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The Structural Constitution as a Protection for Liberty

How is the structure of the Constitution related to the Bill of Rights and other “rights protecting” parts of the Constitution? Professor Steven Calabresi explains that although these two Constitutional Law topics are often taught separately, they need to be examined together. The protection of liberty and individual rights presuppose federalism and the separation of powers specified in the Constitutional structure. https://youtube.com/watch?v=Nw5fdc-pTEY


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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