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United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution. The subject mainly concerns the scope of power of the United States federal government as compared to the individual states and the fundamental rights of individuals. As the ultimate authority on matters of constitutional interpretation, the decisions of the Supreme Court of the United States make up a large portion of constitutional law.

Interpreting the Constitution and the authority of the Supreme Court

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:

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:


Political power in the United States is divided under a scheme of federalism, in which multiple units of government exercise jurisdiction over the same geographical area.[5] This manner of distributing political power was a compromise between two extremes feared by the framers: the efficiency of tyranny when power is overly centralized, as under the British monarchy, on one end of the spectrum, and the ineffectiveness of an overly decentralized government, as under the Articles of Confederation, on the other.[6] 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.[7] 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.[8] Federalism represented a middle ground model of management consisting of divided powers between the governments of the individual states and the centralized federal government.[9]

The Constitution assigns the powers of the federal government to the legislative (Article I), executive (Article II), and judicial (Article III) branches, and the Tenth Amendment provides that those powers not expressly delegated to the federal government are reserved by the States or the people.[10]

The Legislative: Powers committed to the U.S. Congress (Article I)

Article I, Section 8 of the Constitution enumerates many explicit powers of Congress. See Enumerated powers.

The federal commerce power

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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[when?]like Lopez (1995) and Morrison (2000), 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 (2005) (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.

Other enumerated 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:

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).

The Executive: Powers committed to the President of the United States (Article II)

Article II, Section 1, vests the executive power in the President of the United States of America. Unlike the commitment of authority in Article I, which refers Congress only specifically enumerated powers "herein granted" and such powers as may be necessary and proper to carry out the same, Article II is all-inclusive in its commitment of the executive power in a President of the United States of America.[11]

Enumerated powers of the President Several important powers are expressly committed to the President under Article II, Section 2. These include:

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, with a two thirds majority in both houses, it becomes federal law.

First, the president can sign the bill into law. In this scenario there is Congressional agreement. Second, if not in agreement, the president can veto the legislation by sending the bill back to Congress, within ten days of reception, unsigned and with a written statement of his objections. Third, the president can choose not to act at all on the bill, 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, only with a two thirds majority of both houses. If, however, Congress adjourned during that 10-day period, the bill fails to become law in a procedural device known as the "pocket veto". The bill becomes "mute".

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",[12] 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 whom to go to war with or how to handle rebellions since that is the power of the Federal Executive and Legislative branches.

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.

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 Judiciary: Jurisdiction of the Federal Courts (Article III)

Article Three of the United States Constitution vests the judicial power of the federal government in the Supreme Court.[13] The Judiciary Act of 1789 implemented Article III by creating a hierarchy under which circuit courts consider appeals from the district courts and the Supreme Court has appellate authority over the circuit courts.[14] The Judiciary Act of 1789 provided that the Supreme Court would consist of one chief justice and five associate justices; there have been nine justices since 1869.[15]

Powers reserved by the states

Although, for all practical purposes, 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:

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

Main article: Intergovernmental immunity (United States)

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.

Rights of Individuals

Bill of Rights

First Amendment

Freedom of expression

Main article: Freedom of speech in the United States

Freedom of religion

Main article: Freedom of Religion in the United States

In the United States, freedom of religion is a constitutionally protected right provided in the religion clauses of the First Amendment. Freedom of religion is also closely associated with separation of church and state, a concept advocated by Colonial founders such as Dr. John Clarke, Roger Williams, William Penn and later Founding Fathers such as James Madison and Thomas Jefferson.[16][17]

The freedom of religion has changed over time in the United States and continues to be controversial. Concern over this freedom was a major topic of George Washington's Farewell Address. Illegal religion was a major cause of the 1890–1891 Ghost Dance War. Starting in 1918, nearly all of the pacifist Hutterites emigrated to Canada when Joseph and Michael Hofer died following torture at Fort Leavenworth for conscientious objection to the draft. Some have since returned, but most Hutterites remain in Canada.

The long-term trend has been towards increasing secularization of the government. The remaining state churches were disestablished in 1820 and teacher-led public school prayer was abolished in 1962, but the military chaplaincy remains to the present day. Although most Supreme Court rulings have been accommodationist towards religion, in recent years there have been attempts to replace the freedom of religion with the more limited freedom of worship. Although the freedom of religion includes some form of recognition to the individual conscience of each citizen with the possibility of conscientious objection to law or policy, the freedom of worship does not.

Controversies surrounding the freedom of religion in the US have included building places of worship, compulsory speech, prohibited counseling, compulsory consumerism, workplace, marriage and the family, the choosing of religious leaders, circumcision of male infants, dress, education, oaths, praying for sick people, medical care, use of government lands sacred to Native Americans, the protection of graves, the bodily use of sacred substances, mass incarceration of clergy, both animal slaughter for meat and the use of living animals, and accommodations for employees, prisoners, and military personnel.

Fifth Amendment

The Takings Clause
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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.


  1. ^ Colby, Thomas B.; Smith, Peter J. (2009). "LIVING ORIGINALISM". Duke Law Journal. 59 (2): 239–307. JSTOR 20684805.
  2. ^ Kellogg, Frederic Rogers (2007). Oliver Wendell Holmes, Jr., legal theory, and judicial restraint. Cambridge University Press. p. 5. ISBN 9780521866507.
  3. ^ Breyer, Stephen (2005). Active Liberty: Interpreting Our Democratic Constitution. Knopf Doubleday Publishing Group. p. 85. ISBN 0-307-26313-4.
  4. ^ De Hart, Jane Sherron (2018). Ruth Bader Ginsburg : a life. New York: Alfred A. Knopf (Penguin Random House LLC). p. 536. ISBN 9781400040483. Valuing precedent, along with judicial constraint, fidelity to constitutional design, and attention to history and context, Ginsburg has fashioned a distinctive approach to jurisprudence that is hard to label. She is certainly not an originalist in the Scalia-Thomas-Gorsuch mode. Yet her treatment of the Reconstruction Amendments in her Shelby dissent demonstrated that she can adopt the originalism approach of close textual analysis, seeking the original meaning of specific constitutional provisions. Nor can she be described as a liberal activist in the Brennan mode, although her equal protection jurisprudence thrust her into the liberal category. As President Clinton said upon her nomination, Ginsburg “cannot be called a liberal or a conservative. She has proved herself too thoughtful for such labels.” The justice, too, has generally avoided them.
  5. ^ Gerston, Larry N. (2007). American Federalism: A Concise Introduction. M.E. Sharpe, Inc. p. 5. ISBN 978-0-7656-1671-5.
  6. ^ Gerston at 40.
  7. ^ Andrzej Rapczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 Sup. Ct. Rev. 380
  8. ^ Id. at 391.
  9. ^ Gerston at 5-6.
  10. ^ Gerston at 40-45.
  11. ^ Barnett, Randy E.; Blackman, Josh. Constitutional law : cases in context (Third ed.). New York. pp. 516–518. ISBN 978-1-4548-9707-1.
  12. ^ From INS v. Chadha, 462 U.S. 919 (1983).
  13. ^ Epstein, Lee; Walker, Thomas G. (2017). Constitutional Law for a Changing America: A Short Course. CQ Press. pp. 59–60.
  14. ^ Epstein & Walker at 60-61.
  15. ^ Epstein & Walker at 62.
  16. ^ Jefferson, Thomas (January 1, 1802). "Jefferson's Letter to the Danbury Baptists". U.S. Library of Congress. Retrieved November 30, 2006.
  17. ^ "The State Becomes the Church: Jefferson and Madison". U.S. Library of Congress. Retrieved February 17, 2015.

See also