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USA > US Constitution > The 2002 Edition


Fifty years ago, Professor Edward S. Corwin wrote an introduction to this treatise thatbroadly explored then existent trends of constitutional adjudication. In some respects – the lawof federalism, the withdrawal of judicial supervision of economic regulation, the continued expansion of presidential power and the consequent overshadowing of Congress – he has beenconfirmed in his evaluations. But, in other respects, entire new vistas of fundamental law ofwhich he was largely unaware have opened up. Brown v. Board of Education was but twoTerms of the Court away, and the revolution in race relations brought about by all threebranches of the federal government could have been only dimly perceived. The apportionment-districting decisions were still blanketed in time; abortion as a constitutionally protected libertywas unheralded. The Supreme Court’s application of many provisions of the Bill of Rights tothe States was then nascent, and few could anticipate that the expanded meaning and application of these Amendments would prove revolutionary. Fifty years has also exposed the ebb andflow of constitutional law, from the liberal activism of the 1960s and 1970s to a more recentposture of judicial restraint or even conservative activism. Throughout this period of change,however, certain movements, notably expansion of the protection of speech and press, continuedapace despite ideological shifts.

This brief survey is primarily a suggestive review of the Court’s treatment of the doctrinesof constitutional law over the last fifty years, with a closer focus on issues that have arisensince the last volume of this treatise was published ten years ago. For instance, in previouseditions we noted the rise of federalism concerns, but only in the last decade has the strengthof the Court’s deference toward states become apparent. Conversely, in this treatise as well asin previous ones, we note the rise of the equal protection clause as a central concept of constitutional jurisprudence in the period 1952-1982. Although that rise has somewhat abated in recentyears, the clause remains one of the predominant sources of constitutional constraints upon theFederal Government and the States. Similarly, the due process clauses of the Fifth and Fourteenth Amendments, recently slowed in their expansion, remain significant both in terms ofprocedural protections for civil and criminal litigants and in terms of the application of substantive due process to personal liberties.


Issues relating to national federalism as a doctrine have proved to be far more pervasiveand encompassing than it was possible to anticipate in 1952. In some respects, of course, latercases only confirmed those decisions already on the books. The foremost example of this confirmation has been the enlargement of congressional power under the commerce clause. Theexpansive reading of that clause’s authorization to Congress to reach many local incidents ofbusiness and production was already apparent by 1952. Despite the abundance of new legislation under this power during the 1960s to 1980s, the doctrine itself was scarcely enlarged beyond the limits of that earlier period. Under the commerce clause, Congress can assert legislative jurisdiction on the basis of movement over a state boundary, whether antecedent or subsequent to the point of regulation; can regulate other elements touching upon those transactions,such as instruments of transportation; or can legislate solely upon the premise that certaintransactions by their nature alone or as part of a class sufficiently affect interstate commerceas to warrant national regulation. Civil rights laws touching public accommodations and housing, environmental laws affecting land use regulation, criminal laws, and employment regulations touching health and safety are only the leading examples of enhanced federal activityunder this authority.

Over the last decade, however, the Court has established limits on the seemingly irrevocable expansion of the commerce power. While the Court has declined to overrule even itsmost expansive rulings regarding “effects” on commerce, it has recently limited the exercise ofhad a nontrivial or “substantial” affect on commerce (although regulation of non-economic activity would still be allowed if it is an essential part of a larger economic regulatory scheme).The Court also seems far less likely to defer to Congressional findings of the existence of aneconomic effect. The relevant cases arose in an area of traditional state concern – the regulation of criminal activity – and the new doctrine resulted in the invalidation of recently-passedfederal laws, including a ban on gun possession in schools and the provision of civil remediesto compensate gender-motivated violence.

The exercise of authority over commerce by the states, on the other hand, has over thelast fifty years been greatly restricted by federal statutes and a broad doctrine of federal preemption, increasingly resulting in the setting of national standards. Only under Chief JusticeBurger and Chief Justice Rehnquist was the Court not so readily prepared to favor preemption,especially in the area of labor-management relations. The Court did briefly inhibit federal regulation with respect to the States’ own employees, but this decision failed to secure a stableplace in the doctrine of federalism, being overruled in less than a decade. Also noteworthy hasbeen a rather strict application of the negative aspect of the commerce clause to restrain stateactions that either discriminate against or too much inhibit interstate commerce.

Much of the same trend toward national standards has resulted from application of theBill of Rights to the States through the due process clause of the Fourteenth Amendment, amatter dealt with in greater detail below. The Court has again and again held that when aprovision of the Bill of Rights is applied, it means the same whether a State or the FederalGovernment is the challenged party (although a small but consistent minority has argued otherwise). Some flexibility, however, has been afforded the States by the judicial loosening of thestandards of some of these provisions, as in the characteristics of the jury trial requirement.Adoption of the exclusionary rule in Fourth Amendment and other cases also looked to a national standard, but the more recent disparagement of the rule by majorities of the Court hasrelaxed its application to both States and Nation.

While the Tenth Amendment would appear to represent one of the most clear statementsof a federalist principle in the Constitution, it has historically had a relatively insignificant rolein limiting federal powers. Although the Court briefly interpreted the Tenth Amendment in the1970s substantively to protect certain “core” state functions from generally applicable laws, thisdistinction soon proved unworkable, and was overruled a decade late. More recently, the Courtreserved the question as to whether a law regulating only state activities would be constitutionally suspect, although a workable test for this distinction has not yet been articulated.However, limits on the process by which the federal government regulates the states, developedover the most recent decade, have proved more resilient. This becomes important when theCongress is unsatisfied with the most common methods of influencing state regulations – grantconditions or conditional imposition of federal regulations (states being given the opportunityto avoid such regulation by effectuating their own regulatory schemes). Only in those caseswhere the Congress attempts to directly “commandeer” state legislatures or executive branchofficials, i.e. ordering states to legislate or execute federal laws, has the Tenth Amendmentserved as an effective bar.

The concept of state sovereign immunity from citizen suits has also been infused with newpotency over the last decade, while exposing deep theoretical differences between the Justices.To four of the Justices, state sovereign immunity is limited to the textual restriction articulatedin the Eleventh Amendment, which prevents citizens of one state from bringing a federal suitagainst another state. To five Justices, however, the Eleventh Amendment was merely a technical correction made by Congress after an erroneous approval by the Court of a citizen-statediversity suit in Chisholm v. Georgia. These justices prefer the reasoning of the post-EleventhAmendment case of Hans v. Louisiana, which, using non-textual precepts of federalism, dismissed a constitutionally-based suit against a state by its own citizens. The true significanceof this latter case was not realized until 1992 in Seminole Tribe of Florida v. Florida, wherethe Court made clear that suits by citizens against states brought under federal statutes alsocould not stand, at least if the statutes were based on Congress’s Article I powers. The “fundamental postulate” of deference to the “dignity” of state sovereignty was also the basis for theCourt’s recent decisions to prohibit federal claims by citizens against states in either a state’sown courts or federal agencies.

The Court has ruled that Congress can abrogate state sovereign immunity under section5 of the Fourteenth Amendment. The Court, however, has also recently shown a significantlack of deference to Congress regarding this Civil War era power, requiring a showing of “congruence and proportionality” between the alleged harm to constitutional rights and the legislative remedy. Thus, states have been found to remain immune from federal damage suits forsuch issues as disability discrimination or patent infringement, while the Congress has beenfound to be without any power to protect religious institutions from the application of generallyapplicable state laws. Further, where Congress attempted to create a federal private right ofaction for victims of gender-related violence, alleging discriminatory treatment of these casesby the state, the Court also found that Congress exceeded its mandate, as the enforcementpower of the 14th Amendment can only be applied against state discrimination. In all thesecase, the Court found that Congress had not sufficiently identified patterns of unconstitutionalconduct by the States.

The overriding view of the present Court is that where it has discretion, even absent constitutional mandate, it will apply federalism concerns to limit federal powers. For instance, theequity powers of the federal courts to interfere in ongoing state court proceedings and to reviewstate court criminal convictions under habeas corpus have been curtailed, invoking a doctrineof comity and prudential restraint. But the critical fact, the scope of congressional power toregulate private activity, remains: the limits on congressional power under the commerceclause and other Article I powers, as well as under the power to enforce the ReconstructionAmendments, remain principally those of congressional self-restraint.


For much of the latter half of the 20th century, aggregation of national power in the presidency continued unabated. The trend was not much resisted by congressional majorities, which,indeed, continued to delegate power to the Executive Branch and to the independent agenciesat least to the same degree or greater than before. The President himself assumed the existence of a substantial reservoir of inherent power to effectuate his policies, most notably in thefield of foreign affairs and national defense. Only in the wake of the Watergate affair did Congress move to assert itself and to attempt to claim some form of partnership with the President. This is most notable with respect to war powers and the declaration of national emergencies, but is also true for domestic presidential concerns, as in the controversy over the powerof the President to impound appropriated funds.

Perhaps coincidentally, the Supreme Court during the same period effected a strong judicial interest in the adjudication of separation-of-powers controversies. Previously, despite itsuse of separation-of-powers language, the Court did little to involve itself in actual controversies, save perhaps the Myers and Humphrey litigations over the President’s power to removeexecutive branch officials. But that restraint evaporated in 1976. Since then there have beenseveral Court decisions in this area, although in Buckley v. Valeo and subsequent cases theCourt appeared to cast the judicial perspective favorably upon presidential prerogative. Inother cases statutory construction was utilized to preserve the President’s discretion. Only veryrecently has the Court evolved an arguably consistent standard in this area, a two-prongedstandard of aggrandizement and impairment, but the results still are cast in terms of executivepreeminence.

The larger conflict has been political, and the Court resisted many efforts to involve it inlitigation over the use of troops in Vietnam. In the context of treaty termination, the Courtcame close to declaring the resurgence of the political question doctrine to all such executive-congressional disputes. Nevertheless, a significant congressional interest in achieving a newand different balance between the political branches appears to have survived cessation of theVietnam conflict. Future congressional assertion of this interest may well involve the judiciaryto a much greater extent, and, in any event, the congressional branch is not without effectiveweapons of its own in this regard.


The Court’s practice of overturning economic legislation under principles of substantive dueprocess in order to protect “property” was already in sharp decline when Professor Corwinwrote his introduction in the 1950s. In a few isolated cases, however, especially regarding theobligation of contracts clause and perhaps the expansion of the regulatory takings doctrine, theCourt demonstrated that some life is left in the old doctrines. On the other hand, the word“liberty” in the due process clauses of the Fifth and Fourteenth Amendment has been seizedupon by the Court to harness substantive due process to the protection of certain personal andfamilial privacy rights, most controversially in the abortion cases.

Although the decision in Roe v. Wade seemed to foreshadow broad constitutional protections for personal activities, this has not occurred, as much due to conceptual difficulties asto ideological resistance. While early iterations of a right to “privacy” or “to be let alone”seemed to involve both the notion that certain information should be “private” and the ideathat certain personal “activities” should only be lightly regulated, the logical limits of these precepts were difficult to discern. Most recently, the Court has rejected the proposition that all“private” conduct, e.g., sexual activities between members of the same sex, is constitutionallyprotected. In effect, the privacy cases appear to have been limited to issues of marriage,procreation, contraception, family relationships, medical decision making and child rearing.

Whereas much of the Bill of Rights is directed toward prescribing the process of how governments may permissibly deprive one of life, liberty, or property – for example by judgmentof a jury of one’s peers or with evidence seized through reasonable searches – the First Amendment is by its terms both substantive and absolute. While the application of the First Amendment has never been presumed to be so absolute, the effect has often been indistinguishable.Thus, the trend over the years has been to withdraw more and more speech and “speech-plus”from the regulatory and prohibitive hand of government and to free not only speech directedto political ends but speech that is totally unrelated to any political purpose.

The constitutionalization of the law of defamation, narrowing the possibility of recovery fordamage caused by libelous and slanderous criticism of public officials, political candidates, andpublic figures, epitomizes this trend. In addition, the government’s right to proscribe the advocacy of violence or unlawful activity has become more restricted. Obscenity abstractly remainsoutside the protective confines of the First Amendment, but the Court’s changing definitionalapproach to what may be constitutionally denominated obscenity has closely confined most governmental action taken against the verbal and pictorial representation of matters dealing withsex. The association of the right to spend for political purposes with the right to associate together for political activity has meant that much governmental regulation of campaign financeand of limitations upon the political activities of citizens and public employees had become suspect if not impermissible. Commercial speech, long the outcast of the First Amendment, nowenjoys a protected if subordinate place in free speech jurisprudence. Freedom to picket, tobroadcast leaflets, and to engage in physical activity representative of one’s political, social, economic, or other views, enjoy wide though not unlimited protection.

It may be that a differently constituted Court would narrow the scope of the Amendment’sprotection and enlarge the permissible range of governmental action. But, in contrast to otherareas in which the present Court has varied from its predecessor, the record with respect tothe First Amendment has been one of substantial though uneven expansion of precedent.


Unremarked by scholars of some fifty years ago was the place of the equal protectionclause in constitutional jurisprudence – simply because at that time Holmes’ pithy characterization of it as a “last resort” argument was generally true. Subsequently, however, especiallyduring the Warren era, equal protection litigation occupied a position of almost predominantcharacter in each Term’s output. The rational basis standard of review of different treatmentsof individuals, businesses, or subjects remained of little concern to the Justices. Rather, theclause blossomed after Brown v. Board of Education, as the Court confronted state and locallaws and ordinances drawn on the basis of race. This aspect of the doctrinal use of the clauseis still very evident on the Court’s docket, though in ever new and interesting forms.

Of worthy attention has been the application of equal protection, now in a three-tier ormulti-tier set of standards of review, to legislation and other governmental action classifyingon the basis of sex, illegitimacy, and alienage. Of equal importance was the elaboration of theconcept of “fundamental” rights, so that when the government restricts one of these rights, itmust show not merely a reasonable basis for its actions but a justification based upon compelling necessity. Wealth distinctions in the criminal process, for instance, were viewed with hostility and generally invalidated. The right to vote, nowhere expressly guaranteed in the Constitution (but protected against abridgment on certain grounds in the Fifteenth, Nineteenth,and Twenty-sixth Amendments) nonetheless was found to require the invalidation of all butthe most simple voter qualifications; most barriers to ballot access by individuals and parties;and the practice of apportionment of state legislatures on any basis other than population. Recently, in the controversial decision of Bush v. Gore, the Court relied on the right to vote ineffectively ending the disputed 2000 presidential election, noting that the Florida SupremeCourt had allowed the use of non-uniform standards to evaluate challenged ballots. Althoughthe Court’s decision was of real political import, it was so limited by its own terms that it carries no doctrinal significance.

In other respects, the reconstituted Court has made some tentative rearrangements ofequal protection doctrinal developments. The suspicion-of-wealth classification was largelythough not entirely limited to the criminal process. Governmental discretion in the politicalprocess was enlarged a small degree. But the record generally is one of consolidation and maintenance of the doctrines, a refusal to go forward much but also a disinclination to retreat much.Only very recently has the Court, in decisional law largely cast in remedial terms, begun todismantle some of the structure of equal protection constraints on institutions, such as schools,prisons, state hospitals, and the like. Now, we see the beginnings of a sea change in the Court’sperspective on legislative and executive remedial action, affecting affirmative action and raceconscious steps in the electoral process, with the equal protection clause being used to cabinpolitical discretion.


Finally, criminal law and criminal procedure during the 1960s and 1970s was doctrinallyunstable. The story of the 1960s was largely one of the imposition of constitutional constraintupon federal and state criminal justice systems. Application of the Bill of Rights to the Stateswas but one aspect of this story, as the Court also constructed new teeth for these guarantees.For example, the privilege against self-incrimination was given new and effective meaning byrequiring that it be observed at the police interrogation stage and furthermore that criminalsuspects be informed of their rights under it. The right was also expanded, as was the SixthAmendment guarantee of counsel, by requiring the furnishing of counsel or at least the opportunity to consult counsel at “critical” stages of the criminal process – interrogation, preliminaryhearing, and the like – rather than only at and proximate to trial. An expanded exclusionaryrule was applied to keep material obtained in violation of the suspect’s search and seizure, self-incrimination, and other rights out of evidence.

In sentencing, substantive as well as procedural guarantees have come in and out of favor.The law of capital punishment, for instance, has followed a course of meandering development,with the Court almost doing away with it and then approving its revival by the States. Morerecently, awakened legislative interest in the sentencing process, such as providing enhancedsentences for “hate crimes,” has faltered on holdings that increasing the maximum sentencefor a crime can only be based on facts submitted to a jury, not a judge, and that such factsmust be proved beyond a reasonable doubt.

During the last two decades, however, the Court has also redrawn some of these lines. Theself-incrimination and right-to-counsel doctrines have been eroded in part (although in no respect has the Court returned to the constitutional jurisprudence prevailing before the 1960s).The exclusionary rule has been cabined and redefined in several limiting ways. Search and seizure doctrine has been revised to enlarge police powers. And, most recently, for instance, theexception for “special needs” has allowed such practices as suspicionless, random drug-testingin the workplace and at schools.

An expansion of the use of habeas corpus powers of the federal courts undergirded the1960s procedural and substantive development, thus sweeping away many jurisdictional restrictions previously imposed upon the exercise of review of state criminal convictions. Concomitantly with the narrowing of the precedents of the 1950s and 1960s Court, however, camea retraction of federal habeas powers, both by the Court and through federal legislation.


The last five decades were among the most significant in the Court’s history. They sawsome of the most sustained efforts to change the Court or its decisions or both with respectto a substantial number of issues. On only a few past occasions was the Court so centrally asubject of political debate and controversy in national life or an object of contention in presidential elections. One can doubt that the public any longer perceives the Court as an institution above political dispute, any longer believes that the answers to difficult issues in litigationbefore the Justices may be found solely in the text of the document entrusted to their keeping.Despite cases such as Roe v. Wade and Bush v. Gore, however, the Court still seems to enjoythe respect of the bar and the public generally. Its decisions are generally accorded uncoercedacquiescence, and its pronouncements are accepted as authoritative, binding constructions ofthe constitutional instrument.

Indeed, it can be argued that the disappearance of the myth of the absence of judicialchoice strengthens the Court as an institution to the degree that it explains and justifies theexercise of discretion in those areas of controversy in which the Constitution does not speakclearly or in which different sections lead to different answers. The public attitude thus established is then better enabled to understand division within the Court and within the legal profession generally, and all sides are therefore seen to be entitled to the respect accorded thesearch for answers. Although the Court’s workload has declined of late, a significant proportionof its cases are still “hard” cases; while hard cases need not make bad law they do in fact leadto division among the Justices and public controversy. Increased sophistication, then, about theCourt’s role and its methods can only redound to its benefit.

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