"[e]ach educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution."
Section 111 of Division J of Pub L. 108-447

Controversies about the Constitution

Federalism

Some of the most important decisions issued by the Supreme Court over the past decade have been about federalism, i.e., the sharing of governing authority between the federal government and the fifty state governments. Since 1995, the Supreme Court has struck down or limited the reach of numerous federal laws passed by Congress in such policy areas as civil rights, crime, and economic regulation. These rulings have not attracted as much public or political attention as court rulings related to abortion, gay marriage, and criminal justice, but they are arguably much broader in their impact and potential to precipitate fundamental constitutional change.

Many of the recent federalism rulings have been based on the Supreme Court’s newly restrictive reading of some of Congress’s constitutional power. One of the most important and enduring constitutional principles is that Congress is only allowed to exercise powers enumerated in the Constitution. The Court’s recent federalism rulings have focused on Congress’s use of its enumerated powers to regulate commerce “among the states” (Article I, Sec. 8) and to protect civil rights (Amendment 14, Sec. 5). After deciding narrowly that Congress had exceeded one or both of these general powers, the Court’s conservative majority has struck down or limited the reach of key provisions in the Gun Free School Zones Act, the Violence Against Women Act, the Religious Freedom Restoration Act, and the Americans with Disabilities Act.

The Court has also issued a series of rulings limiting the ability of the federal government to use court proceedings to force states to comply with federal law. In this line of cases, the Court initially relied upon the text of the 11th Amendment, which limits some specific types of lawsuits against state governments. In recent rulings, however, the justices have acknowledged that they are expanding the doctrine well beyond anything explicitly stated in the Constitution (Seminole Tribe of Florida v Florida 517 U.S. 44 (1996). Rulings in this area have limited the reach of federal laws regarding minimum wages, discrimination in employment on the basis of age and disability, and regulation of Indian Gaming.

The Court’s rulings on state government immunities from lawsuits, while technical and obscure, are important because the ability to use court proceedings to compel states to adhere to federal standards is a key means of maintaining those standards. When coupled with the other new doctrines limiting Congress’s enumerated powers, the limits on lawsuits against states alter the balance of power between the federal and state governments.

These struggles over the relative power of the federal and state governments are nothing new in American constitutional history. The original Constitution was established with the understanding that the federal government could not exceed the powers listed in the Constitution, but many of the provisions granting those powers were very broad and expressed in general, open ended language. That open ended language has provided flexibility that has allowed Congressional powers to expand in response to circumstances unforeseen at the time of the founding.

The open texture of many grants of federal authority is the result of a series of delicate compromises between advocates of stronger federal power and advocates for states’s rights. Disagreements between those two groups could not be settled by reaching a consensus and specifying some precise federal/state balance in the text of the Constitution. Rather, many disagreements were left unsettled and federal powers were stated in very general terms. Participants expected that the political institutions established in the Constitution would provide the framework through which ongoing disagreements about federalism could eventually be resolved. That institutional process continues to this day. However, the original constitution balance has evolved considerably as the Civil War and industrialization led to the adoption of several transformative Constitutional amendments that gave new powers to Congress and the federal government.

The recent Supreme Court rulings limiting congressional power fit into the basic pattern of ongoing struggle between state and federal interests. However, the current controversies show little potential to develop into the dramatic confrontations between Franklin Roosevelt and the Court over the New Deal. At that time, the position taken by the Court was very different from the position taken by the dominant political coalition that had control of the rest of the government. Today, the Court’s new limits on federal power are being developed while those holding power in the other, more directly accountable branches of government also favor limiting some federal power and devolving some power to states.

Nevertheless, controversies regarding federal power will sharpen over the next decade as the Court is pressed to clarify its still-developing doctrines. The Court’s recent willingness to limit federal power has generated new legal challenges to federal regulatory statutes (such as the Endangered Species Act) as well as new attempts in Congress to draft statutes more carefully in order to avoid judicial objections. The precise meaning of the Court’s developing doctrines will thus be determined as these new moves play out, and as justices currently on the Supreme Court retire and are replaced by new justices.

Separation of Powers

Along with federalism, separation of power is one of the two core structural principles of the Constitution. Power within the federal government is shared between three branches of government. As a result, successful implementation of policies requires the coordinated activity between all three branches of government. This feature of constitutional design quite often results in conflict among the branches, conflicts that take on a constitutional dimension when one branch is alleged to have encroached upon the constitutionally protected prerogatives of another.

One reason for ongoing controversy regarding the powers of each branch of government is that the Constitution’s text does not always provide clear guidance about how conflicts over separate but overlapping powers should be resolved. For example, the Constitution states that the President "shall be commander in chief of the Army and Navy of the United States", but also explicitly gives Congress the power to raise armies, declare war and to make laws regarding the conduct of the armed forces. The text of the Constitution does not explain how conflicts between Congress and the President over the conduct of an ongoing war are properly resolved.

Another area of conflict resulting from shared powers is the role of the Senate in confirming presidential appointees, particularly nominees to the federal courts. Claims about the constitutionality of the Senate filibuster figured prominently in recent struggles between the White House and Congress over judicial confirmations.

Conflicts between the branches of government are most likely to occur during periods of divided government, i.e., periods when Congress and the White House are controlled by different political parties. Periods of divided government during the Clinton Administration produced intense conflicts between the President and Congress, leading ultimately to the House impeaching the president. These conflicts have been less pronounced during the Bush presidency, as a Republican congress has declined to challenge novel exercises of power by a Republican president. However, controversy will undoubtedly return if divided government returns as well. Likely areas of struggle will include increased attempts by Congress to scrutinize presidential policy making processes as well as challenges to related assertions of executive privilege and executive war-making powers.

Rights and Liberties

Many people think that the Court’s primary institutional role is to protect civil rights and civil liberties, particularly the right of disfavored minority groups. Such a role has not, however, been the primary calling for the Supreme Court for much of its history. The Court only became associated with protecting the rights of minorities and criminal defendants during the 20th Century. In the 19th Century, the Court never struck down laws to protect civil rights or civil liberties (other than the right to property) despite the fact that violations of core rights like free speech, assembly, and due process were quite common during that period. The Court did gradually develop more interest in protecting civil rights during the 20th century, particularly during the Warren Court era (1954-1968). However, The Court today has again shifted away from protecting individual rights in order to focus on other obsessions. The most important Court rulings on civil rights over the last two decades have not been rulings protecting minorities from majority tyranny, but rulings limiting the power of the majority to expand rights protections to minorities. The Rehnquist Court prevented Congress from extending some rights to disabled persons, senior citizens, and racial minorities. These rulings have developed out of the federalism doctrines discussed above, but have important implications for the development of civil rights law as well.

The rights related issue that attracts the most public attention to the Supreme Court today is abortion. The question of whether the Court might overturn Roe v Wade has been the focus of much of the speculation regarding President Bush’s recent nominations of John Roberts and Samuel Alito. Many people speculate whether the new conservative justices will vote to overturn Roe and thus make abortion illegal in the United States. However, the impact of a Court ruling formally overturning Roe is quite difficult to predict. Such a ruling would not make abortion illegal. That would only happen if state governments and/or Congress responded to such a ruling by enacting newly restrictive abortion regulations. There are some states that would likely enact or revive such restrictions, including many states where it is already quite difficult (and in some cases impossible) for women to obtain abortions. Meanwhile, there are many other states where it is extremely unlikely that elected officials would act to ban abortion, including many of the most populous states.

While it is difficult to predict the precise effects of a ruling overturning Roe, it is almost certain that such a ruling would intensify political conflicts over abortion. Candidates and elected officials could no longer avoid the contentious abortion issue by claiming that it had been settled by the courts, and might thus be forced to take clearer stands on abortion policies. The choices that elected officials make in response to such political pressures will shape the availability of abortion in a post-Roe era.

Another set of ongoing constitutional conflicts are created by Bush administration policies regarding detainees in the current “war on terror”. Many of the policies articulated by the administration quite clearly contradict procedural standards articulated in the Bill of Rights, including Sixth Amendment guarantees of the right to access to counsel, the right to a speedy and public trial, the right to be informed of the nature and cause of an accusation, and the right to be confronted with witnesses; and Fifth Amendment requirement of a grand jury indictment. While no one denies that these substantive standards are being violated by Bush administration policies, the constitutional issues raised by administration policies are by no means settled. One important question is the extent to which procedural guarantees articulated in the Bill of Rights apply to non-citizens. The word “citizen” does not appear anywhere in the Bill of Rights, and many of the relevant provisions seem consciously worded to establish more general protections. (The 6th Amendment addresses itself to “all criminal prosecutions”, while the 5th applies in terms to “all persons”.) However, there is a body of case law limiting the applicability of the Constitution’s procedural protections to non-citizens, particularly in deportation and immigration cases. The legal issues are further clouded by the fact that many of the persons detained were seized and are being held outside of the borders United States, e.g., U.S. bases such as the one in Guantanomo Bay. The administration’s policies thus raise a variety of technical legal questions about Court jurisdiction and the applicability of various constitutional standards for persons with different status.

Thus, while federal courts have heard some cases related to detainees, they have largely confined themselves to threshold questions regarding the power of judges to review detentions. The Supreme Court’s initial rulings addressed technical questions of jurisdiction while avoiding questions about what, if any, substantive standards of justice the administration should follow. (See, e.g., Rasul v Bush (542 U.S. 466, 2004), Hamdi v Rumsfeld (542 U.S. 507, 2004), Rumsfeld v Padilla (542 U.S. 426, 2004)). The more recent decision in Hamdan v Rumsfeld was widely reported as an assertion of Constitutional limits on government interference with civil liberties. However, in reality, the divided Court only took a stand in favor of the core constitutional principle that the President’s actions must comply with existing law. The Court did not rest its rulings on constitutional civil liberties standards, and thus invited Congress to pass legislation to make the president’s detention policies consistent with statutory law.

If history is any guide, the Supreme Court is unlikely to go beyond such narrow rulings to take a stronger stand for civil liberties by ordering release of detainees or taking steps to end torture. (See, e.g., Korematsu v United States 323 U.S. 214, 1945). Thus, the most important factor determining the future contours of detention policies will likely be public support for and opposition to such policies, not Court rulings freeing detainees. That fact does not, however, mean that the processes shaping policy in this area are not constitutional processes. The choices that the United States makes about how to treat detainees go to the heart of what the United States stands for as a country, and are thus irreducibly constitutional conflicts.

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