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.
Constitutional Law: Part 1
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En provenance du cours de University of Pennsylvania
An Introduction to American Law
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À partir de la leçon
Constitutional Law
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.
Rencontrer les enseignants
Anita AllenHenry R. Silverman Professor of Law and Professor of Philosophy
Penn Law
Shyam BalganeshProfessor of Law
Penn Law
Stephen MorseFerdinand Wakeman Hubbell Professor of Law; Professor of Psychology and Law in Psychiatry; Associate Director, Center for Neuroscience & Society
Penn Law
Theodore RugerDean and Bernard G. Segal Professor of Law
Penn Law
Tess Wilkinson-RyanAssistant Professor of Law and Psychology
Penn Law
Tobias Barrington WolffProfessor of Law
Penn Law
[MUSIC]
Welcome to this segment of Introduction to American Law, on the US Constitution.
I'm standing here in the reading room of Penn Law School's library just a few
miles from where the constitution was framed over two centuries ago.
In the city of Philadelphia.
My name is Theodore Ruger.
I'm a professor of constitutional law and
health law at the University of Pennsylvania Law School.
And my segment today will focus on various features of the US
constitution's distinctiveness.
I'll begin by asking the fundamental question,
what is the American Constitution and American constitutional law.
And focus specifically on the distinct place of American Constitution and
American constitutional development in the world.
Scholars and visitors to the US have long recognized the US Constitution as unique.
Going back almost 200 years,
Alexis de Tocqueville, on his visit to the United States,
remarked specifically about America's unique constitutional culture.
De Tocqueville observed, the obligation to base decisions on the Constitution as
opposed to the law was peculiar to the American judge, at the time he visited.
What he meant in this is that many countries,
of course, had common law regimes and statutes.
But, when De Tocqueville visited the US
the US was unique in it's written Constitution.
Much later, in marking the Bicentennial of the US Constitution in 1989,
Time Magazine released a special issue in
which it called our Constitution a gift to all nations.
And proclaimed proudly that 160 of the 170 nations then in existence.
That modeled their constitution upon our own.
Around the same time, Guido Calabresi leading scholar, dean of,
former dean of Yale Law School and a judge,
described the other countries in the world as our quote constitutional offspring.
I'll explore these themes in this segment.
And while it is true that the US Constitution is distinctive.
What we'll see is that if, if other countries are our constitutional
offspring, as Judge Calabresi has said, they're an offspring that have take
a very different path in some key ways then the US constitutional development.
In this segment I'll explore four different major themes.
First, I want to talk about the basic text of the Constitution and
the long history of interpretation that has taken place in American legal culture,
which itself is virtually unique in the world and
forms a unique and distinctive aspect of American constitutionalism.
Then I'll look at a few diff,
different kind of broad clusters of constitutional rights and structures.
First, the manner in which our constitution divides government and
it divides it twice.
Both vertically between the federal and
state governments and then horizontally across the federal government into
the different branches of the legislature, the executive branch and the judiciary.
And I'll explore some current debates that resound even
today about the proper allocation of those different governmental structures.
I'll then turn to what many of us think about when we think about
the constitution, namely the individual rights that we hold dear, and
that government and the courts struggle to mediate and
strike the proper balance in, in applying things like freedom of religion.
The right to be free of race discrimination.
The right to bare arms, the right to assemble as we choose.
All of these form a core part of the american constitutional tradition.
And although we don't have time in this segment to explore each one in great
detail, I'll explore some general themes that I think cluster around the general
area of independent individual rights protection in the American tradition.
Finally, I'll conclude by talking about
the US Constitution's distinct influence in the world.
And the manner of which many other countries that have recently adopted
written constitutions somewhat along the US model have chosen different paths and
gone in different directions then, then the US has in ways that I, then in
turn shines a light on what's truly unique about the American experience.
Now I'll turn to the first substantive section of this segment,
which deals with the Constitution's basic text, history, and interpretation.
Some general themes that guide us as we think
about the Constitution in specific applications to individual rights areas.
The first most basic question we might think about.
And one, it's one that people have been struggling about for
the entire life of the US Constitution, is what is the US Constitution.
Where is it?
Where do we find it?
Now, at first glance we might think that's a very simple answer.
Of course, we have a written constitution.
It has a text.
And we might say, well, that's it and that's all there is.
As I'll assert in the next few minutes, I think that is dramatically wrong, both in,
as a descriptive matter of the way the Constitution has been interpreted and
as a normative matter of how we ought to interpret it.
But, let's talk about the text and the history a bit to start out with.
I hold in my hand here the full text of the constitution in this little booklet.
It's a booklet I picked up at the Supreme Court many years ago.
The Constitution of the United States of America.
As you'll see this is a slim document and as I'll, I'll describe in,
in detail in a few minutes, this is the world's shortest constitution.
And the, the brevity of our constitution itself is it self important, and
it creates a kind of interpretative imperative.
These words in this little document are often vague and
unspecified, and they don't interoperate themselves.
And much of what the american constitution tradition has been
over the past many centuries, has been an effort to translate and
give content to these very sparse and undefined words.
So we might say, where is the Constitution?
Is it in the text?
I would say, yes it is.
But it's not fully embodied in this tiny little,
little booklet that I hold in my hand.
Where else might we look then?
We do need to think about the text and the text is one thing that endures.
But as we look at the his, history of constitutional development in
the United States, we see the, the role of time.
And here I mean the several centuries that this constitutional text has been with us,
is important, and is foundation in how we think about the document.
The document stays with us, but our we as a people change over time.
And that inflects and affects the way we interpret the document.
And we can see real life examples in the Supreme Court of
the way the court itself changes in its own interaction with the document.
We also have a crucial role in, in American history
in the institutions that shape and contest constitutional meaning.
When we talk about those institutions,
obviously the primary institution we talk about is the United States Supreme Court,
a group of, these days, nine unelected judges who sit in Washington DC.
Originally for much of the nation's history the court had fewer than nine.
Justices but we, we, when we talk about constitutional meaning
we need to look beyond the court and think about all of the other institutions in
our civic society that that participate in interpretation.
Legislatures, indeed in the early days it was primarily legislatures.
and, non judicial actors that participated in constitutional interpretation.
The executive branch, certainly at the federal level as well as the state level
is a focal point where the vast majority of decisions about constitutional rules
are made much more so than the very few cases that reach into the supreme court.
And then much more broadly, and in ways that constitutional scholarship has
started to take account of within the last decade or
two, these words at the bottom come right from the constitution itself,
We the People, the American people in all of our kind of diverse and
often contested debates over constitutional meaning.
We play a leading role in interpreting the Constitution and
in updating its meaning through the generations over the past two centuries.
Let me say a bit more about the tax and history by bec,
returning to where these all started just a few miles from where I stand here today.
In the old city of Philadelphia here in this building called Independence Hall.
It's important to note, and then very important for
the American constitutional story that the framers of this country, and
of the Constitution, met here twice, separated by more than a decade.
They met in 1776 while still pull,
part of the British Empire to frame a document that's central to our.
Political tradition called the Declaration of Independence,
declaring that this nation would, would, would form free of
Britain and and chart a course as a new nation.
And we celebrate that day, July 4th, 1776.
One day we don't celebrate is July 12th, 1776.
Because after the Declaration of Independence, which we all remember,
the framers sat around, and they drafted a constitution for this new nation.
It's call, it was called the Articles of Confederation.
And it was, that was draft was issued and
initially approved by an initial vote on July 12th, 1776.
Now today, that is not a date we celebrate in
United States history because the original constitution.
Was, in many senses a failure.
And so the framers had to come back again in 1787 to essentially do
version 2.0 of the constitution.
And this is important for the way we think about the constitution, because we,
our constitution that endures with us today then, was born out of
a failed experiment in constitutionalism called the Articles of Confederation.
What was wrong with the articles?
They created a government that was too weak.
There was no central executive, there was insufficient power to tax and
on, at the national level there was insufficient ability to
reign in the self interested and counter productive behaviors of
state governments that would do things like enact their own internal tariffs.
Engage in their own foreign policy.
and, and things of that sort.
Simply put the articles of confederation was no way to run a serious nation state.
And when the so the framers when they gathered in 1787 were trying to do two.
Things which are, were in tension then and remain in tension and
create some of our greatest constitutional debates.
They were trying to structure a government that was restrained and
protected individual liberty.
And the, these, those values remain important and
central to, to our constitutional tradition.
But at the same time,
keeping in mind the failures of the Articles of the Confederation.
They were trying to create a government that worked, and that had the strength and
efficiency and capability to address national problems on a national scope.
So, it's these conflicting impulses that we see today, even in debates say,
over the new Affordable Care Act passed a few years ago.
Which attempts to address national problems of health care on
a national scale.
And which has generated constitutional debate over individual liberties.
Even as it tries to address pressing health problems.
These debates don't go away.
They are essential to our constitutional culture.
And they, in a sense, date all the way back to these beginning principles where
the Framers tried to do, to do two very different things.
The most important Founding Father,
James Madison, was aware of this internal tension and expressed in, in writings.
In important writings called The Federalist Papers.
So Madison said in Federalist fifty one.
Quote in framing a government which is to be administered by men over men,
the great difficulty lies in this.
You must first enable the government to control the government, and
in the next place, oblige it to control itself.
Consider Madison's words in the context of our present,
present debates today which bear the same internal tension.
First, we want a government that is strong enough robust enough to
control the governed, governed and, and
effectuate legitimate solutions to the problems we face as a nation.
But we also want a governmental structure and we want a constitution that
controls the government itself and protects individual liberty, and
structures governmental decision making in a way that.
Promotes the optimal functioning of our democracy.
These are the things that the men who met here over two centuries ago struggled with
and attempted to strike a balance with.
And it's the very same balance that in our own constitutional debates and
interpretation we attempt to strike today.
Let me now turn to some specific choices the framers made in 1787 about
the document itself that still have major interpretation implications for
the way we think about the constitution.
So what is unique about the actual text of the constitution?
The first thing that's unique, and
that we take for granted a bit, most countries in the world have now, finally.
Followed our lead on but
was very unique in 1787 was the very fact of a written constitution.
Lots of countries including perhaps most notably Great Britain,
have long constitutional traditions.
But until very recently those traditions and the constitutional culture and
rules of those societies.
Were not captured and collected and written in a single short document.
Another unique feature about the US Constitution is not just that it
was written but how few words the framers used in their writing of it.
The Constitution comes in at just over 4,000 words,
which is remarkably short by comparison to other constitutions in the world.
Compared to the longest constitutions we see both around the world and
in our own state governments.
The US Constitution is remarkably short, again, at just over 4,000 words.
By comparison, the Constitution of the nation of India in it's English language
version is almost 120,000 words long and
even that isn't the longest constitution that we have in this library.
That would be the Constitution of our own state of Alabama.
Which clocks in at over 300,000 words.
By this standard of course,
then to use a few thousand words as the framers of the US Constitution did
to set up an entire government structure is incredibly sparse.
And that very brevity, I has clear interpretive interpretations.
With so few words there was no time for definitions clauses, or
lengthy explanations of the key constitutional provisions.
Instead our core constitutional guarantees, and our
core structural provisions that structure government, are laid out in clear, but
very sparse terms, which indeed I would invite subsequent generations to.
Interpret and, and put substance in to those sparse phrases.
This is something I'll talk more about in this segment.
Not only is the US Constitution extremely short,
it's also extremely difficult to change.
It is among the World's Constitutions, the hardest to amend the text.
The provisions for amendment are set forth in a very short
provision of the Constitution called Article V and the most important point is
they require extreme super majority approval by the US states.
By super majority I mean far more than 50%.
Indeed three quarters of the individual states.
Need to consent in order for
any amendment to be made to the text of the Constitution.
What this means is the text is extremely difficult to change.
The difficulty in amending the Constitution carries with it
extreme interpretive implications.
Because the text is so hard to change in order to update constitutional meaning.
With a text that is largely set in stone.
The interpreters of the Constitution led by the Supreme Court,
occasionally must revise or update their understandings of constitutional meaning.
This is something we see over time, over the generations at the Supreme Court, and
it's a central part of out constitutional culture,
that the text itself stays the same.
While the legal interpretation of that text changes over time.
Relatedly the US constitution is the oldest continuously operating
constitution in the world.
As I alluded to before and will return to at the end of this segment.
Written constitutionalism backed back a strong supreme court,
is becoming the world's norm.
But for most countries it's a phenomenon that has happened only in
the past century.
The US with a constitutional tradition stretching back over two centuries
has a much longer process of institutional development than other countries,
which itself is a key feature of our constitutional culture and
it affects interpretation even to the present day.
All of these variables that I've been talking about.
The writtenness of the Constitution, its extreme brevity, its age, the difficulty
in changing the Constitution, combine with yet another feature about any kind of
written language, which is the inherent ambiguity of language.
And this is a short a Constitution, in the United States, which contains.
Some phrases which are very vague and don't come with definitions clauses, and
I'll show you some examples.
Some parts of the Constitution are written in language that is crystal clear,
even today.
And generally, most readers of the English language would agree in what it means.
Many other parts of the Constitution, including some of the very most
important Parts, are written in language that was extremely vague then and
remains Extremely vague and compels subsequent interpretation.
So for instance the Constitution contains a very clear requirement about the age of
the President.
It says, no person shall be eligible to be President who
shall not have attained the age of 35 years.
That's clear, it was clear when it was written.
And it would be clear today where any controversy over that to occur.
But consider another phrase also from article two which says,
the executive Power should be vested in President.
This is one of the most crucial foundations of the modern
bureaucratic state.
This power, the executive power, on which our entire administration is
founded with almost a million employees virtually everything, everything we
think of as the federal executive branch its authority rests on this clause.
Yet the basic phrase here, the key operative phrase,
executive power, is not defined anywhere in the Constitution.
In order to give meaning to that, what judges and other participants in
constitutional debates have had to do over the past 200 years is contest, debate, and
fill in their own interpretation of what executive power means.
Likewise in the key provisions that protect our individual rights,
some of the most important phrases are inherently vague and ambiguous.
The eighth amendment prohibits excessive bail.
What does excessive mean?
It prohibits cruel and unusual punishments.
What's cruel to one person may not be cruel to somebody else.
These are clauses that come without definitions and
without explicit user instructions, and this is important and
this was intentional by James Madison and the other framers.
They did not want a document that would be fixed in time with explicit.
User code, instead, they envisioned a document where each
generation would supply its own definitions for these grand, but
yet inherently vague provisions in the Constitution.
So, how has,
how have subsequent interpreters given meaning to these clauses?
And here I bring in a concept I mentioned a few minutes ago.
Namely the notion of institutions and
institutional development in the American Constitutional traditional.
We have in our constitutional order a predominant institution for, for
giving meaning to the Constitution.
it, we, it's called the US Supreme Court.
And although it wasn't perhaps envisioned as such by the framers,
very early on in America's constitutional development the Supreme Court became
the leader institution that gave meaning to the vague phrases of the constitution.
Historically I want to mention Chief Justice John Marshall.
The first great chief justice of the US Supreme Court,
who served for the better part of the early 19th century.
Marshall and his colleagues on Supreme Court in this era where the ones who
began giving the Supreme Court the prestige that it
enjoys today as the leading interpreter of the Constitution in the US.
And Marshall had a very specific vision for interpreting the constitution.
He said in the leading early case of McCulloch versus Maryland.
We must never forget it is a Constitution we are expounding.
Now what does that mean?
He was distinguishing constitutional interpretation from the interpretation of
many other sorts of legal documents.
Ordinary consumer contract ordinary statutes and
regulations, wills and trusts, the ordinary stuff.
Of law that judges and other people deal with on a daily basis.
The Constitution in Marshall's vision was something different,
and it was something that was intended to endure for much longer.
Recall what I said about the extreme brevity of the Constitution.
And the fact that it doesn't come with definitions clauses.
For Marshall, as for many people who have followed him, what this means is that
judge and other interpreters of The Constitution over time need to
supply their own interpretive effort and interpretive analysis to these clauses.
Moreover although The Constitutions text
remains fixed it's interpretation does not.
And here we see Marshall arguing that it would be unwise to provide
immutable rules which would lock constitutional meaning in place.
Instead Marshall and many who have followed him argue for
more evolving constitutional culture.
So given the necessity of subsequent interpretation in our
constitutional tradition, who does the interpreting?
Which institutions, which people?
The central point is that interpretation is diffused, pluralistic, and
multi-faceted in the US constitutional tradition.
Yes, the Supreme Court has come to be the leading constitutional interpreter, but
by no means is it the only key institution infusing the constitution with meaning.
In the earliest days of the american republic, the supreme court was largely on
the sidelines, instead, the most heated debates took
place in the halls of congress, in the chambers of state legislatures, and
in the public square itself, the public and the media of the 19th
century being explicitly and intently involved in constitutional interpretation.
So to today, although the US supreme court has ascended to a predominant place in
American constitutional interpretation, by no means is it the exclusive interpreter.
And on some issues,
it is not the most important interpreter of constitutional meaning.
What has happened over the past 200 years through the rise of what we call
strong form judicial review, is that the court has attained a pre,
predominance in constitutional interpretation to agree,
to a degree that the framers probably didn't foresee.
And this started to happen early on and
indeed John Marshall, once again, was a key architect of this strategy.
In a famous case in 1803 called Marbury versus Madison Marshall for
the first time asserted the proposition that it was the Supreme Court.
Who was tasked with giving meaning to the Constitution.
Marshall said it is, it is emphatically the province and
the duty of the judicial department to say what the law is.
I've spoken about the institutions that give the Constitution meaning to return to
one last point that I alluded to minutes ago.
Let me speak about the role of two centuries of time and
historical development in creating the constitutional culture we have today.
Here I would focus on three separate Supreme Court cases,
separated by almost two centuries.
The first of these was the case of Worcester versus Georgia.
This case, arising in 1832.
Involved a review of the state of Georgia's forced expulsion of
the Cherokee Indian tribe.
Georgia had enacted policies in taking steps
to oust most Cherokees from the borders of their state.
And this was in violation the Supreme Court held of various laws and
treaties of the United States.
Georgia was acting unlawfully in doing this [FOREIGN] the Cherokees.
What happened in the aftermath of that decision was telling about the weakness of
the Supreme Court in this prior century.
As history tells us President Andrew Jackson allegedly said,
John Marshall has made his decision, now let him go enforce it.
And, of course the justices of the court had no means of enforcing this.
And what happened is the sad story that the Cherokee tribe was indeed ousted from
Georgia despite the fact that they had won a legal victory in the Supreme Court.
It was an empty victory because the other institutions in American life, which would
have had power to enforce that decision against Georgia stood on the sidelines and
let Georgia unlawfully oust the tribe from its borders.
Very different story with the passage of a hundred years later.
And another contested decision also involving another southern state.
Cooper versus Aaron involved efforts to integrate the little rock
Arkansas schools.
Just a few years after the landmark Brown versus Board of Education decision
in 1954.
The law of the land as articulated by Brown and subsequent supreme court
cases was that, deseg, er, segregated schools were illegal.
And that the African American students who wished to attend high school in
Little Rock, had an airtight constitutional right to do so.
But again, the opinions that the supreme court issues are merely words on
a piece of paper.
As we saw in the Cherokee Indian case with Georgia without enforcement from
other parts of society, those words would be idle victories indeed.
What happened in Cooper ver, after Cooper versus Aaron though,
tellingly, was President Dwight Eisenhower mobilized the 101st Airborne,
sent troops down, sent federal troops down to Little Rock.
Who stood guard over the Little Rock High School and ensured that
the African American students who had won their legal victory had that translated
into the actual victory of being able to attend school in Little Rock.
So the Supreme Court's legal ruling was accompanied by immediate acceptance and
enforcement by other branches of government.
And we saw this even much more recently in the hotly contested
Bush versus Gore decision involving the 2000 presidential election.
Both sides claimed victory in the election.
Both sides claimed to have the law on their side.
But the minute that Vice President Al Gore had been declared to have
lost the election by the Supreme Court in a very controversial decision within a day
of that decision, Vice President Gore was on TV conceding the election and,
and allowing a peaceful transition of power to President George W Bush.
Something that would not happen in certain other countries even today and
would not have probably happened in the United States in the earliest days
of the Republic.
The point being we've had the text for over 200 years of our constitution.
We've had the Supreme Court for over 200 years, but
this nuanced and sophisticated acceptance of the role of the Supreme Court.
And the enforcements of its decisions in our constitutional culture is something
that it took quite a bit longer to attain.
And this is a lesson and an instructive one I think for those who say that
US constitutionalism is being exported around the world to other countries.
It is true that that is being done, but
to truly export, the US constitutional structure.
We need to do much more than export the text.
Instead, we need to export the text and the institutions, and
in some cases, perhaps wait for
the passage of time in other nations that don't have a constitutional tradition in
order to have the kind of framework that we have here.
[MUSIC]
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