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Introduction — Basic Principles Underlying the Constitution

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Intro.7 Basic Principles Underlying the Constitution

Intro.7.1 Overview of Basic Principles Underlying the Constitution

As compared to the constitutions of the fifty states or of other countries, the United States Constitution is a short document that, with its current amendments, contains only a little more than 7,500 words1 and has grown very little since its initial enactment.2 The federal Constitution consists of three central provisions: a short introductory paragraph called the “Preamble”; seven “Articles” that comprise the original Constitution that came into force in 1789; and twenty-seven “Amendments” that were subsequently added to the document.3 The first three Articles of the Constitution establish a Federal Government consisting of the Legislative,4 Executive,5 and Judicial Branches.6 It creates a tripartite system of government wherein each of the three federal branches is granted powers but given some ability to check the powers of the other two branches. Article IV generally addresses the relationship between the federal and state governments, and the remaining Articles establish, among other things, how the Constitution can be amended,7 the supremacy of the Constitution and federal law with respect to state law,8 and the process for ratifying the Constitution.9 The Amendments begin with the first ten amendments or the Bill of Rights and protect certain individual rights, such as freedom of speech10 and the right against unreasonable searches and seizures.11 Ratified in the period following the Civil War, the Thirteenth through Fifteenth Amendments or the Reconstruction Amendments12 accomplish several objectives, including abolishing slavery,13 prohibiting states from denying equal protection or due process of the law to any person,14 and protecting certain voting rights.15 The remaining amendments vary greatly in subject matter, addressing such diverse issues as selecting a President;16 the income tax;17 the manufacturing, sale, and transportation of intoxicating liquors;18 voting rights;19 and compensating Members of Congress.20

While much of the Constitution consists of a general framework for the federal government’s form and functions,21 a central, and perhaps counterintuitive, purpose of the Constitution is to restrain the government, by, among other things, immunizing certain values and principles from government interference.22 Moreover, as Chief Justice John Marshall wrote in Marbury v. Madison, the Constitution is fundamentally “a superior, paramount law” that is “unchangeable by ordinary means.”23 In fact, changing the Constitution requires that either two-thirds of both houses of Congress or two-thirds of the states represented at a constitutional convention propose a constitutional amendment, which must then be ratified by three-fourths of the states to take effect.24 As Justice Antonin Scalia noted in a 2013 interview, it is difficult to amend the Constitution,25 which was a deliberate choice by the Framers to preserve certain fundamental and cherished rights from majoritarian whims.26 In this vein, the Constitution is often described as a “higher law”27 that enumerates the Nation’s basic values.28

Given this underlying purpose of the Constitution, this introductory essay examines two fundamental questions, with which the Supreme Court, scholars, and other constitutional actors perennially wrestle: (1) what are the Nation’s basic values that the Constitution protects; and (2) who should serve as the final interpreter of the Constitution.29 While neither question has any firm or definite answers, debates over the Constitution, both on and off the Court, often touch on these two fundamental issues.

With regard to the first question, the Constitution Annotated details the unique history of each provision of the Constitution and how it has been understood.30 A constitution, by its very nature, ideally has “an inner unity” and “reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate.”31 And, indeed, the Constitution of the United States broadly embraces three interrelated but distinct concepts that define American democracy. First, separation, or division, of power among the three branches of government32 underlies many of the Constitution’s provisions and reflects the Framers’ views that the Federal Government’s power should be limited and diffused among the three branches.33 Second, the Constitution is also undergirded by the related, but distinct concept of federalism, which is the allocation of power between the national and state governments,34 with the Federal Government having limited powers and the states retaining a general police power.35 Third, the Constitution protects certain individual rights from government interference.36

With respect to the second question—whose interpretation of the Constitution is dispositive—the answer has been elaborated upon and debated throughout the Nation’s history.37 For instance, one view, which Thomas Jefferson, among others, espoused, is that each branch of government should interpret the Constitution with respect to itself.38 By contrast, under the “judicial supremacy” view, which the Supreme Court has adopted at times, the Supreme Court is the exclusive and final interpreter of the Constitution.39 Finally, the “popular constitutionalist” view holds that people and institutions outside of the Judicial Branch should play a larger role in interpreting the Constitution.40

How these fundamental questions of constitutional law are answered inform many of the constitutional interpretations discussed in the Constitution Annotated. This essay, while not attempting to provide definitive answers to the two questions, provides a brief overview of two cross-cutting issues that form the basis for modern constitutional law and introduces the discussions that follow in the Constitution Annotated.

Notes
  1. See Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 MICH. L. REV. 391, 399 (2008) (“Overall, the U.S. Constitution is exceptional among written constitutions both in its age and its brevity. It is the oldest currently in effect and . . . is among the shortest at 7591 words including amendments . . . .”). ↩
  2. See Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM. POL. SCI. REV. 355, 367, 369 (1994) (comparing the U.S. Constitution to the constitutions of the fifty states and over thirty countries). ↩
  3. See U.S. CONST. ↩
  4. See id. art. I. ↩
  5. See id. art. II. ↩
  6. See id. art. III. ↩
  7. See id. art. V. ↩
  8. See id. art. VI. ↩
  9. See id. art. VII. ↩
  10. See id. amend. I. ↩
  11. See id. amend. IV. ↩
  12. See KATHLEEN M. SULLIVAN & NOAH FELDMAN, CONSTITUTIONAL LAW 441 (19th ed. 2016). ↩
  13. See U.S. CONST. amend. XIII. ↩
  14. See id. amend. XIV. ↩
  15. See id. amend. XV. ↩
  16. See id. amends. XII, XX, XXII, XXV. ↩
  17. See id. amend. XVI. ↩
  18. See id. amends. XVIII, XXI. The Twenty-First Amendment to the Constitution repealed the Eighteenth Amendment, which established a nationwide prohibition on the manufacture, sale, and transportation of alcoholic beverages. ↩
  19. See id. amends. XIX, XXIV, XXVI. ↩
  20. See id. amend. XXVII. ↩
  21. See JACK M. BALKIN, CONSTITUTIONAL REDEMPTION 239 (2011) (noting that the Constitution serves a function as a “basic law” or “framework for governance that allocates powers and responsibilities”). ↩
  22. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 10 (3d ed. 2000). ↩
  23. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). ↩
  24. See U.S. CONST. art. V. Article V provides two means to ratify an amendment to the Constitution: approval of three-quarters of the state legislatures or three-quarters of the state ratifying conventions. The Article V convention mechanism for proposing amendments to the Constitution has never been used. See Michael Stokes Paulsen, The Federalist Society National Lawyers Convention—2010: How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention, 34 HARV. J.L. & PUB. POL’Y 837, 837–38 (2011) (“[T]he convention route [has] never successfully been employed.”). ↩
  25. Jennifer Senior, In Conversation: Antonin Scalia, N.Y. MAG. (Oct. 4, 2013), http://nymag.com/news/features/antonin-scalia-2013-10/index1.html (“I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2 percent of the population can prevent a constitutional amendment.”). See also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 7 (4th ed. 2011) (“[A] defining characteristic of the American Constitution is that it is very difficult to alter.”). ↩
  26. CHEMERINSKY, supra note 25; see also TRIBE, supra note 22, at 10. ↩
  27. See Marbury, 5 U.S. (1 Cranch) at 180 (“[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”). See also Cooper v. Aaron, 358 U.S. 1, 16–17 (1958) (“Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’”). ↩
  28. See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 789 (1986) (White, J., dissenting) (“The Constitution . . . is a document announcing fundamental principles in value-laden terms . . . .”). ↩
  29. A third fundamental question of constitutional law—how to decide what values the Constitution protects—is the subject of the introductory essay that follows. See Modes of Constitutional Interpretation (forthcoming on the Constitution Annotated online). ↩
  30. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–77 (1840) (plurality opinion) (“In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.”); Marbury, 5 U.S. (1 Cranch) at 174 (“It cannot be presumed that any clause in the constitution is intended to be without effect . . . .”). ↩
  31. See Southwest State Case, [1951] BVerfGE 1, 14 (Ger.), translated in DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 62, 63 (2d ed. 1997). ↩
  32. See BLACK’S LAW DICTIONARY 1572 (10th ed. 2014) (defining “separation of powers” as the “division of governmental authority into three branches of government—legislative, executive, and judicial—each with specified duties on which neither of the other branches can encroach.”). ↩
  33. See THE FEDERALIST NO. 47 (James Madison) (explaining that “the preservation of liberty” requires that the “three great departments of power should be separate and distinct.”). ↩
  34. See BLACK’S LAW DICTIONARY 729 (10th ed. 2014) (defining “federalism” as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments”). ↩
  35. See THE FEDERALIST NO. 45 (James Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”). ↩
  36. See BLACK’S LAW DICTIONARY 1517 (10th ed. 2014) (defining an “individual right” as an “absolute right” or “right that belongs to every human being, such as the right of personal liberty; a natural right”). ↩
  37. See CHEMERINSKY, supra note 25, at 27–29. ↩
  38. See, e.g., Letter from Thomas Jefferson to Judge Spencer Roane Poplar Forest, UNIV. OF GRONINGEN: AM. HISTORY FROM REVOLUTION TO RECONSTRUCTION & BEYOND (Sept. 6, 1819), http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl257.php (“[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question.”). ↩
  39. See, e.g., Cooper v. Aaron, 358 U.S. 1, 16–17 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution, and [this] principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”). ↩
  40. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 8 (2004) (“Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution. Final interpretive authority rested with ‘the people themselves,’ and courts no less than elected representatives were subordinate to their judgments.”); see generally Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 898–99 (2005) (describing a “growing body of scholarship” discussing the concept of “popular constitutionalism,” the idea that “the People and their elected representatives should—and often do—play a substantial role in the creation, interpretation, evolution, and enforcement of constitutional norms.”). ↩

Intro.7.2 Separation of Powers Under the Constitution

A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. The Framers’ experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action.1 Thus, in order to preserve individual liberty, the Framers sought to ensure that a separate and independent branch of the Federal Government would exercise each of government’s three basic functions: legislative, executive, and judicial.2 While the text of the Constitution does not expressly refer to “the doctrine of separation of powers,” the Nation’s Founding document divides governmental power among three branches by vesting the Legislative Power of the Federal Government in Congress;3 the Executive Power in the President;4 and the Judicial Power in the Supreme Court and any lower courts created by Congress.5

Although the Framers of the Constitution allocated each of these core functions to a distinct branch of government, the design of the Constitution contemplates some overlap in the branches’ performance of government functions.6 In particular, the Framers favored an approach that seeks to maintain some independence for each branch while promoting a workable government through the interdependence and sharing of power among the branches.7 Moreover, to address concerns that one branch would aggrandize its power by attempting to exercise powers assigned to another branch, the Framers incorporated various checks that each branch could exercise against the actions of the other two branches to resist such encroachments.8 For example, the President has the power to veto legislation passed by Congress, but Congress may overrule such vetoes by a supermajority vote of both houses.9 And Congress has the power to impeach and remove the President, Vice President, and civil officers of the United States.10

Over the course of our history, the Supreme Court has elaborated on the separation-of-powers doctrine in several cases addressing the three branches of government. At times, the Court has determined that one branch’s actions have infringed upon the core functions of another. For instance, the Court has held that Congress may not encroach upon the President’s power by exercising an effective veto power over the President’s removal of an Executive officer.11 Furthermore, the President may not, by issuing an executive order, usurp the lawmaking powers of Congress.12 The Supreme Court has also raised concerns about the judiciary encroaching on the legislative or executive spheres where a litigant asks the courts to recognize an implied cause of action,13 or to vindicate the rights of the public at large rather than those of a specific individual in a case properly before the court.14 When ruling on whether one branch has usurped the authority of another in separation-of-powers cases, the Court has sometimes adopted a formalist approach to constitutional interpretation, which closely adheres to the structural divisions in the Constitution15 and, at other times, has embraced a functionalist approach, which examines the core functions of each of the branches and asks whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain.16

As discussed in the Constitution Annotated, the Court’s decisions in separation-of-powers cases often—but not exclusively—address the relationships that the first three Articles of the Constitution establish among the branches of government. Some key constitutional provisions that have served as sources of modern separation-of-powers disputes include Article I, Section 7, which requires, among other things, that legislation passed by Congress be presented to the President for his signature or veto before it can become law;17 Article II’s Vesting Clause, which states that the “executive power shall be vested in a President of the United States of America;”18 Article II’s Appointments Clause, which addresses the respective roles of the President and Congress in the appointment of federal officials;19 Article III’s Vesting Clause, which states that “[t]he ‘judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish . . .’”;20 and Article III, Section 2’s Case or Controversy Clause, which limits the jurisdiction of the federal courts.21

In addition to the first three Articles, other provisions of the Constitution implicate the separation-of-powers doctrine. For example, the Supreme Court in Marbury v. Madison interpreted Article VI’s establishment of the Constitution as being superior to other federal law to forbid Congress from exercising its legislative power in a manner inconsistent with the Nation’s Founding document by enlarging the original jurisdiction of the Supreme Court beyond the boundaries established in Article III.22 And the amendments to the Constitution also set forth some important structural features of the separation of powers. For instance, the Twelfth Amendment establishes the process for choosing the President and Vice President, specifically delineating the functions of both houses of Congress in counting and certifying the votes for President and the role of the House of Representatives in choosing a President when no candidate has attained a majority of electoral votes.23

Notes
  1. THE FEDERALIST NO. 48 (James Madison) (“[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”). ↩
  2. See id. NO. 47 (James Madison) (explaining that “the preservation of liberty” requires that the “three great departments of power should be separate and distinct”). ↩
  3. U.S. CONST. art. I, § 1. ↩
  4. Id. art. II, § 1. ↩
  5. Id. art. III, § 1. See also BLACK’S LAW DICTIONARY 1572 (10th ed. 2014) (defining “separation of powers” as the “division of governmental authority into three branches of government—legislative, executive, and judicial—each with specified duties on which neither of the other branches can encroach”). ↩
  6. Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam) (“[A] hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.”); Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“[W]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”). ↩
  7. See supra note 6. ↩
  8. THE FEDERALIST NO. 51 (James Madison) (“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”); id. NO. 48 (James Madison) (“The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”). See generally Buckley, 424 U.S. at 122 (“The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.”); Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“The doctrine of the separation of powers was adopted by the convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”). ↩
  9. U.S. CONST. art. I, § 7, cl. 3. ↩
  10. Id. art. II, § 4. ↩
  11. Myers, 272 U.S. at 161. ↩
  12. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). ↩
  13. See Ziglar v. Abbasi, No. 15-1358, slip op. at 12 (U.S. June 19, 2017) (stating that when a party “seeks to assert an implied cause of action” under either the Constitution or a federal statute, “separation-of-powers principles are or should be central to the analysis,” and that Congress, not the courts, “most often” is the appropriate branch to decide whether to provide for a private remedy); Nestlé USA, Inc. v. Doe, Nos. 19-416, 19-453, slip op. at 7 (U.S. Jun. 17, 2021) (plurality opinion) (describing “judicial creation of a cause of action” as “an extraordinary act that places great stress on the separation of powers”). Cf. Tanzin v. Tanvir, No. 19-71, slip op. at 8 (U.S. Dec. 10, 2020) (stating that “separation-of-powers concerns” did not bar personal money damages against federal officials under a particular statute because “damages against government officials” have “coexisted with our constitutional system since the dawn of the Republic”). See also ArtIII.S2.C1.11.1 Overview of Federal Question Jurisdiction. ↩
  14. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992). ↩
  15. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions—A Foolish Inconsistency?, 72 CORNELL L. REV. 488, 489 (1987) (“The Supreme Court has vacillated over the years between using a formalistic approach to separation-of-powers issues grounded in the perceived necessity of maintaining three distinct branches of government (and consequently appearing to draw rather sharp boundaries), and a functional approach that stresses core function and relationship, and permits a good deal of flexibility when these attributes are not threatened.”). ↩
  16. Id. ↩
  17. See, e.g., Clinton v. City of New York, 524 U.S. 417, 439–40 (1998) (striking down the Line Item Veto Act, which authorized the President, within five days of signing a bill into law, to make partial cancellation of certain tax and spending provisions in the law if the President determined certain criteria were met, as violating the bicameralism and presentment requirements of Article I, Section 7, Clauses 2–3 of the Constitution). ↩
  18. See, e.g., Zivotofsky v. Kerry, 576 U.S. 1, 33 (2015) (Thomas, J., concurring in the judgment in part and dissenting in part) (“[The Constitution] vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause.”); Myers v. United States, 272 U.S. 52, 161 (1926) (holding that Congress cannot veto the President’s removal of an Executive officer). ↩
  19. See, e.g., Morrison v. Olson, 487 U.S. 654, 660 (1988) (holding that the Ethics in Government Act of 1978, which allowed for the appointment of an “independent counsel” by a special panel of a federal court to investigate potential violations of criminal laws by federal officials, did not violate the Appointments Clause). ↩
  20. See, e.g., Miller v. French, 530 U.S. 327, 341–50 (2000) (holding that a provision in the Prison Litigation Reform Act of 1995 providing for an “automatic stay” of court orders enjoining unlawful prison conditions did not violate the separation-of-powers doctrine by infringing upon the judiciary’s Article III powers). ↩
  21. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (“The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by [Article III, Section 2 of] the constitution . . .”). ↩
  22. Id. at 180 (“[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”). See also U.S. CONST. art. VI. ↩
  23. U.S. CONST. amend. XII (“The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”). ↩

Intro.7.3 Federalism and the Constitution

Another basic concept embodied in the Constitution is federalism, which refers to the division and sharing of power between the national and state governments.1 By allocating power among state and federal governments, the Framers sought to establish a unified national government of limited powers while maintaining a distinct sphere of autonomy in which state governments could exercise a general police power.2 Although the Framers’ sought to preserve liberty by diffusing power,3 Justices and scholars have noted that federalism has other advantages,4 including that it allows individual states to experiment with novel government programs as “laboratories of democracy”5 and increases the accountability of elected government officials to citizens.6

Although the text of the Constitution does not clearly delineate many of the boundaries between the powers of the federal and state governments, the Supreme Court has frequently invoked certain constitutional provisions when determining that Congress has exceeded its constitutional powers and infringed upon state sovereignty.7 One well-known provision, regarded by the Court as both a shield and sword to thwart federal encroachment, is the Tenth Amendment, which provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In modern times, the Court has vacillated8 between the view that the Tenth Amendment operates to restrict Congress’s power9 and the view that the amendment is a mere “truism”10 that cannot be used to strike down federal statutes.11 Other notable provisions addressing Congress’s power relative to the states that the Court has debated include the Supremacy Clause in Article VI, which establishes federal law as superior to state law;12 the Commerce Clause in Article I, Section 8, Clause 3, which grants Congress the authority to legislate on matters concerning interstate commerce;13 and Section 5 of the Fourteenth Amendment, which grants Congress the power to enforce that Amendment’s guarantees against the states through the enactment of appropriate legislation.14 More broadly, federalism principles also undergird many Supreme Court decisions interpreting individual rights and the extent to which the Court should federalize, for example, the rights afforded to state criminal defendants.15 But judges and scholars disagree on how basic principles of federalism should be realized, and a key point of controversy is whether the judiciary should enforce the interests of the states against the Federal Government or leave the resolution of such key questions about the relationship between federal and state power to the political process.16

Notes
  1. See Bond v. United States, 572 U.S. 844, 857–58 (2014) (“Among the background principles . . . that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution.”). ↩
  2. THE FEDERALIST NO. 45 (James Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”). See also United States v. Morrison, 529 U.S. 598, 618 (2000) (“Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”). ↩
  3. Bond v. United States, 564 U.S. 211, 222 (2011) (“By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”); United States v. Lopez, 514 U.S. 549, 576 (1995) (Kennedy, J., concurring) (“Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.”). ↩
  4. See generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 127 (4th ed. 2011). ↩
  5. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”). ↩
  6. See FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992) (“Federalism serves to assign political responsibility, not to obscure it.”); see also Lopez, 514 U.S. at 576 (Kennedy, J., concurring) (“The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States.”). ↩
  7. Cf. CHEMERINSKY, supra note 4, at 115 (“A basic principle of American government is that Congress may act only if there is express or implied authority in the Constitution, whereas states may act unless the Constitution prohibits the action.”). ↩
  8. Id. at 3 (“Early in [the 20th] century, the Court aggressively used the Tenth Amendment as a limit on Congress’s power. After 1937, the Court rejected this view and did not see the Tenth Amendment as a basis for declaring federal laws unconstitutional. In the 1990s, however, the Tenth Amendment was once more used by the Supreme Court to invalidate federal statutes.”). ↩
  9. See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 273–74 (1918) (“The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the states in their exercise of the police power over local trade and manufacture. The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.”), overruled, United States v. Darby, 312 U.S. 100 (1941); Nat’l League of Cities v. Usery, 426 U.S. 833, 851–52 (1976) (holding that Congress’s Commerce Clause power did not extend to regulation of wages, hours, and benefits of state employees because the Tenth Amendment reserves that area to the states), overruled, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); NFIB v. Sebelius, 567 U.S. 519, 588 (2012) (“Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.”). ↩
  10. Darby, 312 U.S. at 124 (“The amendment states but a truism that all is retained which has not been surrendered.”). ↩
  11. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (upholding the National Labor Relations Act of 1935 as a proper exercise of Congress’s Commerce Clause power and consistent with the Tenth Amendment); Darby, 312 U.S. at 123–24 (“The [Tenth Amendment] states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”); San Antonio Metro. Transit Auth., 469 U.S. at 556–57 (holding that Congress’s Commerce Clause power extended to regulation of wages and hours of state and local employees and declaring that the Court’s decision in Nat’l League of Cities v. Usery “underestimated, in [the Court’s] view, the solicitude of the national political process for the continued vitality of the States”). ↩
  12. See generally GREGORY E. MAGGS & PETER J. SMITH, CONSTITUTIONAL LAW: A CONTEMPORARY APPROACH 246 (2d ed. 2011) (noting the doctrine of federal preemption, which is based on the Supremacy Clause, is the “most common constitutional ground upon which state laws are judicially invalidated”). ↩
  13. See, e.g., United States v. Lopez, 514 U.S. 549, 551 (1995) (holding that Congress had exceeded its Commerce Clause power when it enacted a law criminalizing possession of a firearm near a school). ↩
  14. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (holding that the scope of Congress’s enforcement power under Section 5 of the Fourteenth Amendment did not grant Congress the power to invade the sovereign rights of the states), superseded on other grounds by statute as stated in Holt v. Hobbs, 574 U.S. 352 (2015). ↩
  15. See, e.g., Coleman v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.”); Spencer v. Texas, 385 U.S. 554, 563–64 (1967) (“Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial . . . But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.”) (internal citations omitted). ↩
  16. E.g., Gonzales v. Raich, 545 U.S. 1, 33 (2005) (upholding Congress’s regulation of intrastate cultivation and possession of marijuana for medical use as a proper exercise of its Commerce Clause power and stating that “more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress”). Scholars have also considered this question. See generally Jesse H. Choper, The Scope of National Power Vis-a-Vis the States: The Dispensability of Judicial Review, 86 YALE L.J. 1552, 1557 (1977) (“[T]he federal judiciary should not decide constitutional questions respecting the ultimate power of the national government vis-a-vis the states; the constitutional issue whether federal action is beyond the authority of the central government and thus violates ‘states rights’ should be treated as nonjusticiable, with final resolution left to the political branches.”). ↩

Intro.7.4 Individual Rights and the Constitution

Another important area of constitutional law is individual rights that should be protected from government interference. While the Constitution limits and diffuses powers of the federal and state governments to check government power, it also expressly protects certain rights and liberties for individuals from government interference.1 Most of these individual rights are found in the Bill of Rights, including the First Amendment’s prohibition on congressional enactments that abridge the freedom of speech2 and the Second Amendment’s right to keep and bear arms.3 Other rights, however, reside elsewhere in the Constitution, such as Article III’s right to trial by jury in criminal cases4 and the protections found in the Civil War Era Amendments, such as the Fourteenth Amendment’s Due Process and Equal Protection Clauses.5 Many of the individual rights protected by the Constitution relate to criminal procedure, such as the Fourth Amendment’s prohibition against unreasonable governmental searches and seizures;6 the Fifth Amendment’s right against self-incrimination;7 and the Sixth Amendment’s right to trial by jury.8 While the text of the Constitution specifically enumerates many individual rights,9 other rights are anchored in the Court’s interpretations of broadly worded guarantees in the founding document.10

During the twentieth and twenty-first centuries, the Court’s constitutional jurisprudence on individual rights focused on how the Fourteenth Amendment’s Due Process Clause protects certain fundamental constitutional rights found in the Bill of Rights from state government interference.11 Although the Civil War Era Amendments have served as the textual basis for the Court’s decisions protecting these rights from state interference, the Court did not recognize that much of the Bill of Rights was applicable to the states until the mid-twentieth century.12

Notes
  1. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 10 (3d ed. 2000). ↩
  2. U.S. CONST. amend. I. ↩
  3. Id. amend. II. ↩
  4. Id. art. III, § 2, cl. 3. ↩
  5. E.g., id. amend. XIV, § 1. ↩
  6. See, e.g., id. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). ↩
  7. See, e.g., id. amend. V (“No person shall . . . be compelled in any criminal case to be a witness against himself . . . .”). ↩
  8. See, e.g., id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .”). ↩
  9. See, e.g., id.amend. V (“[N]or shall private property be taken for public use, without just compensation.”); id.art. I, § 10, cl. 1 (“No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”). ↩
  10. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2604–05 (2015) (“[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”). ↩
  11. See generally McDonald v. Chicago, 561 U.S. 742, 764–65 (2010) (noting that, during the 1960s, the Court “shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated.”); see, e.g., Duncan v. Louisiana, 391 U.S. 145, 161–62 (1968) (holding that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to trial by jury and makes it applicable to the states). ↩
  12. See McDonald, 561 U.S. at 764–65. ↩

Intro.7.5 Interpreters of the Constitution

Another fundamental question of constitutional law is who should definitively interpret the meaning of the Constitution, including its basic values and the rights it protects. This key debate remains unresolved. One view, espoused by Thomas Jefferson, among others, is that each of the three branches of government may interpret the Constitution when it relates to the performance of the branch’s own functions.1 And this view appears to have been popular in Congress during the early days of the United States, as shown by the amount of time that Members of Congress devoted to “debating the constitutional limitations on” legislation during the first 100 years of the Nation.2 Similarly, when he vetoed the reauthorization of the Bank of the United States, President Andrew Jackson argued that the President was the final interpreter of the Constitution for executive functions. Dismissing the Supreme Court’s 1819 decision in McCulloch v. Maryland, which upheld the constitutionality of the Bank,3 Jackson contended that “the opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”4 With regard to the judiciary, in Marbury v. Madison, the Supreme Court, early in the history of the United States, famously asserted its authority to interpret the Constitution when reviewing the constitutionality of governmental action in a case or controversy properly before the Court.5

The view that each branch of government has the power to interpret the Constitution when performing its own functions also has force when the Court avoids ruling on political questions or deciding cases in which litigants seek to vindicate the rights of the public at large, thereby preserving a role for the political branches in answering many important constitutional questions.6 For example, in Nixon v. United States, the Court held that the Constitution gave the Senate alone the power to determine whether it had properly “tried” an impeachment.7 And the Court may not have the last word on other issues, such as the existence of a national bank, because other constitutional actors (e.g., the President) may play a decisive role by exercising their own constitutional powers.8 As a result, Congress and the President each interpret the Constitution independent of the Judiciary in some circumstances.9 This is reflected in the practices of the political branches, such as the President’s use of the veto power; Congress’s exercise of the power to impeach and remove government officials; or the President’s use of military force.10 Accordingly, somewhere between the judicial supremacy view and popular constitutionalism view is a view that recognizes that the authoritative interpreter of the Constitution may depend on the particular provision of the Constitution at issue.

In the mid-twentieth century, however, the Supreme Court began articulating a theory of judicial supremacy, wherein the Court no longer shared its role in interpreting the Constitution with the other branches of the Federal Government, but rather characterized its role as being the preeminent arbiter of the Constitution’s meaning. For example, in Cooper v. Aaron, the Court read Marbury v. Madison as “declar[ing] the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and [this] principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”11 In other words, the Cooper Court concluded that the Supreme Court’s interpretations of the Constitution was “the supreme law of the land,”12 with constitutional interpretations by other actors, including Congress and the President, necessarily lacking the same force.13 Supporters of the judicial supremacy view assert that it promotes stability and uniformity in constitutional interpretation,14 as well as preserves constitutional norms from majoritarian pressures.15 Subsequent actions by the President and Congress support the notion that the political branches have, at times, acquiesced in this view,16 resulting in the popular notion that the Judiciary is the “‘ultimate expositor’ of the constitutional meaning.”17

The judicial supremacy view remains subject to debate, however. In recent decades, a number of legal scholars and government officials have criticized the judicial supremacy view,18 arguing that entrusting the Judiciary with exclusive power over the Constitution’s ultimate meaning preserves the most momentous decisions affecting the country for an unelected and unrepresentative judiciary, preventing the democratic branches from acting on behalf of their constituents.19 Instead, a growing number of scholars have argued that people and institutions outside of the Judicial Branch should play a larger role in interpreting the Constitution.20 Their view posits that Congress, the Executive, and even ordinary citizens maintain independent and coordinate authority to interpret the Constitution.21 Ultimately, some scholars who do not accept judicial supremacy argue that because the Constitution expresses the fundamental values of the American people as a nation, it is essential to a democracy that the political branches and the public have a central role in exploring constitutional meanings.22 While no member of the Court has ever embraced wholly abandoning the Judiciary’s central role in constitutional interpretation, the view that the Court should play a more restrained role because of the “countermajoritarian difficulty”23 that arises when an unelected judiciary overrides the decisions of a popularly elected Executive or legislature has been repeatedly argued by Justices on the modern Court.24

Related to the questions discussed above is the question of how to interpret the Constitution. That issue is the subject of the Constitution Annotated essays on ways to interpret the Constitution.25

Notes
  1. Letter from Thomas Jefferson to Judge Spencer Roane Poplar Forest, Univ. of Groningen: Am. History From Revolution to Reconstruction & Beyond (Sept. 6, 1819), http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters- of-thomas-jefferson/jefl257.php. In a speech opposing the Supreme Court’s decision in Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Abraham Lincoln argued that officers of each branch of the Federal Government could disregard the Supreme Court’s interpretations of the Constitution when performing their own constitutional functions. In particular, he cited President Andrew Jackson’s veto of Congress’s rechartering of the Second Bank of the United States following the Supreme Court’s decision in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), which upheld the constitutionality of the bank. Abraham Lincoln, Speech on the Dred Scott Decision in Springfield, Illinois (June 26, 1857), in THE LIFE AND WRITINGS OF ABRAHAM LINCOLN 418 (Philip Van Doren Stern ed., 2000). For more on interpretations of the Constitution that occur outside of the courts, see Intro.4.5 Non-Judicial Sources of Constitutional Meaning. ↩
  2. See Russ Feingold, The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: The Deficiencies of House Rule XII and A Proposed Rule for the Senate, 67 VAND. L. REV. 837, 846–49 (2014); see generally DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS 120 nn. 25–27 (1997) (cataloging various constitutional debates during early Congresses). ↩
  3. 17 U.S. (4 Wheat.) 316 (1819). ↩
  4. See Andrew Jackson, Veto Message, AVALON PROJECT, YALE L. SCH. (July 10, 1832), http://avalon.law.yale.edu/19th_ century/ajveto01.asp. ↩
  5. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”). ↩
  6. E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–35 (1952) (Jackson, J., concurring) (“A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. . . . And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.”). ↩
  7. 506 U.S. 224, 228–29 (1993). ↩
  8. See supra notes 3–4 and accompanying text (recounting President Andrew Jackson’s veto of Congress’s reauthorization of the Second Bank of the United States). ↩
  9. See generally Michael J. Gerhardt, The Constitution Outside the Courts, 51 DRAKE L. REV. 775, 780 (2003). ↩
  10. See id. ↩
  11. Cooper v. Aaron, 358 U.S. 1, 18 (1958). ↩
  12. Id. ↩
  13. The Court has, at times, grounded this principle in the concern that if each branch were the “final judge of its own power under the Constitution,” such a system would run contrary to notions of a limited and checked government. Baltimore & O R. Co. v. United States, 298 U.S. 349, 364 (1936). ↩
  14. See Larry B. Alexander & Frederick F. Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1369–81 (1997) (defending judicial supremacy because finality in constitutional interpretation provides stability and coordination in a constitutional democracy). ↩
  15. See Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 CALIF. L. REV. 1013, 1018–24 (2004) (arguing for judicial supremacy because of concerns that a majoritarian Congress might interpret the Constitution in such a way as to not adequately protect minority rights). ↩
  16. See generally Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 GA. L. REV. 57, 85 (1986) (“By the second half of the twentieth century, both the House and the Senate had abandoned the tradition of deliberating over ordinary constitutional issues.”); Feingold, supra note 2, at 849–50 (noting the decline of constitutional interpretation by Members of Congress following Cooper v. Aaron and the “rise of judicial supremacy”); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 224 (1994) (“[T]he greater problem today is not the too-forceful exercise of presidential power to interpret law, but the too-feeble acquiescence of the executive branch in the courts’ assertion of dominant interpretive power.”). ↩
  17. See Alon Harel & Adam Shinar, Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review, 10 INT’L J. CONST. L. 950, 953 (2012) (“For many years, there has been basically one idea undergirding the practice of judicial review—American style judicial review, (now) also known as strong judicial review. Under that view, the judiciary is the ‘ultimate expositor’ of constitutional meaning, having the final say over constitutional interpretation.”). ↩
  18. See, e.g., Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346, 1349–50 (2006) (describing the claim that “legislators are incapable of addressing” the meaning of the Constitution as “nonsense”); MARK V. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 154–76 (1999) (arguing for the abolishment of judicial review in favor of popular constitutionalism); ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 321 (1996) (urging Americans to “see the judiciary for what it is, an organ of power without legitimacy either in democratic theory or in the Constitution” and advocating for passage of a constitutional amendment allowing the political branches to override judicial decisions). ↩
  19. See Waldron, supra note 18, at 1353 (“By privileging majority voting among a small number of unelected and unaccountable judges, [judicial review] disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.”). ↩
  20. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 8 (2004) (“Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution. Final interpretive authority rested with ‘the people themselves,’ and courts no less than elected representatives were subordinate to their judgments.”); see generally Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 898–99 (2005) (describing a “growing body of scholarship” discussing the concept of “popular constitutionalism,” the idea that “the People and their elected representatives should—and often do—play a substantial role in the creation, interpretation, evolution, and enforcement of constitutional norms”). ↩
  21. See Edwin M. Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 985–86 (1987) (“The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions.”); KRAMER, supra note 20, at 8. ↩
  22. See Mark V. Tushnet, Popular Constitutionalism as Political Law, 81 CHI.-KENT L. REV. 991, 992–93 (2006). ↩
  23. Professor Alexander Bickel coined the phrase “countermajoritarian difficulty” to describe the conflict that results when a court “declares unconstitutional a legislative act or the action of an elected executive” and “thwarts” the enforcement of an act that presumably reflects the will of the voters. See ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16–17 (1962). ↩
  24. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2612 (2015) (Roberts, C.J., dissenting) (“The majority’s decision is an act of will, not legal judgment . . . [T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”); United States v. Windsor, 570 U.S. 744, 778 (2013) (Scalia, J., dissenting) (“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.”); Citizens United v. FEC, 558 U.S. 310, 479 (2010) (Stevens, J., dissenting) (“In a democratic society, the long-standing consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules.”); District of Columbia v. Heller, 554 U.S. 570, 680 n.39 (2008) (Stevens, J., dissenting) (“What impact the Court’s unjustified entry into this thicket will have on that ongoing debate—or indeed on the Court itself—is a matter that future historians will no doubt discuss at length. It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.”). ↩
  25. Intro.8.1 Interpreting the Constitution Generally to Intro.8.9 Historical Practices and Constitutional Interpretation. ↩