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Structure and Relationship in Constitutional Law
Book by Black, Charles Lund, Black Jr., Charles L.
- GenresLaw
98 pages, Paperback
Published January 1, 1969
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About the author
Charles L. Black Jr.
17 books7 followersCharles Lund Black, Jr. was an American scholar of constitutional law, which he taught as professor of law from 1947 to 1999.
https://en.wikipedia.org/wiki/Charles...
https://en.wikipedia.org/wiki/Charles...
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Displaying 1 - 2 of 2 reviews
April 13, 2020
This is a short, but profoundly important book.
Professor Black argues that there are two principle methods of constitutional interpretation: precedent and textual exegesis. But he argues that the the best way to interpret the Constitution is not through hidebound interpretations of the text, rather, we should look to the structures and relationships created by the Constitution. In other words, we look to the institutions created by the Constitution, I.e., Congress, the President, and the states, in discerning constitutional meaning.
Emphasis on structure and relationship allow us to move away from interpretation based solely on the text. For example, the 14th Amendment is comprised of the citizenship clause; the privileges or immunities clause; the due process clause; and the equal protection clause. Black argues that, despite the text’s lofty language, and the Supreme Court’s paying fealty to that text, the clauses are not all that important.
Black focuses his attention on the citizenship, due process, and equal protection clauses (the privileges or immunities clause has essentially been read out of the 14th Amendment, but that’s a different topic for a different day). These three clauses have been used extensively by the Supreme Court to uphold protections for individual rights (free speech rights, contraception, abortion, same sex marriage, school desegregation, etc.). But Black argues that those clauses are not actually necessary to preserve those rights. Rather, the structure created by the Constitution is one that necessarily relies on robust participation by the people that comprise it. For example, a democratic government such as the one created by our Constitution requires robust protections for speech and debate. It would be difficult to maintain the structure of a democracy absent the ability for the People to debate policy, law, etc. In other words, the structures created by the Constitution require that the people be free from governmental violation of fundamental rights.
I am sympathetic to—and agree with—Black’s general thesis, but I do see some potential problems with it. The text of the Constitution is clearly of some import today. Indeed, the crux of the debate on constitutional interpretation is how much import ought to be accorded the text. But Black’s argument tends to minimize that importance. Reliance on structure and relationship seems to create a chasm in which judges are free to roam. Professor Black would respond that the text is important, because it sets the structure of the government, from which we depart on our interpretive journey. But like most important scholarship, this book creates room for debate.
Professor Black’s prose is clear and insightful. His contribution here is often mentioned in the 5-10 most important works of constitutional law ever. I would agree with that assertion. It is a must-read for anyone interested in the Constitution.
Professor Black argues that there are two principle methods of constitutional interpretation: precedent and textual exegesis. But he argues that the the best way to interpret the Constitution is not through hidebound interpretations of the text, rather, we should look to the structures and relationships created by the Constitution. In other words, we look to the institutions created by the Constitution, I.e., Congress, the President, and the states, in discerning constitutional meaning.
Emphasis on structure and relationship allow us to move away from interpretation based solely on the text. For example, the 14th Amendment is comprised of the citizenship clause; the privileges or immunities clause; the due process clause; and the equal protection clause. Black argues that, despite the text’s lofty language, and the Supreme Court’s paying fealty to that text, the clauses are not all that important.
Black focuses his attention on the citizenship, due process, and equal protection clauses (the privileges or immunities clause has essentially been read out of the 14th Amendment, but that’s a different topic for a different day). These three clauses have been used extensively by the Supreme Court to uphold protections for individual rights (free speech rights, contraception, abortion, same sex marriage, school desegregation, etc.). But Black argues that those clauses are not actually necessary to preserve those rights. Rather, the structure created by the Constitution is one that necessarily relies on robust participation by the people that comprise it. For example, a democratic government such as the one created by our Constitution requires robust protections for speech and debate. It would be difficult to maintain the structure of a democracy absent the ability for the People to debate policy, law, etc. In other words, the structures created by the Constitution require that the people be free from governmental violation of fundamental rights.
I am sympathetic to—and agree with—Black’s general thesis, but I do see some potential problems with it. The text of the Constitution is clearly of some import today. Indeed, the crux of the debate on constitutional interpretation is how much import ought to be accorded the text. But Black’s argument tends to minimize that importance. Reliance on structure and relationship seems to create a chasm in which judges are free to roam. Professor Black would respond that the text is important, because it sets the structure of the government, from which we depart on our interpretive journey. But like most important scholarship, this book creates room for debate.
Professor Black’s prose is clear and insightful. His contribution here is often mentioned in the 5-10 most important works of constitutional law ever. I would agree with that assertion. It is a must-read for anyone interested in the Constitution.
January 23, 2025
Black's central thesis is that the Constitution's architectural framework—the relationships and interactions between governmental entities—carries juridical significance equal to, and sometimes surpassing, that of specific textual provisions.
Particularly compelling is its examination of federalism and separation of powers. Through careful examination of landmark cases, including McCulloch v. Maryland and Crandall v. Nevada, Black demonstrates how structural reasoning has implicitly undergirded numerous Supreme Court decisions, even when not explicitly acknowledged in judicial opinions.
His analysis reveals that courts frequently derive constitutional principles not from specific textual provisions, but from the necessary implications of governmental relationships established by the Constitution's overall design. Regarding federalism, he observes that "the federal government must not be prevented by the states from carrying out its legitimate functions."[3] This principle, he argues, emerges not from explicit constitutional text but from "the warranted relational properties between the national government and the people of the several states."
On Black's view, we should read constitutional law holistically, attending not just to individual clauses but to the document's overarching democratic and structural principles. Structural reasoning has proven particularly prescient in our modern era, where technological advancement and evolving governmental relationships present constitutional questions of first impression (that the Founders could scarcely have imagined), yet which can be resolved through careful attention to the Constitution's underlying structural logic.
His recognition that constitutional meaning emerges from structural relationships rather than merely from isolated textual provisions aligns with Ackerman's analysis of how successive constitutional regimes—the Founding, Reconstruction, and New Deal moments—require sophisticated interpretative synthesis rather than simple textualist reading.
His analysis of McCulloch v. Maryland demonstrates how Marshall's opinion derives its force not from narrow textual exegesis but from a profound understanding of the structural relationships established by the Constitution's architecture—relationships that themselves reflect the people's higher lawmaking decisions during the Founding period.
His structural approach provides essential methodological tools for understanding how constitutional meaning evolves through a dialectical process of popular mobilization and judicial interpretation (intergenerational synthesis Ackerman). This becomes especially crucial when we consider how to synthesize the constitutional innovations of the New Deal era with both the Founding framework and the transformative changes of Reconstruction.
Particularly compelling is its examination of federalism and separation of powers. Through careful examination of landmark cases, including McCulloch v. Maryland and Crandall v. Nevada, Black demonstrates how structural reasoning has implicitly undergirded numerous Supreme Court decisions, even when not explicitly acknowledged in judicial opinions.
His analysis reveals that courts frequently derive constitutional principles not from specific textual provisions, but from the necessary implications of governmental relationships established by the Constitution's overall design. Regarding federalism, he observes that "the federal government must not be prevented by the states from carrying out its legitimate functions."[3] This principle, he argues, emerges not from explicit constitutional text but from "the warranted relational properties between the national government and the people of the several states."
On Black's view, we should read constitutional law holistically, attending not just to individual clauses but to the document's overarching democratic and structural principles. Structural reasoning has proven particularly prescient in our modern era, where technological advancement and evolving governmental relationships present constitutional questions of first impression (that the Founders could scarcely have imagined), yet which can be resolved through careful attention to the Constitution's underlying structural logic.
His recognition that constitutional meaning emerges from structural relationships rather than merely from isolated textual provisions aligns with Ackerman's analysis of how successive constitutional regimes—the Founding, Reconstruction, and New Deal moments—require sophisticated interpretative synthesis rather than simple textualist reading.
His analysis of McCulloch v. Maryland demonstrates how Marshall's opinion derives its force not from narrow textual exegesis but from a profound understanding of the structural relationships established by the Constitution's architecture—relationships that themselves reflect the people's higher lawmaking decisions during the Founding period.
His structural approach provides essential methodological tools for understanding how constitutional meaning evolves through a dialectical process of popular mobilization and judicial interpretation (intergenerational synthesis Ackerman). This becomes especially crucial when we consider how to synthesize the constitutional innovations of the New Deal era with both the Founding framework and the transformative changes of Reconstruction.
Displaying 1 - 2 of 2 reviews