3 - 5 - Bonus Material: Q&A with Daniel (11:58).txt

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Hi.
Welcome to the second week of bonus
materials for Professor Akhil Amar's
Constitutional Law course.
My name's Daniel, and I'm one of
the teaching assistants for Professor
Amar's course.
I'm a second year student here at Yale Law
School.
Last week we had a discussion forum event
in which
a lot of people posted questions and me
and some of the other TA's had the chance
to respond to those questions on the
discussion forum.
It was a really fantastic time and we were
really impressed by
the volume and quality of the questions
that you guys were asking.
This week we wanted to take the chance to
address
a couple of questions that we didn't get a
chance to
respond to last week, and do it in a more
personal way with with me discussing them
here on the air.
so.
First off, I'd say
that I'm not going to be able to get to,
even close to, the
full volume of quality questions that
people
have been asking on the discussion forum.
But we just wanted to bring up a few that
kind
of highlight the sort of high quality
discussion that's been going on.
So the first question comes from a post
originally by Michael Blanco.
And Michael asks, you know, we're studying
the Constitution here, but, is the
Constitution itself
even legal?
Which is a interesting question to ask,
because when the
Constitution was created the United States
wasn't the United States.
There were 13 states, and they were bound
together in the Articles of Confederation.
When the Constitutional Convention
actually convened in 1787, they
were originally instructed to come up with
revisions to the
Articles of Confederation.
And, as Michael points out, the Articles
of Confederation claims that in
order to change anything, you need
unanimous consent of all the states.
In fact, here's what the Articles of
Confederation had to say about its own
amendment.
But this is from Professor Amar's book on
page 30.
It said, quote
>> [BLANK_AUDIO]
>> The Articles of Confederation shall
be inviolably observed by every state.
And the Union shall be perpetual, nor
shall any alteration
at any time hereafter be made in any of
them.
Unless such alteration be agreed to in a
Congress of the United States.
And be afterwards confirmed by the
legislatures of every state.
So that seems pretty unambiguous.
It seems that the Articles of
Confederation said, if you
want to change anything, you need the
consent of every state.
But that's not what the framers at the
Philadelphia Convention did.
If you recall in Article Seven of the
Const,
of the Constitution that the framers
created, they said
that as long as nine states were willing
to
ratify the new Constitution, it would go
into effect.
So how was it legal for the framers to
produce a constitution
like that, that only required 9 of 13
states to consent to it,
when the Articles of Confederation, which
you know, was a
binding legal document itself, said you
need every states consent?
so, here's one potential answer to that
problem
that professor Amar talks about in his
book.
And that's that, the Articles
of Confederation wasn't like the
Constitution.
It was really a treaty, it was a league,
it was an agreement between a bunch of
different sovereign states.
And according to principles of
international law prevalent at the
time, a state wasn't obligated to follow a
breached treaty.
So, you know, then, if they entered into a
compact with another nation, and then that
nation didn't
honor its obligations under the compact,
the first nation
had no obligation to continue to honor its
own.
So the way that the framers understood
the Constitutional Convention, and,
possibly the best way for us to
understand it retrospectively, is that
they were addressing a breached treaty.
That the Articles of Confederation was a
breached treaty.
That states had failed to honor
their obligations under the Articles of
Confederation.
And, therefore, the founders were every
were entirely
justified in saying, we're going to create
a new agreement.
We're going to create a new nation.
yeah, they were a little ambiguous at the
time about exactly who breached
about how, and this was understandably a
delicate question.
Nobody wanted to be throwing around
accusations.
Also, depending on which states agreed to
ratify
the new Constitution, it might feel
different which states
you had to say had breached the old
Articles
of the Confederation in order to make
things legitimate.
But, in terms of the way to think about
how, how was it
legal for the framers to create the
Constitution in a way that didn't
seem to follow the procedures of the
Articles of the Confederation?
Think of it as a breached treaty, is a
good place to start.
So, another great question, that, that
wanted to
address was something originally posted by
Fernando von Hinke.
And he asked about the right of
states to secede, and whether the
Constitution actually
explicitly tells us whether states do have
the right to leave the Union or not.
And this sparked a really fascinating and
extensive
discussion with I think maybe even
hundreds of posts.
And it's an important question and one
that
we're going to come back to a little later
in the course when we talk about some
of the, Constitutional upheavals around
the Civil War.
but, it's important to think a little
about it
now and, here's an answer that professor
Amar highlights.
And that´s the, unlike the Articles of
Confederation, which we were
just talking about, the Constitution
really
wasn't an agreement between sovereign
states.
And there´s several features of the
Constitution that point us toward that
conclusion.
So one is the Preamble itself.
And the Preamble doesn't say this a
compact.
It doesn't say this is a league.
It doesn't say this is an agreement.
It says this is a Constitution.
It is constituting a new nation out of
constituent parts.
Rather than a loose confederation of
sovereign states.
another, another piece of evidence is
Article Six, the Supremacy Clause.
Which says that the Constitution is the
supreme law of the
land, and nothing that any State can do
will supersede the Constitution.
Which seems to imply that the states
really aren't
sovereign anymore.
If North Carolina decides it doesn't like
part of the
Constitution, it wants to do something
different, it doesn't matter.
It's, th, you can't, you can't repudiate
the Constitution.
Another interesting feature of the
Constitution
that suggests a kind of, that does
not suggest that the sovereign state
relationship is not what we're talking
about.
Is the difference between Article 7, which
describes ratification,
and Article 5, which describes
Constitutional amendment.
So the Articles of Confederation, as we
discussed
earlier, requires unanimity to change the
agreement, right?
And that suggests that every state who's a
party
to the Articles of Confederation is
remain, retained its sovereignty.
It, it, it's not going to be forced to do
anything new under the Articles of
Confederation, unless it agrees.
But that's not how the Constitution works.
The Constitution says, once you've signed
up, once you're part of this
new nation, we have an amendment process
laid out in Article Five.
It doesn't require unanimity.
If three-quarters of the other states and
then two-thirds of both houses of
Congress agree to a change, you are
going to be bound by that change.
And what that implies is that,
the individual states are not sovereign
anymore.
They're part of a group, and they have to
follow the
dictates of that group even if they don't
like it.
A final interesting thing that professor
Amar points
out is that the antifederalists, the
people who
oppose the adoption of the Constitution,
threw around
this accusation a lot at the time of
ratification.
They said you know, this is, we're
effectively dissolving the states
here, the, the, we're not going to have
sovereign states anymore.
But the Federalists, the people who were
promoting the Constitution, they didn't
try to deny that charge, they didn't
claim, no, no,
no, you guys have it wrong they said yeah,
that's right.
And that, that's what we're, and that's
what we should be doing.
Federalist 11, which is one of the
Federalist papers
that, written to support the adoption of
the Constitution.
Specifically talks about the need for a
strong and indissoluble loo union.
And, so that's what, that's what, both the
supporters and the
opponents, actually, of the Constitution
seem to have thought they were
doing, and that's what they did.
So then there's one final point I want to
bring up, and
that's a question that was originally
brought up by JR Sedevi.
And that's about the Constitution's size
and scope.
And JR asks, you know, the Constitution is
really brief.
It's only a few thousand words.
So, how is it that we have such a
short Constitution, and then you look at
modern legislation, like,
the hel, you know, the Affordable Care
Act,
which is, or Obamacare as its often known.
It's hundreds and hundreds of pages long.
How is it that we need to write these
extremely extensive
statutes when we created a Constitution
that was so brief and succinct?
So, this brings up a really
interesting point about American
Constitutional design, in
that, a, you, a, a remarkable feature of
the American Constitution is its brevity.
So, by contrast, the Indian Constitution
is 117,000 words long.
That's 25 times longer than the US
Constitution.
So, America's founding fathers seem to
have made a
very deliberate choice to go with a
shorter document.
So why did they do that, and what can we
understand about the project as a result?
Jason Jones actually had a great response
on
this thread, and he compared the
difference between writing
a constitution, like the framers did in
1787, and
passing a statute today, as the difference
between creating
a blueprint for a house, and adding a sun
room.
And, he pointed out, you know, the levels
of detail you might want to specify, the
amount of implementation, and specifics
that need to
go on, those two processes, are very
different.
And I think that that's really the right
way to think
about it.
To kind of drive this point home, I say
one of
the most famous lines in the history of
the US Supreme Court.
So this is, this is from a case called
Marbury
versus Madison, which is going to come up
in this course.
It's from 1803.
It's it's arguably the most important case
in the history of the Supreme Court.
And this is arguably the most famous line
from this opinion.
And this is what it is.
We must never forget that it is
a Constitution we are expounding.
Doesn't sound very exciting, right?
I mean, you might think like if that's the
big payoff, why am I taking this
Constitutional Law class?
But it hits at this idea.
That we've discussing with this question.
And that's that the Constitution isn't a
detailed code.
It's not like the tax code say, which
specifies exactly
what's going to happen in a lot of
different circumstances.
It's a blueprint.
It's a framework.
It creates the conditions for future
politics
that are going to fill out the details.
And quite possibly, that flexibility that
the framers built into the system,
is why our Constitution has been able to
endure for so long.
So thanks for posting so many great
questions.
I'm sorry we only had the chance to
discuss a few of them here today.
But we really look forward to more
events like this.
More interactions on the discussion forum.
And more opportunities to hear what you
guys are thinking
about the course, so thanks so much, hope
you're enjoying it.
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