What determines Whether something is "Constitutional" in the USA ?

Great Debates
1

I had always assumed that the three branches of government shared the responsibility for determining whether something is “constitutional”.

But, in this thread , posts such as these …

Grendel72 claims that congress does not have the authority to interpret the constitution

and Tomndebb says the same for the court system

in particular the Supreme Court

Grendel72 appears to support the implicit truth theory in this statement

EchoKitty suggested that perhaps there is a true supreme court waiting in the wings to take over from the current pretenders

(which makes me wonder how I will recognize the true supreme court when I see it. Perhaps it too will be plainly obvious)
These posts have lead me to believe that either there is some kind of objective truth hidden in the constitution that is only revealed to the chosen few or that the constitution rests on some higher authority to which I do not have access.

It also makes me wonder what the value of the constitution is if congress and the supreme court are not obliged to honor it, but perhaps that’s a subject for a different thead.

If I wanted to find out whether something is constitutional, how would I find out ?

2

In the american system of government, congress makes laws, the president enacts them, and the Supreme court decides on their constitutionality. The. U.s. Constitution, like any other document, requires analysis and interpretation. Naturally, this will vary according to the legal and philosophical biases of the people doing the interpretation. so a liberal court, such as the Warren court, will have a wide interpretation of the Constitution’s meaning, while a conservative court, such as the Rehnquist Court we are enduring now, employs a strict interpretation.

3

Oooh, oooh! I know! ::::raises hand frantically::::

This is an old question going back to Marbury v. Madison, 1 Cranch 137 (1803), in which the Supreme Court of the U.S. basically determined itself to be the final arbiter what the constitution means under its power of “judicial review.” The authority to determine the constitutionality of something belongs solely to SCotUS. Which means that all Congress (or a state legislature) can do is to pass a law that’s consistent with what the court has said. (I.e., SCotUS says that a state abortion statute must have an exception for the life and health of the mother. Congress can scream until it’s blue in the face about how the court is wrong, but chances are a statute that says otherwise will be overruled.)

There’s still legal controversy about whether judicial review is a licit power under our constitutional system, although this is pretty much settled law. The issue came up two years ago whether Congress could ever overrule the Supreme Court in Dickerson v. United States, 530 U.S. 428 (2000), where it was argued that a federal statute superceded Miranda v. Arizona. SCotUS didn’t buy it. This has been criticized as the court saying “You can’t overrule us 'cause we said so.” :smiley:

4

The Supreme Court is the institution charged with interpreting the Constitution of the United States. Notwithstanding Grendel or EchoKitty’s comments, that body issues final decisions on constitutional issues.

It may, of course, reverse its own decisions somewhere down the line. But that merely means that what was once constitutional is now unconstituional. It does not mean that there is a secret, objective, and unchanging line – to the contrary, the Constitution has guided the country for over two hundred years with less than thirty amendments over that time. But what is, and is not, constitutional has changed dramatically over the years as the result of ever-emerging nuances of interpretation.

But the bottom line is: if the Supreme Court says that it’s constitutional, then it is. Period.

  • Rick
5

That’s what I thought. So what should I answer when someone asserts that it does not have that authority ?

You seemed to concur withResIpsaLoquitor, gobear but left a little wiggle room. Do you think SCOTUS has that authority ?

6

I think you mischaracterize the issue in Dickerson.

The Supreme Court has every right to make rules of evidence for federal courts, subject to Congress’ higher authority to do so.

Shortly after Miranda, Congress passed 18 U. S. C. §3501, which attempted to return the state of affairs for admissibility of confessions in federal court to its pre-Miranda state. 18 U. S. C. §3501 mandated that confessions were admissible if they were voluntary, period, and rejected the prophylactic rule enunciated in Miranda.

If the Supreme Court in Miranda had been exercising their power to make rules of evidence, then Congress had every right to overrule them. If, however, Miranda was an announcement of new constitutional law, then Congress had no power to change the admission of confessions. Miranda could be read as merely the former, and that’s one theory advanced by the Fourth Circuit when they sua sponte admitted a confession from bank robber Dickerson.

The Supreme Court heard Dickerso to resolve the issue. The Supremes confirmed that, in fact, the “Miranda warnings” were required as a matter of constitutional dimension, and, even if they weren’t, were now so

  • Rick

  • Rick

7

Any wiggle room was unintentional. SCOTUS does indeed have that authority, even though it sometimes uses that authority wrongly, as in the recent unpleasantness that gave W the presidency.

8

The only way the SCOTUS can be overruled on a constitutional issue is (1) when it overrules it’s own prior decision (cutting against the policy of stare decisis requiring the Court, as a matter of policy, to be bound by its past decisions unless such decisions render the law unworkable); or (2) by a Constitutional amendment trumping the Court’s interpretation.

9

What tSCotUS says is constitutional is legally binding, but that doesn’t mean that it actually decides what is constitutional. It is unconstitutional for Congress to outlaw people speaking against the government. Even if tSCotUS were to declare that to constitutional, it still would be unconstitutional.

10

Apparently, The Ryan decides what is constitutional.

11

gobear:

“1 Cranch 137?” What kind of date is that?

12

It’s not a date, Monty. It’s the cite to the case reporter containing the decision. Lo these many years ago (through about the mid-18th Century), court opinions were collected in volumes named after their compilers. Thus, Marbury may be found in the first volume compiled by a guy named Cranch, starting on page 137.

At some point, everybody got tired of the editors/compilers dying or quitting every few years, and they just started naming the volumes (more or less) after the courts/jurisdictions/regions issuing the opinions. Today, Supreme Court opinions are collected in the volumes U.S., S. Ct., and L. Ed. (“Lawyer’s Edition,” which is compiled fairly quickly and contains handy headnotes). Thus, a modern Supreme Court cite looks something like Smith v. Jones, 404 U.S. 132 (1988).

Federal court of appeals decisions are collected in the “F.3d” volume (the F. and F.2d series having run out of volume numbers some time ago) and include the name of the court issuing the opinion. For example, Dogs v. Cats, 222 F.3d 1081 (5th Cir. 2002). Federal district court opinions are next to useless on anything but procedure questions, but the district judges like to see their opinions in print too. They get cited in the Federal Supplement series, such as Adams v. vos Savant, 88 F. Supp. 2d 386 (N.D. Tex. 2000).

State court decisions are sometimes still issued in volumes named after the individual state (e.g., “Ind.” or “N.J.”) but except for New York and California, everybody uses multi-state compilations such as N.E., S.W., A. (“Atlantic”) and P. (“Pacific”). The S.W. reports, which I use all the time, are up to around volume 80 of S.W.3d, and include opinions from Texas, Missouri, Kansas, Tennessee, and a couple other states I can’t remember right now. Hence, Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001).

More than you ever wanted to know about legal citation, huh?

13

Thanks, minty. I really was hoping it was a date. Much easier to spell than “February.”

And, since I’m addicted to Law & Order, I’ll certainly pay more attention to the lawyers in camera discussions with the judges now!

14

miny, I’m puzzled. Why are district court judgments not worth anything? I appreciate that on major constitutional issues, you look to the latest from the Supreme Court or the Circuits, but not everything goes on appeal, does it?

I’m just going by the system I’m used to, where decisions of the superior trial courts are precedents, and lots of matters never go on appeal, so the trial decision may be the only case on point for future cases.

15

Wasn’t there an early 1800s Supreme Court case that ruled that an unConstitutional law was null and void even if the SC didn’t declare it unConstitutional? That would suggest it’s ultimately up to the citizenry (and hence, juries) to determine.

Or maybe I’m misremembering.

Anyone know more about that?

16

To continue the hijack, I exaggerate a bit on the low value of federal district court opinions, Piper. Not much though, in my experience. District court opinions aren’t binding on anyone except the court that issued them. They might or might not be persuasive in their analysis, but they’re just not going to establish much of anything by themselves. Look at that idiotic death penalty opinion by the federal district court in N.Y. today. Think there’s any chance the rest of the federal legal system is going to pay any attention to that decision? But if that sucker had been issued by the Second Circuit, look out, you’ve got a real issue.

I make a slight exception for procedural questions because most procedural problems never make it past the district court level. Appellate courts just don’t screw around with trial procedure problems, which the district courts deal with all the time. Thus, how the trial courts handle those problems is pretty useful to show another court how to handle them.

I’m a bit biased here, however, because my practice is primarily appellate law in the state courts. Not much call for S.D. Iowa cases in Tex. App.–Amarillo.

17

I believe you are either misremembering or misreading, Beef.

18

Feel free to hijack minty - this thread turned out to be a bit of a dud, what with everyone agreeing unanimously and all.

I was a little surprised that it was (almost) unanimous here given that I felt like I was in a tiny minority in the other thread where the subject came up.

Thanks everyone for helping me out.

19

Another way of overruling the Supreme Court is to:

  1. Threaten to increase the size of the court. See, for example, the “switch in time saves nine” that resulted from the court packing plan of Franklin D. Roosevelt. Many things unconstitutional before FDR threatened to expand the court with his cronies were constitutional thereafter (e.g., the New Deal).

Then again, I suppose that is really a subset of your point (1) in which the Supreme Court overruled itself…just for non-customary reasons.

20

Well, this is just opinion/personal attitude, but I believe that if an individual is convinced of the unConstitutionality of a law, regardless of whether it’s been officially declared that by the Supreme Court, they can rightfully use their right/duty of jury nullification to battle the law.

From what I read, during this country’s founding, it seemed to me that the citizenry was responsible for using their own conscience to determine the ultimate legality of any law, not just “check your conscience at the door and only rule a verdict strictly based on the law” attitude that’s forced on modern jurors.

And so individual conscience was supposed to be as critical a part of the legal system as the rulings of the Supreme Court.

But hey, I may just be one of those crazy backwards non-statists.