Constitutional Law

• Author: Jeffrey Lehman, Shirelle Phelps

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The written text of the state and federal constitutions. The body of judicial precedent that has gradually developed through a process in which courts interpret, apply, and explain the meaning of particular constitutional provisions and principles during a legal proceeding. Executive, legislative, and judicial actions that conform with the norms prescribed by a constitutional provision.

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The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in which the duties and prerogatives of the executive, legislative, and judicial branches are delineated by express constitutional provisions; a SEPARATION OF POWERS, in which the responsibilities of government are divided and shared among the coordinate branches; a reservation of power, in which the sovereignty of the federal government is qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the prerogatives of the three branches of government are restricted by constitutionally enumerated individual rights, UNENUMERATED RIGHTS derived from sources outside the text of the Constitution, and other constraints inherent in a democratic system where the ultimate source of authority for government action is the consent of the people.

In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the doctrine of STARE DECISIS, the judicial branch is required to adhere to existing precedent in all future cases presenting analogous factual and legal circumstances, unless it has a compelling reason for deviating from the precedent or overruling it.

A state or federal law is said to be constitutional when it is consistent with the text of a constitutional provision and any relevant judicial interpretations. A law that is inconsistent with either the written text or judicial interpretation of a constitutional provision is unconstitutional.

The Constitution

The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been built. By establishing a structure for the federal government and preserving certain areas of sovereignty for the states, the Constitution has created a system of government that has allowed every area of civil, criminal, and ADMINISTRATIVE LAW to evolve with the needs of society. The federal Constitution became binding on the U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state to vote for ratification.

The federal Constitution comprises seven articles and 26 amendments. Articles I, II, and III set forth the basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets forth the presidential executive powers, and Article III establishes federal judicial powers. The first ten amendments to the U.S. Constitution, known as the BILL OF RIGHTS, enumerate certain individual liberties that must be protected against government infringement. The rest of the Constitution contains miscellaneous other provisions, many of which are intended to maintain a federalist system of government in which the federal Constitution is the supreme law of the land and the federal government shares sovereignty with the states.

Article I: The Lawmaking Power Article I of the Constitution allocates the lawmaking power to Congress. Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a CONGRESS OF THE UNITED STATES, which shall consist of a Senate and a House of Representatives." Article I also requires that candidates running for the House of Representatives be elected directly by the residents of each state. Originally, Article I endowed the state legislatures with the power to choose members of the Senate. However, the SEVENTEENTH AMENDMENT now requires all senators to be elected directly by the people of their home state.

Section 8 enumerates specific lawmaking powers that Congress may exercise. These include the power to declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and coin money; establish and collect taxes; pay debts; establish uniform laws for immigration, naturalization, and BANKRUPTCY; and provide for the common defense and GENERAL WELFARE of the United States. Both the Senate and the House must approve all bills before they are submitted to the president. If the president vetoes a bill, Section 7 authorizes Congress to override the VETO by a two-thirds vote in both houses. Because Congress is a public body, this article requires the House and Senate to record and publish its proceedings, including the votes made by any of its members.

Section 8 also grants Congress the power to pass all laws that are "necessary and proper" to the performance of its legislative function. In MCCULLOCH V. MARYLAND, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the Supreme Court broadly interpreted the NECESSARY AND PROPER CLAUSE to grant Congress the implied powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and fiscal responsibilities. THOMAS JEFFERSON had earlier

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argued that the Necessary and Proper Clause authorized Congress only to enact measures that are indispensable to the implementation of the enumerated powers.

Congress frequently relies on its authority to regulate commerce as a justification for the legislation it enacts. Section 8 gives Congress the "power to regulate commerce among the several states." In GIBBONS V. OGDEN, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme Court ruled that congressional power to regulate commerce is plenary (complete in itself) and extends to all interstate commerce (commercial activity that concerns more than one state). The Court said that intrastate commerce (commercial activity that is conducted exclusively within one state) is beyond the reach of this congressional power.

Congressional commerce power reached its zenith in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942), where the Supreme Court ruled that Congress has authority to regulate a family farm that produces and consumes its own wheat. The Court said that "even if [a farm's] activity be local, and though it may not be regarded as commerce, it may still ? be reached by Congress, if it exerts a substantial economic effect on interstate commerce ? irrespective of whether such effect [is] direct or indirect."

This seemingly unfettered power was later limited, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), where the Supreme Court ruled that mere possession of a gun at or near a school does not substantially affect interstate commerce and may not be regulated at the federal level. Although the interstate commerce power has been given an expansive reading in modern times, the Court said in Lopez, the scope of congressional authority in this area

must be considered in light of our dual system of [state and federal] government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.

Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to take certain action. Section 9, for example, prohibits Congress from passing bills of attainder and EX POST FACTO LAWS. (A bill of attainder is a legislative act that imposes punishment on a party without the benefit of a judicial proceeding. An ex post facto law makes criminal or punishes conduct that was not illegal at the time it occurred.) Section 9 further prohibits Congress from suspending HABEAS CORPUS (a citizen's right to protection against illegal imprisonment) except as may be necessary to preserve national security in time of rebellion or invasion. Although the Constitution delegated this power to Congress, President ABRAHAM LINCOLN suspended habeas corpus during the Civil War without congressional assent. Article I also restricts the power of state legislatures, such as the power to make treaties, alliances, and confederations, are also prohibited by Article I.

Article II: The Executive Power Congressional power is not absolute. The Framers of the Constitution were familiar with the abuses of absolute power. In the century preceding the American Revolution, Parliament acquired unlimited sovereignty. This arrangement replaced an earlier system of government in which the English monarchy ruled with a tyrannical scepter. In the United States, the Framers sought to create a system of checks and balances in which the executive and legislative branches would share power with each other and with the judiciary. In this light, many of the powers delegated to the president must be viewed in conjunction with the powers delegated to the coordinate branches of government.

Article II provides that "[t]he executive Power shall be vested in a President of the United States ? [who] shall hold ? Office during the Term of four Years ? together with the Vice President." The ELECTORAL COLLEGE, which provides the method by which the president and vice president are elected, derives its constitutional authority from Article II as well as from the Twelfth and Twenty-third Amendments. The TWENTY-SECOND AMENDMENT limits the president to two terms in office, and the Twentieth and Twenty-fifth Amendments set forth the order of succession for presidents who are unable to begin their term or continue in office.

Article II, Section 2, makes the...