6 Key excerpts on "US Constitutional Law"

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  American Law and Legal Systems

  • James V. Calvi, Susan Coleman(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  CHAPTER 6 Constitutional Law In Chapter 1 we introduced constitutional law, along with case law, statutory law, and several others, as one of the many kinds of law comprised by the American legal system. We noted that the U.S. Constitution and the laws and treaties of the United States are the supreme law of the land. However, we also noted in Chapter 1 that the language of the Constitution tends to be ambiguous, employing such phrases as “due process of law,” “equal protection of the law,” and “cruel and unusual punishment” without clearly defining them. This ambiguity presents a problem: How can the Constitution be our supreme law if we don’t know what it means? Also, how can we ever learn the meaning of the Constitution when those who wrote it have long since died? The answer lies in judicial interpretation of the Constitution, which is the main but not exclusive responsibility of the U.S. Supreme Court. As Chief Justice John Marshall wrote in the famous case of Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.” 1 Chief Justice Charles Evans Hughes, in the same vein, remarked, “We are under a constitution but the constitution is what the judges say it is.” 2 This ability to be the final arbiter of the meaning of the Constitution has given the Supreme Court tremendous power to affect not only the laws of the nation but its politics and policies as well. This point was vividly illustrated when the Supreme Court decided the outcome of the 2000 election with its ruling in Bush v. Gore 3 and again in 2012 when it upheld the constitutionality of the Affordable Care Act. 4 As the final interpreter of the Constitution, the Supreme Court has the ability to rule on the constitutionality of the actions of the other two branches of government as well as those of the states and other governmental entities

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  American Constitutional Law

  Introductory Essays and Selected Cases

  • Donald Grier Stephenson Jr., Alpheus Thomas Mason(Authors)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  2 The Constitution, the Supreme Court, and Judicial Review

  DOI: 10.4324/9781003164340-3

  Judicial review represents an attempt by American Democracy to cover its bet.

  —Professor Edward S. Corwin (1942)

  The Constitution of 1787 and its 27 amendments, reprinted near the beginning of this book, can be read in about half an hour. One could memorize the written document word for word and still know little or nothing of its meaning. The reason is that the body of rules known as constitutional law consists primarily of decisions and opinions of the U.S. Supreme Court—the gloss that the justices have spread on the formal document. Charles Warren asked us not to forget that “[h]owever the Court may interpret the provisions of the Constitution, it is still the Constitution which is law and not decisions of the Court.” But future justice and chief justice Charles Evans Hughes bluntly asserted that “[t]he Constitution is what the Judges say it is.” Furthermore, recurrent declarations of reverence for the “ark of our covenant,” as Chief Justice Taft called the Constitution, stand in sharp contrast to the reality that most Americans do not adequately understand the Constitution. Popular perceptions about the Constitution are frequently at odds with the document itself, making the American Constitution in its broadest sense greater than the sum of its parts. Myth wars with fact both within and without the Court.

  Granting and Limiting Power

  In the United States, the Constitution alone is supreme. All agencies of government stand in the relationship of creator to creatures. There is, Woodrow Wilson observed, “no sovereign government in America.” But Wilson was not blind to the fact that government means action. “Power belongs to government, is lodged in organs of initiative; control belongs to the community, is lodged with the voters”—and the courts.

  Constitutionalism . American constitutionalism—

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  Optimize Public Law

  • Ursula Smartt(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  It is also important that you understand the current politics and political set up of the United Kingdom – and this includes Devolution, its relationship with the European Union (post Brexit) and how the Human Rights Act 1998 (HRA) influences all areas of Public Law. All are now parts of the UK Constitution. It is important that you have a clear understanding of the differences between public and private law. Professor KC Wheare defines the constitution of a state as: ‘the whole system of government of a country, the collection of rules which establish and regulate or govern the government’. (see: Wheare, K.C., 1966, Modern Constitutions) What is a constitution? A constitution is a set of rules that governs an organisation. Sir Ivor Jennings (1903–1965), one of the most prominent constitutional law scholars, described a constitution as a ‘document in which are set out the rules governing the composition, powers and methods of operation of the main institutions of Government, and the general principles applicable to their relations to the citizens’ (Sir Ivor Jennings, The British Constitution, 1959). Every organisation – be it a tennis club, student union or nation state – has defined objectives and specific offices within that organisation and therefore needs a constitution to define the rules, regulations and rights of its members. Framers and writers of a constitution will want to ensure that a constitution is not altered carelessly or at the whim of Government and that the document is not tampered with. There needs to be some special process of constitutional amendment, i.e

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  Judges on Judging

  Views from the Bench

  • David M. O′Brien(Author)
  • 2016(Publication Date)
  • CQ Press

    (Publisher)

  Sec. 379. It has been said, “that however true it may be, that the judicial department is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the other departments of the government, not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments hold their delegated trusts. . . . ” Now, it is certainly possible, that all the departments of a government may conspire to subvert the constitution of that government, by which they are created. But if they should so conspire, there would still remain an adequate remedy to redress the evil. In the first place, the people, by the exercise of the elective franchise, can easily check and remedy any dangerous, palpable, and deliberate infraction of the constitution in two of the great departments of government; and, in the third department, they can remove the judges, by impeachment, for any corrupt conspiracies. Besides these ordinary remedies, there is a still more extensive one, embodied in the form of the constitution, by the power of amending it, which is always in the power of three fourths of the states. It is a supposition not to be endured for a moment, that three fourths of the states would conspire in any deliberate, dangerous, and palpable breach of the constitution. And if the judicial department alone should attempt any usurpation, congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision. . . .

  Sec. 391. This is not all. The constitution has now been in full operation more than forty years; and during this period the Supreme Court has constantly exercised this power of final interpretation in relation, not only to the constitution, and laws of the Union, but in relation to state acts and state constitutions and laws, so far as they affected the constitution, and laws, and treaties of the United States. Their decisions upon these grave questions have never been repudiated, or impaired by congress. No state has ever deliberately or forcibly resisted the execution of the judgments founded upon them; and the highest state tribunals have, with scarcely a single exception, acquiesced in, and, in most instances, assisted in executing them. . . .

  Chapter V. Rules of Interpretation

  Sec. 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties. Mr. Justice Blackstone has remarked, that the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject-matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application. . . .

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  American Interpretations of Natural Law

  A Study in the History of Political Thought

  • Benjamin Fletcher Wright(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  The problems of legal and of political philosophy are not capable of complete separation; in some cases there is virtual identity, in others they form two phases of an indivisible context. However, it has been necessary in this study to adhere as closely as possible to the political aspect of the problem of natural law, for the legal aspect is in itself a subject of probably equal extent. It seems desirable to depart from this limitation so far as concerns one field of legal theory, that having to do with the interpretation of written constitutions. Here there is no possibility of any very real separation between the legal and the political; the problems are in part those of the jurist, in part those of the political scientist. The institution of judicial review, particularly as it has been applied during the past half-century, makes the constitutional law of the United States a subject of unusual interest for the student of the history of political ideas. Moreover, it is a subject of especial importance in the history of the natural law concept in the United States, for whereas this concept has gradually been abandoned or repudiated by virtually all political theorists, and, since the Civil War, has been of no particular significance in political writings, the same concept has not only continued to be of importance in constitutional law, but has actually been of increasing importance since about 1875. Principles developed mainly in the realm of political theory have been put to new uses in the work of building the law of the Constitution.

  Before surveying the more important judicial opinions which, in one way or another, deal with the idea of natural law, it will be worth while to indicate the attitude toward this concept of those jurists whose writings on the general subject of law, or on constitutional law in particular, have been of outstanding significance in the development of American constitutional law.

  James Wilson, one of the principal authors of the Federal Constitution, was also one of the members of the first Supreme Court. Shortly after he was appointed to that position he was appointed professor of law at the College of Philadelphia. In 1790 he delivered the first course of law lectures to be given at that institution. These lectures dealt rather with the general principles of law than with the particular subject of constitutional law. But if his lectures do not deal with the meaning of the Constitution, they do give us the best statement we have of the considered legal theories of one of the founders of American constitutional law. It will be remembered that Wilson’s Considerations on the Nature and Extent of the Legislative Authority of the British Parliament had demonstrated a stout faith in the concept of natural law. The purpose and form of his lectures were entirely different, but they show that, in this respect, there is no deviation from his earlier point of view.1

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  The United States Supreme Court

  A political and legal analysis, second edition

  • Robert J. McKeever(Author)
  • 2016(Publication Date)
  • Manchester University Press

    (Publisher)

  Second, the Supreme Court allocates power between government and citizens. All governmental laws and regulations affect some interests within American society, whether they are the interests of individuals or of organisations such as corporations, professional associations or pressure groups. And while many of those affected may see benefits in the particular government action in question, others will perceive themselves as harmed. This ‘disadvantaged’ interest may urge politicians to change government policy, to alter the distribution of benefits within the policy. Alternatively, however, they may assert that government lacks the power to make the policy altogether, and that complaint is addressed to the Supreme Court.

  The Supreme Court’s role in allocating power between different branches of government and between government and citizenry derives directly from its duty to uphold the Constitution. For it is the Constitution that allocates power within the American political system. Since the Constitution is not self-enforcing, however, the Supreme Court acts as the instrument and mouthpiece of constitutional enforcement. Or to recall Chief Justice Hughes’ famous aphorism: ‘We are under a Constitution, but the Constitution is what the Supreme Court says it is.’

  Of course, as we have seen, the Supreme Court is not the only governmental or political body that attempts to allocate power, but it is unique in that it possesses the ultimate authority or legitimacy to do so. Others may therefore assert power, but only the Supreme Court can confer (or withhold) legitimacy upon that assertion, because it alone speaks with the authority of the Constitution. To put it another way, only the Supreme Court can constitutionalise allocations of powers and rights.

  The Supreme Court’s allocation of power as political prize

  However, as we have repeatedly seen, the Supreme Court does not operate in a political vacuum and its role as the authoritative allocator of powers and rights is no exception. Indeed, precisely because the Court can bestow the ultimate political prize of constitutional approval and legitimacy, its blessing is seen as a valuable resource to be won by contending social groups and political institutions. In this sense, the Supreme Court becomes not merely the site of political conflict, but the very object of that conflict.

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