Constitutional Interpretation

A look at how the Supreme Court has interpreted the Constitution through case law.

What Alexander Hamilton was saying in this passage was that state governments would still control what was most important to people's every day lives: local issues and law enforcement powers.Hamilton felt that state governments would only be subservient to the the national government in certain areas like military, economic development, and foreign policy. 

As Michael P. Federici argues, "because the states would always be more proximate to the people and because human nature creates greater affection for what is closest to one-self, the national government would be incapable of winning the affection of the people." 
Annotated by bacraig on September 26, 2014
In this passage, we see the heart of Madison's "tyranny of the majority" speech.  It was a common idea at the time that a republic thrived only in a small geographical area.  Madison turned this concept on its head and thought it was vital to "enlarge the sphere" so that there would be many interests or passions that it would make it difficult for a majority to dominate.  It reflected his statements in his earlier work, Vices of the Political System.  Charles Hobson argues, "The real crisis in America, Madison emphasized, had its origins in the turbulent majorities who ruled the state legislatures." Madison felt the lower national legislature should avoid these turbulent majorities and be more republican.
Annotated by bacraig on June 10, 2014

Article IV provides an additional mechanism for forced cooperation – the full faith and credit clause.  A holdover from the Articles of Confederation, the full faith and credit clause guarantees that “the public acts, records, and judicial proceedings” of one state will be honored in all other states.  The clause is an aid to interstate travel and guarantees that the official acts of one state will not be a dead letter in another state.  For example, the full faith and credit clause guarantees that a court judgment from one state almost always will be enforceable in another state.  That has two implications.  The first is that one state may be required to allow access to its courts regarding a matter that did not occur in that state.  The second is that a person may not evade civil justice from one state by simply moving to another state. A person also may not evade criminal justice, because a different section of Article IV requires that fugitives from justice be returned to that state from which they fled.

Annotated by kcbooz on September 05, 2013
Under the Articles of Confederation, no permanent federal judiciary existed. Judicial bodies were appointed on an ad hoc basis by Congress, or Congress addressed judicial issues on its own. The Constitution provides a separate judicial branch of government. In outlining the scope of federal judicial power by defining the types of questions and disputes the federal judiciary should address, the Constitution defines what issues are inside or outside the judiciary's purview. The federal courts are supreme when deciding cases that are appropriately within their scope of review. Consequently, they may overrule state courts with respect to those issues.
Annotated by kcbooz on September 05, 2013

Though the President may only be removed from office for high crimes and misdemeanors, the meaning of what constitutes such offenses is dependent on the House when impeaching and the Senate when convicting.  Consequently, it is technically possible for both houses to impeach and convict the President for something other than high crimes and misdemeanors.  However, the institutional prestige of both bodies would almost certainly be greatly diminished in the process.

Though Andrew Johnson and Bill Clinton are the only two Presidents to be impeached, the rationales for those respective proceedings had very different bases.  President Johnson’s impeachment involved a political matter that came to a head when Johnson removed Secretary of War Stanton in 1868, in an apparent violation of the Tenure in Office Act.  This Act limited the circumstances under which the President could remove officials whose jobs were subject to the advice and consent of the Senate. It can be said that President Johnson’s ultimate vindication proved that impeachment would not succeed when used on a political basis. President Clinton’s impeachment involved a personal matter that became a judicial matter when he gave false testimony under oath in a case prosecuted when he was in office.  Though Johnson’s and Clinton’s cases were very different, they both had to be addressed under the general language of the impeachment clause.  

Annotated by kcbooz on September 05, 2013

The President nominates federal judges.  There are no constitutionally mandated qualifications for nomination or appointment as a federal judge.  Throughout the history of the federal courts there have been judges that were not attorneys.  More recently, though, they almost always have extensive legal training.  Judges are appointed with “the advice and consent” of the Senate.  Senators may vote for or against nominees for any reason they choose. Often during the nomination and confirmation process, many individuals and organizations express opinions on the nominee.  Federal judicial appointments are essentially lifetime appointments barring impeachment and removal.  Over the course of our history there have only been a handful of successful impeachments of federal judges.  This is designed so as to insulate judges from politics and assure independence.   The Constitution indicates textually that judges serve during “good behavior,” but it does not indicate what behaviors would constitute grounds for removal.

Presidents tend to nominate judges who are presumed to share the President’s politics.    However, a number of Supreme Court justices have famously decided cases inconsistent with the politics of the President who appointed the justice.

After a President nominates a person to the federal bench, the Senate has hearings as a part of the process to advise and consent.  Nominees appear before the Senate and are questioned, though that is not required under the Constitution and has not been a consistent practice since the Founding.  Though confirmation hearings have been somewhat contentious in recent years, a number of nominees have been rejected by the Senate over the country’s history. 

For those nominees who are appointed, lifetime appointment serves to insulate the judges from outside influences though Presidents have sought to influence judges on occasion.  Indeed, President Franklin Roosevelt’s court packing plan in 1937 was an attempt to influence the federal judiciary. Roosevelt proposed adding members to the Supreme Court, since the Constitution does not set the number of justices.  The “court packing plan” was conceived to counter the influence of conservative justices who were hostile to New Deal legislation.  The plan was met with broad resistance and was not adopted.  However, President Roosevelt made his point, and soon after his court packing plan the Supreme Court began upholding New Deal legislation rather than striking it down.

Once appointed, a federal judge may be impeached and removed. Samuel Chase has the distinction of being the only Supreme Court Justice to have been impeached. Chase avoided removal when he was narrowly acquitted of charges by the Senate in 1805.  Several judges from the federal trial and appellate courts have been impeached and removed.  The most recent was Judge G. Thomas Porteous from Louisiana in 2010.   

Annotated by kcbooz on September 05, 2013


The President is the head of the civil authority.  In that vein, the President runs the government and appoints many people to fill the upper reaches of the government, including Supreme Court justices.  However, the President’s appointment power is limited.  The President must receive the advice and consent of the Senate with respect to many of the people he nominates.  If the Senate declines to consent, the nomination fails.  This is just one example of the enormous power the President has, but it also illustrates that the power is circumscribed.  The President may make appointments without the advice and consent of the Senate when it is in recess.  However, a recess appointment is temporary and has been known to create a backlash in the Senate, making future appointments more difficult.

Annotated by kcbooz on September 05, 2013

Commander in Chief

The President also is the head of the military, serving as commander-in-chief of the armed forces.  However, given that the Congress has the power to declare war, the President’s role as commander-in-chief is arguably limited to executing war once Congress had decided to engage in war.  The issue remains with us, but it is generally resolved through political considerations. That is, the President uses the military as he believes necessary, consistent with his role as commander-in-chief, while consulting with Congress to make sure the military action continues to be funded.  Whether this comports with the way the constitutional check and balance is supposed to work is a matter for debate.


One power the president wields is particularly tricky. The pardon power appears royal and arguably anti-democratic to the extent that it gives the President the power to waive punishment that has been determined to be consistent with the law.  Predictably, many Antifederalists assailed this feature suggesting it would lead to tyranny.  Conversely, the pardon power may be used to rectify a punishment that was consistent with the letter of the law but not its spirit.  And finally, the power to offer pardons to rebels and insurrectionists may be used as a tool for negotiating their surrender.  As with many presidential powers, the content of the power may matter less than how and when it is used.

Annotated by kcbooz on September 05, 2013

There has arisen in America the misleading notion that the courts are the sole interpreters of the Constitution.  Yet the Constitution’s directive that the President swear an oath that he will “preserve, protect and defend the Constitution of the United States” (Art. II, Sec. 1) clearly implies that a President must have some notion of the meaning of that Constitution he is preserving, protecting, and defending.  While the Constitution provides no punitive measures for a President who fails in his duty to uphold the Constitution, the Framers clearly intended that each branch of the government should, in its own way, defend the Constitution.  When Andrew Jackson vetoed the Bank Bill in 1832, he recurred to the duty of every public officer who swears an oath to the Constitution:"The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both."Lincoln broadened that duty even further during the Sixth Lincoln-Douglas Debate, insisting that not only Congress and the President but every citizen is bound to respect what he believes is the proper understanding of the Constitution.  That duty persists even when (and perhaps especially when) his own interpretation differs from the determinations of the Supreme Court:"We oppose the Dred Scott decision in a certain way . . .  We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. . . . but we nevertheless do oppose that decision as a political rule, which shall be binding on the voter to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. . . .  We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject. . . . "And as President, in his First Inaugural Address, Lincoln reiterated that duty:"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."Lincoln argues that, while it may be the sole province of the courts to decide individual cases, they yet may err regarding the constitutional principles upon which they base those decisions.  It is the duty of every American – whether citizen, Judge, Congressman, or President – to understand to the best of his ability the authentic meaning of the Constitution, and to make political decisions based on that understanding.  For the people to accept anything less would mean that they have abdicated their right to rule themselves.  As James Madison said:“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” 

Annotated by kcbooz on September 05, 2013

Contract rights and a stable business atmosphere were extremely important to the Framers, as many of them were wealthy men. When they talk about the majority oppression of (typically wealthy or successful) minorities, they are typically referring to a bundle of rights, among which they certainly include the sanctity of contracts. The Contract Clause is one of the few measures in the Articles of the Constitution that guarantees an individual right. The Marshall Court was active in establishing property and commercial rights, as well as protecting contracts. In Fletcher v. Peck, 10 U.S. 87 (1810), the Court for the first time declared a state law unconstitutional, citing the Constitution’s Contract Clause.

In 1795, the Georgia legislature granted about 35 million acres of land at a conspicuously low price of 1.5 cents per acre (a total of about 9.7 million 2011-dollars). A landslide election occurred after it had been discovered that nearly all of the legislators had been bribed, and the new legislature repealed the land grant. In 1800, Peck purchased land that was part of the 1795 land grant, selling it to Fletcher in 1803. Upon discovering that the land had been part of the 1795 law, Fletcher sued. When his case reached the Supreme Court, the issue at hand was whether the 1796 repeal law had violated the Constitution’s Contract Clause.

The Court decided that it had. While the original act was deplorable and illegal, neither Fletcher nor Peck had participated in the original fraud. Marshall wrote,

“When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights. A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. […] A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States.”

The Court reinforced this position in Dartmouth College v. Woodward, 17 U.S. 518 (1819), and, in Providence Bank v. Billings, 29 U.S. 514 (1830), held that states may levy taxes on corporations they had chartered after issuing the charter without violating the Contract Clause.

In Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837), however, the Taney Court established that contracts may be read to operate in the favor of the public at large, rather than private parties. In that case, Massachusetts had granted Charles River Bridge Company a charter, but, after the company had used its monopoly to extract unnecessarily high tolls, the state granted a charter to build another, toll-free bridge. Chief Justice Taney cited the English common law principle that “any ambiguity in the terms of the contract must operate against the adventurers and in favor of the public, and the plaintiffs can claim nothing that is not clearly given them by the act.” During the New Deal, the Court further expanded instances in which the government can modify contracts, especially under extraordinary circumstances [see Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934), as well as the Gold Clause Cases, e.g., U.S. v. Bankers Trust Co., 294 U.S. 240 (1935)].

Annotated by msoyfer on September 05, 2013