week 1 foundations and constitutional theory

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U.S. Constitution, available online at https://www.constituteproject.org/constitution/United_States_of_America_1992 (Links to an external site.)

  1. Where does power lie in the government created by the Constitution?
  2. Does one branch appear to be more important than either of the others? Why or why not?
  3. Without referencing anything more than the constitutional text, what role does it appear that the Framers had in mind for the Supreme Court in the American governmental system?

The Federalist Papers 10, 51, 78, available online at http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/ (Links to an external site.)

Federalist 10

  1. What is the evil Madison wants to address?
  2. What is his proposed solution?
  3. How does the proposed Constitution address this problem?

Federalist 51

  1. What is the evil against which Hamilton/Madison argues?
  2. What is the proposed solution?
  3. What role is envisioned for the Court?
  4. Hamilton/Madison makes the statement: “Ambition must be made to counteract ambition.” What did he mean?

Federalist 78

  1. What is the difference between “will” and “judgment”?
  2. What is the role that Hamilton envisions for the Court?

Constitutional Jurisprudence

  • Justice Antonin Scalia, “Originalism: The Lesser Evil,” 57 L. Rev. 849-65 (1988) (find through “Westlaw Next” database, using search “57 UCINLR 849” or article title)
  • Justice William J. Brennan, Jr., “1985 Georgetown Speech.” (in “Files” on Canvas.)
  1. Put into your own words — do not use outside sources — the theses of a) originalism and b) the living Constitution.
  2. Your opinion: What role should the Court play in our federal system? Explain your answer.

1. What is Vermeule’s thesis and how does he support it?

2. What is Epstein’s response to Vermeule’s argument?

3. With whom do you agree, Vermeule or Epstein? Explain in detail why.

Martha Derthick, “Federalism,” from Understanding America: The Anatomy of an Exceptional Nation, Peter H. Schuck and James Q. Wilson, eds. (New York: Public Affairs, 2008): 121-145 (in “Files” on Canvas).

  1. How does Derthick understand the definition of federalism?
  2. What are the key turning points Derthick identifies in the history of federalism?
  3. Name one new thing you learned from this essay.


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