Exam Type: No Exam
The conventional understanding of the U.S. Constitution is that it is a “negative” constitution, which provides primarily for what government cannot do, rather than for what government must do. But this account is incomplete, for it was also plainly a purpose of the 1789 Constitution to bring into being a working government that could effectively provide for the general welfare and national defense, while at the same time securing liberty and related rights, and establishing justice. The Constitution’s structural articles include a number of “shall” commands (for example, in Article I that a census “shall be made” every ten years, or in Article II that the President “shall take care that the laws be faithfully executed”). This reading group will explore how there has come to be so much focus on the “negative” aspects of the Constitution, and read leading critiques and defenses of this understanding. Considerable scholarly debate is found over the meaning—positive or negative—of the Fourteenth Amendment’s safeguarding of “the equal protection of the laws;” we will explore such debates and also consider the views of political scientists and historians about the animating purposes of the original Constitution. We will consider the issue of positive constitutionalism both through the perspective of justiciable rights and through the perspective of obligations, whether or not justiciable, that the Constitution imposes on constitutional actors outside the federal courts – including members of Congress and the President, and members of state legislatures and Governors. And we will consider the issue of positive constitutionalism both from the perspective of the Constitution as it originally came into force and from the perspective of the Constitution as it has changed over time. Our discussion will be informed by brief consideration of other constitutional democracies whose constitutions are understood to impose positive duties on government and in which courts take various postures to the possibilities for judicial enforcement of those duties.
Note: This reading group will meet on the following dates: 1/25, 2/8, 2/22, 3/8, 3/29, and 4/12.