Thanks for joining this episode of the No. 86 lecture series, which continues the conversation
in the 85 Federalist Papers about the proper structure of government.
Today’s episode features Professor Kurt T. Lash, who holds the E. Claiborne Robins
Distinguished Chair in Law at the University of Richmond School of Law.
He is the Founder and Director of the Richmond Program on the American Constitution.
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
How did the tensions between English tradition and American innovation, and between Federalist
and AntiFederalist, result in our structural Constitution?
Today we’re speaking with Professor Kurt Lash to discuss how the separation of powers
works in Constitutional design, preserving the liberty of the people and the sovereignty
of the states.
Why does Constitutional structure matter?
Well to understand that you have to have an idea of what we are talking about in terms
of Constitutional structure.
And here you are usually talking about the the big ideas of the Constitution.
The idea that there are separate branches.
And you would have the legislative branch, the judicial branch, and the executive branch.
The American Constitution's major structure of course is more than simply the separate
three branches of the national government.
Its structure also includes the individual states, who themselves form this part dual
federalist Constitution.
With some administrative or legislative powers kept on a local level with the states.
And other powers dispersed between the three branches of government.
This Constitution was created with this particular structure.
Because the idea was, that by separating different responsibilities, separating out different
powers, that would be the best way to secure liberty.
To prevent any one branch, either at the national level, or on the state level, from becoming
tyrannical.
And ignoring the wishes, desires and will of the people themselves.
When the Constitution was first proposed and sent to the states for potential ratification.
There emerged an extraordinary and dramatic debate in the various legislative assemblies,
up and down the eastern seaboard.
The federalists, as they came to be known, supported the Constitution and hoped for its
adoption, because they believed it would solve a number of problems that had existed under
the Articles of Confederation.
The so called anti federalists, represented a group who are concerned about the proposed
Constitution, or deeply opposed the proposed Constitution.
Their objections took a variety of forms but I think they can be generally grouped, that
they worried that this new and untested national government would become just as tyrannical
as Parliament had been across the oceans, and had led to the original resolution.
The problem there is they weren't represented in Parliament.
Parliament passed laws that were self dealing and didn't take into account the concerns
of the local people, the local colonists.
Well here, 13 years after the revolution, there is a new proposed government that's
going to be centered somewhere, maybe in New York or maybe in Pennsylvania, or maybe the
swamps of Virginia.
Who knows where the capital is actually going to be placed.
But no matter what, this capital, this new proposed national government was going to
be far away from most of the colonists, or most of the Independent states.
So the concern was this proposed government would be just as out of touch, just as self
dealing, just as unwilling to look at local conditions and local concerns as Parliament
had been, before the revolution.
So when the Constitution was sent to these states, for debate, these people, these anti
federalist, with their concerns, wanted insurances that this new Constitution and this new nation
government would not be tyrannical.
Would only have certain limited, enumerated powers.
And that the people in the states, even after signing the Constitution into being would
still retain their own Independent sovereign existence to the extent they hadn't delegated
away certain powers to this new national government.
It was a grand debate.
And it was a close call.
But in the end a sufficient number of people in the states were convinced that this new
government would not be dangerous.
That is was structured in a way through separation of powers, that the people's liberty would
be sufficiently preserved as would the Independent existence of the people in the several states.
You’ve described how the separation of powers protects liberty.
Can you say more about how separating powers works?
How does that play into the design and writing of our Constitution?
Checks and balances.
We've heard about this since we were in elementary school, and learning about how bills become
actual law, and how each branch of the federal government has its own powers, but it can
also keep an eye on what's happening in the other branches.
Checks and balances is simply another way to describe the dispersion of power between
the three branches of the federal government and the distribution of power between the
national government and the states.
Written constitutions exist all over the world.
They can be statements of aspiration, statements of ideas, or religious beliefs, or political
principles that are never operationalized, that never actually have any role to play
in the actual interactions of government and the people on the ground level.
The American Constitution however is different.
It's a constitution that's meant actually to control, to limit, to constrain the actions
of government.
That's a very different kind of constitution and it represents a particular theory.
A theory that emerged in the United States between the time of the revolution and the
adoption of the Federal Constitution.
It was an idea that the people existed apart from the ordinary institutions of government.
This is different because in ordinary parliamentary systems, the government claims to speak the
will of the people.
Whenever Parliament sits, so sits the people of the country.
This was not the idea that emerged in the American colonies.
As the struggle with Britain continued and deepened, and as these assemblies on the colonial
level began to meet and come into increasing conflict with the governors and with Parliament,
ultimately these assemblies were made illegal.
It was against the law for the assembly of Virginia to get together and discuss Virginia
policy.
But when they were made illegal, they continued to meet anyway, and by doing so they actually
gained a greater legitimacy in the eyes of the people of Virginia.
It was the very fact that these assemblies were meeting apart from the ordinary institutions
of government that made them seem, in the eyes of most people, as the most representative
of the ideas of the people themselves.
So this idea of popular sovereignty, the sovereignty of the people over, apart, and independent
from the government itself was a peculiarly American idea.
But how do you instantiate this idea?
How do you operationalize this idea?
How you do make it real and actually protective, this idea of popular sovereignty?
Well, you do it through a written constitution.
A constitution that reflects the will of the people themselves.
It's written in extraordinary circumstances.
You create a constitution through assemblies that don't follow the ordinary operations
of government.
These constitutions are adopted through peculiar referendum, or particular gatherings and assemblies
that meet just for the purpose of framing the people's will and putting it into written
form.
Then once done, that written constitution becomes a constraint, becomes a list of instructions,
a list of delegated authorities that then become the discretionary enforcement powers
of the government that's brought into being by this written constitution.
The written Constitution formed a new national government.
How did it purport to protect and maintain the sovereignty of the states that formed
the nation?
What does the Bill of Rights add to the Constitution that wasn’t already included?
What's interesting about the American system is that it's this complicated machine, that
includes not only government institutions on a state level, but also a government institution
on a national level.
This is a federalist system, so that you have people- both the national, unified people
of the United States, and then the independent people of Virginia or of Massachusetts-who
continue to have their own sovereign, independent governments.
This retained sovereign independence was actually promised by the Federalists during the debates
over the original Constitution.
You had people like Alexander Hamilton and Federalist 81 insisting that states would
continue to retain their sovereign existence.
And in the debates throughout Virginia, up and down the Eastern Seaboard, this was a
particular concern, and it was insisted over and over again that although we were creating
a new national people through the adoption of this American Constitution, we were also
preserving aspects of sovereignty on a local level.
It's a complicated machine, and one that had never been tried before.
And it was going to create a delicate balance between these cultures on a local level and
this newly emergent national culture.
It's a responsibility of the courts, therefore, to preserve and maintain this delicate balance.
One that keeps an eye on the responsibilities of a national government that represents all
of us as an American people, but also preserves the retained powers and rights of the peoples
in the several states.
The role of the 9th and 10th Amendments is to make this clear.
This was actually assumed as the way the Federal Constitution would operate originally, but
there remained concerns that without some type of specific mention in the Constitution
that there would be reserved authorities, powers and rights of the people on the state
level.
That the national government would abuse its particular enumerated powers and perhaps would
use clauses like the necessary and proper clause in a way that so expanded national
powers to overwhelm the people in the states.
So they demanded a Bill of Rights.
After all, the state constitutions had Bill of Rights specifically limiting the responsibilities
of state government.
They wanted a Bill of Rights in the national Constitution itself.
And as proposed out of Philadelphia, there was no Bill of Rights.
Federalists defended this omission according to the theory of enumerated national power.
They promised that the people in the states would remain sovereign and independent in
every area that wasn't specifically delegated into the hands of the national government.
This did not alleviate all the concerns of the people in the states.
In fact, when they looked at the proposed Constitution, they kinda saw a Bill of Rights
already in there.
They looked at Article 1, Section 9.
That contained a specific list of restrictions on Federal powers.
If it had been important enough to list rights of habeas corpus or other particular constraints
on Federal power in Article 1, Section 9, why didn't they place restrictions when it
came to freedom of conscience or freedom of speech?
Or search and seizure rights?
Other things that were very important, as far as the people in the states were concerned
to keep out of the hands of the national government.
The Federalists ultimately were pressured into promising that there would be an addition
of a Bill of Rights.
That there would be a list of specific rights added to the Constitution, soon after the
ratification of the major document.
When they drafted that list, in order to insure that it didn't imply a government that could
do whatever it wanted to do, so long as it didn't violate a specific restriction.
They added the 9th and 10th Amendments.
The 9th Amendment declares that the enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the people.
Just because there's some restrictions on your power, don't think that your power is
otherwise untrammeled, unrestricted, unconstrained.
You will always be held to just do what is reasonably necessary to advance your specific
enumerated powers.
The 10th Amendment then declares that powers not given by the Constitution to the national
government nor denied by it to the states still remain where they were from the beginning.
They remain with the sovereign people in the independent states.
Everything not given away is retained.
The 9th and 10th Amendment declare the principles that had already been promised but simply
make them an explicit part of the American Constitution.
You’ve talked about some of the political precedents, both English and American, that
gave rise to the final structure of the Constitution.
What about some of the legal precedents inherent in the English and colonial American systems,
such as the common law?
Does the common law hold the same authority under the American Constitutional system as
it does in England?
The common law is a body of laws and authorities among the judicial branch that was a common
heirloom that the people of America brought with them when they began to set up their
colonial governments, and of course aspects of the common law then informed so many aspects
of the daily lives of the colonists, from [court 00:18:44], to contract, to property,
to real estate, to ordinary criminal law, protections of defendants who are faced with
accusations of crime.
A large body of judge-made law that came from England.
Now under the common law, even if these rules and regulations were developed by the courts,
they were always subject to change or abrogation, or modification by Parliament itself.
Parliament always had ultimate control over the common law because Parliament, of course,
represented the will of the people themselves.
Rules, then, that developed under common law, reflected the idea that the government, when
it sits, reflects and sits as the people themselves.
These common law rules that show so much deference to Parliament, and rules that, of course,
included sedition, and the right to punish people for criticizing, or interfering, with
the operations of government.
The reason why those rules where there is, of course, government ... in a parliamentary
system ... represented the people themselves, so to criticize the Crown, or to criticize
the government, you were actually criticizing the people of England.
That wasn't the way rules and ideas developed under the American system.
Under the American system, the people represented their will not through the operations of government,
but through a written constitution.
The people stood apart and stood as judges over their government.
That meant there had to be new rules when it came to laws regarding defamation, and
sedition, and freedom of speech.
Common law rules and methodologies that might be appropriate in a parliamentary system were
not clearly at all going to map onto what was happening under the American system, this
specialized idea of parliamentary sovereignty, which was unique to the American experience.
So what to do with the common law was actually a matter of struggle and debate in the early
decades of the American Constitution.
There were some members during the founding era who were quite comfortable with the ideas
of the common laws mapping onto American Constitutional law, and the interpretation of the American
Constitution, but there were others, from James Madison to the first constitutional
treatise writer, St. George Tucker, who actually claimed that the common law needed to be carefully
deconstructed and put back together again with an eye towards the peculiar ideas of
American popular sovereignty.
Some rules of the common law would still continue to work just fine, but other rules would not.
It was something that was going to take case-by-case development with a careful consideration as
we went that whatever rules developed had to reflect this new idea of American popular
sovereignty, and that played a particularly important role in the Alien and Sedition Act
controversy, and the development of freedom of speech in the debates that occurred in
the first decade of the American Constitution.
The primary example of the problems of the common law and how it mapped onto the American
system would be the rules of sedition, and the ability to criticize one's government
without being hauled into court and thrown into jail, for interfering with the will of
the people themselves.
When Congress passed the Alien and Sedition Act in the late 1790s, the support and the
justification for those laws was the common law, the idea that one should not be able
to criticize the government, the government sitting as the people's representatives, and
so to interfere or to somehow undermine the people's support in the government was actually
quite dangerous under a common law system with a royal sovereign.
In the American system, as argued by James Madison and Thomas Jefferson, precisely the
opposite rule ought to apply.
There was nothing more important than have the people be able to criticize and undermine
the authority of their current government because that's how elections should work.
The people should be able to change their governments and make sure that their governments
were following the will of the majority, and, most of all, were following the will of the
people themselves as written into the American Constitution.
Freedom of speech under the American context simply could not be mapped onto the rules
of common law and common law sedition as it had developed in England.
It was the flashpoint for the need to change the rules of common law and come up with new
ideas and new interpretive measures that would preserve liberty as Americans had come to
know liberty.
Thank you for listening to this episode of the No. 86 Lecture series: Continuing the
Conversation in the 85 Federalist Papers about the proper structure of government.
The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging
discussion and critical reflection relative to how each subject is widely understood and
taught in law schools and among law students.
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