United States constitutional law
Encyclopedia
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution
.
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
).
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.
Federal courts consider other doctrines before allowing a lawsuit to go forward:
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
.
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.
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 rigorous 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.
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.
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.
Enumerated powers of Congress
Article I, Section 8 of the Constitution enumerates many explicit powers of Congress. See Enumerated powers
.
Enumerated powers of the President
Several important powers are enumerated to the President under Article II, Section 2. These include:
(Article I, Section 7, cl. 2-3) grants the president the power to veto
Congressional legislation and Congress the power to override a presidential veto with a supermajority
. Under the clause, once a bill has been passed in identical form by both houses of Congress, it must be sent ("presented") to the president for action before it can become federal law. At that point, the Constitution provides the president with three options and 10 days to act.
First, the president can sign the bill into law. Second, the president can veto the legislation by sending the bill back to Congress unsigned and with a written statement of his objections. Third, the president can choose not to act at all on the bill (i.e., simply decline to sign it), which can have one of two effects, depending on the circumstances. If Congress is in session, the bill automatically becomes law, without the president's signature, after 10 days. If, however, Congress adjourned during that 10 day period, the bill fails to become law in a procedural device known as the "pocket veto
".
Congress may override a presidential veto by a two-thirds majority vote in each house, in which case the bill becomes law.
The president approves or rejects a bill in its entirety; he is not permitted to veto specific provisions. In 1996, Congress passed, and President Bill Clinton
signed, the Line Item Veto Act of 1996
, which gave the president the power to veto individual items of budgeted expenditures in appropriations bills. The Supreme Court subsequently declared the line-item veto unconstitutional as a violation of the Presentment Clause in Clinton v. City of New York
, . The Court construed the Constitution's silence on the subject of such unilateral presidential action as equivalent to "an express prohibition," agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure", and that a bill must be approved or rejected by the president in its entirety. The Court reasoned that a line-item veto "would authorize the President to create a different law--one whose text was not voted on by either House of Congress or presented to the President for signature," and therefore violates the federal legislative procedure prescribed in Article I, Section 7.
Article II, Section 2 gives Congress the discretion to vest the appointment of "inferior officers" in either the President alone, the heads of departments, or the lower federal courts. Congress may not appropriate this role for itself, and Senate confirmation is not required for these positions.
The President has the authority to remove most high-level executive officers at will. Congress, however, may place limitations on the removal of certain executive appointees serving in positions where independence from the presidency is considered desirable, such as stipulating that removal may only be for cause.
Members of the Senate and of the House of Representatives have absolute immunity for all statements made on the floor of Congress (Art. I Sec. 6).
Executive Immunity
As a general rule, sitting presidents enjoy immunity from civil suit for damages arising from actions taken while in office. This rule was significantly curtailed by the Supreme Court's decision in Clinton v. Jones
, which held that sitting Presidents could in fact be sued for actions undertaken before taking office or for actions which are unrelated to the presidential office.
A government "taking" must be distinguished from a government "regulation." With a taking, the government must fairly compensate the property owner when the property is taken for public use. If the government regulates property, it does not have to pay any compensation. A "taking" will be found if there is an actual appropriation or destruction of a person's property or a permanent physical invasion by the government or by authorization of law. The courts may also find a taking where a governmental regulation denies a landowner of all economic use unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.
Website
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
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 StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
declared that the judicial power granted to it by Article III of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
included the power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, 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
Contract Clause
The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. It states:The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights...
(see, e.g., Dartmouth College v. Woodward
Dartmouth College v. Woodward
Trustees of Dartmouth College v. Woodward, 17 U.S. 518 , was a landmark United States Supreme Court case dealing with the application of the Contract Clause of the United States Constitution to private corporations...
) or the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
(see, e.g., Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
), and it has invalidated federal laws for failing to arise under the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
of the Constitution (see, e.g., United States v. Lopez
United States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...
).
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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system (called "stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
"), 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
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
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 issue at dispute. 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:
- Actual dispute - the lawsuit concerns a "case or controversyCase or controversyThe Case or Controversy Clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of...
" under the meaning of Article III, Section 2 of the U.S. Constitution - StandingStanding (law)In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
- the party bringing the suit must have (1) a particularized and concrete injury, (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 - Ripeness - a party will lack standing where her case raises abstract, hypothetical or conjectural questions.
- Mootness - a party is seeking redress over a case that no longer has a basis for dispute, though there are limited exceptions
- Political questionPolitical questionIn American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
- the issues raised in the suit are unreviewable 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
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(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
Federal jurisdiction
The United States of America being a federal country is made up of many States and a central government. This central government may be known as the Union, the United States, or the Federal government...
.
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 ScaliaAntonin ScaliaAntonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
and Clarence ThomasClarence ThomasClarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
are originalistsOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
; 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 originalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
), 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 FrankfurterFelix FrankfurterFelix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
was a leading proponent of so-called judicial restraintJudicial restraintJudicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
, 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 BreyerStephen BreyerStephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
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 activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
), 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 GinsburgRuth Bader GinsburgRuth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, 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
Guantanamo Bay Naval Base
Guantanamo Bay Naval Base is located on of land and water at Guantánamo Bay, Cuba which the United States leased for use as a coaling station following the Cuban-American Treaty of 1903. The base is located on the shore of Guantánamo Bay at the southeastern end of Cuba. It is the oldest overseas...
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.
The Founding
Benjamin Franklin and other prominent 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
University of Pennsylvania Law School
The University of Pennsylvania Law School, located in Philadelphia, Pennsylvania, is the law school of the University of Pennsylvania. A member of the Ivy League, it is among the oldest and most selective law schools in the nation. It is currently ranked 7th overall by U.S. News & World Report,...
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 rigorous 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.
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.
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 ConstitutionEleventh Amendment to the United States Constitution
The Eleventh Amendment to the United States Constitution, which was passed by the Congress on March 4, 1794, and was ratified on February 7, 1795, deals with each state's sovereign immunity. This amendment was adopted in order to overrule the U.S. Supreme Court's decision in Chisholm v...
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
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
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
Abrogation doctrine
The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's sovereign immunity and subject it to lawsuits to which the state has not consented ....
. However, concerning this latter exception, the Supreme Court has held in Seminole Tribe v. Florida
Seminole Tribe v. Florida
Seminole Tribe of Florida v. Florida, 517 U.S. 44 , was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment...
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.Limiting the power of the three branches—the system of "checks and balances"
Boundaries of power: Congress versus the executive
Many powers of Congress and of the President are specifically enumerated by the Constitution.Enumerated powers of Congress
Article I, Section 8 of the Constitution enumerates many explicit powers of Congress. See Enumerated powers
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...
.
Enumerated powers of the President
Several important powers are enumerated to the President under Article II, Section 2. These include:
- Commander-in-chief of the armed forces;
- Power to pardon offenses against the United States;
- Power to make treaties (with consent of the Senate); and the
- Power to appoint judges, ambassadors, and other officers of the United States (often requiring Senate consent);
The presidential veto power
The Presentment ClausePresentment Clause
The Presentment Clause of the United States Constitution outlines federal legislative procedure by which bills originating in Congress become federal law in the United States.-Text:...
(Article I, Section 7, cl. 2-3) grants the president the power to veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
Congressional legislation and Congress the power to override a presidential veto with a supermajority
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...
. Under the clause, once a bill has been passed in identical form by both houses of Congress, it must be sent ("presented") to the president for action before it can become federal law. At that point, the Constitution provides the president with three options and 10 days to act.
First, the president can sign the bill into law. Second, the president can veto the legislation by sending the bill back to Congress unsigned and with a written statement of his objections. Third, the president can choose not to act at all on the bill (i.e., simply decline to sign it), which can have one of two effects, depending on the circumstances. If Congress is in session, the bill automatically becomes law, without the president's signature, after 10 days. If, however, Congress adjourned during that 10 day period, the bill fails to become law in a procedural device known as the "pocket veto
Pocket veto
A pocket veto is a legislative maneuver in United States federal lawmaking that allows the President to veto a bill indirectly.The U.S. Constitution limits the President's period for decision on whether to sign or veto any legislation to ten days while the United States Congress is in session...
".
Congress may override a presidential veto by a two-thirds majority vote in each house, in which case the bill becomes law.
The president approves or rejects a bill in its entirety; he is not permitted to veto specific provisions. In 1996, Congress passed, and President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
signed, the Line Item Veto Act of 1996
Line Item Veto Act of 1996
The Line Item Veto Act of 1996 enacted a line-item veto for the Federal government of the United States, but its effect was brief due to judicial review....
, which gave the president the power to veto individual items of budgeted expenditures in appropriations bills. The Supreme Court subsequently declared the line-item veto unconstitutional as a violation of the Presentment Clause in Clinton v. City of New York
Clinton v. City of New York
Clinton v. City of New York, , is a legal case in which the Supreme Court of the United States ruled that the line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United...
, . The Court construed the Constitution's silence on the subject of such unilateral presidential action as equivalent to "an express prohibition," agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure", and that a bill must be approved or rejected by the president in its entirety. The Court reasoned that a line-item veto "would authorize the President to create a different law--one whose text was not voted on by either House of Congress or presented to the President for signature," and therefore violates the federal legislative procedure prescribed in Article I, Section 7.
Appointment and removal of executive personnel
Article II, Section 2 grants the President the power, with the "advice and consent of the Senate," to appoint "ambassadors,... judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for" in the Constitution. This includes members of the cabinet, top-level agency officials, Article III judges, US Attorneys, and the Chairman of the Joint Chiefs, among many other positions. Under the modern interpretation of "advice and consent," a presidential appointment must be confirmed by majority vote in the Senate in order to take effect. Thus, in practice, the President holds the power to nominate, while the Senate holds the power to confirm.Article II, Section 2 gives Congress the discretion to vest the appointment of "inferior officers" in either the President alone, the heads of departments, or the lower federal courts. Congress may not appropriate this role for itself, and Senate confirmation is not required for these positions.
The President has the authority to remove most high-level executive officers at will. Congress, however, may place limitations on the removal of certain executive appointees serving in positions where independence from the presidency is considered desirable, such as stipulating that removal may only be for cause.
Legislative and executive immunity
Legislative ImmunityMembers of the Senate and of the House of Representatives have absolute immunity for all statements made on the floor of Congress (Art. I Sec. 6).
Executive Immunity
As a general rule, sitting presidents enjoy immunity from civil suit for damages arising from actions taken while in office. This rule was significantly curtailed by the Supreme Court's decision in Clinton v. Jones
Clinton v. Jones
Clinton v. Jones, , was a landmark United States Supreme Court case establishing that a sitting President of the United States has no immunity from civil law litigation against him, for acts done before taking office and unrelated to the office....
, which held that sitting Presidents could in fact be sued for actions undertaken before taking office or for actions which are unrelated to the presidential office.
The privileges and immunities clauses (Article IV and Fourteenth Amendment)
The Takings Clause
Generally speaking, the Fifth Amendment prevents the government from taking private property "for public use without just compensation." This prohibition on takings is applicable to the 50 states through the Fourteenth Amendment. A governmental taking includes not only physical appropriations of property but also government action that significantly reduces property or impairs its use.A government "taking" must be distinguished from a government "regulation." With a taking, the government must fairly compensate the property owner when the property is taken for public use. If the government regulates property, it does not have to pay any compensation. A "taking" will be found if there is an actual appropriation or destruction of a person's property or a permanent physical invasion by the government or by authorization of law. The courts may also find a taking where a governmental regulation denies a landowner of all economic use unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.
Freedom of expression
Freedom of religion
See also
- Lists of United States Supreme Court cases
- United States Supreme CourtSupreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
- The Imperial PresidencyThe Imperial PresidencyThe Imperial Presidency by Arthur M. Schlesinger, Jr. was written in 1973.This book details the history of the Presidency of the United States from its conception by the Constitutional Founders, through the late twentieth century...
- United States ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
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