Prof. John Blakeman ACE Lecture #3: Constitutional Politics and Constitutional Interpretation

Oh, welcome back. I’m glad you could join me again. I’m professor John Blakeman from the UW- Stevens Point Political Science Department and this is my ongoing lecture series on the U.S. Constitution sponsored by the UWSP Alumni Association and their Alumni College Experience

And so this is lecture number three, what I call Constitutional Politics and Constitutional Interpretation and this should give you hopefully a broad overview on some of the classic ways we argue about the meaning of the Constitution, that’s something that we will cover in

In lecture four as well, and it’s also an introduction to what I call Constitutional Politics, which is our ongoing give and take about what the Constitution means and how it applies. Now the book I’m reading, you know sort of a shameless plug,

But if you’re interested in reading a lot more about the founding era of the constitution and reading the writings of federalists like Alexander Hamilton and James Madison or even anti-federalists. About 25 years ago the Library of America released a two-volume set called “The Debate on the Constitution”

And I would highly recommend it. Okay let’s get underway. Institutional Politics. Understand I’m trained as a social scientist and so I tend to approach Constitutional law not only from a legal standpoint but also from a political standpoint simply because the the Constitution guides our public policy

And as we will see, our basic political institutions often have differing interpretations of the Constitution and so when I talk about Constitutional Politics, what I mean is in part the Constitution is a political document. It creates our national political system and it emerged from a very political meeting, the Constitutional Convention, which as

Scholars have noted the Constitutional Convention was a bundle of compromises. It was a series of compromises between delegates from the 13 original states, well actually 12 original states because one state did not bother to send a delegation, but they didn’t always agree on what the Constitution

Outcome should be and so they had to compromise on many different things. Now the Constitution itself is silent about who should interpret it and how it should be interpreted. Now later on we will come across a very famous case: Marbury VS. Madison,

1803, which I bet you’ve heard of Marbury. That’s where the Supreme Court declares that it has the power of Judicial Review, it has the power to interpret the Constitution and tell us what it means and it’s been that way for over 200 years but the document itself is silent about who should interpret

The Constitution and how the method of interpretation and so that leads to a lot of political debate. It leads to ongoing political, legal and constitutional debates over what the Constitution means and that’s just a fact of American political life. Some people like that; other people hate it. But the fact is

As we’ll see, any political era, there’s going to be sometimes very profound disagreement over what the Constitution means. Now who interprets the constitution? Well Marbury VS. Madison tells us that it’s federal judges and the U.S. Supreme Court, especially since the Constitution is a fundamental law

And the role of judges in our constitutional system is to interpret the law. There are two concepts here worth mentioning. One is Judicial Review and Judicial Review is simply the power of a court to review a law as to whether it’s constitutional or not. Now at the federal level, federal courts

Exercise Judicial Review frequently, they frequently review federal laws for their constitutionality, they can also review state laws for their constitutionality. Judicial Review exists at the state level as well, every state has a Supreme Court and every state Supreme Court will exercise some type of Judicial Review

Over state law, sometimes even federal law. Judicial Supremacy is a different concept, this is the argument that when it comes to interpret the Constitution, judges are supreme and especially the U.S. Supreme Court and Judicial Supremacy means that the U.S. Supreme Court has the final say on what the

Constitution means. Now that’s controversial, you make up your own minds to be sure, but over 200 years of political experience we’ve pretty much accommodated ourselves to the idea of Judicial Supremacy, that the Supreme Court has the final say. There are a couple of exceptions where

We have amended the Constitution to overturn a Supreme Court decision on the Constitution but that’s very very rare. There’s another concept to think about here too, what we call Coordinate Construction and we have to remember that the Judiciary, Congress and the Executive branch are co-equal, in our constitutional system they are

Meant to be equal to each other. Now you know one branch may have a check or balance over the power of another branch of government, absolutely, that’s what the separation of powers is. That’s what checks and balances means, but the separation of powers also means that each of the three branches

Is equal to the other two and of course that means when it comes time to interpret the Constitution, judges interpret the Constitution, members of Congress do as well, Congress as an institution interprets the Constitution, the Executive branch always has to interpret the Constitution and we are often caught up in conflicts

Over whose interpretation matters the most and sometimes that’s a really hard question to figure out. Now other things to think about: who interprets the constitution? Well judges do, Congress does, the Presidency does, Executive Agencies do, so not only the President, the White House or the

Executive Office but the IRS which is an agency has to interpret the Constitution from time to time, Health and Human Services has to interpret the Constitution, the Agriculture Department has to interpret the Constitution. It’s not so noticeable in the public’s eye, generally speaking, but Executive

Agencies have to have to figure out what the document means, what constitutional principles are important and guiding when they implement public policy. Interest groups interpret the Constitution. The American Civil Liberties Union, the ACLU, very focused on the free speech clause, freedom of expression, the NAACP, National Association for the Advancement of Colored People,

Has litigated a lot of 14th amendment discrimination equal protection cases, the National Rifle Association has litigated a lot of second amendment cases. Interest groups really matter and our constitutional politics are sometimes driven by how interest groups view constitutional interpretation as well. Don’t forget the states, we’ve got 50 states,

Several territories states litigate, states interpret the federal Constitution as it applies to them. Then there’s us, We the People, we have to interpret the Constitution as well. We have to figure out on our own what we think the document means, now of course

We should rely on judges, we should rely on Congress, we should rely on Presidents, interest groups, state governments, but at the end of the day we also have to engage in this process and that’s fine. We should argue with each other about what the Constitution means, we should do so peacefully, absolutely,

Respectfully, but yeah we should focus on how we interpret the document as well. Then others? I don’t know, foreign governments who diplomatically engage with the United States, they have to think about what our Constitution means from time to time especially when they are interacting with the U.S. State Department on a Treaty issue

For example. So there are others I’ve left out to be sure, but yeah this might give you a different perspective. So when it comes time to interpret the U.S. Constitution, it’s not just the Supreme Court and judges. We do rely on them mostly and that’s fine but all of these other institutions and

Agencies and actors have something to say as well.

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