Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P15 pdf

The federal, or larger, government is then a limited government that cedes many decision-making responsibilities— including, for example, the creation of most criminal and civil laws, mu

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The Constitution, with its separation of powers and checks and balances, provided just such “auxiliary precautions” to be used in controlling government

The Constitution is also guided by the concept of federalism in the way that it constructs the U.S government Federalism is

a system in which smaller political entities—

such as states, counties, cities, and localities—

are united in a larger political organization

Federalism intends to protect the liberties of people in these smaller political units by providing them with a great degree of freedom

in governing themselves The federal, or larger, government is then a limited government that cedes many decision-making responsibilities— including, for example, the creation of most criminal and civil laws, municipal codes, regulations for administering school districts, and the like—to states and localities, while

Constitutional Convention of 1787

T

B

he Constitutional Convention of 1787 is a high

point in the history of the United States This

remarkable assemblage of men, meeting in

Philadel-phia between May 23 and September 17, 1787,

created the document that has given the United

States one of the most stable and admired

constitu-tional democracies in the history of the world

Fifty-five delegates from 12 states attended various

parts of the convention Drawn from the educated and

wealthy elite of the country, they included such

luminaries as George Washington, the commander of

American forces in the War of Independence, who

presided over the convention, and Benjamin Franklin, at

81 the oldest delegate and the country’s most famous

statesman A majority of the delegates were lawyers,

and many, such as James Madison, were wealthy

landowners Many notable leaders of the time,

however, including Thomas Jefferson, who was in

France, and Patrick Henry, did not attend

The meetings of the convention were closed to

the public and to the press Thus, behind closed

doors, the delegates hammered out the eventual

form of U.S government The agreements reached

during the convention exemplified the values of

constitutional government In an atmosphere that

combined competitive, lively debate with tolerance

and respect for differences of opinion, the

dele-gates reached vital compromises on matters that

threatened to divide the still loosely connected

union of states Many different factions opposed

one another—small states versus large states,

farmers versus businesspeople, North versus South,

and slave states versus nonslave states

The Constitutional Convention occurred in three

separate phases The first, from May 23 to July 26,

created the basic features of the national govern-ment, including its division into legislative, execu-tive, and judicial branches During this phase, delegates also arrived at one important compro-mise between the interests of large and small states That compromise created a bicameral, or two-chamber, legislature, composed of the House

of Representatives and the Senate During the second phase of the convention, from July 27 to August 6, the five-man Committee of Detail created

a rough draft of the Constitution In the third phase, which lasted from August 6 to September 6, the delegates debated remaining sticking points, par-ticularly relating to the executive branch and the means of electing a president Eventually, they settled on the electoral college suggested by Benjamin Franklin

On September 17, 39 of the 42 delegates present signed the Constitution Gouverneur Morris, coau-thor of the New York State Constitution and a key delegate, summed up the significance of the Constitution that the convention had created when, after affixing his signature to it, he uttered these words:“The moment this plan goes forth, all other considerations will be laid aside and the great question will be: Shall there be a national govern-ment or not? And this must take place or a general anarchy will be the alternative.”

FURTHER READINGS Rossiter, Clinton 1966 1787: The Grand Convention Reprint, New York: Norton, 1987.

Scott, James Brown 2001 James Madison ’s Notes of Debates

in the Federal Convention of 1787 and their Relation to a More Perfect Society of Nations Union, N.J.: Lawbook Exchange.

128 CONSTITUTION OF THE UNITED STATES

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leaving itself other responsibilities In short,

federalism is a partnership in which a central

government shares authority and power with

regional or local governments

The U.S Constitution gives the federal

government—made up of the executive,

legisla-tive, and judicial branches—power to make

decisions regarding such issues as war, national

defense, and trade with foreign countries The

federal government also retains the right to

overrule laws or decisions of lower units of

government when they are in violation of the

Constitution Thus, for example, the federal

government took on responsibilities in the

oversight of local school districts after the

Supreme Court, inBROWN V.BOARD OF EDUCATION,

347 U.S 483, 74 S Ct 686, 98 L Ed 873 (1954),

ruled that segregating children in different public

schools by race violated the EQUAL PROTECTION

Clause of the FOURTEENTH AMENDMENT to the

Constitution, which says,“No State shall … deny

to any person… the equal protection of the laws.”

FURTHER READINGS

The Constitution Party Web site Available online at http://

www.constitutionparty.com (accessed July 15, 2009).

Lieb, David A “Constitution Party Claims Inroads, Despite

Loss ” Associated Press Available online at http://

abcnews.go.com/Politics/comments?type=story&id=

6227351; website home page: http://abcnews.go.com

(accessed August 30, 2009).

Lucier, James P 2000 “Phillips Leads the Way for

Constitutionalists ” News World Communications, Inc.

Insight on the News (Sept 25).

CROSS REFERENCES

Democratic Party; Elections; Republican Party; Roe v Wade.

CONSTITUTIONAL

That which is consistent with or dependent upon

the fundamental law that defines and establishes

government in society and basic principles to which society is to conform

A law is constitutional when it does not violate any provision of the U.S Constitution or any state constitution

CONSTITUTIONAL AMENDMENT The means by which an alteration to the U.S

Constitution, whether a modification, deletion, or addition, is accomplished

Article V of the U.S Constitution establishes the means for amending that document according to a two-step procedure: proposal of amendments, followed by ratification Amend-ments may be proposed in two ways: by a two-thirds vote of both houses of Congress or by a special convention summoned by Congress on the petition of two-thirds (34) of the state legislatures

In the long history of the U.S Constitution, more than 5,000 amendments have been intro-duced in Congress Only 33 of these have been formally proposed by Congress, and none has ever been proposed by a special convention

No matter which method is used for the proposal of a constitutional amendment, Con-gress retains the power to decide what method will be used for ratification: approval of three-fourths (38) of the state legislatures, or approval

of three-fourths (38) of special state conven-tions Congress may also place other restrictions, such as a limited time frame, on ratification

Of the 33 amendments proposed by Con-gress, 27 were ratified Of the amendments ratified, only one—theTWENTY-FIRST AMENDMENT, which repealed a prohibition on alcohol—was ratified by the state convention method The rest have been ratified by three-fourths of the state legislatures

The process for amending the Constitution

is deliberately difficult Even when an amend-ment is proposed by Congress, it has taken, on average, two-and-a-half years for it to be ratified That difficulty creates stability, with its accompanying advantages and disadvantages

The advantages lie in the fact that the Constitution’s provisions are not subject to change according to the whims of a particular moment The disadvantages inhere in the reality that the Constitution must also adapt and be relevant to a changing society Given the difficulty of amendment, much of the burden

CONSTITUTIONAL AMENDMENT 131

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of adapting the Constitution to a changing world has fallen on the shoulders of the Supreme Court and its powers of JUDICIAL REVIEW, which have been described as an informal method of changing the Constitution

However, constitutional amendments may in turn modify or overturn judicial opinion, as was the case with the Eleventh, Thirteenth, Four-teenth, SixFour-teenth, NineFour-teenth, Twenty-fourth, and Twenty-sixth Amendments

Commentators have also pointed out that the amendment process is not a very democratic one As the constitutional scholar EDWARD

S.CORWIN wrote:“A proposed amendment can

be added to the Constitution by thirty-eight states containing considerably less than half of the population of the country, or can be defeated

by thirteen states containing less than one-twentieth of the population of the country.”

Brief History of Constitutional Amendments

Before the creation of the U.S Constitution in

1787, constitutional amendments had already been instituted as part of several early state constitutions The pioneering framers of these state constitutions recognized the need to incorporate an element of flexibility into

CONSTITUTIONAL LAW, and they provided for constitutional amendment through the legisla-ture or through special conventions However, the first national CONSTITUTION OF THE UNITED STATES, the ARTICLES OF CONFEDERATION, did not have such flexibility Amendment of that docu-ment required a unanimous vote of Congress, nearly impossible to achieve

The Framers of the U.S Constitution sought

to avoid the inflexibility of the Articles of Confederation JAMES MADISON, one of the principle architects of the Constitution, argued

in The Federalist Papers that the new compact’s amendment procedures, unlike those of the old Articles, protected“equally against that extreme facility, which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults.”

Proving the truth of Madison’s contention, the first ten amendments to the Constitution were passed as a package by the first session of Congress in 1791 This group of amendments is called the BILL OF RIGHTS The Bill of Rights fulfilled a promise that the backers of the Constitution, known as the Federalists, had

made during the ratification procedure of the Constitution It guarantees specific liberties relating to (1) rights of conscience, including the freedoms of speech, press, RELIGION, and peaceable assembly (FIRST AMENDMENT); (2) rights

of the accused, including freedom from “unrea-sonable searches and seizures” (FOURTH AMEND-MENT), freedom from compulsory SELF- INCRIMI-NATION(FIFTH AMENDMENT), the“right to a speedy and public trial, by an impartial jury” and with legal counsel (SIXTH AMENDMENT), and freedom from “excessive bail” and “cruel and unusual punishments” (EIGHTH AMENDMENT); and (3) rights of property, including freedom from seizure of property without “due process of law” (Fifth Amendment)

Subsequent amendments have dealt with many different issues, including the extent of federal judicial jurisdiction (ELEVENTH AMEND-MENT [1795]), the method of electing the president (TWELFTH AMENDMENT [1804]), the abolition of SLAVERY (THIRTEENTH AMENDMENT

[1865]), legalization of theINCOME TAX(SIXTEENTH AMENDMENT[1913]), granting women the right to vote (NINETEENTH AMENDMENT[1920]), presidential succession (TWENTY-FIFTH AMENDMENT [1967]), and the voting age (TWENTY-SIXTH AMENDMENT

[1971])

The FOURTEENTH AMENDMENT (1868), which holds that no state shall“deprive any person of life, liberty, or property, withoutDUE PROCESS OF LAW; nor deny to any person … the EQUAL PROTECTION of the laws,” has arguably been the most important and far-reaching of all the amendments, particularly with regard to its Due Process and Equal Protection Clauses Through the Fourteenth Amendment, most of the provisions of the Bill of Rights were eventually applied to the states

In 1972 theEQUAL RIGHTS AMENDMENT(ERA) was formally proposed by Congress The ERA, which would have forbidden discrimination on the basis of sex, failed to gain ratification within the seven-year deadline proposed by Congress, even after a 39-month extension through June 30, 1982

FURTHER READINGS Amar, Akhil R 2000 The Bill of Rights: Creation and Reconstruction New Haven, Conn.: Yale Univ Press Antieau, Chester James 1995 A U.S Constitution for the Year 2000 Chicago: Loyola.

Corwin, Edward S 1978 “Article V.” In The Constitution and What It Means Today 14th rev ed Harold

132 CONSTITUTIONAL AMENDMENT

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W Chase and Craig R Ducat, eds Princeton, NJ:

Princeton Univ Press.

Gilbert, Robert E., ed 2000 Managing Crisis: Presidential

Disability and the Twenty-fifth Amendment Bronx,

N.Y.: Fordham Univ Press.

Gonzalez, Carlos E 2002 “Popular Sovereign Versus

Government Institution Generated Constitutional

Norms: When Does a Constitutional Amendment

Not Amend the Constitution?” Washington Univ Law

Quarterly 80 (spring).

Harrigan, John J 1984 Politics and the American Future.

Reading, MA: Addison-Wesley.

Hunt, Bernice Kohn 1974 The Spirit and the Letter: The

Struggle for Rights in America New York: Viking.

Palmer, Kris E., ed 2000 Constitutional Amendments, 1789

to the Present Detroit: Gale Group.

Strauss, David A 2001 “The Irrelevance of Constitutional

Amendments ” Harvard Law Review 114 (March).

Vile, John R 2003 Encyclopedia of Constitutional

Amend-ments, Proposed AmendAmend-ments, and Amending Issues,

1789–2002 2d ed Denver, CO: ABC-CLIO.

CROSS REFERENCE

Constitution of the United States.

CONSTITUTIONAL LAW

Constitutional law is the written text of the state

and federal constitutions It includes the body of

judicial precedent that has gradually developed

through a process in which courts interpret, apply,

and explain the meaning of particular

constitu-tional provisions and principles during a legal

proceeding Executive, legislative, and judicial

actions that conform to the norms prescribed by

a constitutional provision are also included

The text of the U.S Constitution is marked

by four characteristics: a delegation of power, in

which the duties and prerogatives of the

execu-tive, legislaexecu-tive, and judicial branches are

delin-eated by express constitutional provisions; a

SEPARATION OF POWERS, in which the

responsibili-ties of government are divided and shared among

the coordinate branches; a reservation of power,

in which the sovereignty of the federal

govern-ment 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

RIGHTSderived from sources outside the text of

the Constitution, and other constraints inherent

in a democratic system in which 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 circum-stances, 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 all relevant judicial interpretations A law that is inconsis-tent 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 Constitu-tion 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 bind-ing 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 theBILL OF RIGHTS, enumerate certain individual liberties that must be protected against govern-ment infringegovern-ment 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

CONSTITUTIONAL LAW 133

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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 sena-tors 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 Con-gress 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 responsibili-ties.THOMAS JEFFERSONhad earlier argued that the necessary and proper clause authorized Con-gress only to enact measures that are indispens-able 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 regu-late commerce is plenary (complete in itself) and extends to all interstate commerce (com-mercial activity that concerns more than one state) The Court said that intrastate commerce (commercial activity that is conducted exclu-sively 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 punish-ment 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 suspendingHABEAS 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 congressio-nal assent Article I also restricts the power of state legislatures, such as the power to make treaties, alliances, and confederations

Article II: The Executive Power Congres-sional power is not absolute The Framers of

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the Constitution were familiar with the abuses

of absolute power In the century preceding the

American Revolution, the English Parliament

acquired unlimited sovereignty This

arrange-ment replaced an earlier system of governarrange-ment

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

pro-vides 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 president the

commander in chief of the armed forces But

only Congress has the power to declare war

Between these two powers lies a gray area

in which presidents have exercised the

preroga-tive to commit U.S troops to foreign military

excursions without congressional approval The

U.S involvement in the VIETNAM WAR resulted

from one such exercise of power In response to

these executive maneuvers, Congress passed the

War Powers Resolution (Pub L No 93-148

[codified at 50 U.S.C.A §§ 1541 et seq.]), which

restricts the president’s authority to involve the

United States in foreign hostilities for more than

60 days without the approval of Congress

The president also shares power with

Congress in other areas under Article II Section

2 authorizes the president to make treaties with

foreign governments, but only with theADVICE

AND CONSENTof the Senate The president must

also seek senatorial approval when appointing

ambassadors; federal judges, including Supreme

Court justices; and other public ministers

Section 4 states that the president may be

removed from office only throughIMPEACHMENT

for“Treason,BRIBERY, or other High Crimes and Misdemeanors.” The House is responsible for draftingARTICLES OF IMPEACHMENT(accusations of misconduct), and the Senate is responsible for holding an impeachment trial A two-thirds vote in the Senate is required for conviction

The United States revisited the issue of what constitutes a High Crime and Misdemeanor during the impeachment proceedings against PresidentWILLIAM JEFFERSON CLINTON In 1998 the U.S House of Representatives approved two articles of impeachment against President Clinton, accusing the president of having committed the crimes of perjury and OBSTRUC-TION OF JUSTICE to conceal his relationship with White House intern Monica Lewinsky

The impeachment trial was then held before the Senate from January 7, 1999, through February 12, 1999

Clinton supporters generally opposed im-peachment on grounds that concealing a private, extramarital affair should not constitute

an impeachable high crime or misdemeanor

Clinton detractors generally supported impeach-ment on grounds that perjury and obstruction

of justice are felony-level offenses that render a chief executive who is guilty of such offenses incompetent to discharge the duties of his office Clinton supporters contended that past presidents had concealed their extramarital affairs without it rising to the level of an impeachable offense, and Clinton detractors countered by arguing that the president was not being impeached for having an extra-marital affair but for committing crimes to conceal it

Scholars debated the merits of the Clinton impeachment proceedings as well However, constitutional historians on both sides of the debate generally agreed that the phrase High Crimes and Misdemeanors had no settled usage

at the time the Constitution was ratified by the states, except that the Founding Fathers rejected proposals that would have allowed for impeach-ment in cases of maladministration, malpractice,

or neglect of duty The Founding Fathers favored

a chief executive who was subject to constitu-tional checks and balances, but not one who was weak and easy to remove by political opponents

In the end, the Senate voted to acquit President Clinton Neither article of impeachment was supported by even a majority of votes, far short

of the 67 votes required to convict

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Although the president participates in the lawmaking process by preparing budgets for congressional review, recommending legislation

on certain subjects, and signing and vetoing bills passed by both houses, no formal lawmaking powers are specifically delegated to the EXECU-TIVE BRANCH The president nonetheless “legis-lates” by issuing executive orders, decrees, and proclamations No express provision of the Constitution delineates the parameters of this executive lawmaking power However, in Youngstown Sheet & Tube Co v Sawyer, 343 U.S 579, 72 S Ct 863, 96 L Ed 1153 (1952), the Supreme Court set forth some guidelines

Known as the Steel Seizure case, Youngstown examined the issue of whether the president of the United States could order the government seizure of steel mills that were crippled by a labor strike during the KOREAN WAR In holding the EXECUTIVE ORDER unconstitutional, the Su-preme Court ruled that“the President’s power

to see that the laws are faithfully executed refutes the idea that [the president] is to be a lawmaker.”

Justice ROBERT H JACKSON, in a concurring opinion, set forth an analysis by which the Supreme Court has subsequently evaluated the constitutionality of presidential action Jackson opined that PRESIDENTIAL POWERS are not fixed, but fluctuate according to“their disjunction or conjunction with those of Congress.” When the president acts pursuant to congressional autho-rization, the action carries maximum authority

When the executive acts contrary to congressio-nal will, presidential powers are at their lowest ebb Between these positions, when a president faces an issue on which Congress is silent, the executive acts in “a zone of twilight in which [the president] and Congress may have concur-rent authority, or in which the distribution is uncertain.” In such instances, Jackson reasoned, courts must balance the interests of the parties and of society to determine if a particular executive action has violated the separation of powers

Another area that has stirred debate over the appropriate separation of powers involves the delegation of legislative, executive, and judicial authority to federal administrative bodies Since the mid-1930s, the United States has seen an enormous growth in the administrative state

Administrative agencies have been created to establish, evaluate, and apply rules and policies over a diverse area of law, including taxes,

SECURITIES, transportation, antitrust, the envi-ronment, and employment relations Federal administrative bodies are created by statute, and Congress has the authority to prescribe the qualifications for administrative officials who are appointed by the president, courts of law, and heads of government departments TheNATIONAL LABOR RELATIONS BOARD(NLRB) demonstrates the overlapping powers that may

be exercised by an administrative body The NLRB is empowered by statute to issue regula-tions that govern union activities Such re-gulations are virtually indistinguishable from legislative enactments and are considered no less authoritative The NLRB also adjudicates disputes between unions and employers, with

an administrative law judge presiding over such cases Finally, the NLRB is endowed with the power to make prosecutorial decisions, a power traditionally exercised by the executive branch Although successful challenges have been lodged against the delegation of certain powers

to federal administrative bodies, by and large, the Supreme Court has permitted administra-tive officials and agencies to play all three government roles

Article III: The Judicial Power Article III provides that“[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Pursuant to this constitutional authorization, Congress has created a federal judicial system comprising a lower tier of federal trial courts, known as the U.S district courts, and an intermediate tier of federal appellate courts, known as theU.S.COURTS OF APPEALS At least one federal district court is located in each of the

50 states

The federal appellate courts consist of 11 numbered circuit courts plus the Court of Appeals for the District of Columbia and the Court of Appeals for the Federal Circuit Each federal appellate court has jurisdiction over a certain geographic area and may only hear appeals from federal district courts within that jurisdiction Specialized courts of appeals have been created to hear appeals concerning dis-putes concerning international trade (the court

of International Trade) and military matters (the Court of Military Appeals) Parties ag-grieved by a decision made by any of these federal appellate courts may appeal their case to

136 CONSTITUTIONAL LAW

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the Supreme Court, which has the ultimate

judicial power Cases that originate in state

court and present a FEDERAL QUESTIONmay also

be appealed to the U.S Supreme Court

The Supreme Court is not required to hear

every case that is appealed to it; instead, the

Court has broad discretion to accept or decline

cases that are appealed by a lower court Only

four justices need to vote in favor of hearing an

appeal before a WRIT of CERTIORARI will be

granted Certiorari is a device that allows the

Supreme Court to call up the records of a lower

court and review them in order to identify

important legal questions that need to be

resolved Granting “cert” has no bearing on

the Court’s subsequent resolution of a case The

Court is asked to review about 5,000 cases a year

and grants certiorari in fewer than 250 of them

Federal courts do not have jurisdiction to

hear every kind of lawsuit Article III lists

certain types of cases that may be heard by the

federal judiciary, including cases arising under

the Constitution; under treaties with foreign

nations; and under federal laws passed by

Congress, the executive, or an administrative

body Federal courts also have jurisdiction to

hear lawsuits between two or more states,

between citizens of different states, and between

a citizen or government of one state and a

citizen or government of a foreign country

The Supreme Court has ORIGINAL

JURISDIC-TION over cases involving ambassadors and

other public ministers as well as cases in which

a state government is a party Original

jurisdic-tion gives a court the power to hear a lawsuit

from the beginning, rather than on appeal This

grant of original jurisdiction does not preclude

Congress from giving original jurisdiction to

other courts over the same matters In fact,

Congress has granted concurrent original

juris-diction to the federal district courts for all

controversies except those between state

gov-ernments

Nowhere in Article III, or elsewhere in the

Constitution, is the power of the federal

judiciary defined Historically, the role of

English and U.S courts was to interpret and

apply the laws passed by the other two branches

of government At the close of the eighteenth

century, it was unclear whether that role

included the prerogative of JUDICIAL REVIEW,

which is the authority of state and federal

courts to review and invalidate laws passed by

legislatures that violate a constitutional provi-sion or principle

In Marbury v Madison, 5 U.S (1 Cranch)

137, 2 L Ed 60 (1803), the U.S Supreme Court clarified this ambiguity by pronouncing that it

“is emphatically the duty of the judicial department to say what the law is Those who apply the rule to particular cases must of necessity expound and interpret the rule If two laws conflict with each other, the court must decide on the operation of each.” Because the federal Constitution is the supreme law of the land, the Court reasoned, any laws that violate the Constitution must be declared void

It was the essence of judicial duty, the Court intimated, for judges to evaluate the constitu-tionality of a particular act, because judges are not elected and are, therefore, independent from the political considerations that may have motivated the popular branches of government

to enact that law The Court reasoned that the executive and legislative branches could not be impartial arbiters of their own laws

The Bill of Rights

When the U.S Constitution was ratified by the states in 1789, it contained no bill of rights

During the last days of the Constitutional Convention, one of the delegates proposed that

a bill of rights be included, but this proposal was voted down by every state Many Framers of the Constitution believed that there was no need for

a bill of rights because the powers of Congress and of the president were explicitly enumerated and limited, and no provision of the Constitu-tion authorized any branch of government to invade the personal liberties of U.S citizens

Other Framers were concerned that any list

of rights would be hopelessly incomplete and that the government would deny any liberties left unmentioned This concern was ultimately expressed by the NINTH AMENDMENT to the U.S

Constitution, which provides that “[t]he enu-meration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment was later relied on by the Supreme Court to recognize the unenumerated right of married adults to useBIRTH CONTROL(Griswold v

Connecticut, 381 U.S 479, 85 S Ct 1678, 14

L Ed 2d 510 [1965])

By 1791, the need for a bill of rights was viewed in a different light The residents of the

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