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'United States Constitutional Law' is the body of law governing "the interpretation and implementation of the United States Constitution." It defines the scope and application of the terms of the Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States. [1] It is a field of law that is both complex and broad, in part because it is ambiguous in many aspects and often provides few clear answers. Some constitutional scholars maintain that the Constitution purposely remains vague and subject to interpretation so that it may be adapted to the circumstances of a changing society. Others, however, maintain that the provisions of the Constitution are "black letter law" and should be strictly construed and their provisions applied in a very literal manner. [2]
Interpreting the Constitution and the authority of the Supreme Court
The power of judicial review
Early in its history, in ''Marbury v. Madison'', 5 U.S. 137 (1803) and ''Fletcher v. Peck'', 10 U.S. 87 (1810), the Supreme Court of the United States declared that "the judicial power of the United States" granted to it by Article III of the United States Constitution included the power of judicial review, to consider challenges to the constitutionality of a State or Federal law. That is, the Court must consider, for example, whether a state law conformed to the Contract Clause (''see'', e.g., Dartmouth College v. Woodward), or (after the Fourteenth Amendment was added) whether a state had violated the Equal Protection Clause (''see'', e.g., Brown v. Board of Education), or whether Congress possessed the power under the Commerce Clause to pass a given law (''see'', e.g., United States v. Lopez). Having measured a law against the Constitution and, if finding it wanting, the Court was empowered and obligated to strike down that law.
Pros and cons
However, opponents of judicial review have charged that the Supreme Court's power to invalidate federal and state laws or actions has no counterpart in common or civil law, and has no basis in the United States Constitution. The law of the United States derives in great part from the common law traditions the colonies inherited from Britain, which arguably have vested the power of judicial review in the people since 1215, when the Magna Carta was signed by King John Lackland. Whereas judicial review is not mentioned in the Constitution, neither are the adversarial system, stare decisis, or virtually any other aspect of the common law. Therefore the argument is made that these concepts were necessarily implicit in what the Framers understood by the term "the judicial power," and therefore should govern the Constitution's interpretation. ''See'' Barnett, The Original Meaning of the Judicial Power. It is for these reasons that Article 39 opponents contend that the Anglo-American tradition establishes the concept of the jury as the regulating body in legal matters, rather than the government itself. However this criticism of the Supreme Court's jurisprudence has never been articulated by any U.S. court and is disputed by the United States legal establishment for the following reasons.
While American constitutional law derives many of its forms and traditions from the common law, it is important to note that the constitutional order of the United States was very different to that of the United Kingdom. As ''Marbury'' observed, the Constitution's written nature and formal enumeration of the powers of government would be empty promises if there were no means to measure the actions of the government against the Constitution, and strike down those found wanting (''see'' ''Marbury'', supra, at 177) ("''[c]ertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void''"). It is the predominant view in United States constitutional jurisprudence that, because Magna Carta is only the distant progenitor of the Due Process clauses, it is far from vesting judicial review in United States juries. In any event, and as a practical matter, the "final authority" regarding the United States Constitution is not the Supreme Court but the political will of the people, acting through the powers granted them by way of the Article V amendment powers (i.e., amendments are either proposed by Congress or by way of constitutional convention mandated by the state legislatures)
Scope and effect
The Supreme Court's interpretations of Constitutional law are binding on the legislative and executive branches of the federal government, on the lower courts in the federal system and on all state courts. This system of binding interpretations or precedents evolved from the common law system (called "stare decisis"), where precedent binds lower courts. However, neither English common law courts or continental civil law courts generally have the power to declare legislation illegal or unconstitutional but only the power to change law.
Prudential limits—the principles of justiciability
There are a number of related doctrines that, once raised by a party, the Supreme Court will examine before deciding on a constitutional question. Perhaps the most important of these is whether the court can avoid the constitutional question by basing its decision on a nonconstitutional reason. For example, if a federal statute is on shaky constitutional footing but applied to the challenging party in a manner that does not implicate the basis for the constitutional claim, the Supreme Court will not decide whether the statute might be unconstitutional if it were applied differently. Or, when reviewing a decision of a state's highest court, the Court may avoid constitutional decision making if the state court's decision is based on an independent and adequate state law grounds. That is, even if the state court decided the question of federal constitutional law incorrectly, the Supreme Court will not review that decision for its correctness, if the state decision is based on other, separate state grounds.
There are also many related doctrines that federal courts in general and the Supreme Court in particular will consider before allowing a lawsuit to go forward. These implicate whether there is a case and controversy before the court and include proper standing of the parties, whether the case raises abstract, hypothetical or conjectural questions, whether the case is ripe for decision, or moot and thus past decision, or whether the question presented is a political question, unreviewable by the Court because the Constitution relegates it to another branch of government. In line with the aforementioned principles, the Court will also avoid the issuance of advisory opinions where there is no actual case or controversy before them. These doctrines, because they apply to all federal cases whether of constitutional dimension or not, are discussed separately in the article on federal jurisdiction.
Suits against states: effect of the 11th Amendment
The Eleventh Amendment to the United States Constitution defines the scope of when and in what circumstances a state may be haled into federal court. Taken literally, the Amendment prohibits a citizen from suing a state in federal court through the sovereign immunity doctrine. However, the Court has articulated three exceptions: 1) Particular state officials may be sued, 2) States can waive immunity or consent to suit, and 3) Congress may authorize suits against a state through the abrogation doctrine. However, concerning this latter exception, the Supreme Court has held in ''Seminole Tribe v. Florida'' that Congress may not, outside of the Fourteenth Amendment, authorize federal lawsuits against states in abrogation of the Eleventh Amendment's guarantee of sovereign state immunity.
Philosophical underpinnings
Furthermore, there are a number of ways that commentators and Justices of the Supreme Court have defined the Court's role, and its jurisprudential method. For example, current Associate Justices Antonin Scalia and Clarence Thomas are originalists; originalism is a family of similar theories that hold that the Constitution has a fixed meaning from an authority contemporaneous with the ratification (although opinion as to what that authority ''is'' varies; see discussion at originalism), and that it should be construed in light of that authority. Unless there is a historic and/or extremely pressing reason to interpret the Constitution differently, originalists vote as they think the Constitution as it was written in the late 18th Century would dictate. Other approaches are possible, though. Associate Justice Felix Frankfurter was a leading proponent of so-called judicial restraint, in that he believed that the Supreme Court should not make law (which, by invalidating or significantly altering the meaning of Congressional bills, Frankfurter felt they were), and so believers in this idea often vote not to grant cases the writ of certiorari. Associate Justice Stephen Breyer generally advocates a quasi-purposivist approach, focusing on what the law was supposed to achieve rather than what it actually says, and measuring the possible outcomes of voting one way or another. Other Justices have taken a more instrumentalist approach (see judicial activism), believing it is the role of the Supreme Court to reflect societal changes. They often see the Constitution as a living, changing and adaptable document; thus their ruling will be in stark contrast to originalists. Compare, for example, the differing opinions of Justices Scalia and Ruth Bader Ginsburg, who is a more instrumentalist justice. Finally, there are some Justices who do not have a clear judicial philosophy, and so decide cases purely on each one's individual merits. Debate continues over which, if any, of these interpretive strategies is "better". Complicating the analysis is the lack of direct correspondence between the various interpretive strategies and contemporary notions of "conservatism" or "liberalism". For example, originalism is often associated with conservatism, but Justice Scalia's opinions in 2004 about the detention of persons at Guantanamo Bay were probably the most libertarian, because he did not believe that the framers of the Constitution had granted Executive powers for the purpose of preventing judicial and legislative notice.
History
The Founding
Benjamin Franklin and other famous political actors of the day had a great hand in shaping the constitutionalism so many of us enjoy today. Their philosophy roughly equates to the forming of an institutional framework which would allow for the development of the opportunities presented by the New World, with the important ethical caveat that no man ought gain at the expense of another. (Franklin has written numerous pieces on this subject as may be seen in any decent collection of his works. His views do differ somewhat, however, from other theorists such as Madison, for example. Consider the political premises urged in Federalist 10, for instance, and contrast with the presentation of the ideal citizen type in Franklin's Autobiography. But these differences are, in the final analysis, inconsiderable.)
Among other, lesser known, signers of the Declaration of Independence, is James Wilson, founder of the University of Pennsylvania law school and Supreme Court Justice. In his inaugural law lectures, Wilson offers to his contemporaries an interesting exposition of the constitutional principles brought to life by the sacrifices of many great Americans. In citing ancient models of virtue (Roman matrons, First Lecture, first chapter) Wilson, perhaps unintentionally, approximates himself theoretically to his fellow Pennsylvanian, Franklin, and makes clear that as far as the Founders were concerned, there was no substantial difference between virtues, ancient and modern.
The lectures that follow present a vigorous treatment of the differences and important similarities between the English and the American constitutions. This question was important to eighteenth century citizens. But it may be that further study of this view will allow us to understand better the intent of the Framers. Furthermore, it would seem, it may prove to be of interest to young American legal scholars, many of whom are now required to take courses in comparative law.
What contemporary students do seem to have in common, however, with the theorists of the American Founding, is articulated by Wilson in the course of a discussion of some general principles of law and obligation (Second chapter). He writes: "Order, proportion, and fitness pervade the universe. Around us, we see; within us, feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made." This, no doubt, refers to the rule of law, which was then and there in the United States forming as the organizing principle of the judiciary.
It is hard for us today to understand the great change that took place as the early Justices of the Supreme Court set the tone and thus the course of their adjudicatory process, a process much envied and emulated throughout the world today. Wilson shows us what respect this change deserves. After cautioning his audience to proceed with due care, he notes the difficulty of exact definitions of laws. Those familiar with the inner workings of high American courts, as evidenced by their public opinions, know well that spirit, derived from experience, does more to further the ends of justice than dead, though righteously inclined, logic. "Influenced by these admonitory truths, I hesitate, at present, to give a definition of law." (Second chapter.) Wilson, a man widely read and well accustomed to the rigors of philosophy, shows a gentleness here which many partisans can admire.
He then proceeds, boldly, to state the fundamental issue: "If the prince, who makes laws for a people, is superior, in the terms of the definition, to the people, who are to obey; how comes he to be vested with the superiority over them?" We take for granted today the many sacrifices made across the centuries in order to answer this great question. One suspects he was not simply writing for his contemporary Americans, nor indeed simply for Americans, when he goes on to write: "Despotism, by an artful use of 'superiority' in politicks; and scepticism, by an artful use of 'ideas' in metaphysics, have endeavoured - and their endeavours have frequently been attended with too much success - to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains." Having made the necessary attempt at clearing the theoretical grounds for construction ("We now see, how necessary it is to lay the foundations of knowledge deep and solid."), Wilson leads his students through a tour of near recent thinkers (Locke, Blackstone, etc.). Hesitant though he may be, he pulls no punches when attacking the enemies of right, whether they be politicians, philosophers, or what-you-will, and towards the end of the chapter suggests that the American principle or principles are intimately connected to not only the law of nature but also to the general law of nations. "The immediate objects of our attention are, the law of nature, the law of nations, and the municipal law of the United States, and of the several states which compose the Union." (Second chapter.)
The third chapter discusses a topic not much in fashion in law schools today, the law of nature. Understandable, many students will skim this section; but perhaps equally understandably they do themselves a disservice if their hope is to deepen their knowledge of the Original Intent of the Framers. The Constitution took shape in an environment in which discussion of natural law occupied a position of high, if not the highest, importance. At the least, a sober assessment of the strengths and weaknesses of American constitutionalism requires a minor degree of familiarity with the issues Wilson lays out in this chapter.
The fourth chapter is entitled "Of the Law of nations," situating the United States within the broader context. The fifth deals with municipal law, in a sense perhaps different than we understand the term today. The sixth deals with man as an individual, a topic of great interest to many liberal legal scholars and activists. The seventh, "Of Man, as a member of society," is readily seen as an extension of the preceding chapter into the tension we generally take for granted today. The eighth, "Of man, as a member of a confederation," was likely of great interest to knowing political players of the day, but of relatively little interest in post-Civil War America. But this is more than amply made up by the succeeding chapter, "Of man, as a member of the great commonwealth of nations," the title of which suggests the Adam Smith book of 1776. "Of government," is the tenth; and "Comparison of the constitution of the United States, with that of Great Britain," closes out the first volume.
From the Founding to the Civil War
Reconstruction
From Reconstruction to the New Deal
From the New Deal to the Roberts Court
The question of federalism
Powers granted by the Constitution to the federal government
The federal commerce power
Congress is authorized to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes" under Article I, Section 8, Clause 3 of the Constitution.
Important early cases include ''United States v. E.C. Knight Co.'' (1895) which held that the federal Sherman Act could not be applied to manufacture of sugar because "commerce succeeds to manufacture, and is not a part of it." Essentially, the Court cabined commerce as a phase of business distinct from other aspects of production.
In the ''Shreveport Rate Cases'' (1914), the Court permitted congressional regulation of railroad lines because Congress was regulating the "channels of commerce" and although the regulation was on intrastate rail lines, the effect of the intrastate lines was direct so as to concern interstate commerce. In ''Schecter Poultry'', the Court invalidated a federal statute seeking to enforce labor conditions at a slaughterhouse for chickens; the Court held the relationship between labor conditions and chickens was too indirect - that chickens come to rest upon arrival at the slaughterhouse (thereby ending the stream of commerce), so whatever happened in the slaughterhouse was not Congress's business.
In these early cases, the Court approached problems formalistically - from cabining commerce to a specific zone to a direct/indirect test. This continued in the cow case, ''Stafford v. Wallace'', where the court articulated a "Stream of Commerce" test; essentially, Stream of Commerce conceptualizes commerce as a flow mostly concerned with the transportation and packaging of goods and not including acquisition of raw materials at the front end and retail of those goods at the tail end.
However, with the Great Depression, there was political pressure for increased federal government intervention and the Court increasingly deferred to Congress. A seminal case was ''NLRB v. Jones and Laughlin'' where the Court adopted a realist approach and reasoned that interstate commerce is an elastic conception which required the Court to think of problems not as falling on either side of a dichotomy but in a more nuanced fashion.
Expansion of Congress's commerce clause power continued with ''Wickard'' in 1942 involving a farmer's refusal to comply with a federal quota. ''Wickard'' articulated the aggregation principle: that effects of the entire class matter rather than composites of the class, so even if the single farmer did not substantially affect interstate commerce, all farmers - the class to which he belonged - do - they compete with the national market.
With recent cases like ''Lopez'' and ''Morrison'', there has been a return to formalism - i.e. legal tests created by the Court to determine if Congress has overstepped its bounds. In both those cases, the federal statutes were invalidated. But in ''Gonzalez v. Raich'' (post ''Lopez'' and ''Morrison''), principles of ''Wickard'' were resurrected, leaving the future of commerce clause doctrine uncertain.
The taxing power
The spending power
The war, treaty, and foreign affairs powers
Other federal powers
Other federal powers specifically enumerated by Section 8 of Article I of the United States Constitution (and generally considered exclusive to the federal government) are:
★ to 'coin money', and to regulate its value;
★ to establish laws governing 'bankruptcy';
★ to establish 'post offices' (although Congress may allow for the establishment of non-governmental mail services by private entities);
★ to control the issuance of 'copyrights' and 'patents' (although copyrights and patents may also be enforced in state courts);
★ to govern the 'District of Columbia' and all other 'federal properties';
★ to control 'naturalization' (and, implicitly, the 'immigration') of aliens;
★ to enforce "by appropriate legislation" the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution (a function of the Constitution's 'Necessary and Proper' clause);
★ to propose, by a two-thirds vote, 'constitutional amendments' for ratification by three-fourths of the states pursuant to the terms of Article V.
Powers reserved by the states
Although, for all practical purposes (as proved by the fact of the U.S. Civil War), the federal government does not actually govern by the "consent of the states," some of the more important powers reserved by the states to themselves in the Constitution are:
★ the power, by "application of two-thirds of the legislatures of the several states," to require Congress to convene a constitutional convention for the purpose of proposing amendments to or revising the terms of the Constitution (see Article V).
Intergovernmental Immunities and Interstate Relations
The United States government, its agencies and instrumentalities, are immune from state regulation that interferes with federal activities, functions, and programs. State laws and regulations cannot substantially interfere with an authorized federal program, except for minor or indirect regulation, such as state taxation of federal employees.
Limiting the power of the three branches—the system of "checks and balances"
Boundaries of power: Congress versus the executive
Lawmaking authority
The presidential veto power
Foreign affairs and war powers
Appointment and removal of executive personnel
The special prosecutor
The judicial branch
Legislative and executive immunity
The due process clause (Fifth and Fourteenth Amendments)
The equal protection clause (Fourteenth Amendment)
The privileges and immunities clauses (Article IV and Fourteenth Amendment)
Article IV
The Fourteenth Amendment
The Takings Clause
The contracts clause
The ex post facto clause
The prohibition on bills of attainder
Freedom of expression
Main articles: Freedom of speech in the United States
Freedom of religion
Main articles: Freedom of Religion in the United States
Federal enforcement of civil rights
Sources
1. Cornell University - Constitutional law
2. Introduction to the Study of Constitutional Law
See also
★ United States Constitution
★ United States Supreme Court
★ Lists of United States Supreme Court cases
External links
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