Constitutional Law

This is the beginning of an ambitious project in which we will discuss constitutional law principles for laymen. The American constitution is a rather remarkable document. In one sense, it is not the first "constitution," for the English homeland had a constitution, in one sense, composed of various documents negotiated between King, nobility, landed aristocracy, and Parliament, over the course of English history. And so, when the founders began to draft the Constitution, they were not inventing from scratch the concept of an organic constitutional document. Nor was this document the first constitutional document in our own history, for the founders were replacing the covenant which bound the colonies in a loose confederacy. And yet, in many respects, the Constitution which forms the basis of our democracy, was a watershed in world history, for it laid the foundations of our government in one central organic document.

Our Constitution has been viewed through many prisms. For some, it represents the Rock of Gibraltar, upon which the greatest most vibrant democracy has been built. In the first part of the twentieth century, economic historians began to view our constitution as an instrument by which certain economic interests united to create conditions for economic growth and power. Some were excluded from the Constitution's basic protections, and for them the Constitution seemed perhaps less perfect. The Constitution only recently afforded fuller protection to blacks, Indians, women, and the economically powerless. Despite these limitations, our Constitution has adapted with our national evolving recognition of democracy, civil rights and human dignity. At times the Constitution has served as an enemy of progress and a protector of undeserving privilege; yet at other times, our organic Constitution has fostered needed reform and change. Our Constitution is organic, because it has remained flexible enough to evolve with social norms, yet solid and durable enough to prevent the whims of a transient majority from destroying democracy.

Seventeenth Century Foundations. If you wish really to understand the thinking of the founders, you should read the history of Europe in the seventeenth century, the age of Louis XIV of France, of the Catholic and protestant thinkers, of Cromwell the English Parliamentary Dictator, and of Newton, the physicist and mathematician. During that century, monarchs of every faith persecuted mercilessly religious minorities of every other faith. In that century, a Parliamentary revolution became itself despotic and intolerant persecutors. Our founders learned from recent history to fear both unchecked power of monarchs and of popular representatives. From Newton and others the founders gained a tremendous respect for natural law. For them, the recent discoveries of astronomical and physical laws, and their mathematical underpinnings. seemed to reveal the hand of god expressed in the form of natural law and natural rights. They began to believe that just as the planets revolved around the sun according to astronomical laws, so there also existed "laws of nature and of natures God" which guaranteed the fundamental rights of man.

Two Branches. Our study of the constitution forms two branches. One branch focusses upon the structure of government, the three branches, the checks and balances, the powers conferred upon government, and the constitution an economic instrument of national progress. The second branch focusses upon the constitution as protector of individual rights and liberties, and the manner by which the federal rights became applicable to the states via the fourteenth amendment.

It will take a while to complete this project. We practice law for clients, of course, and we add to this project bit by bit. We hope you visit us from time to time to watch our project grow.