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Michelle Helene Belco, J.D, Ph.D.: Speaking on the Constitution

Who wants to learn about the United States Constitution? It is a dreary old document that many say has outlived its usefulness. What we need, they argue, is a new Constitution that reflects the present and not the moldy past. Yet, by looking to the past we can see how the Constitution reflects our current times. For instance, the question of imposing term limits on members of Congress was a particularly controversial one in the debates between the Federalists and Antifederalists. If we return to those debates, can we find today’s arguments reflected in the past? Let us say, we create convincing arguments to sway public opinion in favor of adopting term limits, the next question we need to ask ourselves is can we amend state constitutions, or will we need to amend the U.S. Constitution? Following that, how easy is it to amend the U.S. Constitution? We have twenty-seven amendments already, so looking forward, what issues are likely to become the topics for future Constitutional amendments?

While these questions do not have simple answers, they segue into some of the famous debates between the Federalists and Antifederalists over the creation of the Constitution. These debates are known through the Federalist and Antifederalist papers and James Madison’s journal. They explore the arguments for and against separate institutions, a system of checks and balances, and dual sovereignty between the states and national government. These principles form the design of our American system of government yet the interpretation of the meaning of the Constitution is far from settled.

Two particularly timely questions relate to Article II and the extent of power within the executive branch. The first is the meaning of presidential power. Exploring the debates over presidential power helps to create a context for the literal meaning in the Constitution. Meanwhile, exploring the legal arguments in Trump v. United States provides insight into how the extent of power is far from settled. While the question of presidential immunity is riveting, the second question is equally challenging and important. We rely on the expertise of federal agencies to create policy through the implementation of laws enacted by Congress. Since Chevron v National Resources Defense Council (1984), the federal courts have given extensive deference to agencies for their interpretation of law, but currently the Supreme Court is reconsidering its approach and may ultimately overrule 40 years of precedent.

It seems like most of the public’s attention is on the President but lots of exciting things are happening with Congress. While there is the literal meaning of the explicit powers of Congress, there are also implied powers. One of the most important explicit powers is the Commerce power. While we know that the commerce clause allows Congress to regulate commerce among the states, it has also come to limit state authority to regulate commerce under the “Dormant” Commerce Clause which may bar state or local regulations even where there is no relevant congressional legislation. Who however, would think that we could apply it to government control over social media? Two cases awaiting decisions by the U.S. Supreme Court involve content moderation bans on social media adopted by Texas and Florida Yet, precedent meanwhile, is confusing. In a recent case National Pork Producers Council v. Ross (2023) the Supreme Court’s decision in a case involving animal farming had five opinions that revealed extensive disagreements among the Justices that did not follow typical ideological fault lines.

The fact that federal justices may not follow the ideological fault line that aligns with their appointment provides support that Alexander Hamilton got it right. In Federalist 78 he argued that “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Article II of the U.S. Constitution provides for the president to nominate justices subject to the advise and consent of the Senate. One reason the president nominates a federal justice is for their ideological stance, yet they may not always be consistent in their “ideological leaning” causing problems in predicting judicial decisions while respecting their independence. Another factor that can impact judicial independence is they virtually hold a lifetime appointment. Article III states they “hold their office during good behavior,” which means except under very limited circumstances. Should there be reform such as term limits or age limits on the federal judiciary? including a look at the meaning of  “good behavior” and efforts to constrain the life appointment of judges, judicial ethics, and how changes in ideology through appointments do not always mean they align ideologically in their decisions.

My argument is simply that by looking to the past we can see how the Constitution reflects our current times and find the origins of many of today’s legal and political questions.

Register for Prof. Belco’s upcoming class, The Constitution: A Literal Look from a 2024 Perspective, starting on May 24, HERE!