Extinction.

We realize that more perfect union necessarily has many more meanings, discovered and still undiscovered, for us today. The words express the hope that 50 states covering an abundant swath of planet earth’s surface can cooperate. There is of course nothing simple about the challenge of cooperation between the governments of 50 states and the federal government. But this is part of what the endless work of forming a more perfect union entails. Today, more perfect union involves whether states can cooperate with each other and with the federal government over the biggest problems of our times, including a pandemic, economic crisis, public health, social justice, climate change, gun violence, terrorism at home and abroad, immigration and a long list of other pressing issues for humanity and our life on earth.

In July, 2020, protestors and local officials in Portland, Chicago, Seattle, Washington, D.C., Albuquerque, N.M., Louisville, Ky., Kansas City, Mo. and other American cities decried the Trump Administration’s use of federal force in cities dealing with protests and violence in the wake of the police killing of George Floyd. In the disorienting summer of 2020, amid pandemic, recession, racial tension, protest, violence, and heated calls for police reform, the stressors on federalism are manifold. The Preamble’s more perfect union is a dream in the sense that Martin Luther King, Jr. had a dream. It uses poetic-sounding language to express the unavoidable interdependency between We the People and their constituted governments, state, local and federal. It is a dream based on the hard stuff of interdependency in a world where one person’s plastic ends up on another person’s shore. Or where an individual’s infection ends up infecting a community. Abraham Lincoln used the famous house divided, biblical metaphor to express what’s at stake in our dream of union: “A house divided against itself cannot stand.” For the Preamble, for Lincoln and for us today, the hard work of cooperation, of getting along with each other, of working together, of sacrificing some self-interest is a practical necessity if the republic is to stand.

What is the more perfect union we now seek today? What does it look like? What priorities, investments of time and effort, and sacrifices will it take?

To be sure, our work is now more than hand-stitching together the homespun of 13 colonies. For many today, a more perfect union means things like a safer neighborhood for their kids. Or the opportunity to achieve a better life. Or freedom from fear. Or a vaccine. Or getting back to normal after covid. Or returning to face to face classes. Perhaps we can imagine those kinds of dreams were in the hearts and minds of 18th century people as well.

The Preamble is realistic. It qualifies the word perfect with “more.” Our neighborhoods, we don’t realistically expect, will be perfectly perfect. But it is not too much to dream that our neighborhoods, along with our republic, can be better for more people.

Justice

What does the word justice mean to you? Recall those times in your life when you thought others didn’t treat you fairly. Our sense of justice is often based on our experiences with being treated fairly or unfairly. I can’t believe the ref called a foul on that. The other team has been getting away with murder. Whose side is the ref on? Or, why was that store clerk so rude to me but so nice to that other person? Or, everybody else on this highway is speeding and the cop pulls me over? What’s that about? Or, why was my starting salary $10,000 less that that guy’s? Our senses of justice, of comparative treatment and fairness, start young.

The Preamble’s “why” to “establish Justice” are the 16th and 17th words of the Constitution: i.e., one of the first and top priorities. The historical context of these words is monumental, linking to the July 4, 1776 Declaration of Independence and the Revolutionary War. The Declaration was mostly, in terms of word count, a recitation of injustices. The Declaration recited “a long train of Abuses and Usurpations” by the King, the monarch, George III, referred to as “He” repeatedly so as to reinforce, like a pointing and jabbing finger of blame, where the injustices had come from. Having declared independence from tyranny, the opposite of justice, the Preamble made establishing justice a top priority.

But we also know how contingent and imperfect that 18th century view of justice was, requiring later constitutional amendments to include African Americans, women, Native Americans and others within the meaning of justice. As we think about justice in today’s context, we see that the word “equality” is missing from the Preamble, at least expressly in the text. We’ll see that later amendments, especially the post-Civil War Fourteenth Amendment, put equality into the Preamble.

The word justice links to what we today call America’s justice system: courts, judges, lawyers, prosecutors, public defenders, police, jails and so on. “Equal justice under law” was engraved (in 1932) on the front of the U.S. Supreme Court building in D.C. American rule of law, despite many flaws and setbacks in actual practice, aspires to a preambular virtue of equal justice.

The Preamble’s reference to Justice connects to other language in the text, especially Article III and judicial powers. Federal judges, also known as Article III judges, preside in 94 federal judicial districts, including at least one district in each state, in D.C. and Puerto Rico. The U.S. courts of appeals (or circuit courts) are divided into 13 circuits, each one hearing appeals from the district courts within their boundaries. At the top is the U.S. Supreme Court, currently with 9 Justices.

The Constitution makes plenty of room for judicial power to be exercised with reason, wisdom and compassion, because the absence of those qualities leads to what the founding generation was breaking away from: tyranny. Read in the Declaration of Independence the list of “Facts... submitted to a candid World” about who and what makes “a Tyrant.” How do we know a Tyrant when we see one? Check the Declaration’s facts. A Tyrant makes judges “dependent on his Will alone,” obstructs the administration of Justice and refuses to assent to laws that establish judicial powers independent of the Tyrant’s will. American constitutionalism is indelibly stamped by the lived experience, by the real historical suffering and sacrifice, over the question: what makes a tyrant? Americans listed the facts of tyranny in the record, in the memory bank, in the Facts submitted to a candid world. Tyranny, in the American experience, is about arbitrary, coercive, unchecked and unreasonable abuse of power. It ties to the Hamiltonian question of rule by force. What forms of tyranny do you think still exist today?

Preambular Justice has a context, a story that includes its past and its present, a story of Americans rejecting “justice” dressed up as the will of a tyrant and choosing instead the rule of law. The rule of law includes judges who know the limitations on their power, the constitutional job of deciding cases and controversies based on the facts and the law

History influences the Supreme Court’s constitutional standing, legitimacy and reputation. The current Supreme Court under Chief Justice John Roberts is concerned about how the Court is viewed by the American public during times of political fracture. (More on this later.) A public perception that the Court is just as politicized as everything else in government is a big concern. What the Court actually does and what the public perceives it as doing are not always the same thing.

With both judges and ordinary people (which judges are too), reputations are more easily lost than won. The Supreme Court’s reputation, its historic role in American constitutionalism, includes but goes beyond the words in the concise text of Article III. Yes, it must decide cases and controversies. Litigants who pass through its doors win or lose. But the Court must also have an ear attuned to We the People. The Court is, after all, the creation of the Constitution and is thus part and parcel of its principles, including popular sovereignty. That doesn’t mean that We the People should decide cases. Or that the Justices should check which way the winds are blowing and decide cases on public opinion. It doesn’t mean that Justices must listen to a proverbial mob with pitchforks. It means instead that public trust and confidence in the Court and popular understanding of what judges do is essential to democracy. It means that the Court is part of the republican form of government the Constitution establishes. No, Justices are not supposed to be politicians or elected representatives making law. But neither should we expect them to be legal robots churning out decisions that are disconnected from the constitutional general welfare.

The Court’s reputation and role turns critically on the principle of an independent judiciary. If the public believes judges are deciding cases not on what the law is, but on what the judges’ politics and policy preferences are, the public will lose confidence not only in individual judges, but also more importantly in our Constitution’s highest Court which exceeds any individual judge. The Internet-juiced politicization of the Supreme Court nomination process and politically-charged Senate confirmation hearings feed the perception of pervasive politics.

When and if unelected judges go too far in overruling precedents and changing law that should be left instead to the legislative process (both state and federal), the judiciary opens itself to public opinion that it has overstepped its constitutional boundaries deciding “cases and controversies.” Public opinion tends to look to the courts as a default option when lawmakers are gridlocked or not doing what we want. But the Constitution doesn’t require that whenever We the People law-making gets stuck or screwed up, the Justices must ride to the rescue.

You may have heard the over-used term “judicial activism.” This term is an example of rhetoric that has lost real meaning because it cuts both ways. Charges of judicial activism, across the Supreme Court’s history, have been launched on both sides, with both liberals and conservatives claiming the Court was making policy rather than saying what the law is. The political rhetoric about judicial activism usually is in the eye of the beholder, shifting according to which side is on the winning or losing side. When my side wins, the Court is brilliantly constitutional. When my side loses, the Court is a bunch of judicial activists.

Domestic Tranquility

The Constitution’s choice to combine the words “domestic” and “tranquility” has multiple levels of meaning. Domestic as adjective means relating to home or family relations. It also means existing within a country. Not international. So domestic tranquility, to a generation that had fought a Revolutionary War meant peace at home, meaning peace in the new country.

But it also meant peace in the home, in the homes of We the People. Domestic tranquility encompasses both home and homeland. The Constitution wants both home and homeland tranquility, peace in both settings. The Constitution’s domestication, its respect for the homes of We the People, resonates from the Preamble to the Bill of Rights. There we find reference to “house” in Amendment III as well as to “peace.” “No Soldier shall, in any 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.” This is a recognition of the value of property, one’s house.

But it goes beyond the bare fact of material property rights. To a Revolutionary Ware generation, no more monarchs would quarter troops in their homes without their consent. No King could so enter the castles of We the People, their homes. How could one’s home be tranquil if soldiers could be quartered there without the owner’s consent? Further, the Third Amendment distinguishes “time of peace” and “time of war,” giving the government more leeway in the latter case to quarter soldiers in a house, but even then only by rule of law rather than royal prerequisite. We the People were fed up with royal perks.

Hard on the heels of Amendment III of the Bill of Rights, is another echo of the preambular idea of domestic tranquility in Amendment 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.” Again, we see the domestic tranquility theme in reference to “houses” but also, more broadly to “persons,” “papers,” and “effects.” Security of person. Security of home. Security of papers. Security of effects. The word “effects” means broadly personal belongings (and is today used in many homeowner insurance policies). Again, the Constitution has an interest not only in material property rights, but in the security of people and, in today’s lingo, our stuff. Our persons and our stuff include all sorts of stuff. Especially so in our 21st century consumer culture. Our cars and trucks. Our phones. Our apartments. Our computers. Our data. Our blood and DNA. Unreasonable searches and seizures by government actors without a court order, a warrant, is both unconstitutional and disruptive of domestic tranquility. In American law, search and seizure cases fill volumes and are a regular part of the dockets of our courts, especially in criminal cases.

Domestic tranquility relates to privacy, famously defined by Supreme Court Justice Louis Brandeis, as the right to be left alone. Does that resonate with you? Do you like being left alone when you want to be? The right to privacy is today well-established in American constitutional law, albeit sometimes in controversial form as the basis for the Roe v. Wade abortion precedent.

Domestic tranquility is also about homeland security. In November 2002, in response to 9/11, federal government created the United States Department of Homeland Security or DHS. Today DHS is the third largest Cabinet department in the Executive Branch (behind Defense and Veteran Affairs) with an annual budget of roughly $50 billion and 240,000 employees. The American experience of September 11 has had a profound impact on American constitutionalism including the ongoing War on Terror, immigration policies and practices, border security, homeland security regulations, searches and seizures, cyber-security, data privacy and lack thereof, due process rights and other legal areas. Now, domestic tranquility faces Covid-19.

When the words domestic tranquility were written, the United States was at the advent of its role as a geopolitical power. A major reason to constitute the United States, to form a more perfect union out of a handful of former colonies, was to say boldly to the world: America is now stepping onto the world stage. We are no longer on the bench, second string players to the British Empire. We will explore and expand across our “island” continent. We have enormous geographical and natural resources. Our enemies will need to cross oceans to disrupt our domestic tranquility.

After two plus centuries, America’s role as a geopolitical power has a vastly different world context. Domestic tranquility is now, as never before, linked to world affairs and a world connected by tech. The security of “persons, houses, papers and effects” is now seen as globally contingent. A virus spreads across the world, starting from remarkably small and inconspicuous places. Trade wars spike and drop stock markets. Build the wall is chanted at political rallies. Computers are hacked. Domestic election interference crosses oceans (faster than sailing ships). Identities are stolen. Account data is breached. Globally, refugees are fleeing hostile homelands to make new homelands. Xenophobia is ascendant.

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A college student reflects on these times: “Our homes are not so peaceful. Our relationships are not sound. Our interactions with others lack substance, compassion, and kindness. We are divided politically, allowing our views to impact the way we act. We experience acts of ignorance, of hatred, or unprecedented violence.” Another student writes about her home life before coming to college. She explains that when she hears talk of the blessings of liberty, she recalls painfully that she grew up in a home where there was one boss, one dictator, her father, whose frequent angry words were always final in her house and far too frequently laced with alcohol. Her father was an alcoholic. There was no domestic tranquility. Many of my students talk and write about school shootings and how that has changed their generation. “We grew up in the age of school shootings,” writes one student. “We remember where we were for Chardon, Newton and Parkland.” Older generations may remember where they were when JFK, or Bobby or Martin were shot. Or remember Cuban Missile Crisis nuclear attack drills and crouching under school desks. Today’s college students may have the double experience of violence and threatened violence in high school followed by a pandemic. Domestic tranquility can seem very far away. Common Defense “How many of you are in the military, have served or are going into the military, or come from military families?” When I ask this question in class, many hands go up. More than you might imagine. The hands in the air have taught me not to postpone a central fact about American constitutionalism: many Americans, past, present and future have put on the uniform for the common defense. What is the common defense? How has it changed our lives? Like many words in the Constitution, they can sound large and abstract until we break them down into the facts of people’s lives. Let’s start by asking: Does the common defense include but mean something more than military service? How do We the People defend each other and ourselves? How about neighborhoods where drugs and violence are a daily reality, causing some people to join together in neighborhood watch programs to look out for each other? Or how about those special souls who, during school and other mass shootings, have sacrificed their own lives and safety for others? Or the health care workers and other who have served and sacrificed during the pandemic? New contexts expand what we understand as the common defense. Vaccination has become in the Age of Covid a world-wide priority for the common defense. Not smoking is a common defense against lung cancer. For some, responsible, safe and legal gun ownership is a common defense. Wearing seatbelts is a common defense. Protecting ourselves and others from addiction to opioids is a common defense. Protecting a healthful environment is a common defense. Masking is a common defense. Maybe we see the common defense as speaking up and speaking out when we see other citizens being harmed. Our good ideas, old ones and new ones, may serve the common defense. Our legitimate self-defense may also serve the common defense. The college student who is aware of a sexual assault on campus serves the common defense by engaging the Title IX process of the university. Knowing and exercising our rights and responsibilities as citizens can help defend ourselves and others. For example, if the facts show that foreign powers have interfered with America’s constitutional voting systems and rights, then we serve the common defense by a resounding “NO” to that and voting in even greater numbers. Today, America is engaged in a national debate and protest over police accountability. On the one hand, American cities, towns, neighborhoods and communities need good policing. Good police protect and serve. Good police uphold the rule of law. Good police are essential to the constitutional principle of the common defense. Yet within police forces across America there are exceptions and structures that erode public trust. The answer is not to condemn all police. There is no preambular justice in saying that all police are bad because some are. The common defense is, like so much of our constitutionalism, shaped by technology. Cyber-attack and data theft by Internet scam artists have made cyber-security training of employees a common workplace defense.Whatever your job or career, cyber-security may very well affect you. Our e-mails and other business and personal modes of communication are not presumptively safe and secure. “Tech savvy” means something different today than having lots of cool gadgets and knowing how they work. The technology honeymoon is over: i.e. behind that enticing click or money solicitation or once-in-a-lifetime deal or interesting pic or personal information disclosure or privacy waiver may well be bad guys from all over the globe. The common defense in the Digital Age is not only about cyber war and scam artistry by the certifiably criminal element around the world. The common defense will also have to include better data privacy protection for all Americans. How many of us know where our personal data is going, who is selling it to whom, how much money was paid for it, how it is being used out there and whether all those uses are okay with us? How much faith do and should we have in privacy and data protection systems set up by mega-companies with a business model based on monetizing our data to maximize profits? Like never before in human history, protecting private data should be part of our conversation about what it means to defend one another and ourselves in our 21st century republic. We see that American constitutionalism is today intertwined with new, tech-infused variations on the common defense. But still, if we go back to that beginning question about military service, we see a common denominator that is not just about Digital Age threats. That common denominator has happened so often in American history that it is rightly part of what we may call the American character. Scholars, historians and others may disagree about whether there is such a thing as American character, or, if there is, how we know it when we see it. But one aspect of the American character that We the People can widely agree upon is this: there are millions of Americans who have served in the armed services, many of them very young, from all walks of life, all colors and creeds, who have paid an ultimate price defense of our constitutional freedoms. We need to regularly remind ourselves as citizens that this sacrifice is real. It is historical fact. It is part of the record. Not fake news. We need only visit a VA hospital or any number of places where veterans, living and dead, have a clear-sighted view of their history on behalf of the common defense, which is our history too. Sometimes a single picture can help focus our thoughts. We return to a famous black and white image of a group of Marines in a troop carrier headed for the Normandy shore on D-Day. Mostly we see their helmets, but the faces we do see are young, about the ages of the students I teach. What was it like for them? Can we imagine so many years later that among all that was packed in the small boat – all the soldiers, weapons, packs, fears, prayers, thoughts and emotions – there was also a mission on behalf of human liberty? Another aspect of defending each other comes from volunteerism. The republic from its beginning has depended on voluntary associations, the generous giving of time, talent and treasure to help others. Many Americans stick up for each other by volunteering. We may not see the enormous variety of ways folks pitch in or the cumulative impact of American volunteerism. The school crossing guard on a busy street. The corporate leader working in a community garden. A ProKids advocate. A hospice volunteer. A museum docent. A spiritual advisor in a prison. A voting poll worker. A church delivering communion to a nursing home. A generous donation to help health care workers. The common defense is both common and extraordinary. General Welfare “Promote the general welfare.” Promote is an active verb that ties to the idea of progress, i.e., to further the progress of or to actively encourage something. General means concerning all people, places and things. Welfare means the health, happiness, and fortunes of a person or group. When these three words are combined in the Preamble, we have a purpose that is actively, broadly and powerfully expressed. General welfare is repeated in the text. Wherever the Constitution repeats words, take notice: repetition means importance. (Other examples: the repetition of the words “people” or “persons.” Or “voting.”) General welfare goes form the Preamble to Article I, Section 8 where the powers of Congress are enumerated. This placement gives general welfare a central seat at the textual table, because it is the principle that leads into the listed powers of popular sovereignty, congressional lawmaking. Article I says that Congress has the power to “provide for the general welfare of the United States.” So general welfare is both a preambular why and a powers-expanding principle to guide lawmaking by We the People representatives. Laws are supposed to promote the general welfare. We know that laws often get passed because of special interests, lobbying, the influence of big money and the re-election interests of politicians. If we think constitutionally rather than just politically, we see that the constitutional purpose of laws should primarily be to promote the general welfare of We the People. Today, our divided politics sometimes narrow the idea of “welfare” to debates over “entitlement programs” and the “welfare state.” An executive branch department, the U.S. Department of Health and Human Services, administers 6 major “welfare” programs: Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Programs (SNAP), Earned Income Tax Credit (EITC) and housing assistance. The point of listing them here is to show that one manifestation of the Constitution’s general welfare principle is an extensive administrative structure, agency and programs. This is an important manifestation of general welfare to be sure, but it is not the only one. The Preamble’s why of general welfare goes way beyond one administrative agency. After all, for most of the Constitution’s 230 plus years, the Department of Health and Human Services and the federal agencies that preceded it didn’t exist. They are in part legacies of the New Deal Era of the 1930s during Franklin D. Roosevelt’s presidency when America was suffering to recover from the Great Depression. So what are the larger, more complex and even more challenging meanings of general welfare in 21st century America? How do we bring these words into our times? What do they help us see about ourselves and our republic? General welfare, we will see, highlights a major contemporary challenge for the republic: the erosion of community, excessive individualism and the isolation and loneliness of many Americans. As real communities erode, division increases and a more perfect union eludes us. The Constitution befriends community. Look for a minute at how general welfare relates to the other whys in the Preamble. What is striking about the preambular words is how collective they are, how much they emphasize the group rather than just the individual. We hear collective connotations in every one of the eight preambular whys. We the People instead of me myself. A more perfect union rather than a house divided. Justice for all rather than perks for a few. Tranquility in our homeland and homes rather than a few safe havens of privilege. The common defense rather than everybody just get a gun and protect yourself. The general welfare rather than selfish or special interests. Liberty for ourselves not just ourself. Liberty for our posterity, for future generations, not just what I want right now. Indeed, the collectivism of the Preamble is echoed in the words of the very first amendment: i.e., “the right of the people peaceably to assemble.” The right to associate, to come together in groups of our own choosing, is just as fundamental as the right of individual free speech. A republic depends not only on government organizations but also on a myriad of private associations where citizens are free to pursue their interests, worship as they choose, support their communities and schools, build relationships, connections, alliances and friendships. Without this infrastructure of associational private organizations and communities, a republican form of government never could and never will be able to substitute itself for all the associations that We the People desire. Alexis de Tocqueville rightly observed how dependent democracy in America is on associations: “If men are to remain civilized, or to become so, the art of associating together must grow and improve in the same ratio in which the equality of conditions is increased. He called association both an “art” and a science” upon which democratic progress and We the People values of liberty and equality depend. The Constitution forcefully and repeatedly emphasizes the collective. Yet, today, those who know the Constitution in name only, and only superficially, think the Constitution is all about their individual rights. My rights. My free speech. My religion. My property. My gun. My phone (it’s an iPhone not a yourphone). My Internet. My social media. My likes. My freedom to do what I want. But the Constitution is not just my rights. It’s our rights. Like cells in our bodies that have permeable cell walls, the Constitution is permeable to the surrounding culture including its individualism. The 1960 and 70s saw a big expansion of laws and litigation emphasizing and expanding upon individual as well as collective rights. The Civil Rights Era including the landmark Civil Rights Act of 1964 was a necessary and important constitutional corrective directed at ending discrimination based on race, color, religion, sex or national origin. Ending discrimination serves both we and me, both general welfare and the individual. Yet, history shows it is one thing to pass a law and decide a legal case between litigants, but is quite another for our laws to be followed, enforced and effective agents of change. The Supreme Court’s landmark case of Brown v. Board of Education did not instantaneously result in desegregated public education. The case struck down de jure school segregation, but de facto segregation proved to be an elusive goal. The Constitution is designed to operate through both collective and individual channels. The civic virtue of the general welfare means that the republic depends on its citizens not just to look out for their own interests, but, according to their capacities, the interests of others too. Today, the necessary constitutional balance between the me and the we is off balance in many ways. We the People know through direct experience that our communities need help. Our collective places are struggling. Our schools are not just worried about educational opportunity, but about active shooters. Our places of worship are not just worried about fewer congregants in the pews but about their safety. We’ve seen (and videoed) concerts, public events and shopping venues turning chaotic in an instant. Americans in vast numbers, especially the young and very young, are isolated on phones and video games. These surrogates for real social connection only go so far. Awareness is growing that smartphones don’t build real community and are weak substitutes for live human interaction. People are learning that social media is a business marketing platform for consumerism built on monetizing data and targeting people as consumers of goods and services. Real relationships and real community transcend treating each other as marketing opportunities for buying and selling stuff. Real communities connect people through affinity, family, friendship, love, compassion, support, education and belonging. The community erosion, hyper-individualism, and me-centeredness of our times has been well-researched, analyzed and explained in a number of books by prominent scholars, authors and commentators.§ The real Constitution can become invisible if we wrongly imagine it is just about me and my rights. Not only invisible but worse. Not hearing the Constitution’s collective voice can lead in the wrong direction if we think of our founding text only as a ringing endorsement of individualism. Instead, a commitment to the general welfare is at the heart of constitutional friendship. Blessings of Liberty and Humility If we put the Constitution on an unrealistically high pedestal, the Constitution can become unapproachable, distantly grandiose. The Constitution is more humble than we might imagine. The more we read it, get to know it, talk about it, kick it around and test its ideas, the more we will see its humility. By “humility,” we don’t mean shy. Diffidence is not our Constitution. Humility is not lack of confidence, but the wisdom of not being too sure we are right. Humility, we will see, goes hand-in-hand with true liberty. “There is no such uncertainty as a sure thing,” said the Scottish poet Robert Burns. The need to be right all the time, the inability or unwillingness to admit facts that don’t fit with one’s always-rightness, is a sure road to ignorance. “Ignorance more frequently begets confidence than knowledge,” wrote Charles Darwin. “It is those who know little, not those who know much, who so positively assert that this or that problem will never be solved by science.” Imagination so essential to the sciences and arts includes imagining that this or that conventional wisdom may not be so wise. Imagination is essential to overcoming bias based on the identity of the speaker, the tendency not to listen to or credit ideas coming from those whose outward appearances don’t line up with one’s bias. American history has a long track record, for example, of men too always-right in their own views to listen to the voices and ideas of women. The denial of women’s suffrage until the Nineteenth Amendment in 1920 was based on the certitude of men that the voices of women had no place in choosing representatives in a system of self-governance. Early in her early career as a law student, getting rejected for jobs in private law firms and striving to be heard over the voices of men, a diminutive, soft-spoken woman named Ruth Bader Ginsburg would have her voice heard by befriending the Constitution. What does constitutional humility look like? The Constitution never claims perfection, other than to form an aspirational “more” (key word) perfect union. It doesn’t have all the answers. It isn’t a detailed rule book of do’s and don’ts. It has lots of gray, not all black and white. It creates no unlimited, absolute rights. It establishes a government of limited powers. It never expects to get it all right. It provides for its own amendment (which has happened 27 times). It admits its mistakes. In fact, it shows its original mistakes by keeping chronological track in writing how it was amended. It expects no perfect harmony, but realistically expects there will always be conflicting interests. It was designed for strong disagreements by giving us a process to handle them, not by having all the answers. The Constitution doesn’t think compromise is a weakness, but that it’s necessary. The Constitution is neither a liberal nor a conservative but realistically expects that both liberal and conservative views will exist and compete with each other, and that no side will always win forever. It doesn’t like unfettered power in any one person or group. It checks and balances power at every turn. It hopes but doesn’t expect public officials to check their own power. Other checks will click in. The humility of American constitutionalism was well expressed by Learned Hand, one of America’s leading jurists and author of some two thousand decisions during his service as presiding judge of the Second Circuit Court of Appeals from 1939-1951 and a decade thereafter as senior judge. Here is what Judge Hand said in a speech delivered toward the end of World War II at an “I Am an American Day” ceremony in New York City’s Central Park. Keep in mind that his audience had been through national and personal sacrifice to defeat at great cost the powers of authoritarianism. In this chastened context, Judge Hand spoke to his audience about the spirit of liberty: “What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.” How ironic: a famous judge who had dedicated so many hours of his life to law saying that we shouldn’t place too much false hope in constitutions, laws and courts. He’s not telling his audience how powerful he is; he’s telling them that his judicial powers are limited. His belief that liberty first lives or dies in the hearts of men and women is the soul of the Constitution itself. The Constitution makes no claim to be the prime creator of human liberty. Constitutionalism depends on a humanity pre-existing the Constitution. Judge Hand asked the big question: “What, then, is the spirit of liberty?” With humility, he admits: “I cannot define it. I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten – that there may be a kingdom where the least shall be heard and considered side by side with the greatest.” Let’s pause here and appreciate how counter-cultural these words may sound in our current American public dialogue: “I’m not too sure I’m right.” Will we hear that in our presidential debates? Will we see campaign signs that say: “Vote for Me. I’m Not Too Sure I’m Right.” Will we see humility expressed by any candidate for public office? Will anyone admit to gray areas of uncertainty in solving complex problems? Will anyone concede that the opposition may have some good ideas we might use? The spirit of liberty is not, in Hand’s judgment, simply a large-scale competition between factions. Rather, liberty depends on some willingness to sacrifice one’s own special, self-interests for the common good. The spirit of liberty, Judge Hand reminds us, is not “the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few – as we have learned to our sorrow.” The “sorrow,” his World War II era audience understood, was the chaos unleashed by despotic leaders and the human sacrifice needed to defeat them. While American constitutionalism depends on the blessings of liberty, it also depends on having enough civic virtue to recognize in what ways liberty as a citizen is checked. Constitutional civic virtue isn’t based on dogma or self-righteousness. It says: “Since we are both citizens, I weigh your freedoms along with my own.” What it doesn’t say is: “My way or the highway.” If we want our way as citizens, it will have to stand the Hamiltonian test of reflection and choice rather than coercion of others. Today, social media spreads a cacophony of voices insisting they are right. Being right can become more important than being factually correct. Social media feeds confirmation bias: the tendency to interpret information as confirmation of one’s existing theories or beliefs. Being right insists on its own confirmation and unassailable rectitude. If you’re right all the time, then there’s not much room – not much freedom – for others to be right. In extreme forms, insistence on being always right morphs into the tactics of bullying, insult, name-calling, harassment, hate speech and violence. American constitutionalism accepts the inconvenient truth that liberty without checks isn’t liberty. But how well do we like the idea of our liberty being checked? Who likes it when TSA throws the over-sized toothpaste tube into the big bin? Who likes the myriad of reminders that freedom is contingent? Turn the music down. Wear the motorcycle helmet. Obey the speed limit. Put down that beer, you’re only 15. Lock your gun case. No smoking or vaping. Read the dress code. No head-and-neck tattoos. No shoes, no service. No fishing. No littering. No hunting. No trespassing. No spitting. Click It or Ticket. Pay taxes. Pay tolls. Apply for a license. Pay a fee. Construction Zone. Stop. The line forms here. Your passport? Your password? Sign this user agreement. Release your privacy rights. You get the picture. In America we’ve set a big expectation as the land of the free, yet every day millions of people will necessarily and routinely experience limits on doing whatever we want. There’s a gap between freedom’s expectations and freedom’s limitations. This gap creates a recurring tension and has throughout our history. As American society grows in population, pluralism and complexity, so does the tension between freedoms in conflict with each other. That’s why the Second Amendment is one of America’s most hotly contested constitutional issues: some see guns as sacred rights, others see them as violence. Our ideals about freedom collide with the reality of a populous, technological, commercial, global, industrial, post-September 11, pandemic crisis America Judge Hand’s view that liberty depends on seeking to understand the minds of other men and women and weighing their interests alongside our own “without bias” becomes a very tall order in the complex Digital Age in which we live. Our communication technologies bring us the wild, wild west of minds and mindlessness out there. News comes at us fast and keeps coming. We retreat into foxholes, get isolated and dig in digitally. A college student suggests a radical approach: “reasoning.” She writes: “In order to truly understand those whom I do not agree with, I need to understand not only the reasoning behind the opinion of others, but also the reasoning behind my opinions.” An individual commitment like that is constitutional humility in action. She’s willing to test whether her opinions make sense, as part and parcel of testing whether the opinions of others make sense. This is something different than the reflex of digging in with your opinion. You can tell real quickly, can’t you, if someone is dug in with their opinions? Body language. Tone of voice. Interrupting. We can feel it. I know a communications expert who advises: “People won’t always remember what you say, but they will remember how you made them feel.” This doesn’t mean you must always play nice with people you think are jerks. It means that if you’re interested in others listening to you and maybe even having a shot at changing your mind or their minds, you’ll try to convey a feeling that you are interested in their reasoning and in allowing your reasoning to be tested. How many of our disagreements over controversial issues relate to protectionism: i.e. really not wanting to risk the light of other views striking our own or being uncertain of our reasoning? The Preamble’s reference to the blessings of liberty connects to the 1776 Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” Liberty and equality depend on each other. If one’s starting place with other citizens is an assumption of one’s superiority and supremacy, what will be the probable consequences of that arrogance? Will the person who assumes his supremacy be more or less likely to respect the individual liberty of others? Will he want to walk a mile in the other’s shoes? Does he understand his presumed superiority can evaporate in an instant, that the last will be first and the first last? Does he have sufficient humility to make room for the life, liberty and pursuit of happiness by people other than himself? Does he allow for the great likelihood that he is not omniscient about what others have lived or suffered? Posterity The final word of the Preamble is posterity, meaning future generations of people. Posterity as the last word links to the first words We the People. The Preamble has people bookends. It begins with We, Us, Ourselves – those who are living now. And it ends with the time travel word, posterity, that connects the past, present and future. Posterity confers historicism. It gives the Preamble a scope that looks beyond ourselves. The blessings of liberty are to be secured not only for ourselves but for our posterity. The Preamble is saying: We are ordaining and establishing this Constitution, this republic, this United States of America, based on these purposes and writing it down for present and future generations so that all remember why we did and are doing this. Posterity links to history which links to memory. How, after all, are we and our posterity supposed to preserve, protect and defend the Constitution if we and they don’t remember what the Constitution is? By writing it down, the Constitution knows a thing or two about the way people remember and don’t remember. There was no tape recorder going from May 25 to September 17, 1787 in the old Pennsylvania State House (now Independence Hall in Philadelphia) to record what the 55 delegates said. There were and are (you can read them on the Internet) the notes of James Madison. But these are not verbatim transcripts. But here’s the main point: even if there were a tape recording or verbatim transcript of the Constitutional Convention, we’d still debate what this or that means. After all, what is said in today’s impeachment hearings has the advantage of miraculous technology, TV, YouTube, recordings and verbatim transcription, but we still argue about who said what and what it all means. This he-said-she-said variation in memory and interpretation happens every day in every busy courtroom in America. To be human is to have memory that is not only imperfect, but is also constructed and re-constructed selectively through countless viewpoints, perspectives and lenses. Metaphorically speaking, our memories are much more like the compound eyes of dragonflies with thousands of lenses seeing different things from different vantage points than like the single lens of an artificial intelligence laboratory robot. Lawyers who practice law long enough hear many stories from clients, witnesses, other lawyers, people in all sorts of situations and circumstances. Some people remember clearly, some don’t. Some deliberately create false memories. Some do so unconsciously. Some have impaired memory, a broad spectrum of deficits ranging from minor to dementia. Some memories are convenient and self-serving. What this boils down to is that the Constitution, in light of the way human memories operate, has its work cut out for it. How we remember the past shapes what we do in the present and future. Remembered stories about our own lives and those of others will always have the twists and turns of viewpoint, but stories still need to pass carrying old and new meanings and learnings. If we doubt this, consider the damage done when false memories, false witnessing and false stories are disseminated within and across generations. In the 20th century, the Holocaust is Exhibit A for how false narrative against Jews led to a most profound darkness. Still, today, anti-Semitism persists in some circles based on false, conspiratorial views of history. In another example, during America’s post-Civil War Reconstruction Era, Jim Crow discrimination and racial hatred was fueled by a large false memory of the Civil War called “The Lost Cause:” i.e., the pseudo-history that dismisses the role of slavery as the War’s main cause. Still, today, our conversations about race are shaped by whether and how we remember American history. American constitutionalism has a track record and a thingness. It has a text, a physical writing of about 8,000 words, the Constitution of the United States, created on September 17, 1787, ratified on June 21, 1788 and taking effect on March 4, 1789. The first ten amendments are the Bill of Rights, not included with the original Constitution but added in 1791. Seventeen more amendments were added, the Twenty-Seventh Amendment ratified on May 7, 1992. (Maybe you already knew these facts.) So we know our constitutionalism has an official text with a history. But let’s pause and think about this fact, this thingness, of an historical text. You might have assumed all constitutions are texts. True, the majority of the constitutions in the world now are. But the country from which America declared its independence has an “unwritten” constitution that draws from statutes, common law, parliamentary conventions and authorities. Brits have an un-codified constitution; Yanks wrote it down. Constitutionalism is, broadly speaking, the Constitution as lived by We the People. It’s the Constitution’s history. It’s the people, places and things; the who, what, when, where and how; the ideas in action; the cases and controversies; the vast geography and environment; the record of achievement and failure; the progress and the regress; the countless ongoing cultural expressions and interpretations of our Constitution through millions of people living, creating, striving, surviving, and passing. American constitutionalism is, simply put, the Big Story of what has happened since 1787 (and even before) as America has vividly lived its great experiment. And what is still happening. Trying to understand the U.S. Constitution without its history would be like trying to get to know a person without knowing anything about his or her past. We the People depend a great deal on our memories. American constitutionalism has a memory. Have you ever experienced memory loss, in your life or the lives of others? Say, for example, you’ve witnessed an elderly family member who, through aging or disease, has lost memory. Those who experience such loss are sometimes able to talk about what it feels like. Memory loss can be frightening and disorienting. People speak of losing their sense of connection, their bearings and reference point, and their relationships with others whose names and faces and stories are lost. Our memories make us witnesses to the lives of others and to our own lives. Memories of where we’ve been help us figure out where to go. Our stuff, our possessions, our homes powerfully relate to memory. When asked why he was keeping his deceased wife’s clothes in the closet for so long, a man poignantly said: “Things keep ajar the door of memory.” Stories that help us remember are the building blocks of American history. Ironically, the study of American history in higher education has generally declined at a time when we need it more than ever. Some assume studying history won’t make it any easier to get a job after graduation and pay off school loans. Some see history as irrelevant old stuff, especially when Digital Age technologies so relentlessly bring on the new stuff. We can hardly keep up with the present; so how can we keep up with the past? The problem with not knowing or remembering our history is that it leads to misunderstanding of our present. As William Faulkner wrote: “The past is never dead. It’s not even past.” Knowing something about the past, and how it connects to the present, helps us learn from the trial and error of prior generations. Historians have long debated the question of “the useable past,” some contending it’s not very useable and some saying it is. While the past rarely gives us the exact answers to present problems, it does instead work like memory and how memory can teach us. Without memory, we can’t really determine if we’re making any progress. History teaches that progress in a country as large and varied as America doesn’t happen in a linear, always upward and onward way. Progress is often messy business, proceeding by fits and starts, with great uncertainty about whether progress is being made or will ever be. The fact and idea of progress is far from universally accepted. Some say progress is an illusion, an overly optimistic model of wishful thinking. Others contend progress is real and, even more, is really measurable using big data. Regardless how much or how little progress we may think America is making, we have a Constitution that believes in progress. The 18th century American Enlightenment that shaped the Constitution’s intellectual origins believed in progress, through such things as reasoning, human development, spiritual awakening, enlightened self-government, freedom to discover and create, and progress in the arts and sciences. It took some chutzpah and still does. The constitutional text uses the word progress once, in Article I, Section 8, in the words: “To promote the Progress of Science and useful Arts.” For a composition of careful word choice, it’s really significant that the only reference to progress is side-by-side with arts and science promotion. More on this later. Hold this thought: arts and science progress means growth in the humanity, minds and discoveries of We the People. Countless creations have shaped American progress. The sheer creative energy of American constitutionalism is sometimes forgotten. It’s easy to forget how the things we now take for granted happened over the course of time. Looking back from our vantage point in the present, we can make the mistake of assuming that this or that was bound to happen or that people back then were certain that their decisions would lead to this or that. Inevitability isn’t so inevitable. In reality, people in the past were, like us, living with great uncertainty over the outcome of their decisions, choices and efforts. It doesn’t make the Founders any greater if we imagine they had X-ray vision into the future and were sure of it. They didn’t know what we now know. Have you learned to do something, say play a sport, by trial and error? How many times did you have to try, see the result, adjust and try again? How many times did you have to kick and dribble the soccer ball before you felt in control? No amount of coaching or instructions or thinking about it could substitute for actually doing it, practicing over and over, and then scoring a game goal. Think about the way great inventions happen. Do you like drones and drone photography? As Amazon drones fly to our doorsteps, let’s recall two tinkering brothers from Dayton, Ohio. After many trials and errors, the Wright Brothers used and patented a system of pulleys and cables to warp the trailing edges of the wings of their planes. Wing warping helped control the aircraft. This wing warping discovery (later replaced by ailerons) led, after more trial and error, to the Wright Flyer’s first successful heavier-than-air powered flight near Kitty Hawk, North Carolina on December 17, 1903. Without the Constitution, and its Arts & Science Clause, there would have been no American patent and intellectual property protection for the Wright Brothers or for the wings of drones.

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American constitutionalism has been an engine of creativity, a creativity of trying this or that to see if it works. And if not, trying something else. The freedom to tinker, adjust, start over, and tinker again is often how innovation and progress happen.

It took step-by-step creativity to lead to the Digital Age, to progress across history and put our cell phones in our hands. Your phone’s battery traces back to early experiments by constitutional founder Benjamin Franklin who grouped a number of Leyden jars (now called a capacitor) into what he called a “battery,” using the military term for weapons working together. Our phones are tech-descendants of the much less powerful computer that took Apollo 11 to the moon and warned Neil Armstrong he had only seconds to go before Eagle would run out of fuel above the lunar surface, landing with only 17 seconds of fuel left. Think about the difference that 17 seconds made. Progress turns on such audacious near-misses. Vast amounts of trial and error led to that great moment of constitutional, scientific and human achievement.

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Our constitutionalism is a memory bank of great risks taken and audacious experimentation. The Revolutionary War and Declaration of Independence can seem like inevitabilities today, but at the time they were stupendous risks against long odds. Without the remembered history of slavery and the Civil War, the Constitution’s Thirteenth, Fourteenth and Fifteenth Amendments have amnesia. Without the memory of World War I, a war that tested as never before America’s tolerance and intolerance for free speech, the First Amendment shrinks. The common defense includes the memory that on June 6, 1944, 156,000 Allied troops landed on five beaches along a 50-mile stretch of heavily fortified coast of France’s Normandy region, resulting in the liberation of Western Europe from Nazi control. The more perfect union includes the memory that on September 11, 2001, our union came together, albeit too briefly. Our collective memory includes the 100th anniversary of the 19th Amendment and the friends of civil rights in the mid-20th century. Without some memory of the trials and errors of Watergate, how are we to learn lessons about presidential power, the limits of executive privilege, and the value of checks and balances? Spending a day walking and experiencing the National Mall in D.C. is memorable as we feel the past, present and future simultaneously. So we return to our question: Why did we write it down? Why have a text? One big answer is: so we remember generation to generation. Yes, the Constitution is law, the supreme law of the land. But law alone is not so intertwined with memory. The Internal Revenue Code is law, but the vicissitudes of tax law are not what unite ourselves and our posterity. The Constitution is more than a legal code. The Constitution is the only place where we’ve pulled together, in one composition, ratified by action of We the People, the ideas without which we’d forget who and what the United States of America is. We wrote it down. But we didn’t chisel it in stone! In fact, one whole Article (Article Five) of the original 7 Articles is devoted to the Constitution’s changeability. So here we ask: when should we stand by things decided and when should we change things? When does our progress depend on remembering our past? And when does our progress depend on bravely swimming away from the shores we have known? We can dig deeper into American constitutionalism because we have a text with a story of the Constitution’s origins and how, when and why it has changed. Textual history includes a record of established facts, the historical record. Today, some people doubt whether there really is such a thing as a historical record, or whether, instead, we just each have our own individual, subjective truths. That kind of extreme relativism is hard to connect to American constitutionalism and its historicism. Yes, historians have and will continue to write and re-write American history from new and different vantage points. But new assessments, interpretations, and discoveries of historic facts don’t lead to the conclusion that there’s no such thing as historic fact. The idea of a “record” is a key one both in history and in law. Trial lawyers “make a record” in court through witnesses testifying and documents entered into evidence. While making a court record has rules of procedure and evidence that a historical record does not, the point here is that getting our facts and evidence right is important in both law and history. As Daniel Patrick Moynihan famously said: “Everyone is entitled to his own opinion, but not to his own facts.” So, for example, we can read online the notes that James Madison took during the Philadelphia Constitutional Convention from May 25 to September 17, 1787. Or, we can read the Federalist Papers, 85 brilliant articles published between October 27, 1787 and May 28, 1788, written by Alexander Hamilton, James Madison and John Jay to persuade We the People to ratify the Constitution. In addition to record facts such as these, the textual history involves questions of interpretation. For example, how was the Fourteenth Amendment shaped by the American Civil War experience? Or how do the Federalist Papers illuminate what the Founders intended and what the authors believed the public needed and wanted to hear in order to ratify the Constitution? Such questions of interpretation of the Constitution’s textual history naturally lead to lots of different perspectives, some closely aligned, some widely divergent. As you listen to a person’s opinions about a constitutional issue, ask yourself whether, if at all, the opinion seems based on facts, on evidence, on history. We don’t have to be excessively chapter-and-verse about this in conversation. But, still, it’s fair to ask of ourselves and of others: “Where do you find that in the Constitution?” It’s amazing how often starting with the wrong facts leads to misguided opinions. To the constitutionalist, it’s not very persuasive for someone who has their facts wrong to say: “That’s my truth and so it’s just as right as anyone else’s truth.” The good news is we have a text. One advantage of having a text is, well, to use it. What’s in it? And, what’s not in it? When we know what the Constitution says or doesn’t say, we can develop a “BS-meter” that goes off when others are making stuff up. In the age of fake news, we need good constitutional BS-meters. A recent poll suggested that 95% of Americans could not name the nine Supreme Court Justices when shown a photo of the Court. Unfortunately, public opinion about what’s in and what’s not in the Constitution can lump into one basket words and phrases. For example, the phrase “life, liberty, and the pursuit of happiness” is in the Declaration of Independence of July 4, 1776 but not, in that same form, in the Constitution. We should know why the Constitution never uses the word “democracy” but does use the word “republican form of government” (Article Four, Section 3). We should know if the Constitution mentions “God” or says “In God We Trust,” regardless of our religious faith or non-faith. (“Give me liberty, or give me death!” was a rousing line by Patrick Henry but didn’t make it into the text. The Constitution had to live longer than Patrick Henry and decided discretion was the better part of valor.) In sum, the Preamble’s closing why, the idea of posterity, says that generations are woven together, or not, by memory, by history, by stories conveyed and lessons learned, by the threads of joy and tragedy, sacrifice and gain. Part II: Articles: A Republican Form In Part I, using our pyramid visualization of the Constitution’s structure, we have explored the first level, the foundation, the first layer of stones that the text puts in place. We have seen that while the Preamble is a concise composition textually, the principles and civic virtues it introduces are designed to last, for ourselves and our posterity, a republic with a shared history yes, but also a republic of now and of the future. In Part II, we enter into a second area of the pyramid which the Constitution organizes into seven spaces called Articles. Here we remind ourselves that the Preamble and seven Articles were the sum total of the original 1787 text followed by thirty-nine signatures dated September 17, 1787 (i.e. thirty nine signers out of fifty five representatives at the Philadelphia Constitutional Convention.) The Amendments, which we explore in Part III, didn’t start until 1791. In Part II we will walk through the seven rooms of the Articles. Picture here that the rooms each have a numbered nameplate with one word: 1. Legislative 2. Executive 3. Judicial 4. Federalism 5. Amendment 6. Supremacy 7. Ratification As we walk through these seven rooms, note that they are inter-connected with open doors into the other rooms. Together, the seven Articles form the structure of what the Constitution calls “a republican form of government.” In the following Part II chapters we will explore the Articles, not every nook and cranny, but selectively focusing on the following: Chapter Four: A Republic Chapter Five: Federalism Chapter Six: Powers Chapter Seven: Education, Arts & Science Chapter Eight: Commerce Chapter Nine: Sacred Oaths Chapter Four: A Republic The Constitution creates a republic and guarantees a republican form of government to the states. So what is a republic? If we are to be friends of the Constitution, what is the republic we are befriending? In current politics, we hear more about nationalism and less about republicanism (small r). How does a republic distinguish itself from a nation? Is there a difference between affinity with, or patriotism for a republic versus nationalism? Let’s look first at the text. The word republic is in the Constitution’s text, referring to the government the Constitution forms and guarantees. The word “nation” is in the Constitution but in an international context of “foreign Nations” and “Law of Nations” (in Article I, Section 8). Some people would be surprised to learn the word democracy does not appear in the text. So should we conclude that democracy has no place in constitutionalism? No, we can say democracy is there, implied in the bold-font opening words, “We the People” and the popular sovereignty principle throughout the text. Pause here. What does the literal absence of the word “democracy” tell us about how to read the Constitution? What does this say about its hermeneutics (i.e. the method of interpretation the text suggests)? For example, the Constitution doesn’t use other words like “privacy,” “education,” “health care,” “assault weapons,” “the Internet” or “God.” If literalism were the Constitution’s hermeneutics, then it would follow that since the Constitution does not say “democracy,” it has nothing to do with democracy. But literalism is not the way to read our Constitution. The Constitution chooses a republic, a form of democracy – but not a pure democracy as in ancient Greece. Here’s the difference. Let’s say we start a group discussion in a class of thirty students by voting whether to keep our phones on during class. In a pure democracy, 16 votes to turn the phones off would win the day (or lose it depending on your perspective). In a republic, the class of 30 would first vote for say 3 representatives who would then vote to keep phones off or on. The Constitution references republic in the Guarantee Clause of Article I, Section 4: “The United States shall guarantee to every state in this union a republican form of government.” The Constitution prefers “union” or “republic” to “nation” when referencing the United States, reserving the word nation for an international context as noted above. In public dialogue we may use nation and republic as interchangeable without considering the special meaning of the American republic. A republic is a representative form of government, but has become over two plus centuries of history more than just a governmental type for political science. The American republic is a set of ideas and ideals that have been and are being tried and tested through our American experience and culture in countless ways. In public opinion, partisan politics can cloud the idea of republic. “Republican” today is a political party. Many don’t think of the difference between small “r” and large “R.” While the Constitution’s Guarantee Clause guarantees a republican form of government, it does not refer to a political party or equate republic to party. Nor does it ever mention political parties, or guarantee that political parties have to exist, or that there shall only be two of them. If and when you hear politicians from either side, liberal or conservative, equate their party with the Constitution, take note and beware. There’s a difference between party loyalty and constitutional loyalty, the latter being what the oath of office requires. You may believe your party’s policy platform is truer to the Constitution than the opposition’s, but a party platform isn’t a constitutional equivalency. When the Constitution says the United States guarantees a republican form of government, we should read “guarantee” as its plain meaning suggests. Guarantee is a strong word. Both the United States and the individual states are guaranteed a republican form of government. The Guarantee redoubles its meaning when it is joined with the constitutional oath of office. See Article II, Section 1. The Constitution does not require an oath to a political party. The Oath is to “preserve, protect and defend” the Constitution. This includes its guarantee of a republican form of government. The founding generation saw America as not just one more nation on the globe, but a republic, a new one unlike other nations. Republic comes from res publica meaning “a public thing.” A republic was emphatically not the private property of any person or persons. It was not a personification or extension of a powerful person or oligarchy owning and dominating it for private interests. That was a form of despotic monarchy, rejected in the Revolution, the Declaration and the Constitution. The idea of getting a public office for private profit or gain is rejected in the Constitution’s Emoluments Clauses. Emoluments mean profits or gains from holding office. There are actually three Emoluments Clauses: Foreign (Article I, Section 9); Domestic/Presidential (Article II, Section 1) and Ineligibility (Article I, Section 6). Collectively and respectively, these clauses are designed to prevent corruption via foreign gifts, preserve presidential independence from salary-leveraging, and preserve separation of powers. A republic is not a business or a corporation. A corporation’s legitimate goals include making profits for the business, shareholders, owners, employees and other stakeholders. A republic’s goals are stated in the Preamble. The central idea and ideal of a republic is consensual civic virtue: representative government by the consent of the governed whose civic virtue included the capacity to serve and sacrifice not only for oneself but for the common good, the general welfare. The central idea and ideal of a republic is not coercion-by-power. That’s not to say a republic would not be powerful, would not understand power, its uses and abuses, or would ignore the role of power politics. To be sure, our Constitution isn’t naive about power and talks about power. But it does not make power an end in itself. Power for power’s sake isn’t the purpose of a republic. A republic contains different questions than: will we be the most powerful nation on earth? What will be the relationships between a person and his/her civic self, between a person and other citizens, and between citizens and their government? What will be the relationships between sovereign states and the federal government? A republic does not center these relationships on the authoritarianism of whomever can dominate others and force them to obey. Instead, it centers the relationships on consent and freedom. The Founders saw that powers would be necessary to accomplish the ends of a republic, but the powers would be separated, checked and balanced. Otherwise, a republic would become a test of coercion (who’s the biggest, baddest and strongest), not one of civic virtue (who’s willing to serve others as well as oneself). George Washington’s greatest republican achievement (among many) was his Farewell Address: his willingness to give up power that would have surely been his for the taking and instead cast America’s future as dependent on self-sacrificing civic virtue. The presidential paradigm in a constitutional republic puts civic virtue on behalf of the American republic, i.e. civic character, as the first and foremost presidential job requirement. Once we adjust our lens on the meaning of a republic, we may see more clearly a useful way to distinguish nationalism and patriotism. American author George Orwell expressed the distinction. “Nationalism is not to be confused with patriotism,” he wrote. By patriotism Orwell meant “devotion to a particular place and a particular way of life, which one believes to be the best in the world but has no wish to force on other people.” Nationalism, Orwell noted, is “inseparable from the desire for power,” observing that the “abiding purpose of every nationalist is to secure more power.” The Pledge of Allegiance goes first to the flag and “the republic” for which it stands. We pledge allegiance not to an abstract “nationalism” but to a republic that is our home country. Befriending our republic is saying this is my home, the place where I and others I care about were born or came. As many of us are the daughters and sons of immigrants or immigrants ourselves, we can see within immigration (even as it is fraught with partisan politics) the powerful desire to have and befriend a home. America as a republic is more American than America cast as just a nation. The world is full of nations. Russia and China are nations, not constitutional republics like the United States. What are the ends that national power is to serve? Plenty of world nations have leaders whose end is power itself. World Wars have shown America and the world what happens when nationalism turns to total industrial warfare. Nationalism isn’t and shouldn’t be good enough for the American republic. When we see ourselves, our history and our place in the 21st century world as a republic with a track record, we may also discover a new way to think about patriotism as a form of civic friendship. This isn’t a narrow and dangerous game of who’s in/who’s out, a listing of who is un-American. Recall that this blacklisting was played to the hilt by the McCarthyism of the Cold War Era. Patriotism without the Constitution is a recipe for trouble. It can make us think that those who dissent or criticize are un-American, should shut up or go back where they came from. Unquestioning loyalty for nationalism’s sake is not the Constitution’s idea of loyalty. During times of pandemic, recession and social justice conflict like the present, some may see little reason to speak more broadly about faithfulness to one’s homeland. But in neighborhoods across America we are seeing more flags flying, some at half-mast. Some folks behind those flags are saying: we are not only fair weather fans. The republic needs keeping. We have plenty of reason to be down, and plenty of injustices to fight, but we are not going to surrender into dividing our house, our republic, against itself. Chapter Five: Federalism Throughout the Articles, we see a balancing and separation of powers not only within the federal structure but between the federal government and state governments, as well as between the states. Popular opinion may tend to miss how much of the Constitution is about the states rather than just the feds in D.C. So, what’s your state of mind? That is to say: What’s your home state, your city or town, your local reference point, the place you call home, and what does it look like in your mind’s eye? At Miami University and University of Cincinnati where I teach, students are from the Midwest along with a variety of other places: “I’m from Chicago.” “I’m from New York.” “I’m from London, England.” “I’m from India.” “I’m from Cleveland.” “Cincinnati.” “Columbus.” “Xenia.” “Yellow Springs.” “Portsmouth.” “Monroe.” Whether small towns or large cities, the local places we call home shape our lives. American constitutionalism has a geography. Our home-ness shapes our constitutionalism. We can drive the highways and backroads and see constitutionalism shaped by an immense and varied geography, a land, a physical place and places and also by our geographic ideas, how we relate to our urban and/or rural roots. I’m a Midwesterner, from Ohio, and this shapes my constitutionalism. The wonderful American historian John L. Thomas called this: “a country in the mind.” So where are you from? What’s your country in the mind? The Constitution doesn’t just hang out around D.C. (Don’t get me wrong. I’m a D.C. fan, have family there and am inspired by D.C.’s museums and monuments.) “Constitution” tends to conjure the “Beltway.” We put on Beltway goggles. That’s where the usual familiar symbols and images of the federal government reside. But what if we look beyond just D.C. and see American constitutionalism in its real variety and scope? We’d see a voting booth in New Mexico. We’d see a courtroom in rural Ohio. We’d see a public school board meeting in Appalachia. We’d see a public arts project in Detroit. We’d see a highway bridge in Kentucky. Our constitutionalism takes in a vast swath of the North American continent, fifty states, a federal district, five major self-governing territories and various possessions. American constitutionalism covers 3.8 million square miles and almost 330 million people. American constitutionalism is mega-diverse, from the Atlantic to the Pacific, the Great Lakes to the Gulf of Mexico, latticed with winding waterways and epic rivers, encompassing nine time zones, diverse geography, cities and towns, parks and wilderness, climates and weather patterns, a massive infrastructure and built environment, a gifted natural environment of plants and wildlife. When we bring states within the picture frame, we see federalism. The happy face civics definition of federalism is the sharing of power between the state government and the federal government. But what does “sharing power” mean? What is the reality of federalism in actual practice? Federalism has a very complicated history, far from the congenial notion of “sharing” power. Federalism is an oceanic feature of American constitutionalism. The relationship between state and federal power is always ebbing and flowing, always dynamic, sometimes calm and sometimes erupting in the most violent storms in American history. There has not been one brand of federalism since America’s founding. Federalism has morphed depending on big events in American and world history. There is the federalism of the Founders. But then came Civil War Federalism, Reconstruction Federalism, Progressive Era Federalism, New Deal Federalism, State Sovereignty Federalism and today’s New Federalism. The Civil War and its causes cast federalism into a chaotic bloodbath between North and South. Lincoln refused to accept a fractured federalism where states could break the Union, nullify the actions of the federal government and try to justify secession based on the Constitution. In Lincoln’s view, the Union simply could not be broken by the states. Never in the history of the Constitution was the Preamble’s idea of a more perfect Union been put to more brilliant, creative and consequential use than by Abraham Lincoln. Lincoln’s constitutionalism, the Civil War and the Reconstruction Amendments, including the Fourteenth, were a re-casting of federalism. This included the elimination of slavery in the states and making the 1791 Bill of Rights applicable (for the most part) to the states. Before and after the Civil War, geography was destiny, Manifest Destiny, along with its 19th century notion that westward expansion was not only destined to happen, but was divinely ordained. Yet divine inspiration theories ran into harsh facts. Native American removal from the land was a tragic chapter in the larger story of America’s massive 19th century expansion, most notably via the Louisiana Purchase and western expansion following the war with Mexico. Adding new states forced the issue of slavery and forced the Constitution to finally correct its original sin. The American historian Federal Jackson Turner developed a highly influential if controversial “Frontier Thesis” that westward expansion shaped both American democracy and character. The story of federalism reminds us that each state has its own story and distinct character: its own constitution, government, set of laws, rights and powers, along with its own citizens, demographics, geography, boundaries, history, traditions, politics, economy and culture. American constitutionalism includes state constitutions that often mirror the federal Constitution, but also, in interesting ways, may go beyond it. For example, some state constitutions expressly refer to education, health care and a healthful environment, while the U.S. Constitution does not use those words. America was states before it had a United States Constitution. The failed experiment of the 1781 Articles of Confederation tried out the idea of a loose confederation of states rather than a republic with a strong central government. But the loose confederation was like a big family feud. The Founders sought to strike a balance between the powers of the states, state sovereignty, and the powers of a strong but limited federal government. The Tenth Amendment says that powers the Constitution did not delegate to the United States or prohibit to the States are “reserved to the States respectively, or to the people.” After Founding federalism and Civil War federalism came Reconstruction Era federalism, during which the tides flowed away from civil rights. An example is the Supreme Court case of Plessy v. Ferguson, which established the separate-but-equal doctrine overturned in 1954 in Brown v. Board of Education. The Progressive Era, the First World War and later the Great Depression shifted the tides of federalism yet again with the New Deal Era vastly expanding the powers of the federal government and World War II accelerating the change. During the 1960s, 70s and 80s, much debate surrounded whether the balance of federalism intended by the Founders had given way to the so-called “imperial presidency” along with too much federal government involvement in peoples’ lives. In the 1980s with a Supreme Court led by William Rehnquist, federalism flowed in the direction of state sovereignty. The Court used the Tenth Amendment to carve out zones of state autonomy and the Eleventh Amendment to use sovereign immunity as a concept to shield states from some types of lawsuits. The Court also used the Commerce Clause of Article I, Section 8, giving the green light to federal regulation of economic activity within the state that substantially affects interstate commerce; while giving the red light to federal regulation of non-economic intrastate activity. Where is the Roberts Court going on federalism? It looks like continuing the direction of preserving zones of state autonomy. The Roberts Court will look more to limiting principles to keep federal powers within constitutional limits so as to protect state sovereignty. See, for example, the Court’s ruling (Murphy v. NCAA) that allowed states to pass statutes legalizing sports betting. The Court used the Tenth Amendment to say the feds can’t “commandeer” a power that the states have. Do we need a New Federalism for 21st century America? The states, as Supreme Court Justice Louis Brandeis said, are laboratories of democracy, each state having a republican form of government where citizens of the state and their representatives can initiate legislation and state constitutional amendments. The pluralism of the states can be a strength to address problems on a state and local level through the democratic process. While the Supreme Court has the power of judicial review to say whether a state law is constitutional, it is also true that nine un-elected Justices in D.C. were never intended by the Constitution to be policy-making surrogates for the state democratic process. In 2019 in the case of Rucho v. Common Cause, the Roberts Court majority has said that the states will have to decide whether or not they want to reform partisan gerrymandering. The Roberts Court majority believes questions of political gerrymandering are political questions beyond the authority of federal courts to decide. This state-centered approach to the “who decides” question has disappointed those who looked to the Supreme Court to outlaw partisan gerrymandering. But others see renewed opportunities at the state level to press forward to reform gerrymandering in their states. On the flip side, while each state has its own voting laws, consider the reality that foreign powers have interfered, are interfering and will likely interfere with our constitutional voting process. Article I, Section 4 of the Elections Clause reserves to the states and their legislatures the job of prescribing times, places and manner of holding congressional elections. But this does not mean that the federal government must leave each state on its own to deal with foreign power interference. Increased federal protection and resources against electoral cyber-attacks must be a priority for 21st century constitutionalism and voting rights protection. That is, one of the jobs of a New Federalism is to protect that most fundamental right of American citizenship, the right to vote, against new technological weapons used by foreign powers to disrupt American democracy. The pandemic has created a monumental and new set of tensions and questions for federalism. What are the relative powers and authorities of the states, among and between states, and the federal government during a public health crisis. Typically, health and safety matters are part of the so-called police powers of state and local governments that are more proximate to the various conditions and circumstances in their local jurisdictions. But today in this crisis, states cannot do it alone. The enormity of the pandemic means we need cooperative federalism on a vast scale like never before. Our republic needs state and federal cooperation in the coordination of strategy, discovering a vaccine, effective leadership, ongoing health care support, deployment of resources, federal loans to help businesses stay afloat and to assist the struggling and unemployed. Federalism also has a central role in large controversies like abortion rights as state legislatures test the boundaries of the Supreme Court’s so-called “undue burden” test which asks whether the state’s law places an undue burden on abortion rights. Remember that the Supreme Court gets to decide which cases it wants to take. You don’t get an automatic appeal to the Supreme Court and the Court doesn’t issue advisory opinions disconnected from actual cases. The Supreme Court has the power of its docket control. It can shape the law in controversial areas not only by what cases it wants to hear and does in fact decide, but also by saying: We’re not going to hear that case, not going to rule on what the state legislature did or didn’t do. In this way, Article III judicial powers shape federalism by checking and balancing the reciprocal exercise of powers by state and the federal governments. Federalism continues to morph into many different shapes. Consider for example the way recent and current presidents are using executive orders to exercise federal power, especially where the president wants to do something that he thinks he can’t get done via Congress, the courts or the states. Consider for example the Trump Administration’s executive order about free speech on campus. Is this a necessary order? What do you think? Is free speech on campus in need of federal protection? Should the state, the public university, be left alone to handle free speech issues on its campus without the strong arm of potentially losing federal funds? Is the executive order really designed to promote free speech or to favor a certain type of free speech it likes? How does an executive order on speech impact the higher education principle of academic freedom? In another conversation we will consider the environment, the “greening” of our Constitution. Suffice it to say here that federalism – i.e. how power is shared between state governments and the federal government – is a major dynamic in environmental law and policy. Different states have vastly different environmental issues and laws. Think California versus West Virginia. Or Kentucky versus Hawaii. Or Alaska versus New York. We have a lot of pluribus when it comes to the environment. Yet air and water and other pollution doesn’t stop at the state line sign. Increased balancing and coordinating of state and federal regulatory powers has become a necessity. For the environment, we need unum as well as pluribus. Federalism truly is an oceanic influence in our constitutionalism, ebbing and flowing, changing into many forms, and providing new and creative opportunities for dealing with the republic’s most pressing issues. Chapter Six: Powers When we read the text of the 7 Articles that follow the Preamble, one remarkable thing is how much those Articles accomplish in so relatively few words. The deed done was nothing less than building a republican form of government unlike any other at the time. There’s a famous story about Benjamin Franklin who was leaving Independence Hall on the Constitutional Convention’s final meeting day in 1787 when a bystander asked: “Well, Doctor, what have we got – a republic or a monarchy?” “A republic, if you can keep it,” Franklin responded. That quip sums up neatly what Articles I through VII do – they frame up a republic, if we can keep it. In this part of our book, we move from the Preamble’s whys to the Articles’ hows. Articles I through VII describe how a republic of We the People is to be kept, how it is to operate, how its powers are concentrated, limited, and balanced across the legislative, executive, and judicial branches, and how the powers of the states will be balanced within a system of federalism. You’ve heard the familiar phrase “checks and balances.” But that’s only the surface description of a much more intricate interplay of the way the Constitution allocates powers. For every constitutional power, there’s not just one check and balance but multiple ones. For example, during the historic first week of February, 2020, the impeachment trial of President Trump involved a tug of war over Article I legislative power and Article II presidential power. Article III judicial power presided at the trial in the person of Chief Justice Roberts who very deliberately checked and balanced his role, limiting his involvement, refusing to issue tie-breaking votes, reminding advocates to be civil as the world watched the U.S. Senate, and maintaining his impartiality. The Senate tried two articles of impeachment, one alleging “abuse of power” and the other “obstruction of Congress.” Within each impeachment article was the question of how the balance of power between Article I and Article II would be struck. Impeachment itself is a check and balance. So is the electoral process, i.e., the fact that, for the first time in modern American history, the impeachment involved a president up for re-election (not the case with Richard Nixon or Bill Clinton). The Trump impeachment trial thus brought into play the constitutional electoral process, with many Senators saying that the voters should decide the president’s future in office or not. This let-the-voters-decide rationale chose one check and balance over another: the 2020 election over removal by impeachment. While we need more historical distance to assess how the Trump Impeachment will ultimately play out, the Constitution, when faced with high stakes politics on fire, does not deliver an absolute, forever and final victory to either political faction. The sole power to impeach was exercised by the House. The sole power to try impeachment was exercised by the Senate. And the power to vote in 2020 is up to We the People. ****************************** Let’s step back for a moment and think about powers generally. What are your powers? What are the limits on your power? How are your powers alike or distinct? How many depend on other people, on a community or team? You might think of your powers as being ones of body or mind or spirit. One of my students came to class every day in his wheelchair. As I got to know him, he told me he played on the college intramural basketball team. One day he was late to class and explained that the elevator to the third floor of our classroom had been out of order. He had the power to play basketball, but not to make an elevator work. We fixed the elevator problem. It was a teachable moment for a Constitutional Conversation class to realize that one of their classmates was having trouble getting to class. Sometimes the powers we take for granted in ourselves are not so easy for others. A paradox of power, whether individual, communal or constitutional, is that humility is powerful. Those with the humility to listen gain the power of understanding. Those who are humbled by loss learn that failure is not fatal and winning is not final. Those who defend the rights of others learn that by doing so their own rights are strengthened. Those who spend power and give it away get new powers in return. In Congress, both parties have experienced what-goes-around-comes-around. Power changes hands in a democracy. If you overplay it when you have the votes, expect the other side to do so when they have the votes. We own powerful phones and use them a lot. But let’s say that lately we’ve been keeping track of how much screen time we spend daily. We may decide to limit our tech power but expand our other powers. We take out the headphones and listen to the quiet and the sounds of nature for a while. We put the phone down while we eat. We limit jazzed-up screen time before bedtime so, as we recharge our phones, we let the power of sleep recharge our batteries. Consider also how many of your powers come from others, let’s say from an express grant of permission from a third party? An annual parking pass on a busy college campus is a power granted from the university to park a car. There’s the license, the power, granted by the State of Ohio to drive my car. There’s the license and power to practice law granted by the Ohio Supreme Court. There’s a license to access certain research and library services online. There’s voter registration granting the power to vote. In countless ways, powers get siphoned out, distributed around, granted and withheld, licensed, regulated, used and lost. This thought game about powers is a way of realizing that the idea of “power” isn’t static or monolithic. Power is an idea that breaks down into many different forms of relative power depending on all sorts of circumstance, some coming from ourselves, some from others, some requiring grants of permission, some not, some powers expanding, some contracting. Powers are dynamic forces, always in motion. Often the boundaries of powers are ill-defined. Even mysterious. A young friend of mine has a habit of starting each day listening to positive messages, fifteen minutes or so of thoughts and advice for the day. He explains that, for him, starting the day with positive thoughts empowers him to see the day’s to-dos, boredoms or burdens in a different light. How empowering is this daily ritual of his? Hard to know. But it works for him and is powerful. Types of power, legally speaking, come in different flavors. Powers may be implied, express, silent, reserved, retained, enumerated, separated, checked, balanced and so on. For a relatable example, let’s take a look at an iPhone Software License Agreement. The first line says: “By using your iPhone, you are agreeing to be bound by the following Apple and Third-Party terms.” Pause. What was that? You mean when I take the iPhone out of the box and use it, I’ve agreed to all Apple’s terms even though I haven’t signed the License Agreement? Yes, that’s right. Apple’s lawyers have drafted the Agreement, reserving to Apple and giving itself the express power to say: your use equals consent. (Note to Apple CEO: If you are reading this book, you hereby consent to protect all the digital data and privacy rights of the author.) The License Agreement proceeds with other power moves. It enumerates (specifically lists) the powers you have and the ones you don’t. For example, the license gives you the power to use the iPhone software on one Apple-branded iPhone: i.e. the one you bought. It doesn’t give you the power to distribute the software to others over a network of users. Further, it gives you the express power to make digital copies with your phone via the content you store. But it limits this power, implying that other parties may have copyrights/intellectual property rights. Apple is saying that your license from Apple should not be deemed an implied power to violate another person’s copyright. That would potentially get Apple and you in trouble. The license agreement goes on to disclaim warranties, saying (in bold type) that your use of the iPhone “is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.” Evidently, Apple has reserved and retained its power to say: you assumed the entire risk of using this super-powerful computer. ************************ The Constitution is of course much more than an Apple Agreement. But thinking about the dynamics and types of power is a good warm-up to constitutional conversation. The word “power,” in singular and plural form, is used early and often throughout the Constitution. “Power” is the leadoff hitter in Articles I, II and III. Article I begins: “All legislative Powers…” Article II begins: “The executive Power…” Article III begins: “The judicial Power…” The repetition of the word “Power” adds a three-part symmetry and organization to the first three Articles. It establishes a textual rhythm. Comparatively, the longest list of enumerated powers is in Article I, the legislative Powers. Article I is also placed first in line in the lineup of powers. This primacy of positioning shows that the legislative powers are the ones closest to the powers of We the People. Popular sovereignty powers are ordered one, two, three with elected legislators being nearest, unelected judges being farthest and the Electoral College presidency in the middle. The Constitution uses the word “rights” in the Ninth and Tenth Amendments and “powers” in the Tenth Amendment to explain that the people (and the states in the Tenth Amendment) retain certain rights and powers. The Constitution’s Bill of Rights never says this is it, this is every right you have and no more. The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it the States, are reserved to the States respectively, or to the people.” Rather than try to express every conceivable right and power the people have or will ever have for all time, the Constitution limits the powers of the three branches of government, with the people keeping the rest. Here, we see again, is popular sovereignty. Government by consent of the governed – a government of, by and for the people as Lincoln said at Gettysburg. The Constitution expects rights and powers to be highly dynamic forces because it designed a republic to last for the ages. The Constitution deliberately pits powers against each other. If you’ve ever looked at the circuit breaker box in the basement of a house, you’ve seen that power flows through a bunch of circuits (to the kitchen, upstairs, bathroom, attic and so on) with breakers that check the power flow and stop it if it gets over-heated. Circuit breakers protect houses from burning. The Constitution’s many circuit breakers on many powers protect the republic from burning. Article I enumerates the powers of Congress and also includes at the end the Necessary and Proper Clause. After the list of congressional powers, there is this catch-all power: “To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all the Powers vested by this Constitution in the Government of the United States, or in any Department or Officers thereof.” What is necessary? What is proper? Note also there is an “and” joining these words. Clearly, in a complex 21st century nation, the list of necessary laws is long to say the least. But a law, to be necessary and proper, must be constitutional. Over time, and especially as the country has grown in population, geography, scope and complexity, the Necessary and Proper language has been a large platform for the creation of a vast network of administrative agencies, departments and regulatory law. America is now debating the “administrative state,” some saying government regulation has morphed into a fourth branch of government. At the Supreme Court level, the Roberts Court along with Justices Gorsuch and Kavanaugh is debating how much power administrative departments, agencies and officials have constitutionally. Justice Kagan and others have opined that the Court’s conservative majority is re-engineering how 21st century American government works through administrative law and process. This debate over how much power the Constitution gives to administrative agencies, departments and officials is fundamentally about separation of powers. That is, the more right-leaning Justices are less inclined to say courts should defer to administrative agency judgments, actions or presumed expertise. Nor, in this view, should legislators give away or delegate their law-making authority and powers to non-elected personnel. Administrative law cases and controversies will continue to be a hot area for defining and re-defining constitutional powers. What do you think? Is the so-called administrative state too powerful? Or not powerful enough? Should a 21st century Constitution be interpreted to expand or contract administrative law and powers? As the federal administrative powers expand, what about federalism and the powers of the states? Looking at current events, what are some examples of the branches of government fighting over separation of powers? Judicial Power - Due Process The Constitution’s conception of Article III judicial power links closely with principles of due process. So we need to understand what due process means if we are to understand judicial power. Due process is one of the most enduring ideas of law and justice going back to well before the Constitution. Today, principles of due process are a big dynamic in many current contexts. Let’s sort out some potentially confusing aspects of due process: first, the idea of state versus private action; second, the incorporation doctrine; third, the idea of general due process versus constitutional due process; and fourth, the idea of substantive versus procedural due process. • State versus Private Action. The Constitution and its Due Process Clauses (in the Fifth and Fourteenth Amendments) limit action by government. That is, neither the federal nor state governments can deprive persons of life, liberty, or property without due process of law. In due process cases, courts sometimes use the words “governmental action” and “state action” interchangeably, using “state action” more broadly than a state. The Due Process Clauses generally do not apply to private action between non-governmental entities. The credit card company that put an unauthorized charge of $71 on my card yesterday was, sorry to say, not in violation of the Constitution even though it took my money, my property, without due process. It’s a private company. It may have potentially broken its contract with me or other laws, but not the Constitution. On the other hand, a public, state university that expels a student without due process is potentially in violation of the Constitution (as well as state statutes). • Incorporation Doctrine. Incorporation is a shorthand term in constitutional law used to describe a very long and intricate line of Supreme Court decisions and scholarly debate over the following “incorporation question:” does the Bill of Rights apply just to actions of the federal government or also to actions of the states? Short answer: to actions of the states (largely). The incorporation doctrine brings in, or incorporates, most of the provisions of the Bill of Rights through the Due Process Clause of the Fourteenth Amendment making the Bill of Rights applicable to the states as well as the federal government. Incorporation has been an important theory in many civil rights laws and cases. The incorporation doctrine developed case-by-case, through legal argument and persuasion by advocates and judges, and gives us insight into how constitutional judicial interpretation works over time. • General Due Process versus constitutional Due Process. Because due process is an ancient concept of fairness and justice, many areas of law that are not necessarily constitutional law involve general due process. For example, a contractual grievance and arbitration procedure in a collective bargaining agreement between labor and management is based on general due process beliefs that say, in effect: the employer can’t fire you without giving you notice of the reasons, an opportunity to tell your side of the story and a hearing before a fair and neutral decider to determine if there’s just cause for your termination. This is not, technically speaking, the Constitution speaking where the contract is between a private employer and a private employee. No governmental action. It is a general type of due process commonly seen throughout law. In the work of lawyers, judges and juries, due process is not a one-size-fits-all legal process. It depends on the type of legal dispute. In any given case, we ask: 1) does due process apply? and 2) if so, what process is due? Criminal cases and civil cases require different types and levels of due process. Generally speaking, this is because the stakes are higher for the individual defendant in a criminal case where the deprivations can be life (death penalty) and liberty (jail). Higher stakes generally lead to more due process. We will see in future conversations how death penalty cases can involve decades of due process. • Substantive versus Procedural Due Process. Courts sometimes distinguish between two types of due process. Procedural due process is fairness of process, like a fair trial before an impartial judge. Substantive due process is a life, liberty or property right. Some substantive due process rights are expressly stated in the Constitution like freedom of religion. Some are not expressly stated, but are implied, like the right to privacy. Here are some, but not all, of the many forms due process takes: A fair trial before a fair and impartial judge; 80 A fair trial before a fair and impartial jury; Right to representation by legal counsel; An arrest warrant; Warnings of rights before arrest; Discovery of evidence; Right to confront witnesses; Direct and cross examination of witnesses; Rules of evidence; Rules of procedure. - Article III Judges and Courts The federal judicial power is set forth in Article III of the Constitution. But we also need to keep in mind that many more cases and controversies are decided by state and local courts. The Supreme Court of the United States is not the whole constitutional universe. Due process of law involves many other types of deciders: administrative law judges, magistrates, state and local judges, referees, private arbitrators, hearing officers, public boards and so on. Juries also have a due process role. More on that later. When you read about a Supreme Court decision in the news or if you read the actual decision itself, keep in mind that it’s an appellate decision, not the decision of a trial court. The Supreme Court doesn’t preside over jury trials or a trial where an evidentiary record is being made. Also, the Supreme Court doesn’t issue what are called advisory opinions. It decides only cases and controversies. It doesn’t originate a case itself and then decide to publish its views or make public policy on whatever topic it chooses. Cases come to the Court with litigants and procedural histories including primarily lower court decisions by federal courts of appeals and district courts located in 13 federal circuits across the US. The federal district courts are the trial courts where cases, both civil and criminal, are tried to judges and juries. Most cases come to the Supreme Court via a petition for a writ of certiorari. A “cert petition” is a request by the party who lost below to have the Court review the case. The Court doesn’t have to accept a cert petition appeal. In fact, out of about 7,000-8,000 cert petitions a term (i.e. the Court’s work time in session is called its “term”) the Court grants and hears oral argument in only about 80 cases in each term. The discretionary process of “granting cert” involves judgment calls by the Justices after appellate advocacy from litigants. A litigant trying to have his or her cert petition granted will often look for whether lower federal courts are split on an important constitutional issue, a “split in circuits” suggesting that the Supreme Court needs to settle the split and provide legal guidance. In addition to cert petitions, there are limited appeals as of right and emergency applications to, say, halt a lower court order, set bond, prevent alien deportation or stay an execution. 81 With only about 80 cases a term, a case in the Supreme Court is in rarefied air. Each case has its own record on appeal. The record consists of the transcript of proceedings below including testimony of witnesses and evidentiary materials and exhibits. The Court also has the written decisions of the courts below. The overall question is: was there error below? Did the courts below get it right or wrong? Additionally, the Court receives briefs in writing from counsel for the litigants, along with so-called amicus or friends-of-the-court briefs in support of one side or the other. The Court hears oral arguments before it recesses to decide the case. Visitors can attend oral arguments at the Court. Also, thanks to the Oyez Project at the Chicago-Kent College of law, you can also listen to audio recordings of oral arguments on line. Listeners to oral arguments as well as Supreme Court advocates observe that oral argument is like a conversation, a constitutional conversation to be sure but still an exchange between Justices and counsel. Interruptions of counsel are frequent as the Justices ask questions and direct counsel to the points that the Justices (individually and/or collectively) think are key. Oral argument isn’t a one-sided monologue by a litigant’s lawyer. Deliberations by the Justices in deciding cases and controversies are secret. The process involves: discussion among Justices; making up one’s mind; potentially changing one’s mind and/or that of others; researching case authorities; reading briefs; discussing with law clerks; forming a majority consensus (or not); and writing majority, concurring and dissenting opinions. Cases have to be decided, if at all, by a majority. Advocacy, the art of persuasion, happens between Justices, not just between the lawyers for the litigants. Behind closed doors (as it should be in the decision-making process) the constitutional conversation continues. The Constitution provides in Article II that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court…” The Constitution does not specify qualifications for a Justice such as age, etc. Here’s a fun fact. A Justice doesn’t have to be a lawyer or have a law degree. James F. Byrnes, a Justice from 1941-42, did not attend law school, didn’t graduate from high school and taught himself law, passing the bar at age 23. (Good luck with that.)

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The Constitution doesn’t set the number of Justices. Congress does. In 1789 the number was six. Since 1869 the number has been nine. A quorum of six is required to decide a case. Justices hold office “during good Behavior,” which means as long as they want to unless impeached which has only happened once: i.e. Associate Justice Samuel Chase in 1805 who was later acquitted by the Senate. Today there are two topics in the political air about the number and terms of Supreme Court Justices. The idea of limiting the terms of the Justices would require a constitutional amendment because the Constitution provides for lifetime appointment on good behavior. Such an amendment is unlikely to happen any time soon. The idea of increasing the number of Justice beyond 9 would not require a constitutional amendment. This idea, also known as “Court packing,” is based on FDR’s famous attempt to increase the size of the Court because he was frustrated that a conservative group of older Justices was declaring unconstitutional key legislative parts of FDR’s New Deal response to the Great Depression. In 2020 before the November presidential election, political advocates of a larger Supreme Court of say 11 or 13 Justices (the number would need to be an odd one to avoid even splits in voting) are worried that a second term for President Trump combined with potential vacancies could mean more Trump appointments. Thus they see a larger Court as a way to ideologically counter-balance.