Students come to Constitutional Law with very high expectations. It is what many of them think the law and law school is all about. As is frequently the case, students’ intuitions are not far from the mark. After all, the constitutional power is what distinguishes American judges and lawyers from those of other lands. The judicial review power has now been adopted by other nations, but it still represents one of the most important contributions made by American lawyers.

 

The power is awesome when one thinks that six citizens–five members of the Supreme Court and one person challenging a law–can command something that contradicts the wishes of every other person in the country. There should be a sense of excitement in studying this area. Adding to the riveting quality of constitutional jurisprudence is the nature of the questions that it routinely engages. These involve the basic structure of our government and our fundamental values as a society and as a culture.

 

The United States is a large land mass within whose borders a number of different governmental entities operate. It is critical to understanding our constitutional structure that the Framers intended to disperse power among a number of different government entities. Indeed, the Framers viewed dispersing governmental authority as one of the most important means of preventing tyranny. In one of the most famous quotes from the Federalist Papers, James Madison said:

 

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to controul the governed: and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

 

Federalist No. 51, in THE FEDERALIST 349 (J. Cooke ed. 1961).

                                                           

           
Still, no vesting sovereignty in a single governmental authority, like a king, presents a complex set of problems. Most important, what are the boundary lines of authority between these various governmental entities? Where does the authority of one begin and another end? Moreover, who sets these boundary lines of power between these various governmental entities?

 

“Human history,” says H.G. Wells, “is in essence a history of ideas.” The great theme in the history of American Constitutional Law is the concept of law as a check upon public power. That idea has been given practical reality in the decisions of the United States Supreme Court. Those decisions are–to paraphrase Holmes–a virtual magic mirror in which we see reflected our whole constitutional development and all that it has meant to the nation. When one thinks on this majestic theme, the eyes dazzle: that is what Constitutional Law is all about.