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United States constitutional law

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United States constitutional law

United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.[1]


  • Interpreting the Constitution and the authority of the Supreme Court 1
    • Introduction 1.1
    • The power of judicial review 1.2
    • Scope and effect 1.3
    • Prudential limits—the principles of justiciability 1.4
    • Differing views on the role of the Court 1.5
  • History 2
    • The Founding 2.1
    • From the Founding to the Civil War 2.2
    • Reconstruction 2.3
    • From Reconstruction to the New Deal 2.4
    • From the New Deal to the Roberts Court 2.5
  • The question of federalism 3
    • Powers granted by the Constitution to the federal government 3.1
      • The federal commerce power 3.1.1
      • The spending power 3.1.2
      • The war, treaty, and foreign affairs powers 3.1.3
      • Other federal powers 3.1.4
    • Powers reserved by the states 3.2
      • Suits against states: effect of the 11th Amendment 3.2.1
    • Intergovernmental Immunities and Interstate Relations 3.3
  • Limiting the power of the three branches—the system of "checks and balances" 4
    • Boundaries of power: Congress versus the executive 4.1
      • Lawmaking authority 4.1.1
      • The presidential veto power 4.1.2
      • Foreign affairs and war powers 4.1.3
      • Appointment and removal of executive personnel 4.1.4
      • The special prosecutor 4.1.5
    • The judicial branch 4.2
    • Legislative and executive immunity 4.3
  • The due process clause (Fifth and Fourteenth Amendments) 5
  • The equal protection clause (Fourteenth Amendment) 6
  • 7 The privileges and immunities clauses (Article IV and Fourteenth Amendment)
  • The Takings Clause 8
  • The contracts clause 9
  • The ex post facto clause 10
  • The prohibition on bills of attainder 11
  • Freedom of expression 12
  • Freedom of religion 13
  • Federal enforcement of civil rights 14
  • Sources 15
  • See also 16

Interpreting the Constitution and the authority of the Supreme Court


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.[2]

The power of judicial review

Early in its history, in Marbury v. Madison, 5 U.S. 137 (1803) and Fletcher v. Peck, 10 U.S. 87 (1810), the Supreme Court of the United States declared that the judicial power granted to it by Article III of the United States Constitution included the power of judicial review, to consider challenges to the constitutionality of a State or Federal law. According to this jurisprudence, when the Court measures a law against the Constitution and finds the law wanting, the Court is empowered and indeed obligated to strike down that law. In this role, for example, the Court has struck down state laws for failing to conform to the Contract Clause (see, e.g., Dartmouth College v. Woodward) or the Equal Protection Clause (see, e.g., Brown v. Board of Education), and it has invalidated federal laws for failing to arise under the Commerce Clause of the Constitution (see, e.g., United States v. Lopez).

Scope and effect

The Supreme Court's interpretations of constitutional law are binding on the legislative and executive branches of the federal government, on the lower courts in the federal system, and on all state courts. This system of binding interpretations or precedents evolved from the common law system (called "stare decisis"), where courts are bound by their own prior decisions and by the decisions of higher courts. While neither English common law courts nor continental civil law courts generally had the power to declare legislation unconstitutional (only the power to change law), the United States Supreme Court has long been understood to have the power to declare federal or state legislation unconstitutional.

Prudential limits—the principles of justiciability

Before deciding a constitutional question, the Supreme Court may consider whether the court can avoid the constitutional question by basing its decision on a non-constitutional 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 controversy" under the meaning of Article III, Section 2 of the U.S. Constitution
  • Standing - 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 question - 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 (1911)). These doctrines, because they apply to all federal cases whether of constitutional dimension or not, are discussed separately in the article on federal jurisdiction.

Differing views on the role of the Court

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

  • Current Associate Justices Antonin Scalia and Clarence Thomas are originalists; originalism is a family of similar theories that hold that the Constitution has a fixed meaning from an authority contemporaneous with the ratification (although opinion as to what that authority is varies; see discussion at originalism), and that it should be construed in light of that authority. Unless there is a historic and/or extremely pressing reason to interpret the Constitution differently, originalists vote as they think the Constitution as it was written in the late 18th Century would dictate.
  • Associate Justice Felix Frankfurter was a leading proponent of so-called judicial restraint, in that he believed that the Supreme Court should not make law (which, by invalidating or significantly altering the meaning of Congressional bills, Frankfurter felt they were), and so believers in this idea often vote not to grant cases the writ of certiorari. Associate Justice Stephen Breyer generally advocates a quasi-purposivist approach, focusing on what the law was supposed to achieve rather than what it actually says, and measuring the possible outcomes of voting one way or another.
  • Other Justices have taken a more instrumentalist approach (see judicial activism), believing it is the role of the Supreme Court to reflect societal changes. They often see the Constitution as a living, changing and adaptable document; thus their ruling will be in stark contrast to originalists. Compare, for example, the differing opinions of Justices Scalia and Ruth Bader Ginsburg, who is a more instrumentalist justice.
  • Finally, there are some Justices who do not have a clear judicial philosophy, and so decide cases purely on each one's individual merits.

Debate continues over which, if any, of these interpretive strategies is "better". Complicating the analysis is the lack of direct correspondence between the various interpretive strategies and contemporary notions of "conservatism" or "liberalism". For example, originalism is often associated with conservatism, but Justice Scalia's opinions in 2004 about the detention of persons at Guantanamo Bay were probably the most libertarian, because he did not believe that the framers of the Constitution had granted Executive powers for the purpose of preventing judicial and legislative notice.


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 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 from how we understand the term today. The sixth deals with man as an individual, a topic of great interest to many liberal legal scholars and activists. The seventh, "Of Man, as a member of society," is readily seen as an extension of the preceding chapter into the tension we generally take for granted today. The eighth, "Of man, as a member of a confederation," was likely of great interest to knowing political players of the day, but of relatively little interest in post-Civil War America. But this is more than amply made up by the succeeding chapter, "Of man, as a member of the great commonwealth of nations," the title of which suggests the Adam Smith book of 1776. "Of government," is the tenth; and "Comparison of the constitution of the United States, with that of Great Britain," closes out the first volume.

From the Founding to the Civil War


Passage of the 13th, 14th, and 15th Amendments.

From Reconstruction to the New Deal

From the New Deal to the Roberts Court

The question of federalism

In essence, the Constitution is a compromise between two extremes feared by the framers: the development of a British-like monarchy on one end of the spectrum, and the ineffectiveness of an overly decentralized government on the other. The balance reached was the model of federalism; a binary structure of management composed of divided powers between the governments of each of the states and a centralized federal government.

Supporters of federalism believed that a division of power between federal and state governments would decrease the likelihood of tyranny, which on a federal level would be much more concerning than its occurrence locally. The framers felt the states were in the best position to restrict such movements.[3] Another frequently raised value of federalism is the notion that since the states are much closer to the people, they can be more responsive to and effective in resolving the localized concerns of the public.[4] Accordingly, the Constitution explicitly enumerates the powers given to the federal government and bestows the remaining discretion to the states.

In order to create a cohesive government, the framers felt certain powers must have belonged to a centralized authority. Conducting foreign affairs, for example, would be severely curtailed if not embarked upon in a nationally uniform manner. Similarly, a standardized currency was of prime importance for a robust and capable economy. As a result, the powers to raise armies, create treaties, and to regulate commerce with foreign nations and among the states, among others, were given to the federal government.

Powers granted by the Constitution to the federal government

The federal commerce power

Congress is authorized to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes" under Article I, Section 8, Clause 3 of the Constitution.

Important early cases include United States v. E.C. Knight Co. (1895) which held that the federal Sherman Act could not be applied to manufacture of sugar because "commerce succeeds to manufacture, and is not a part of it." Essentially, the Court cabined commerce as a phase of business distinct from other aspects of production.

In the Shreveport Rate Cases (1914), the Court permitted congressional regulation of railroad lines because Congress was regulating the "channels of commerce" and although the regulation was on intrastate rail lines, the effect of the intrastate lines was direct so as to concern interstate commerce. In Schecter Poultry, the Court invalidated a federal statute seeking to enforce labor conditions at a slaughterhouse for chickens; the Court held the relationship between labor conditions and chickens was too indirect - that chickens come to rest upon arrival at the slaughterhouse (thereby ending the stream of commerce), so whatever happened in the slaughterhouse was not Congress's business.

In these early cases, the Court approached problems formalistically - from cabining commerce to a specific zone to a direct/indirect test. This continued in the cow case, Stafford v. Wallace, where the court articulated a "Stream of Commerce" test; essentially, Stream of Commerce conceptualizes commerce as a flow mostly concerned with the transportation and packaging of goods and not including acquisition of raw materials at the front end and retail of those goods at the tail end.

However, with the Great Depression, there was political pressure for increased federal government intervention and the Court increasingly deferred to Congress. A seminal case was NLRB v. Jones and Laughlin where the Court adopted a realist approach and reasoned that interstate commerce is an elastic conception which required the Court to think of problems not as falling on either side of a dichotomy but in a more nuanced fashion.

Expansion of Congress's commerce clause power continued with Wickard in 1942 involving a farmer's refusal to comply with a federal quota. Wickard articulated the aggregation principle: that effects of the entire class matter rather than composites of the class, so even if the single farmer did not substantially affect interstate commerce, all farmers - the class to which he belonged - do - they compete with the national market.

With recent cases like Lopez and Morrison, there has been a return to formalism - i.e. legal tests created by the Court to determine if Congress has overstepped its bounds. In both those cases, the federal statutes were invalidated. But in Gonzalez v. Raich (post Lopez and Morrison), principles of Wickard were resurrected, leaving the future of commerce clause doctrine uncertain.

The spending power

Clause 1 of Article I, § 8 grants Congress the power to tax and spend "to provide for the common defense and general welfare of the United States," subject to the qualification that all taxes and duties be uniform across the country.

The war, treaty, and foreign affairs powers

Other federal powers

Other federal powers specifically enumerated by Section 8 of Article I of the United States Constitution (and generally considered exclusive to the federal government) are:

  • to coin money, and to regulate its value;
  • to establish laws governing bankruptcy;
  • to establish post offices (although Congress may allow for the establishment of non-governmental mail services by private entities);
  • to control the issuance of copyrights and patents (although copyrights and patents may also be enforced in state courts);
  • to govern the District of Columbia and all other federal properties;
  • to control naturalization (and, implicitly, the immigration) of aliens;
  • to enforce "by appropriate legislation" the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution (a function of the Constitution's Necessary and Proper clause);
  • to propose, by a two-thirds vote, constitutional amendments for ratification by three-fourths of the states pursuant to the terms of Article V.

Powers reserved by the states

Although, for all practical purposes (as proved by the fact of the U.S. Civil War), the federal government does not actually govern by the "consent of the states," some of the more important powers reserved by the states to themselves in the Constitution are:

  • the power, by "application of two-thirds of the legislatures of the several states," to require Congress to convene a constitutional convention for the purpose of proposing amendments to or revising the terms of the Constitution (see Article V).

Suits against states: effect of the 11th Amendment

The Eleventh Amendment to the United States Constitution defines the scope of when and in what circumstances a state may be taken to federal court. Taken literally, the Amendment prohibits a citizen from suing a state in federal court through the sovereign immunity doctrine. However, the Court has articulated three exceptions: 1) Particular state officials may be sued, 2) States can waive immunity or consent to suit, and 3) Congress may authorize suits against a state through the abrogation doctrine. However, concerning this latter exception, the Supreme Court has held in Seminole Tribe v. Florida that Congress may not, outside of the Fourteenth Amendment, authorize federal lawsuits against states in abrogation of the Eleventh Amendment's guarantee of sovereign state immunity.

Intergovernmental Immunities and Interstate Relations

The United States government, its agencies and instrumentalities, are immune from state regulation that interferes with federal activities, functions, and programs. State laws and regulations cannot substantially interfere with an authorized federal program, except for minor or indirect regulation, such as state taxation of federal employees.

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 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);

Lawmaking authority

The presidential veto power

The Presentment Clause (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, 524 U.S. 417 (1998). 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",[5] 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.

Foreign affairs and war powers

The president has power as commander in chief to control the army. Article I grants congress the power to declare war and raise and support the army and the navy. However, Article II grants the president the power as commander-in-chief. The Supreme Court rarely addresses the issue of the president's use of troops in a war-like situation. Challenges to the president's use of troops in a foreign country are likely to be dismissed on political question grounds. The Supreme Court does not review political questions like who to go to war with or how to handle rebellions since that is the power of the Federal Executive and Legislative branches.

Prisoners of War must be afforded the due process of having the ability to have their writs of Habeas Corpus heard.

Finally, the War Powers Resolution states that the president as commander in chief may introduce the United States Armed Forces into hostilities or situations where hostilities appear imminent "only pursuant to 1. a declaration of war, 2. specific statutory authorization or 3. a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." It requires that the president consult with Congress, where possible, before introducing troops into hostilities and that the president report to Congress within 48 hours after troops are introduced into hostilities or in situations which risk imminent involvement in hostilities. Unless congress has declared war or granted an extension, the president must withdraw troops within 60 days. The president can automatically get a 30 day extension by certifying to congress that there is an unavoidable military necessity respecting the safety of the armed forces.

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.

The special prosecutor

The judicial branch

Legislative and executive immunity

Legislative Immunity

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.

The due process clause (Fifth and Fourteenth Amendments)

The equal protection clause (Fourteenth Amendment)

The privileges and immunities clauses (Article IV and Fourteenth Amendment)

Article IV

The 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.

The contracts clause

The ex post facto clause

The prohibition on bills of attainder

Freedom of expression

Freedom of religion

Federal enforcement of civil rights


  1. ^ Cornell University - Constitutional law
  2. ^ Introduction to the Study of Constitutional Law
  3. ^ Andrzej Rapczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 Sup. Ct. Rev. 380
  4. ^ Id. at 391
  5. ^ From INS v. Chadha, 462 U.S. 919 (1983).

See also


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