THE INFLUENCE OF THE CONSTITUTION- CONSTITUTION OF THE UNITED STATES

The Constitution plays a role in virtually every aspect of life in the United States. Its very existence gives rise to constitutionalism—the expectation that government will abide by the rule of law and that heated political issues will be fought at the ballot box and in the courts, not on the streets. Even though this expectation has not always been met—the most searing exception being the Civil War—the United States is remarkable for its open political system that, over time, has dramatically expanded rights and freedom for increasing numbers of people.

A

Defining the Role of the Federal Government

Although the Constitution created a new federal government, it took a courageous, brilliant, and farseeing Supreme Court chief justice to help realize the framers’ vision. In a series of striking opinions, Chief Justice John Marshall, who sat on the Supreme Court from 1801 until his death in 1835, forcefully built a body of law that gave constitutional strength to the new government. The defining moment came in 1803 when Marshall announced the doctrine of judicial review in Marbury v. Madison. It is for the courts, Marshall wrote in his decision, not other branches of government, to say what the Constitution means. By asserting the primacy of the judicial branch over the other branches of government, Marshall’s decision made the Supreme Court the authoritative interpreter of the Constitution. In this single decision, the Supreme Court won the right to strike down any law enacted by Congress or the states that conflicts with the Constitution.

The Marbury case made the Supreme Court the main arbiter (decision-maker) in struggles over state and federal power. Marshall used this power in 1819, in McCulloch v. Maryland, to give vast authority to Congress and the federal government. The case arose when Congress created a national bank, the Bank of the United States. Some states objected and tried to tax the bank out of existence. The Supreme Court decided that even though the Constitution did not explicitly give Congress the power to create a bank, Congress could do so under the Necessary and Proper Clause of the Constitution. The clause empowers Congress to take whatever actions it deems appropriate to achieve its legitimate goals, such as regulating the economy. In the nearly two centuries since the Marshall court’s broad interpretation of the Necessary and Proper Clause, the federal government has expanded into nearly every aspect of U.S. social and economic life.

The Supreme Court cannot force other branches of government to obey its decisions. In 1832 the court ruled in Worcester v. Georgia in favor of the Cherokees in a treaty dispute with the United States. Upon hearing of the decision, President Andrew Jackson is said to have retorted: “John Marshall has made his decision, now let him enforce it.” Jackson ignored the court’s decision, and Georgia stripped the Cherokee of their land. In the next century and a half, federal and state governments sometimes ignored judicial decisions. Some Southern states evaded the Court’s 1954 desegregation ruling in Brown v. Board of Education of Topeka for years. Arkansas, for example, refused to abide by the Court’s decision until 1957, when President Dwight Eisenhower sent federal troops to enforce it. But the principle of judicial review has historically been so widely respected that eventually the Court’s declaration of constitutional principles has prevailed.

B

Regulating Business and Commerce

Congress has no broader power than that which it exercises under the Commerce Clause. Under the Articles of Confederation, uncontrolled economic competition between the states stifled the country’s economy. Conflicts over navigation rights and the practice of taxing goods from other states helped spur the states to call the Constitutional Convention. The framers sought to avoid such problems by assigning to Congress the power to regulate interstate and foreign commerce. In 1824 in Gibbons v. Ogden, Chief Justice Marshall gave the Commerce Clause a sweeping definition, establishing Congress’s commerce power as a broad tool for national policy making. Commerce is more than just buying and selling, he said, and the authority to regulate commerce includes the right to control nearly all areas of the national economy. This power grew throughout the 19th century, especially after the Civil War (1861-1865) as manufacturing and industry grew in importance in the American economy. The commerce power gave Congress the authority to create regulatory agencies that set railroad rates and conditions, regulated the quality of foods and drugs, and subjected more and more of the economy to governmental oversight.

In the late 19th century the Supreme Court narrowed the reach of the Commerce Clause, pointing to the Tenth Amendment of the Constitution, which reserves power to the states that is not delegated to the federal government. Activities such as manufacturing, the Court said, are not part of interstate commerce because they are local activities, and therefore only the states may regulate them. The Court struck down several congressional attempts to regulate labor practices, wages, and industrial conditions.

But in the late 1930s, in the midst of the Great Depression, the Supreme Court began to rethink these limitations. By 1940, when President Franklin D. Roosevelt had appointed several new justices, the Court proclaimed a new doctrine: Anything that affects interstate commerce falls within Congress’s commerce power. Since then, Congress has had a free hand to regulate industrial and economic activities in countless ways. Major civil rights laws outlawing discrimination, for example, were enacted under the commerce power.

In the 1990s the Supreme Court revived some of the earlier doctrines, putting brakes on Congress’s exercise of the commerce power for the first time in 60 years. In 1995 in United States v. Lopez, the Court struck down a federal law outlawing guns in schools across the country because there was no showing of an effect on commerce. Congress does not have a general power to police evils, the Court said. This power is for the states to exercise. The Supreme Court has also given new life to the Tenth Amendment, but not as broadly as in the early 20th century. In 1997 in Printz v. United States and Mack v. United States the court struck down a federal gun control law that required state officials to conduct a background check on gun buyers. The Court invalidated the background checks because under the Tenth Amendment, Congress may not direct state officials to take particular actions, even if those actions relate to commerce.

C

Protecting Personal Rights

C1

Equality

The original, unamended text of the Constitution does not guard against unequal treatment of individuals, except in one minor way. The Privileges and Immunities Clause of Article IV forbids states from favoring their own citizens against nonresidents within their borders. Nothing in the Constitution, however, barred the states from discriminating against people because of their race or gender. Formal legal equality became a constitutional principle only upon ratification of the 13th Amendment in 1865 and the 14th Amendment in 1868. The 13th Amendment abolished slavery, and it is the only constitutional provision that applies directly to all U.S. citizens rather than simply to the government. The 14th Amendment imposed limitations on state power for the first time since the Constitution itself was ratified.

One part, the Equal Protection Clause, prohibits a state from denying to any person within its borders “the equal protection of the laws.” This clause was intended to bar Southern states from discriminating against former slaves. Courts enforced the Equal Protection Clause sparingly for nearly a century. During this period the Supreme Court struck down only a few laws on the grounds that they were racially discriminatory. In 1880, for example, the Supreme Court ruled unconstitutional a West Virginia law denying blacks the right to serve on juries. But in 1883 in the Civil Rights Cases the Supreme Court held that the Equal Protection Clause applies only to activities carried out by the states themselves, not by private citizens. This decision permitted racial segregation in private facilities such as hospitals, restaurants, and hotels. In 1896, in the notorious case of Plessy v. Ferguson, the Supreme Court ruled that a state could officially segregate blacks and whites as long as the black facilities were “equal.”

This separate-but-equal doctrine lasted until 1954 when the Court ruled in the landmark case Brown v. Board of Education that schools racially segregated by government decree can never be equal. In Bolling v. Sharpe that same year, which involved segregated schools in the District of Columbia, the Court ruled that the due process clause of the Fifth Amendment binds the federal government under the same equal protection rule.

Since 1954 the Equal Protection Clause has figured in dozens of landmark Supreme Court cases and in thousands of lower-court cases around the country. In 1967, for example, the Court ruled in Loving v. Virginia that the State of Virginia could not make it a criminal offense for black and white individuals to marry. By 1970 the Court had made it clear that racial discrimination of any sort is unconstitutional.

The Court then began applying the Equal Protection Clause to laws and policies that treated men and women unequally. But not all were struck down. In 1981, for instance, the Court ruled in Rostker v. Goldberg that the federal government could require men, but not women, to register for the military draft. On the whole, however, the Equal Protection Clause bars gender-based discrimination in nearly all other areas of U.S. society. The clause has also been used to void laws that discriminated against foreigners residing in the United States and against children born to parents who were not married.

Two fiercely debated issues are as yet unresolved. First, the Court has not equated “sexual orientation” with “protected classes” such as race or ethnic origin. As a consequence, the Court has so far not declared any general constitutional right of homosexuals to be free from discrimination. Second, the Court has said that race may be taken into account when necessary to remedy past constitutional violations, so that an affirmative-action program designed to increase the number of minorities working for a municipal police or fire department is constitutional if those departments had discriminated in the past. But in a series of cases in the 1990s, the Court suggested that affirmative-action programs that set aside a certain number of places or dollars for members of minorities, without regard to past discrimination, are unlikely to withstand constitutional scrutiny.

C2

The Right to Privacy

The Constitution does not include an explicit guarantee of a right to privacy. No article or amendment gives United States citizens the right to act however they please in their homes or elsewhere. Indeed, the word privacy never appears in the Constitution. However, the Supreme Court has developed a doctrine known as “substantive due process” that extends constitutional protections over some types of personal behavior. This doctrine serves as the basis for the constitutional right to privacy.

The due process clauses in the 5th and 14th amendments bar the federal government and the states from depriving any person of life, liberty, or property without due process of law. At first, the Court applied due process only to procedures. This meant, for example, that a state could take away an individual’s property as long as it offered the person a fair hearing to block the action. In the late 19th century the Court began using the due process clauses to protect certain substantive rights—basic rights that go beyond rules to include actual results. Substantive rights include, for example, a citizen’s right not just to a fair hearing before the government takes that citizen’s property (procedural due process), but also the right to fair compensation based on the property’s value. Over time the doctrine of substantive due process grew to include many protections now taken for granted by U.S. citizens. In 1923, for example, the Court ruled in Meyer v. Nebraska that the state could not ban the teaching of foreign languages in schools. In this and other decisions, the Court said, in effect, that parents have a broad but limited right to raise their children as they see fit.

This idea—that the Constitution protects people’s right to live their lives as they desire—did not excite much comment until 1965. That year the Supreme Court in Griswold v. Connecticut struck down a state law prohibiting married couples from using contraceptives (see Birth Control). There was no rational reason for such a law, the Court said, and it too drastically interfered with the basic intimacy of the marriage bond. Most states had laws similar to Connecticut’s, but few if any actually enforced them; so the Court’s ruling as a practical matter reflected prevailing values. But Griswold paved the way for a far more controversial case.

In 1973 the Court held in Roe v. Wade that the states cannot bar a woman from having an abortion because of the constitutional right to privacy. Because it went against the deep convictions of many people, Roe ignited a firestorm of political controversy that has continued ever since. Although the court has heard many abortion cases in the years since Roe and has changed the rules somewhat, it has declined to back away from the central point: A woman has a constitutional right to control her body.

C3

Free Speech

Under the First Amendment, all United States citizens have the right to speak their minds and publish their thoughts. Originally the First Amendment was aimed at preventing only Congress from interfering with freedom of speech and freedom of the press. But in 1925 the Supreme Court ruled in Gitlow v. New York that the due process clause of the 14th Amendment incorporated the First Amendment, extending free speech protections to the states.

When governments interfere with speech, they usually do so by either censoring it beforehand or by punishing it afterward. The Supreme Court has ruled that the First Amendment is nearly absolute in protecting against a prior restraint. When President Richard M. Nixon went to court to stop the New York Times and the Washington Post from publishing the Pentagon Papers in 1971, the Supreme Court ruled in New York Times v. United States that neither the president nor the courts could constitutionally do so. Whether the government may punish someone after speaking depends on what is said. In general, it is unconstitutional to punish someone for the content of a speech or publication.

Since the adoption of the Constitution in 1789, however, courts have excluded certain types of speech from First Amendment protection. Political dissent—speech that criticizes the government or calls for its removal—has sparked some of the fiercest debates over constitutional rights. In 1798 Congress passed the Alien and Sedition Acts, which prohibited speeches and publications criticizing the government. Although these laws were surely unconstitutional, no case challenging their constitutionality ever reached the Supreme Court, and they expired in 1801.

In 1919, following World War I (1914-1918), the Court was confronted with a number of espionage cases that tested these rights for the first time. At first the Court seemed to suggest that Congress could constitutionally outlaw any type of speech that might, even if remotely, interfere with the war effort. It was in one of these cases, Schenck v. United States (1919), that Justice Oliver Wendell Holmes, Jr. first announced the famous “clear and present danger” test. Holmes said that subversive speech could be banned if the words were of such a nature and used in such a way that they posed “a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.” But a majority of justices later disagreed with him, and for half a century the Supreme Court frequently upheld convictions of people who advocated unlawful conduct without much chance that it would ever happen.

In 1969 the Court essentially adopted Holmes’s test in Brandenburg v. Ohio. In that case the Court ruled that the government cannot forbid people from advocating the use of violence or illegal conduct unless they are advocating others to take “imminent lawless action” and unless their advocacy “is likely to incite or produce such action.” For example, a person urging a mob to storm a jail in order to lynch a prisoner may be prosecuted. But the First Amendment protects a person who merely advocates the use of violence if there is little likelihood that violence will actually occur.

Freedom of speech is not limited to political ideas, but encompasses a wide array of expressions. In recent years, the Court has provided First Amendment protection to commercial advertisements, many types of sexually explicit pictures, most defamatory statements, and hate-mongering proclamations. Freedom of speech also extends beyond newspaper articles and street corner speeches to many other forms of expression. The right also covers public demonstrations, books, billboards, movies, and computer communication. In 1997, the Supreme Court held in Reno v. ACLU that Congress cannot ban “indecent” speech on the Internet.

C4

Religious Rights

In the famous words of Thomas Jefferson, the Constitution erects a “wall of separation” between church and state. The First Amendment’s Establishment Clause and Free Exercise Clause serve as the principle bulwarks against government intrusion in religious life.

Under the Establishment Clause, neither the federal government nor the states can enact laws that would “establish” or create a religion. In the 17th century, most American colonies supported official religions with public revenues, and laws required residents to attend church services. The framers of the Constitution drafted the Establishment Clause to ensure that there would be no official national religion. In 1940 the Supreme Court ruled in Cantwell v. Connecticut that the religion clauses bind the states just as the press and speech clauses do.

The application of the Establishment Clause usually turns on whether and to what degree the government may provide support for religious activities. The court has prohibited officially sponsored school prayer, although children in public schools may pray on their own. The Court’s decisions in other areas have been less consistent. The Court has permitted displays of religious symbols, such as a Christmas scene, in public areas such as parks and municipal buildings in some instances and not in others. In two cases in 2005 the Court ruled on the question of whether religious displays violated the Establishment Clause. In Van Orden v. Perry the Court ruled that a granite monument of the Ten Commandments displayed on the grounds of the Texas capitol was not in violation of the clause. However, in McCreary County v. American Civil Liberties Union, the Court ruled that framed copies of the Ten Commandments on the walls of two Kentucky courthouses were unconstitutional. The Court has approved government expenditures that benefit religious schools in some cases and not in others. The outcome of each case turns on the specific facts involved.

More difficult questions arise when the government outlaws an activity that incidentally affects a religious practice. In Employment Division v. Smith (1990) the Court ruled that Oregon could prohibit the use of peyote, a hallucinogen, even though it is used in some Native American religious ceremonies. The Court reasoned that because the law was general in scope and had the secular (nonreligious) purpose of outlawing dangerous drugs, the law did not violate the Constitution merely because it also resulted in the banning of a particular religious practice. On the other hand, a law is not necessarily general and neutral just because the government says so. In 1993 the Court unanimously struck down a Hialeah, Florida, municipal ordinance that banned animal sacrifice. Although the ban seemed neutral, the court ruled in Church of Lukumi Babalu Aye v. City of Hialeah that the law unfairly targeted the Santería religion.

The legal interpretation of the separation of church and state raises perplexing legal issues because the Free Exercise Clause sometimes conflicts with the Establishment Clause. If the government taxes church property, for example, does the tax violate the church’s right to “free exercise” of its religion? If, on the other hand, the state exempts churches from property taxes, does the exemption constitute an unconstitutional “establishment” of religion. In 1971 the Supreme Court upheld property tax exemptions for religious groups in Walz v. Tax Commission of the City of New York, but the tension between the Establishment and Free Exercise clauses still defies simple resolution by the Supreme Court.

C5

Rights of the Accused

The Bill of Rights provides specific procedural protections for people accused of committing crimes. These include the right to be free of unreasonable searches and seizures, the right against double jeopardy (the right not to be tried twice for the same crime), the right to fair procedures during trial, and the right against self-incrimination (the right not to have to testify against yourself at a criminal trial). The Bill of Rights also guarantees the right to a speedy and public trial, to be informed of the charges, to cross-examine witnesses, to compel witnesses for the defense to come to court, and to have the assistance of lawyers. The Supreme Court has also used the Bill of Rights as the basis for other protections. From the Fourth Amendment’s ban on unreasonable searches, for example, the Court developed the so-called exclusionary rule, which excludes evidence from a trial if it was seized unconstitutionally.

For most of U.S. history, these rights generated little comment because they applied only in federal prosecutions. Since most crimes were tried in state courts, a criminal defendant gained these procedural protections only if provided for in state constitutions. But beginning in the 1960s, the Supreme Court ushered in a criminal-law revolution by applying these provisions in the Fourth, Fifth, and Sixth amendments directly to the states. In 1961, for example, the Court ruled in Mapp v. Ohio that evidence illegally seized by local police may not be introduced in state criminal trials. In the 1963 case Gideon v. Wainwright the Court said that if a person being charged with a felony cannot afford a lawyer the state must provide one free of charge. In 1966 in the famous case of Miranda v. Arizona, the Court held that the police must advise arrested suspects of their basic constitutional rights: the right to remain silent and the right to have an attorney present during questioning. If the police fail to give a suspect Miranda warnings, any confession must be excluded from evidence.

At the same time, the Supreme Court greatly expanded habeas corpus—the right to challenge state criminal convictions by going to federal court to contest the constitutionality of the procedures used. Until the late 1980s prisoners were permitted to file not just one but multiple habeas corpus appeals, inundating the courts with prisoner petitions.

These and many other rulings initiated a national debate about whether the Supreme Court has ruled too strongly in favor of defendants’ rights, making the job of law-enforcement officials too difficult. In recent years more conservative justices have declared many exceptions to the liberal rulings of the 1960s. In particular, the court has drastically reduced the availability of habeas corpus appeals. But despite the Court’s changing philosophy, the core of the most important protections remains in place.

C6

Other Civil Liberties

The Constitution protects many other civil liberties besides the freedom of speech and religion, the right of privacy, and the rights of the accused. Notable among these other liberties are freedom of assembly, freedom of association, the right not to associate, freedom of belief, and the right to petition the government—all protected by the First Amendment. Protected as parts of due process are the rights to marry, to have children, and to raise them in accordance with parental beliefs.