This course will highlight the construction and interpretation of the U.S. Constitution through the centuries. You'll learn the history behind the Constitution, cases that formed important precedent, and how changes in interpretation have been dependent on shifts in cultural and political climate as well as the composition of the Supreme Court. We'll start with an overview of the Constitution where we'll consider questions such as "Why the Constitution?" and "What function does the Constitution serve?" Next we'll examine how the Constitution and its subsequent interpretation established the powers of the federal, legislative, and judicial branches of government and allocated powers to the states. Join me as we look at the questions both raised and answered by the Constitution and those that interpret it! By the end of this course, you should be able to: - Describe how the structure of the United States government has been shaped by both the text of the Constitution and by subsequent interpretation and practice of political actors in all branches of government - Illustrate compromises found in the Constitution by citing examples and historic background - Articulate the importance of key cases such as Marbury v. Madison, McCullough v. Maryland, and Lochner v. New York - Explain how the outcome of cases is often dependent upon the current cultural and political climate as well as the composition of the court by citing particular cases and important shifts in the court's jurisprudence - Assess the relative suitability of various approaches to constitutional interpretation and analysis
Why a Written Constitution?
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来自 University of California, Irvine 的课程
Chemerinsky on Constitutional Law - The Structure of Government
37 个评分
University of California, Irvine
37 个评分
从本节课中
Lecture 1 - Why the Constitution?
In this module, we'll examine two facets of the critical question, "Why the Constitution?" First we'll answer the question, "what functions does the Constitution perform?" We'll then consider the question, "why achieve these functions in the form of a written Constitution?"
与讲师见面
Erwin ChemerinskyDean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law
School of Law
[SOUND] At the beginning of this part of the lecture,
I said I wanted to focus on two questions.
First, what functions does the constitution perform for society?
And second, why achieve these functions through a constitution?
We should not assume that a constitution was inevitable.
For example, in England,
there was not then and is not now a written constitution.
Most countries throughout world history prior to 1787 did not have
a written constitution.
It would be easy to imagine the framers of government designing it,
putting into initial law.
That law then could be changed like any other law, but
the constitution is different.
And so this requires asking the question,
why is the constitution different from all other laws?
And the answer to that is the constitution is different, because it's so
much more difficult to change than any other law.
Any law adopted by Congress can be modified or repealed by Congress.
Any law adopted by a state can be modified or repealed by the state legislature.
Any law adopted by a city council, any ordinance can be modified or
appealed by that city council, but
the constitution is intentionally made very difficult to change.
The process of amending the constitution is found in Article V.
Article V outlines
two different procedures that can be used to amend the document.
One of these has been used 27 times in all.
The other never has been used.
The procedure that's been followed thus far is Congress by
two-thirds vote of each house can propose a constitutional amendment.
It's then adopted, if ratified by three-fourth of the states.
This of course was the procedure that was used to adopt the Bill of Rights.
It's been used 17 times since 1791.
It's not very often.
In fact, when you think about it, two of those amendments since 1791 would
oppose the prohibition of alcoholic beverages and then to repeal prohibition.
Since 1791, only 17 amendments been added to the United States Constitution.
It is a tremendously difficult process.
The other right that article V outlines has been used even less.
It's never been used.
Article V says that two-thirds of the states can call for
a constitutional convention.
If two-thirds of the states do this, then Congress is to call a constitutional
convention, then that constitutional convention can propose amendments.
Those amendments are deemed ratified, if ratified by three-fourths of the states.
This is a procedure, as I said that's never been used though,
there have been calls for this.
A number of states, for example, over a fairly long period of time have called for
a constitutional convention to pose an amendment requiring a federal
balanced budget to prohibit congress from having budget deficits.
All sorts of fascinating unresolved issues arise.
Do the states have to call for a constitutional convention for a balanced
budget amendment in a specified period of time or if they do so over decades?
And that gets to two-thirds states is enough.
What if Congress doesn't call a constitutional convention even after
two-thirds of the states request one?
If Congress calls a constitutional congress into existence,
is it limited to the specific topic like the balanced budget?
Or can it focus on anything?
Could it do what the constitutional convention in 1787 undertook,
drafting a whole new constitution?
It will be interesting to see if this procedure ever was used to this point,
only the former procedures than the one applied to amend the constitution.
So if I convinced you that what makes the constitution different
from all other laws is that it's much more difficult to change,
I then get to a profoundly important question.
Why constitute our government in our political system?
And the documents are difficult to change.
We regard our society as a democracy.
And democracy seems, if nothing else, to include a conception of majority rule.
Yet, no one alive today ever ratified,
participated in the ratification of the Constitution.
Probably most of us today who are in the United States
didn't have relatives in the country back in 1787.
So why should a nation that thinks of itself as a democracy
be governed under a document written two and a quarter centuries ago,
and that's intentionally made so difficult to change.
Even if a majority of society wanted to change the constitution,
that wouldn't be enough.
You need the super majority, two-thirds of both house of congress,
three-fourths of the states.
My answer to this question is that the framers knew from world history
that especially in times of crisis, there's a tendency to want to centralize
power to be a tendency to engage in repression.
They wanted to put the most basic values
in a document that was intentionally difficult to change.
And so, they put the things like structure of government.
Allocation of powers to the federal government and the states.
Individual liberties Into this document that was very difficult to change.
In this sense to quote Harvard Law professor Laurence Tribe,
the constitution is an elaborate edifice to make sure that our
short-term passions don't cause us to lose sight of our long values.
I've often found a persuasive analogy in a story from
Homer's Odyssey, the story of Ulysses and the siren.
According to Homer, there was a siren that had
a beautiful song and sailors would be lured to it.
They would crash their boats on the rocky shoals.
Ulysses wanted to hear the siren song, but obviously for it to not cause his death.
And so Ulysses said, he would have his sailors
tie Ulysses to the mast, so he couldn't steer the boat to crash.
And he had the sailors put wax in their ears, so they could not hear it.
What Ulysses was doing was tying his hands, so
he wouldn't be lured by the siren's song.
I think the constitution is the way in which society ties its hands.
The way in which society tries to make sure that in times of crisis,
it's not lured by the siren of repression or the siren of centralizing power.
In this sense then, it's possible to appreciate why
the constitution is intentionally made so difficult to change,
but in these races equally profound questions in evaluated in constitution.
Has the constitution succeed or
is it failed over the course of American history?
Obviously, the answer is to be both.
The constitution has succeeded in creating more freedom for a longer period of time,
for more people, then any other system of government in the history of the world.
And yet, their ties with the constitution is deeply failed.
When we think of the slavery that existed from 1787 to 1865.
When we think of how the supreme court proclaimed and
enforced the doctrine of separate, but equal that led to segregation of
every aspect of southern life and life in many northern states.
When we think of the supreme court upholding the evacuation and
internment of Japanese Americans.
100 and 10,000 Japanese Americans, 70,000 citizens during World War II.
When we think about the supreme court failed to stand up to the repression of
the McCarthy era and we think of things going on today,
we see the value of the United States Constitution.
And so I challenge all who are watching and listening this lecture,
throughout all of what I'm talking about, to think about to what extent has
the constitution succeeded or failed in this enormously important task?
And to the extent it's failed, why?
And what might make it
better?
