INTRODUCTION TO THE 2012 CENTENNIAL

EDITION

The need for a comprehensive treatise on the Constitution was apparent to Congress from

early in the 20th century. In 1911, the Senate Manual (a compilation of the Senate’s parliamentary procedures) included the United States Constitution and amendments with citations to U.S.

Supreme Court constitutional decisions. A century later, the field of constitutional law has expanded exponentially. As a result, this present iteration of that early publication exceeds 2300

hundred pages, and references almost 6000 cases. Consistent with its publication in the 21st

Century, this volume is available at the website of the Government Printing Office

(www.gpo.gov/constitutionannotated) and will be updated regularly as Supreme Court cases are

decided.

Sixty years ago, Professor Edward S. Corwin wrote an introduction to this treatise that

broadly explored then existent trends of constitutional adjudication. In some respects—the law

of federalism, the withdrawal of judicial supervision of economic regulation, the continued expansion of presidential power and the consequent overshadowing of Congress—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 brought about by all three branches of the

Federal Government could have been only dimly perceived. The apportionment-districting decisions were still blanketed in time; abortion as a constitutionally protected liberty was unheralded. The Supreme Court’s application of many provisions of the Bill of Rights to the States

was then nascent, and few could anticipate that the expanded meaning and application of these

Amendments would prove revolutionary. Sixty years has also exposed the ebb and flow of constitutional law, from the liberal activism of the 1960s and 1970s to a more recent posture of judicial restraint or even conservative activism. Throughout this period of change, however, certain

movements, notably expansion of the protection of speech and press, continued apace despite

ideological shifts.

This brief survey is primarily a suggestive review of the Court’s treatment of the doctrines

of constitutional law over the last sixty years, with a closer focus on issues that have arisen

since the last volume of this treatise was published ten years ago. For instance, in previous

editions we noted the rise of federalism concerns, but only in the last two decade has the strength

of the Court’s deference toward states become apparent. Conversely, in this treatise as well as

in 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 recent years, the clause remains one of the predominant sources of constitutional constraints upon

the Federal 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

of procedural protections for civil and criminal litigants and in terms of the application of substantive due process to personal liberties.

SECTION I

Issues relating to national federalism as a doctrine have proved to be far more pervasive

and encompassing than it was possible to anticipate in 1952. In some respects, of course, later

cases 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. The expansive reading of that clause’s authorization to Congress to reach many local incidents of business

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 inIX
struments of transportation; or can legislate 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 laws, and employment regulations touching health

and safety are only the leading examples of enhanced federal activity under this authority.

Over the last two decades, however, the Court has established limits on the seemingly irrevocable expansion of the commerce power. While the Court has declined to overrule even its

most expansive rulings regarding “affects” on commerce, it has limited the exercise of this authority to the regulation of activities which were both economic in nature and which had a nontrivial or “substantial” affect on commerce (although regulation of non-economic activity would

still be allowed if they were 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 an economic 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-passed federal

laws, including a ban on gun possession in schools and the provision of civil remedies to compensate gender-motivated violence. The Court has most recently found chronological limits to

commercial regulation, holding that the prospect of a future activity—seeking health care—

could not justify requiring the present purchase of health insurance by individuals.

The exercise of authority over commerce by the states, on the other hand, has over the last

sixty 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 Justice Burger

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 under the Tenth Amendment, but this decision

failed to secure a stable place in the doctrine of federalism, being overruled in less than a decade. Also noteworthy has been a rather strict application of the negative aspect of the commerce clause to restrain state actions that either discriminate against or overly inhibit interstate commerce.

Much of the same trend towards national standards has resulted from 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 of the Bill of Rights 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.

While the Tenth Amendment would appear to represent one of the most clear statements of

a federalist principle in the Constitution, it has historically had a relatively insignificant independent role in limiting federal powers. Although the Court briefly interpreted the Tenth Amendment in the 1970s substantively to protect certain “core” state functions from generally applicable laws, this distinction soon proved unworkable, and was overruled a decade late. More recently,

the Court reserved 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,

developed over the most recent decade, have proved more resilient. This becomes important when

the Congress is unsatisfied with the most common methods of influencing state regulations—

grant conditions or conditional imposition of federal regulations (states being given the opportunity to avoid such regulation by effectuating their own regulatory schemes). Only in those cases

where the Congress attempts to directly “commandeer” state legislatures or executive branch

officials, i.e. ordering states to legislate or execute federal laws, has the Tenth Amendment served

as an effective bar.

X INTRODUCTION
The concept of state sovereign immunity from citizen suits has also been infused with new

potency over the last decade, while exposing deep theoretical differences among the Justices. To

a minority of the Justices, state sovereign immunity is limited to the textual restriction articulated in the Eleventh Amendment, which prevents citizens of one state from bringing a federal

suit against another state. To a majority of the Justices, however, the Eleventh Amendment

was merely a technical correction made by Congress after an erroneous approval by the Court

of a citizen-state diversity suit in Chisholm v. Georgia. These justices prefer the reasoning of

the post-Eleventh Amendment 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

significance of this latter case was not realized until 1992 in Seminole Tribe of Florida v. Florida,

where the Court made clear that suits by citizens against states brought under federal statutes

also could 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

the Court’s recent decisions to prohibit federal claims by citizens against states in either a state’s

own courts or federal agencies.

The Court has ruled, however, that Congress can abrogate state sovereign immunity under

the Bankruptcy Clause and section 5 of the Fourteenth Amendment. Nevertheless, the Court

has also shown a significant lack of deference to Congress regarding its 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 for such issues as disability discrimination or patent infringement, while

the Congress has been found to be without any power to protect religious institutions from the

application of generally applicable state laws. Further, where Congress attempted to create a

federal private right of action for victims of gender-related violence, alleging discriminatory treatment of these cases by the state, the Court also found that Congress exceeded its mandate, as

the enforcement power of the 14th Amendment can only be applied against state discrimination. In all these case, the Court found that Congress had not sufficiently identified patterns of

unconstitutional conduct by the States.

The Spending Clause, long seen as one of the last bedrocks of congressional authority, has

also come under the Court’s increasing scrutiny. While the Court had opined on the limits of

the authority of Congress to impose “voluntary” grant conditions on states, it was not until Congress required states to adopt a broad expansion of Medicaid or leave that program that the

Court found such legislation to be overly “coercive.” The impact of the decision, however, was

diminished not only by the Court severing only the enforcement mechanism (making the states’

decision to participate voluntary), but by indications (both in reasoning and dicta) that the standard set by the splintered Court would be easily met by most Spending Clause regulation.

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, the

equity powers of the federal courts to interfere in ongoing state court proceedings and to review

state court criminal convictions under habeas corpus have been curtailed, invoking a doctrine of

comity and prudential restraint. But the critical fact, the scope of congressional power to regulate private activity, 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 principally those of congressional self-restraint.

SECTION II

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 agencies

at 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 the

field of foreign affairs and national defense. Only in the wake of the Watergate affair did Congress move to assert itself and 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,

INTRODUCTION XI
but is also true for domestic presidential concerns, as in the controversy over the power of 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 its use

of separation-of-power language, the Court did little to involve itself in actual controversies,

save perhaps the Myers and Humphrey litigations over the President’s power to remove executive branch officials. But that restraint evaporated in 1976. Since then there have been several

Court decisions in this area, although in Buckley v. Valeo and subsequent cases the Court appeared to cast the judicial perspective favorably upon presidential prerogative. In other cases

statutory construction was utilized to preserve the President’s discretion. 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 in Vietnam. In the context of treaty termination, the Court

came close to declaring the resurgence of the political question doctrine to all such executivecongressional disputes. While a significant congressional interest in achieving a new and different balance between the political branches appeared to have survived cessation of the Vietnam

conflict, such efforts largely diminished after the terrorist attacks of September 11, 2001. While

Congressional assertion of such interest may well involve the judiciary to a greater extent in

the future, the congressional branch is not without effective weapons of its own in this regard.

SECTION III

The Court’s practice of overturning economic legislation under principles of substantive due

process in order to protect “property” was already in sharp decline when Professor Corwin wrote

his introduction in the 1950s. In a few isolated cases, however, especially regarding the obligation of contracts clause and perhaps the expansion of the regulatory takings doctrine, the Court

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 seized upon by the

Court to harness substantive due process to the protection of certain personal and familial 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 did not occur immediately, as much due to conceptual difficulties as to ideological resistance. 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 idea that certain

personal “activities” should only be lightly regulated. Then, for a time, the privacy cases appeared to be limited to certain areas of personal concern: marriage, procreation, contraception,

family relationships, medical decision making and child rearing. Most recently, however, the

Court has brought the outer limits of the doctrine into question again by overturning a sodomy

law directed at homosexuals without attempting to show that such behavior was in fact historically condoned. This raises the question as to what limiting principles remain available in evaluating future arguments based on personal autonomy.

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 judgment of

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 directed to

political ends but speech that is totally unrelated to any political purpose.

The constitutionalization of the law of defamation, narrowing the possibility of recovery for

damage caused by libelous and slanderous criticism of public officials, political candidates, and

public 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 remains

XII INTRODUCTION
outside the protective confines of the First Amendment, but the Court’s changing definitional

approach to what may be constitutionally denominated obscenity has closely confined most governmental action taken against the verbal and pictorial representation of matters dealing with

sex. 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, and to

engage in physical activity representative of one’s political, social, economic, or other views, enjoys wide though not unlimited protection. False statements, long derided as being of little First

Amendment value, were brought within the ambit of free speech, although the standard of protection afforded to such a law—here, lying about one’s military record—remains unsettled.

While First Amendment doctrine remains sensitive to the make-up of the Court, the trend

for many years has been a substantial though uneven expansion. In particular, 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 finance and of limitations upon

the political activities of citizens and public employees had become suspect if not impermissible.

For example, during the last decade, confronted with renewed attempts by Congress to level

the playing field between differing voices with disparate economic resources, the Court first accepted, and then rejected these new regulations. In the process, corporations, long barred from

direct political advocacy, were given even greater access to the political arena.

SECTION IV

Unremarked by scholars of some sixty 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. Subsequently, however, especially during the

Warren era, equal protection litigation occupied a position of almost predominant character in

each Term’s output. The rational basis standard of review of different treatments of individuals,

businesses, or subjects remained of little concern to the Justices. Rather, the clause blossomed

after Brown v. Board of Education, as the Court confronted state and local laws and ordinances

drawn on the basis of race. This aspect of the doctrinal use of the clause is 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 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 of the concept of “fundamental” rights, so that when the government restricts one of these rights, it must

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 Twentysixth Amendments) nonetheless was found to require the invalidation of all but the 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. In the controversial

decision of Bush v. Gore, the Court relied on the right to vote in effectively ending the disputed

2000 presidential election, noting that the Florida Supreme Court had allowed the use of nonunified standards to evaluate challenged ballots. Although the 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 of equal

protection doctrinal developments. The suspicion-of-wealth classification 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 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.

INTRODUCTION XIII
SECTION V

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, as the Court also constructed new teeth for these guarantees. For

example, the privilege against self-incrimination was given new and effective meaning by requiring that it be observed at the police interrogation stage and furthermore that criminal suspects

be informed of their rights under it. The right 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 material obtained in violation of the suspect’s search and seizure, selfincrimination, 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. More

recently, awakened legislative interest in the sentencing process, such as providing enhanced

sentences for “hate crimes,” has faltered on holdings that increasing the maximum sentence for

a crime can only be based on facts submitted to a jury, not a judge, and that such facts must be

proved beyond a reasonable doubt.

During the last two decades, however, the Court has also redrawn some of these lines. The

self-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 the exception for “special needs”

has allowed such practices as suspicionless, random drug-testing in the workplace and at schools.

But, a reformation of the requirements for confronting witnesses at trial has, in some cases,

increased the complexity and effectiveness of prosecutions. Further, a realist view of modern

criminal process led to a willingness to consider the adequacy of defense counsel beyond representation at trial.

An expansion of the use of habeas corpus powers of the federal courts undergirded the 1960s

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, came a retraction of

federal habeas powers, both by the Court and through federal legislation.

SECTION VI

The past decade saw the Court’s most extensive examination of gun rights under the Second Amendment, with five Justices holding that, at a minimum, the amendment constitutionally enshrines an individual’s right to possess an operational handgun in one’s home for self

protection. This finding mostly was regarded as unremarkable: it largely comported with the

expectations and realities of gun ownership in the U.S. and was not expected to lead to wholesale loosening of government regulation, or even to weigh heavily in political debate. Most initial scholarly interest focused more on the Court’s interpretational methodology.

“Originalism”—the notion that the meaning of constitutional text is fixed at the time it is

proposed and ratified—found favor as an interpretational method in the nineteenth century, fell

out of favor beginning in the Progressive era, but regained some currency in the 1980s. The

paucity of judicial precedent on constitutionally protected gun rights made “originalism” appear

a particularly apt approach as the Court considered the Second Amendment during its 2007–

2008 term. The result was a thorough airing of the merits and variations in originalist analysis. Is the “plain meaning” of the words of the original text as it would have been understood at

the time it was drafted paramount, or should the intent and expectations of the drafters prevail? This distinction can lead to different opinions on whether the Second Amendment protects

individual or collective rights. Is “originalism” more “objective” and “faithful” than “living ConXIV INTRODUCTION
stitution” analysis? Some commentators asserted that “originalism” is both unduly rigid in limiting analysis to contemporaneous sources and malleable in presenting the interpreter with a

range of often contradictory historical materials. In any event, a constitutional case in the twentyfirst century without a line of probative judicial precedent to guide decision-making is rare, and

contemporary constitutional analysis is more typically informed by a combination of earlier Court

decisions, traditional practices, a desire to sustain foundational principles in an evolving society, and pragmatic considerations.

SECTION VII

The last six decades were among the most significant in the Court’s history. They saw 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. While the

Court has historically enjoyed the respect of the bar and the public, a sense has arisen that the

institution is not immune from the partisan politics affecting other branches. Its decisions, however, are generally accorded uncoerced acquiescence, and 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 choice

strengthens the Court as an institution to the degree that it explains and justifies the exercise

of discretion 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 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 search for

answers. Although the Court’s workload has declined of late, a significant proportion of its cases

are still “hard” cases; 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.

INTRODUCTION XV