Law 101 Fourth Edition PDF

Law 101  Law 101 Fourth Edition JAY M. FEINMAN 1  1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship,...

Law 101  Law 101 Fourth Edition JAY M. FEINMAN 1  1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxfordâ …New York Aucklandâ …Cape Townâ …Dar es Salaamâ …Hong Kongâ …Karachi Kuala Lumpurâ …Madridâ …Melbourneâ …Mexico Cityâ …Nairobi New Delhiâ … Shanghaiâ …Taipeiâ …Toronto With offices in Argentinaâ …Austriaâ …Brazilâ …Chileâ …Czech Republicâ …Franceâ …Greece Guatemalaâ …Hungaryâ …Italyâ …Japanâ …Polandâ …Portugalâ …Singapore South Koreaâ … Switzerlandâ …Thailandâ …Turkeyâ … Ukraineâ …Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Jay M. Feinman 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. ISBN 978–0–19–934169–6 The Third Edition of Law 101 is cataloged as follows: Library of Congress Cataloging-in-Publication Data Feinman, Jay M. Law 101/Jay M. Feinman, 3rd ed. p. cm. ISBN 978–0–19–539513–6â … 1.â ‡ Law–United Stated–Popular works. I.â ‡Title: Law one hundred oneâ … II.â ‡Title: Law one hundred oneâ … III.â ‡Title KF387.F45 2006 349.73–dc22 2005055481 1â ‡3â ‡5â ‡7â ‡9â ‡8â ‡6â ‡4â ‡2 Printed in the United States of America on acid-free paper To Leah and Keith, and, always, Carole  Contents Preface xi 1 There Are No Secret Books: You Can Understand the Law 1 2 Constitutional Law and Constitutional Politics: Interpreting and Applying the Constitution 9 What is constitutional law? 9 Why do we need constitutional law? 16 How does the Supreme Court decide what the Constitution means? 20 Where does the Supreme Court get the authority to interpret the Constitution? 26 What powers does constitutional law give to the rest of the federal government? 32 What powers do the states have under constitutional law? 43 3 First Freedoms: Constitutional Rights 49 What rights does constitutional law protect? 49 What is due process? 51 Does constitutional law require that everyone be treated equally? 55 How does the Constitution protect freedom of speech? 62 How does the Constitution protect freedom of religion? 76 What other rights are protected by the Constitution? 83 4 Your Day in Court: The Litigation Process 95 What is civil procedure? 95 Why do we need civil litigation and civil procedure? 98 Where do court cases come from? 100 Where can a lawsuit be brought? 102 When can you make a federal case out of it? 105 If you can sue in different places, what law will apply in each place? 109 How does a lawsuit begin? 110 What can the defendant do to respond to a lawsuit? 113 What if there are more than two parties to a lawsuit? 116 What if there are many parties to a lawsuit? 118 How do the parties discover the facts about their case? 120 What else happens before the trial? 124 What happens at trial? 126 What evidence can be presented at trial? 129 What about the jury? 131 What happens after trial? 137 5 Auto Accidents, Scalding Coffee, and Medical Malpractice: Personal Injuries and Tort Law 141 What is tort law? 142 Why do we need tort law? 144 Is it a tort when you hit someone? 149 Contents Is it a tort when you injure someone by not being careful? 152 What does the law mean by reasonable care? 157 How does a plaintiff prove that a defendant has been negligent? 160 What if the victim is partly at fault for an accident? 163 If someone does not intend to injure someone else and acts with reasonable care, can he or she still be liable in tort? 165 When is a manufacturer liable for injuries caused by its products? 166 What damages can a plaintiff get in a tort case? 172 When are damages awarded to punish the defendant? 177 6 When Is a Deal a Deal? Businesses, Consumers, and Contract Law 181 What is contract law? 181 Why do we need contract law? 182 How do you make a contract? 187 Does a contract have to be in writing to be enforceable? 191 Can anyone make a contract? 193 Once two people make an agreement, is it always enforceable? 194 If a contract is unfair, can a court refuse to enforce it? 197 How does the law treat form contracts? 199 Once you make a contract, can you ever get out of it? 202 What happens if one party’s performance depends on something happening and it doesn’t happen? 205 Will a court order someone to perform a contract? 208 How much does someone have to pay for not keeping a promise? 210 7 You Are What You Own: The Law of Property 213 What is property law? 213 Why do we need property law? 217 What kinds of property are there? 221 Who owns the Internet? 223 How can someone acquire property? 227 How is property purchased and sold? 230 How is property transferred on death? 234 What is a trust? 239 How do people own property collectively? 240 How else can ownership of property be shared? 243 What are the property rights of a landlord and a tenant? 247 When can the government take your property? 250 8 From Insanity to In Cold Blood: Criminal Responsibility and Criminal Law 255 What is criminal law? 255 Why do we need criminal law? 259 What is a criminal act? 263 Does someone have to mean to commit a crime to be guilty? 266 When is self-defense justified? 270 In what other circumstances is someone justified in committing a crime? 274 Why are criminals allowed to plead insanity as a defense? 277 What other defenses are available? 283 Can someone be convicted for almost committing a crime? 286 viii  Contents What is homicide? 290 Why is rape law so controversial? 296 9 Protecting the Innocent, Freeing the Guilty: Criminal Procedure 301 What is criminal procedure? 301 Why do we need criminal procedure? 303 What are the steps in the criminal process? 306 When can the police conduct a search and seizure? 309 What is the privilege against self-incrimination? 315 What happens if police violate a defendant’s rights? 318 What is plea bargaining? 321 Why do we have juries? 325 What is the adversary process? 329 How does sentencing work? 332 What about the death penalty? 335 Why does it seem that criminal appeals go on so long? 340 Conclusion 345 Index of Legal Cases 347 Index of Subjects 351 ix  Preface Law is everywhere. Check the news any day and you’ll hear about a notorious criminal trial, a massive lawsuit, or a new constitutional claim. And it all seems so complicated. Why are there legal technicali- ties that trip up the police and allow criminals to get off? Why does litigation take so long and cost so much? How do the courts figure out how the words of the Constitution apply to situations the framers never dreamed of? Lawyers are trained to understand issues like these, and there are plenty of resources to help them. The library at my law school has almost 500,000 volumes and innumerable online resources in which lawyers can find statutes, judicial opinions, and learned commentary on the law. This book is for everybody else. Law 101 is a basic explanation of the rules and principles that lawyers and judges use. The premise of the book is straightforward: It’s not easy to decide legal questions, but anyone can acquire a basic understanding of what the questions involve. Each of the substantive chapters of the book covers one of the basic subjects that every lawyer learns during the first year of law school: con- stitutional law, civil rights, civil procedure and the litigation process, torts, contracts, property, criminal law, and criminal procedure. In each chapter you will learn the fundamental principles that underlie the sub- ject, acquire a legal vocabulary, and see how the rules are applied in ordinary and unusual situations. (If you want simple definitions of even more legal terms, consult this book’s companion volume, 1001 Legal Words You Need to Know.) The book not only tells you about the law— more importantly, it engages you in the process of lawmaking by asking you to think about the tough questions and troubling cases that lawyers and judges face. You will have some fun along the way as well, because the situations the law deals with are always interesting and sometimes amusing or outrageous. After reading this book, when you hear about controversial legal issues you will have a better sense of the background and the complexity of the issues and you will be better able to make your own judgments about what the law should be. You also will be better prepared to think about the legal problems that you may encounter in everyday life, from owning a home to suing someone to asserting your constitutional rights. If you ever have considered going to law school, Law 101 will give you a taste of what it is like. And if you are a student, either in law school Preface or elsewhere, it will give you the big picture of basic legal subjects that otherwise can be hard to obtain. Although I am a lawyer and law professor, writing and revising this book have been as much of an education for me as I hope it will be for its readers. I have had to rethink many subjects that are not my specialties, and I have freshly examined areas I have studied for years. I am very grateful to all of those who helped me in the process. Carl Bogus, Dennis Braithwaite, Ed Chase, Kim Ferzan, Beth Hillman, Greg Lastowka, Thomas LeBien, Earl Maltz, Stanislaw Pomorski, Mike Sepanic, Rick Singer, Allan Stein, and Bob Williams gave me excellent comments. Elizabeth Boyd, Sheryl Fay, Nicole Friant, Amy Newnam, and Beth Pascal provided helpful research assistance. Chris Carr and Bill Lutz gave early support. Rutgers School of Law–Camden and its deans provided an environment in which work of this kind could be done. Most of all, thanks to John Wright, who made it happen. xii Law 101  1 There Are No Secret Books You Can Understand the Law Americans are fascinated by the law. And why not? The law is impor- tant, intellectually challenging, and sometimes outrageous. Consider some cases that have made front-page news: Stella Liebeck, seventy-nine years old, bought a cup of coffee at the drive-through window of a McDonald’s in Albuquerque, New Mexico. As she placed the cup between her legs to remove the lid to add cream and sugar, she spilled the coffee, scalding herself. Liebeck’s injuries sent her to the hospital for seven days for burn treatment, including skin grafts, so she sued McDonald’s, alleging that the coffee was dangerously hot. A jury awarded her $160,000 to compensate her for her injuries and $2.7 million to punish McDonald’s, an amount the jury calculated was equal to two days of coffee sales for McDonald’s. (The trial judge later reduced the punitive damage award to $480,000.) Was this an outrageous example of a tort system run amok, or a fair judgment for an injured victim against a wrongdoer? See Chapter 5. Following the terrorist attacks of September 11, 2001, the administration of President George W. Bush claimed that the president had the authority as commander-in-chief to designate both foreign nationals and United States citizens as “enemy combatants” and hold them indefinitely at the naval base at Guantanamo Bay, Cuba. Under presidential orders and Congressional legislation the detainees were denied access to the courts to review their status. The Supreme Court held the courts had the power to review the detentions, and citizens could not be held indefinitely without due process. Why does the Supreme Court get to decide issues Law 101 involving national security, and how do the justices know what the Constitution means in cases like these? See Chapter 2. Marc Bragg bought and sold virtual land and other assets in Second Life, the enormously popular online role-playing game. When he exploited a gap in the game’s code to acquire a parcel of land at a bargain price, Linden Research, the producer of Second Life, froze his account, depriving him of virtual property worth between $4,000 and $6,000 in the real world. Bragg sued Linden; Linden defended, claiming that property owned in Second Life was subject to the game’s terms of service that gave Linden complete control over it. How does the law take property concepts dating back to medieval times and apply them to the Internet in the twenty-first century? If a virtual world is a community with its own norms and rules, should it have its own legal system as well, or should the existing legal system at least recognize the norms and rules as binding in real-world courts? See Chapter 7. On the evening of February 26, 2012, George Zimmerman, a neighborhood watch volunteer, called 911 in Sanford, Florida, to report “a real suspicious guy” who “looks like he is up to no good or he is on drugs or something.” The “guy” was Trayvon Martin, a seventeen-year-old who had gone to a local 7-Eleven to buy a bag of Skittles. Zimmerman followed Martin and an altercation and struggle ensued, during which Zimmerman shot and killed Martin. When tried for homicide, Zimmerman pleaded self-defense, arguing that Martin had punched him and was hammering his head to the ground, and the jury acquitted Zimmerman. The case also raised questions about Florida’s “Stand Your Ground” law, which allows people to use deadly force to defend themselves even if they could retreat from a dangerous situation. When should a person be able to kill in self-defense? See Chapter 8. Most of the law is not about important cases like the president’s defini- tion of enemy combatants or dramatic cases like George Zimmerman’s. Law penetrates our everyday life in many ways. Critics charge that in recent years we have become plagued with “hyperlexis”—too much law and too many lawyers—but law has pervaded our society from the beginning. Even before the Pilgrims landed in Massachusetts they for- mulated the Mayflower Compact, a legal document that governed their settlement of the new world. In colonial times, legal regulation of the economy, public conduct, and social morality was at least as extensive 2  There Are No Secret Books as it is today. Common human failings such as fornication, drunkenness, and idleness were legally—and frequently—punished, and laws closely regulated economic affairs, prescribing the size of loaves of bread and the time and place at which goods could be sold. Ordinary litigation provided an occasion for public gathering, with great orations by the lawyers and much comment by the public. Today the law affects us individually when we rent apartments or own homes, marry, drive cars, borrow money, purchase goods, belong to organizations, go to school or work, and obtain health care and collectively when the government taxes, regulates the airwaves and cyberspace, polices crime, and controls pollution. For all our endless fascination with the law, it is hard for most people to learn much about its substance. The law is so complex and volumi- nous that no one, not even the most knowledgeable lawyer, can under- stand it all. Moreover, lawyers and legal scholars have not gone out of their way to make the law accessible to the ordinary person. Just the opposite: Legal professionals, like the priests of some obscure religion, too often try to keep the law mysterious and inaccessible. But everybody can learn something about the law. That is what Law 101 is for. It explains the basics of the law—the rules, principles, and arguments that lawyers and judges use. Not all the law is here; there is just too much law for anyone to learn more than a few pieces of it here and there. That’s one reason that most lawyers specialize, so that they can learn in depth the law of medical malpractice in New Jersey or federal tax law relating to corporations, for example. But all lawyers do know pretty much the same things when it comes to basic subjects and basic concepts, because they all go through a similar law school experience. The public seems to be morbidly fascinated by law school as much as by law. Books and movies from The Paper Chase to Legally Blonde have fed the folklore of the first year of law school as an intellectually stimulating but grueling and dehumanizing experience. Because the first year of law school is the near-universal training ground for lawyers, this book focuses on the substance of what law students learn there as the core of knowledge that is useful and interesting to nonlawyers as well. The first-year curriculum in nearly every American law school looks alike. A few topics are fundamental, and this book explores those top- ics. Constitutional law involves the structure of government (Chapter 2) and personal liberties protected from government action (Chapter 3). Civil procedure concerns the process of litigation (Chapter 4). Tort law concerns personal injuries (Chapter 5). Contract law is the law of pri- vate agreements (Chapter 6). Property law governs relationships among 3 Law 101 people with respect to the ownership of things (Chapter 7). Criminal law defines wrongful conduct for which the state can deprive a person of life or liberty (Chapter 8). Criminal procedure prescribes the process of criminal adjudication and the rights of defendants (Chapter 9). Nearly every law school offers courses in constitutional law, contract law, and the rest, and the courses taught in different schools resemble each other to a considerable degree in the materials used and the top- ics covered. Schools in New Jersey, Iowa, and California all teach basic principles of national law, often using the same judicial opinions and statutes. If you attend law school after reading this book, you will find much of the first year will be familiar to you. Every course is taught by a different professor, however, and every professor has a different per- spective. Some of those differences in perspective are trivial, but some are crucial. One professor may be a political liberal, another a conserva- tive. One may favor economic analysis as a key to understanding the law, while another takes a natural law approach. Each of these differ- ences in perspective, and the many others that occur, leads to a very different understanding of what the law is. So while law students and lawyers all understand the same law in principle, they understand it in different ways. This book has a perspective, too. It couldn’t be any other way. The per- spective of this book is informed by much of the best scholarship about the law. Some of the elements of the perspective are widely accepted, and others are more controversial. The perspective can be summed up in a few insights about the law, as follows. Law is not in the law books. Books are one of the first things that come to mind when we think about law: fat texts almost too heavy to lift; dust-covered, leather-bound tomes of precedents; law libraries filled with rows and rows of statutes and judicial opinions. While books tell us a lot about the law, they are not the law. Instead, law lives in conduct, not on the printed page; it exists in the interactions of judges, lawyers, and ordinary citizens. Think, for example, about one of the laws we most commonly encounter: the speed limit. What is the legal speed limit on most inter- state highways? Someone who looked only in the law books might think the answer is 65 mph, but we know better. If you drive at 65 mph on the New Jersey Turnpike, be prepared to have a truck bearing down on you, flashing its lights to get you to pull into the slow lane. The speed limit according to drivers’ conduct is considerably higher than 65. And legal officials act the same way. The police give drivers a cushion of 3 to 5 mph, never giving a speeding ticket to someone who is going 66. If they did, the judges would laugh them out of traffic court. As a practical 4  There Are No Secret Books matter, the court doesn’t want to waste its time with someone who vio- lated the speed limit by 1 or 2 mph, and as a matter of law, the police radar often isn’t accurate enough to draw that fine a line anyway. So what is the law on how fast you can drive? Something different than the books say. To understand the law, then, we have to examine events as they occur in the world. We can generalize from those events and create theories and concepts to inform our understanding of the law, but the touchstone is always the world and not the idea. One way this is done in law school is by focusing on individual fact situations that give rise to litigation and on the judicial opinions that resolve the situations, known as cases. Each of these cases starts out as a real-world event, such as the killing of Trayvon Martin by George Zimmerman or the detention of enemy combatants, and becomes the vehicle for think- ing about many related events in a way that allows us to go back and forth between the particular fact situation and a general principle of law. This book follows that model and uses many interesting cases to explore legal principles. Law is not secret. Along with the mistaken notion that the law resides in the books goes the equally mistaken idea that law is secret, or at least inaccessible to the ordinary person. To understand and apply the law at the advanced, technical level that lawyers do requires professional knowledge, but to understand the basic substance of the law does not. Law reflects life. The principles and issues embodied in the law are not different from those that we experience in other aspects of our lives. Contract law, for example, is a commentary on the way people make, interpret, keep, and break their promises in commercial and noncom- mercial settings. Few nonlawyers can describe the objective theory of contract formation or the Statute of Frauds (you will be able to after you read Chapter 6), but they have thought a lot about contracts and prom- ises. If you cross your fingers when you make a promise, does it mean that the promise doesn’t count? If you promise to take your children to the movies, are you off the hook if an important business meeting comes up in the meantime? What about if you just don’t feel like it? If your newly purchased television doesn’t work, can you return it to the store? And so on. These are the kinds of issues that we all confront every day. The law provides a different forum for the discussion of these issues and the exploration of the principles, and the basic ideas involved are wholly accessible to the nonlawyer. There are no simple answers. Law reflects life, and life is complicated. Therefore, legal problems defy simple solutions. 5 Law 101 Life is complicated in two ways. First, things are often messy, so it is hard to define a legal issue and construct an appropriate solution. Think about the speed limit. If we formulate a clear rule, in this instance “driv- ing faster than the speed limit is a crime,” we will inevitably end up with exceptions, such as “a parent rushing a desperately ill child to the hospi- tal may exceed the speed limit.” If we formulate a fuzzy rule—“drive at a speed that is reasonable under the circumstances”—we will engender arguments in every case about how the rule should apply. Second, life is complicated because we often are of two minds about an issue. We would like to have clear legal rules to ensure consistency, fairness, and predictability. But we want to make room for the equities of individual cases in which the application of a rule would produce an unfair result, in order to relieve a particular party of the hardship of the rule. Politicians often would like us to think that there are simple answers to tough legal questions. Over the past few years we have become accus- tomed to sound-bite politics and simplistic ideologies that assert that all our problems can be solved by cutting down on frivolous litigation, getting tough on crime, making people responsible for their actions, or adhering to some other slogan. From the perspective used in this book, it’s just not so. Law is a battleground of political conflict. The complex questions with which law deals and our conflicting responses to them are the stuff of political controversy. This is not politics in the Republican–Democratic, electoral sense, but a struggle over social resources and social values just the same. At stake in legal decisions are the most fundamental kinds of questions with which any society has to grapple: Who gets what? Who lives and who dies? What is right and what is wrong? Everyone can see this in major constitutional issues like the abortion controversy, but it applies to all other legal issues, too. Should fast-food chains be liable for obesity-related illnesses because they promote and sell super-sized por- tions of fattening foods? We have to see all legal decisions like this as political in a broad sense. People make the law. Often, the law appears to be part of the natural order of things. The law and legal decisions can be seen as inevitable, based on immutable principles of justice, hardly the product of human action at all. Lawyers and judges speak as if the law itself were act- ing, free from their intervention: “The law requires that...” or “The precedents determine a result....” Nonsense. Law is made by people, and “the law” or “the precedents” never control anything; we control them. All this view does is let a small group of people—the privileged, the politically powerful, and the legal professionals—control the legal 6  There Are No Secret Books system while they deny their responsibility for doing so. Whether the issue is abortion, manufacturers’ liability, or the enforceability of hand- shake agreements, all of us—not just the lawyers and judges—have to decide what we think is a fair and useful result. This book strips away the mystery of the law to allow the nonlaw- yer to understand the rules of law and the principles and conflicts that are behind them. It doesn’t tell you how to be your own lawyer. You won’t learn how to file for divorce, sue in small claims court, or draft your own will. Other books convey that kind of advice; this one deals with issues that are more important, if less immediate. It explores the big issues that are fundamental to law, not the mechanics of particular transactions. Later, whether you use a how-to manual or go to a lawyer to deal with a legal matter, you will have a better sense of what is going on behind the rules and mechanics. And there is an important difference between this book and other law books, whether professional treatises for lawyers or how-to manuals on will draft- ing: This one is fun to read. The invented children’s author Lemony Snicket wrote, “Books about the law are notorious for being very long, very dull, and very difficult to read.” Not Law 101. Like the law itself, this book is full of puzzles, challenges, interesting tidbits, thought-provoking questions, and intellectual stimulation. Each chapter is organized in question-and-answer format. The ques- tions provide guideposts to the development of the chapter, and they make it possible to read selectively by dipping into particular topics of interest. At many points there are more questions than answers, and issues are left unresolved. Students of the law—and now you are one of them—experience this frequently and find it very frustrating. But that’s the way it has to be. The law doesn’t clearly answer some questions, and some issues are never finally settled. The courts cannot decide every- thing; figuring out the just solutions to hard problems is the right and duty of every informed person. After reading this book, you should be in a better position to participate in the process. 7  2 Constitutional Law and Constitutional Politics Interpreting and Applying the Constitution People who don’t know anything about civil procedure or property law can still recall the basic elements of constitutional law from their eighth-grade civics class: separation of powers; checks and balances; judi- cial review; due process and equal protection of law; freedom of speech, religion, and press. And if they can’t remember what they learned in the eighth grade, the newspapers and the television news will remind them of the continuing significance of constitutional law. Is abortion constitu- tionally protected? How about affirmative action? Can the government hold an American citizen in a military prison as a suspected terrorist? Everything the government does is bounded by the Constitution. Constitutional law defines the relations between the president and Congress and between the federal government and the states, and it regulates the government’s ability to assess taxes, to build highways, to maintain and deploy the armed forces, and to print stamps. Moreover, every hot issue seems to become a constitutional question. Once it was the constitutionality of slavery or of laws establishing maximum hours and minimum wages for workers; now it is abortion, the mandatory pur- chase of health insurance, detaining enemy combatants at Guantanamo Bay, and campaign financing. In the aftermath of the 2000 election, even who should be president became a constitutional issue, in the litigation resulting in the Supreme Court’s decision in Bush v. Gore. So constitu- tional law—how our government is organized and what it can and can- not do—is the place to begin our exploration of American law. What Is Constitutional Law? Constitutional law involves the interpretation and application of the U.S. Constitution. Drafted in 1787, the Constitution contains fewer Law 101 than 4,400 words, divided into seven short parts called articles. The Bill of Rights (the first ten amendments to the Constitution) was added in 1791, and only seventeen more amendments have been added in the more than two centuries since. It wouldn’t take you long to do what few Americans do—read the whole Constitution, front to back. It seems that constitutional law ought to be easy to understand. But despite the Constitution’s simplicity—or perhaps because of it—what the Constitution means and how it should apply are the most hotly debated topics of the law. And constitutional law is unique among all the bodies of law we will consider in this book, for four reasons. First, other bodies of law work together. Property law creates rights in things like land and refrigerators, and contract law prescribes how to transfer those rights to another person. Tort law defines the right of an injured person to recover damages from a wrongdoer, and civil procedure establishes the process by which the victim can recover. But constitutional law has a different subject matter and a different status than the other fields of law. Constitutional law doesn’t address relations among individuals the way property, contract, and tort law do. Instead, it defines the structure and function of the government and the rela- tionships between the government and individual citizens. It also defines the relative powers of the national government and the state govern- ments and prohibits the government from taking certain actions, such as those that infringe on freedom of religion. In defining and limiting government powers, constitutional law is superior to every other body of law. The Constitution proclaims itself to be “the supreme Law of the Land.” Any state or federal law on any topic—contracts, criminal pun- ishment, election contributions, or public schools—that conflicts with the Constitution is invalid. Second, other bodies of law are based on a mix of statutes and judicial decisions that provide a wide range of sources for rules, principles, and arguments. Contract law, for example, began as a common law subject determined by judges and has been overlaid by many statutes. To decide a contracts case, a court can look to a rich variety of sources, from old English precedents to modern state statutes. Constitutional law is dif- ferent. All constitutional decisions ultimately refer to a single, narrow source: the text of the Constitution with its amendments. The necessary reference to a single text makes constitutional law so challenging because of the infinitely broad range of situations that the text must cover. When the constitutional text addresses a narrow issue and does so specifically, we have little problem in figuring out how to apply the text; more often, the text is vague and the cases that it covers are much more diverse, so we have to decide what the text means and 10  Constitutional Law and Constitutional Politics what result follows from it in a particular case. Sometimes, by universal agreement, the words mean something other than what they appear to mean. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but even the most ardent strict constructionist understands that the amendment also applies to the president and the courts. Other times the words demand extensive interpretation. Does the constitutional command that no state may “deny to any person within its jurisdiction the equal protection of the laws” mean that a state university cannot give a preference in admissions to African American students in order to diversify its student body? Third, constitutional law, more obviously than other areas of law, raises fundamental political issues and value choices. One of the themes of this book is that every body of law and every legal decision implicates important values; tort law, for example, forces us to make important choices about to what extent people must take account of the interests of other people. But in constitutional law, the value questions are more readily apparent and therefore are more controversial. If all law is poli- tics to some extent, constitutional law is more explicitly political than other bodies of law. There are very few simple or noncontroversial issues in interpreting and applying the Constitution. Fourth, in other areas of law the processes of making and applying law seem obvious and appropriate. Legislatures and courts formulate principles of law, and courts apply those principles in deciding indi- vidual cases. In constitutional law the decision process also is clear, but whether it is appropriate is much more contested. In other areas of law the power of the courts is taken for granted, even if the cor- rectness of the results they reach may not be. In constitutional law, by contrast, the central issues are why judges have the power to be the final arbiters of constitutional law and what theories of constitu- tional interpretation they should use in interpreting and applying the Constitution. When the constitutional text requires interpreting, the courts do so, especially at the federal level. If necessary, cases are taken to the top, to be heard by the nine justices of the U.S. Supreme Court. But the Supreme Court justices are appointed, not elected, and once appointed they serve for life, without ever being subject to review again. If constitutional law involves fundamental political issues, why can those issues be decided for a democratic society by such an undemocratic institution? Moreover, the more overtly political institutions of government such as Congress resolve political issues by consulting constituents, being lobbied by inter- est groups, looking at opinion polls, and openly debating the pros and 11 Law 101 cons. How does the Supreme Court decide hot political issues when it apparently is insulated from the political process? These four distinctive features of constitutional law generate the sub- ject matter discussed in this chapter. The most basic issues concern the structure and authority of the federal government. The ratification of the Constitution created the national government and dictated its orga- nization and powers. Constitutional law first specifies how the federal government is organized into three branches—executive, legislative, and judicial—and what each branch, and the federal government as a whole, can do. In concept, at least, the federal government is a government of both limited and supreme powers—limited to those powers granted it by the Constitution but supreme within its sphere. Accordingly, defining the powers of the national government also defines the principles of federal- ism, or the relationship between the national government and the states. (The powers of both national and state governments also are limited by the constitutional guarantees of individual liberty, especially in the Bill of Rights and the post–Civil War amendments, which are discussed in Chapter 3.) Running through all of these particular topics is the issue of constitutional interpretation. The federal courts, especially the Supreme Court, are the authoritative interpreters of the Constitution. How do they determine what the constitutional text means when applied in a particular case? We usually think of the U.S. Constitution when we think of consti- tutional law, but each state has its own constitution and therefore its own body of constitutional law, too. The state constitutions are in many respects like the federal Constitution, as they establish the structure of the legislative, executive, and judicial branches and include bills of rights. But state constitutional law differs from federal law in important ways. Most state constitutions are much longer and more detailed than the federal Constitution. The Alabama constitution, for example, is more than 600 pages long—about twice as long as this book. The New Jersey constitution of 1947, a modern, reform constitution, is still about three times the length of the U.S. Constitution. Several factors contribute to the length of state constitutions. The national government is a government of enumerated powers, possessing only the authority granted to it under the Constitution, typically in vague language. The states, on the other hand, inherently have general author- ity to govern, so state constitutions limit rather than grant power, and the limitations often are stated very specifically. State constitutions also often contain provisions that are not particularly “constitutional,” in the sense of being directives about fundamental issues of rights or govern- ment organization. Some of these provisions address topics of particular 12  Constitutional Law and Constitutional Politics concern to a state; Idaho has constitutional provisions on water rights and livestock, and New Mexico on bilingual education. Others are sim- ply matters of detail that someone thought belonged in the constitu- tion; the California constitution contains guidelines for the publication of court opinions. Finally, the national Constitution can be amended only through a cumbersome process and has been amended only sev- enteen times since the adoption of the Bill of Rights in 1791. State con- stitutional amendments generally can be proposed by the legislature, a constitutional commission, or citizens’ petition and can be adopted by referendum. As a result, state constitutions are often amended; the Massachusetts constitution, for example, has been amended over a hundred times. Indeed, state constitutions can and frequently are even replaced altogether; the current Georgia constitution is its tenth. The bills of rights in state constitutions also are more detailed and are in some ways more important than the federal Bill of Rights. Instead of being added on to the main body of the constitution as in the federal Constitution, state bills of rights typically come first. This tradition dates from the earliest state constitutions that contained such well-known documents as the Virginia Declaration of Rights, a model for the Bill of Rights in the U.S. Constitution. These early documents included provi- sions guaranteeing the rights of the people and also hortatory statements of government principle, such as the recommendation in the Pennsylvania Declaration of Rights that the legislature consist of “persons most noted for wisdom and virtue.” Today state bills of rights look more like the federal Bill of Rights but add to it in two important ways. They often contain protections that are similar to those in the federal Bill of Rights but are more detailed. The Louisiana constitution, for example, prohib- its “cruel or unusual punishment,” a restriction analogous to the Eighth Amendment’s prohibition of “cruel and unusual punishment,” but it also bars “excessive” punishment, a requirement that the Louisiana Supreme Court has interpreted to mean that criminal penalties must be propor- tionate to the offense. And they express many rights not guaranteed by the federal Constitution; eleven constitutions expressly state a right of privacy, which the Supreme Court has found implicit in the Bill of Rights (as described in Chapter 3), and thirty-nine states guarantee access to a legal remedy for persons who suffer a legal injury. The statement of rights in state constitutions that are broader than those granted under the U.S. Constitution has led to what Justice William Brennan labeled “the new judicial federalism.” For a long time lawyers and the public at large looked mostly to the federal courts for the protection of individual rights. Since the 1970s, however, there has been a surge of interest in attention to state constitutional law as an 13 Law 101 independent source for the definition and potential expansion of rights. Since then state courts have been actively engaged in applying state con- stitutions to situations both like and unlike those addressed by the fed- eral courts. In a 1988 case, for example, the U.S. Supreme Court ruled that a person has no reasonable expectation of privacy in garbage bags left out for collection, so it did not constitute a violation of the Fourth Amendment when the police searched the garbage for evidence of a crime (California v. Greenwood). The same issue came to the New Jersey Supreme Court shortly thereafter in State v. Hempele (1990). The New Jersey constitution contained the same proscription against “unreason- able searches and seizures” as the Fourth Amendment, but the New Jersey court believed that a person does have a reasonable expectation of privacy in trash. “Clues to people’s most private traits and affairs can be found in their garbage,” wrote Justice Robert Clifford. “Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target’s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests.” He recognized the Supreme Court’s contrary decision but in rather grandiose language pointed out the independent responsibility of state courts. “[A]‌lthough that Court may be a polestar that guides us as we navigate the New Jersey Constitution, we bear ultimate responsibility for the safe passage of our ship. Our eyes must not be so fixed on that star that we risk the welfare of our passengers on the shoals of constitutional doctrine. In interpreting the New Jersey Constitution, we must look in front of us as well as above us.” Two jus- tices dissented in part because they believed “the values of federalism” required the court to defer to the Supreme Court’s decision. Diverging from the federal interpretation would be confusing to the public—local police could not search garbage but FBI agents could—and would undermine the moral authority of the Supreme Court as the “guardian of our liberties.” Protection against unreasonable search and seizure is a right com- mon to federal and state constitutions, though federal and state courts may interpret the right differently. State constitutions contain broader sources of rights than the federal Constitution, however. State courts have applied these rights to strike down damage caps in personal injury cases as a violation of the right of access to the courts, to require devel- oping municipalities to provide low- and moderate-income housing, and to compel the state to provide special funding for poor urban school districts, among other things. 14  Constitutional Law and Constitutional Politics The most controversial cases of this kind address the question of whether there is a state constitutional right to same-sex marriage. In 1999 the Vermont Supreme Court held that under the Common Benefits Clause of the Vermont constitution, same-sex couples could not be denied the legal benefits of marriage (Baker v. State). The court directed the legislature to remedy the unconstitutionality, which it did by reaffirming marriage was between a man and a woman but creat- ing civil unions with equivalent legal status. Then the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health (2003) held that the ban on same-sex marriage violated the due process and equal protection clauses of the state constitution. Marriage confers enormous legal benefits, from financial benefits such as joint income tax filing and inheritance rights to nonfinancial advantages including the presumption of parentage of children and the privilege not to testify against a spouse in court. It confers nonlegal benefits, too: “Civil mar- riage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companion- ship, intimacy, fidelity, and family.... [T]‌he decision whether and whom to marry is among life’s momentous acts of self-definition.” Therefore, the state may not restrict marriage to heterosexual couples unless it has legitimate reasons to do so. The state argued that its reasons were providing a “favorable setting for procreation,” ensuring the optimal setting for childrearing in a two-parent family with one parent of each sex, and protecting financial resources because same-sex couples are more financially independent and so less in need of the financial benefits of marriage such as filing joint tax returns. The court rejected each of the state’s arguments and concluded that marriage thereafter would be “the voluntary union of two persons as spouses, to the exclusion of all others,” without regard to the gender of the spouses; unlike in Vermont, the adoption of a civil union statute as an alternative to marriage would not satisfy the constitution. The reaction to Goodridge was dramatic. In Massachusetts, more than a thousand gay and lesbian couples applied for marriage licenses on the first day they were available. At the national level, the movement to enact a federal Constitutional amendment defining marriage as between a man and a woman gained momentum, and the subject became a major issue in national campaigns. But, as in Vermont and Massachusetts, state constitutional law was a primary vehicle for the debate. The Connecticut, Iowa, and California supreme courts applied their state constitutions to invalidate limiting marriage to opposite-sex couples, and constitutional amendments banning same-sex marriage were adopted in many states. 15  Law 101 Why Do We Need Constitutional Law? This seems like an odd question. We have become so used to constitu- tional law that it is obvious why we need it: to organize the government and to protect civil liberties. And whether or not we need it, we have it; the Constitution is there, and it is the foundational document of our political system. Nothing in the law is inevitable or necessary, though. Other nations manage to have a democratic political system and abundant civil liber- ties without our form of constitutionalism. Great Britain, for example, has neither a written constitution nor judicial review of legislation. When we think about whether we need constitutional law, the real question is what our brand of constitutional law does for us. To accomplish together the things we cannot accomplish individually, we constitute or support a government to act on our behalf. Government facilitates collective action, enabling us to pool our resources to build schools, hire teachers, and make a system of public education available to everyone, for example. Government also provides security, protecting us from criminals, unscrupulous merchants, manufacturers of dangerous drugs, and foreign terrorists. Government, to do all these things, must be strong. It needs the power to tax us to pay for the schools, to regulate drug companies, to fine crooked merchants, to put muggers in jail, and to maintain an army and navy. Such a powerful government presents a problem in itself. How do we make sure that the government won’t tax us beyond our means, impose unreasonably burdensome regulations on small businesses, imprison the wrong people, or use the army to repress dissent? One way we check the power of government is to make it a demo- cratic government. The people control a democratic government, so the government cannot do something the people don’t want or that infringes on their rights. But even if democracy is effective and the people have real control over the government (which some may question in modern America), there is a potential problem. An essential element of constitu- tional law is protecting the rights of minorities and individuals against attack by the majority. Constitutional law not only protects the integrity of the democratic process, but it protects minorities, protesters, dissi- dents, and eccentrics from the democratic process. Constitutional law grapples with this conflict between empower- ing and limiting government. It deals with questions such as: How is the government organized? How much authority does it have? What processes does it have to follow in exercising that authority? What areas of people’s lives are free from intrusion by the government? 16  Constitutional Law and Constitutional Politics Constitutional law is not alone in considering these issues, and it never resolves them finally, but it provides a process for struggling with them. But how does it do this? It may be helpful to think of constitutional law as a process. Constitutional law provides a language and a forum for the debate of important issues. The language of constitutional law begins with the text of the Constitution and expands to the precedents that interpret it and the principles that can be drawn from it. Important social and political issues are habitually framed in this language: separa- tion of powers, federalism, free speech, due process. Lawyers would like to think that this is a peculiarly legal language spoken only by profes- sionals, but in fact constitutional debate is carried on not only by courts and lawyers but also by other government officials, interest groups, and the public at large. Constitutional debate goes on in this language in many places, but our constitutional tradition has designated the courts—especially the U.S. Supreme Court—as the forum that can resolve the debate authori- tatively. The Court is hardly nonpolitical, but it operates at a greater distance from immediate political influence than other branches of government because its judges have a limited function and they serve for life. The Court does not settle all matters for all time, but the argu- ments made before it and its decisions in constitutional cases play a significant role in structuring the analysis and resolution of major controversies. Take as an example some highlights and lowlights of the Constitution’s encounter with the race problem in America. In the heated controversy over slavery that led up to the Civil War, a slave named Dred Scott brought an action in federal court alleging that he had become free as a result of residing with his master in Illinois and the Wisconsin Territory prior to their return to the master’s home in Missouri. Illinois was a free state, and slavery was prohibited in the Louisiana Territory north of latitude 36°30’ by the Missouri Compromise of 1820; Scott argued that once he set foot in a state and territory where he was legally free, he could not be kept in slavery when he returned to Missouri, a slave state. Slavery was an issue of overwhelming importance for the nation with immense political, moral, and economic dimensions, but in Scott v. Sandford (as Dred Scott’s case was styled in the Supreme Court, also commonly known as The Dred Scott Case), the issue was framed in constitutional terms. In an 1857 opinion by Chief Justice Roger Taney, the Court held that blacks such as Scott were not “citizens” within the meaning of Articles III and IV of the Constitution, and he therefore could not bring 17 Law 101 a lawsuit in federal court; even more remarkably, the court determined that the Missouri Compromise was unconstitutional. In Taney’s view, at the time of the framing of the Constitution blacks were “considered as a subordinate and inferior class of beings” not included within the Declaration of Independence’s claim that “all men are created equal” and thus not within the class of persons who, as citizens, could sue in federal court. And even though Congress had carefully crafted the Missouri Compromise as one in a series of political judgments that balanced the interests of North and South, it had exceeded its consti- tutional authority in doing so. Once the settlers of a territory orga- nized their own government, Congress could no longer legislate for the territory. The Dred Scott case illustrates the nature and limits of constitutional law. Slavery had been a highly charged issue since the founding of the nation, embodied in compromise provisions in the Constitution itself and the subject of debate in the Congress, the courts, and the country at large. As in Dred Scott, the debate dealt with substantive constitu- tional issues and was carried on in constitutional language as well as in moral, political, and economic terms. What was Congress’s authority to legislate concerning the slave or free status of territories and newly admitted states? How far could a state go in prohibiting slavery or in effectively preventing the travel of masters and slaves through its bor- ders? Were blacks members of the constitutional community who could sue in federal court? The debate in constitutional terms spilled outside the courtroom as well. Abraham Lincoln and Stephen Douglas clashed over Dred Scott and the nature of constitutional authority in their famous debates during the Senate campaign of 1858. Douglas affirmed the finality of the Court’s decision: “[W]‌hen the decision is made, my private opinion, your opin- ion, all other opinions must yield to the majesty of that authoritative adjudication.” Lincoln argued that the other branches of government could offer their own interpretation of the Constitution: “If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott deci- sion, I would vote that it should.” This dispute went to a central element of American constitutional- ism—whether the Supreme Court is the final authority on constitutional interpretation. A half-century before Dred Scott the Supreme Court had proclaimed itself the last word on constitutional interpretation, and the political system had acquiesced. However, the political reaction to Dred Scott demonstrated the limits of the Court’s role. Chief Justice Taney apparently hoped that the Dred Scott decision would resolve 18  Constitutional Law and Constitutional Politics the national controversy over slavery once and for all. But what the political branches could not do in the Missouri Compromise and the Compromise of 1850 the judicial branch could not accomplish through its decision. Instead of bringing resolution, Dred Scott only inflamed the passions that shortly would lead to war. Despite the failure of the Supreme Court to settle the slavery issue through constitutional adjudication, the race problem was still seen as a constitutional issue after the Civil War. New constitutional pro- visions—the Thirteenth, Fourteenth, and Fifteenth Amendments—were believed to be the vehicles for ending slavery, preventing racial discrimi- nation, and ensuring political participation by blacks. The Fourteenth Amendment was especially important, drawing on concepts in the original Constitution and the Bill of Rights to guarantee newly freed slaves citizenship (overruling Dred Scott), the privileges and immunities of citizens, due process of law, and equal protection of the laws. These Reconstruction Amendments both empowered government to eradicate the vestiges of slavery and limited government’s ability to discriminate or interfere with the lives of its citizens. The interpretation of these provisions over the succeeding century and a half has not been uniform either in principle or in result. In two famous cases, for example, the Court first allowed racial segrega- tion of railroad cars (Plessy v. Ferguson, 1896) and subsequently pro- hibited racial segregation in schools (Brown v. Board of Education, 1954). Without rehearsing this long and complicated story, note that, as with Dred Scott, in court and in the public arena, the debate about race has been carried on with the aid of these constitutional prin- ciples. Defining “equal protection of the laws” under the Fourteenth Amendment—ascertaining what equality means and what government may or must do to create equality or to prevent or remedy inequal- ity—has been a central inquiry in the debate about race. May the government favor minority contractors for highway projects? May a college give preference to black applicants to enhance the diversity of its student body? For questions like these, the debate is partially carried on through constitutional discourse, and part of the answer comes through court decisions. The debate spills outside the courtroom, however, and outside the bounds of constitutional law, to be influenced by the legislatures, the electoral process, the media, and public sentiment. Constitutional law, therefore, provides a vocabulary and a process for dealing with important issues. It is neither the only vocabulary nor the only process, but it has been an important and familiar one, if ever-changing, for more than two hundred years. 19  Law 101 How Does the Supreme Court Decide What the Constitution Means? In applying the Constitution, the Supreme Court defines and limits the powers of the government. But what limits the Court? Suppose the Court declared that from now on it would tell Congress how much to spend on building highways, or suppose it announced that every American was required to attend a Roman Catholic Church every Sunday? What pre- vents the Court from usurping the rightful powers of the other branches of government or of the states, or from trampling on the rights of the people through outrageous decisions? As these absurd hypotheticals suggest, ultimately the Supreme Court is constrained by political realities. If the Court tried to direct Congress to spend money on highways or to force people to go to church, the result- ing uproar would drown out the words of the Court’s opinions. Because the Court cannot coerce compliance with its decisions, its constitutional authority is supported by our culture’s tradition of respect for judicial authority and the rule of law. This respect is supported by the belief that in applying the Constitution, the justices of the Supreme Court are not simply expressing their own preferences about what the law ought to be. Rather, the Constitution itself directs their decision. Something in the text or the means of its interpretation controls or limits what the Court can do in a particular case. Just as the Constitution as interpreted by the Court regulates the authority of the rest of the government, the Constitution limits the authority of the Court itself. The problem, though, is that the constitutional text is short and vague, yet the Court has to use it to decide a huge array of cases. Article I, section 8, clause 3, for example, empowers Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” How does the Court know if this means Congress can require individuals to purchase health insurance? (The Court said Congress could not do so under the commerce clause but could establish a tax penalty for failing to buy insurance.) Or consider the abortion case Roe v. Wade. How did the Court conclude that the Constitution gives a woman an essentially uncon- strained choice to have an abortion in the first trimester of her pregnancy but that it also allows the state to regulate or prohibit abortion as the pregnancy progresses? Or think about Brown v. Board of Education, the 1954 case that ordered the desegregation of public schools. Today virtually everyone agrees that the decision was correct and a landmark in the devel- opment of social justice in America. But how could the Court conclude that segregated schools were prohibited by the Fourteenth Amendment’s equal protection clause when the Congress that passed the amendment also authorized segregated public schools in the District of Columbia? 20  Constitutional Law and Constitutional Politics The Constitution nowhere mentions health insurance, abortion, seg- regation, or schools. Yet the Court has to decide cases dealing with these and thousands of other subjects. A theory of constitutional interpreta- tion is crucial to constitutional law, but the Constitution does not pro- vide a guide to its own interpretation. Accordingly, constructing such a theory has been a major concern of judges and scholars. It would be easy to interpret the Constitution if its meaning were clear from the text itself. Unfortunately, that’s not the case. Most con- stitutional provisions are vague, like the commerce clause. Saying that Congress may regulate commerce “among the several states” just doesn’t tell us whether mandating the purchase of health insurance is included in Congress’s interstate commerce power. Moreover, sometimes we come to understand that the text doesn’t mean what it says anyway. The First Amendment states that “Congress shall make no law... abridging the freedom of speech,” but all constitutional lawyers agree that this consti- tutional prohibition applies to the president and the courts as well, even though this isn’t specifically stated. Because words never have meaning by themselves, we need a way to interpret them. The major struggle over theories of constitutional interpretation is between those judges and scholars who believe that the Constitution should be narrowly interpreted only according to the intent of the fram- ers or the understanding of its provisions at the time of adoption and those who assert that we have to look beyond those intentions and understandings. The former theory, that the Constitution has a “change- less nature and meaning,” as Justice David Brewer wrote (South Carolina v. United States, 1905) is known as originalism or interpretivism; the lat- ter is known as nonoriginalism and is sometimes described as the idea of a living Constitution. For originalists, adhering to the original understanding of constitu- tional provisions is mandated by the structure of the Constitution and keeps judges from running amok. The framers of the Constitution, act- ing on behalf of the people, delegated powers to the federal government. The power of judicial review is one of those powers. But no part of the government, including the courts, may exceed the scope of the powers that have been delegated to it, so the Supreme Court always must abide by the intent of the framers in making its decisions. This adherence to the original understanding is more than a legal necessity based on the structure of the Constitution, originalists argue; it is a practical necessity as well. Original intent provides a firm basis for constitutional decisions. As Justice Scalia, the most prominent contem- porary originalist, has written, “The originalist at least knows what he is looking for: the original meaning of the text. Often—indeed, I dare say 21 Law 101 usually—that is easy to discern and simple to apply.” Once the Court goes beyond this basis, it necessarily must resort to something other than the determinate understanding of the framers—something such as a political, economic, or philosophical theory as to what a just result would be in the case. But there are many such theories available—lib- eral, conservative, and otherwise—and a justice has no basis for choos- ing among them other than his or her own preferences. This ability to choose raises the specter of activist judging, of the justices superseding the decisions of the Congress or the states simply on the basis of their own personal preferences. The concept of originalism as a solid source of constitutional law is as attractive as the idea of a text with plain meaning, but nonoriginalist judges and scholars have identified problems with the concept. There is an initial problem of our ability to render a historical judgment about original intent or understanding. Reference to “the intention of the fram- ers” suggests that there existed a definable group of framers and that we can determine their intentions with a high degree of certainty. But who are the framers? The original Constitution was drafted, negotiated, and voted on in a convention composed of delegates from different states with different points of view and then ratified by the members of thir- teen state legislatures and conventions. The Bill of Rights was drafted in the First Congress and then submitted to the states for ratification. Subsequent amendments were drafted by later Congresses and ratified by still more state legislatures. Whose intent are we to focus on: the draft- ers of the provision at issue, others who participated in the debate at the convention or in the Congress, or members of the ratifying legislatures? The difficulties of ascertaining historical intention have led some orig- inalists to shift focus from the intention of the framers to the general understanding of a constitutional provision at the time of its enactment, what Justice Scalia described as “the intent that a reasonable person would gather from the text of the law.” The search for original under- standing therefore presumes that we can comprehend the framers’ world and apply that comprehension to our own world. But nonoriginalists point out the difficulty of achieving that comprehension. Originalism presumes that historical intent is a fact, like a physical artifact waiting to be unearthed. Historians know, however, that an understanding of the past is always shaped by our own views. It is impossible to achieve knowledge of the past unfiltered by our understanding of the present; how can we pretend not to know what we do know about what has happened over the past 200 years? Moreover, any historical understand- ing we do have must be applied to vastly changed circumstances. When the authors and ratifiers of the First Amendment thought of freedom of 22  Constitutional Law and Constitutional Politics speech and freedom of press, they could only have in mind some idea of freedom of speech and press—literally—because speaking and pub- lishing were the only forms of communication available. How do we translate that understanding to the regulation of, for example, readily accessible pornography on the Internet or pervasive commercial adver- tising on television? In dealing with social changes of this magnitude, the Court cannot simply ascertain and apply an original understanding that could not actually have been held. Instead, perhaps the Court should look more broadly for the original principles motivating a particular constitutional term, a set of provisions, or the Constitution as a whole. The problem with a strict originalism may be that it looks too narrowly for the inten- tion behind a provision. Some originalists and nonoriginalists suggest instead that it is possible to constrain the Court’s interpretation of the Constitution through the development of principles that arise from the text. Consider the due process clauses of the Fifth and Fourteenth Amendments, which state that no person may be denied life, liberty, or property without due process of law. Assume that we can tell that at the time of enactment people held some specific ideas about the meaning of the clauses. Here we can even refer to the rest of the Bill of Rights to suggest the content. Liberty includes physical liberty, and the govern- ment may not take someone’s liberty away without a trial by jury in which the defendant is allowed to be represented by counsel, to confront witnesses, and so forth. But the due process clauses would be superflu- ous if all they did was to restate the protections of the Fourth, Fifth, and Sixth Amendments. The clauses may state a more general principle about the right of Americans to be protected from government interfer- ence. “Liberty” in this more general understanding means the right to be left alone to carry on one’s daily life and personal affairs, and that liberty interest may only be invaded by the government when it has an impor- tant basis for doing so. Thus in determining and applying the meaning of the due process clause, the Supreme Court can refer both to the nar- rower meaning—the right to a jury trial—and the broader meaning—the right to be free from government interference. The broader meaning may be particularly useful as the Court faces cases that the framers would not have considered because the technology or social conditions that present them had not yet been developed. Two problems inhere in this approach, however. First, principles such as the right to be left alone may have even a weaker historical pedigree than attempts to establish a narrower original intent. All the problems of reconstructing a historical intention are magnified when the Court tries 23 Law 101 to establish a general understanding of a constitutional provision. It is as if the Court were to ask the framers not just “What did you under- stand the due process clause to mean?” but also to engage them in dia- logue about “What broader conceptions, including those you may never have made explicit, lay behind your thinking?” This inquiry is unmoored from historical intention and sets the Court loose to try to attach its own meaning to the constitutional provision without being bounded by original understanding. Once the Court begins down this path, the second problem becomes apparent. For any constitutional provision, it is possible to state princi- ples at different levels of generality as inhering in the provision. The deci- sion in a particular case will depend on the level of generality at which the Court states the controlling principle. The difficulty is that every principle, whether broad or narrow, is developed by the Court based on its own view of what constitutes a sensible reading of the provision at issue. The Court’s view is informed by the text, its history, its subsequent interpretation, and contemporary political and social realities. The risk, of course, is the problem with which constitutional interpretation began; in formulating its view, nothing checks the Court except its own good judgment and, ultimately, political realities. In the end, the choice between originalism and nonoriginalism and among their many variations is a choice based on political theory: What is the nature of the Constitution, why does it command obedience, and what is the role of the Court in interpreting it? These are difficult questions to resolve, and history does not answer them for us. Indeed, constitutional historians argue that the framers themselves were not originalists. Lawyers and statesmen in the late eighteenth century did not hold a conception of fundamental law as the positive enactment of a legislative body, such as a constitutional convention, whose understand- ing in enacting the law should guide its interpretation. And as Justice Kennedy wrote, the authors of the Constitution and its amendments may have intended it to be subject to change: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (Lawrence v. Texas, 2003) 24  Constitutional Law and Constitutional Politics Does this leave constitutional interpretation at the point where we simply say that it’s all up to the justices’ points of view and that they can read into the Constitution their own political views and personal preferences? Yes and no. “Yes,” in the sense that no plain meaning of the text, historical evidence, or objective principles determine their decisions. Constitutional interpretation inevitably involves an act of choice by a Supreme Court justice among many alternatives, and, as with choices elsewhere in life, the judge will choose based on his or her sense of what the right answer is. And “no,” in the sense that a justice is not completely free to reach any decision on any basis he or she wants. Justices are constrained by the ways the constitutional text has been understood historically and by the political and legal culture. This brings us back to the idea that constitutional law is as much a language and a process as a body of rules and rights. The words of the Constitution and the ways it has been understood, interpreted, and argued about inside and outside the courts provide the language the justices must use in interpreting and applying the Constitution. Constitutional law provides a way of framing issues and express- ing arguments. It is possible to say many different things and remain within the constitutional tradition, but, as with natural languages, some things cannot be said because the words are unavailable or because they seem improper or inappropriate. The Court in the Dred Scott case in 1857 could use constitutional terms and constitutional history to declare that blacks were a “subordinate and inferior class of beings” who could not be citizens of the United States, but a court today could not do the same thing. A court today could, however, rule in favor of or against affirmative action because either result would be within the scope of accepted constitutional discourse; even if we would not agree with the decision or would find it “wrong,” we would recognize it to be at least arguable in a way that a modern-day Dred Scott decision would not be. When it is taken seriously and pursued in good faith, constitutional interpretation becomes a model of principled debate on important social issues. It can be conducted at one level removed from immediate politi- cal controversies, making it easier to consider consequences, construct principles, and analogize to other situations—the kinds of things the legal process is best at. In addition to persuading others, constitutional analysis can be a way of examining one’s own assumptions and beliefs. Too often, of course, constitutional debate is not carried on at this level. Instead, it becomes one more vehicle for the expression of preconceived beliefs. Because the Constitution is subject to varying interpretations, 25  Law 101 justices and others can select the interpretation that best fits the con- clusion they wish to reach without engaging in a serious process of interpretation. Where Does the Supreme Court Get the Authority to Interpret the Constitution? The issue of how the Supreme Court interprets the Constitution is vitally important because of the Court’s power of judicial review. In most cases, the Court has the final say on what the Constitution means and how it applies in a particular case. (Every court, federal and state, has the responsibility and the authority to render decisions on constitutional issues, but all of those other decisions can ultimately be reviewed by the U.S. Supreme Court.) We have become so used to judicial review that it seems a natural, inevitable, and even necessary part of our government structure. But note how sweeping the power is. The president, Congress, state legislatures, governors, state courts, state and federal administra- tive agencies, public officials, and all ordinary citizens are subject to the commands of the nine justices on questions of constitutional law. At the time of the drafting of the Constitution, a power this broad was unknown anywhere else, and even today it is unusual among judicial systems around the world. Remarkably, the power of judicial review is not given to the Supreme Court in the Constitution itself. Article III states that “The 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 estab- lish,” and it extends that power to “all Cases, in Law and Equity, aris- ing under this Constitution” and to other categories. These provisions are organizational and jurisdictional. They create the Supreme Court, but “supreme” means only “highest,” designating a place in the hierar- chy but not the Court’s authority. The power to hear cases arising under the Constitution is likewise a grant of jurisdiction to hear certain kinds of cases but not a grant of authority to exercise constitutional review in hearing them. Article VI states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land.” This provision does not tell us either that the Constitution takes precedence over other “laws of the United States”—in other words, that the Constitution is superior to acts of Congress—nor that the Supreme Court, rather than the Congress, the president, or the states, has the authority to conclusively determine what the Constitution means. The power of judicial review was established by the Court’s decision in the 1803 case of Marbury v. Madison. Constitutional scholars, by 26  Constitutional Law and Constitutional Politics consensus, regard Marbury as the most important case the Court ever has decided, and its story bears retelling. As with so many important legal events in our own time, the story involves important personalities, partisan politics, and a little intrigue to go along with the law. Toward the end of George Washington’s presidency, national poli- tics came to be dominated by two groups: the Federalist Party, which elected John Adams president and controlled the Congress from 1796 until 1800, and the Democratic Republican Party (predecessor of today’s Democratic Party), which would gain a majority in the Congress and elect Thomas Jefferson in 1800. When it became apparent to the Federalists that they would lose control of the executive and legisla- tive branches, they moved to consolidate their power in the judiciary. President Adams nominated his secretary of state, John Marshall, to be chief justice. The Federalist Congress also passed legislation to increase the number of lower federal judges, reduce the number of members of the Supreme Court (to prevent the incoming Republicans from filling a vacancy), and authorize forty-two new justices of the peace in the District of Columbia. In the last days of his administration, President Adams nominated faithful party members to the new positions, and the Senate confirmed them. On the night before Jefferson was to become president, John Marshall—still serving as secretary of state for the last month of Adams’s term—performed the secretary’s traditional duty of affixing the Seal of the United States to the commissions of the new judges. Through inad- vertence, a few commissions were not delivered to the new officeholders that night, and the next day the newly inaugurated President Jefferson directed his secretary of state, James Madison, to withhold the remaining commissions, including one belonging to the soon-to-be-famous William Marbury, who had been appointed as a justice of the peace. Marbury sued for his commission, bringing what was known as a writ of mandamus in the Supreme Court. (A writ of mandamus is an order from a court to a government official directing the official to per- form some duty of his or her office.) Although he brought his action in 1801, the new Republican Congress had abolished the 1801 and 1802 terms of the Supreme Court, and therefore the case was not decided until 1803. Finally, the Court decided the case in an opinion by Chief Justice Marshall who, consistent with the ethical sensibilities of the time, saw no conflict between his roles as participant in the drama and judge of its resolution. In deciding Marbury, Marshall and his Court faced a dilemma. If Marshall failed to rule that Marbury was entitled to his commission, he would be acquiescing in an assumption of power by the executive 27 Law 101 branch, contrary to his Federalist principles and his belief in the need to assert the power of the judiciary. But the authority of the Supreme Court was not yet well established, so if he ordered that the commis- sion be delivered, Jefferson and Madison might simply refuse to com- ply, provoking a constitutional crisis. Marshall’s ingenious response was to sidestep the controversy by claiming the power of judicial review for the Court but exercising it in a way that denied Marbury his commission. Marshall’s opinion for the Court first held that Marbury’s appoint- ment was complete when his commission was signed by the president. At that point the secretary of state’s duties in sealing and delivering the commission were ministerial details, and failing to carry them out did not affect Marbury’s status. Next, because Marbury had a right to his commission, the appropriate remedy under law was mandamus directed to the secretary. The catch arose at the third step. Was the Supreme Court the proper forum in which to seek this remedy? Article III granted the Supreme Court original jurisdiction (i.e., the authority to hear cases in the first instance) in cases in which a foreign diplomat or a state was a party; in all other cases, it had only the author- ity to hear appeals from lower courts. The Judiciary Act of 1789 had expanded the Court’s original jurisdiction to include the power to issue writs of mandamus against federal officials. Marbury asserted that the Court had jurisdiction of his suit against Madison under the Judiciary Act. In the opinion’s tour de force, Chief Justice Marshall ruled that the Judiciary Act had impermissibly extended the Court’s original jurisdic- tion beyond that granted by Article III and therefore the Court could not grant relief to Marbury because it did not have jurisdiction of the case. This satisfied the immediate concerns of the Republicans, but the great significance of the case lay in the Court’s assumption to itself of the final authority to determine if the Judiciary Act or any other act of Congress was constitutional. Thus the opinion ceded the immediate issue while profoundly enhancing the Court’s authority. For Marshall, whether the Court had the power to review the consti- tutionality of legislation was an easy question. The people created the Constitution to be fundamental, supreme, and permanent law. Part of the constitutional scheme is that the federal government is a government of limited powers. The branches may exercise only the authority that the people have delegated to them in the Constitution. Therefore, any act that is contrary to the Constitution or beyond the powers enumerated in it is void. Article III’s grant of limited jurisdiction was exclusive, so Congress had no constitutional authority to expand the Court’s jurisdic- tion to include mandamus actions. 28  Constitutional Law and Constitutional Politics So far, so good. The key comes at the next stage of the argument. The Constitution is fundamental law, so it is law, and the interpretation and application of law is the traditional domain of the courts. It is emphatically the province and 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 that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the cases. This is of the very essence of judicial duty. Thus Marshall neatly concludes the syllogism. The Constitution is law. Courts interpret law. Therefore courts interpret the Constitution. But what was obvious to Marshall was not obvious to others. The law that the courts traditionally interpret and the law embodied in the Constitution may be two entirely different things. If the Constitution is fundamental law, perhaps it should not be treated the same as ordinary statutes and cases. Precisely because it is fundamental, constitutional interpretation might just as easily be left to the other branches of gov- ernment. Congress can make a judgment about the constitutionality of a statute when it enacts one, as with the Judiciary Act, and it would not be obviously inconsistent with the constitutional scheme for the courts to consider that judgment to be definitive. Despite the lack of logical rigor in Marbury v. Madison, it was the first strong pronouncement of the principle of judicial review. Although the Court exercised sparingly its power to declare congressional enactments unconstitutional in the decades after Marbury—it didn’t invalidate another federal statute until the Dred Scott case in 1857—the power had been asserted and initially acquiesced to by the other branches. Or perhaps it was because the power was exercised sparingly that it took root, since the Court was frequently under attack in the early years of the nineteenth century. The Court consolidated its power of judicial review by asserting a similar authority over state law. In 1810 the Court first invalidated a state statute in Fletcher v. Peck on the grounds that the statute, an attempt to rescind title to land that had been fraudulently conveyed, violated the contract clause. Then in Martin v. Hunter’s Lessee in 1816, another case involving a land dispute, the highest court in Virginia ruled 29 Law 101 for one party but the U.S. Supreme Court, on appeal, ruled differently. The Virginia court refused to obey the Supreme Court’s mandate, assert- ing that it could decide the issue for itself and that the federal Judiciary Act, which granted appellate jurisdiction to the Court, was unconstitu- tional. When the case returned to the Supreme Court, the Court, in an opinion by Justice Joseph Story, reasserted its constitutional authority. In adopting the Constitution the states had ceded some of their sover- eignty to the federal government. The federal judicial power included all cases involving constitutional interpretation, and the supremacy clause made the federal law preeminent. Finally, in Cohens v. Virginia (1821) the Court extended its power to encompass the review of state criminal proceedings. Unless state proceedings were subject to review in the fed- eral courts, the states could thwart federal law and policy by punishing individuals who asserted valid constitutional rights. Thus by the end of John Marshall’s tenure as chief justice in 1834, the foundation had been laid for Supreme Court review of the constitu- tionality of the acts of state and federal legislative bodies and executive officials. Since then it has been recognized that the Court’s power to interpret the Constitution is immense. That power is, however, neither unique nor unlimited. Every major public official takes an oath of office pledging to uphold the Constitution and therefore is required to inter- pret it in the performance of his or her duties. A senator weighs the constitutionality of a bill in deciding whether to vote for it, the president decides whether ordering the torture of enemy combatants is within his constitutional authority as commander-in-chief, and even a police offi- cer on the beat decides whether frisking a suspect is constitutional. To that extent, the real question is not who interprets the Constitution but whose interpretation counts the most. Throughout American history, presidents and other officials have asserted their independent authority to determine what the Constitution requires and to act on those determinations. Thomas Jefferson regarded the idea of “judges as the ultimate arbiters of all constitutional questions” to be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”; because he considered the Sedition Act of 1798 to be unconstitu- tional, he exercised one of the powers granted to the president by the Constitution and pardoned defendants convicted under it, even though the act had been applied and upheld by the court. Abraham Lincoln famously denounced the Dred Scott decision, which held that blacks were not citizens, declaring that it would not bind him as member of Congress or president. George W. Bush issued many signing statements when he signed bills into law that challenged the 30  Constitutional Law and Constitutional Politics constitutionality of provisions of the bills and asserted his intention not to enforce them. Today some scholars argue for a revival of popu- lar constitutionalism, in which the political branches of government have more of a role in interpreting the Constitution. When the Court and other branches come into conflict in interpreting the Constitution, however, the Court generally triumphs. Consider two illustrations of attempted and potential resistance and its ultimate futil- ity. The Court’s decision desegregating public schools in Brown v. Board of Education was met in many southern states by official and unofficial resistance. Some southern legislatures, for example, enacted resolutions “nullifying” the decision and tried to avoid its effects by schemes such as refusing to fund desegregated schools. In Cooper v. Aaron (1958), the Court rejected all of these efforts and reasserted the principle of Marbury, that “the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable fea- ture of our constitutional system.” The southern states’ defiance of the Court’s power was so challenging to the constitutional order that all nine justices took the extraordinary step of attaching their names to the opinion individually. In the Watergate era, the courts were faced with a number of cases aris- ing from the investigations into the illegal activities of President Nixon and his cronies. In United States v. Nixon (1974), for example, the Court held that the courts, not the president, could determine whether evi- dence sought by the Watergate special prosecutor was validly subject to the president’s claim of executive privilege. Review of evidence like this was a judicial function that Article III had committed to the courts, and the president was subject to their judgment on the issue. More remark- able than the Court’s pronouncement was President Nixon’s acceptance of it. Even though the chain of events would lead to his resignation in disgrace, the president could not challenge the established practice of judicial review. Since the Constitution covers the entire scope of government affairs, judicial review could conceivably encompass every aspect of govern- ment, and the logic of Marbury v. Madison suggests that the Court should engage in constitutional review of any case. Nevertheless, the Court has concluded that as a matter of constitutional requirement or judicial prudence, there are some issues that are committed to Congress or the president without judicial review. The Court is limited in what it can do as a practical matter as a judicial body and as a political matter in assessing its responsibilities relative to the other branches, so it refrains from deciding political questions. 31  Law 101 To take an example, there was a spate of litigation during the Vietnam War that sought to declare the war illegal because Congress had never formally declared war, or to prevent the government from prosecuting some parts of the war such as the bombing of Cambodia. Were these nonjusticiable because they involved political questions? Following Marbury, one might consider this a straightforward issue of constitu- tional interpretation. Does the Constitution require Congress to declare war before the president commits troops, or may the president conduct and Congress fund an undeclared war? But would deciding that ques- tion engage the Court in policymaking of the kind that is only or best left to the other branches of government? If so, it is a nonjusticiable politi- cal question that the courts cannot decide. Although none of the cases reached the Supreme Court, the lower courts held in these cases—and in subsequent cases involving President Reagan’s military engagement in El Salvador and the first Persian Gulf war—that decisions about war and peace were committed to the president and the Congress. What Powers Does Constitutional Law Give to the Rest of the Federal Government? The Supreme Court has the power to review state and federal legislation to determine if the laws are constitutional. The federal court system also has jurisdiction over many nonconstitutional cases including ordinary civil cases arising under federal statutes or involving citizens of differ- ent states and criminal cases such as bank robbery, drug offenses, and other violations of federal law. What does constitutional law say about the powers of the other branches of the federa