The Structural Constitution as a Protection for Liberty [No. 86]
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The Structural Constitution as a Protection for Liberty [No. 86]

August 26, 2019

Many Constitutional Law professors, when they
teach an introductory course in Constitutional Law, divide the course into the structural
Constitution, which is said to be concerned with federalism and the separation of powers,
from what they call the “liberty protecting provisions of the constitution,” which include
of course the first amendment and the Bill of Rights, the 14th amendment, which applies
the Bill of Rights against the states, and other individual rights-protecting parts of
the Constitution. This pedagogical division between the structural
Constitution and the individual rights part of the Constitution would have struck James
Madison and the Framers as being absolutely absurd. The Framers of the Constitution believed that
the structural provisions setting up checks and balances and separating legislative, executive,
and judicial power, and creating a democratic regime of the one, the few, and the many,
the framers believed that all those structural provisions existed to protect individual rights
and liberty; and they thought that the separation of powers and federalism was just as important
to protecting liberty as the 1st Amendment right to freedom of speech and of the press,
or as are the rights that the 14th amendment protects from state legislation or state executive
action. Those provisions are also essential to our
democratic structure because we couldn’t have free elections and we couldn’t maintain a
democracy if we didn’t protect freedom of speech and freedom of the press and the free
exercise of religion. So while I understand the pedagogical desire
to teach separately the structural material on separation of powers and federalism, and
the more individual rights material on the 14th Amendment and the 1st Amendment, in fact
there is a common thread that runs through all these things and that interconnects them
with on another.

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