The National Constitution Center

A few years ago, whilst on a family holiday in Pennsylvania - we drove down to Philadelphia - and part of that visit involved a tour of the National Constitution Center. Well worth a visit - though as with many buildings at the moment - it is closed during the Coronavirus Crisis.

However the work of the Center continues. There are some excellent resources available online. I spent some time exploring what is currently available - and was excited at what was available. The website to go to is https://constitutioncenter.org

I was particularly impressed by the range of videos available - which you can access here.

Separation of Powers

The US Constitution is built upon the foundation of a separation of powers. Montesquieu (pictured above), amongst others, had highlighted the importance of ensuring that the differing functions of legislating (making law); executing the laws (carrying out the laws and providing day to day administration) ; and judging - both interpreting the laws and deciding in invidual cases - should be in the hands of separate groups of individuals. Hence a member of Congress cannot be at the same time a member of the Executive (serving the President) or a member of the judiciary.

On the face of it, Britain seems to show a fusion, rather than a separation of powers. The doctrines of ministerial responsibility are based on the principle that Government Ministers will also be members of either the House of Commons or the House of Lords. The Lord Chancellor was for centuries a member of Parliament (almost invariably in the House of Lords); the presiding officer and major player in the Lords; a member of Cabinet and an active judge.

However - it is useful to remember that Montesquieu actually praised Britain as a shining example of 'separation of powers'. It can be fairly described as a major principle of the British system. True fusion of powers ended with the decline of absolute royal power. 

The House of Commons Library have produced an excellent paper on separation of powers. It is available here. Students of UK Constitutional Law (including Open University W201 course) will find that the process of condensing the information in this paper will assist their revision immensely.

The Framers' Coup

Yesterday I visited the beautiful city of Oxford. I attended a meeting in Christ Church at which Michael J Klarman of Harvard University set out the story described in his forthcoming book "The Framers' Coup: The making of the United States constitution".  The story of the making of the Constitution is itself an interesting one - I've read quite a few books about it, and visited the National Constitution Center in Philadelphia (I would recommend à visit if you find yourself in that Historic City).

Klarman addresses the issue of why the members of the convention were able to successfully produce and have ratified a constitution which exceeded all expectations. In particular it shifted power from the states to a new, and as we have seen, ultimately very powerful federal Government.It also put a brake on some of the more democratic and revolutionary ideas that were current.

He began by setting out the expectations - which he argued were that the states would retain their supremacy and that democracy would be extended. Yet the federal government ended up with extensive powers over taxation, commerce and the military. Ideas intended to increase democracy - such as short terms of office; direct elections; and powers of instruction, recall & term limits were watered down or rejected.

The second issue is how these outcomes were achieved. If the analysis in the book is as clinical and extensive as in Professor  Klarman's presentation - then students of political behaviour and strategy (like myself) will find the book a valuable investment.

The third and final part of the talk addressed the question of how ratification was achieved.

The book is due to be published in November. Online orders are being taken now at www.oup.com/uk/politics - and I'll be ordering a copy today.

Dicey's Second

Creating a Constitution

To better understand constitutions, it can be useful to look at a real-life creation of a national constitution.

The classic example is the US Constitution - which was discussed at a convention held in 1787. There is an excellent set of resources at http://teachingamericanhistory.org/convention/. Although it was a closed-door convention (because the view was that deliberation would be enhanced if members felt free to express their honest opinions, rather than be looking over their shoulders to avoid criticism) - James Madison made extensive notes - so we can follow what was said and done. The key issues are also discussed in the Federalist Papers. (Very useful for anyone studying Constitutional Law - not as a description of a constitution - but food for thought about what matters need to be addressed. I'm recommending it to my W201 students!)




A recent C-SPAN programme on James Madison and his role in the creation of the US Constitution can be viewed here.

Amending the Constitution

In most states, special procedures are required to change key features of the Constitution. Take a look at the "barriers" to amendment which some Constitutions put up.

US Constitution - Art V

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

French Constitution Art 89

"The President of the Republic, on a proposal by the Prime Minister, and Members of Parliament alike shall have the right to initiate amendment of the Constitution.
 
A government or a Member's bill to amend the Constitution shall be passed by the two assemblies in identical terms. The amendment shall have effect after approval by referendum.

However, a government bill to amend the Constitution shall not be submitted to referendum where the President of the Republic decides to submit it to Parliament convened in Congress; the government bill to amend the Constitution shall then be approved only if it is adopted by a three-fifths majority of the votes cast. The Bureau of the Congress shall be that of the National Assembly.
No amendment procedure shall be commenced or continued where the integrity of the territory is jeopardized.

The republican form of government shall not be the object of an amendment."

But in the United Kingdom - no such requirements are in place. Parliament could amend ANY rule or principle of the, so-called 'unwritten constitution', through an Act of Parliament. A Judicial decision could also alter the workings of the British Constitution. Conventions - an important 'source' of the Constitution - change or even develop or die through the actions of individuals.

See tomorrow's post (19th February) about current proposals for UK Constitutional Reform.

Independence Day

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

My great fear is that this sacred day has become, for some, a day of mindless flag waving - the celebration of a secular cult of "America". As the famous words quoted above make clear - it should be about the revolutionary ideas which led to the establishment of the United States.

"All men are created equal" - an idea which was revolutionary. The Romans had their slaves. In the Middle Ages feudalism was based on a hierarchy with Monarchs at the top and unfree people at the base. The British Parliament was divided into two Chambers - one for the Lords and one for the representatives of the "Commons" - but only a tiny proportion of the people had a vote.

Of course, the implications of this revolutionary idea were resisted. The USA retained slaves - and the last few days have just seen the 150th anniversary of the Battle of Gettysburg - afterwards on the site of the battle, Lincoln spoke of "the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.". Today, slavery continues to exist. Inequality has increased - while a very rich, very powerful elite grow ever richer and are able to "buy" political influence (and avoid contributing to the 'common wealth') - the rest of us have to work harder, for longer (if we can get a job in the mess that has been left after the (predictable) failure of neo-liberal economic theories). There are unforgiveable disparities between the life expectancies of the rich and the poor - even within the "wealthy" countries. It is time to renew again the fight for "equality".

I have to admit to being angered by those who boast of their 'conservatism' and claim to be the inheritors of the spirit (and Constitution) of the Founding Fathers. They mouth the words, but deny its application. America was founded on the principle of "Equality". I was so pleased to hear the rationale given in US v Windsor.

"DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954).  The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Depart­ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633).  DOMA cannot survive under these principles."

We need to face down those who claim to be constitutionalists, who actually reject the principles which motivated the founding fathers.

The other principle central to the Founding Fathers' thought (also rejected by these people) is the idea of the positive value of 'government'.  The Declaration of Independence puts at the heart of its argument the idea that "to secure these rights, Governments are instituted among Men" - and the Constitution's preamble states "We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America"

Happy Independence Day!



Rights

In the past slavery and serfdom have been facts of British life - some of our fellow human beings were regarded as less than fully human.

But in more enlightened times, it was recognised that whatever a person' gender; race; class; natural intelligence - there were certain rights that they should enjoy.

It is sometimes worth reflecting on what those rights are. Over recent centuries attempts have been made to identify and list those rights. It's worth looking at some of those documents, and reflecting on why those rights are so important.

Declaration of the Rights of Man and the Citizen (France, August 1789)

Declaration of the Rights of Man and the Citizen (France, 1793)

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" - US Declaration of Independence (1776) - and the amendments to the US Constitution

Article [I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article [III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article [IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article [V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article [VI]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article [VII]

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article [VIII]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article [IX]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article XIII

Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Article XIV

1:  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article XV

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Article [XIX]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment XXIV

1.  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Amendment XXVI

1 The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Universal Declaration of Human Rights (1948)

European Convention on Human Rights (1952)

I've always been a big fan of the US Constitution - and the US Congress - yet today I am thoroughly ashamed of the House of Representatives.

This story in CQ Roll Call's Daily Briefing is what has upset me:

The House voted this morning that all terrorism suspects — even American citizens captured on American soil — should be subject to indefinite detention without any trial, either in a military tribunal or a federal court.

A solid majority was in favor of abrogating constitutional rights in this essentially unprecedented way — a clear sign that anxiety about the terrorist threat remains a more pressing political force a decade after Sept. 11 than the need to protect the voters’ civil rights. The 238-182 vote rejected the impassioned arguments from both of the libertarian ends of the ideological spectrum, in which both liberal Democrats and tea party GOP conservatives warned that current law already gives the government way too much power to enter people’s homes, arrest them and hold them indefinitely — and that the defense authorization bill the House is on the cusp of passing would make matters worse. These lawmakers note that, under the bill, American citizens could be jailed indefinitely for even a one-time contribution to a humanitarian group that’s later linked to terrorism.

The vote turned back an amendment by the top Armed Services Democrat, Adam Smith of Washington, to strip out much of the language on detainees that Republicans had added to the bill; he and Republican Justin Amash of Michigan pressed ahead with their efforts even though, late last night, the handwriting for their defeat went on the wall when the House voted (with a 78-vote spread) that detainee trials should as always be held in Guantánamo Bay and never in the United States.
 
Today's photo is of the monument erected by the American Bar Association at Runnymede - the site of the signing of the Magna Carta in 1215.

US Congress

Monday was President's Day - so this week will see the Chambers in the US Capitol Building silent. Actually that's not true, there will be regular tours (I've assisted with one tour - though my regular experience is with tours of the Palace of Westminster) going through the chambers - and as a former parliamentary staffer, I know that a "recess" doesn't mean that work halts (I remember the occasion when one MP walked into his office just as the House had risen for the summer recess and declared - "now that's that's over, we can get down to some work"!).

One of the values gained from reading the US Constitution is that a clearer picture can be gained of the 'architecture' of the institutions. The Constitution sets out the roles of each institution (Art 1 Section 1 - "All legislative powers shall be vested in..."); its powers - see Art 1 Sect 8; it's makeup (the bodies within the institution - Congress = House of Representatives + Senate) - and who is eligible to be a Member (both in terms of qualifications and election)...

Have a read of Article One

What's the point of Government?

Watch the video from The West Wing - http://youtu.be/XyygC0VN9vU. The key dialogue is -

BARTLET: [sits] What's on your mind?

TOBY: [reading from the draft 'State of the Union Speeech'] "The era of big government is over".

BARTLET: You want to cut the line?

TOBY: I want to change the sentiment. We're running away from ourselves, and I know we can score
points that way. I was the principle architect in that campaign strategy, right along with you, Josh. But we're here now. Tomorrow night, we do an immense thing. We have to say what we feel. That government, no matter what its failures are in the past, and in times to come, for that matter, the government can be a place where people come together and where no one gets left behind. No one... gets left behind, an instrument of... good. [pause] I have no trouble understanding why the line tested well, Josh, but I don't think that means we should say it. I think that means we should... change it.

As the preamble to the US Constitution says -

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." - some compelling reasons for establishing a Government.

Constitution 3.0

From the Brookings Institution, Washington DC

Technological changes are posing stark challenges to America’s core values. Basic constitutional principles find themselves under stress from stunning advances that were unimaginable even a few decades ago, much less during the Founders’ era. Policymakers and scholars must begin thinking about how constitutional principles are being tested by technological change and how to ensure that those principles can be preserved without hindering technological progress.


Constitution 3.0, a product of the Brookings Institution’s landmark Future of the Constitution program, presents an invaluable roadmap for responding to the challenge of adapting our constitutional values to future technological developments. Renowned legal analysts Jeffrey Rosen and Benjamin Wittes asked a diverse group of leading scholars to imagine plausible technological developments in or near the year 2025 that would stress current constitutional law and to propose possible solutions. Some tackled issues certain to arise in the very near future, while others addressed more speculative or hypothetical questions. Some favor judicial responses to the scenarios they pose; others prefer legislative or regulatory responses.



Here is a sampling of the questions raised and answered in Constitution 3.0:



• How do we ensure our security in the face of the biotechnology revolution and our overwhelming dependence on internationally networked computers?

• How do we protect free speech and privacy in a world in which Google and Facebook have more control than any government or judge?

• How will advances in brain scan technologies affect the constitutional right against self-incrimination?

• Are Fourth Amendment protections against unreasonable search and seizure obsolete in an age of ubiquitous video and unlimited data storage and processing?

• How vigorously should society and the law respect the autonomy of individuals to manipulate their genes and design their own babies?


Individually and collectively, the deeply thoughtful analyses in Constitution 3.0 present an innovative roadmap for adapting our core legal values, in the interest of keeping the Constitution relevant through the 21st century.



Contributors include: Jamie Boyle, Erich Cohen, Robert George, Jack Goldsmith, Orin Kerr, Lawrence Lessig, Stephen Morse, John Robertson, Jeffrey Rosen, Christopher Slobogin, O. Carter Snead, Benjamin Wittes, Tim Wu, and Jonathan Zittrain.

To Order from the USA
To Order in the UK or Europe - Go here & search for "Constitution 3.0"; Publisher (from drop down list) "Brookings"

US Constitution - Art V

Article V of the Constitution deals with the procedure for amending the Constitution.

The key points are - Congress may propose amendments - if two thirds of each House agree; or two thirds of the state legislatures call a Convention for the purpose of amendment. (This last procedure has never been used)

Any such amendments proposed must be ratified by the legislatures of three-fourths of the States (38 states at present)

Twenty Seven Amendments have been passed. The first ten are referred to collectively as "the Bill of Rights". The 18th Amendment introducing prohibition was repealed by the 21st Amendment. An article on "failed amendments" can be accessed here.

US Constitution - Article IV

The Fourth Article contains directions for the States which together constitute the United States of America. This is not the most exciting Article - but is crucial for setting up the legal framework to enable the USA to work.

It is worth reading through this Article, and reflecting upon why each measure is considered necessary -


Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Clause 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. [note - this is affected by Amendment XIII]
Section. 3.

Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Clause 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The picture is of Virginia's State Capitol in Richmond.

Treason

The series on the US Constitution will resume on Monday 21st February.

Two hundred and three years ago today, Aaron Burr, who had been Thomas Jefferson's Vice President (in 1801-1805) - was arrested for treason. He was accused of preparing a private army to invade Florida, New Orleans or Mexico; or to lead a secession of the western states from the Union; or all of those things. He was aquitted.

Burr is certainly one of the more interesting, though often forgotten, characters in US History. His career swung between great heights, and deep lows. He served as a US Senator before becoming Vice President (and thereby President of the Senate). He lost his seat in the Senate after his first term - and tied with Jefferson in the ballot for the presidency after a remarkable comeback. He fought a duel with Alexander Hamilton, another of the great founders of the US - and killed him. He was indicted for murder in both New York and New Jersey - but escaped trial, eventually returning to complete his term as Vice President. After his aquittal for Treason he sailed to England hoping to gain support for a revolution in Mexico. He was ordered out of the country and traveled in Europe to Sweden, Denmark, Germany and Paris. There he tried to garner support from Napoleon. He returned penniless to the USA.

Treason as a term, covers the most serious acts of betrayal of one's country or sovereign. 

"Under the law of the United Kingdom, high treason is the crime of disloyalty to the Crown. Offences constituting high treason include plotting the murder of the sovereign; having sexual intercourse with the sovereign's consort, with his eldest unmarried daughter, or with the wife of the heir to the throne; levying war against the sovereign and adhering to the sovereign's enemies, giving them aid or comfort; and attempting to undermine the lawfully established line of succession."

A short biography can be read here.

US Constitution - Art III

An annotated version of theThird Article can be accessed here. The Supreme Court of the United States (SCOTUS) has its own website, with lots of information about its' history, makeup, procedure and cases.

US Constitution - Art II

An annotated version of the Second Article can be accessed here.

US Constitution Article 1

An annotated version of the text of Article I is available here.

US Constitution - The Preamble

A number of my students are this week studying thr principles behind Constitutional law. I'd like to welcome them to this short series on the US Constitution. But this blog is open to all - so even if you aren't a law student - I hope you find these brief pieces useful.

The US Constitution is an ideal document for studying the principles of constitutions. It is succinct - and logically deals with the key matters that a constitution should address - namely: who is to hold power - how are they chosen? who qualifies to be chosen? how long is their term of office? how can they be removed? what powers do they have? - and for what purposes? what limitations exist on the exercise of those powers? What are the 'checks and balances'? How can the rules be amended?

While this series concentrates on the US Constitution - I would encourage you to look at other constitutions - as a comparison - of structure, and of content? What do you think is essential? A database of constitutions can be accessed here. (Note - most have translations available - but you may need to look around the page of the national constitution to find the translated version link)

This first piece outlines the preamble.

Constitutions

I've been reading an interesting, though disturbing book, by Erwin Chemerinsky, called "The Conservative Assault on the Constitution". His thesis is that in the USA, Conservative judges have undermined constitutional freedoms (to privacy; to 'habeas corpus'; to protection against abuses by the Government and the (in this case inappropriately named) forces of law and order) - weakened rights arising from the 1st & 8th amendments - given a wholly new meaning to the 2nd Amendment - all for ideological reasons. It's a challenging book - and all American Law students ought to consider and debate its assertions.

For British law students - it highlights the fact that merely having a "Constitution" doesn't protect anything (the Soviet Constitutions are good examples of that). Rights must be enforceable in the courts (which requires access to justice) and enforced by the Judges. This book highlights the myth that judges are merely neutral umpires - their approach will be determined by their own ideology.

Chemerinsky makes some points worth reflecting upon. He says

"Most constitutional issues never occured to the framers. And even when there was discussion of such a question in 1787, there often was a sharp difference of opinion. [he gives the example of disputes between Madison and Hamilton - two of the key authors and defenders of the Constitution]"

"A second problem with trying to follow the original intent of the framers is that the world of 1787, or of 1868 when the Fourteenth Amendment [Equal Protection - amongst other things] was adopted, is so vastly different from our own that it often would be unthinkable to be bound by the original understandings of the earlier time."

Much material for thought, discussion...and essays on the advantages/disadvantages of a written constitution here!