[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]
