Constitutional law

Dynamic body of law that defines and limits the powers of government and sets out its organizational structure.

A resilient document, the U.S. ConstitutionConstitution, U.S. has endured with only twenty-seven amendments since its formulation in 1787. Its sweeping language and generalities allow change and interpretation in the face of altered circumstances, from the changing human condition to the changing composition of the Supreme Court. The Constitution contains few rules and is not self-explanatory. That lack of specificity was intentional. The Framers outlined their general intent to create the fundamentals of a national government, prescribing how it should operate and limiting its scope of power. The ongoing interpretative process engaged in by the Court allows the provisions of the Constitution to change and adapt over time. The Court refers to the original Constitution because by doing so, it can bring resolution of the new and often divisive issues of each generation. The genius of constitutionalismConstitutionalism, therefore, lies in the opportunities provided in the document for change and continuity, the method of judicial interpretation, and the overall skill and sensitivity of the justices. The fact that the justices are lifetime appointees frees them from concerns about approval by political leaders and voters and permits concentration on the issues.

Constitutional Decision Making

Decision making Virtually all cases before the Court involve seeking review of a decision by a federal court of appeals or a state supreme court. As the final authority on federal matters and questions dealing with the Constitution and treaties, the Court exercises appellate jurisdiction (appeals) and functions as a trial court (original jurisdiction) only in certain limited situations involving ambassadors or where a state is a party. Most of the cases reach the Court for review by means of a writ of certiorari, or through the exercise of the Court’s discretion. This means that the Court has almost complete control of its docket. Of the 7,000 petitions for review annually, only 2 percent are granted. The Court issues an average of 110 opinions per year, permitting a selected group of policy issues to be addressed.

E. Robert Seaver, clerk of the Supreme Court in 1970.

(Library of Congress)

The Court is shrouded in secrecy, assuming some of the awe and mystery of the document it interprets. Some have criticized the Court for remaining in an “ivory tower” far removed from “we the people” set out in the preamble to the Constitution. Decisions to grant or deny review are made in secret conferences attended only by the nine justices with no support staff. A traditional unwritten rule specifies that a case is accepted for review if four justices feel that it merits the Court’s attention (rule of four)Rule of four and that it would serve the interests of justice. The Court does not have to explain its refusal.

When the Court decides to hear a case, the clerk schedules oral argument during which the justices may interrupt and ask questions of the attorneys to clarify, debate, or explain the written briefs. Cases are discussed in secret conferences following oral argument. It takes a majority vote to decide a case.

Following the conference and ensuing discussion, an opinion or reasoned argument explaining the legal issues in the case and the precedents on which the opinion is based must be drafted. The manner in which a majority opinion is written can have a great impact on Americans. That impact depends in part on who writes the opinion and how it is written, and also on the extent of support or dissent by the remaining justices. A 5-4 plurality opinion does not demonstrate the firm conviction of the Court that is present in a unanimous or 8-1 decision.

Any justice can write a separate opinion.Opinions;writing of If justices agree with the majority’s decision but disagree with its reasoning, they may write a concurring opinion. If they disagree with both the result and reasoning contained in the majority opinion, they may write a dissenting opinion or simply go on the record as dissenting without an opinion. More than one justice can join in a concurring or dissenting opinion.

Decision making or opinion writing is a painstaking and laborious process. The time involved varies from one justice to another depending on the complexity of the issues in the case. The actual reporting of decisions has changed from the days in which members of the Court read long opinions aloud, sometimes taking days to do so. When Charles Evans Hughes became chief justice in 1930, he encouraged the delivery of summaries of opinions. That practice has continued, and the justice writing the majority opinion delivers the summary. Dissenting justices deliver their own opinions. Computerization and Lexis and Westlaw legal databases have made newly decided opinions accessible to all within hours of their release.

The Highest Court

Decisions of the Court are finalFinality of decision because there is no higher court to which to appeal. Its interpretation of statutes can be reversed only by congressional legislation, and its constitutional rulings overturned only by constitutional amendment. Absent these remedies, all courts are obliged to follow the Supreme Court in matters of federal law. In its decisions, the Court attempts to adhere to precedent, or stare decisis, and in that capacity serves as final authority in constitutional matters, thereby providing a uniform interpretation of the law, historical continuity, stability, and predictability. Just as the Court sets its own agenda and controls what it hears, accepting or rejecting cases according to individual and collective goals such as avoiding troublesome issues, resolving legal conflicts, and establishing policies favored by the justices, Court decisions are group products shaped by the law, the Court and the country’s environment, and the personal value systems of and interactions among the justices.

The power to define the Constitution makes the Court unique among government institutions. Through the exercise of its constitutional role together with the rule of lawRule of law, the Court has wielded far-reaching power. The proper functioning of federalism and the scope of the rights of the individual depend on the actions of the Court, whose words mark the boundaries of the branches and departments of government.

The justices function as “nine little law firms,” autonomous but working as a collegial body to decide a case. In important cases, the opinions issued by the Court are often negotiated among the members, the result of a cooperative collaboration in which the end product is the joint work of all rather than the product of the named author alone.

Self-Imposed Limitations

The Court imposes certain limitations or barriers before accepting a case for review. It poses certain threshold questions to deal with tactical issues that must be resolved before the Court reaches the substance of the controversy. Referred to as “judicial restraint,” if these elements are not overcome, the Court will not exercise jurisdiction over a case. Article III, section 2, of the Constitution requires that there exist an ongoing “case or controversy”Cases and controversies at all stages of the proceedings, including appeal. As interpreted by the Court, these words limit the power of federal courts to resolving disputes between adversaries whose rights are truly in collision. Often called “justiciability,”Justiciability the requirement provides concreteness when a question is precisely framed. The case, therefore, must present a live dispute.

Precluded are advisory opinions, or giving advice on abstract or hypothetical situations, as the Court ruled in Muskrat v. United States[case]Muskrat v. United States[Muskrat v. United States] (1911), and moot cases, or those that have already been resolved, settled, or feigned, or those in which circumstances or time have removed the dispute or conflict because there is nothing for a court to decide, as it ruled in DeFunis v. Odegaard[case]DeFunis v. Odegaard[DeFunis v. Odegaard] (1974). Several narrow exceptions to the mootness rule exist where conduct is of short duration but capable of repetition such as election disputes or abortion cases such as Roe v. Wade[case]Roe v. Wade[Roe v. Wade] and its companion case Doe v. Bolton[case]Doe v. Bolton[Doe v. Bolton] (1973). In Baker v. Carr[case]Baker v. Carr[Baker v. Carr] (1962), the Court determined that political questions or those matters more properly applicable to another branch of government will not be accepted, nor will friendly or collusive suits and test cases. Standing to sue requires that the litigants have a personal stake in the outcome of the case, having suffered an actual injury, in order to assure concrete adverseness. Ripeness requires the issues in the case to be clearly delineated and sharply outlined, not premature, in flux, or abstract. Moreover, the Court will not engage in speculation, contingencies, or predictions or issue extrajudicial advice.

Judicial Review

Courts participate in the development of constitutional law through judicial reviewJudicial review. In the landmark case Marbury v. Madison[case]Marbury v. Madison[Marbury v. Madison] (1803), considered to be the point at which constitutional law begins, the Court held that Article III empowers courts to review government actions and invalidate those found to be repugnant to the Constitution by declaring them unconstitutional. The supremacy clause of Article IV states that no provision of state law and no legislative enactment may conflict with the national Constitution, which is the supreme law of the land.

The Framers of the Constitution decentralized control through federalism, considered one of the most important contributions to government. Federalism is a dual system in which powers are divided between national and state authorities.

Bill of Rights

Protecting the fundamental rights of individuals was considered of the utmost importance. The Framers believed that explicit enumeration of those rights would make the rights more secure. In order to achieve ratification of the main body of the Constitution, therefore, in 1791 the Framers appended to it a Bill of RightsBill of Rights, consisting of the first ten amendments of the present document. While the body of the main Constitution concerns government, the Bill of Rights represents the popular perception of constitutional guarantees.

Basic to American identity is the First Amendment and its central guarantees of freedom of speech, press, religion, assembly, and right to petition for redress of grievances. Despite language to the contrary, the rights contained in the Bill of Rights are not absolute. In the speech area, for example, certain categories of expression can be regulated; others are not protected at all. “Pure” speech that creates no danger to the public is protected. However, if speech advocates an imminent lawless action that presents a “clear and present danger,” the speech loses its protection, as the Court ruled in Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919). In Texas v. Johnson[case]Texas v. Johnson[Texas v. Johnson] (1989), the Court found that symbolic speech or use of actions as a substitute for words is generally protected, such as flag burning as a controversial but valid expression of political views. Obscenity or pornography, defamatory communications (libel and slander), and “fighting words” that provoke an immediate breach of the peace do not receive First Amendment protection.

Some rights that Americans consider basic to their fundamental freedoms are not mentioned specifically in the Constitution. Among these are the right of personal privacy, which protects the individual from state interference. The Court struggled with the constitutional foundation of the right, suggesting various sources: the due process guarantee of the Fourteenth Amendment and the penumbras or emanations from the interests protected by the First, Third, Fourth, Fifth, and Ninth Amendments (Griswold v. Connecticut, 1965).

Further Reading

  • Maxwell L. Stearns’s Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (Ann Arbor: University of Michigan Press, 2000) and Timothy Russell Johnson’s Oral Arguments and Decision Making on the United States Supreme Court (Albany: State University of New York Press, 2004) are useful explorations of how the Supreme Court makes its decisions. For a broad overview of how Supreme Court decisions influence constitutional change, see Westel Woodbury Willoughby’s The Supreme Court of the United States: Its History and Influence in Our Constitutional System (Union, N.J.: Lawbook Exchange, 2001). Creating Constitutional Change: Clashes Over Power and Liberty in the Supreme Court, edited by Gregg Ivers and Kevin T. McGuire (Charlottesville: University of Virginia Press, 2004), offers a concise analysis of the process through which the justices go in making decisions that effect changes in the Constitution. Two well-written works containing detailed treatment with case references and quotations are Joan Biskupic and Elder Witt’s The Supreme Court and the Powers of the American Government (Washington, D.C.: Congressional Quarterly, 1997) and The Supreme Court at Work (2d ed., Washington, D.C.: Congressional Quarterly, 1997), with biographical sketches of the justices and illustrations. Lawrence Baum’s The Supreme Court (8th ed., Washington, D.C.: Congressional Quarterly, 2004) examines the role of the Court, the justices, the decision-making process, factors that influence the Court, activism in policy making, and the Court’s significance. Organized by case themes, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996) by Bernard Schwartz offers a behind-the-scenes look at how the Court decides cases. Archibald Cox’s The Court and the Constitution (Boston: Houghton Mifflin, 1987) is a readable yet scholarly account of how the Court shaped constitutional law. Peter G. Renstrom’s Constitutional Law and Young Adults (Santa Barbara, Calif.: ABC-CLIO, 1992) is a guide to the Constitution, the court system, and key provisions of the Bill of Rights and Fourteenth Amendment with case references. It is comprehensive in scope and comprehensible to the general reader. David P. Currie’s The Constitution of the United States: A Primer for the People (Chicago: University of Chicago Press, 1988) contains an overview of the document and the major concepts contained in it in language intended for the general reader.

Bill of Rights

Constitution, U.S.

Constitutional interpretation


Judicial activism

Marbury v. Madison

Rule of law

Separation of powers