I. JUDICIAL REVIEW.
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 interest. The Court uses this standard — or some variant such as a balancing test — in evaluating the constitutionality of, e.g., purposeful governmental discrimination based on gender (equal protection), state regulation that burdens interstate commerce but does not facially discriminate against it (federalism: Commerce Clause), and content-neutral time, place, and manner restrictions on speech (free speech).
a. Important governmental interest. The objective of the governmental action/regulation does not have to be compelling, as under strict scrutiny. But, on the other hand, it is not sufficient, as it is under the rational basis test, that the objective be simply legitimate, i.e., not unlawful.
b. Means/end fit. The regulatory means chosen by the government must be “substantially related” to its regulatory objective. The regulatory means does not have to be the least restrictive alternative, although the availability of such alternatives is relevant. Some overbreadth or underbreadth in accomplishing its objective may be tolerable, depending on the degree to which the regulation impinges on constitutional values. In essence, the degree to which the regulatory means impinge on the constitutional value in quest
r. 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 specified in the Bill of Rights such as freedom of speech, freedom of religion, the right to bear arms, and many other rights. Nonetheless, the Court has held that the Fourteenth Amendment’s Due Process Clause incorporates specified rights which are “fundamental.” Through such incorporation, these fundamental specified rights are thereby made applicable to state governments. These now include almost all of the rights specified in the Bill of Rights, including the rights of freedom of speech and of religion.
i. Incorporation & Substantive Due Process. Because the Court has incorporated rights in the Bill of Rights that are not procedural in nature (e.g., freedom of religion), the incorporation doctrine, in part, is an instance of substantive due process (as opposed to procedural due process).
ii. Second Amendment Right to Bear arms. In District of Columbia v. Heller, (2008), the Court held that the Second Amendment’s right to bear arms embraces a right on the part of individuals, inter alia, to possess handguns in the home for purposes of self-defense. The Court struck down a District of Columbia on handgun possession insofar as it infringed upon that right. Because the District of Columbia ultimately is governed by the federal government and is not a State, the Court did not need to and did not decide whether the right to bear arms is incorporated into the Fourteenth Amendment’s due process clause. The Court did refer to evidence that some involved in the process of making the Fourteenth Amendment law understood the Second Amendment to recognize an individual right and the Fourteenth Amendment to encompass that right.
b. Privileges or Immunities Clause. Section 1 of the Fourteenth Amendment provides that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .” In the Slaughterhouse Cases, 83 U.S. 36 (1872), the Court interpreted this guarantee to protect only those “privileges or immunities” (i.e., rights) already established in other provisions of the Constitution, thereby effectively making the guarantee superfluous.
i. Privileges or Immunities & the Right to Travel. See equal protection, infra.
ii. Article IV Privileges & Immunities Clause. The Privileges or Immunities Clause of the Fourteenth Amendment is premised on the idea that individuals have certain rights in virtue of U.S. Citizenship and that
