Constitutional law of the United States

In the United States, constitutional law refers "the interpretation and implementation of the United States Constitution" [1].

Overview

Judicial Review

Early in its history, in Marbury v. Madison, 5 U.S. 137 (1803) and Fletcher v. Peck, 10 U.S. 87 (1810), the Supreme Court of the United States declared that "the judicial power of the United States" granted to it by Article III of the United States Constitution included the power of judicial review, to consider challenges to the Constitutionality of a State or Federal law. That is, the Court must consider, for example, whether a state law conformed to the Contract Clause (see, e.g., Dartmouth College v. Woodward), or (after the Fourteenth Amendment was added) whether a state had violated the Equal Protection Clause (see, e.g., Brown v. Board of Education), or whether Congress possessed the power under the Commerce Clause to pass a given law (see, e.g., United States v. Lopez); having measured a law against the Constitution, and if finding it wanting, the Court was empowered and obligated to strike down that law.

However, opponents of judicial review have charged that the Court's power to invalidate federal and state laws or actions has no counterpart in common or civil law, and has no basis in the United States Constitution. The law of the United States derives in great part from the common law traditions the colonies inherited from Britain, which arguably has vested the power of judicial review in the people since 1215, when the Magna Carta was signed by King John Lackland. Article 39, opponents contend, establishes the concept of the jury as the regulating body in legal matters, rather than the government itself.

These claims are hollow. While American constitutional law derives many of its forms and traditions from the common law, it is important to note that the constitutional order of the United States was very different to that of the United Kingdom. As Marbury observed, the Constitution's written nature and formal enumeration of the powers of government would be empty promises if there were no means to measure the actions of the government against the Constitution, and strike down those found wanting (see Marbury, supra, at 177) ("[c]ertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void"), and while judicial review is not mentioned in the Constitution, nor are the adversarial system, stare decisis, or virtually any other aspect of the common law; the argument is made that these were necessary implicit in what the Framers understood by the term "the judicial power." See Barnett, The Original Meaning of the Judicial Power. Article 39 of Magna Carta is the distant progenitor of the Due Process clauses, but it is far from a vesting of judicial review in juries, and in any instance, the final authority on the United States Constitution is not the Supreme Court, but the people, by way of the Article V amendment process.

The Supreme Court's interpretations of Constitutional law are binding on the legislative and executive branches of the federal government, on the lower courts in the federal system and on all state courts. This system of binding interpretations or precedents evolved from the common law system, where precedent binds lower courts. However, neither English common law courts or continental civil law courts generally have the power to declare legislation illegal or unconstitutional but only the power to interpret the law itself.

There are a number of related doctrines that, once raised by a party, the Supreme Court will examine before deciding on a constitutional question. Perhaps the most important of these is whether the court can avoid the constitutional question by basing its decision on a nonconstitutional reason. For example, if a federal statute is on shaky constitutional footing but applied to the challenging party in a manner that does not implicate the basis for the constitutional claim, the Supreme Court will not decide whether the statute might be unconstitutional if it were applied differently. Or, when reviewing a decision of a state's highest court, the Court may avoid constitutional decision making if the state court's decision is based on an independent and adequate state law grounds. That is, even if the state court decided the question of state law incorrectly, the Supreme Court will not review that decision for its correctness.

There are also many related doctrines that federal courts in general and the Supreme Court in particular will consider before allowing a lawsuit to go forward. These implicate whether there is a case and controversy before the court and include proper standing of the parties, whether the case raises abstract, hypothetical or conjectural questions, whether the case is ripe for decision, or moot and thus past decision, or whether the question presented is a political question, unreviewable by the Court because the Constitution relegates it to another branch of government. These doctrines, because they apply to all federal cases whether of constitutional dimension or not, are discussed separately in the article on federal jurisdiction.

Furthermore, there are a number of ways that commentators and Justices of the Supreme Court have defined the Court's role, and its jurisprudential method. For example, current Associate Justices Antonin Scalia and Clarence Thomas are originalists; originalism is a family of similar theories that hold that the Constitution has a fixed meaning from an authority contemporaneous with the ratification (although opinion as to what that authority is varies; see discussion at originalism), and that it should be construed in light of that authority. Unless there is a historic and/or extremely pressing reason to interpret the Constitution differently, originalists vote as they think the Constitution as it was written in the late 18th Century would dictate. Other approaches are possible, though. Associate Justice Felix Frankfurter was a leading proponent of so-called judicial restraint, in that he believed that the Supreme Court should not make law (which, by invalidating or significantly altering the meaning of Congressional bills, Frankfurter felt they were), and so believers in this idea often vote not to grant cases the writ of certiorari. Associate Justice Stephen Breyer generally advocates a quasi-purposivist approach, focusing on what the law was supposed to achieve rather than what it actually says, and measuring the possible outcomes of voting one way or another. Other Justices have taken a more activist (see judicial activism) approach, believing that it is the role of the Supreme Court to reflect or change public mood. They often see the Constitution as a living, changing and adaptable document; thus their ruling will be in stark contrast to originalists. Compare, for example, the differing opinions of Justices Scalia and Ruth Bader Ginsburg, who is a more interventionist 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 correspondance 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 the cases in 2004 about suspects at Guantanamo Bay were probably the most libertarian, because he did not believe that the framers of the Constitution given Executive powers to be used to keep civilians away from judicial and legislative notice.

See Also

• United States Constitution
• United States Supreme Court
• Lists of United States Supreme Court cases:
  • From the Jay Court through the Taft Court
  • From the Hughes Court through the Burger Court
  • From the Rehnquist Court through the Roberts Court