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 that the Court has 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. 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 ACases . . . arising under this Constitution.@ Art. III., ‘2, cl. 1.
1. Political Question Doctrine. The Court has held that a few questions constitute Anonjusticiable 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, but rather how it 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.
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 at least, individual rights are not absolute in that way so that governmental action that impinges on them are conclusively invalid without any need to consider the strength of the government=s countervailing regulatory interests. In United States v. New York Times, for instance, the Court recognized that even a prior restraint of political speech may be justifiable in exceptional circumstances.
2. Strict Scrutiny. Strict scrutiny is a very demanding standard of judicial review, which treats the challenged governmental action as presumptively invalid. In particular, the challenged action will be held to violate the Constitution unless it can be shown to be the least restrictive means of advancing a compelling governmental interest. The Court uses this standard in evaluating the constitutionality of, e.g, intentional 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 B 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 Afit@ 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 of intermediate scrutiny such as a balancing test in evaluating the constitutionality of, e.g., intentional 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 Asubstantially related@ to its regulatory objective. The regulatory means does not have to be the least restrictive alternative. Some overbreadth or underbreadth in accomplishing its objective may be tolerable, depending on the degree to which the regulation impinges on constitutional values. In deciding whether the regulatory means and objective have the appropriate fit, the Court accords differing degrees of deference to the government in different contexts.
4. Rational Basis Test. The rational basis test generally requires only that the governmental action/regulation be rationally related to a legitimate governmental end. The Court employs this test in evaluating the constitutionality of, e.g., intentional governmental discrimination against nonsuspect groups (equal protection), governmentally imposed burdens on nonfundamental rights (substantive due process), and federal legislation regulating intrastate commerce (federalism: the Commerce Clause).
a. Governmental end. The government=s regulatory objective need only be legitimate, i.e., lawful. In keeping with great deference the Court generally accords to the government under the rational basis test, the Court generally does not insist on any evidence that the government actually had the asserted regulatory objective(s) in mind when it acted. It is generally sufficient if that objective conceivably could explain the government=s challenged action. In some cases, the Court has attributed to the government objectives that the government did not even identify in the litigation.
b. Means/end fit. The relationship between the government=s regulatory objective(s) and the means chosen to advance that(those) objective(s) must be rational. The Court generally gives government very great in deference in making this determination. 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 Astandard,@ e.g., when it holds that the issue at hand is a nonjusticiable political question and in evaluating regulation of unprotected speech that does not discriminate on the basis of viewpoint.
II. INDIVIDUAL RIGHTS
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 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, thereb
tures for ratification. At the time, the Senate did not record its deliberations and the records concerning deliberation in the State legislatures are sparse.
Despite the paucity of relevant legislative history, the Supreme Court occasionally considers in a broader way, looking at practices and thought extant at the founding. For instance, in McIntryre v. Ohio Elections Commission, the Court relied on the Founders= apparent acceptance of speaker anonymity in invalidating an Ohio law that prohibited the circulation of anonymous leaflets in connection with political campaigns. In New York Times v. Sullivan, however, the Court held that the First Amendment substantially limits doctrines of defamation and libel law that the Founders= apparently accepted.
c. Values. Scholars and the Justices have attributed a number of basic aims of the First Amendment, which have influenced their view of its meaning.
i. Free Marketplace of Ideas/Search for the Truth. On one view, the basic aim of free speech is to facilitate the search for the truth by creating a free marketplace of ideas. This conception traces back to Justice Holmes dissent in Abrams v. US, where declared: A[T]he ultimate good is better reached by free trade in ideas B . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .@ This idea has a number of potential doctrinal implications.
– It would seem to imply that Aspeech@ covers communication in some way connected with the truth, such as political speech and science, for instance. Non-figurative art and instrumental music would seem not be fit within this conception, except perhaps if one were substitute Ahuman excellence@ for Atruth@ as the ultimate end of the free-marketplace of ideas.
— Falsity. Falsity has a positive value in the marketplace of ideas conception and, it would seem, ought to be protected. It is by juxtaposition with falsity that truth is better identified.
* AAbridgement.@ The marketplace conception would seem hostile to any effort to regulate the market, except perhaps insofar as regulation fulfills an Aantitrust@ function of removing obstacles to a free and unfettered market.
ii. Political Democracy. The oft-expressed idea that political speech is at the core of the First Amendment derives from the political democracy conception. On this view, free speech functions to facilitate the effective operation of political democracy. The representative government established by the Constitution cannot function effectively unless citizens have freedom to applaud and condemn their government and its policies.
* ASpeech.@ The political democracy conception implies that discussion of political candidates, governmental policies, and public issues is protected. Art, music, and science would seem to be protected insofar as they have political content. This and other expression not having political content, such as purely commercial speech, would seem to be unprotected except perhaps on an argument that drawing a line between political and nonpolitical speech would be difficult, subject to misapplication