American Constitutional Development Since 1980

Analysts predicted that the landslide victory of conservative Republican Ronald Reagan in the 1980 presidential election would transform constitutional law and politics. Instead, America's constitutional framework has remained relatively stable. This continuity reflects various political and legal factors.

POLITICS AND CONSTITUTIONAL CHANGE

President Reagan ( 1981–1989 ) promised to advance freedom by persuading Congress to lower taxes, reduce federal regulation, return more power to states, and allow individuals and private groups to flourish. He believed that limitations on the federal government also extended to courts, which should impartially expound the US Constitution and statutes according to the intent of their enactors—not the judge's preferences.

Reagan's ideas gained strong intellectual support from the Federalist Society for Law and Public Policy Studies, founded in 1982 by prominent conservative and libertarian attorneys, professors, and law students. The Federalist Society sought to reorder the legal system by returning to classical constitutional principles of limited government (especially judicial restraint), federalism, individual liberty, and traditional values.

The success of the conservative agenda depended crucially on the appointment of Supreme Court justices who would not creatively interpret the Constitution, but rather would implement its original meaning to the extent feasible. The problem was that, since 1937, the Court had approved virtually absolute federal authority and thus eviscerated the Constitution's basic principle of federalism: that the federal government was limited to its enumerated constitutional powers, with all others reserved to the states or “We the People.” Moreover, since 1954, the Court had discovered many constitutional rights in areas that had formerly been left to state regulation, such as abortion.

To reverse these trends, Reagan named three conservatives ( Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy ) to join the Court's four other Republicans: Warren Burger, William Rehnquist, Harry Blackmun, and John Paul Stevens. Furthermore, Reagan's successor, George H. W. Bush ( 1989–1993 ), appointed Republicans David Souter and Clarence Thomas to replace two liberals. Finally, Republican George W. Bush ( 2001–2009 ) selected two conservatives: John Roberts in 2005 to succeed Chief Justice Rehnquist, and Samuel Alito in 2006 to replace O'Connor.

Despite this enduring majority of Republican justices, the anticipated conservative constitutional rollback never materialized. Although in general the Court has not extended liberal precedents, it has rarely overruled or even contracted them. Rather, the Court has kept its major decisions largely intact and made only incremental changes. The main reason for this stability is that several Republican appointees ( such as O'Connor, Kennedy, and Souter 1993–2001 ) in 1993 (Ruth Bader Ginsburg) and 1994 (Stephen Breyer) and by President Barack Obama ( 2009– ) in 2009 (Sonia Sotomayor) and 2011 (Elena Kagan). The gradual evolution of constitutional law can best be understood by examining its two main categories: government structure and individual rights.

GOVERNMENT STRUCTURE: FEDERALISM

Presidents Reagan, Bush I, and Bush II sought to promote federalism not only through judicial appointments, but also by executing statutes to curb federal overreaching. Furthermore, Republicans regained control of Congress in 1994 by pledging to transfer more powers from the federal to the state governments. President Clinton began to cooperate with Congress and declared that “the era of big government is over.”

Actually taming the federal leviathan, however, has been difficult. Realistically, Congress cannot repeal entrenched legislation such as Social Security, Medicare, and environmental laws. Accordingly, conservatives have merely aimed to prevent further federal expansion. Even then, however, senators and representatives of all political stripes favor vote-getting laws, including those that invade the states’ traditional jurisdiction over subjects like crime. And any efforts at federal restraint collapsed with the economic crisis that began in 2007. Bush II approved massive corporate bailouts, and Obama championed the American Recovery and Reinvestment Act of 2009 (the “stimulus” ), which spent nearly a trillion dollars on infrastructure and other projects. Even more costly was the Patient Protection and Affordable Care Act of 2010 (ACA; known as “Obamacare” ), which subsidized medical insurance for millions and took over an area previously entrusted to the states.

In short, the federalism renaissance of the 1980s and 1990s has faded in Congress and the executive branch. Nonetheless, this idea has remained vibrant on the Court, which has continuously included five pro-federalism Republican justices since 1986.

The Court's Attempts to Preserve State Powers. This razor-thin conservative majority has focused on three areas. First, they have interpreted the Eleventh Amendment as generally giving states “sovereign immunity” from lawsuits, even when Congress attempts to abrogate that immunity to effectuate federal legislation ( Seminole Tribe of Florida v. Florida, 517 U.S. 44 [1996]; Alden v. Maine, 527 U.S. 706 [1999] ). Second, these justices have forbidden Congress from “commandeering” states by forcing either their legislatures to enact statutes or their executive officials to enforce federal laws ( New York v. United States, 505 U.S. 144 [1992]; Printz v. United States, 521 U.S. 898 [1997] ).




Supporters and opponents of healthcare reform demonstrating outside the Supreme Court while the justices heard arguments on the constitutionality of the Affordable Care Act, March 26, 2012.





Supporters and opponents of healthcare reform demonstrating outside the Supreme Court while the justices heard arguments on the constitutionality of the Affordable Care Act, March 26, 2012.
© CHIP SOMODEVILLA/GETTY IMAGES

Third, the Court has restricted Congress's power to regulate interstate commerce, which had gone unchecked since 1937. Most notably, in United States v. Lopez, 514 U.S. 549 ( 1995 ), and United States v. Morrison, 529 U.S. 598 ( 2000 2005 ), in sustaining Congress's ban on noncommercial conduct occurring within a state—the possession and use of marijuana for medical purposes as permitted by California law— as essential to its larger regulation of the interstate commercial activity of marijuana sales.

The Court identified another limit in National Federation of Independent Businesses v. Sebelius, 567 U.S. ___ ( 2012 ), which concerned Obamacare's requirement that all Americans purchase health insurance or pay a penalty. The five Republican justices ruled that this “individual mandate” could not be enacted under the commerce clause, which enabled Congress to regulate only existing commercial “activity” —not to compel inactive Americans to buy something. However, Chief Justice Roberts unexpectedly joined the four liberals in finding that the mandate could also be interpreted as a “tax” on those who did not obtain medical insurance and thus could be upheld under Congress's Article I power to tax.

Since 1937, this taxing power has been absolute. Hence, it provides a convenient way for Congress to avoid the Court's federalism-based restrictions on its other powers (such as the commerce clause). Indeed, the conservative justices' rhetoric about preserving the states' traditional jurisdiction has not been matched by results that appreciably lessen federal authority.

GOVERNMENT STRUCTURE: SEPARATION OF POWERS

Congress often tries to constrain the president's vast discretion to administer regulatory legislation and to deal with foreign nations, and any interbranch disputes are usually settled politically. The Court's rare interventions have produced inconsistent outcomes.

In domestic cases, the Court has sometimes formally limited Congress to “legislative” power to make law, the president to “executive” power to execute the law, and the courts to “judicial” power to expound the law. For example, INS v. Chadha, 462 U.S. 919 ( 1983 ), held that, if Congress disapproved of the executive's administration of a statute, its only option was to repeal or amend the law pursuant to Article I procedures— passage in both chambers and presidential approval. At other times, however, the Court has flexibly allowed blending of powers. For instance, Morrison v. Olson, 487 U.S. 654 ( 1988 ), sustained an Act of Congress creating an Independent Counsel, appointed by three federal judges and unaccountable to the president, to investigate alleged wrongdoing by executive officers. Yet Article II formally vests all “executive power” (including criminal law enforcement) in the president, who must control his subordinates.

Such inconsistency also characterizes cases involving foreign and military affairs. From 1980 until 2003, the Court deferred to the judgments of the president and Congress because they have the constitutional power, institutional expertise, and political accountability to decide such matters responsibly ( see, e.g., Regan v. Wald, 468 U.S. 222 [1984] ). By contrast, from 2004 to 2008, the Court struck down several of President Bush's antiterrorism policies, which had been authorized by Congress after September 11, 2001. For example, Hamdi v. Rumsfeld, 542 U.S. 507 ( 2004 ), declared that the due process clause prohibited the president from indefinitely detaining alleged “enemy combatants” who were American citizens without first granting them a hearing before an impartial decision maker. Similarly, in Boumediene v. Bush, 553 U.S. 723 ( 2008 ), five justices announced that even noncitizen detainees had a constitutional right to file a habeas corpus petition, despite longstanding contrary precedent.

These cases might portend a major shift toward aggressive judicial checks on the political branches’ exercise of war powers. Conversely, the Court may have seized a rare opportunity to assert constitutional limits against a very unpopular president and Congress long after a crisis (9/11) had passed, but may revert to its deferential posture in future emergencies. Such ambiguity is unsurprising. In both foreign and domestic affairs, the Court has not clearly delineated the respective roles of Congress, the president, and the judiciary.

INDIVIDUAL RIGHTS: EQUALITY

The Court has not overturned any major liberal decisions rendered from the late 1940s through the early 1970s. In fact, a survey of equality and liberty cases reveals that constitutional rights have often been expanded.

Race Discrimination. The Court has consistently construed the equal protection clause as subjecting government racial and ethnic classifications to “strict scrutiny” : They must be “narrowly tailored” to achieve a “compelling government interest.” This demanding standard, which originated to address discrimination against minorities, has been extended to affirmative action legislation intended to help them.

The landmark cases are Gratz v. Bollinger, 539 U.S. 244 ( 2003 ), and Grutter v. Bollinger, 539 U.S. 306 ( 2003 Schuette v. BAMN, 572 U.S. ___ [2014] ).

KEY DATES

1980:
Ronald Reagan wins the 1980 presidential election by a landslide and goes on to name three conservatives to the United States Supreme Court.
1983:
In INS v. Chadha, the Supreme Court declares legislative vetoes in more than 200 federal laws unconstitutional.
1988:
Morrison v. Olson upholds the constitutionality of a federal law creating an independent counsel to investigate and prosecute wrongdoing in the executive branch of the national government.
1994:
Republicans regain control of Congress by pledging to transfer more powers from the federal to the state governments.
1995:
In United States v. Lopez, the Supreme Court restricts Congress's power to regulate interstate commerce.
1996:
In Seminole Tribe of Florida v. Florida, the Supreme Court rules that state sovereign immunity under the Tenth and Eleventh Amendments forbids Congress to permit states to be sued in federal courts for violations of federal laws passed under the interstate commerce clause.
1996:
In United States v. Virginia, the Supreme Court rules that a state law banning women from attending a state military college lacked the “exceeding persuasive justification” mandated by the equal protection clause of the Fourteenth Amendment.
1996:
In Romer v. Evans, the Supreme Court finds that a Colorado constitutional amendment prohibiting state and local governments from shielding homosexuals from discrimination irrationally imposed legal disabilities on this group.
1997:
In Printz v. United States, the Supreme Court forbids Congress from “commandeering” states by forcing either their legislatures to enact statutes or their executive officials to enforce federal laws.
2000:
In Bush v. Gore, the Supreme Court holds that the Florida Supreme Court could not authorize county officials to apply different criteria in recounting contested presidential election ballots. The outcome of the case effectively decided the presidential election in favor of George W. Bush.
2003:
In the landmark affirmative-action cases Gratz v. Bollinger and Grutter v. Bollinger, the Supreme Court applies strict scrutiny to the University of Michigan's undergraduate and law school admissions programs. The justices sustain the law school program, but declar unconstitutional the undergraduate program which gave a fixed number of points to minority applicants.
2004:
In Hamdi v. Rumsfeld, the Supreme Court holds that neither the Constitution nor federal law permit the president to detain an American citizen who is suspected of being an illegal combatant without a hearing.
2009:
President Barack Obama champions the American Recovery and Reinvestment Act (the “stimulus” ), which spends nearly a trillion dollars on infrastructure and other projects.
2010:
The Patient Protection and Affordable Care Act (known as “Obamacare” ) subsidizes medical insurance for millions while raising questions about the scope of congressional power under Article I.
2010:
In Citizens United v. Federal Elections Commission, the Supreme Court declares that corporations have the same right as individuals under the Constitution to make independent expenditures urging the election or defeat of political candidates.
2015:
In Obergefell v. Hodges, the Supreme Court legalizes same-sex marriage nationwide, ruling that state bans on same-sex marriage are unconstitutional.

Gender Discrimination. The Court has adhered to its ruling in Craig v. Boren, 429 U.S. 190 ( 1976 ), that all government gender classifications require “intermediate scrutiny” : They must be “substantially related” to an “important” government interest. Most significantly, United States v. Virginia, 518 U.S. 515 ( 1996 ), held that a state law banning women from attending a military college rested on stereotypical assumptions and did not advance any important state interest.

Sexual Orientation. The Court has extended equality protections to gays and lesbians. The trailblazing Romer v. Evans, 517 U.S. 620 ( 1996 ), found that a Colorado constitutional amendment, which prohibited state and local governments from shielding homosexuals from discrimination, irrationally imposed legal disabilities on this group. The Court has also intimated that state laws limiting marriage to heterosexuals violate equal protection, but declined to decide this issue on jurisdictional grounds ( Hollingsworth v. Perry, 570 U.S. ___ [2013] ).

Equal Voting Rights. The Court has never wavered from its 1960s precedent establishing that equal protection requires treating voters equally, and that consequently states had to (1) allow all citizens to vote regardless of wealth and (2) apportion their legislatures based on population. Indeed, Bush v. Gore, 531 U.S. 98 ( 2000 ), extended this principle of voter equality by holding that the Florida Supreme Court could not authorize county officials to apply different criteria in recounting contested presidential election ballots. Five conservative Republican justices then concluded that uniform criteria could not be devised and applied in time to meet the legal deadline for certifying the Electoral College winner, which effectively ensured victory for the conservative Republican candidate, George W. Bush. This case starkly illustrates how constitutional law and politics often converge.

The Court similarly entered the political thicket in Shelby County v. Holder, 570 U.S. ___ ( 2013 ), by striking down Section 4(b) of the Voting Rights Act of 1965, which hinges on a “coverage formula” that determines which state and local governments must obtain federal preclearance in light of their history of discrimination in voting. The five conservative Republican justices ruled that Congress's 2006 reauthorization of the coverage formula, based on fortyyear-old data, did not respond to current realities in treating states differently and hence ran afoul of federalism.

In short, the Court has adhered to the Warren Court ( 1953–1969 ) “one person, one vote” principle for state legislative representation. However, the conservative justices have retreated from the tradition of judicial deference to Congress's efforts to remedy historical discrimination.

INDIVIDUAL RIGHTS: LIBERTY

The key decisions concerning civil liberties fall into two categories. First, the Fifth and Fourteenth Amendment due process clauses prohibit the federal and state governments from depriving people of “liberty.” Second, the Bill of Rights protects specific liberties such as freedom of speech.

Due Process “Liberty.” The Court's most controversial opinions have crafted new substantive standards of “liberty,” typically the right to privacy in making personal choices that states have attempted to ban or restrict on moral grounds. Of surpassing legal and political significance is abortion. Republican presidents have opposed Roe v. Wade, 410 U.S. 113 ( 1973 ), which created a right to abortion. In Planned Parenthood v. Casey, 505 U.S. 833 ( 1992 ), four Republican appointees voted to reverse Roe, but three others ( O'Connor, Kennedy, and Souter ) concluded that, although Roe may have been wrongly decided, stare decisis counseled following this precedent. The Court recognized, however, that governments could enact reasonable regulations that did not “unduly burden” the right to abortion before fetal viability. For instance, Gonzales v. Carhart, 550 U.S. 124 ( 2007 ), sustained Congress's ban on post-viability abortions.

Another major development concerns the liberty interests of gays and lesbians. In Lawrence v. Texas, 539 U.S. 558 ( 2003 ), the Court invalidated a Texas law criminalizing homosexual sodomy as a violation of due process because consenting adults had a right to privacy in engaging in sexual activity at home.

Specific “Liberties.” Cases involving freedom of expression often do not divide the Court along familiar liberal vs. conservative lines. For example, conservative Justices Scalia and Kennedy joined liberal Justices Brennan, Marshall, and Blackmun in announcing a First Amendment right to burn the American flag as “expressive conduct,” thereby furthering the principle of Brandenburg v. Ohio, 395 U.S. 444 ( 1969 ), that the government could not punish speech unless it incited “imminent lawless action” ( Texas v. Johnson, 491 U.S. 397 [1989] ). Furthermore, none of the justices has questioned New York Times v. Sullivan, 376 U.S. 254 ( 1964 ), which encouraged robust debate by holding that public figures could not sue publishers for libel absent a showing of “actual malice.” The Court has embraced broad political speech by striking down “campaign finance reform” laws. The landmark decision is Citizens United v. Federal Election Commission, 558 U.S. 310 ( 2010 ), which rejected Congress's attempt to suppress political speech funded by corporations and unions. The Court extended Citizens United in McCutch-eon v. Federal Election Commission, 572 U.S. ___ ( 2014

HISTORY OF THE TWENTYSEVENTH AMENDMENT

The Twenty-Seventh Amendment—” No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened” —forbids members of Congress from increasing their compensation during their term of service, thereby allowing voters to judge the propriety of any pay raises. The amendment's purpose is clear: to prevent self-dealing by federal legislators. The amendment's history, however, is convoluted. It was initially proposed in 1789, when Congress approved it and forwarded it with eleven other amendments to the states for a ratification vote. Only six states voted yes, but the other states did not expressly reject it. The requisite three-quarters’ majority ratified ten of the remaining amendments, which became known as the Bill of Rights.

The “compensation” amendment thereafter lay dormant until a college student renewed interest in ratifying it during the Reagan era. These efforts succeeded in 1992, when Michigan became the critical thirty-eighth state to ratify. Initially, some members of Congress questioned the amendment's validity because over two centuries had elapsed between its proposal and ratification, in contrast to the longest previous delay of a mere four years. Nonetheless, Congress quickly realized it would be politically foolish to resist an amendment that enjoyed such widespread support, and therefore overwhelmingly approved it.

Constitutional jurisprudence concerning the First Amendment religion clauses has seen the most extensive changes. Most importantly, Employment Division v. Smith, 494 U.S. 872 ( 1990 ), discarded the Free Exercise approach that had been used since Sherbert v. Verner, 374 U.S. 398 ( 1963 ), which applied strict scrutiny to any government infringement of a sincere religious practice. Instead, the Court asserted that states simply needed a rational basis to enact “neutral laws of general applicability,” such as a state's ban on peyote whether its use be religious or secular. Moreover, City of Boerne v. Flores, 521 U.S. 507 ( 1997 ), held that Congress's attempt to revive Sherbert in the Religious Freedom Restoration Act of 1993 had usurped the Court's role in ultimately defining constitutional rights.

Turning to the establishment clause, the Court still technically follows the three-pronged test in Lemon v. Kurtzman, 403 U.S. 602 ( 1971 ), by examining whether a law has a secular purpose, advances or inhibits religion, or excessively entangles government with religion. Since 1980, however, the Court has gradually abandoned Lemon's “strict separation of church and state” approach in favor of a “neutrality” test that requires government aid to be given without regard to whether or not a group is religious. ( See Rosenberger v. University of Virginia, 515 U.S. 819 [1995], prohibiting a state university that funded student publications from denying money to a publication because it was religious .)

In Second Amendment cases, when cities like Washington, DC, and Chicago enacted novel ordinances that did not merely regulate gun ownership but banned it, the Court had to clarify the meaning of the amendment: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Five conservative justices struck down these ordinances as violating the individual right to own firearms for traditionally lawful purposes (such as self-defense), a right that is independent of one's service in the militia ( District of Columbia v. Heller, 554 U.S. 570 [2008], and McDonald v. Chicago, 561 U.S. 742 [2010] ). By contrast, the dissenting justices argued that the Second Amendment merely conferred a collective right tied to militia activity.

Overall, the Court has generally enlarged constitutional liberties. The major exception involves free exercise of religion.

CONCLUSION

In sum, since 1980, constitutional law has remained fairly stable. Although many politicians on both the right and left have urged more sweeping reform, the Court's interest in preserving its precedent has had a moderating influence.

SEE ALSO Amending the US Constitution, History of ; American Constitutional Development from 1937 to 1980 ; Article I, United States Constitution ; Federalism, Theory of ; Federalism in American History ; Judicial Federalism ; Obama, Barack ; Reagan, Ronald ; Rehnquist, William ; Roberts, John .

BIBLIOGRAPHY

Amar, Akhil Reed. America's Unwritten Constitution: The Precedents and Principles We Live By. New York: Basic Books, 2012.

American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115.

Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Rev. ed. Princeton. NJ: Princeton University Press, 2014.

Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 5th ed. New York: Wolters Kluwer, 2015.

Fallon, Richard H. The Dynamic Constitution: An Introduction to American Constitutional Law and Practice. 2nd ed. New York: Cambridge University Press, 2013.

Friedman, Barry. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York: Farrar, Straus and Giroux, 2009.

McGinnis, John O., and Michael B. Rappaport. Originalism and the Good Constitution. Cambridge, MA: Harvard University Press, 2013.

Monaghan, Henry Paul. “Stare Decisis and Constitutional Adjudication.” Columbia Law Review 88, no. 4 (1988): 723–73.

Patient Protection and Affordable Care Act, Pub. L. No. 111- 148, 124 Stat. 119, amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029.

Pushaw, Robert J. “Partial-Birth Abortion and the Perils of Constitutional Common Law.” Harvard Journal of Law & Public Policy 31 (2008): 519–91.

Tribe, Laurence, and Joshua Matz. Uncertain Justice: The Roberts Court and the Constitution. New York: Holt, 2014.

Robert J. Pushaw Jr.
Pepperdine University School of Law