Constitutional Law

Constitutional law. (2003). In K. Jost (Ed.), The Supreme Court A to Z . Washington: CQ Press. Retrieved August 19, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government

The U.S. Constitution was, at the time of its ratification in 1789, a unique document. Before that time the term constitution had been used in other countries to refer simply to the principles and assumptions underlying the existing system of government. In the United States, the word gained added significance as a charter, a single document that established the structure of the government, defined and limited its powers, and could be amended only by a supermajority vote by both the national legislature and the states.

The Constitution was written at Independence Hall, Philadelphia, during the summer of 1787. (Source: Library of Congress.)

With the addition of the Bill of Rights in 1791, the Constitution also became a broad guarantee of individual rights, at least against actions by the new federal government.

Two centuries later, the U.S. Constitution is the longest-lived national constitution in the world. It has been amended only twenty-seven times, and none of the amendments has fundamentally altered the government structure established in the Constitution.

Supreme Court's Role

The Supreme Court has played a critical role in the longevity of the Constitution. In fact, the Court has been described as a continuing constitutional convention. When it took on the power of judicial review—the power to declare acts of Congress unconstitutional—the Court became the ultimate arbiter of the meaning of the Constitution. In exercising that power it has defined, in greater detail than the Constitution provides, the powers of the federal government and the states, the respective authority of Congress and the president, and the scope of individual liberties. The Court's ability to adapt those definitions over time has reduced the pressure for constitutional amendments.

Despite the Court's lack of power to enforce its rulings, a tradition of compliance ensures that they will be obeyed, even by Congress and the president. As a result, constitutional law has a greater impact on the day-to-day lives of Americans than is the case in other countries, and the Supreme Court can accurately be described as the most powerful court the world has ever known.

The Supreme Court is not, however, exclusively or even primarily a constitutional court. Each year it issues around seventy to ninety written decisions that encompass a wide variety of constitutional, statutory, and common law issues. The diversity of its docket has been viewed as one source of the Court's strength. The Court does not reach out to decide sharply disputed constitutional issues in the abstract. Rather, it resolves them in the context of concrete disputes brought by individual litigants.

Often the Court can decide an individual case on some legal ground without touching the constitutional issue. By exercising judicial restraint, the Court can conserve its political strength for most effective use. Sometimes the Court can delay the consideration of a constitutional issue simply by refusing to accept cases for review.

Methods of Interpretation

The Court has never adopted a single method of interpreting the Constitution. Its decisions sometimes reflect close reliance on the text of the Constitution, the intentions of the Framers, and the historical context of the provision at issue. Other decisions place greater weight on later interpretations of the Constitution or on contemporary social, political, and moral values.

The different methods of interpretation often prompt sharp debate among the justices and among government officials, legal scholars, and the public at large. Critics of some of the Court's decisions in the areas of criminal procedure and individual rights have advocated two overlapping theories for narrowing or overturning some expansions of constitutional rights by the Court.

One theory, called strict construction, says the text of the Constitution should be “strictly construed” so as to limit expansions of individual rights in areas such as privacy and free speech. Another theory, called original intent, says the Framers' intentions are the key to interpreting and applying any constitutional provision. Both theories have strong appeal among political conservatives, but both have been sharply criticized by many legal scholars.

The Supreme Court rejected the strict construction theory in its first landmark decision on the powers of the federal government, Mcculloch v. Maryland (1819). In what is sometimes called his most important opinion, Chief Justice John Marshall argued that the Framers deliberately kept the Constitution brief with the intention that the powers of the new federal government would be broadly rather than narrowly construed.

“Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves,” Marshall wrote. “We must never forget that it is a constitution that we are expounding.”

More than a century later, Justice Felix Frankfurter, a strong advocate of judicial restraint, argued that even though some constitutional provisions could be strictly construed, many others were written with deliberate “imprecision.” “Great concepts like ‘Commerce among the several states,’ ‘due process of law,’ ‘liberty,’ ‘property,’ were purposely left to gather meaning from experience,” Frankfurter wrote in 1949. “The statesmen who founded this nation knew too well that only a stagnant society remains unchanged.”

On the contemporary Court, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas have been the strongest advocates for a narrower approach to interpreting the Constitution. In a law review article written in 1976, while he was still an associate justice, Rehnquist argued that the Court should not endorse any legal right that is not “within the four corners” of the Constitution. He continued by saying that the Court should not use its authority “to make the Constitution relevant and useful in solving the problems of modern society.”

Scalia's approach can be seen in his dissent in a 1992 abortion rights case. In explaining his view that the right to abortion is not protected under the Constitution, Scalia wrote: “I reach that conclusion … because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”

Historic Watersheds

Constitutional development in the United States has not followed a tidy pattern. But some major historical watersheds can be marked.

Nation Building

In its first decades the Court helped lay the foundations for the national government. Marshall's opinion in McCulloch v. Maryland sustained a broad construction of congressional power, while his opinion in Gibbons v. Ogden (1824) established the supremacy of the federal commerce power over the states.

The president and Congress made their own contributions to the expansion of national powers. President Thomas Jefferson, supposedly a strict constructionist, negotiated the Louisiana Purchase without explicit constitutional authority. Congress voted to create a fund for building roads, canals, and other internal improvements, even though Presidents James Madison and James Monroe refused funding on constitutional grounds.

States' Rights

States' rights were not ignored during Marshall's era. States retained power over commerce if their laws did not conflict with federal policy. The Court in 1833 held that the Bill of Rights did not apply to the states.

Under Chief Justice Roger B. Taney, however, the Court accorded more deference to the states. The doctrine of “dual federalism” allowed states greater control over internal affairs, although the Court's rulings on the issues were frequently confused. Charles River Bridge v. Warren Bridge (1837) gave the states greater leeway in regulating corporations—thereby undermining one of Marshall's great opinions, Dartmouth College v. Woodward (1819).

The issue of slavery underlay some of the Taney Court's opinions narrowing federal powers, although the Court also had to insist on federal supremacy on the issue of returning fugitive slaves from northern states. The sectional rivalry led some to argue that states could annul federal laws, but the nullification theory was never tested before the Court.

In the Civil War the issue of secession was settled on the battlefield, but states' rights retained support on the Court even after the war. The Court's narrow construction of the Privileges and Immunities Clause of the Fourteenth Amendment in the Slaughterhouse Cases (1873) left most issues of individual rights to the states. The Civil Rights Cases (1883) found no constitutional authority for Congress to invade states' prerogatives by prohibiting racial discrimination in public accommodations. Plessy v. Ferguson (1896) found no constitutional bar to state-mandated racial segregation.

Laissez-Faire

The industrial revolution and the rise of the corporation created divisions and conflict in American society. A more activist Court came to be viewed as wielding the Constitution in favor of business and propertied interests in those disputes.

The Court narrowly defined commerce in its 1895 decision sharply restricting the impact of the new Sherman Antitrust Act. In the same year it threw out the federal income tax on constitutional grounds. Over the next decade the Court recognized a constitutional freedom of contract that was used in Lochner v. New York (1905) to strike down a state law concerning maximum working hours. In 1908 the Court used freedom of contract to invalidate a federal law against “yellow dog” contracts restricting workers' rights to join a union. In the same year the Court ruled in favor of a railroad contesting a state law concerning rate regulation. That decision established for the first time the power of federal courts to enjoin the operation of a state law challenged as unconstitutional.

During the same period, however, the Court's police power decisions laid a constitutional basis for the modern regulatory state. The Court upheld state regulation of businesses and local zoning laws, despite the impact on property rights. The Court also recognized for the first time a national police power, derived from the federal commerce power. The police power provided a constitutional justification for the first of the modern regulatory statutes—the Pure Food and Drug Act of 1906.

Federal power also grew in the activist presidencies of Theodore Roosevelt, William Howard Taft, and Woodrow Wilson, and along with the national mobilization to fight World War I. The war and its aftermath brought the Court its first modern civil liberties issues—espionage and sedition cases challenged as violations of First Amendment rights. The Court found no constitutional bar to imprisoning people for advocating views opposed by the government.

The Court continued to strike down some state and federal economic measures in the 1920s and 1930s. This tendency culminated with the series of rulings striking down major portions of President Franklin D. Roosevelt's New Deal program in 1935 and 1936. The constitutional justifications for the rulings were narrow constructions of the federal powers of commerce, spending, and taxing. The decisions provoked a political confrontation that led to the demise of laissez-faire constitutionalism and wrought a permanent change in the Court's constitutional philosophy.

Revolution of 1937

Roosevelt devised his “Court-packing” plan of 1937 to remove the constitutional roadblocks to his programs. The defeat of the plan vindicated the Court's constitutional prerogatives. But two members of the Court, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, had already changed their views. While the plan was under debate, the Court handed down a number of decisions that upheld New Deal measures. These rulings amounted to a revolution in constitutional interpretation.

The Court sustained the National Labor Relations Act by abandoning the distinction between manufacturing and commerce that had been used to limit the federal commerce power. It upheld federal unemployment compensation and old age benefit programs by taking a broader view of the government's taxing and spending powers, even if they infringed on states' rights. The Court also dropped its theory of freedom of contract in order to uphold state minimum wage laws. Four years later, in 1941, the Court similarly found no constitutional bar to a federal wage and hours law and used that decision to sweep away states' rights limitations on the federal commerce power.

Roosevelt reinforced the change in constitutional philosophy in his selection of justices. He made nine appointments to the Court over a span of seven years. By 1941 all the justices opposed to his programs had retired. Constitutional roadblocks to the expansion of federal power in economic and welfare legislation all but disappeared.

Rights Revolution

Just as the Court was ceding its power to review social and economic legislation, it was laying the groundwork for a second revolution in support of individual rights. In a famous footnote, note four in United States v. Carolene Products Co. (1938)—the case dealt with the interstate shipment of skimmed milk—the Court suggested that it had a special role to play in defending freedoms guaranteed by the Bill of Rights and in protecting “discrete and insular minorities.” The Court's solicitude for individual rights grew slowly in the 1940s and then ripened into the Warren Court's revolution in civil rights in the 1950s and in criminal procedure in the 1960s.

The constitutional bases for the change were the Due Process and Equal Protection Clauses of the Fourteenth Amendment. During the laissez-faire era, due process had been the justification for protecting property rights. In the 1930s the Court invoked it instead to protect First Amendment rights: freedom of religion, freedom of speech, freedom of the press, the right of assembly. Due process, the Court said, meant that these “fundamental” rights were protected from abridgment by the states. In 1948 the Court ruled that the Fourth Amendment guarantees against unreasonable search and seizure were also applicable to the states as part of due process.

The Court gave new force to the Equal Protection Clause in 1950 with two decisions striking down racial segregation in state higher education. Four years later the Warren Court's historic decision in Brown v. Board of Education (1954) forbade racial segregation in all public schools. Over the next decade the Court struck down state-mandated segregation in other contexts as well. In the 1970s the Court broadened the Equal Protection Clause to limit sex discrimination.

Already under intense public criticism because of its civil rights rulings, the Warren Court in the 1960s undertook to guarantee the constitutional rights of criminal defendants in state justice systems. Under the incorporation doctrine the Court, step by step, required states to afford suspects and defendants almost all the rights guaranteed by the Fourth, Fifth, and Sixth Amendments.

Three major rulings stand out. Mapp v. Ohio (1961) required states to apply the exclusionary rule to block the use of illegally seized evidence. Gideon v. Wainwright (1963) required states to provide lawyers for indigent criminal defendants. Miranda v. Arizona (1966) laid down mandatory guidelines for police interrogation of suspects.

With these and other criminal procedure decisions, the Warren Court brought about a fundamental transformation in state courts throughout the country. But the controversies sparked by the decisions led to a political reaction that gradually lowered the Court's constitutional profile over the next two decades.

Retrenchment

Under Chief Justices Warren E. Burger and William H. Rehnquist, the Court found less constitutional fault with police conduct and the operations of state court systems than it had previously. Capital punishment, which had been declared unconstitutional in 1972 by five Warren Court holdovers, was reinstated in 1976. The Court in 1973 refused to apply equal protection to eliminate unequal financing of public schools. It narrowed Warren Court precedents in First Amendment areas by setting out a less rigorous definition of obscenity and refusing to extend libel protections to suits brought by private figures.

Still, the Burger Court expanded the constitutional right to privacy in its abortion rights ruling Roe v. Wade (1973). And it extended freedom of speech to protect the right to spend money in political campaigns.

Rehnquist's elevation to chief justice in 1986 and further appointments by Presidents Ronald Reagan and George H. W. Bush seemed to solidify a conservative majority. The new majority was less disposed to make expansive constitutional rulings on individual rights. The retrenchment, however, was not complete. The Court's major criminal procedure precedents were narrowed but left on the books. Roe v. Wade was reaffirmed but narrowed to give states somewhat greater leeway to regulate abortion procedures. And the Court continued to protect free speech rights in rulings such as its 1989 and 1990 decisions striking down laws against desecration of the flag and its 1997 decision invalidating a federal law limiting sexually explicit material on the Internet.