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THE BRITISH SYSTEM
It has often been said that in the United States the Constitution is
what the Supreme Court says it is. In Great Britain, however, the
Constitution is what Parliament says it is. The British Constitution
is not a single document as is the case in the United States. It is
comprised, rather, of a series of Parliamentary acts, including the
Bill of Rights, which became law in 1689, the Act of Settlement
(1700-01), the Parliament Act (1911), various Representation of the
People acts that extended voting rights, laws dealing with the
structure of the court system, various local government acts, and
many others. Because the British Constitution is, in a real sense, a
product of Parliament, it can be amended by Parliament through the
passage of ordinary laws. It is theoretically possible--though highly
unlikely--that Parliament could by a simple law abolish freedom of
the press or the right to trial by jury. If Parliament took such
actions, there is no authority, including the courts, empowered to
declare them unconstitutional. In terms of constitutional law,
Parliament is the court of last resort.
THE AMERICAN SYSTEM
The United States Constitution was produced at the Constitutional
Convention held at Philadelphia in the summer of 1787. At the time
the issue of whether the proposed Supreme Court should be allowed to
deal with whether laws were or were not constitutional came up. There
was a general sentiment against it and the Constitution, as finally
written, included no specific means by which the constitutionality of
laws or actions of government should be decided. It was apparently
felt that the separation of the powers of federal government would be
sufficient to guard against abuses of power by any one of its
branches--the executive, legislative, and judicial.
Who should interpret the Constitution? The answer to this question
was settled in 1803 by Chief Justice of the United States Supreme
Court John Marshall (See below, "Judicial Review"), but the debate
over it went on for some decades. Even before the Constitution was
ratified, Alexander Hamilton wrote in the 'Federalist Papers' that
"The courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to keep the
latter within the limits assigned to their authority." Thus, he
claimed, if the legislature passes a law that violates the
Constitution, it is the duty of the judges of the Supreme Court to
disregard the law and follow the Constitution. This view of
Hamilton's, which eventually became the doctrine of judicial review,
had no specific support in the Constitution itself. Several years
later Thomas Jefferson correctly noted that "there is not a word in
the Constitution which has given that power [judicial review] to them
[the Supreme Court] more than to the executive or legislative
Jefferson believed that it was the privilege and responsibility of
each branch to decide on the constitutionality of its own actions. He
foresaw that "contradictory decisions may arise" but was certain that
"the prudence of the public functionaries, and the authority of
public opinion, will generally produce accommodation." Jefferson
admitted that the point of view held by most Americans at the time
was that the legislature alone should determine constitutionality. He
was against giving this authority to the Supreme Court alone.
It was Hamilton's point that won the argument. And the man who
established it by a series of brilliant judicial rulings was
Marshall. It was he who brought to the Supreme Court the ultimate
power of declaring federal and state laws invalid when the court
decided they were not constitutional. This process by which American
courts rule on the constitutionality of legislation and refuse to
enforce laws that in their judgment violate the Constitution has come
to be known as judicial review. The term applies not only to the
work of the Supreme Court but to the rest of the federal court system
and to state supreme courts.
Judicial review was itself a product of an 1803 judicial ruling in a
case that has come to be regarded as a turning point in American
constitutional history--Marbury vs. Madison. The case began in a
political struggle. John Adams and his Federalist party had lost the
election of 1800, and Thomas Jefferson was elected president. Just
before he left office, Adams signed a large number of appointments
for judges and justices of the peace. These new appointees were, like
himself, members of the Federalist party. What Adams was trying to
do, in effect, was pack the federal judiciary with Federalists so
that at least one branch of the government would be in Federalist
hands when Jefferson and his Democratic-Republicans took office. In
the rush to get the appointment papers delivered at the last minute,
the Federalists did not get them to some justices of the peace.
One appointee who had not received his appointment papers, William
Marbury, sued the secretary of state, James Madison, in order to
obtain them. He wanted the Supreme Court to issue an order (called a
writ of mandamus) forcing the delivery. The chief justice was John
Marshall, who had been secretary of state under Adams and was the man
responsible for the delivery of the appointment papers in the first
place. Marshall was a Federalist and no friend of Jefferson. The
chief justice was in a predicament. If he signed a writ, there was
little likelihood that Madison would honor it--the Supreme Court at
that time did not have the great prestige it has today. On the other
hand, if Marshall did not issue a writ, he would be surrendering to
Jefferson and admitting that the Supreme Court was powerless.
Marshall's solution was brilliant. On the one hand, he declared that
Madison was in violation of the law for refusing to deliver the
papers. On the other, he ruled that the law under which the court
should issue a writ of mandamus was unconstitutional. The law was the
Judiciary Act of 1789, specifically Section 13, which stated that the
court could issue writs to persons holding office under the authority
of the United States. Marshall's reasoning was that the court did not
have original jurisdiction, or authority, in such a case -- only
appellate, or review, jurisdiction.
Behind Marshall's reasoning was a conviction that he held to in all
of his later rulings: since the Constitution is the supreme law of
the land, and since it is the duty of the Supreme Court to uphold the
law, two things clearly follow. First, when a law is inconsistent
with the Constitution, the Constitution must be followed. Second,
without judicial review, a written constitution is futile as a means
of limiting abuses of power by government.
Judicial review is a power the federal courts have used only rarely
since Marbury vs. Madison. By the mid-1980s, only about 100 federal
laws had been declared unconstitutional, and it was more than 50
years after Marbury before such a ruling was handed down again.
The courts exercise this power only when it is necessary to decide
cases and controversies. They do not give advisory opinions to either
the president or the Congress before or after the passage of laws.
Furthermore, the Supreme Court begins its review of a case with the
assumption that a legislature did not intend to violate the
Constitution when it passed a given law. Thus the burden of proof
always rests on the party who questions the validity of the law.
The Supreme Court also takes a strict view of who is allowed to raise
constitutional questions before it. A party must have a direct and
substantial interest at stake. Otherwise everyone who did not like a
particular law would go to court to have it struck down.
Through judicial review the Supreme Court has become the primary
interpreter of the Constitution. It has used this power to promote
the steady growth of the federal government's authority and to make
the Constitution the supreme law.
LANDMARKS OF CONSTITUTIONAL LAW
The cases cited here are but a few of the many significant ones that
have come before the United States Supreme Court. Each has a
fascinating story behind it and is well worth learning more about.
Trustees of Dartmouth College vs. Woodward (1819). In the summer of
1816 the legislature of New Hampshire had removed Dartmouth College's
charter and given it a new one. The issue before the Court was
whether a corporate charter was a contract. Chief Justice John
Marshall ruled that it was and that, according to the Constitution,
no state could impair the obligation of a contract. This decision
had far-reaching effects. It freed corporations once and for all from
state interference with their charters, and investors became more
willing to invest in such enterprises. It thus directly promoted the
growth of American corporate capitalism.
Gibbons vs. Ogden (1824). The New York legislature had granted a
monopoly to Robert Livingston and Robert Fulton to operate steamboats
in New York waterways. Part of these rights were later assigned to
Aaron Ogden. A former partner of Ogden, Thomas Gibbons, entered the
steamboat trade in violation of the monopoly, and a lawsuit began.
When the appeal came before Chief Justice John Marshall, his opinion,
based on an interpretation of the Commerce Clause of the
Constitution, cast aside all similar monopoly laws and extended to
Congress the regulation of all navigation on inland waterways that
had to do with interstate commerce. This ruling permanently freed
American commerce--not only steamboats but railroads and other
communication-transportation forms--from hampering state laws that
might hinder economic expansion and growth.
Plessy vs. Ferguson (1896). Homer A. Plessy was a Southern black man.
In order to test Louisiana's segregation laws, he rode in train cars
clearly marked "for whites only." He was arrested and convicted of
breaking the law. He appealed to the Supreme Court and Justice Henry
B. Brown ruled that "separate but equal accommodations" were
constitutional. It was this decision that was overturned in 1954 in
the famous case, Brown vs. Board of Education of Topeka, Kansas. The
Brown ruling by Chief Justice Earl Warren stated that separate but
equal educational facilities were unconstitutional.
Baker vs. Carr (1962). This is the famous "one-man, one-vote" case.
State legislatures have great freedom in redrawing the boundaries
within the state that significantly affect the elections of
representatives to state and federal houses of representatives. In
farm states it has not been unusual for district lines to be drawn in
such a way as to deprive cities and suburbs of full representation.
The ruling by Justice William J. Brennan, Jr., found that this denies
them equal protection of the law on the basis of the Equal Protection
Clause of the 14th Amendment. His decision stated that federal courts
could rule on whether states were unfairly depriving city and
suburban voters of representation.
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