1. Constitutional Conflicts and Struggles
Louis Fisher
Constitutional Conflicts and Struggles

2. What is a Constitution? Fisher’s definition
“To be worthy of the name, a constitution embodies a philosophy of government with sovereignty resting with the people, not solely with elected officials and judges.”
Four Criterion (Bolingbroke 1733)
Behavior to be governed by laws, institutions and customs set in written form;
Fixed principles of reason which evoke the idea of higher law or natural law;
Government directed toward fixed objects of public good; and
The community consents to be governed.

3. Reason and Law
Higher Law (Natural Law): the belief that there are principles of justice and morality that derive from reason and are superior to positive law (manmade).
Locke, 2nd Treatise – the origin of American constitutionalism
Reason is the Law of Nature
Legislative Power is supreme but not arbitrary
Declaration of Independence
Fixed objects of public good
By consent of the community

4. Modern Concepts in Constitutionalism
There must be fundamental equality under law among individuals (Sutherland).
The fundamentals of the constitutional system must be reduced to a written statement (Sutherland).
A structure to restrain government. Dividing power. (Carl Friedrich).
Functional (Separation of Powers)
Spatial (Federalism)

5. The Separation of Powers
The idea of separation of powers has deep historical roots.
Aristotle: mixed regime (democracy and aristocracy)
Cicero: nobles, plebes
Montesquieu: three estates of the realm (Lords Temporal, Lords Spiritual, Commons), Montesquieu suggests a functional balance between legislative and executive (Parliament/Monarch)
U.S. framers embraced not only separation of branches but also state-nation separation

6. Separation of Powers in American Constitutionalism
Colonial Charters
Royal Governors/Colonial Assemblies
State Constitutions
Elected Governors/Representative Legislatures
Articles of Confederation
No Separate Executive/Congress Represents States
U.S. Constitution
Legislative, Executive, and Judicial Branches
Checks and Balances
Federalism

7. Result of Debates at the Founding
Written Constitution establishes, distributes, and sets limits on powers of government.
Congress given “legislative power,” i.e. the power to make laws. Concept of enumerated powers. Some are specified and some implied.
President is given “executive power” -- responsibility to “take care that the laws be faithfully (not literally) executed; but also with presidential discretion (prerogative, inherent powers, implied powers).
Judiciary is given “judicial power.” What is it?
Federalism – the Tenth Amendment reserved authority-giving powers to the states with local governments thus subject to 50 fifty different legal and political situations.

8. On the Limits & Nature of Power
“No axiom is more clearly established in law, or in reason, than that whenever the end is required, the means are authorized; whenever a general power to do a thing is given, every particular power is necessary for doing it is included.” Madison in Federalist 44
This is why Madison successfully objected to including the word “expressly” in the 10th Amendment.
“The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

9. Enduring Questions & Controversies
Who determines powers that are not explicitly stated in the Constitution, but appear necessary for the government to function?
Should each branch of the government make this decision in the exercise of its constitutional responsibilities (departmentalism)?
Must/should the scope of implied powers, and the interpretation of specified powers, evolve to meet changing social and political circumstances?
Who should have the last word in interpreting Constitutional powers and their limitations?