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United States constitutional law

United States Constitutional Law is the body of law governing the interpretation and implementation of the United States Constitution.

Interpreting the Constitution and the authority of the Supreme Court

Introduction

United States constitutional law defines the scope and application of the terms of the Constitution. It 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. It is a field of law that is broad and complex. Some constitutional scholars maintain that the authors of the Constitution intended that it be vague and subject to interpretation so that it could be adapted to the needs of a changing society. Others maintain that the provisions of the Constitution should be strictly construed and their provisions applied in a very literal manner.

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 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. According to this jurisprudence, when the Court measures a law against the Constitution and finds the law wanting, the Court is empowered and indeed obligated to strike down that law. In this role, for example, the Court has struck down state laws for failing to conform to the Contract Clause (see, e.g., Dartmouth College v. Woodward) or the Equal Protection Clause (see, e.g., Brown v. Board of Education), and it has invalidated federal laws for failing to arise under the Commerce Clause of the Constitution (see, e.g., United States v. Lopez).

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 courts are bound by their own prior decisions and by the decisions of higher courts. While neither English common law courts nor continental civil law courts generally had the power to declare legislation unconstitutional (only the power to change law), the United States Supreme Court has long been understood to have the power to declare federal or state legislation unconstitutional.

Prudential limits—the principles of justiciability

Before deciding a constitutional question, the Supreme Court may consider whether the court can avoid the constitutional question by basing its decision on a non-constitutional reason. For example, if a federal statute is on shaky constitutional footing but has been 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 the constitutional question if the state court's decision is based on an independent and adequate state law grounds.

Federal courts consider other doctrines before allowing a lawsuit to go forward:

Whether the lawsuit concerns a "case or controversy" under the meaning of Article III, Section 2 of the United States Constitution
Whether parties to the case have proper standing, which is understood to require (1) a particularized and concrete injury to the aggrieved party, (2) a causal connection between the complained-of conduct and that injury, and (3) a likelihood that a favorable court decision will redress the injury
Whether the case is sufficiently ripe (A party will lack standing where her case raises abstract, hypothetical or conjectural questions.)
Whether the case is moot and thus past decision
Whether question presented is a political question, unreviewable by the Court because the Constitution relegates it to another branch of government

Consistent with these doctrines, the Court considers itself prohibited from issuing advisory opinions where there is no actual case or controversy before them.(See Muskrat v. United States, 219 U.S. 346 (1911)). These doctrines, because they apply to all federal cases whether of constitutional dimension or not, are discussed separately in the article on federal jurisdiction.

Differing views on the role of the Court

There are a number of ways that commentators and Justices of the Supreme Court have defined the Court's role, and its jurisprudential method:

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.
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

Congress has the power to impose taxes for the "common Defence and general Welfare of the United States. The U.S. Constitution prohibits the imposition of a tax on "Articles exported from any State.

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).

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.

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.