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Constitutional Law I
University of Kansas School of Law
Stacy, Thomas G.


A. Supreme Court as Ultimate Arbiter of the Constitution’s Meaning. As a general matter, the United States Supreme Court is the ultimate arbiter of the Constitution’s meaning. History has understood Marbury v. Madison as establishing the Court’s authority to decide the Constitution’s meaning in cases properly before it and to have such decisions prevail in the event of disagreement on the part of the federal Executive or Legislative branches. Under Article VI’s Supremacy Clause, federal law is supreme. It, and the U. S. Supreme Court’s interpretation of it, prevails over state law to the contrary. Martin v. Hunter’s Lessee, among other cases, upholds the Court’s authority under Article III to review state court decisions in cases within the Judicial Power of the United States. Cases within that Power include “Cases . . . arising under this Constitution.” Art. III., §2, cl. 1.

1. Political Question Doctrine. The Court has held that a few questions constitute “nonjusticiable political questions.” At least in some of its applications, this doctrine holds that although the Constitution indeed does speak to the matter at hand and its meaning is contested, the resolution of that meaning is left to the political branches of government rather than the Court. See infra Separation of Powers.

B. Standards of Review. The question now is not whether the Court has the power of judicial review, understood to encompass authority to declare acts of the federal and state governments as contrary to the Constitution and to have its judgments accepted. Rather, the question of contemporary import is how the Court should exercise that power. In deciding what the Constitution means and requires, the Court can and has employed a number of different standards of review. It is important for students analyzing constitutional issues to identify the applicable standard of review. The Court has decided the standard of review applicable in many areas (e.g., restrictions on nonfundamental liberty interests). Supreme Court precedent does not resolve the standard applicable to some issues (e.g., prior restraint on commercial speech). The standard that ought to apply is a matter of constitutional argument.. And in some areas, the Court has defined the Constitution’s meaning without reference to standards of review. In District of Columbia v. Heller, for instance, the Court eschewed reliance on a standard of review and instead sought to interpret the meaning and scope of the Second Amendment right to bear arms solely with reference to its terms and history.

1. Conclusive Invalidity. The Court can decide that the Constitution requires or prohibits something regardless of the strength of countervailing considerations. For instance, if Congress enacts a law that is not within one of the heads of regulatory authority granted by the Constitution (see, e.g., Article I, section 8), the Court declares that law unconstitutional. Generally speaking, individual rights are not absolute in this way. Governmental action that impinges on an individual right generally is not conclusively invalid such that the strength of the government’s countervailing regulatory interests is irrelevant. In United States v. New York Times, for instance, the Court recognized that even a prior restraint of political speech, which lies at the very core of what free speech protects, may be constitutional in exceptional circumstances.

2. Strict Scrutiny. Strict scrutiny is a very demanding standard of judicial review, which treats the challenged governmental action as presumptively unconstitutional. In particular, the challenged action will be held to violate the Constitution unless the government can show it to be the least restrictive means of advancing a compelling governmental interest. The Court uses this standard in evaluating the constitutionality of, e.g, purposeful governmental discrimination based on race (equal protection), viewpoint discrimination against speech (free speech), and state regulation that on its face treats interstate commerce different from intrastate commerce (federalism: the Commerce Clause).

a. Compelling governmental interest. The objective of the governmental action or regulation must be very, very important – compelling. Saving lives and protecting the nation’s security undoubtedly count as compelling. Neither promotion of traditional moral values nor administrative convenience — saving time or money – is compelling.

b. Means/end fit: Least restrictive means test. The fit between the government’s regulatory objective and the means it has selected to advance that objective must be perfect. The challenged action/regulation will flunk strict scrutiny if the Court can identify some other regulatory means that will as effectively advance the government’s regulatory objective but will not impair the constitutional value at stake (free speech, free flow of interstate commerce) to the same degree. In deciding whether the “fit” between regulatory means and objective is perfect, the Court typically accords the government’s view on this matter no deference whatever.

3. Intermediate Standard of Review. As its name suggests, an intermediate standard of review occupies an intermediate position between strict scrutiny, on the one hand, and the highly deferential rational basis test, on the other. In its traditional formulation, it requires that the challenged governmental action/regulation be substantially related to an important governmental

ement of proportionality between the degree to which the regulation promotes the government’s objective and to which it compromises constitutional values. In evaluating the means/end fit, the Court typically gives government very great in deference. It is therefore generally sufficient if it is not crazy/irrational to believe that the chosen means promotes the government’s regulatory objective(s) to some degree.

5. Conclusive Validity. A rule of conclusive validity is tantamount to no judicial review at all. The Court employs such a “standard,” e.g., when it holds that the issue at hand is a nonjusticiable political question and it confronts regulation of unprotected speech that does not discriminate on the basis of viewpoint.


A. Incorporation and Reverse Incorporation.

1. The Bill of Rights. The Bill of Rights, which refers to the first ten amendments to the Constitution, establishes individual rights that the federal government may not encroach upon. The Bill of Rights, standing alone without the Fourteenth Amendment, does not constrain the actions of state governments. Barron v. City of Baltimore, 32 U.S. 243 (1833).

a. Reverse Incorporation & Equal Protection. Unlike section one of the Fourteenth Amendment, which by its terms constrains state governments and not the federal government, the Bill of Rights does not guarantee equal protection of laws. Nonetheless, the Court has held that the guarantee of equal protection is incorporated into the Fifth Amendment’s due process clause, thereby making it applicable to the federal government. Bolling v. Sharpe, 347 U.S. 497 (1954)(applying Brown v. Board of Education to overturn racial segregation in the public schools of the District of Columbia, which is not a State and is a federal district over which the U.S. Congress has ultimate authority).

2. The Fourteenth Amendment. The Fourteenth Amendment establishes individual rights that state governments must honor. These include the rights of due process and of equal protection.

a. Incorporation & Free Speech, Freedom of Religion, etc. The FourteenthAmendment does not explicitly require state governments to respect the rights