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[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Public Law 91-589: Authorization]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page ix]]

 
 
                    INTRODUCTION TO THE 1992 EDITION

        In the 1952 edition, Professor Corwin wrote an introduction that 
broadly explored the trends of constitutional adjudication then evident 
while other trends had become dormant. In some respects, the law of 
federalism, the withdrawal of judicial supervision of economic 
regulation, the continuing expansion of presidential power and the 
consequent overshadowing of Congress, among others, he has been 
confirmed in his evaluations. But, in other respects, entire new vistas 
of fundamental law of which he was largely unaware have opened up. Brown 
v. Board of Education was but two Terms of the Court away, and the 
revolution in race relations, by all three branches, could have been 
only dimly perceived. The Supreme Court's application of many provisions 
of the Bill of Rights to the States, then nascent, and its expansion of 
the meaning of those rights would prove revolutionary. The 
apportionment-districting decisions were still blanketed in time; 
abortion as a constitutionally protected liberty was unheralded. And 
with respect to the range of decisions which he did not anticipate, we 
have seen a Supreme Court move from the activism of the 1960s and 1970s 
to a posture of more judicial restraint, although in many areas, speech 
and press notably, little change has occurred as a result of a shifting 
of the Justices of the High Court.
        This brief survey will primarily be a suggestive review of the 
Court's treatment of the doctrines of constitutional law. In previous 
editions, we have noted the rise of the equal protection clause as a 
central concept of constitutional jurisprudence in the period 1953-1982. 
That rise has somewhat abated in the period covered by this volume, but 
the clause remains one of the predominant sources of constitutional 
constraints upon the Federal Government and the States. The due process 
clauses of the Fifth and Fourteenth Amendments similarly have 
experienced an expansion, both in terms of procedural protections for 
civil and criminal litigants and in terms of the application of 
substantive due process to personal liberties and in some economic 
cases.
                                    I
        National federalism as a doctrine was proved to be far more 
pervasive and encompassing than it was possible to notice in 1953. In 
some respects, of course, later cases only confirmed what those 
decisions already on the books told. Foremost example of this 
confirmation has been the enlargement of national powers, of 
congressional powers, under the commerce clause. The expansive reading 
of that clause's authorization to Congress to reach many local incidents 
of business and production already apparent by 1953 was scarcely 
enlarged by those decisions of the period through the 1960s - 1980s, 
under which Congress asserted jurisdiction on the basis of an antecedent 
or subsequent movement over a state boundary of some element touching 
upon the transaction or solely upon the premise that certain 
transactions by their nature alone or as part of a class sufficiently 
affect interstate commerce as to warrant national regulation. Civil 
rights laws touching public accommodations and housing, environmental 
laws affecting land use regulation, criminal law coverage, and 
employment regulations touching health and safety as well as benefits 
are only the leading examples of enhanced federal activity. Conversely, 
state power to regulate commerce has been further restricted through the 
application of a doctrine of preemption which is increasingly aimed at 
one national standard, although under Chief Justice Burger and Chief 
Justice Rehnquist, the Court has not so readily as before seemed to 
favor preemption, especially in the area of labor-management relations. 
Only with respect to the State's own employees did the Court inhibit 
federal regulation and then with a decision which failed to secure a 
stable place in the doctrine of federalism, being overruled in less than 
a decade. Some immunity for States from federal laws aimed directly at 
them was implied from the Constitution, but its potency remains to be 
seen.
        Noteworthy has been a rather strict application of the negative 
aspect of the commerce clause to restrain state actions that either 
discriminate against or too much inhibit interstate commerce.

[[Page x]]

        Of much the same import has been the application of the Bill of 
Rights to the States through the due process clause of the Fourteenth 
Amendment, a matter dealt with in greater detail below. The Court has 
again and again held that when a provision is applied, it means the same 
whether a State or the Federal Government 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 the standards 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 has relaxed its application to both States and 
Nation.
        The Court of the last ten years has reinvigorated, to be sure, 
certain aspects of the old federalism. The Eleventh Amendment has been 
infused with new potency. The equity powers of the federal courts to 
interfere in on-going state court proceedings and to review state court 
criminal convictions under habeas corpus have been curtailed. A doctrine 
of comity and rules of prudential restraint in the exercise of federal 
judicial power have been invoked.
        The overriding view is that the present Court where it has 
discretion will apply federalism concerns to limit federal powers. But 
the critical fact, the scope of congressional power, remains: the limits 
on congressional power under the commerce clause and other Article I 
powers, as well as under the power to enforce the Reconstruction 
Amendments, remain those of self-restraint.
                                   II
        For much of this period, aggregation of national power in the 
presidency continued unabated and not much resisted by congressional 
majorities, which, indeed, continued to delegate power to the Executive 
Branch and to the independent agencies at least to the same degree if 
not to a greater extent than before. The President himself, most notably 
in the field of foreign affairs and national defense, assumed the 
existence of a substantial reservoir of inherent power to effectuate his 
policies as well. 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, most notably with respect to war powers and the 
declaration of national emergencies, but including as well the 
regulation of some domestic presidential concerns, as in the impoundment 
controversy.
        Perhaps coincidentally, the Supreme Court effected a strong 
judicial interest in the adjudication of separation-of-powers 
controversies. Previously, even as it utilized separation of language, 
the Court little involved itself in actual controversies, save for the 
Myers-Humphrey litigations over the President's power to remove 
executive branch officials. But that restraint evaporated in 1976.
        There were several Court decisions in this area, although in 
evincing a renewed interest in separation of powers, as in Buckley v. 
Valeo, and subsequent cases, the Court appeared to cast the judicial 
perspective favorably upon presidential prerogative and in a few cases 
statutory construction was utilized to preserve unto the President 
certain discretion that was in dispute. Only very recently has the Court 
evolved an arguably consistent standard in this area, a two-pronged 
standard of aggrandizement and impairment, but the results still are 
cast in terms of executive preeminence.
        The larger conflict has been political, and the Court resisted 
many efforts to involve it in litigation over the use of troops abroad 
in Vietnam, coming close as well to declaring, in a treaty termination 
context, the resurgence of the political question doctrine to all such 
executive-congressional disputes. Nevertheless, there does appear to 
have survived cessation of the Vietnam conflict a significant 
congressional interest in achieving a new and different balance between 
the political branches, an interest the assertion of which may well 
involve the judiciary to a much greater extent, and, in any event, one 
which the congressional branch is not without weapons to effectuate.
                                   III
        The demise of substantive due process, apparent in the 1950s, is 
a fact today insofar as the validity of economic legislation is 
concerned, although in a few isolated cases, involving the

[[Page xi]]
obligation of contracts, and perhaps expanding in the regulatory takings 
area, the Court has demonstrated that some life is left in the old 
doctrines. Yet, the word ``liberty'' in the due process clauses of the 
Fifth and Fourteenth Amendments was seized upon by the Court in 
harnessing substantive due process to the protection of certain rights 
having to do with personal and familial privacy, most controversially in 
the abortion cases.
        Whereas much of the Bill of Rights is directed to prescribing 
how government may permissibly deprive one of life, liberty, or 
property--by judgment of a jury of one's peers or with evidence seized 
only through reasonable searches, for example--the First Amendment is in 
terms absolute and while its application has never 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 directed to political ends but that totally 
unrelated to any political purpose.
        Thus, the constitutionalization of the law of defamation with 
the narrowing possibilities of recovery for libelous and slanderous 
criticism of public officials, political candidates, and public figures 
epitomizes the trend. Government's right to proscribe the advocacy of 
violence or unlawful activity has become more restricted. Obscenity 
abstractly remains outside the protective confines of the First 
Amendment, but the Court's changing definitional approach to what may be 
constitutionally denominated pornography has closely confined most 
governmental action taken against the verbal and pictorial 
representation of matters dealing with sex. The encompassing of the 
right to spend for political purposes and to associate together for 
political activity has meant that much governmental regulation of 
campaign finance and 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, now enjoys a 
protected if subordinate place in free speech jurisprudence. Freedom to 
picket, to broadcast leaflets, 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 will view matters 
differently, will narrow the scope of the Amendment's protection and 
enlarge the permissible range of governmental action. But, in contrast 
to other areas in which the present Court has varied from its 
predecessor, the record with respect to the First Amendment has been one 
of substantial though uneven expansion of precedent.
                                   IV
        Unremarked by scholars of some forty years ago was the place of 
the equal protection clause in constitutional jurisprudence--simply 
because at that time Holmes' pithy characterization of it as a ``last 
resort'' argument was generally true. Today, equal protection litigation 
occupies a position of almost predominant character in each Term's 
output. Then, the rational basis standard of review of different 
treatments of individuals, businesses, or subjects little concerned the 
Justices. The clause blossomed in the Court's confrontation after Brown 
v. Board of Education with state and local laws and ordinances drawn on 
the basis of race and this aspect of the doctrinal use of the clause is 
still very evident on the Court's docket, though in ever new and 
interesting form.
        Of worthy attention has been the application of the doctrine, 
now in a three-tier or multi-tier set of standards of review, to 
legislation and other governmental action classifying on the basis of 
sex, illegitimacy, and alienage. Of equal importance was the elaboration 
in adjudication under the clause of a concept of ``fundamental'' rights 
as to which a government must if it acts so as to restrict the exercise 
of one of these rights show not merely a reasonable basis for its 
actions but a justification based upon necessity, compelling necessity. 
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) received under the clause a 
special dispensation that required the invalidation of all but the most 
simple qualifications, most barriers to ballot access by individuals and 
parties, and the practice of apportionment of state legislatures on any 
basis other than population. Wealth distinctions in the criminal process 
were viewed with hostility and generally invalidated.

[[Page xii]]

        Again, a reconstituted court made some tentative rearrangements 
with respect to these doctrinal developments. The suspicion of wealth 
classifications was largely though not entirely limited to the criminal 
process. Governmental discretion in the political process 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 to dismantle 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's perspective on legislative and 
executive remedial action, affecting affirmative action and race 
conscious steps in the electoral process, with the equal protection 
clause being used to cabin political discretion.
                                    V
        Finally, criminal law and criminal procedure during the 1960s 
and 1970s has been doctrinally unstable. The story of the 1960s was 
largely one of the imposition of constitutional constraint upon federal 
and state criminal justice systems. Application of the Bill of Rights to 
the States was but one aspect of this story. At the same time, the Court 
constructed new teeth for the guarantees. For example, the privilege 
against self-incrimination was given new and effective meaning by 
requiring that at the police interrogation stage it be observed and 
furthermore that criminal suspects be informed of their rights under it. 
It was also expanded, as was the Sixth Amendment 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, preliminary hearing, and the like, rather than only at 
and proximate to trial. An expanded exclusionary rule was applied to 
keep out of evidence material obtained in violation of the suspect's 
search and seizure, self-incrimination, and other rights.
        During the last two decades, the Court has drawn the line 
differently here. The exclusionary rule has been cabined and redefined 
in several limiting ways. Search and seizure doctrine has been revised 
to enlarge police powers. The self-incrimination and counsel doctrines 
have been eroded in part although in no respect has the Court returned 
to the constitutional jurisprudence prevailing before the 1960s.
        Moreover, substantive as well as procedural guarantees were 
developed. The law of capital punishment has been a course of meandering 
development, with the present Court almost doing away with it and then 
approving its revival by the States.
        Undergirding the 1960s procedural and substantive development 
was a series of expansion of the habeas corpus powers of the federal 
courts, with the sweeping away of 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 came a retraction of federal habeas powers since 
the 1970s.
                                   VI
        The last four decades were among the most significant in the 
Court's history. They were as well the scene of some of the most 
sustained efforts to change the Court or its decisions or both with 
respect to a substantial number of issues. On only a few past occasions 
was the Court so centrally a subject 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 litigation before the Justices may be 
found solely in the text of the document entrusted to their keeping. But 
one cannot doubt either that the Court still enjoys the respect and 
reverence of the bar and the public generally, that its decisions 
generally are accorded uncoerced acquiescence, and that its 
pronouncements are accepted as authoritative, binding constructions of 
the constitutional instrument. Indeed, it can be argued that the 
disappearance of the myth of the absence of judicial discretion and 
choice strengthens the Court as an institution to the degree that it 
explains and justifies the exercise of discretion and choice in those 
areas of controversy in which the Constitution does not speak clearly or 
in which different sections lead to different answers. The public 
attitude thus established is then better enabled to

[[Page xiii]]
understand division within the Court and within the legal profession 
generally, and all sides are therefore seen to be entitled to the 
respect accorded the good faith search for answers. As the Court's 
workload continues to increase, a greater and greater proportion of its 
cases taken are ``hard'' cases and while hard cases need not make bad 
law they do in fact lead to division among the Justices and public 
controversy. Increased sophistication, then, about the Court's role and 
its methods can only redound to its benefit.
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