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TOPIC 6 - Common Law

Introduction to Common Law (Universitat Pompeu Fabra)

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PART III. PUBLIC LAW

TOPIC 6. CONSTITUTIONAL LAW OF THE UNITED STATES: BASES

The U.S. Constitution. Bases of U.S. constitutional Law: checks and balances, judicial review, fundamental rights and federalism.
The New Deal and the reformulation of the principles.

U.S. CONSTITUTION
HISTORICAL CONTEXT AND PRECEDENTS
The liberal American Revolution (1775 – 1783). During the war, a lot of texts were written by the colonies:
- Virginia Declaration of Rights (June 12, 1776)  coetaneous texts in Europe: French declaration (French Bill of
Rights), British declaration (first revolution – 17th century).
- Declaration of Independence (July 4, 1776)  probably the most important text written: it has a list with all
the wrongs done by the UK and, for all these reasons, they declare the independence.
- Articles of Confederation (March 1, 1781)  first Constitution of the US: when independence was achieved,
the first structure of the US was a confederation based on these articles.
- Constitutions of the Colonies States  each colony approved its own Constitution: they were independent
between them as well.
The US emerged from the Independence war (Liberal American revolution: 1775 – 1783): the colonies wanted to be
independent from the UK; the main reason was because they paid a lot of taxes and they didn’t have any influence in
the UK parliament to establish the taxes (“Taxation without representation”).
The Independence war was quite difficult and long because the UK had a lot of interests on the colonies and they
realized this war was important. They knew the colonies had a lot of potential so they fought very hard to keep them,
but colonies became independent and created the United States of America.
 Confederation: every state has a sovereign but the central power is weak, the power is in the state (first
formulation of the U.S.) It has less intensity than a Federal union.
Why a new Constitution? The Federalism vs Antifederalists  the Articles of Confederation had some issues: in a
confederation, the subentities are strong and the supreme government is quite weak. This structure was problematic:
they realized that in Europe there were very strong countries, so the needed a stronger union in order to be a key
player in the world. So with a confederation they couldn’t compete with such strong power of Europe.
- Federation vs. Confederation  there was a confrontation between federalists and antifederalists:
o Federalists wanted the subentities to be less strong (reducing its power) and the central government
to be stronger.
o Antifederalists maintained that the way the confederation is organized must be improved but they
want to maintain the soul of the confederation.
- Is it necessary to include a Bill of Rights in the US Constitution?
- A separation of powers issue: its design and the relations between federal powers.
Philadelphia Convention (May 25 – September 17, 1787)  the victory of the Federalists from a revision of the Articles
of Confederation to an entirely new Constitution.
 In this convention there were important representatives of both parties. It was created to amend the Articles
of Confederation but finally, as the Federalists win the Antifederalists in a very strong way, it was more than
that: an entirely new Constitution was created.

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Ratification process
- A controversial legal trick: the rule for unifying the new Constitution (2/3 of the States).
- Ratification from the old Congress (September, 1787) and all the States (from 1787 to 1790).
- The new Constitution entered into force in June 21, 1788 (after 9 States ratified it).
The Federalists realized that, in the ratification process, the Antifederalists were going to face them: to amend the
Articles of the Confederation it was needed the unanimity of all the States and they knew that the Antifederalists
would use this against them, so they change the rules of amendment: from unanimity to 2/3 of the States. This was
very controversial.
The US Constitution was drafted in the Philadelphia Convention but then, finally, this new Constitution should be
amended by all the States. The Antifederalists thought that even though they were defied in the Philadelphia
Convention, maybe they could fight for their believers during the ratification process which reflects in the fact that 3
years were needed for all the States to ratify.
In 1788, the new Constitution entered into force but only with the ratification of 9 from 14 States: the Antifederalists
didn’t want to ratify the Constitution but they realized that the States had lost power in favor of the central
government.
STRUCTURE OF THE US CONSTITUTION  Preamble “We the people”:
- Article 1. The Legislative Branch
- Article 2. The Executive Branch
- Article 3. The Judicial Branch
- Article 4. The States
- Article 5. Amendment
- Article 6. Debts, Supremacy and Oaths
- Article 7. Ratification
FOUNDATIONS OF US CONSTITUTIONAL LAW  the foundations of the US Constitution are met in 5 basic principles:
1. Normative Constitution
2. Checks and balances principle
3. Judicial review legislation
4. Fundamental rights and freedoms
5. Federalism
 A NORMATIVE CONSTITUTION  one of the most important innovation of Constitutional Law: the Constitution is
enforceable norm not only a political guide. This is the base of the other foundations. The US Constitution is a
normative constitution: the Constitution is a nom, a legal rule, not a political document. It is supreme (is above of all
the norms) and rigid (it only can be amend by a process that is more difficult than the ordinary process).
The value of the Constitution  two historical views:
- US Constitutionalism: supremacy, rigidity, judicial review
- French Constitutionalism: political guide, centrality of the Assembly and Law, lack of judicial review.
US Constitutionalism came from UK Constitutionalism, but they change it: they took the Constitution as a supreme
and rigid norm.
 CHECKS AND BALANCES  the UK had checks and balances and also French constitution is based in this principle. The
innovation in the US is to take this principle to a new level: they redefined it and made it work. The separation of
powers doctrine is the main doctrine to avoid the Absolutism. So we can say that he check and balances is the division
of powers in different branches to avoid tyranny and securing the freedom of individuals.

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- The aim of the doctrine: avoiding tyranny and securing the freedom of individuals  checks and balances is
created to avoid tyranny and the concentration of power, the power is separate in different bodies.
- The origin of the doctrine: Lock and Montesquieu. The foundation of a liberal Constitution as a reaction to
absolutism.
- Two revolutions of the doctrine:
o A formalist perspective (French revolution): separation of powers doctrine.
o A dynamic perspective (American Revolution): checks and balances doctrine.
- Institutional arrangements under the checks and balances/separation of powers doctrine:
o Presidentialism: USA
o Parlimentarims: main of continental Europe.
o Hybrid systems: France.
 JUDICIAL REVIEW  judicial review legislation is one of the main innovations of the US Constitutional Law. Huge
power that we give to judges and it means that a judge can control the legislation and if the judge thinks it is
unconstitutional he can declare them as so.
- A new judicial prerogative: judicial review  power to review legislative acts under the Constitution and annul
or no apply them in case of unconstitutionally.
- The prerequisites for the existence of judicial review:
o A normative Constitution (supreme and rigid)  we need it so the judicial review can exists, because
judges can only enforce norms.
o A positive conception of judges  people trust judges: judges were in favor of the Colonies in the
Independence War.
- Two models of judicial review:
o US Model: decentralized judicial review.
o European continental model: centralized judicial review  in Europe we have judicial review since
IIWWW.
- The big problem of judicial review  the democratic objection.
It is important to have judicial review because the Constitution is a supreme norm and to grant this supremacy the
judicial review is needed. It also is important because of the checks and balances doctrine that is a dynamic perspective
that allows the relation between the 3 powers. Moreover, judges in the US have power and they are very important
in Common Law, so people trust in them, that’s what they have this huge power. In Civil Law systems, during a lot of
years it was thought that judges weren’t making law but only interpreting and applying it: the only power that can
create law is the legislative power. In US it’s different because they think that judges make law by applying it.
 FUNDAMENTAL RIGHTS AND FREEDOMS  this is an element that was from the beginning in the states Constitutions
(States level). The problem is in the federal level where the incorporation of Bill of Rights was a gradual process. At
first the US Constitution didn’t contain the Bill of Rights because the fundamental rights were already protected in the
states Constitutions. They changed their minds because a) the lack of Bill of Rights was one of the critics that make
antifederalists and b) what happens if the violation of the rights and freedom had his origin in a federal level? It is
necessary to have a Bill of Rights in a federal level.
- The States level  Bill of Rights from the beginning.
- The Federal level  gradual incorporation:
o The philosophy of American Revolution was very sensitive to fundamental rights  Declaration of
Independence (1776) and the Virginia Declaration of Rights (1776).
o US Constitution (1787)  no recognition of Fundamental Rights:
 Recognized in the States Constitution.
 Only recognized and protected against the federal powers or also against the States?
o Bill of Rights (1789 – 1791)  contemplated in the ten first amendments to the Constitution.

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o Other fundamental rights incorporated by amendments  incorporated after Civil War:

 13th Amendment (1865): prohibition of slavery.
 14th Amendment (1866 – 1868): due process clause, equal protection clause.
 15th Amendment (1869 – 1870): suffrage for African American.
 19th Amendment (1919 – 1920): suffrage for woman.
- Currently
o Nationally  federal and state courts review legislative and executive acts under the Bill of Rights
recognized in federal and states constitutions.
o Internationally  US does not participate in the Inter-American system of human rights.
 FEDERALISM  it’s also an innovation of the US Constitutional Law. 3 dimensions of federalism:
- Federalism as a territorial organization of power  historical circumstances, integration of national minorities,
under cultural states.
- Federalism as a complement of the separation of powers/checks and balances doctrine  the vertical division
of power (most important in the US): federalism as another way to control the power.
- Federalism as an efficient system of allocation of powers and competences  subsidiarity principle and
economies of scale.
Multiple impact of federalism in the institutional design of USA.
- Ratification and amendment of the US Constitution.
- Election and articulation of the federal legislative and executive powers.
- Relationship between federal and state courts.
- Relationship between federal and state law.
THE NEW DEAL
The Progressive Era (1890 – 1930) and the New Deal (1933 – 1938)  with the New Deal, US change its function:
- New conception of the role of the State in economy and society: the regulatory state  there was a pure
capitalist system and they realized that the State needed to intervene in economy and society so it becomes
a regulatory state.
- New institutional design: the growth pf the administration (the executive, agencies and independent
agencies).
- New concept of public law: new constitutionalism (“constitutionalism mutation”) and administrative law.
Transformations of the foundations of constitutional law  the foundations of constitutional law remanded but their
understanding changed:
- Checks and balances doctrine  less power for the Congress, more power for the executive (administrative
apparatus).
- Federalism  more power for the federal level and less protagonism for the states.
- Judicial review  end of the Lochner era (freedom on contract), the start of the era of deference (rational
basis test for economic and social legislation).
- Fundamental Rights  the only field where judicial review is strong (strict and intermediate scrutiny).

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