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[Music] at the beginning and the end of my introductory courses on constitutional law I asked my students to consider whether constitutional law is law in the sense we usually use the word or whether it's just politics by another name I also tell them that I don't think this question has an easy answer I don't like to tell them how I think they should think on this question or any question for that matter but as with many constitutional questions I encourage them to recognize that there
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are powerful arguments on each side of the Ledger my own view is the Constitutional law is both law and politics it's law in the sense that the sources that usually guide U.S legal decision making text structure precedent history common law reasoning do guide constitutional law most judges including Supreme Court Justices and constitutional cases earnestly tried to apply the law correctly to reach the right legal answer some critics accuse the justices of just assigning cases based on their own
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political preferences but I think this is an oversimplification most judges take their judicial role very seriously and feel it is improper to supplant the law with their own wishes where there is clear binding constitutional precedent that is on point for the case at hand judges will usually follow that precedent just as they would in any other area of law that said constitutional law yields fewer clear answers than many areas of law for one as we've seen in a variety of
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contexts many important constitutional Provisions are written at a broad level of generality that requires someone to interpret them that is to fill in their meaning it's not immediately self-evident what many of the Constitution's most important Provisions actually mean and how they apply to questions today of course some Provisions are clear for example each state gets two U.S senators but many of the provisions that arise often in constitutional litigation do not have clear meanings
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additionally Supreme Court Justices historically have employed a variety of interpretive techniques for understanding the Constitution what Professor Philip Bobbitt from Columbia Law School has called modalities of constitutional interpretation and there's no clear hierarchy of these interpretive approaches should the justices look first to court precedence to the original meaning of the constitutional text to the structure of the document to the original understandings of the people who wrote
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the document or who ratified a provision at issue to relevant past practices through the generations there's value in each of these modalities used separately or in tandem but when there's so many different ways of approaching a constitutional question it should not be surprising that there's often going to be disagreement about what the right answer is the variety of interpretive approaches is part of what makes constitutional law fascinating and frustrating
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it's also likely part of the reason why judges so often do decide cases in line with their political preferences it is precisely because constitutional cases often lack clear answers that justices fall back on their policy preferences I think they often do this quite unconsciously it's just human nature that in the absence of other reliable guideposts the justices individual perspectives on such diverse areas as history language culture faith and yes politics are going to color the way they
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approach a question at hand some Scholars such as Bill Eskridge of Yale law school refer to this phenomenon as the hermeneutical Circle the idea that one's background Norms necessarily color the way one interprets each individual piece of evidence which in turn colors the way one interprets everything else one's approach to each part affects the way one sees the whole which in turn affects the way one sees each part finally recall the idea from earlier lectures that constitutional law is
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about power and where it resides in American government where the law doesn't provide clear guidance on where that power resides it's hard for people to set aside their politics when making consequential decisions with all this in mind it should perhaps not be surprising that political science research demonstrates quite convincingly that the justices in the Supreme Court tend to vote in line with the preferences of the party of the president who appointed them there are
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exceptions but the empirical data are quite persuasive that Supreme Court decision making is political in this sense Research into the subject called cultural cognition helps further explain these findings Scholars like Dan Kahan also of Yale law school have demonstrated that people tend to gravitate to facts and arguments that reinforce their existing beliefs the judges may be more sophisticated in their reasoning than most people they are not immune from this phenomenon
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in difficult cases with powerful arguments and evidence on each side of the Ledger they act like other human beings by tending to accept the arguments and evidence that conform to the World Views they already accept in light of all this it's probably oversimplified to assume that some people do that judges are merely politicians and robes but it is also surely naive to believe that judges are wholly immune from political influences the truth as is often the case by somewhere in the middle
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the role of politics and constitutional law is most evident in the confirmation battles over judicial nominees particularly nominees to the U.S Supreme Court or the stakes are the highest given that judges tend to vote with their political tribe at least in close cases about which reasonable people can differ each president tries to pick judges whose votes will likely conform with the president's political beliefs the Constitution empowers the president to appoint federal judges including of
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course Supreme Court Justices with the advice and consent of the Senate this means that to win confirmation a president's judicial nominee must make it through the Senate Judiciary Committee and then receive a majority of the vote from the full Senate because article 3 of The Constitution promises that federal judges may keep their jobs during good behavior a successful judicial appointment is usually a job for life it is not uncommon for Supreme Court Justices to stay in the high court for
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two or even three decades long after their appointing president has left the White House in this way a president's Supreme Court appointments arguably constitute a president's most enduring Legacy and the opportunity to exert such influence is a rare one presidents only get to a point of Justice when there is a vacancy on the Supreme Court a situation that is typically brought about only by a Justice's retirement or death given these high stakes it's inevitable
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that the confirmation process will be highly political and it has become more political in recent years the politics of the judicial confirmation process or on full display in 2016 after the sudden death of Justice Antonin Scalia Justice Scalia had been an almost Larger than Life figure on the Supreme Court brilliant provocative funny charming and an outspoken advocate for originalism and constitutional interpretation and for some conservative causes Justice Scalia was also a great writer
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whose Lively prose invariably provokes great debates among law students love them or hate him Justice Scalia was anything but boring at the time of Justice scalia's death the Supreme Court was ideologically very closely divided the way the news media apply the terms conservative and liberal to the justices is often oversimplified but if we think of those terms as useful shorthand it's fair to say that four justices were usually but not always reliable conservative votes Chief Justice John
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Roberts and justices Scalia Clarence Thomas and Samuel Alito all four were Republican appointees four justices were usually but not always reliable liberal votes justices Ruth Bader Ginsburg Stephen Breyer Sonia Sotomayor and Elena Kagan all four were democratic appointees that left one Justice Justice Anthony Kennedy a 1980s Ronald Reagan appointee as the court Swing Vote in many a case where Kennedy went the court as a whole usually went in reality Justice Kennedy often voted
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consistently liberal on certain issues like gay rights and conservative and others like federalism but in some cases it wasn't clear Which Way Kennedy would vote though it was clear that his vote would decide the case's outcome Justice Scalia died early in 2016 the last year of Barack Obama's presidency observers realized that if President Obama a Democrat were to appoint Justice scalia's successor the balance of the Court could shift substantially to the left
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a fifth liberal on the court would help ensure that the Liberals would win most cases even if they failed to secure Justice Kennedy's vote of course it was unclear how long this majority would last given that other justices were also advancing in age but at least in the short term it seemed like the Supreme Court might have a majority of liberal justices for the first time in well over a generation with a stake so high Republican politicians signaled immediately that
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they would not confirm anyone President Obama nominated the Republicans controlled the senate in 2016 so they had the power to reject anyone President Obama put forward Senate Majority Leader Mitch McConnell went even further indicating that the Senate would not even hold hearings or a vote on any Obama Supreme Court nominee Senator McConnell's public argument was that a presidential election was nine months away so the American people should decide everybody knew the real reason though
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was that the ideological balance of the nation's most important Court was at stake faced with a senate that was promising obstructionism President Obama decided to nominate about the least controversial candidate imaginable he selected chief judge Merrick garland from the U.S court of appeals for the D.C circuit even in a crowded field of exemplary candidates chief judge Garland stood out highly respected by lawyers all across the political Spectrum judge Garland had
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an impeccable reputation as a brilliant meticulous hard-working fair-minded nonpartisan judge a Harvard Law graduate and a former Supreme Court Clerk chief judge Garland also had a sterling resume including stints in private practice teaching at Harvard Law School and working at the Department of Justice where he headed the team that prosecuted the perpetrators of the Oklahoma City bombings in the mid-1990s he was also the chief judge of the DC circuit which is sometimes referred to
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as the nation's second most important court because it hears many of the cases involving federal administrative agencies perhaps even more importantly chief judge Garland was considered such a fair-minded judge that some Senate Republicans had indicated a few years earlier that if President Obama were to nominate him for a different Supreme Court opening they would support him President Obama no doubt selected judge Garland precisely because he wanted a consensus candidate that both
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Republicans and Democrats could support in the interest of full disclosure I should acknowledge here that I had the Good Fortune of clerking for judge Garland for a year like everyone else I was extraordinarily impressed with his Fierce intelligence his tireless work ethic and above all else his sense of fairness I never just saw him decide a case based on pre-formed ideology true to the early promise however Senate Republicans refused to give chief judge Garland either a hearing or a vote
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these tactics dismayed me as in my view the Senate was refusing even to consider a person who could not possibly be better qualified to sit on the Supreme Court but from a political standpoint the Republicans Gambit made sense the late Justice Scalia had been a very reliable conservative vote even if judge Garland were a perfectly Centrist judge his appointment would swing the court away from the right as it would replace a very conservative Justice with a moderate one
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Democrats cried foul the Republicans Behavior broke with the long-standing practice of giving some deference to the president's Supreme Court nominee even when the Democrats rejected President Reagan's nominee judge Robert borked to the Supreme Court in the 1980s they still provided a hearing and a vote in fact their decision to vote no one judge bork was based substantially on what he had said during his confirmation hearings and the Democrats view fairly or not
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judge bork had espoused an aggressively conservative rigidly ideological approach to the law by contrast judge Garland was offered no such opportunity to share his Judicial philosophy with the country some Democrats contended that Senate Republicans were acting unconstitutionally the argument in effect was that the constitution grants the president the authority to appoint federal judges and the Senate was denying the president his constitutional prerogative Democrats further contended that
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Republicans argument that they should wait until after the election to choose the next Justice had no logical stopping point Justice Scalia died nearly nine months before the election should the Senate refuse to consider judicial nominees for vacancies occurring a year before a presidential election two years Democrats constitutional protestations mostly fell on death years Constitution entrust the Senate with providing advice and consent for the president's Federal judicial nominees
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though the Senate is often more respectful of the president's selection than it was to judge Garland the Constitution effectively delegates the confirmation process to the Senate where the law leaves a matter in the discretion of a political body one cannot use the courts to try to change that body's process and decision if the Democrats were going to get judge Garland through they would have to do it using politics not law there seemed to be some reason to think
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that the Democrats would succeed in their efforts at the time the Republican strategy seemed risky Hillary Clinton was the Democratic Party's candidate for president and she seemed likely to defeat the Republicans upstart candidate Real Estate Mogul and reality TV star Donald Trump for most of their race she was substantially ahead in the polls were Clinton to win the presidency there was no guarantee she would stick with judge Garland who was then 63 years old President Clinton might decide to
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withdraw judge Garland's nomination and choose instead in ideological liberal who would try to steer the court aggressively to the left and a much younger person who might stay in the court longer furthermore Republicans refusal to Grant even a hearing to judge Garland seem to feed into the Democrats campaign message that the Republicans were obstructionist and appeared as though it could alienate key swing voters in the upcoming election but the Republicans gamble of course
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paid off Donald Trump won the presidency and with it the chance to select Justice scalia's replacement moreover Republicans held on to their control of the Senate so president Trump had his pick of conservatives he ended up selecting judge Neil Gorsuch from the U.S court of appeals for the 10th circuit like chief judge Garland judge Gorsuch enjoyed a sterling reputation as a highly regarded judge with an impressive pedigree and legal mind but there can be no dispute that
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President Trump also chose him because of his reputation as an ideological conservative indeed the folks advising president Trump on this election including the influential Federalist Society wanted just that someone who would consistently Advance their interests and ideologies at the Supreme Court and the Senate of course confirmed judge Gorsuch as the new Justice as of this taping the country is now engaged in another confirmation battle Justice Anthony Kennedy for years the
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Supreme Court Swing Vote has announced his retirement giving president Trump his second Supreme Court vacancy to fill in less than two years president Trump promised to replace Justice Kennedy with a committed conservative in the mold of Justice Gorsuch the replacement of the Court's swing Justice with a consistent conservative would of course shift the court substantially to the right unsurprisingly Democrats have vowed to fight an ideological conservative nominee but as Republicans control the
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Senate Democrats would need to pick off some Republican votes to defeat the nominee notice that politics rather than principal guides Senators approaches to these matters Democrats who had cried foul when the Republicans insisted on postponing any hearing on Judge Garland until after the election argued in summer 2018 that the Senate should not vote on a new Justice until after the November midterm elections and Republicans who had said that there shouldn't be a hearing or a vote on
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Judge Garland until after the election now wants to complete the process as quickly as possible lest they risk losing their majority in the election with these confirmation Battle episodes show rather starkly I think is that constitutional law and politics are inextricably light the justices themselves May usually try to apply the law neutrally and impartially but their own background views matter sometimes a great deal understanding this very well presidents
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and Senators support the appointment of justices whom they believe will vote in ways that tend to support their own political viewpoints it's understandable that the public sometimes gets the misimpression that what goes on at the court is politics and nothing else political disagreements in American society have been Fierce since the nation's founding but they have produced such vitriol and distrust in recent years that our political system strikes many people as dysfunctional
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Democrats and Republicans often treat each other as enemies this atmosphere makes political compromise extremely challenging as the nation looks for Solutions a logical question is whether the Constitution itself which lays the ground rules for our political system deserves some of the blame for these problems it has long been heretical to criticize the Constitution it is in some ways America's Civic religion but a blind faith is not a deep one and any serious study of the Constitution
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should consider which parts are working well and which ones are not naturally liberals and conservatives tend to lament different aspects of our constitutional law some conservatives want to amend the Constitution to provide further protection for religion or to remove Roe v Wade's protection of abortion perhaps conservatives most fundamental laments though involve the scope of the federal government and the argument that it has grown far beyond the framer's original intentions and the fact that
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federal spending and debt have gotten out of control for their part many liberals might favor their own constitutional revisions many of these pertain to voting and the political process such as outlawing partisan gerrymandering protecting the right to vote and limiting corporations ability to influence elections through campaign contributions and election year and Communications other liberal objections implicate the structure of government more generally the makeup of the Senate some point out
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is profoundly undemocratic giving each state two senators regardless of population size the result is that California and Wyoming enjoy equal power in the Senate even though the population of California is close to 70 times that of Wyoming of course Article 5 of The Constitution stipulates that no state without its consent shall be deprived of equal representation in the Senate so it would be impossible to alter the makeup of the Senate without scrappling the constitution in its entirety
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but liberals nevertheless point to the Senate as evidence that the constitution is far less Democratic than Americans sometimes like to think it is liberals and some conservatives have similar complaints about the constitutionally mandated electoral college process for electing the president under Article 2 of The Constitution the president is elected not by national popular vote but through elections in each state each state is given a certain number of electoral College votes equal to the
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size of the Congressional Delegation from that state in other words each state gets the same number of electoral College votes as the number of its House and Senate members combined as critics have observed this system gives disproportionate weight to states with low population since they have Senate membership disproportionate to their size whether or not one likes this Arrangement it's also undemocratic as it gives people in some states greater vote and power than people and others
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this electoral college system also has other consequences for example the vast majority of states have a winner take all system so that a candidate who only narrowly wins a majority in a state still gets all of that State's Electoral College votes as a result candidates tend to focus their campaigning on key States usually so-called swing states that could possibly go either way in an election candidates spend much less time and fewer resources on states that they are assured to win or lose
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and they have a strong incentive to make campaign promises designed to sway voters in those swing States promises that can have a significant impact on the policies of the new Administration another effect of the electoral college system is that it can result in candidates winning the presidency despite having lost the popular election for example George W Bush in 2000 and Donald Trump in 2016 both lost the popular vote but won the presidency because they won more Electoral College votes
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the partisan Rancor over these outcomes especially the 2000 election which culminated in litigation about a recount in Florida was intense and Lasting some critics contend that the losing side would have an easier time accepting the results of an election that turned only on the popular vote
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attributing to the nation's political dysfunction should it be changed as you may know Article 5 of The Constitution provides two ways of proposing a constitutional amendment the first requires a two-thirds vote by each house of Congress the second requires two-thirds of state legislatures to request that Congress call for a convention which would then debate and propose Constitutional Amendments in either case a proposed Constitutional Amendment would need to be ratified by
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three-quarters of the states all the amendments to the U.S Constitution that have been made to date have gone through the first process but a movement is now underway to call a constitutional convention using the second process with the goals of limiting the scope of federal power and requiring a balanced federal budget while limiting Federal power and requiring a balanced budget or conservative agenda items the idea of a new Constitutional Convention also has notable liberal supporters
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in particular Sanford Levinson who teaches at the University of Texas law school and is one of the great constitutional Scholars of his generation has long been advocating for a new convention how would a constitutional convention work we haven't had a constitutional convention since 1787 so it's hard to say however given the country's intense political disagreements it seems safe to assume that the process could be chaotic and divisive especially since there are no clear ground rules
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for example there are no rules limiting a constitutional convention to a single topic so even if States called a convention to propose say a balanced budget amendment it's entirely possible that the convention could propose something else instead it's also not clear whether Congress or the states or even someone else would get to select the delegates to a convention and if or how they could try to control them some commentators in fact point out that the Constitutional Convention of 1787
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was originally called only to modify the Articles of Confederation instead of tweaking the Articles the framers did away with them entirely and replaced them with something completely different there is therefore a precedent for rogue delegates to a constitutional convention going beyond their original mandate and drafting a charter for a totally new government however a Constitutional Convention May play out it is clear that it would be an intensely political process
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and while it might improve the existing Constitution could also make things worse to be sure a constitutional convention would invite much needed discussion about the strengths and weaknesses of our current constitutional order but we should also be very cautious before throwing it away for all its problems the United States is comparatively very prosperous and stable our constitution is also the world's oldest written Constitution still in use today that longevity serves us well because it
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helps ensure that people respect the document Americans accept the constraints the Constitution imposes on their leaders and the rights the Constitution grants were the document to change dramatically people might view the new version differently and commitment to the rule of law might suffer in particular a convention's losers might deem the end result illegitimate if they thought that folks on the other side had gained the process in their own favor so is constitutional law just politics
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by another name I wouldn't go that far but I do think that constitutional law and politics are inseparable this is not to say that there is no such thing as constitutional law or that constitutional interpretation is just thinly veiled political policy making there is constitutional law it exists in the text of the document such as the requirement that the president be at least 35 years old it exists in the decisions of the U.S Supreme Court which comprise precedent
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that is binding on Lower federal courts and state courts and it exists in the practices of governmental officials who take an oath to abide by the Constitution and usually believe themselves to be the Constitution's faithful stewards these elements however cannot be understood in a political vacuum the Constitution helps Define how American politics operate and these politics in turn shape the content of our constitutional law such as through the judicial confirmation process
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you cannot understand constitutional Law Without some political insights but you also can't understand U.S politics without understanding the Constitution it's partially for this reason that as the nation has changed over time so too is the Constitution through formal Article 5 Amendment through change judicial interpretations and through change governmental and societal practices the Constitution is far from perfect and as the framers recognized it never was there's much to criticize about the
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constitution of 1787. most obviously its despicable pro-slavery provisions but there is also something to admire about many framers willingness to compromise their ideals so that they could create a new governmental order that was a big Improvement on what had come before it at various points in our history the country has lost this ability to compromise including in its debates about the meaning of the Constitution as we continue to debate how to meet the challenges of today and tomorrow
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I hope that we like the founders will try to listen to each other's views about how to build a more perfect union
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