As you know, here at CUNY Law, we study the Constitution in two parts.  Last year, you studied the “rights” components of the United States Constitution in Liberty, Equality Due Process (or LEDP).  This semester, we study Constitutional Structures, addressing the structural provisions of the Constitution.  As noted in the syllabus:

This course examines national separation of powers and federalism as core values and structural elements of the United States Constitution. It analyzes the nature and scope of the powers the U.S. Constitution vests in the three branches of the national government, the interrelationships among those branches, the distribution of powers among local, state and federal governments, and the ways in which these structures and relationships impact democratic processes, individual rights and the advancement (or weakening) of core constitutional values, including democratic governance, equal citizenship, individual liberty and the rule of law. The course also attends to questions of constitutional interpretation, historical development of constitutional doctrines and the role of changing social understandings and phenomena in the evolution of constitutional law.

We begin the course with some background.  The history behind the establishment of the United States Constitution helps explain its powers, structures, and the relationships among them.  There is a common narrative in the U.S. about the creation of the Constitution.  I will show a short film during our first class that describes the basic story of the Constitution’s creation that is commonly told.  While it is important to be familiar with that narrative, it is also important to recognize that there are several neglected stories about the/our nation’s founding, the context in which the Constitution was created, and the content and structure of the Constitution itself.  These include societal understandings and people – African Americans, women, Native Americans, colonized peoples – not fully considered or included among the Constitution’s original conception of “We the People.”  Some of that neglect has been addressed over time, as the interpretation and application of the Constitution has evolved and changed.  Some has not.  It is important to keep this in mind.  It is also important to note that these questions, though of critical importance and often quite relevant to today’s political and social environments, are not the central focus of this course. 

This course focuses on Constitutional Structures from the perspective of legal training.  Unlike methods of inquiry and study in courses about the U.S. Constitution in the areas of political science, history, or philosophy, this course focuses on the Constitution using the professional techniques and methods of U.S. lawyers, and its effect in institutions of U.S. government where lawyers work.  While such a focus may at times feel constrained, it is necessary to the effective practice of law to understand this discipline.

Constitutional Powers and Structures courses and materials are almost universally organized by first looking at the powers of the federal government and their limits and then the power of states and their limits.  Federal powers are broken down by branch, starting with judicial powers, then legislative powers, and then to the powers of the Executive branch.  The federal powers are checked by the doctrine that federal powers are limited to those powers that are enumerated in the Constitution.  For the legislative branch, those powers that are “necessary and proper” for carrying out those enumerated powers.  The powers of the different federal branches are also limited by checks and balances.  While some power is checked based on the proper function and role of each branch, there are many areas where the powers overlap and are not completely separate.  The residual powers left to the people and the states under the 10th Amendment, along with state immunity under the 11th Amendment, provide textual support for the notion that in some cases state power or sovereignty can be a check on the federal government.  Respect for dual federalism, or state sovereignty, often operates or is interpreted to limit the scope of federally enumerated powers.  There are many state and federal functions that overlap, the Constitution’s Supremacy Clause results in the preemption of state law that conflict in relevant ways with federal law.

This course starts with the federal judicial power expressed in Article III of the U.S. Constitution.  This is because of the central role that the judiciary plays in hearing and resolving cases and controversies concerning all these separate, overlapping, and often conflicting branches and levels of government, and the powers that they exercise vis-à-vis each other and over persons within their jurisdiction.  While the text of the Constitution is always the starting point, the overwhelming bulk of the understanding of the Constitution comes from case law.  In this class, we will start by reading the Constitution, but then focus almost exclusively on the decisions handed down by the Supreme Court that interpret certain key provisions of the Constitution and the Constitution’s structure.

We also begin with a note about the importance of Constitutional interpretation as both part of the judicial power and as a limit on that power.  The readings in the CRS Report on Modes of Interpretation explain the major canons or “tools” of constitutional interpretation.  Because the Constitution is written in broad language and is subject to interpretation, there is a degree of ambiguity and uncertainty in this area of law that can be unsettling.  That indeterminacy requires students to give attention to the details in development of constitutional rules and to consider closely the application of facts to engage effectively with constitutional doctrine and to become effective constitutional law advocates.

I look forward to traveling this doctrinal journey with you.