constitutionalism around the world.

To a great extent, this story of influence is accurate, at least in general terms.

When the U.S. Constitution was framed in 1787,

it was virtually the only written constitution in the world.

It was an outlier.

And it was viewed as a novel experiment in writing down the rules of the governance.

Today, that novel experiment has become the world's norm.

Virtually every country today with only a handful of exceptions has

a written constitution,

has a Supreme Court which exercises some form of judicial review power.

And has a culture of both governmental structure and individual rights

that mimic, at least faintly, the American Experiment from two centuries ago.

So this is in,

in one very broad, very general sense, a triumphant story of influence,

of written constitutionalism and strong form judicial review around the world.

But, nothing's that simple.

When we look more carefully at

the constitutions in other countries around the world.

We can see the influence of the basic written model, but

we see a number of design choices that these other countries have made.

Particularly, those countries that have written constitutions within the last 50

or 60 or 70 years that take their constitutions in

very different directions than the U.S. model.

So, although the U.S.

Constitution has been tremendously influential in the general, broad sense in

promote, promoting a regime around the world of written constitutionalism.

The actual choices other countries have made,

have diverged dramatically from the U.S., leaving the U.S.

Constitution still quite unique in some ways I'll discuss now.

First, as I alluded to earlier, the U.S.

Constitution remains one of the most difficult to amend the text in the world.

Requiring three-quarters of the subordinate unit's,

the states, to agree to anything in order to make textual amendment.

This in turn means the U.S. Constitution is largely frozen as

it's written with only sporadic episodes of amendment over the past 200 years.

And that again requires interpreters like Supreme Court

justices to deal with the fact that the text stays the same even if

societal attitudes toward that text have changed dramatically.

In many other countries, it's easier,

to amend the constitution, which leads to more textual change.

Which, in turn, might reduce the frequency or need for

strong form judicial interpretation, to change constitutional norms.

Second, although the US is not alone in being a federal system,

recall what I said about power being divided between the national

government and a number of subunits called here the states.

There are clearly other federations in the world, and

many other countries have a national government and

some subordinate units, be they states or provinces or other units.

The U.S. is perhaps unique, though, in the disproportionate weight it

gives to the states, no matter what the population is.

As I said before, Wyoming has the same amount of

votes in the Senate as California, despite having only a fraction of its population.

Most other legislatures in countries that are federations, and

give representation to the sub units, like states or

provinces, make some effort, at least, to equalize for, for population.

So many scholars think that this is a, an accu,

anachronistic, maybe even problematic feature of the US Constitution, and

no country has copied it quite as dramatically.

Third, although virtually all national constitutions protect a broad swath of

individual rights, or at least say they do.

Very few give the strong protection to, gun ownership rights, or

religious freedom, or even the broad freedom of speech and

particularly commercial speech that the U.S. constitution does.

So when we look at what other countries are doing to copy in a sense

the American Bill of Rights and individual rights protection, a lot of them

are copying and editing in the sense that they don't put the second amendment in it.

And they don't protect speech in the same ultra robust way that we do.

They certainly, most other countries would not protect corporate speech in the way

that the US Supreme Court has in, in recent decades.

And these are values which, of course, we debate in the American context.

For the rest of the world they would just as soon form their constitutional order

without some of these elements that we think are very fundamental.

next, while every country that sets up a new constitution attempts to do something,

or at least says they do, about judicial independence.

About creating a court system where judges are free to make decisions without

concern for being fired or thrown in jail in, in the extreme case.

Almost no country writing constitutions recently chooses to

give judges life tenure like we do.

At least not Supreme Court judges.

Most other countries Supreme Courts have judges sit for eight years or

ten years or even 15 years.

But they're unwilling to say that a judge gets his or

her seat, as long as they keep drawing breath on this Earth.

And, many scholars, even of the US Supreme Court, looking at the super long tenure.

Sometimes more than 30 or 35 years of some American Supreme Court justices.

Have said that this may be,

a part of our Constitution that we might reconsider if we could.

Now of course it's so difficult to amend I don't anticipate that.

Perhaps because of the age of the U.S. Supreme Court and

the age of the U.S. Constitution, our Supreme Court is still very shy and

very reluctant to support other, support and cite, other Supreme courts around

the world, considering similar structural or individual rights cases.

Many other high courts look to their neighbors or

look around the world to colleagues and attempt to get some judicial guidance.

Many justices on the U.S. Supreme Court have asserted fairly categorically,

that that kind of judicial looking around is,

is impermissible, and we're, in that sense they're somewhat unique.

Perhaps even more importantly for the lives of individual citizens, although

the U.S. protects lots of individual rights against government action,

what we might call negative rights, or negative liberties.

The ability to say say to the government you may not throw me in jail for

giving this speech.

You may not throw me in jail for making these sexual or reproductive choices.

Those are called negative liberties.

The U.S. Constitution by and large does not protect positive entitlements,

positive freedoms: the right to health care,

the right to housing, the right to education.

And many other national constitutions do, so the U.S.

is an outlier in the strong dichotomy that it draws in its constitution, and

the court's interpretation between negative liberties against

government tyranny and affirmative rights to inputs into one's good life.

This is vividly explained in the abortion cases where famously Roe v

Wade gives a certain limited right to women to choose to

have an abortion at certain periods of the pregnancy.

But in other case, less well known Maher v Roe says quite clearly

a poor woman can't access government funding to effectuate the abortion right.

So there's an, there's a right to say to, to say no to government intrusion.

There's no right in the U.S.

context, to government financial support for that decision.

And many countries would find that dichotomy very incongruous,

to give a right, but not to give the financial means to effectuate it.

As all of this shows the U.S.

Constitution is tremendously influential around the world.

But, its influence was more in generating this culture of written constitutionalism.

Rather than in specifying the exact content of the new constitutions that have

emerged in most countries over the last half century.

And here there's a certain irony, is the very fact that the U.S. Constitution was

so important and so old, kind of made it like an original model of a vehicle or

something, where newer designers have taken things in very different directions.

So, this boast confirms the influence of the U.S. Constitution in our world.

But also shows that there are other choices that other nations have made

that we might consider even in our own constitutional order about whether there

are, there are better design features that we might think about going forward.

I'll conclude in the way I started, namely by focusing on the,

the greatest founding father of the Constitution, James Madison.

Madison said, What is government itself but

the greatest of all reflections on human nature?

And this fits with several themes I've tried to bring out in this segment.

Over 200 years ago Madison and

his colleagues met in Philadelphia a few miles from where I stand here.

To produce a canonical text that's remarkable in its innovation,

remarkable in its brevity.

And remarkable in the number of subjects it tried to cover in relatively few words.

But the framers, as evidenced by Madison's quote here, weren't disconnected from

the realities of we the people, a phrase they put right there in the constitution.

They realized that this text they wrote was not going to interpret itself,

it doesn't give easy answers to the questions that it raises.

It doesn't contain definitions, it doesn't contain a detailed users guide.

And the constitutional law, and constitutional culture that we have today,

reflects the text that they worked on two centuries ago, but it also

reflects the intervening generations and most importantly, the present generations

interpretation and life and values that we infuse with the Constitution.

The Constitution is not living, but we are, and

that's an imperative that ought to guide our interpretation.

Thank you.

[MUSIC]

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